CREDIT AGREEMENT relating to an overdraft and contingent liability facility
relating
to an overdraft and contingent liability facility
BETWEEN:
1) Interface
Europe B.V., established in Scherpenzeel, The Netherlands,
Interface
Scherpenzeel B.V., established in Scherpenzeel, The Netherlands,
Interface
Nederland B.V., established in Scherpenzeel, The Netherlands,
Interface
Flooring B.V., established in Scherpenzeel, The Netherlands,
Interface
Belgium B.V., established in Scherpenzeel, The Netherlands,
Interface
International B.V., established in Scherpenzeel, The Netherlands,
Interface
Eastern Europe B.V., established in Scherpenzeel, The Netherlands,
Heuga
Home Flooring B.V., established in Scherpenzeel, The Netherlands,
Interface
Foreign Investments B.V., established in Scherpenzeel, The
Netherlands,
individually
or together hereinafter referred to as the 'Borrower',
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2)
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ABN AMRO
Bank N.V., having its registered office in Amsterdam, The Netherlands,
hereinafter referred to as
'ABN AMRO'.
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IT
IS HEREBY AGREED AS FOLLOWS:
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1.
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FACILITY
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ABN AMRO
grants to the Borrower until further notice a facility (the 'Facility') on the
terms and conditions and at the rates and charges stated in this agreement. ABN
AMRO may from time to time review the terms and conditions of the
Facility.
The
amount of the Facility (the 'Facility Amount') shall be:
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Period
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EUR
(in millions)
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1
May 2009 – 30 September 2009
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32
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1
October 2009 – 30 September 2010
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26
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1
October 2010 – 30 September 2011
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20
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1
October 2011 – 30 September 2012
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14
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From
1 October 2012
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8
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The
Borrower may reduce the Facility Amount at the end of each quarter in full or in
part (if in part subject to a minimum amount of EUR 2,000,000) subject to 5
business days’ notice.
As of 1
May 2009 this Facility will replace the existing facility as granted under the
Credit Agreement dated 9 March 2007, and all outstanding amounts are deemed to
be made and outstanding under this Facility.
2. PURPOSE
The
Facility is granted to enable the Borrower to make a dividend payment to
Interface Inc and to finance the general working capital needs of the
Borrower.
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3. UTILISATION
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The
Facility may be utilised by way of:
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a)
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Overdraft
in euro (including the issuance of guarantees with a tenor of up to 1
year) and or any freely available currency on the current accounts of the
Borrower; and/or
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b)
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a
Contingent Liability Facility for the purpose of issuing guarantees with a
tenor exceeding one year up to an aggregate amount of EUR 5,000,000;
and/or
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c)
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an
Allocated Credit under joint and several liability of the Borrower for
Interfaceflor India Pvt Ltd. with ABN AMRO’s branch in India as Lending
Office for an aggregate amount of EUR 500,000 or its equivalent in
INR or USD.
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For the
purpose of the Agreement:
Allocated Credit
means:
A credit
facility, made available to Interfaceflor India Pvt Ltd. under the terms and
conditions of a credit agreement entered or to be entered into between
Interfaceflor India Pvt Ltd. and the Lending Office.
The
aggregate of amounts outstanding by way of overdraft, each amount utilised under
the contingent liability facility and the amount of the Allocated Credit shall
not exceed the Facility Amount.
4. RATES
AND CHARGES
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a)
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Interest
on debit balances on the current accounts of the Borrower will be charged
at the rate of 1% per annum over ABN AMRO Euro Base Rate (presently 4.90%
per annum, subject to a minimum ABN AMRO Euro Base Rate of 3.5% per
annum).
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b)
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Commission
will be calculated on the basis of 1% per annum or part thereof on the
maximum amount and for the maximum duration of each guarantee and or
documentary letter of credit issued hereunder and will be payable
quarterly in advance.
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Issuing,
amending and other fees will be charged in accordance with ABN AMRO's then
current fees tariff.
Commission
and fees will be debited to the accounts of the Borrower held with ABN
AMRO.
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c)
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An
arrangement fee of EUR 0.1% on the Facility Amount will be payable upon
acceptance of this agreement.
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d)
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A
facility fee shall be calculated on the basis of 0.5% per annum over the
Facility Amount, payable three monthly in
arrears.
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- 2
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5. SECURITY,
FINANCIAL COVENANTS AND UNDERTAKINGS
SECURITY
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I
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To
the extent the Borrower is not already obliged to do so on any other
basis, the Borrower hereby further undertakes to provide ABN AMRO with all
of the following security as security for the obligations referred to in
I.3.1. of the Provisions (the Provisions being defined in clause 8
below):
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a
right of pledge on all assets referred to in article 18 of the GBC (the
GBC being defined in clause 7
below).
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In order
to effectuate the above, the Borrower hereby pledges to ABN AMRO, to the extent
not already pledged to ABN AMRO in accordance with article 18 of the GBC, the
present and future debts owing – as regards future debts, the pledge being made
in advance – by ABN AMRO to the Borrower as security as stated above. The
Borrower hereby grants ABN AMRO a power of attorney to pledge these debts, at
any time and repeatedly, to itself on behalf of the Borrower. This power of
attorney is unconditional and irrevocable.
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a
right of pledge on the rights of recourse and the subrogated rights
arising pursuant to the joint and several liability referred to in I.4.3.
of the Provisions.
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In
order to effectuate the above, the Borrower hereby pledges to ABN AMRO, to
the extent not already pledged in accordance with I.4.3. of the
Provisions, his aforementioned rights of recourse as security stated
above. If the Borrower is subrogated to the rights of ABN AMRO, ABN AMRO
reserves a pledge on the subrogated rights as security as stated
above.
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ABN AMRO
hereby accepts the above rights of pledge. This agreement constitutes a notice
of these pledges to the other parties referred to as the Borrower and to ABN
AMRO.
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II
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(i)
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Revolving
mortgage of EUR 26,000,000 plus 40% for interest and costs, on the
properties with the cadastral numbers Scherpenzeel D 3953, 3958, 3579,
3774, and 2370. Full details are included in the mortgage
deed.
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(ii)
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a
first ranking pledge of stocks and/or machinery and equipment and/or
receivables to be laid down in a pledge agreement. Though obliged to
pledge the inventory and receivables to ABN AMRO on an on-going
basis, the Borrower need only provide ABN AMRO, until further notice,
with an itemised and duly signed list of pledged inventory and receivables
at the beginning of every month.
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(iii)
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joint
and several liability of all parties named under 1. above, pursuant to
I.4. of the Provisions.
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After a
reduction of the Facility Amount in accordance with clause 1 of this Agreement
ABN AMRO and the Borrower may agree - on a case-by case scenario – on a release
of any of the securities (in part or in its entirety) mentioned under (i) and
(ii) of this clause.
