LOAN SYNDICATIONS AND TRADING ASSOCIATION USER AGREEMENT

This User Agreement (the “LSTA User Agreement”) is between you and the Loan Syndications and Trading Association, Inc. (the “LSTA”) with a principal place of business at 366 Madison Avenue, 15th Floor, New York, New York 10017. The LSTA’s telephone number is 212-880-3000; its Webmaster, Christine Ramos, can be reached by email at cramos@lsta.org.

1. Terms & Conditions

Please carefully read this LSTA User Agreement in its entirety. By using the LSTA website located at www.lsta.org (the “LSTA Website”) you signify your agreement to the terms of the LSTA User Agreement. If you do not agree to the terms of the LSTA User Agreement do not use the LSTA Website.

2. Monitoring Use

The LSTA may monitor your use of the LSTA Website, and subject to the terms of the LSTA Privacy Policy, may use and disclose any information and materials received from you or collected through your use of the LSTA Website for any lawful reason or purpose.

3. Modifications

The LSTA reserves the right, at its sole discretion, to change, modify, add or remove any portion of this LSTA User Agreement, in whole or in part, at any time. Notice that the LSTA User Agreement has been changed will be posted on the LSTA Website for a period of time that, in the sole judgment of the LSTA, is reasonable. The effectiveness of any notification of modification by the LSTA is not conditional upon any acknowledgement of receipt from you. By using the LSTA Website you agree to accept any such changes.

4. Proprietary Rights

The LSTA Website is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. The LSTA is the sole owner of the copyright in such collective work and compilation work. All individual materials, including but not limited to the text, graphic images, pictorial images, music, video segments, the LSTA Documents, and copyrightable elements on the LSTA Website (hereinafter, the “Content”) on the LSTA Website are also protected by copyright and ownership of each piece of Content is either by the LSTA or the party credited on the LSTA Website as the provider of the Content.  The LSTA Website and Content is for your personal use only, and except as expressly permitted in Section 6 may not be copied, stored, distributed, shared with any third party, or modified for any purpose without the express prior written permission of the LSTA or the copyright holder associated with a specific piece of Content.  Notwithstanding the foregoing, and except as set forth in Section 6, you may download individual pieces of Content to one (1) computer solely as required for your own reference purposes, and not for redistribution or to make modifications on the condition that you maintain all copyright and other proprietary and other notices associated with such Content.  The LSTA Website also includes certain trademarks, trade names, services marks, logos, and other indicia of origin (collectively “Trademarks”).  The Trademarks are owned by LSTA or the individual owners of such Trademarks.  You may not use any Trademarks for any purposes whatsoever other than including such Trademarks in connection with your permitted use of the Content associated with such Trademark. You must abide by any and all copyright notices, trademark notices, or information, or restrictions contained on the LSTA Website or associated with any Content or Trademarks, and you may not remove or obscure the copyright or trademark notices or other notices contained in any Content or Trademarks.

5. Fees

The LSTA may, in its discretion, charge fees for access to and use of certain services available on the LSTA Website. Such fees will (i) be displayed on the LSTA Website, and (ii) will be subject to change by the LSTA.

6. LSTA Documents

The LSTA Website includes secondary loan trading forms and other documents (the “LSTA Documents”).  The LSTA Documents are copyrighted works and the LSTA is the owner of the copyright in each LSTA Document and all other intellectual property rights therein.  LSTA Documents may be accessed only by LSTA Members and licensees.  You may not copy or store any LSTA Document except to the extent necessary to use such LSTA Document for its intended purpose.  Redistributing any LSTA document to a third party is prohibited without the prior written permission of the LSTA.  Notwithstanding the foregoing, you may redistribute the LSTA Documents to a third party solely to facilitate a transaction between you and such third party, provided that such third party (a) is a member of the LSTA, or (b) has been granted a written license from LSTA granting it the right to use the LSTA Documents.

