GENERAL CONDITIONS PART II. CC&G Services

Transcription

1 GENERAL CONDITIONS PART II CC&G Services 1. - Definitions 1.1 Terms with their first letter in upper case used in these General Conditions Part II shall be understood, unless indicated otherwise, to have the same meaning as the definitions contained in the General Conditions Part I and in the Annexes. 1.2 In this part of the General Conditions, the term: - Market : indicates the market (or segment thereof) relating to the Section identified in the option(s) provided in the Application for Services (by way of example, the Share Market, the Derivatives Market and the Bond Market). - New MIC : indicates the anonymous section guaranteed in Euro of the electronic trading market in monetary deposits in Euro managed by the Management Company e-mid Sim S.p.A. - Clearing and guarantee service : indicates the activity performed upon the assumption by CC&G, as guarantor, of the position of central counterparty in relation to contracts concerning the financial instruments specified in the agreement with the Management Company, traded in each Market. - New MIC Guarantee Service : indicates the activity performed upon the assumption by CC&G, as guarantor vis-à-vis members, of the credit and debit contractual positions of the members market counterparties, including the clearing and guarantee mechanism for traded contracts and the forwarding of settlement instructions to the Target 2 System for the monetary deposits in Euro specified in the agreement with the Management Company and traded on the New MIC. - Services : indicates the Clearing and guarantee service and the New MIC Guarantee Service. 1.3 The provisions of the following articles are of a general character and are applicable in conjunction with the provisions of the Management Company and CC&G Purpose of the Clearing and guarantee service for a Client that assumes the position of General Clearing Member 2.1 In this article, the Client is understood as a General Clearing Member. 2.2 From the moment that the Contract indicated in the Application for Services becomes fully effective pursuant to paragraph 2.5 of the General Conditions Part I, CC&G succeeds, according to the provisions of the Annexes, to the Contractual Positions assumed from that moment on the Market of reference, in relation to the types of contracts for which the Clearing and Guarantee Service operates, by the Client (and possibly by effect of a give-up market procedure, where relevant) and by Non-Clearing Members who use its services, under the terms set out in the following paragraphs. The types of contract indicated above are made available by the methods of communication indicated at paragraph 6.2 of the General Conditions Part I. 2.3 From the moment of conclusion on the Market of a contract guaranteed in the context of the Clearing and guarantee service, which has been entered into by the Client or by a Non-Clearing Member who uses its services or, where provided, by the Member (hereinafter: the Trader), whose market operations correspond, by effect of a market give-up agreement, to the Client as the Designated June 2010 Edition GCII CC&G 2 Member the corresponding Transfer orders from (the Trader to the Client and from) the Client to CC&G or from the Non-Clearing Member to the 2012 September Edition 1

2 Client and from the Client to CC&G are understood as executed and introduced in the system, with the simultaneous assumption by CC&G of the role of central counterparty, as provided in the Regulations. 2.4 From the time the Transfer Orders are executed pursuant to paragraph 3, CC&G, in replacement of the Client, assumes the same contractual position, whether credit and debit (including obligations relating to the Margins) assumed on the Market by the said Client (or, where provided for, by the Trader for which the Client acts as Designated Member): a) vis-à-vis the Client s Market counterparty, (or the Trader s counterparty) if the Client is a Clearing Member, or b) vis-à-vis the General Clearing Member whose services the said Market counterparty uses, if the General Clearing Member is a Non-Clearing Member, or c) vis-à-vis the Designated Member of the said Market counterparty if the Designated Member is a give-up market trader, or d) Vis-à-vis the Special Clearing Member, if the said Market counterparty joins a central counterparty guarantee system managed by the said Special Clearing Member. 2.5 Concomitantly with the provisions of paragraph 4, CC&G shall further assume vis-à-vis the Client the same contractual position, whether credit or debit, (including those relating to the Margins) assumed on the Market by its Market counterparty (or by the counterparty of the Trader for which the Client is the Designated Member). 2.6 Accordingly, the Client, following this double replacement by CC&G, shall be obliged to fulfil the obligations to CC&G originally assumed (by the Client itself or by the Trader), also with respect to the Margins, vis-à-vis the Market counterparty; the latter and the Client being released from the fulfilment of their reciprocal obligations (or their obligations to the Trader) arising from the contract concluded on the Market. 