EXHIBIT A
Master Agreement dated
HSBC TRINKAUS & ▇▇▇▇▇▇▇▇▇ December 16, 2002
BANK SINCE 1785
MASTER AGREEMENT FOR SECURITIES LOAN TRANSACTIONS
Between
NAME AND ADDRESS OF THE COUNTERPARTY
SAP AG
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(hereinafter called "the Counterparty")
and
NAME AND ADDRESS OF THE BANK
HSBC Trinkaus & ▇▇▇▇▇▇▇▇▇
Kommanditgesellschaft auf Aktien
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(hereinafter called "the Bank")
1. OBJECT OF THE AGREEMENT
(1) The parties intend to conclude securities loan transactions on the
basis of the Master Agreement. Each of the parties can be both
lender and borrower. The lender shall lend securities to be
borrower. The borrower shall be obliged to redeliver the same
amount, type and quality of securities.
(2) The following provisions shall apply to each transaction concluded
on the basis of this Agreement ("Transaction"). All Transactions
shall among themselves an together with this Master Agreement
constitute a single agreement ("Agreement"); they shall be entered
into with a view to an aggregated risk assessment and in reliance
thereon.
2. TRANSACTIONS
(1) Upon the parties having agreed on a Transaction, the Bank shall
confirm the terms thereof to the Counterparty in writing, by telex,
telegraphic transmission, facsimile or in similar form.
(2) Each party shall be entitled to require a signed confirmation of the
Transaction, which is not, however, a precondition for its legal
validity.
(3) The provisions of a Transaction shall prevail over the provisions of
this Master Agreement.
3. DELIVERY OF THE LOANED SECURITIES, TRANSFER OF TITLE
(1) The lender shall deliver the agreed securities ("Loan Securities")
to the borrower on the date agreed for delivery ("Value Date") in
accordance with the terms of the Transaction ("Delivery").
(2) The parties are in agreement that unrestricted title to the
securities or another equivalent legal position customary at the
place of custody shall pass to the borrower upon Delivery. As far as
necessary the lender will provide all further necessary declarations
required for this. In the case of registered shares which are
transferable only with the issuing company's consent (vinkulierte
Namensaktien), the borrower shall have the right to dispose of such
shares even before the transfer notation is entered in the stock
register of the issuing company.
(3) If the lender does not deliver the Loan Securities on the Value
Date, the borrower shall have the right to demand compensation for
nonperformance of the Transaction or to withdraw from the
Transaction after he has informed the lender of the failure to
deliver, and a subsequent grace period of the Banking Day has
expired.
4. VALUE ADJUSTMENT
(1) If, on one Banking Day, the aggregate loan amount of one of the
parties falls short of the aggregate loan amount of the other party,
then the former party shall at any time be entitled to require a
value adjustment. The value adjustment shall be calculated as the
difference between the aggregate loan amounts, and shall be paid if
the minimum amount specified in no. 11 para. 7 has been reached.
(2) The aggregate loan amount of a party shall be calculated as:
(a) the aggregate of the Market Values calculated I accordance
with no. 11 para. 2 of all Loaned Securities delivered to it
by the other party under Transactions which have not yet been
completed, taking into consideration any premiums which may
have been agreed for the relevant Transaction to compensate
for any price increases of the Loaned Securities, and
(b) the value of any assets received under a previous value
adjustment which the party has not yet restored; in case of
payments, the value shall be calculated as the nominal amount
plus accrued interest.
(3) Value adjustment must be made before the end of the first Banking
Day following receipt of the notification. The value adjustment
shall be done by delivery of assets on which the parties shall
agree. The party under an obligation to deliver the value adjustment
shall first use any assets received under previous value adjustment
which it has not yet restored. If there is no explicit agreement on
the type of assets to be delivered, the delivery of bonds of the
Federal Republic of Germany denominated in Euro is deemed to have
been agreed.
(4) The assets paid or delivered in the framework of value adjustments
can be substituted, either as a whole or in part, without the
consent of the other party by money in Euro or bonds of the Federal
Republic of Germany denominated in Euro. The substitution shall be
made one Banking Day after receipt of a respective notification in
return for the retransfer of the assets to be substituted. Taxes,
fees or costs which arise in connection with the substitution shall
be borne by the substituting party.
(5) The provision of this Master Agreement concerning the Loaned
Securities shall apply accordingly to securities which are delivered
for the purpose of value adjustment, with the exception of no. 5,
no. 7 paras. 1-3 and no. 8.
5. LOAN FEES
(1) The borrower shall pay to the lender a fee for each securities loan
("Loan Fee").
(2) The Loan Fee shall be calculated based on the annual percentage
specified in the relevant Transaction of the Market Value of the
Loaned Securities on the date specified in the relevant Transaction.
The Loan Fee shall be calculated for the period from and including
the Value Date until but excluding the Banking Day on which the
Loaned Securities are redelivered to the lender ("Redelivery Date").
The number of actual days expired shall be divided by 360.
(3) The Bank shall calculate the Loan Fees at the beginning of each
month for the preceding month. The Loan Fees shall be due on the
second Banking Day following receipt of the fee statement.
