Banco Santander, S.A. (“Santander”) is provisionally registered with the U.S. Commodity Futures Trading Commission (“CFTC”) as a non-U.S. swap dealer (LEI number: 5493006QMFDDMYWIAM13) pursuant to the Commodity Exchange Act (“CEA”), as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”). The CEA and the CFTC rules promulgated thereunder impose regulatory requirements on swap dealers, including business conduct standards with respect to the execution of swaps with certain counterparties.
These business conduct standards mandate that Santander provide certain disclosures of material information at a reasonably sufficient time prior to entering into a swap transaction with its swap counterparties (other than counterparties that are swap dealers, major swap participants, security-based swap dealers or major security-based swap participants) to allow the counterparty to assess the material risks and material characteristics of the swap and the material incentives and conflicts of interest that Santander may have in connection with the swap.
If you are a swap dealer, major swap participant, security-based swap dealer or major security-based swap participant or if you are a non-U.S. person to which Santander is not required by the CFTC to provide these disclosures, the disclosures outlined below are not intended nor provided for your use.
DISCLOSURE OF MATERIAL INFORMATION
Pursuant to CFTC Rule 23.431(a), Santander is hereby providing you with the ISDA General Disclosure Statement and Disclosure Annex relating to particular swap transaction types, which describe the following:
These disclosures documents, including certain asset-class-specific disclosures relating to interest rate, credit, equity, asset-backed security, commodity, and foreign exchange swaps, may be found here. If you have any difficulties linking to this URL or otherwise accessing these documents, please contact firstname.lastname@example.org immediately so that we may assist you.
These disclosures shall be deemed to be supplemented by any such additional information and disclosures included in any transaction-specific documentation exchanged between us, including any derivatives master agreement or amendment thereto, swap transaction term sheet, pre-trade confirmation or master confirmation agreement, or such other communications exchanged between us incorporating such additional information with respect to a swap or proposed swap (“Transaction Disclosures”). In the event of any conflict between such Transaction Disclosures and other (more generic) disclosures, the Transaction Disclosures shall prevail.
You should not construe the content of any of the materials herein or disclosures provided as legal, financial, tax, accounting or other advice, and you should consult your own attorney, financial advisor, tax advisor or accountant as to legal, financial, tax, accounting and related matters concerning the materials and disclosures provided.
NOTHING IN THE MATERIALS OR DISCLOSURES PROVIDED AMENDS OR SUPERSEDES THE EXPRESS TERMS OF ANY TRANSACTION BETWEEN YOU AND US OR ANY RELATED GOVERNING DOCUMENTATION.
In the context of discussing, proposing or entering into a swap with Santander, you should refer to any transaction-specific disclosures, material economic terms and any other documentation provided to you by Santander, as well as to the disclosures provided in this communication. Any reference in the materials and disclosures provided herein to any websites should be considered to mean any successor website, as applicable.
Copyright for ISDA disclosures
ISDA (or its affiliates) holds copyrights to certain of the documents to which hyperlinks are provided herein. Those documents may not be reproduced or distributed without ISDA’s written permission, as applicable; provided, however, that the ISDA Master Agreements, ISDA Credit Support Documents and standardized general and product-specific risk disclosures published by ISDA and other documents expressly excepted on ISDA’s website, as applicable, may be reproduced and distributed solely for use in documenting specific commercial transactions. ISDA provides certain disclaimers to the documents to which hyperlinks are provided herein that you are hereby deemed to have read and are incorporated into this website, as applicable. Additionally, the transaction documentation may contain disclaimers of liabilities that you should review and alert your contact at Santander in the event of any questions or concerns.
For any complaint, please call the Swap Dealer Complaint Hotline at (+1) 212-350-3654
Or by email at: email@example.com and firstname.lastname@example.org
Or at the address below:
Banco Santander, S.A.
Ciudad Grupo Santander
Edificio Dehesa P2
Avda. De Cantabria. s/n
28660 Boadilla del Monte
MATERIAL ECONOMIC TERMS (METs) DISCLOSURES
Disclosure statement regarding transaction terms
This Disclosure Statement describes the manner in which the terms of any Transaction that Banco Santander, S.A. (“Santander” or “we”) may enter into with you will be determined. The term “Transaction” has the meaning set forth in the ISDA General Disclosure Statement for Transactions that we have provided to you.