2.7 According to the provisions of the Regulations, where contracts are entered into on the Market by a Non-Clearing Member (or entered into by another trader and registered in accounts relating to the Non-Clearing Member, on the basis of an appropriate give-up contract) who uses the Client s services, the Client - from the time the Transfer Order is issued pursuant to paragraph 3, takes the place of the Non-Clearing Member in the same contractual position, whether debit or credit, (including those relating to the Margins), assumed on the Market by the Market counterparty of the said Non-Clearing Member (or by the trader), and CC&G shall assume vis-à-vis the Client the same contractual position, whether debit or credit, that the Client assumed vis-à-vis the aforementioned Non-Clearing Member. Consequently, in the aforementioned cases, the redeeming effect indicated at paragraph 6 is produced vis-à-vis the Market counterparty. 2.8 According to the provisions of the Regulations, for the contracts indicated at paragraph 7, from the time the Transfer Orders are made pursuant to paragraph 3, CC&G assumes the same contractual position, whether credit and debit (including obligations relating to the Margins), assumed on the Market by the Non-Clearing Member who uses the Client s services (or by the Trader indicated at paragraph 7): a) vis-à-vis the Market counterparty of the Non-Clearing Member if the Market Counterparty is a Clearing Member, or b) vis-à-vis the General Clearing Member whose services the said Market counterparty uses, if the General Clearing Member is a Non-Clearing Member, or c) vis-à-vis the Designated Member, if the said Market Counterparty is a give-up market trader, or d) Vis-à-vis the Special Clearing Member, if the said Market counterparty joins a central counterparty guarantee system managed by that Special Clearing Member September Edition 2

3 2.9 With respect to the Bond Section, the Transfer Orders indicated at paragraph 3 are executed for the contracts provided for therein only, concluded in exchange with an operator that, with respect to that Section, is a Member of the Central counterparty guarantee System managed by CC&G, or member of a guarantee system managed by a Special Clearing Member By appropriate agreement between CC&G and the relevant Management Company, the clauses of the General Conditions and the Annexes can be extended, without prejudice to the right of withdrawal pursuant to Article 11 of the General Conditions Part I, to new markets, or new financial instruments traded on the markets and included in the section of which the Client is a member. CC&G will inform Members of the signing of such agreements by the methods of communication indicated at paragraph 6.2 of the General Conditions Part I Purpose of the Clearing and guarantee service for a Client that assumes the position of Individual Clearing Member 3.1 In this article, the Client is understood as an Individual Clearing Member. 3.2 From the moment that the Contract indicated in the Application for Services becomes fully effective pursuant to paragraph 2.5 of the General Conditions Part I, CC&G succeeds, according to the provisions of the Annexes, to the Contractual Positions assumed from that moment by the Client (and possibly by effect of a give-up market procedure, where relevant) on the Market of reference, in relation to the types of contracts for which the Clearing and Guarantee Service operates, under the terms set out in the following paragraphs. The types of contract indicated above are made available by the methods of communication indicated at paragraph 6.2 of the General Conditions Part I. 3.3 From the moment of conclusion on the Market of a contract guaranteed in the context of the Clearing and guarantee service, which has been entered into by the Client or, where provided for, by a Member (hereinafter: the Trader), whose market operations correspond, by effect of a market give-up agreement, to the Client as the Designated Member the corresponding Transfer orders from (the Trader to the Client and from) the Client to CC&G with the simultaneous assumption by CC&G of the role of central counterparty, as provided in the Regulations. 3.4 From the time the Transfer Orders are executed pursuant to paragraph 3, CC&G, in replacement of the Client, assumes the same contractual position, whether credit and debit (including obligations relating to the Margins) assumed on the Market by the said Client (or, where provided for, by the Trader for which the Client acts as Designated Member): a) vis-à-vis the Client s Market counterparty, (or the Trader s counterparty) if a Clearing Member, or b) vis-à-vis the General Clearing Member whose services the said Market counterparty uses, if the General Clearing Member is a Non-Clearing Member, or c) vis-à-vis the Designated Member of the said Market counterparty if the Designated Member is a give-up market trader, or d) vis-à-vis the Special Clearing Member, if the said Market counterparty joins a central counterparty guarantee system managed by that Special Clearing Member. 