7. Availability/Modification of the LSTA Website

While the LSTA makes reasonable efforts to ensure the availability of the LSTA Website, the LSTA does not guarantee uninterrupted service or access, and assumes no liability for any such interruptions. You bear sole responsibility for your own connection to the Internet and for all telecommunication services necessary to connect to the LSTA Website. The LSTA may change, suspend or discontinue any aspect of the LSTA Website at any time, including the availability of any LSTA Website feature, database, or Content. The LSTA may also impose limits on certain features and services or restrict your access to parts or all of the LSTA Website without notice or liability.

8. Login Information

Portions of the LSTA Website are protected and may require a username and password to gain access (“Login Info”). The Login Info is the property of the LSTA and is provided to you at the discretion of the LSTA, and may be revoked at any time without prior notice, at the sole discretion of the LSTA.

9. User Indemnification

You hereby agree to indemnify, defend and hold the LSTA, and all its officers, directors, owners, agents, employees, information providers, affiliates, licensors and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all damages, liabilities and costs incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of the LSTA User Agreement or the foregoing representations, warranties and covenants, including, without limitation, attorneys’ fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. The LSTA reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of the LSTA.

10. Links to Third Party Sites

The LSTA Website contains links (“Links”) to other Internet sites and resources, and sponsors of the LSTA Website (“Linked Sites”). Links to and from the LSTA Website to Linked Sites maintained by third parties do not constitute an endorsement by the LSTA of any third party resources, or their contents. The LSTA is not responsible for the contents of Linked Sites. Links are presented for your convenience only. You access Links at your own risk.

11. No Advice

Content on the LSTA Website, including the LSTA Documents, is not intended to offer or contain legal advice. The LSTA does not represent or endorse the accuracy or reliability of any advice, opinion, statement, form, document, LSTA Document, memorandum, or other information displayed or distributed through the LSTA Website.  You acknowledge that any reliance upon any such advice, opinion, statement, form, document, memorandum, or other information shall be at your sole risk. The LSTA reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the LSTA Website.

12. Disclaimer of Warranties

THE LSTA WEBSITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, FORMS, LSTA DOCUMENTS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE LSTA WEBSITE, IS PROVIDED “AS IS” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE LSTA AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE LSTA WEBSITE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE LSTA WEBSITE, FOR ANY PRODUCTS OR SERVICES OR HYPERLINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE LSTA WEBSITE OR ANY LINKED SITE. FURTHER, THE LSTA AND ITS SUBSIDIAIRES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE LSTA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LSTA WEBSITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE LSTA WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE LSTA AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE LSTA WEBSITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.

13. Limitation of Liability

IN NO EVENT SHALL THE LSTA BE LIABLE UNDER ANY LEGAL, OR EQUITABLE THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, MISREPRESENTATION, TORT, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS) EVEN IF THE LSTA HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

Without limiting the effect of the preceding paragraph, the LSTA’s total maximum liability, if any, for any and all damages and losses (including but not limited to liability arising out of contract, negligence, misrepresentation, tort, strict liability in tort, or warranty of any kind, or the use of any LSTA Document) shall not exceed $100.00.

14. Confidentiality

You acknowledge that transmission to and from the LSTA Website is not confidential and your Communications may be read or intercepted by others. You acknowledge that by submitting Communications to the LSTA, no confidential, fiduciary, contractually implied or other relationship is created between you and the LSTA other than pursuant to this LSTA User Agreement.

15. Term & Termination

This LSTA User Agreement shall continue until you cease use of the LSTA Website, unless terminated earlier as set forth herein. You are responsible for ensuring that no unauthorized access is obtained to the LSTA Website using your membership identification(s) and password(s). The LSTA reserves the right, in its sole discretion, to terminate your access to and use of the LSTA Website, in whole or in part, at any time, without notice, for any reason whatsoever, including, but not limited to, the unauthorized use of your membership identification and password, irregular use of the LSTA Website or Content, or breach of this LSTA User Agreement or the foregoing representations, warranties and covenants.

16. Governing Law

This agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws provisions.