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FINANCIAL
COVENANTS
With a
view to the continuity of the Borrower’s business, ABN AMRO deems it
necessary that the following criteria must be satisfied throughout the Facility
period.
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a.
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INTEREST
COVERAGE RATIO. The Group’s interest coverage ratio must amount to at
least 5.
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b.
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TOTAL
DEBT/EBITDA. The Group’s total debt/ebitda ratio must amount to no more
than 3.
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c.
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TANGIBLE
NET WORTH/TOTAL ASSETS. The Group’s tangible net worth must represent at
least 30% of the adjusted balance sheet
total.
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For
the purpose of monitoring these
covenants,
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adjusted balance sheet total
is understood to mean:
total
assets minus the sum of (a) intangible assets, (b) deferred tax assets, (c)
participating interests, (d) receivables from shareholders and/or directors, (e)
shares held in the own company and (f) intercompany loans, as shown in the
annual accounts;
annual accounts is understood
to mean:
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the
consolidated annual financial statements of Interface Europe
B.V.;
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interest coverage ratio is
understood to mean:
earnings
before interest and taxation divided by the sum of gross interest paid and
capitalised interest, as shown in the annual accounts;
tangible net worth is
understood to mean:
issued
and paid-up share capital plus reserves, deferred tax liabilities and loans
subordinated to the Borrower’s debts to ABN AMRO, minus intangible assets,
deferred tax assets, participating interests, receivables from shareholders
and/or directors and shares (the Borrower) holds in his own company, as shown in
the annual accounts;
total debt/ebitda ratio is
understood to mean:
the total
interest-bearing debt (including subordinated loans) divided by earnings before
interest, taxation and amortization, as shown in the annual accounts;
and
Group is understood to
mean:
Interface
Europe B.V. and its direct and indirect subsidiaries as consolidated in the
annual accounts.
UNDERTAKINGS
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(NEGATIVE
PLEDGE.) As long as the Borrower owes ABN AMRO any sum on any account
whatsoever, or may in any manner become indebted to ABN AMRO as a
result of present or future obligations, the Borrower shall not and it
shall procure that Interface Australia Holdings Pty Ltd and its
subsidiaries and Interface Europe Ltd shall
not:
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- 4
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(i)
transfer, or promise to transfer, title to all or any of its assets to an
unaffiliated third party; nor
(ii)
transfer, or promise to transfer, title to any of the assets constituting
collateral under this facility to any affiliated third party,
except
where such transfer forms part of its ordinary business and other transfers up
to an aggregate amount of EUR 3,000,000, or charge, or promise to charge, all or
any of its assets in favour of a third party unless it has obtained the prior
express consent (not to be unreasonably withheld) of ABN AMRO with the
exception of the Borrower’s operating lease arrangements with Amstel Lease and
BPF Onroerend Goed Lease en Financieringen B.V. / BPF Onroerend Goed Advies en
Transacties B.V. (together hereinafter referred to as “BPF”) and the financing
arrangement dated 6 March 2009 between Interface Australia Holdings Pty Ltd and
its subsidiaries on the one hand and the Australia and New Zealand Banking Group
Limited on the other hand.
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on
first demand of ABN AMRO the Borrower will provide ABN AMRO with full cash
cover (to be held on a duly pledged deposit account) in respect of all
outstanding guarantees issued on behalf of the Borrower by ABN
AMRO;
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The
Borrower shall not and it shall procure that Interface Australia Holdings
Pty Ltd and its subsidiaries and Interface Europe Ltd shall not enter into
credit agreements with third parties exceeding an aggregate amount of EUR
2,500,000 without the consent (not to be unreasonably withheld) of
ABN AMRO with the exception of the Borrower’s operating lease
transactions with Amstel Lease and BPF. ABN AMRO is aware of the
existing operating leasing arrangement with Amstel Lease (Operational
Lease Agreement number 371561.00 regarding packaging line, dated 1.11.6),
the operating lease arrangements with BPF (Operational Lease Agreements
regarding register-bound good Industrielaan 15 resp. Glashorst 135, as
lastly amended per deed dated 22.9.5) and the financing arrangement dated
6 March 2009 between Interface Australia Holdings Pty Ltd and its
subsidiaries on the one hand and the Australia and New Zealand Banking
Group Limited on the other hand;
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ABN AMRO
will receive a list of the Borrower's accounts payable to trade suppliers
at the beginning of every month;
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The
Borrower shall inform ABN AMRO immediately
if:
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a)
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the
Borrower fails to comply with or fulfil, at the time and in the manner
required, any obligation under any other contractual obligation, loan or
financing arrangement with or any guarantee towards third parties
exceeding an aggregate amount of
EUR 1,000,000;and/or
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b)
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when
the Borrower becomes aware if Interface Inc., Interface Europe Ltd and/or
Interface Australia Holdings Pty Ltd (including its subsidiaries) fail to
comply with or fulfil, at the time and in the manner required, any
obligation under any loan or financing arrangement with or any guarantee
towards third parties exceeding an aggregate amount of
EUR 1,000,000.
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- 5
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6. CONDITIONS
PRECEDENT
In
addition to any other condition required to be fulfilled hereunder, ABN AMRO
requires
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a)
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a
copy of this agreement duly signed on behalf of the Borrower;
and
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b)
a copy of
the Borrower’s current Articles of Association (Statuten) and extract from
the Trade Register of the Chamber of Commerce (Uittreksel Handelsregister);
and
c)
copies of
documents acceptable to ABN AMRO to authenticate the identity of the signatories
representing the Borrower.
7. GENERAL
BANKING CONDITIONS
The ABN AMRO General Banking Conditions (the 'GBC') shall apply to the
relationship between ABN AMRO and the Borrower.
8.
INCORPORATION OF ABN AMRO CONDITIONS
ABN AMRO
General Credit Provisions dated July 2006 (the 'Provisions') shall be
incorporated into this agreement. By the execution of this agreement the
Borrower acknowledges receipt of a copy of the GBC and the Provisions and agrees
to the terms of the GBC, the Provisions and this agreement. In the event of any
conflict with the GBC and or the Provisions, the terms of this agreement shall
prevail.
Contrary
to the Provisions, article I.5 (negative pledge) shall be replaced by the
negative pledge section in clause 5 of this agreement.
Part III
of the Provisions shall not apply to the Facility.
Agreed
and signed in Scherpenzeel on 24-4-2009.
Interface
Europe
B.V. ABN
AMRO Bank N.V.
/s/ ▇.
▇▇▇▇▇▇▇▇▇ /s/ J. J. M. van de
Ven
Name: ▇.
▇▇▇▇▇▇▇▇▇
Title: Director
/s/ A. H. van
Keken /s/ W. R. J.
Lingrowt
Name: A.
