(link to the pdf of the terms and conditions)
These are the terms and conditions which applicants to the label will be required to sign up to.
PCS Terms and Conditions
2012-1
The Applicant acknowledges and agrees to the terms and conditions set out below.
Definitions
"Appeal Procedures" means the procedures set out as an appendix to the Label
Procedures and dealing with any appeal against the refusal by PCS to award a Label.
"Applicant" means the person so named in the relevant Application.
"Application" means an application to PCS for the award of a Label, which seek to
incorporate these terms and conditions.
"Application Documentation" means the Completed Checklist, the Originator
Certificate, the draft Prospectus and any other document provided by or on behalf of
the Applicant for the purposes of demonstrating the adherence by the Securities to any
Eligibility Criteria.
"Checklist" refers to the Eligibility Criteria checklist in force as of the date of the
relevant Application and relevant, in accordance with the Label Procedures, to the
Securities.
"Completed Checklist" means the Checklist as completed by or on behalf of the
Applicant but without any comments from the Screening Partner.
"Confidential Information" means any information provided by or on behalf of the
Applicant to PCS or the Screening Partner during the process to acquire a Label other
than:
(a) Information which was lawfully in the possession of PCS or the Screening
Partner prior to its receipt pursuant to the relevant Application, provided that
the source of such information, insofar as it was known to the recipient, was
not prohibited from disclosing the information to the recipient by a contractual,
legal or fiduciary obligation to the Applicant.
(b) Information which is lawfully obtained by PCS or the Screening Partner from
a source other than the Applicant or any of its representatives, provided that
such source, insofar as it is known to the recipient, is not prohibited from
transmitting the information to the recipient by a contractual, legal or fiduciary
obligation to the Applicant; and
(c) Information which is or becomes generally available to the public other than
as a direct or indirect result of a breach of these terms by PCS or the Screening
Partner.
"Eligibility Criteria" means the criteria set out in the "Eligibility Criteria" section of
PCS Rulebook as of the date of this Application.
"Fees" means the fees payable to PCS following an application for the Label as set
out on the date of the relevant Application to the PCS Procedures Manual.
"Issuer" means the issuer of the Securities.
"Label" means the PCS label awarded by PCS to qualifying asset-backed securities
and the subject of an Application.
"Label Procedures" means the procedures for obtaining a Label as set out in the PCS
Procedures Manual in force as of the date of the relevant Application as they then
appear on the PCS Website.
"Originator Certificate" means a certificate provided by the Applicant setting out
certain facts relating to the Securities to demonstrate that the Securities meet certain
Elibility Criteria, as anticipated by the Label Procedures.
"PCS" means Prime Collateralised Securities (PCS) UK Limited, a private limited
company established in the UK, with registration number 8008729 and registered
office at 40 Gracechurch Street, London, EC3V 0BT.
"PCS Logo" means the stylised PCS lettering used either alone or as part of the
Label", in the same or substantially same form as it is used on the PCS Label.
"PCS Procedures Manual" means the document setting out the procedures for the
award of a Label and associated information and standard forms and so entitled on the
PCS Website.
"PCS Rulebook" means the document setting out, inter alia, the eligibility criteria
required to be met by securities in order to be awarded the Label and so entitled and
appearing on the PCS Website on the date of the relevant Application.
"PCS Website" means pcsmarket.org.
"Prospectus" means the prospectus relating to the Securities.
"Screening Partner" means the third party organisation to be appointed by PCS to
assess the compliance of the Securities with the Eligibility Criteria.
"Securities" means the securities described in the relevant Application for which the
Applicant is seeking the award of the Label.
"Value Added Tax" means (a) any tax imposed in compliance with the Council
Directive 2006/112/EC of 28 November 2006 on the common system of Value Added
Tax; and (b) any other tax of a similar fiscal nature, whether imposed in a Member
State of the European Union in substitution for or in addition to such tax, or imposed
elsewhere;
Application Terms and Conditions
1. The Applicant confirms that, to the best of its knowledge, the information contained
in the Application Documentation, at the time the relevant document was submitted
will be accurate, up to date, not misleading and will not amount to a misrepresentation.
2. The Applicant acknowledges that it has read and agrees fully to comply with the
Label Procedures.