17. Arbitration

Any dispute or claim relating in any way to this LSTA User Agreement (including the LSTA Website, the LSTA documents, or the Content) will be resolved by binding arbitration, rather than in court, which shall take place in the State of New York, County of New York.  This arbitration agreement is governed by the Federal Arbitration Act (FAA), including its procedural provisions, in all respects.  This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State arbitration laws do not govern in any respect.  This arbitration agreement is intended to be broadly interpreted and will survive termination of this LSTA User Agreement.  The arbitration will be conducted by JAMS under its Streamlined Arbitration Rules and Procedures.  You and the LSTA each agree that the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.  You agree to waive any right to a jury trial or to participate in a class action.  If this specific provision is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither you nor the LSTA will be entitled to arbitrate a dispute.

18. Waiver

No failure or delay on the part of either party in exercising any right or remedy provided in this LSTA User Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of or failure to exercise any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy under this LSTA User Agreement.

19. Assignment

You may not assign this LSTA User Agreement, or any of your rights and obligations hereunder, without the prior written consent of the LSTA. The LSTA may assign this LSTA User Agreement, or any of its rights and obligations hereunder, at any time, without notice to you.

20. Headings

Paragraph headings herein are for convenience only and do not control or affect the meaning or interpretation of any terms or provisions of this Agreement.

21. Entire Agreement

This LSTA User Agreement constitutes the entire agreement between the LSTA and you with respect to your use of the LSTA Website. Any cause of action you may have with respect to your use of the LSTA Website must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of the LSTA User Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the LSTA User Agreement, and the remainder of the LSTA User Agreement shall continue in full force and effect. The LSTA disclaims any and all responsibility for content contained in any third party materials provided through links from the LSTA Website.

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LSTA Newsletter: August 16, 2019

This week we cover LIBOR-Good News and Less Good News; Docs Terms of Use; Delayed Comp Docs Released; Loans Mag Announcement

Loans Magazine – Summer 2019 Edition

This edition provides members with valuable content on the latest developments in the syndicated loan market. An article from David Chmiel of Global Torchlight Limited which explores “Current Geopolitical Trends Impacting the Loan Market”. We continue with a series of articles on the many aspects of the LIBOR/SOFR transition, an analysis of the secondary loan […]

LIBOR Fallbacks: Good News… and Less Good News

There is good news – and less good news – on LIBOR fallback language in cash products like loans, FRNs and CLOs. On the good news front, it looks like most cash products are now including fallback language in new deals. This is critical because many instruments will be outstanding when LIBOR ends after 2021, and if they don’t have good fallback language, there could be contract frustration (and litigation). However, on the less-good-news front, the fallback language is not always consistent (which may lead to a lot of work to determine exactly how each instrument would fall back) or workable en masse (which may lead to traffic jams as everyone tries to amend their deals at the same time). We discuss the fallback status of FRNs and loans below. (And we’d gently remind readers that several CLOs have gone “hardwired”, per LCD and Covenant Review).

Primary Delayed Compensation: Drafts Released

Yesterday, the LSTA released drafts of the LSTA trading documents to be used in connection with the new Primary Delayed Compensation Protocol. Below, please find links to the clean drafts and blacklines marking the changes to the current versions of the Par/Near Par Trade Confirmation and Standard Terms and Conditions for Par/Near Par Trades.

Primary Delayed Compensation Protocol

The Protocol applies to a “Primary Allocation” which is an allocation of new money by a syndicate desk in connection with either (i) a new issue syndication or (ii) an amendment of an existing Credit Agreement. In addition, the Protocol affects when-issued secondary trades by (i) changing what constitutes an Early Day Trade and (ii) […]

FAQs: The LSTA Trading Documents’ New Terms of Use

As we previously noted, on May 17, 2019, the LSTA published a new suite of U.S. secondary market trading documents. In conjunction with the rollout of the new documents the LSTA changed the Terms of Use applicable to counterparties who use those documents. Since then, we’ve received many questions about the new Terms of Use and below we answer many of those questions.