H. van Keken
Title: Director
- 6
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Interface
Scherpenzeel
B.V. Interface
Nederland B.V.
/s/ ▇.
▇▇▇▇▇▇▇▇▇ /s/ ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇▇▇▇ Name:
▇. ▇▇▇▇▇▇▇▇▇
Title: Director Title: Director
/s/ A. H. van
Keken
Name: A.
H. van Keken
Title: Director
Interface
Flooring
B.V.
Interface Belgium B.V.
/s/ ▇.
▇▇▇▇▇▇▇▇▇
/s/ ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇▇▇▇
Title: Director
Title: Director
/s/ A. H. van
Keken
Name: A.
H. van Keken
Title: Director
of Interface Europe B.V.
Interface
International
B.V. Interface
Eastern Europe B.V.
/s/ ▇.
▇▇▇▇▇▇▇▇▇
/s/ ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇▇▇▇
Title: Director
Title: Director
/s/ A. H. van
Keken
Name: A.
H. van Keken
Title: Director
Heuga
Home Flooring
B.V. Interface
Foreign Investments B.V.
/s/ ▇.
▇▇▇▇▇▇▇▇▇
/s/ ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇▇▇▇
Title: Director
Title: Director
- 7
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ABN AMRO GENERAL CREDIT
PROVISIONS
consisting of:
I Common
Provisions
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II
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General
Provisions governing Overdraft and Contingent Liability
Facilities
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III General
Provisions governing Loans
(July 2006)
I COMMON
PROVISIONS
1 Definitions
In these
ABN AMRO General Credit Provisions the following terms shall have the
following meanings:
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a
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'Borrower'
shall mean the legal or natural person or persons, both jointly and
individually, to whom the Credit has been or will be made
available;
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b
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'ABN AMRO'
shall mean ABN AMRO Bank N.V., having its registered office in
Amsterdam, the Netherlands;
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c
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'Credit
Agreement' shall mean the agreement concluded between the Borrower and
ABN AMRO in which these ABN AMRO General Credit Provisions have
been declared applicable;
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d
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'Credit'
shall mean overdraft facilities and/or contingent liability facilities
and/or loans granted or to be granted to the Borrower under the Credit
Agreement.
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2 Availability
The
Credit will not be made available to the Borrower until all security,
undertakings (verklaringen), documents and
information referred to in the Credit Agreement have been provided and all other
conditions in the Credit Agreement for the availability of the Credit have been
complied with.
3 Security
and undertakings (verklaringen)
3.1 Instruments
and priority
If
security or undertakings (verklaringen) are provided,
these shall secure any and all present or future indebtedness of the Borrower to
ABN AMRO on any basis whatsoever (including indebtedness arising from derivative
transactions), whether or not arising in the ordinary course of banking
business, and shall be laid down in instruments to be drawn up by ABN AMRO or in
the Credit Agreement. Any costs in this regard shall be borne by the Borrower.
Unless otherwise stated, security provided to ABN AMRO shall rank first in
priority.
3.2 Mortgage
If a
right of mortgage is given, it shall be subject to the General Terms and
Conditions for Mortgages (Algemene Bepalingen voor
Hypotheekstelling) in addition to the provisions contained in the
mortgage deed. A right of mortgage on multiple registered properties (registergoederen) shall be
created by means of separate rights of mortgage on each property individually,
in each case for the full principal amount plus interest and costs.
3.3 Disclosure
The
Borrower agrees that if third parties have provided security or undertakings
(verklaringen),
ABN AMRO may furnish such third parties with information about the
Borrower's financial position and any other information relating to the Credit
that may be of importance to such third parties.
4 Multiple
Borrowers/joint and several liability
4.1 Joint
and several liability
If the
Borrower consists of more than one legal or natural person, each of them shall
be jointly and severally liable to ABN AMRO for any and all present or future
indebtedness of any or all of them to ABN AMRO on any basis whatsoever
(including indebtedness arising from derivative transactions), whether or not
arising in the ordinary course of banking business. Any costs in this regard
shall be borne by the Borrower. Unless otherwise stated, security provided to
ABN AMRO shall rank first in priority.
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4.2
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Waiver
of defences and rights
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The
Borrower waives as against ABN AMRO all defences and rights accruing to debtors
with joint and several liability or to sureties (borg).
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4.3
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Recourse
rights and subrogated rights
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Each
Borrower undertakes to pledge his rights of recourse against any of the other
parties referred to as Borrower and agrees that, if he is subrogated to the
rights of ABN AMRO against any of the other parties referred to as Borrower, ABN
AMRO reserves a right of pledge on the subrogated rights. Both pledges shall
secure any and all present or future indebtedness of the Borrower to ABN AMRO on
any basis whatsoever (including indebtedness arising from derivative
transactions), whether or not arising in the ordinary course of banking
business.
To the
extent that a Borrower's rights of recourse or subrogated rights against any of
the other parties referred to as Borrower are not subject to a right of pledge
as described above, such rights shall be subordinated to all present or future
rights of ABN AMRO against any of the other parties referred to as Borrower. For
that situation, each Borrower waives his right to subrogation in respect of any
security attached to the rights of ABN AMRO against any of the other parties
referred to as Borrower.
Subject
to the condition precedent that a Borrower is being sold to a third party in
connection with a restructuring (ontvlechting), each Borrower
waives his rights of recourse or subrogated rights against that
Borrower.
4.4 Communications
Unless
otherwise stated, communications made by ABN AMRO to the Borrower first named in
the Credit Agreement shall be deemed to have been made to all parties that are
jointly and severally liable under that agreement.
5 Negative
pledge
As long
as the Borrower owes ABN AMRO any sum whatsoever (including indebtedness
arising from derivative transactions), or may in any manner become indebted to
ABN AMRO as a result of present or future obligations, the Borrower shall
not transfer, or promise to transfer, title to all or any of his assets – except
transfers in the ordinary course of business - or charge or encumber, or promise
to charge or encumber, all or any of his assets in favour of a third party
unless he has obtained ABN AMRO’s prior written consent.
6 Prohibition
against transfer or pledge
Credit
balances on accounts held at ABN AMRO may not be transferred or pledged other
than to ABN AMRO.
7 Positive
pledge
Without
prejudice to the provisions of Article 20 of the General Banking Conditions, the
Borrower undertakes to ensure, at ABN AMRO's first request, that security or
additional security is provided, in the form and amount desired by ABN AMRO, for
the performance of any and all present or future obligations of the Borrower to
ABN AMRO on any basis whatsoever (including indebtedness arising from derivative
transactions), whether or not arising in the ordinary course of banking
business.
8 Insurance
The
Borrower shall at all times maintain sufficient and adequate insurance against
general and specific business risks pertaining to his line of business and his
particular business.