Before entering into any Transaction, you should conduct a thorough and independent evaluation of the terms of the Transaction in light of your particular circumstances and the nature and extent of your exposure to, and willingness to incur, risk. You should also consider whether the Transaction is appropriate for you in light of your experience, objectives, financial and operational resources and other relevant circumstances. Unless expressly agreed in writing, we are not providing you with legal, financial, tax, accounting or other advice in connection with any Transaction.
The terms of any Transaction that you and we enter into will be set forth in the confirmation or other agreement evidencing the Transaction, including any terms incorporated by reference therein. Subject to the exceptions described below, any Transaction that you and we enter into will have the terms that you and we expressly agree upon (orally, via email or in any other manner) in connection with the Transaction and other terms determined as follows:
(1) Specified prior transaction, form confirmation or term sheet. If we notify you that the Transaction will have the terms set forth in a specified term sheet prior transaction, form confirmation or terms spreadsheet, the Transaction will have such terms, subject to any express agreement between you and us in connection with the Transaction.
(2) Master confirmation agreement. If (1) does not apply and you and we are party to a master confirmation agreement that governs the Transaction, the Transaction will have the terms set forth in the master confirmation agreement, subject to any express agreement between you and us in connection with the Transaction.
(3) Unspecified prior transaction. If neither (1) nor (2) applies and you and we have previously entered into a transaction of the same type, the Transaction will have the terms set forth in the most recent transaction of the same type that you and we entered into, subject to any express agreement between you and us in connection with the Transaction.
(4) Unspecified form confirmation or terms spreadsheet. If none of (1), (2) or (3) applies and the Transaction is of a type that is covered by a form confirmation and/or a terms spreadsheet that is available on this site, then the Transaction will have the terms set forth in the form confirmation and/or terms spreadsheet, as applicable, subject to any express agreement between you and us in connection with the Transaction. In the event of any inconsistency between a form confirmation and a terms spreadsheet that relate to the same type of transaction, the terms set forth in the terms spreadsheet will prevail.
The description above of the manner in which the terms of any Transaction that you and we enter into will be determined is subject to the following important exceptions.
(A) If you and we enter into a Transaction that is cleared through a clearinghouse or executed through a trading platform that prescribes the terms of the Transaction, the Transaction will have the terms specified by the applicable clearinghouse or trading platform and, subject to the rules of the clearinghouse or trading platform, any additional terms that you and we expressly agree upon in connection with the Transaction.
(B) If you and we enter into a Transaction for “give-up” to a third party, the terms of the Transaction will be subject to the terms of any agreement with that third party.
Underlying specific terms:
These documents, their contents and any related communication are issued by Santander, exclusively for its trading counterparties falling within the classification of being US Persons under the Dodd–Frank Act. It is not being distributed to, and must not be passed on to, any other entity or to the general public.
This communication does not constitute or imply any commitment whatsoever on the part of Santander. Any such offer may only be made once appropriate documentation has been negotiated and agreed.
This communication does not constitute a financial promotion or form part of any invitation, offer, or solicitation to buy, sell, subscribe for, hold or purchase any securities or any other investment or to enter into any transaction and under no circumstances is it to be construed as a binding offer to buy/sell any financial instrument. Santander is not acting in the capacity of a financial advisor.
DISCLOSURE OF PRE-TRADE MID-MARKET MARK
Pursuant to the CFTC’s rules, as provisionally registered swap dealer, Santander is required to disclose at a reasonable time prior to trade, along with the price of the swap, the mid-market mark of such swap (Pre-Trade Mid-Market Mark) to any counterparty who is not a Swap Dealer, Major Swap Participant, Security Based Swap Dealer or Major Security Based Swap Participant.
Pre-Trade Mid-Market Mark Disclosure
To satisfy this requirement, Santander will provide the Pre-Trade Mid-Market Mark to you either:
Election to opt-out from this disclosure
Santander will not be required to provide a Pre-trade Mid-Market Mark for certain transactions covered by CFTC no-action letters 12-42; 13-12; 12-58 if a counterparty has agreed in advance, in writing, that Santander need not disclose such Pre-trade Mid-Market Mark. Participants in the ISDA August 2012 DF Protocol may provide notice of such consent through ISDA Amend by completing Addendum II to the ISDA August 2012 DF Protocol Questionnaire which is available here.