3.5 Concomitantly with the provisions of paragraph 4, CC&G shall further assume vis-à-vis the Client the same contractual position, whether credit or debit, (including those relating to the Margins) assumed on the Market by its Market counterparty (or by the counterparty of the Trader for which the Client is the Designated Member). 3.6 Accordingly, the Client, following this double replacement by CC&G, shall be obliged to fulfil the obligations to CC&G originally assumed (by the Client itself or by the Trader), also with respect to the Margins and further sums due for other reasons, vis-à-vis the Market counterparty; the latter and 2012 September Edition 3

4 the Client being released from the fulfilment of their reciprocal obligations (or their obligations to the Trader) arising from the contract concluded on the Market. 3.7 With respect to the Bond Section, the Transfer Orders indicated at paragraph 3 are executed for the contracts provided for therein only, concluded in exchange with an operator that, with respect to that Section, is a Member of the Central counterparty guarantee System managed by CC&G, or member of a guarantee system managed by a Special Clearing Member. 3.8 By appropriate Agreement between CC&G and the relevant Management Company, the clauses of the General Conditions and the Annexes can be extended, without prejudice to the right of withdrawal pursuant to Article 11 of the General Conditions Part I, to new markets (or segments), or new financial June 2010 Edition GCII CC&G 4 instruments traded on the markets and included in the section of which the Client is a member. CC&G will inform Members of the signing of such agreements by the methods of communication indicated at paragraph 6.2 of the General Conditions Part I Purpose of the Clearing and guarantee service for a Client that assumes the position of Non- Clearing Member 4.1 In this article, the Client is understood as a Non- Clearing Member. 4.2 From the moment that the Contract indicated in the Application for Services becomes fully effective pursuant to paragraph 2.5 of the General Conditions Part I, the Client avails itself, for the Market of reference, of the services of the System as provided in the Annexes. Consequently, the General Clearing Member and CC&G succeed to the Contractual Positions assumed on the Market from that moment by the Client, in relation to the types of contracts for which the Clearing and Guarantee Service operates, under the terms set out in the following paragraphs. The types of contract indicated above are made available by the methods of communication indicated at paragraph 6.2 of the General Conditions Part I. 4.3 Also by effect of an appropriate agreement between the Client and the General Clearing Member whose services it uses, from the moment of the Client s conclusion on the Market of a guaranteed contract in the context of the Clearing and guarantee service, the corresponding Transfer Orders from the Client to the General Clearing Member and from the latter to CC&G shall be considered to be effected and entered into the System, with the concomitant assumption by CC&G of the role of the Central Counterparty, in accordance with the provisions of the Regulations. 4.4 Without prejudice to the provisions of paragraphs 2.7 and 2.8, from the moment the Transfer Order is effected pursuant to paragraph 3, CC&G, in replacement of the Client, assumes the same contractual position, whether credit and debit (including obligations relating to the Margins) assumed on the market by the said Client: a) vis-à-vis the Client s Market counterparty, if the Client is a Clearing Member, or b) vis-à-vis the General Clearing Member whose services the said Market counterparty uses, if the General Clearing Member is a Non-Clearing Member, or c) vis-à-vis the Designated Member of the said Market counterparty if the Designated Member is a give-up market trader, or d) vis-à-vis the Special Clearing Member, if the said Market counterparty joins a central counterparty guarantee system managed by that Special Clearing Member. 4.5 Concomitantly, the General Clearing Member whose services the Clients uses assumes the same credit or debit contractual position vis-à-vis CC&G (including obligations relating to the Margins) that the latter has assumed pursuant to preceding paragraph. 4.6 Simultaneously, according to the provisions of the Annexes, the Client assumes the same credit and debit contractual position (including in relation to the Margins) vis-à-vis the said General Clearing Member that was assumed by the Client on the Market vis-à-vis its own counterparty, and the 2012 September Edition 4

