DEPFA BANK plc

TERMS AND CONDITIONS OF BUSINES

DEPFA BANK plc, (“DEPFA”) is regulated by the Central Bank of Ireland, (the “CBI”). The registered office of DEPFA is Block 5 Irish Life Centre, Lower Abbey Street, Dublin D01 P767. DEPFA is a Dublin-based public limited company, incorporated in Ireland.

DEPFA’s main strategy and business model is to manage and wind-down its public sector finance asset base, which primarily consists of the cover pools of its subsidiary DEPFA ACS Bank DAC. DEPFA only serves corporate clients, meaning a customer of DEPFA who is not a consumer (such that “consumers’ within the meaning of Section 2 of the Consumer Credit Act 1995 are not affected).

On 19th December 2014, DEPFA became a wholly owned subsidiary of the German state agency FMS Wertmanagement AöR (“FMS-WM”) which was established in 2010 as the Federal Republic of Germany’s winding up institution for the nationalised HRE Group. FMS-WM is under the direct ownership of the German Financial Markets Stabilisation Fund (the “ SoFFin”), which is managed by the Federal Agency for Financial Market Stabilisation (the “FMSA”).

DEPFA does not undertake new business commitments except for complying with the wind-down strategy as part of the conditions agreed during the state aid approval process between the European Commission and the Federal Republic of Germany. DEPFA continues to preserve capital and wind-down its portfolio in a manner designed to maintain value. The application of the Terms and Conditions of Business set out below relate to DEPFA’s obligations under the European Union (Markets in Financial Instruments Directive) Regulations 2017 (“MiFID II”), where applicable.

  1. APPLICATION

These terms and conditions of business (the “Conditions”) set out the basis on which we will provide our services to you and/or transact with you.

DEPFA is authorised by its banking licence to provide all investment services but will continue to provide services only to existing clients and to undertake new business only according to the wind-down strategy by dealing on its own account in relation to loan agreements (“ Loans”), and the financial instruments listed in MiFID II (the “Financial Instruments”) at our discretion.

  1. INSTRUCTIONS

You may at your own risk give us oral or written instructions relating to existing transactions and which must be in keeping with our wind-down strategy (by post, facsimile, telephone, in person, or by electronic means of communication as may be agreed between us from time to time) but in each case such instructions must be properly communicated in accordance with our normal practice and we may require you to confirm such instructions to us in writing.

We may rely on all orders or instructions which we believe are given by you or on your behalf without further enquiry and are under no obligation to confirm such orders or instructions. Once orders or instructions have been given by you or your agents to us, they cannot be rescinded, withdrawn or amended without our express consent.

According to applicable laws and regulations, we may record all communications to, or from you (including telephone conversations) which will be saved and stored for a specified period and may be used by DEPFA to fulfil related regulatory reporting requirements.

If you fail to notify us of any notice or instructions required under these Conditions, we shall not be responsible for any loss, direct or indirect, arising therefrom.

We may also in our sole discretion refuse to accept any instructions from you without giving any reason or being liable for any loss occasioned thereby.

  1. CLIENT CATEGORISATION

MiFID II requires that clients be classified as either “Retail Client”, “Professional Client” (whether that is a “per se professional client”, or, where the client elects to be treated as a professional client, an “elective professional client”), or “Eligible Counterparty”.

These categories are applied based on objective criteria and you will be notified thereof. Specific levels of protection apply to each category, with Retail Clients benefitting from the highest level of protection and Eligible Counterparties, the lowest. You are responsible for notifying DEPFA immediately if a change of categorisation is required, in which case you consent to DEPFA taking such action as it considers necessary in relation to such change, which may mean that DEPFA cannot continue to provide you with services according to these Conditions.

  1. INFORMATION AND RISKS RELATING TO LOANS AND FINANCIAL INSTRUMENTS

Each loan and Financial Instrument has its own characteristics and is subject to particular risks. Certain Loans and Financial Instruments may not be suitable or appropriate for you in light of your categorisation. Documentation containing a general description of such Loans and Financial Instruments and the risks related thereto, may be provided to you if required.