3. The Applicant agrees, for so long as the Securities continue to have the Label, to
notify PCS promptly if it becomes aware that any information provided in the
Application Documentation or any other information provided to PCS or the
Screening Partner for the purposes of obtaining the Label was, when made, false,
inaccurate, incomplete or misleading.
4. The Applicant confirms that all the information contained in the Application
Documents and any other information provided to the PCS or the Screening Partner
by the Applicant can be provided to them without violating any laws or regulations
applicable to the Applicant and that the provision of such information does not breach
any duty of confidentiality binding on the Applicant or the Issuer, whether contractual
or otherwise.
5. PCS undertakes that all Confidential Information will be held and treated by it and the
Screening Partner in strict confidence and will be protected with security measures
and a degree of care that would apply to its own confidential information. PCS further
agree that the Confidential Information will not, except as hereinafter provided,
without the prior written consent of the Applicant, be disclosed by PCS or the
Screening Partner, in any manner whatsoever, in whole or in part, and will not be used
by PCS or the Screening Partner, for any purpose whatsoever other than for the
purpose of evaluating the Securities for the award of the Label (the "Permitted
Purpose"). Moreover, PCS agrees to disclose Confidential Information only to those
persons who are required in the course of their duties to receive and consider the same
for the Permitted Purpose. It is also acknowledged and understood that the Screening
Partner has been informed of the Confidential Information and has agreed to keep
such information confidential.
6. Notwithstanding clause 5, in the event that PCS is requested or required (pursuant to
any law or regulation, or any court of competent jurisdiction, or any competent
judicial, governmental, supervisory or regulatory organisation or body with whose
rules PCS is required to comply) to disclose any Confidential Information, PCS
agrees that it shall (to the extent legally permissible) provide the applicant with
prompt notice in writing of the existence, terms and circumstances of any such request
or requirement so that the Applicant may seek an appropriate protective order or take
other appropriate action and, if possible, before complying with any such requirement,
PCS shall notify the Applicant in writing of the same and of the action which is
proposed to be taken in response thereto. In such event, PCS shall take full account of
any reasonable representations made by the Applicant, whether concerning resistance
to the requirement or the form, manner or extent of disclosure, and if a protective
order has not been obtained, PCS shall only disclose Confidential Information to the
extent that PCS has been advised by written opinion of its legal advisors that PCS is
so legally compelled to disclose, and PCS will exercise its best efforts to obtain an
order or reasonable assurance that confidential treatment will be accorded to the
Confidential Information. PCS further agrees to notify the Applicant immediately, to
the extent legally permissible, upon discovery, of the full circumstances of any
unauthorised use or disclosure of Confidential Information, or any other breach of this
agreement by PCS or the Screening Partner, and to cooperate with the Applicant in
every reasonable way to prevent further unauthorised use.
7. Notwithstanding clause 5, the Applicant agrees that, if the Securities are awarded the
Label, PCS is authorised to publish on its website and in any other lawful manner the
Prospectus, the Originator Certificate and the Completed Checklist (and in the case of
the Prospectus, that it will obtain the consent to such publication from the Issuer).
8. PCS agrees that, if the Label is not awarded to the Securities, it shall not disclose that
fact to any person unless required to do so by law or regulation or at the request of a
regulatory organisation.
9. The Applicant acknowledges that neither PCS, nor the Screening Partners, not any of
their directors or employees shall have any liability for any losses suffered by the
Applicant or any associated body arising from or in relation to the submission of this
Application or from the award or refusal to award the Label or any subsequent
decision to withdraw the Label (other than in respect of death or personal injury). The
Applicant hereby waives any rights it may have against the PCS or the Screening
Partner other than rights in respect of acts of fraud, wilful breach of contract or gross
negligence.
10. The Applicant agrees that it shall not state or imply, nor allow its agents to state or
imply that the Securities were awarded the Label until PCS confirms in writing that
the Label has been awarded to the Securities in accordance with the Label Procedures.
11. Notwithstanding clause 10, the Applicant, its agents and representatives may in
marketing material, roadshows and presentations indicate that it is anticipated that the
Label will be awarded to the Securities for so long as (i) such statements are made in
compliance with all applicable laws and (ii) they have not received written notice
from PCS that they may no longer do so.
12. The Applicant, its agents and representatives may not make any statements that
results in PCS or the Screening Partner or any of their directors or employees being
considered to be an "expert" for the purposes of the United States Securities Act of
1933 (as amended) and PCS will not accept "expert" liability under this or any other
law or regulation.