9 Restructuring
clause (companies only)
The
Borrower shall notify ABN AMRO in a timely manner of any intended changes
in the Borrower's corporate structure or in that of his subsidiaries or group
companies, if any, including changes in the identity of the shareholder(s) of
the Borrower or any subsidiaries or group companies.
10 Costs
and expenses
All costs
and expenses incurred by ABN AMRO in connection with the performance of the
Credit Agreement, including any taxes payable by ABN AMRO (other than on
net profit), as well as any reasonable costs and expenses incurred by
ABN AMRO in connection with the Borrower's failure to comply with or fulfil
any obligation under the Credit Agreement at the time and in the manner
required, including collection charges, fees of legal advisers and other experts
and the costs of proceedings, irrespective of to whom owed, shall be for the
account of the Borrower and shall be paid by the Borrower on ABN AMRO's
first demand.
Provided
more than three months have elapsed since the signing of the Credit Agreement,
ABN AMRO shall have the right to refix an agreed interest rate if the cost to
ABN AMRO of making available, or continuing to make available, the Credit has
increased and this increase results directly or indirectly from
credit-restricting measures (kredietbeperkende
maatregelen), solvency guidelines or other rules or provisions increasing
costs (including lines of conduct the observance of which has been requested) of
the Dutch Central Bank (De
Nederlandsche Bank), the European Central Bank or any other authority,
monetary or otherwise.
11 Calculation
of Interest
Interest
shall be calculated on the basis of a 360-day year (or, depending on the market
practice with respect to the relevant currency, 365 days) and the actual number
of days in any month.
12 Furnishing
of Information
12.1 Annual
accounts
The
Borrower shall send ABN AMRO his balance sheet, profit and loss account and
notes thereto for the past financial year immediately after they have been drawn
up but in any event not later than six months after the end of the relevant
financial year.
12.2 Other
Information
The
Borrower shall allow ABN AMRO to inspect his books and records on ABN
AMRO’s first demand, and shall provide ABN AMRO, both on its first demand and
unsolicited, with any information about his financial position and business
developments that could have a material effect thereon.
13 General
Banking Conditions
All
relations between the Borrower and ABN AMRO shall also be governed by the
General Banking Conditions (Algemene Voorwaarden ABN AMRO
Bank N.V.) (the "General Banking Conditions"). In the event of a conflict
between the provisions of these ABN AMRO General Credit Provisions and the
General Banking Conditions, the relevant provisions of these ABN AMRO General
Credit Provisions shall prevail. These ABN AMRO General Credit Provisions shall
remain applicable until all legal relations to which they apply have been fully
settled.
14 English
Legal Terminology
The words
used in these ABN AMRO General Credit Provisions to describe legal concepts,
although in English, refer to Dutch legal concepts only and the consequences of
the use of these words in English law or any other foreign law shall be
disregarded.
Any Dutch
legal concept referred to in these ABN AMRO General Credit Provisions shall, in
respect of any jurisdiction other than the Netherlands, be deemed to include
such concepts as in that jurisdiction most closely approximate the Dutch legal
concept.
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II
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GENERAL
PROVISIONS GOVERNING OVERDRAFT AND CONTINGENT LIABILITY
FACILITIES
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1 Use
1.1 Overdraft
facility
An
overdraft facility may be used;
- to
withdraw funds on current account;
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to
enter into non-cash contingent liabilities with a maximum term of one
year, unless agreed otherwise, such as those arising from the issuance of
guarantees, the issuance of letters of credit and the discounting of
bills; and
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in
any other manner stated in the Credit
Agreement.
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1.2 Contingent
liability facility
A
contingent liability facility may be used to enter into non-cash contingent
liabilities, such as those arising from the issuance of guarantees, the issuance
of letters of credit and the discounting of bills.
2. Balance
Netting
ABN AMRO
will apply balance netting to the current accounts held by the Borrower at ABN
AMRO, subject to the following provisions:
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a.
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Balance
netting shall be effected in the manner set out below under b., in respect
of all current accounts (including any deposits that are administratively
linked to a current account) held at ABN AMRO in the Netherlands at any
given time in the name of the Borrower and which the Borrower is entitled
to freely operate, whether denominated in euro or in a foreign currency,
to the extent that the application of balance netting to an account is not
precluded by a request of the Borrower, a designation by ABN AMRO or, in
the opinion of ABN AMRO, the nature of the account or the relevant
currency.
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b. The
result of balance netting shall be equal to:
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-
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the
aggregate of the credit balances on the current accounts referred to in
a., increased by the amount of any deposits that are administratively
linked thereto, less:
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-
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the
aggregate of the debit balances on the current accounts referred to in a.
above irrespective of the size of the balances to be taken into
account.
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c.
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The
result of balance netting shall be used solely for the purpose of
determining the unused portion of the overdraft facility.
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3. Contingent
liabilities/unused amount
3.1 Overdraft
facility
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a.
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For
the purpose of the calculation by ABN AMRO of the unused portion of the
overdraft facility at any given time, the amount of the overdraft facility
shall be:
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-
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either
reduced by the then existing negative balance resulting from balance
netting or increased by the then existing positive balance resulting from
balance netting, as set out above under 2.b;
and
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-
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reduced
by the non-cash contingent liabilities as set out above under 1.1, unless
these obligations can be charged to a contingent liability facility
granted to the Borrower; and
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-
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reduced
by obligations arising from the use of the overdraft facility in any other
manner as set out above under 1.1.
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b.
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If
the debit balance on a current account is, in the opinion of ABN AMRO,
unacceptably high, the Borrower shall reduce that debit balance to a level
acceptable to ABN AMRO at ABN AMRO’s first
request.
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c.
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ABN
AMRO may at any time reject, in whole or in part, dispositions requested
by the Borrower if, after the disposition, the debit balance on the
relevant current account will, in the opinion of ABN AMRO, be unacceptably
high.
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3.2 Contingent
liability facility
The
unused portion of the contingent liability facility shall be determined by
reducing the amount of the facility by the aggregate, at any given time, of the
Borrower’s non-cash contingent liabilities to ABN AMRO arising from the use
of the contingent liability facility.
4 Interest
and fees
4.1 Calculation
of debit interest
In
calculating interest on debit balances in euro up to the agreed amount of the
overdraft facility, ABN AMRO shall apply the ABN AMRO Euro Base Rate
(ABN AMRO Euro
Basisrente). Until further notice, the ABN AMRO Euro Base Rate shall
consist of the leading refi rate (the rate of the main refinancing operation
(Basisherfinancieringsrente))
as determined from time to time by the European Central Bank (“ECB”), plus a
debit interest surcharge. With respect to the ABN AMRO Euro Base Rate, ABN AMRO shall apply the
minimum base rate stated in the Credit Agreement. The ABN AMRO Euro Base
Rate shall be increased by the individual margin stated in the Credit Agreement.