  1. MATERIAL INTERESTS

We may enter into transactions with or for you, and make a recommendation to sell an investment where we or some other connected person has an interest, relationship or arrangement that is material in relation to the transaction or investment concerned, including (but without limitation); dealing as principal or agent in investments bought, sold or held by you. In such circumstances we will not be liable to account to you for any benefit, profit or commission or other remuneration made or received by reason of the transaction or any connected transaction.

  1. MARKETS RULES AND REGULATIONS

All transactions carried out, or to be carried out pursuant to these Conditions on any market are subject to the constitution, by-laws, rules, regulations and/or customs of the relevant market where such transactions are executed, and to all applicable laws (which terms shall include any regulations of any governmental or quasi-governmental agency) whether imposed on you or us and so that:

1) in the event of any conflict between (i) these Conditions; and (ii) any such constitution, by-laws, rules, regulations and/or laws, the latter as from time to time in force shall prevail; and

2) we shall be entitled to take or omit to take any action we consider fit or appropriate in order to ensure compliance with the same and all such actions so taken shall be binding upon you.

We may also effect transactions with or for you otherwise than on a market or on a market in circumstances where the transaction is not regulated by its rules, however, in order to execute transactions outside a regulated market you must give us your express consent.

In connection with any relationship between you and us, we are authorised by you, either during or after termination of these arrangements: (i) to do anything or disclose any matters required by any law, rule or regulation in any part of the world to be done or disclosed by us, or (ii) to do anything or disclose any matters which we are requested to do or disclose by any self-regulating organisation, any market or clearing house or any other body having regulatory or enforcement responsibility in relation to any investment business conducted by us for or with you.

  1. CUSTODY SERVICES

DEPFA does not provide stand-alone safe custody services. If safe custody services are required by you in connection with a transaction with us, by an affiliate of ours or by an eligible custodian or any other person, you may apply to us in writing and we will consider your request for such custody services.

  1. ADMINISTRATION OF ACCOUNTS

1) Basis of charges

Charges for our services will be in accordance with our rates notified to you from time to time. All payments to be made by you to us shall be made in freely transferable, cleared and available funds in such currency and to such accounts as we may specify and shall be made without set-off or counterclaim and free and clear of, and without deduction for, or on account of all present and future taxes, levies, imposts, stamp duties, deductions, charges and withholding whatsoever unless you are compelled by law to make the payment subject thereto. You shall also indemnify us in respect of all taxes, levies, imposts, stamp duties, deductions, charges and withholdings and if any amounts in respect thereof are deducted from any amounts payable or paid by you, you shall pay to us an amount equal to the full amount which we would have received had payment not been made subject to such deduction. All costs and associated charges charged for the investment service and/or ancillary services provided to you should form part of the amount to be disclosed.

Should it be reasonably required for the purposes of calculating any amount due to us we reserve the right to convert in accordance with Clause 14 any amount expressed in one currency into another currency at such time and at such rate as we consider necessary or desirable and you agree to bear any loss that may arise on such conversion.

2) Interest

If you fail to pay any sum due to us on the date on which it is due and payable, you agree to pay interest on such sum on demand from the date of such failure and to pay to the date of actual payment at a rate determined by us from time to time, where relevant, being the cost to us of funding that sum at prevailing market rates from whatever source we may select and for such periods as we may decide, plus such additional percentages as we may agree or, failing such agreement, 4 per cent per annum above the applicable interbank offered rate.

  1. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS

1) You represent, warrant and (where relevant) undertake to us at the time of agreement to these Conditions and on each date of each subsequent transaction entered into hereunder that:

(i) you have and will have full power and legal capacity to enter into these Conditions and each and every transaction entered into hereunder; and

(ii) you are the beneficial owner of all investments transferred to us by you and that such investments are free from any mortgage, charge, lien or other encumbrance whatsoever.