13. Subject to the Applicant having made an Application and having received written
confirmation from PCS that PCS is reviewing such Application (and subject to not
having received written notification that PCS had declined to award the Label sought
in that Application) , PCS permits the Applicant to use the PCS Logo and Label solely
for the purposes of promoting the Securities, including but not limited to promotions
at any investor roadshow and in the Prospectus. The Applicant acknowledges and
agrees that it has no permission to use the PCS Logo and Label in any other manner
and that it shall use the PCS Logo and Label in accordance with these terms and
conditions. The Applicant acknowledges that PCS grants the rights detailed in this
paragraph 13 subject to the terms of a licence agreement with a Belgian association
and that as such, these rights may not be sub-licensed by the Applicant to a third party
and shall expire upon the expiry or termination of PCS's licence agreement.
14. The Applicant acknowledges that PCS and the Screening Partner have received and
will receive any information from the Applicant and any of its agents or
representatives in good faith and in the belief that the information received is accurate,
complete and up to date. The Applicant acknowledges that neither PCS nor the
Screening Partner have verified or will verify the information and have no duty
whatsoever to take any steps to ascertain the veracity, accuracy or completeness of
any information provided or on behalf of the Applicant.
15. The Applicant acknowledges that PCS shall rely on the veracity, accuracy and
completeness of the information provided in the Application Documentation for the
purposes of awarding the Label.
16. The Applicant acknowledges that the Label is not a recommendation to buy, sell or
hold the securities; that it is not "investment advice" whether generally or as defined
under Markets in Financial Instruments Directive (2004/39/EC); that it is not a "credit
rating" whether generally or as defined under the Credit Rating Agency Regulation
(1060/2009/EC) or Section 3(a) of the United States Securities Exchange Act of 1934
(as amended by the Credit Agency Reform Act of 2006); that by awarding the Label,
PCS expresses no views about the creditworthiness of the Securities or their
suitability for any existing or potential investor or as to whether there will be a ready,
liquid market for the Securities. The Applicant agrees that it shall not make any
statement, orally or in writing, that indicates or implies otherwise.
17. The Applicant acknowledges and accepts that the award of the Label is dependent on
the PCS determining in accordance with the Application Procedures that the
Securities meet all the Eligibility Criteria.
18. If there is a disagreement about any refusal to award the Label to the Securities or
about any aspect of the procedure in the award of the Label, the Applicant
acknowledges that it has read the Appeal Procedures and agrees to be bound by such
procedures. To the fullest extent applicable by law, the Applicant renounces any other
recourse it may have against the refusal by PCS to award the Label to the Securities
and acknowledges and accepts that it shall have no other form of redress against such
refusal.
19. Nothing in these terms and conditions, or in any dealings between PCS and any other
person shall prevent PCS from refusing, at any stage, to award the Label, or shall
prevent PCS at any time after the award of the Label from withdrawing the Label if,
in PCS's sole discretion: (i) the award of the Label was in error or (ii) the Issuer of the
Securities is not complying with its ongoing obligations as per the Eligibility Criteria
and Application Procedure or (iii) award or maintenance of the Label would, for any
reason, substantially endanger the reputation, standing or credibility of the PCS or the
Label.
20. The Applicant agrees that its obligations to pay the Fees shall arise from the moment
a Completed Checklist is sent to the Screening Partner.
21. The Fees payable shall be increased by the Value Added Tax payable.
22. The Fees shall be paid within 30 days of the receipt of the relevant invoice from PCS
in free and cleared funds in Euro or Sterling Account (as required) without set-off or
counterclaim, to the UK accounts set out in the invoice.
23. These terms and conditions are governed by the laws of England and Wales and the
Applicant submits to the exclusive jurisdiction of the English Courts.
24. The Applicant shall not have any recourse against, nor shall any personal liability
attach, to any shareholder, officer, agent, employee or director of PCS in his capacity
as such, by any proceedings or otherwise, in respect of any obligation, covenant, or
agreement of the PCS contained in these terms and conditions.
25. Other than the PCS Employees and the Screening Partners, no other party shall have
any right to enforce these terms and conditions under the Contracts (Rights of Third
Parties) Act 1999. Notwithstanding anything in these terms and conditions, the
consent of any person who is not a party is not required to rescind or vary this
agreement at any time.
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