6. INTEREST, DIVIDENDS, OTHER DISTRIBUTIONS, BONUS SHARES AND SUBSCRIPTION
RIGHTS
(1) The lender shall be entitled to the interest earnings, profit shares
and other distributions paid on the Loaned Securities during the
term of a loan. The borrower shall pay the equivalent with value
date the day of the actual payment by the issuer, plus the amount of
any taxes and duties retained, as well as any tax credits
("Compensation Payment") to the lender.
(2) In case of bonds, the Compensation Payment shall encompass all
interest paid on them; in case of shares, it shall encompass all
distribution such as dividends or payments in case of reductions of
share capital. The amount of the Compensation Payment covering taxes
and duties shall only be paid to the extent of the tax reimbursement
or set-off claims of the lender which have been notified to the
borrower.
(3) Bonus shares, and any fractional rights, which have been issued with
regard to Loaned Securities during the terms of a securities loan,
shall form part of the respective Transaction and shall be delivered
by the borrower to the lender on the Redelivery Date.
(4) In the event that subscription rights attach to the Loaned
Securities, the borrower shall deliver such subscription rights to
the lender at the latest on the third day on which such subscription
rights are traded. If the subscription rights are not delivered by
this date, the lender shall be entitled to purchase the subscription
rights for the borrower's account on the following Banking Day or to
demand the payment of damages for non-performance. The assertion of
further loss is not excluded.
7. TERMINATION, REDELIVERY OF LOANED SECURITIES
(1) If a securities loan transaction has been concluded for an
indefinite term, it can be terminated in whole or in part
(a) by the lender at any time with a period of notice of at least
three Banking Days;
(b) by the borrower at any time a period of notice of at least one
Banking Day.
(2) The declaration of termination must be received by the recipient at
the latest by 3.00 p.m. (local time at the recipient's location).
Declarations of termination which are received later shall only
become valid on the following Banking Day.
(3) A loan concluded for an indefinite term ends at the latest one year
after the Value Date.
(4) The borrower shall redeliver the Loaned Securities to the lender on
the Redelivery Date to the designated securities account. No. 3
para. 2 shall apply accordingly. In case of redelivery of registered
shares which are transferable only with the issuing company's
consent (vinkulierte Namensaktien), the lender shall bear the risk
that issuer does not enter it in the issuer's stock register.
(5) In the event of exchange offers, settlement offers or other
published purchase offers, the Loaned Securities shall be
redelivered on the second Banking Day before the beginning of the
period for the acceptance or for the submission of such offers,
provided that the party under the duly to redeliver has obtained
knowledge of the publication of the offer at least five Banking Days
before the beginning of the period. The same shall apply to
interest-bearing securities which are divided into series or groups
for the purpose of drawings or which are terminated early for
redemption.
8. FAILURE TO REDELIVER SECURITIES ON TIME
(1) In the event that one party ("Defaulting Party") fails to redeliver
the Loaned Securities in whole or in part to the other party on the
due date, then the other party shall have a claim against the
Defaulting Party on default interest for each day of default, in
accordance with the terms of para. 2. In addition, after giving
prior notice and setting a time-limit of at least one Banking Day,
the relevant party shall be entitled to purchase securities of the
same type, quality and amount for the account of the Defaulting
Party ("Replacement"). A statement of account shall be sent to the
Defaulting Party without undue delay. The claim to reimbursement of
expenditure against the Default Party shall become due upon receipt
of such statement of account. The case of failure to redeliver o
time will only be considered as giving rise to serious cause for
termination as defined in no. 9 para. 1 if the party under a duty to
redeliver fails to fulfil the claim to reimbursement of expenditure
after the expiry of the time-limit as set forth in no. 9 para. 1
sentence 2, unless there is another serious cause for termination.
(2) Default interest shall be the Euro overnight money indexed reference
interest rate EONIA as fixed by the European Central Bank for each
day for which default interest shall be calculated and as published
on Telerate page 247. It shall be calculated from and including the
due date until but excluding the day of actual redelivery or the
fulfilment of the claim to reimbursement of expenditure. The number
of actual days expired shall be divided by 360.
(3) The assertion of additional or the proof of lower loss is not
excluded.
9. TERMINATION, DAMAGES
(1) If Transactions have been entered into and not yet fully settled,
the Agreement can only be terminated for serious cause. Serious
cause shall, in particular, be given if the claim to reimbursement
of expenditure specified in no. 8 para. 1 or the claim to value
adjustment specified in no. 4 has not been fulfiled within one
Banking Day after the party obliged to pay or to perform has been
notified of the non-receipt of the payment or other non-performance.
The notice of termination must be given in writing, by telex, by
telegraphic transmission or by facsimile. Partial termination, in
particular the termination of some, but not all Transactions, is
excluded.
(2) In case of insolvency, the Agreement shall end without termination.
Insolvency occurs if a petition for the institution of bankruptcy or
other insolvency proceedings in relation to the assets of one party
is filed and such party either has field such petition itself, or is
insolvent, or is otherwise in a position which justifies the
institution of such proceedings.