2) Furthermore, you agree that you will:

(i) provide to us on request such information regarding your financial or business affairs as we may reasonably require in order to comply with our obligations under law or the rules of the CBI and that all information supplied to us is, or at the time it is supplied to us will be, true and accurate in all material respects and you will not omit or withhold any information which would render the information so supplied false or inaccurate in any material respect; and

(ii) execute on our request all such transfers, powers of attorney and other documents as we may require to vest any investments in us, our nominee, a purchaser or transferee.

  1. EVENTS OF DEFAULT

1) If at any time:

(i) you fail to provide any payment or documents due under these Conditions in each case on the due date;

(ii) you fail to observe or perform in whole or in part any of the provisions of these Conditions or commit a material breach of the representations or warranties;

(iii) an application is made in respect of you for a voluntary arrangement with your creditors, if you are in a partnership, in respect of one or more of your partners or, if you are a company, any steps are taken or proceedings initiated or protection sought under any applicable bankruptcy, reorganisation or insolvency law by you in respect of yourself or against you including, without limitation, the taking of any steps for the appointment of a receiver, liquidator, trustee, administrative receiver, administrator or similar officer to be appointed over your undertaking or assets or any part of them;

(iv) a petition is presented for your winding up or for an administration order in respect of you;

(v) an order is made or a resolution is passed for your winding up (other than, in either case, for the purposes of reconstruction, amalgamation or merger and in such manner that the entity resulting from the reconstruction, amalgamation or merger effectively agrees to be bound by or assumes the obligations imposed on you under these Conditions) or an administration order is made in respect of you or if you are a partnership, in respect of one or more of your partners;

(vi) you convene a meeting for the purpose of making or proposing or entering into any arrangement or composition for the benefit of your creditors (other than for the purposes of a bona fide reconstruction or amalgamation);

(vii) any distress, execution or other process is levied against any of your property and is not removed, discharged or paid within seven days;

(viii) any security created by a mortgage or charge created by you becomes enforceable and the mortgagee or chargee takes steps to enforce the security;

(ix) any indebtedness of you or any of your associates becomes immediately due and payable or capable of being declared so due and payable, prior to its stated maturity, by reason of default on the part of any person or you (or any of your associates) fail to discharge any indebtedness on its due date whether owing to us or not (other than a liability which you or any of your associates is contesting in good faith);

(x) anything analogous to any of the events specified above occurs under the laws of any applicable jurisdiction; or

(xi) we consider it necessary or desirable for our own protection,

then without prejudice to any other rights which we may have, we shall initiate those rights as set out in Clause 11.

If you know, or should know, or become aware of any event in this Clause 10 occurring, you are required to give us notice of such event forthwith.

  1. CONSEQUENCES OF AN EVENT OF DEFAULT

11.1 At any time after one of the events of default specified in Clause 10 (excluding Clause 10.1.v) occurs we shall be entitled at our sole discretion and (except as otherwise expressly provided) without prior notice to you, to take one or more of the following actions:

(i) settle early, liquidate or close out all or any of the transactions then currently outstanding in accordance with this Clause 11; and

(ii) require immediate payment of all sums due or to become due to us whether or not the time for payment has yet arrived.

11.2 Without prejudice to Clause 11.1, we shall be under no obligation to exercise any right or, if we do exercise any right, to do so at a time or in a manner beneficial to you. Any act effected in connection with or pursuant to a transaction effected between us shall be entirely without prejudice to our right to refuse any further performance thereafter, and it shall not in any circumstances be considered as a waiver of that right or as a waiver of any other of our rights. Save in the case of automatic early settlement, we may exercise our rights in respect of any or all transactions entered into between us.

11.3 If an event of default described in Clause 10.1.v occurs, all outstanding obligations between us shall be settled automatically on the early settlement date which for this purpose shall be the day of the order or resolution referred to in that paragraph and all other sums due or to become due to us hereunder shall become immediately due and payable.

11.4 If any event of default occurs within any other sub-paragraph of Clause 10, then we may by notice in writing require you to settle early some or all of the outstanding transactions on an early settlement day which for this purpose shall be the day stipulated in that notice being no earlier than the date of the notice.