If the ECB changes the rate of the main refinancing operation, or ABN AMRO
changes the debit interest surcharge or alters the composition or method of
calculation of the ABN AMRO Euro Base Rate, the debit interest rate shall
be adjusted accordingly. ABN AMRO shall announce changes in the debit
interest surcharge as well as any alterations in the composition or method of
calculation of the ABN AMRO Euro Base Rate in at least three national daily
newspapers in the Netherlands. Interest on debit balances in a currency other
than the euro shall be payable at a rate to be determined by
ABN AMRO.
ABN AMRO
may at any time change the individual margin stated in the Credit
Agreement.
4.2 Interest
on overdrafts exceeding the agreed limit
Subject
to the provisions contained in 3.1 above, the Borrower shall pay ABN AMRO
compensation, in an amount to be determined by ABN AMRO, in respect of the
amount by which the Borrower’s debit balance exceeds the agreed amount of the
overdraft facility. The Borrower shall nevertheless remain obliged to reduce the
debit balance to the agreed amount of the overdraft facility.
4.3 Payment
of debit interest and fees
Debit
interest and fees payable by the Borrower shall be charged to the Borrower's
current account as follows:
- debit
interest once every quarter;
- fees
at the times to be specified by ABN AMRO.
If the
Borrower holds more than one current account at ABN AMRO, ABN AMRO
shall have the right to charge debit interest and fees to any of those
accounts.
5 Cancellation/reduction
of credit amount
Both the
Borrower and ABN AMRO may at any time cancel an overdraft facility or a
contingent liability facility or reduce the credit amount.
In the
event of cancellation, all amounts owing by the Borrower under the overdraft
facility shall be immediately due and payable, without any demand or notice of
default being required.
In the
event of cancellation, the Borrower shall also, at ABN AMRO’s first demand,
cause all latent obligations under non-cash contingent liabilities to terminate
or provide adequate cash collateral for these obligations.
If the
credit amount is reduced, the above provisions shall apply mutatis mutandis to the
amount by which the sum of the debit balance and the obligations under non-cash
contingent liabilities exceeds the reduced credit amount.
After
cancellation, no new withdrawals may be made and no further non-cash contingent
liabilities may be entered into.
III GENERAL
PROVISIONS GOVERNING LOANS
1 Availability
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1.1
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In
addition to that stated in 2 of the General Provisions, the following
shall apply:
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|
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1.
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ABN AMRO
shall not be obliged to make the loan amount available upon the occurrence
of any of the events set out in 5.1 below;
and
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|
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2.
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if
the loan has not been drawn, or fully drawn, by the agreed final drawing
date, ABN AMRO may, in its discretion and without any further
instructions from the Borrower being required, make the undrawn amount of
the loan available to the Borrower on that
date.
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1.2
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ABN
AMRO shall make the loan amount available by crediting it to a current
account which, according to ABN AMRO’s records, is held in the Borrower’s
name.
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2 Refixing
of interest rates
2.1 Fixed-interest
loans
If a
fixed interest rate has been agreed, ABN AMRO shall, not later than two
weeks prior to an agreed interest refixing date, notify the Borrower in writing
of the proposed - fixed or floating - interest rate for the next interest
period, subject to the provisions contained in 2.3 below. Agreement on the
interest rate must be reached no later than one week prior to the interest
refixing date. If the Borrower fails to respond to the above notice from
ABN AMRO at least one week prior to the interest refixing date, the
Borrower shall be deemed to have opted for the interest rate applicable to the
shortest interest period referred to in the notice. If ABN AMRO fails to
give the above notice in a timely manner, it shall nevertheless be free to do so
at a later date. In that event, ABN AMRO shall offer the Borrower the lower of
the interest rate it would have offered on the basis of its then prevailing
rates had the notice been given in time or the rate it is able to offer based on
its prevailing rates at the time of the later notice. Agreement on the interest
rate must be reached within two weeks after the Borrower has received such
notice from ABN AMRO.
2.2 Floating
interest rate loan
ABN AMRO
may change the floating interest rate at any time. If ABN AMRO elects to do
so, it shall notify the Borrower in writing of the change at least eleven days
prior to the day on which it is to take effect.
If the
Borrower does not agree to the new interest rate, he shall inform ABN AMRO
thereof in writing at least one week prior to the interest refixing date. If the
Borrower fails to respond to the written notice from ABN AMRO by that date,
the Borrower shall be deemed to have agreed to the new rate.
If the
Borrower so requests at least two weeks prior to the first day of the next
calendar quarter or on a day the interest rate is changed, ABN AMRO shall,
on the first day of the next calendar quarter, convert such floating rate loan
into a fixed rate loan at ABN AMRO's then prevailing interest
rate.
2.3 Loan
in foreign currency
If a loan
is not denominated in euro, the Borrower shall contact ABN AMRO by
telephone before 10.00 a.m. (Amsterdam time) two business days prior to the
agreed interest refixing date. Business day shall mean a day on which banking
institutions in the Netherlands and the country where the currency in which the
loan is denominated is the national unit are open for business.
During or
immediately after such telephone call, ABN AMRO shall inform the Borrower
of the interest rate it proposes for the next interest period. If ABN AMRO
and the Borrower then reach agreement, ABN AMRO shall confirm the interest
rate to the Borrower in writing.
If the
Borrower fails to contact ABN AMRO before the time indicated above,
ABN AMRO shall have the right to refix the interest rate on the basis of a
one-year interest period.
2.4 No
agreement/assent on interest rate
If
ABN AMRO and the Borrower fail, or are deemed to have failed, to reach
agreement on the fixed interest rate that will apply from the interest refixing
date and the period for which it will apply, or if the Borrower does not agree
to the floating rate that will apply from the interest refixing date, the entire
amount outstanding under the relevant loan shall become due and payable by the
Borrower to ABN AMRO on such interest refixing date. The Borrower shall not be
liable to pay compensation for losses and foregone profits (geleden verlies en gederfde
winst) resulting from such early repayment, as referred to in 4.1 or
4.2.
3 Interest
due dates
If a
fixed interest rate is in effect, the interest shall be paid by the Borrower to
ABN AMRO on the dates stated in the Credit Agreement. If a floating interest
rate is in effect, the interest shall be paid by the Borrower to ABN AMRO on the
first day of each calendar quarter.
4 Early
repayment
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4.1
|
If
a fixed interest rate is in effect and the loan is denominated in euro,
the Borrower shall be entitled to make early repayments without becoming
liable to pay ABN AMRO compensation for losses and foregone profits (geleden verlies en gederfde
winst) provided the following conditions are
met:
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|
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a.
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the
Borrower has given ABN AMRO at least one month's prior notice by
registered letter, indicating the amount and date of the intended early
repayment; and
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b.