5 General Clearing member assumes the same contractual position (including the obligation relating to the Margins) vis-à-vis the Client as the Market Counterparty of the Client itself, the Market Counterparty and the Client being understood as released from the Clients reciprocal obligations arising from the contract concluded on the Market. 4.7 The Contractual Positions registered with CC&G in the name of the General Clearing Member and which relate to the Client shall be understood as exclusively belonging to the legal relationships existing between CC&G and the General Clearing Member. Therefore the Client may not make any claim against CC&G or assert any power over the said Contractual Positions or over the said accounts, as such registrations do not give rise to any relationship between the Client and CC&G. 4.8 The Client remains bound, including vis-à-vis CC&G as administrator of the System, by all the provisions of the agreements that it has concluded with the General Clearing Member and communicated to CC&G. CC&G, by virtue of its receipt of such agreements, is entitled to perform credit or debit operations arising therefrom in accordance with the provisions of the Annexes. 4.9 With respect to the Bond Section, the Transfer Orders indicated at paragraph 2 are executed for the contracts provided for therein only, concluded in exchange with an operator that, with respect to that Section, is a Member of the Central counterparty guarantee System managed by CC&G, or member of a guarantee system managed by a Special Clearing Member By appropriate Agreement between CC&G and the relevant Management Company, the clauses of the General Conditions and the Annexes can be extended, without prejudice to the right of withdrawal pursuant to Article 11 of the General Conditions Part I, to new markets (or segments), or new financial instruments traded on the markets and included in the section of which the Client is a member. CC&G will inform Members of the signing of such agreements by the methods of communication indicated at paragraph 6.2 of the General Conditions Part I Obligations of the Client of the Clearing and guarantee service 5.1 In this and in subsequent articles, Client is understood as any Member of the Clearing and guarantee system unless indicated otherwise. 5.2 From the moment that the Contract indicated in the Application for Services becomes fully effective pursuant to paragraph 2.5 of the General Conditions Part I, both the Client and the Clearing Member are obliged to settle with CC&G, either directly or through a Settlement Agent according to the general options duly chosen, the Margins on Contractual Positions registered in the accounts in their name and, where provided, payments to the Default Fund and other amounts due for other reasons, within the deadlines and according to methods established by CC&G and communicated pursuant to Article 6 of the General Conditions Part Both the Client and the Clearing Member are obliged, before the Contract indicated in the Application for Services becomes fully effective, to grant to the Management Company the power to request credit or debit Transfer Orders from CC&G, including in relation to operations already registered in accounts concerning the Client, as part of the error management and correction procedure provided for in the Annexes. Consequently, CC&G shall remain authorised to fulfil such Transfer Orders when so requested by the Management Company. The Client may therefore raise any objections arising from the execution of the mandate exclusively with the said agent company, as CC&G is not obliged in such cases to verify the authority of the agent or their propriety of its mandate. 5.4 Where provision is made for a market give-up regime, Clients that are Clearing Members, for each Trader that has appointed it as its Designated Member and before such a regime becomes fully effective, is obliged to instruct the Trader to grant the Management Company the powers indicated at paragraph 3 with respect to the Contractual Positions arising from contracts entered into by the Trader under the give-up regime September Edition 5

6 5.5 Given that CC&G is authorized to make transfers and/or to liquidate Contractual Positions on the Market in the specific cases provided for in the Annexes, the Client is obliged, acting as guarantor vis-àvis CC&G, to include appropriate clauses in contracts with is clientele that authorise the Client to accept the procedures indicated in the said Annexes in relation to the transfer and settlement on the Market of Contractual Positions registered in third party accounts and, where existing, in subheaded accounts, as CC&G is wholly extraneous to relations between the Client and its respective clientele. 5.6 The Client is required to introduce, both before and after the Contract indicated in the Application for Services becomes fully effective, organisational solutions that guarantee adequate and efficient back office structures and monitoring, both in terms of numbers and professionalism of the personnel assigned and in terms to the technological and information technology systems used, that can guarantee the ordered, continuous and efficient management of the activities and relations provided for in the Regulations and the fulfilment in all cases of all obligations arising therefrom. 