11.5 Where early settlement of an outstanding transaction is to be made, no other payments or deliveries shall be made in respect of such transaction (other than payment of charges or interest due to us) save that each such transaction shall be settled immediately upon the early settlement date by establishing the early settlement amount in respect of each transaction and by discharging the early settlement amount through payment by the relevant party in accordance with Clause 11.9.

11.6 The early settlement amount in respect of each such transaction shall be calculated by us (and our calculations shall, in the absence of manifest error, be conclusive) as the difference between:

(i) the value of the investment at the contract price; and

(ii) its value on the early settlement date, as determined by us in our absolute discretion having regard to, amongst other prices, official settlement prices set by the relevant exchange, if any.

11.7 In the case of a transaction where you are the buyer, the early settlement amount calculated as above shall be positive if the value under Clause 11.6(i) is lower than the value under Clause 11.6(ii) and negative if it is higher.

11.8 In the case of a transaction where you are the seller, the early settlement amount shall be negative if the value under Clause 11.6(i) is lower than the value under Clause 11.6(ii) and positive if it is higher.

11.9 If the early settlement amount calculated under Clauses 11.7 and 11.8 is positive you shall be entitled to receive the early settlement amount subject to our rights in Clause 12. If the early settlement amount is negative, you shall pay the early settlement amount to us on demand.

11.10 We both agree that any early settlement amount payable to us under this Clause 11 represents a reasonable estimate of the loss which would otherwise have been suffered by us as a result of the occurrence of the events specified in Clause 10 and is not a penalty. No proof or evidence of actual loss shall be required in respect of the early settlement amount.

  1. REALISATION OF SECURITIES

Where we exercise any rights under these Conditions to realise any securities or other assets we shall be entitled to effect such realisation of those securities or assets at the market price (as determined by us in our absolute discretion) at the time the realisation takes place (including to ourselves or our associates if we so wish) and to convert any currency realised in accordance with Clause 14 and to use the proceeds in accordance with Clause 14. We shall have the right to choose the time, place and methods of such sale at our absolute discretion. Any costs of sale shall be borne by you. As against any of your obligations (whether actual or contingent) to us, any security, guarantee or indemnity given to us by or in respect of you for any purpose shall extend to any amount owing from you after exercise of any right of set-off we may have under these Conditions or otherwise.

  1. PRIVACY STATEMENT

Please note that we may process personal data as part of and/or in connection with our services to you. Personal data received by DEPFA are only collected, processed and utilised by DEPFA in accordance with the provisions of relevant privacy legislation including the General Data Protection Regulation (GDPR). The following principles apply in particular: (i) by sending us a message or a request online you consent to our collection, processing and utilisation of your data for the purposes of processing your request. Your consent extends to passing on your data to an affiliate of DEPFA to allow for an expedient execution or resolution of your inquiry or request; (ii) your data collected for the purposes of registering for a service will only be used for the purpose of providing that service in question.

Your consent to the collection, processing and utilisation of your data as well as to its passing on to the group of companies of which DEPFA is a member, may be revoked at any time with effect for the future only.

  1. CURRENCY CONVERSION

We shall be entitled, without prior notice to you, to make any currency conversions we consider necessary or desirable for the purposes of complying with our obligations or exercising any of our rights under these Conditions. Any such conversion shall be effected by us in such manner and at such rates as we may in our absolute discretion determine having regard to the prevailing rates for freely convertible currencies.

In addition to any rights under these Conditions, if for the purposes of any claim, proof or order, a liability which you owe to us must be converted into currency other than that in which it would otherwise have been due, you shall pay to us such additional amounts as may be necessary to ensure that, when received and reconverted, we will receive the full amount in the original currency as would have been received had no such conversion been required.

  1. TERMINATION

Either of us may terminate these Conditions immediately by giving notice in writing to the other party. Termination will not affect any obligations under transactions entered into prior to receipt of such notice of termination, and shall be without prejudice to any right which may arise or have arisen prior to receipt of that notice.