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the
early repayment coincides with a contractual repayment date or an agreed
interest due date; and
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c.
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the
prepaid amount is at least EUR 1,000, subject to a maximum in any one
calendar year of 5% of the original principal amount of the loan;
and
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d.
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the
Borrower proves to ABN AMRO's satisfaction that the repayment will be
made from the Borrower's own
resources.
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If the
Borrower fails to meet one or more of the above conditions or if the loan is
denominated in a foreign currency, the Borrower shall owe ABN AMRO compensation
for the latter’s losses and foregone profits (geleden verlies en gederfde
winst) in relation to any part of the early payment made in a manner
other than as agreed or in excess of the maximum agreed, to be paid together
with such early repayment.
This
compensation shall be fixed by ABN AMRO at the difference between:
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a.
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the
aggregate of the present values of the interest payments which, pursuant
to the Credit Agreement, ABN AMRO would have received in respect of
the amount prepaid in a manner other than as agreed or in excess of the
maximum agreed during the period from the date of prepayment until the
final repayment date or the next interest refixing date (whichever is
earlier) had such prepayment not been made;
and
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|
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b.
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the
aggregate of the present values of the interest payments which
ABN AMRO would be able to receive on interbank loans for a principal
amount comparable to the amount prepaid in a manner other than as agreed
or in excess of the maximum agreed and for a period comparable to the
period described above in a.,
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but in
any event not less than 1% of the amount prepaid in a manner other than as
agreed or in excess of the maximum agreed. The present value of the interest
payments shall be calculated at the interbank rate applicable on the date of the
prepayment. ABN AMRO shall notify the Borrower of the amount of the
compensation.
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4.2
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If
a floating interest rate is in effect, the Borrower shall be entitled to
make early repayments without becoming liable to pay ABN AMRO compensation
for losses and foregone profits (geleden verlies en gederfde
winst) provided the following conditions are
met:
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|
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a.
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the
Borrower has given ABN AMRO at least one month's prior notice by
registered letter, indicating the amount and date of the intended early
repayment; and
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|
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b.
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the
early repayment coincides with an agreed interest due date;
and
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c. the
prepaid amount is at least EUR 1,000.
If the
Borrower fails to meet one of more of the above conditions, the Borrower shall
be liable to pay ABN AMRO compensation for the latter’s losses and foregone
profits (geleden verlies en
gederfde winst) in relation to any part of the early payment made in a
manner other than as agreed, to be paid together with such early repayment. The
amount of compensation shall be determined by ABN AMRO in the manner described
above under 4.1, on the understanding that the minimum compensation provided for
therein shall not apply.
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4.3
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Upon
giving notice of an intended early repayment, the Borrower shall be
obliged to make such early
repayment.
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4.4
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Early
repayments shall be applied in reduction of the contractual repayments in
reverse order of their due dates.
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4.5
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If
the loan is repaid on an annuity basis, ABN AMRO shall refix the
remaining term of the loan so that, as far as possible, the amount of the
original instalments remains
unchanged.
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5 Events
of Default
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5.1
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ABN
AMRO may declare the outstanding principal amount of the loan, together
with accrued interest and any other amount payable by the Borrower under
the Credit Agreement, immediately due and payable to ABN AMRO, in
full and without any demand or default notice being
required:
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a.
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if
the Borrower fails to comply with or fulfil, at the time and in the manner
required, any obligation towards ABN AMRO, whether arising under the
Credit Agreement or otherwise;
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b.
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if
the Borrower fails to comply with or fulfil, at the time and in the manner
required, any obligation under any other loan or financing arrangement
with or any guarantee given to a third
party;
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c.
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if
the Borrower decides to cease practising his profession or carrying on his
business, to discontinue, sell, let or transfer title to the whole or part
of his business or practice, or is suspended, removed or dismissed from
his profession, office or function; if a licence, permit or registration
which the Borrower requires in order to practise his profession or to
carry on his business expires or is refused or withdrawn; if the nature of
the Borrower's profession or business is, in the opinion of ABN AMRO,
changed in a material way; if the Borrower decides to transfer abroad the
practice of his profession or the running of his business; if the Borrower
violates any laws or regulations, environmental or otherwise, relating to
his profession or business; if the Borrower ceases to pursue the corporate
objects set out in the Borrower’s articles of association or ceases to
have legal personality;
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d.
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if
a partnership agreement (maatschaps- of
vennootschapscontract) to which the Borrower is a party is
terminated; if one or more partners join or leave the partnership; if the
partnership is dissolved (ontbinding) or wound
up (liquidatie);
or if there is a decision or an obvious intention to dissolve or wind
up;
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e.
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if
the Borrower dies, is placed under guardianship (curatele) or otherwise
loses his legal capacity; if he takes up residence abroad, or changes the
terms of his marriage settlement; if any matrimonial property regime to
which the Borrower is subject is dissolved (ontbinding); if the
Borrower’s assets are wholly or partly placed under administration (bewind);
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f.
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if
the Borrower or one of his partners applies for a suspension of payments
(surseance van
betaling); files a bankruptcy or winding-up petition (faillissement); is
adjudicated bankrupt or wound-up; proposes an extrajudicial arrangement or
composition (akkoord) with his
creditors; while insolvent, transfers any of his assets to his creditors
(boedelafstand); or requests a
debt restructuring arrangement (schuldsaneringsregeling);
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g.
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if
all or, in the opinion of ABN AMRO, a significant part of the
Borrower's assets are taken in execution (executorial beslag) or
attached by way of security (conservatoir beslag)
and such attachment is not lifted or discharged within 30 days after
having been effected; if all or, in the opinion of ABN AMRO, a
significant part of the Borrower's assets are expropriated, confiscated,
lost or damaged;
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h.
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if
the Borrower’s corporate structure is, in the opinion of ABN AMRO, changed
significantly, by a merger (fusie), demerger (splitsing), winding up
(liquidatie),
conversion, takeover or otherwise; if, in the opinion of ABN AMRO, a
significant change has taken place in the control of the Borrower's
business or practice; if there is an intention to make any of the above
changes; or if the Borrower’s articles of association or internal rules or
regulations are, in the opinion of ABN AMRO, amended to a significant
extent;
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i.
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if
the Borrower, without ABN AMRO's prior written consent, releases his
shareholders from an obligation to pay up partly paid-up shares, purchases
his own shares, makes a repayment on shares, makes a distribution from his
reserves or decides or has the obvious intention to do any of the
above;
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j.
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if
an event of a political, military, economic or financial nature occurs, or
if the Borrower's financial position substantially deteriorates, or if it
foreseeable that such an event or deterioration could occur, such that, in
the opinion of ABN AMRO, the ability of the Borrower to fulfil his
obligations towards ABN AMRO at the time and in the manner required could
be prejudiced.
