Process optimisation in connection with Book-Entry Registration Agreements (BERAs)
Clearstream Banking AG1 informs the issuing agents about various process optimisations in connection with Book-Entry Registration Agreements (BERAs).
Background
Since the beginning of the year, CBF has noticed an increasing demand for BERAs. This is regularly based on US tax law considerations. Issuers want to use the BERA to ensure that the bonds are held in the form of a global certificate and that any transfer of the global certificate by the depository is generally excluded.
Most recently, different versions of the BERA were filed very shortly before the beginning of the term, usually by the accompanying law firms of the issuer. These documents have to be checked extensively, which generates additional work and may lead to a delay.
In addition, reference has also been made to this BERA concluded between CBF and the issuer on the global certificate and in the terms and conditions of issue by the issuer. Passages from the BERA are also partially quoted in the terms and conditions of the issue.
CBF is interested in continuously optimising its processes in the interest of its customers and in this context would like to outline the future process for the admission of securities with a BERA.
Effective
1 January 2021
The following provisions will come into force.
Standardised BERA of CBF (see attachments)
CBF will in future offer a simplified procedure for the submission of BERAs. Thereby CBF provides customers with two different versions of BERAs (stand alone and program). The use of these two templates is free of charge.
It is still possible to submit own drafts of BERAs. Since these BERAs require additional effort for review, customers will be charged respectively (according to the Clearstream Banking Fee Schedule invoice code CB08015101005).
Reference to BERA in the global certificate or the terms and conditions of the issue
As explained above, the BERA is intended to exclude the transfer of the global certificate by the depository.
In this context, CBF would like to point out that this claim can already be waived under depositary law by making the appropriate statements in the global certificate. The global certificate should state that it is a "Dauer-lnhaber-Globalurkunde, die ausschließlich zur depotmäßigen Verwahrung durch Clearstream Banking AG, Frankfurt bestimmt ist” (Permanent bearer global certificate that shall exclusively be held in custody by Clearstream Banking AG, Frankfurt am Main).
Furthermore, the German Securities Deposit Act (Depotgesetz) states that a global certificate must be kept in safe custody at a central depository for securities unless the depositor (sole investor) requests segregated custody (segregated custody at a depository bank). In both cases, custody at a depositary bank would be ensured. Global certificates under German law are therefore not intended for circulation and must always be kept in safe custody. The meaning and purpose of the provisions of the BERA are thus already fulfilled and a reference in the global certificate or the terms and conditions of issue is generally not necessary.
Since there is no legal claim to the conclusion of a BERA between the issuer and CBF, no such reference should be made in the global certificate nor the terms and conditions of the bonds. If, for reasons of US tax law, a supplementary confirmation is considered necessary, a BERA between CBF and the issuer may be concluded until further notice.
Submission of the BERA exclusively via the issuing agent
In addition, CBF would like to point out to customers that the submission of BERAs will in future only be possible through the issuing agents. Accordingly, CBF will only sign BERAs that are submitted via the issuing agents. By using the standard templates, there is no risk of delay for the issuer.
Exemptions and transition period
The only exceptions with regard to a text in the global certificate/ terms and conditions of the bond that refers to a BERA are the issue of bonds under a program or under the preparation of a prospectus. In this case, there is a transitional period until the next adaptation of the prospectus or the program documentation.
Further information
For questions, please contact Primary Market Services Germany - New Issues Bonds or your known contact persons.
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1. This Announcement is published by Clearstream Banking AG (CBF), registered office at Mergenthalerallee 61, 65760 Eschborn, Germany, registered with the Commercial Register of the District Court in Frankfurt am Main, Germany, under number HRB 7500.