(3) In case the Agreement is being ended by notice of termination or
insolvency, there shall no longer be any claims to the Delivery or
redelivery of securities or performance of other obligations under
the Agreement. Such claims shall be replaced by one single claim
("Damage Claim"). In order to calculate such claim, all claims of
the parties under the Agreement, including the assets received under
the terms of no. 4 which have not yet been redelivered, shall be set
off against each other. The latter shall be considered to be claims
of the party which has supplied them. The Party Entitled to Damages
is not precluded from asserting additional loss.
(4) The party terminating the Agreement or the solvent party ("Party
Entitled to Damages") shall calculate the Damage Claim. Such claim
shall be determined on the basis of replacement transactions to be
entered into without delay, lead to the Party Entitled to Damages
receiving all payments and other performance to which it would have
been entitled if the Agreement had been properly performed. Such
party will be entitled to conclude contracts which, in its view,
will be suitable for this purpose. If it chooses not to conclude
such replacement transactions, it can take as the basis for its
calculation the amount which it would have needed to pay for such
replacement transactions, based on interest rates, futures rates,
prices, market prices, indices and other standards of value, as well
as costs and expenses, at the time of the termination or at the time
case of insolvency became known. The foregoing shall apply
accordingly to performance rendered under no. 4.
(5) A Damage Claim against the Party Entitled to Damages shall only
become due to the extent that such party has no claims on any legal
grounds against the other party ("Counterclaims"). If there exist
any Counterclaims, their value shall be deducted from the aggregate
amount in order to calculate the part of the Damage Claim which is
due. In order to calculate the value of the Counterclaims, the Party
Entitled to Damages shall:
(a) convert such claims into Euro on the computation date, if they
are not already denominated in Euro;
(b) transform them into a claim to damages expressed in Euro, if
they are not directed at payments of money;
(c) take them into consideration at their cash value if they are
not yet due (also taking into consideration interest claims).
The Party Entitled to Damages may set off the Counterclaims calculated in
accordance with sentence 3 against a Damage Claim of the other party. To
the extent that it fails to do, such Damage Claim shall become due as soon
as and to the extent to which it exceeds the aggregate amount of the
Counterclaims.
10. TAXES AND DUTIES
The borrower, or in case of deliveries under no. 4 the party obliged to
deliver, shall bear any taxes, costs, fees or duties which arise in
connection with the delivery or redelivery of Loaned Securities.
11. MISCELLANEOUS
(1) "Banking Day" as defined in this Agreement shall mean each day on
which the banks at the financial centre(s) specified in a
Transaction as locations of the branches acting for the parties are
open for business, and the respective clearing systems used are
completing transactions. If a date on which performance is due is
not a Banking Day, then the next Banking Day shall be decisive.
(2) In case of securities which are traded on a securities exchange, the
"Market Value" of Loaned Securities shall be determined in
accordance with the spot price fixed on the Frankfurt Stock
Exchange, or - if there is no such quotation - in accordance with
the spot price of the relevant securities' local stock exchange; in
case of interest-bearing securities the interest accrued shall be
added. If the relevant securities are not traded on a securities
exchange, if is no trading in the relevant securities on a Banking
Day or if no spot price is fixed on a day, the Market Value shall be
the arithmetic mean of two buying prices quoted by two market
participants, one named by each of the parties; in case of
interest-bearing securities the interest accrued shall be added. The
foregoing provisions shall apply accordingly to the fixing of the
Market Value of subscription rights.
(3) The assignment of rights and duties out of this Agreement is subject
to the prior consent of the other party in writing, by telex,
telegraphic transmission or notification thereof in another way.
(4) In case facsimiles are sent, the sender shall be liable for any loss
which arises by reason of falsified or illegible notifications or
announcements, unless the recipient failed to check them with the
requisite care.
(5) This Agreement is governed by the laws of the Federal Republic of
Germany. The non-exclusive place of jurisdiction is the place where
the bank branch is located through which the Agreement is concluded.
(6) If provisions of the Agreement are invalid or impracticable, the
remaining provisions shall remain unaffected by this. Any gaps in
the Agreement which may arise as a result of this shall be closed by
supplementary interpretation of the Agreement, taking into
consideration the interest of the parties to a reasonable extent.
(7) The minimum amount to be agreed under the terms of no. 4 para. 1
shall be:
Euro -0-
(8) This paragraph shall only apply if ticked below:
[ ]
The Agreement in the version agreed herein shall also apply to any
transactions of the parties under the Master Agreement for
Securities Lending Transactions (Rahmenvertrag fur
Wertpapierdarlehensgeschafte). They shall be considered as
Transactions within the framework of this Agreement. The Master
Agreement for Securities Lending Transactions shall remain decisive
for the interpretation of the transactions concluded under it to the
extent to which this is necessary to understand the regulations
agreed in such transactions.
12. OTHER AGREEMENTS
Signature(s) on behalf of the Bank
HSBC Trinkaus & ▇▇▇▇▇▇▇▇▇
Kommanditgesellschaft auf Aktien
/s/ ▇▇. ▇. ▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. ▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Signature(s) on behalf of the Counterparty
SAP Aktiengesellschaft
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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