  1. ASSIGNMENT

Neither of us may assign or transfer any rights or obligations arising under the agreement to these Conditions or any agreement to which it is expressed to be supplemental except to the extent that we may assign or delegate to any other group company any of our rights or obligations hereunder and in the event of any reorganisation, reconstruction or merger we may assign or transfer these rights or obligations to any successor company or any other company without prior consent.

  1. MISCELLANEOUS

1) Governing law and jurisdiction

These Conditions shall be governed by and construed in accordance with Irish law.

In relation to any suit, action, proceedings or claim arising from these Conditions or any transaction entered into under it each of us irrevocably submits to the non-exclusive jurisdiction of the courts of Ireland and waives any objection to proceedings in any such court on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.

To the extent that you may in any jurisdiction claim for yourself or your assets immunity from suit, execution, attachment or other legal process and to the extent that in any such jurisdiction there may be attributed to you or your assets such immunity (whether or not claimed) you irrevocably agree not to claim such immunity and irrevocably waive such immunity to the full extent permitted by the laws of such jurisdiction.

At our request you will forthwith appoint an agent to receive on your behalf service of process of any proceedings in Ireland and deliver to us a copy of the agent's acceptance of that appointment.

2) Force majeure and illegality

You acknowledge that we shall not be responsible for any losses suffered by you resulting directly or indirectly from any government action, suspension of trading, any action, decision or ruling of an exchange or the action of any person beyond our control (including any agent, exchange or dealing error) any war, strike, national disaster, delay in postal services or any other delay or inaccuracy in the transmission of orders or other information or any breakdown, failure or malfunction of any telecommunications or computer services. All price quotations or trading reports given to you are also subject to change and errors as well as delays in reporting and you further acknowledge that reliance upon such information is at your own risk. In the event of such an event arising we may take any action which we consider necessary or desirable to mitigate any loss, whether for your account or for ours, arising therefrom. Any such action which we may take shall be binding on you.

If at any time any provisions of these terms or any transaction made under them is or becomes illegal, invalid or unenforceable under any applicable law, neither the legality, validity or enforceability of the remaining provisions shall in any way be affected or impaired.

3) Amendments

We reserve the right to vary, amend or add to these Conditions at out discretion. If you do not wish to continue dealing with us, please note the termination provisions at Clause 15. In the absence of any prior notice to the contrary, you will be deemed to have accepted the revised Conditions with effect from their notified effective date. We will maintain a copy of our current Conditions on our website, and you should refer to the website for the current version.

4) Exclusion of liability and indirect clients

Except as provided elsewhere in these Conditions or in any other agreement to which it is expressed to be supplemental, we shall not be liable for any costs, expenses, loss, liability, claim or counterclaim except to the extent that such costs, expenses, loss, liability, claim or counterclaim arises out of our negligence, wilful default or fraud or the negligence, wilful default or fraud of our agents or out of a breach of any duty or liability which we owe to you by law. Further, we shall have no liability whatsoever to your counterparties and, where you are acting as an agent for an identified principal, we shall not treat your principal as our client unless specifically agreed in writing between us.

5) Indemnity

(i) You shall, and hereby undertake that you shall at all times, indemnify and hold us harmless from, against and in respect of all payments, liabilities, claim, counterclaim, damages, losses and costs (including legal costs) duties, taxes (other than corporation tax on our overall net income) and expenses made, suffered or incurred (directly or indirectly) by us as a result of our acting under these Conditions save that this indemnity will not apply to any loss or liability to the extent it arises or results from our negligence, fraud or wilful default or a breach by us of any applicable Irish rule or law.

(ii) The foregoing indemnities shall be in addition to any other right, indemnity or claim which we may have under these Conditions or the general law, and shall not be affected by any variation or termination of these Clauses or by any forbearance whether as to payment, time, performance or otherwise whatsoever.

6) Communications and Notices

Any notice or other communication in respect of these Conditions must be given to us in writing and delivered in person, sent by certified or registered mail or by overnight courier or electronic communication at the address or number as may be specified between us from time to time. A notice will be deemed to have been delivered (unless otherwise specified in these Conditions) if delivered in person or electronic communication on the date on which it is delivered and if delivered by mail or by courier shall be deemed to have been received on the next business day where such notice is sent in Ireland and on the third business day thereafter where such notice is sent to or from overseas.