Alternatively, you may send Santander a direct communication of your consent to [SBGM_DQ_Entidades@gruposantander.com] substantially in the following form:
[INSERT FULL LEGAL NAME AND CICI/LEI IDENTIFIER] hereby consents to the non-disclosure by Banco Santander, S.A. of pre-trade mid-market marks in respect of those transactions described in and subject to the conditions of (1) CFTC No-Action letter 12-42 (with respect to certain foreign exchange transactions); (2) CFTC No-Action Letter 13-12 (with respect to certain foreign exchange transactions); and (3) CFTC No-Action Letter 12-58 (with respect to certain interest rate and credit derivative transactions).]
If you have any questions regarding these materials, please contact your usual Santander representative.
General Information On The Pre-Trade Mid-Market Mark
The Pre-Trade Mid-Market Mark does not include amounts for profit, credit reserve, hedging, funding, liquidity, or any other costs or adjustments. Please note that any Pre-Trade Mid-Market Mark Santander provides to you may not necessarily, and would often be expected not to: be a price at which either we or you would agree to enter into or terminate a swap. You should not regard any Pre-Trade Mid-Market Mark that we provide to be an offer to enter into or terminate the relevant swap at that value or price. Furthermore, any margin calls related to swaps may be based on considerations other than the Pre-Trade Mid-Market Mark and the Pre-Trade Mid-Market Mark may not be the value of the swap that is marked on Santander's books. For liquid products, you should regard the mid of bid and offer as our Pre-Trade Mid-Market Mark.
Because a Pre-trade Mid-Market Mark does not include amounts for profit, credit reserves, hedging, funding, liquidity and other relevant costs, reserves and adjustments, it is highly likely to differ from the price at which Santander is willing to enter into the relevant proposed swap. That difference is not indicative of the profit, if any, that Santander will realize from the relevant proposed swap, which will be dependent on a number of variables including, without limitation, price volatility, market liquidity and relevant hedging activity, if any, by Santander.
Each Pre-Trade Mid-Market Mark is provided solely for the information of the counterparty to the swap and is not intended for the benefit of any other party.
Unless otherwise indicated, all Pre-Trade Mid-Market Marks are provided in the same currency as the live trading price quoted to you by Santander.
The Pre-Trade Mid-Market Mark for a swap can change from day to day as a result of changes in the relevant economic markets.
A swap’s value may not be readily observable in the market and is therefore subjective. Accordingly, Santander's Pre-Trade Mid-Market Mark may vary significantly from the pre-trade mid-market mark provided by other market participants for a swap.
To the extent that the Pre-Trade Mid-Market Mark may be based on inputs or information obtained from external sources, Santander believes any such sources to be reliable but makes no representations or warranties with respect to the accuracy, reliability or completeness of such data or information, or the resulting Pre-Trade Mid-Market Mark. Swap prices will also vary among swap participants based on the various inputs used by market participants in quoting and executing swaps, such as costs to cover the transaction risk, profits, credit spreads, underlying volatility and credit support terms.
In certain cases, the Pre-Trade Mid-Market Mark will be provided to you by the electronic platform on which you may execute your swap transactions (such as in the case of certain FX execution platforms).
Santander makes no representations or warranties that any Pre-Trade Mid-Market Marks are suitable for complying with any financial or tax reporting obligation, determining net asset value, computing any tax liability or any other purpose and, except as otherwise agreed, Santander disclaims any liability for all loss or damage (whether direct or indirect, incidental or consequential) for any such use or reliance by you.
Santander is required to provide daily marks to you in accordance with CFTC Regulation 23.431(d)(2) only in respect of uncleared swaps. For cleared swaps originally executed between you and Santander, you have the right, upon request, to receive a daily mark from the futures commission merchant through which you clear such cleared Swap or the relevant derivatives clearing organization or another third party in accordance with CFTC Regulation 23.431(d)(1).
Santander (in its sole discretion) determines the mid-market mark of the swap based on market-standard discounted cash flow methodologies combined with market-standard net-present-value derivative valuation models. A swap’s value may not be readily observable in the market and is therefore often subjective. Accordingly, Santander’s daily mark may vary significantly from the daily mark provided by other market participants for a swap. To the extent that such marks may be based on inputs or information obtained from external sources, Santander believes any such sources to be reliable but makes no representations or warranties with respect to the accuracy, reliability, or completeness of such data or information, or the resulting daily mark.
Unless otherwise agreed with Santander in writing, any daily marks provided by us to you will be calculated by Santander as of the close of business on the prior business day.
Pursuant to Section 4s(h)23.431(d) of the CEA, the daily mark is exclusive of several additional factors that may influence our pricing of swaps, namely, profit, credit reserves, hedging costs, funding and liquidity or any other costs or adjustments.