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k.
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if
any event referred to in b. up to and including j. occurs in respect of a
surety (borg), a
guarantor (garant), jointly and
severally liable debtor or a third party that has provided ABN AMRO
with any other type of security for the loan; if the surety (borg) or guarantor
(garant) cancels
or withdraws a suretyship (borgtocht) or
guarantee issued by him to ABN AMRO for the Borrower; if a third
party that has provided or has promised to provide ABN AMRO with
security for the loan defaults in the performance of any obligation in
respect of the security provided or
promised;
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l.
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if
any event referred to in b. up to and including j. occurs in respect of
one or more enterprises or companies that are included in the Borrower's
consolidated balance sheet, or in respect of one or more enterprises or
companies that have a controlling interest in the Borrower, or if any such
enterprise or company defaults in the performance of any obligation
towards ABN AMRO in connection with credit and/or guarantee
facilities granted by
ABN AMRO;
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m.
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(in
the case of a mortgage on registered property other than as referred to in
n. below) in the event of attachment or execution (beslaglegging),
designation for expropriation (aanwijzing tot
onteigening), declaration of unfitness for occupation, listing as a
monument, inclusion in land consolidation (opneming in
ruilverkaveling), demolition, extinction of or damage to the
mortgaged property or any part thereof; in the event of complete or
partial extinction, termination or lapse of the leasehold (erfpachtsrecht), the
building right (opstalrecht) or a
right to use an apartment (gebruiksrecht van het
appartement); in the event of alteration of the conditions
governing a leasehold or a building right, termination of the sub-division
(splitsing) or
amendment of the deed or regulations of sub-division, non-performance or
violation of any obligation under the conditions governing the leasehold
or building right by the leaseholder or the holder of a building right,
and in the event of non-performance or violation of any statutory
provisions with respect to the right to use an apartment or any provision
contained in the agreement for sub-division or the regulations by the
owner or occupier of an
apartment;
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n.
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(in
the case of a mortgage on a ship) if the whole or any part of a mortgaged
ship is attached or executed upon, is classified in a lower category,
loses its national registration or changes the same, or is requisitioned,
abandoned, missing (tijdingloosheid), laid
up (oplegging),
broken up (sloping), wrecked or
damaged;
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o.
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if
all or any of the assets provided to ABN AMRO as security for the
loan other than those referred to in m. and n. are lost, destroyed,
damaged or extinguished, or if they expire, for any reason
whatsoever;
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p.
|
if
the Borrower has given ABN AMRO incorrect information or has withheld
information that is material to ABN AMRO in connection with the Credit
Agreement;
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q.
|
if
the loan is not used for the purpose for which it was granted, or if, in
the opinion of ABN AMRO, it is clear that the purpose for which the
loan was granted has not been achieved or will not be achieved, either
wholly or to a significant extent;
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r.
|
if
any law or its interpretation is changed or governmental action is taken,
as a result of which the Credit Agreement and/or the security provided
and/or the value thereof is or may be affected, and the Borrower and
ABN AMRO have not, within a reasonable period to be determined by
ABN AMRO, reached a written agreement amending the relevant
provisions and/or adjusting the security in such a way that, in the
opinion of ABN AMRO, the position of ABN AMRO is not adversely
affected.
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|
5.2
|
The
Borrower shall notify ABN AMRO immediately of the occurrence of one
or more of the events set out in 5.1 b. up to and including
o.
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5.3
|
If
ABN AMRO declares the outstanding indebtedness immediately due and payable
in accordance with the above, the Borrower shall pay ABN AMRO an
immediately due and payable lump sum amount as compensation for losses and
foregone profits (geleden verlies en gederfde
winst). This compensation shall be due in respect of the full
amount payable and be determined in accordance with the method and
principles set out in 4.1 or 4.2 above. Such compensation shall not be
payable if the indebtedness becomes immediately due and payable as a
result of the Borrower’s death.
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6 Default
Interest
|
6.1
|
If
ABN AMRO does not receive any sum due to it under the Credit
Agreement on the agreed due date, the Borrower shall be liable to pay
ABN AMRO default interest, due and payable daily, on the overdue
amount as from the due date, without prejudice to ABN AMRO's other
rights. If no specific due date has been stipulated in the Credit
Agreement or these ABN AMRO General Credit Provisions in relation to a
particular amount, this amount shall, for the purpose of the above
provisions, be due on the day stipulated by ABN AMRO for
payment.
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|
6.2
|
The
rate applicable to default interest shall be three percentage points above
the contractual interest rate per annum then applicable to the loan.
Default interest shall be calculated on a monthly basis, part of a month
being counted as a full month. With respect to a late repayment of
principal, the default interest rate shall, as from the due date of that
repayment, replace the contractual interest rate then applicable to the
loan.
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7 Payment
|
7.1
|
The
Borrower shall make all payments to ABN AMRO without any cost to
ABN AMRO and without any deduction or set-off. Payments
shall be made on the due dates at the ABN AMRO branch where the loan
is administered, unless ABN AMRO has notified the Borrower of another
address for payment.
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|
7.2
|
ABN AMRO
shall be entitled, but not obliged, to debit all amounts payable by the
Borrower to ABN AMRO under the loan from the Borrower's current
account at ABN AMRO on the agreed due dates, without prejudice to the
Borrower’s obligation to ensure that the balance of that account on the
due date is such that this debit does not exceed the amount available for
payments and withdrawals from that
account.
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|
7.3
|
Payments
shall be applied as follows: (i) any costs and expenses; (ii) any
compensation for losses and foregone profits (geleden verlies en gederfde
winst) and default interest (iii) fees (provisies) and
interest, and finally (iv)
principal.
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ABN AMRO
Translation*
of the original Dutch text
ABN AMRO
Bank N.V. Establised in Amsterdam. Register of Commerce Amsterdam, nr
33002587
* This
translation is furnished for the Customer’s convenience only. The original Dutch
text, which will be sent upon request, will be binding and shall prevail in case
of any variance between the Dutch text and the English translation.
These
General Conditions were drawn up in September 1995 in consultation between the
Netherlands Bankers’ Association and the consumers’ organisation
’Consumentenbond’ within the framework of the Committee for Consumer Affairs of
the Socio-Economic Council (SER). These consultations resulted in agreement on
all articles with the exception of the provisions on liability laid down in
articles 3,10 and 31 of these General Conditions. Consumentenbond appreciates
the consequences which the assumption of far-reaching liability may have for the
banking business, but in view of its own responsibilities it cannot agree to the
limitations on liability embodied in these articles. The banks appreciate this
position but they point out that it is impossible for them to accept general
liability: this would entail unpredictable risks for the banks, which they
cannot and may not allow themselves to assume for a variety of reasons including
the interests of their customers. In consultation with Consumentenbond, however,
both parties have emphasized that the duty of care laid down in article 2 of the
Conditions shall always be the first consideration and that any clauses
restricting liability shall not detract from this duty.