7) Our rights

Our rights, remedies and powers under these Conditions are cumulative and not exclusive of, and shall not prejudice, any right, remedy or power which we may have under any agreement to which these Conditions is expressed to be supplemental or as provided by law, statute or otherwise howsoever. All rights, remedies, powers and actions exercisable by us under these Conditions may be exercised by us in our absolute discretion at any time without prior notice to you.

8) Information

We may from time to time be required to provide information regarding you or your transactions to one or more regulatory bodies. You irrevocably authorise us to provide any such information as may be required by compulsion of law or under the rules of the CBI.

9) Time of the essence

In respect of all transactions entered into hereunder these Conditions, time shall be deemed to be of the essence.

10) Commencement

These Conditions were updated with effect from the 20 September 2019

11) Complaints Management Policy

Customer complaints must be resolved as quickly as possible in a fair and equitable manner. All “significant complaints”, as described below, must be referred to the Compliance Officer. The Compliance Officer will arrange for the complaint to be investigated fully and promptly, either personally, or by his designate, who must be a person who was not originally involved in the matter giving rise to the complaint.

The Compliance Officer will also be responsible for ensuring that remedial action, if appropriate, is promptly taken and, for making any notification to the CBI or local regulator as may be necessary. The Compliance Officer will inform the Group Compliance Officer and the Head of Internal Audit of any complaints received. Compliance will maintain a register of complaints which will be reported periodically to the Risk Committee.

11.1 Significant Complaints

Significant complaints include any complaint received in writing and any other complaint which alleges a breach of the Code of Conduct for Investment Business Services of Credit Institutions, the Central Bank Acts or other relevant regulatory rules or legislation, or which alleges malpractice or impropriety within the core business of the bank. Significant complaints must be dealt with in accordance with the procedures set out below.

11.2 Trivial Complaints

Trivial complaints typically arise from minor clerical or mechanical errors. Such matters can generally be resolved by prompt correction. However, if the problem persists or the complaint cannot be resolved promptly, it must be regarded as a significant complaint and dealt with in accordance with the procedures set out below.

11.3 Complaints Handling by Members of Staff

All significant complaints, whether received orally or in writing, must be transcribed onto a Complaint Form on the day of receipt and passed promptly to the Compliance Officer. The representative concerned should also retain a copy for his own use. The Complaint summary form must contain the following information:

●complainant’s full name and address (and if practicable SUMMIT id);

●time and date of receipt of the complaint;

● a full description of the subject at issue as presented by the complainant (including full details of when the events took place (e.g. dates and times)); and

●the opinion (if applicable) of the recipient

If the complaint is made orally, e.g., spoken over the telephone, the customer must be advised that its complaint will be promptly referred to the Compliance Officer who will be responsible for ensuring that it is investigated fully and impartially and the customer should also be invited to make his complaint in writing, to the Compliance Officer directly.

11.4 Customer liaison

The Compliance Officer shall write to the customer to acknowledge receipt of the complaint and to advise him/her that it will be investigated fully and impartially and that he will be further advised within 7 days. A copy of the acknowledgement will be forwarded to the Head of Audit and if relevant, the business unit head.

11.5 Investigation

The investigation must include a review of all pertinent documents Compliance will provide you with feedback of the progress of the complaint. If you feel we are not dealing with your complaint in a satisfactory manner, you may escalate the complaint to the CBI.

11.6 Internal follow-up

DEPFA shall periodically analyse the complaints submitted so as to identify the root causes common to types of complaint and root causes are corrected where reasonable to do so.

  1. MISCELLANEOUS ISSUES

Language

The business language of DEPFA is English.

Contact

Should you have any questions relating to the content of these Conditions you should contact the Compliance Department, DEPFA BANK plc, Block 5 Irish Life Centre, Lower Abbey Street, D01 P767, +353 1 792 2222.

Articles of Association