5.7 Without prejudice to the provisions of Article 8 of the General Conditions Part I, the Client remains obliged to the Service Providing Company to introduce specific safeguard clauses in contracts with its client which provide that the said clientele are obliged to make any claim directly or indirectly connected with the relationship established with the Client exclusively against the Client itself, without prejudice to the liability of the Service Providing Company to the Client pursuant to Article 8 of the General Conditions Part I. 5.8 With reference to Clearing and guarantee Service in the Agricultural Commodity Derivatives in case of alternative delivery under art.b of the Rules the Client or the different entity, which shall withdraw the underlying, shall store the goods at the silos referred to in the art. B of the Instructions according to their contractual provisions and their fees. In case of contesting the quality of the underlying, the Client or the above mentioned person may use the companies indicated in the Instructions for taking the sample and the analysis of the wheat according to their contractual provisions and their fees Suspension of the effects of the Client s withdrawal from the Clearing and guarantee service 6.1 The Client is obliged to close all the Contractual Positions registered in the accounts corresponding to it by the date of effect of the withdrawal indicated in the relevant notice. 6.2 In the event that the Client does not comply with the provisions of paragraph 1, the withdrawal shall have effect from the expiry of the Contractual Positions still existing on the said date. In the intervening period, only the effects expressly provided for in the Regulations shall be produced Suspension from execution of the Clearing and guarantee service, its cessation and default procedures 7.1 The execution of the Clearing and guarantee service with respect to the Client may be totally or partially suspended by CC&G, as indicated in the Regulations, including with respect to the effects of any such suspension. 7.2 Including during the period of suspension, Clients that are Clearing Members are obliged to fulfill vis-à-vis CC&G, and Clients that are Non-Clearing Members are obliged to fulfil vis-à-vis the General Clearing Member, all obligations that in any manner arise from the use of the Clearing and guarantee service as provided in the Annexes. At the time of issue of the suspension order and/or during the period of suspension, CC&G may establish measures for the containment of the risks as provided in the Regulations. 7.3 CC&G may exclude Clients from the Clearing and guarantee system in application of the provisions of Article 12 of the General Conditions Part I, and, more specifically, of the Regulations, with the effects provided for therein September Edition 6

7 7.4 Including in cases of exclusion, the Client shall remain obliged to fulfil obligations arising from Contractual Positions existing in its name at the time of exclusion and to pay fees due to CC&G. 7.5 If the Client is excluded for reasons other than default, the Contractual Positions registered in its name and, in the case of a Non-Clearing Member, those registered in the accounts of the corresponding General Clearing Member may, according to the provisions of the Regulations, be transferred to another Member of the System, if the appropriate conditions exist, or subjected to the regime governing suspension or that pertaining to default procedures Purpose of the New MIC Guarantee Service 8.1 In this Article, the Client is understood as a Member of the New MIC Guarantee Service. 8.2 From the moment that the Contract indicated in the Application for Services becomes fully effective pursuant to paragraph 2.5 of the General Conditions Part I, the Client avails itself of the services of the New MIC Guarantee System as provided in the Annexes. Consequently, from the moment indicated in the Annexes, CC&G succeeds to the Contractual Positions assumed by the Client, in relation to the types of contracts tradeable on the New MIC and for which the New MIC Guarantee Service operates, under the terms set out in the following paragraphs. 8.3 The commencement of the New MIC Guarantee Service to the Client is conditional on the Client s prior establishment in favour of CC&G of a pledge on financial instruments as provided by Italian Legislative Decree No. 170 of 2004, according to the methods established in the Regulations. 8.4 Starting from the moment indicated in the Annexes in consideration to the Contractual Scheme, CC&G, in replacement of the Client, assumes the same credit and debit contractual position as assumed by the Client in the New MIC vis-à-vis the Client s own Market counterparty, within the limits of the Guarantees in financial instruments and in accordance with the Operating Limits established in the Regulations. 8.5 Concomitantly with the provisions of paragraph 4, CC&G also assumes vis-à-vis the Client the same credit or debit contractual position assumed on the New MIC by its Market counterparty. 8.6 Accordingly, the Client and its market counterparty, following this double replacement by CC&G, shall be obliged to fulfil vis-à-vis CC&G the obligations originally assumed towards the market counterparty, the latter and the Client being released from the fulfilment of their reciprocal obligations arising from the contract concluded on the New MIC, except in the cases that what has been foreseen in the Annexes regarding the causes of invalidity of ineffectiveness of the contracts executed in the New MIC Obligations of the Client of the New MIC Guarantee Service 9.1 From the moment that the Contract indicated in the Application for Services becomes fully effective pursuant to paragraph 2.5 of the General Conditions Part I, the Client is obliged to establish a pledge on financial instruments and asset in favour of CC&G, as provided by Italian Legislative Decree No. 170/2004, and to supplement and replace the Guarantees to the extent established by CC&G and notified pursuant to Article 6 of the General Conditions Part I, in accordance with the replacement and supplement clauses established by the said Regulations of the New MIC Guarantee System. 9.2 The Client is required to introduce, both before and after the Contract indicated in the Application for Services becomes fully effective, organisational solutions that guarantee adequate and efficient back office structures and monitoring, both in terms of numbers and professionalism of the personnel assigned and in terms to the technological and information technology systems used, that can guarantee the ordered, continuous and efficient management of the activities and relations provided for in the Regulations and the fulfilment in all cases of all obligations arising therefrom September Edition 7

8 10. - Suspension from execution and termination of the New MIC Guarantee Service 10.1 The execution of the New MIC Guarantee Service with respect to the Client may be totally or partially suspended by CC&G, as indicated in the Regulations, including with respect to the effects of any such suspension CC&G may exclude Clients from the New MIC Guarantee Service in application of the provisions of Article 12 of the General Conditions Part I, and, more specifically, of the Regulations, with the effects provided for therein The Technological Infrastructure 11.1 The clearing and guarantee service and the New MIC Guarantee Service include, inter alia, the provision of the Technological Infrastructure, according to the provisions of the Annexes. From the moment that the Contract indicated in the Application for Services becomes fully effective pursuant to paragraph 2.5 of the General Conditions Part I, CC&G proceeds to send the codes, the relevant passwords and, where provided, the electronic files containing the instructions for obtaining the digital certificate by telematic means. CC&G also provides technical-operational assistance to enable the Client to connect its hardware and software equipment to the Technological Infrastructure provided by CC&G in accordance with the provisions of the Annexes The Technological Infrastructure enables the Client to exchange data and information with CC&G and send and receive orders and instructions relating to the Clearing and guarantee system using distance communication means CC&G continuously records contracts using the telematic network connection between CC&G and the Client. Proof of operations carried out by the Clients, and any other communication sent over the Technological Infrastructure, is validly provided by the recordings of telematic connections made by CC&G. The Technological Infrastructure enables the Client to acquire durable evidence of all information, requests and instruction exchanged using the Infrastructure The Client is also obliged to take all necessary measures to prevent unauthorised use of the Technological Infrastructure Intellectual and/or industrial property rights 12.1 The trademarks of Cassa di Compensazione e Garanzia, CC&G, BCS and ICWS are the property of the Cassa di Compensazione e Garanzia and the Borsa Italiana trademark and the figurative mark of the Borsa Italiana Group are the property of Borsa Italiana. The said trademarks and any further trademarks belonging to the London Stock Exchange Group may not be used without the prior written consent of the London Stock Exchange Group company that is the owner of the trademark The Services, Technological Infrastructure the layout and content of the websites e and the Services, including, by way of example, all the data, information, communications, editorial content, software, photographs, videos, graphics, music, designs, sounds, procedures for acquisition and management of data and in general any material and service present therein, where not indicated otherwise, are the exclusive property of the company of the London Stock Exchange Group indicated in the sites themselves and are protected by copyright and intellectual property law. * * * * * 2012 September Edition 8