Article
1: Scope
All
relations, including future ones, between the Bank’s branch-offices in the
Netherlands and the Customer shall be subject to these General Conditions.
The
provisions of these General Conditions shall apply to the extent that it is not
otherwise provided in any special conditions applying to specific services
provided by the Bank.
Article
2: Duty of care of the Bank
The Bank
shall exercise due care when providing services. In its provision of services
the Bank shall take the Customer’s interests into account to the best of its
ability, on the understanding that the Bank is not obliged to make use of
non-public information known to the Bank, including information which may affect
prices.
Article
3: Use of the services of third parties
The Bank
shall be entitled to use the services of third parties in executing orders of
the Customer and in performing other agreements with the Customer and also to
place goods and/or documents of title of the Customer in the custody of third
parties in the name of the Bank.
The Bank
shall exercise due care in selecting such third parties. The Bank shall not be
liable for shortcomings of such third parties, if it can prove that it exercised
due care in selecting them. If in such case the Customer has suffered damage,
the Bank shall in any case assist the Customer as much as possible in remedying
such damage. This shall leave intact any liability of the Bank under Article
10.
Article
4: The Bank or third parties as the other party
In
executing orders for the purchase and sale of goods and/or documents of title,
the Bank shall be entitled, at its option, to deal either with itself or with
third parties as the other party.
Article
5: Risk of dispatches
If the
Bank, by order of the Customer, dispatches moneys or securities to the Customer
or to third parties, such dispatch shall be at the Bank’s risk.
If the
Bank, by order of the Customer, dispatches other goods and/or documents of title
to the Customer or to third parties, such dispatch shall be at the Customer’s
risk.
Article
6: Statement of address by the Customer
The
Customer shall inform the Bank of the address to which documents intended for
him are to be sent. The Customer shall give written notice of any change of
address .
Article
7: Orders etc. intended for several branch-offices
Orders,
statements and communications from the Customer to the Bank must be addressed
separately to each of the branch-offices of the Bank for which these orders,
statements and communications are intended, unless the Bank has expressly
designated another address. If written orders, statements and communications are
intended for a branch-office of the Bank - expressly stated by the Customer -
other than the branch-office that received these documents, the latter
branch-office shall forward such documents.
Article
8: Changes in the power of representation of the Customer
If the
Customer has granted powers of representation to a person, the Customer shall
notify the Bank in writing of any change in or withdrawal of such powers
notwithstanding their entry in public registers, in default of which
notification such change or withdrawal cannot be invoked against the
Bank.
Article
9: Use of forms
The
Customer must see to it that orders, statements and communications to the Bank
are clear and that they contain the correct data. Orders for transfers shall be
executed by the Bank on the basis of the account number stated by the Customer
and the Bank is not obliged to verify the accuracy of the information stated in
the order. Forms must be fully completed by the Customer. Other data carriers or
means of communication approved by the Bank must be used by the Customer in
accordance with the directions of the Bank.
The Bank
shall be entitled not to execute orders if such orders have been given without
the use of forms drawn up or approved by the Bank or of other data carriers or
means of communications approved by the Bank. The Bank may require
communications to be made in a specific form.
Article
10: Execution of payment orders
The Bank
guarantees the proper execution within a reasonable time of correctly given
orders for the transfer of amounts in Dutch guilders, provided that such orders
can be processed entirely within the giro-circuit in the Netherlands of the
banks associated with the ’Bankgirocentrale’ (Bank Giro Centre).
Any
shortcomings in the execution of such payment orders will make the Bank liable
to indemnify the Customer for the damage suffered as a result up to a maximum of
five hundred Dutch guilders per payment order, without prejudice to the
provisions of the second paragraph of article 31 and without prejudice to the
Bank’s obligation - unless otherwise agreed to see to it that these payment
orders will as yet be executed correctly and without further costs. The Bank
shall not invoke the aforesaid maximum of five hundred guilders if in an
individual case it would not be reasonable and fair to do so.
If, in
case of correctly given payment orders which cannot be processed entirely within
the said giro-circuit, the payee’s account as specified by the Customer should
fail to be credited, the Bank shall upon the Customer’s request and free of
charge make inquiries and try to achieve that the credit entry will be made yet.
Within four weeks of receipt by the Bank of such request, the Bank shall furnish
the Customer with a written statement concerning the results of the inquiries,
stating the relevant data.
If the
Customer wishes payment orders as referred to in the first paragraph of this
article to be executed by or on a specific date, such execution must be
expressly agreed upon with the Bank.
The above
provisions do not prejudice the Bank’s authority not to execute payment orders
if the balance of the account does not allow such execution or if such execution
is barred by an attachment of the Customer’s account or by other comparable
circumstances.
Article
11: Evidential force of the Bank’s records
An
abstract from the Bank's records signed by the Bank shall serve as prima facie
evidence vis-à-vis the Customer, subject to rebuttal evidence produced by the
Customer.
Article
12: Examination of bank documents
If the
Bank finds that it has made an error or a mistake in any confirmation, statement
of account, note or other statement to the Customer, the Bank shall be bound to
notify the Customer as soon as possible.
The
Customer is obliged to examine the confirmations, statements of account, notes
or other statements sent to him by the Bank immediately upon receipt. In
addition, the Customer must check whether orders given by him or on his behalf
have been executed correctly and completely by the Bank. When finding any
inaccuracy or incompleteness, the Customer shall notify the Bank as soon as
possible.
In the
above cases the Bank shall be obliged to rectify its mistakes and
errors.
Article
13: Approval of bank documents
If the
Customer has not contested the contents of confirmations, statements of
accounts, notes or other statements of the Bank to the Customer within twelve
months after such documents can reasonably be deemed to have reached the
Customer, the contents of such documents shall be deemed to have been approved
by the Customer. If such documents contain any arithmetical errors, the Bank may
and shall rectify such errors, even after the expiry of the said twelve months’
period.
Article
14: Loss etc. of forms
The
forms, data carriers and means of communication which the Bank has put at the
disposal of the Customer, must be kept and handled by the Customer with
care.
If the
Customer becomes aware of any irregularity such as loss, theft or misuse with
respect to these forms, data carriers or means of communication, he shall inform
the Bank without delay. Up to the moment this information is received by the
Bank, the consequences of the use of these forms, data carriers or means of
communication shall be for the account and at the risk of the Customer, unless
the Customer proves that blame can be imputed to the Bank. After the said moment
such consequences shall be for the account and at the risk of the Bank, unless
the Bank proves that intent or gross negligence can be imputed to the
Customer.
Any
communication concerning irregularities must be confirmed by the Customer to the
Bank in writing.
If notice
of termination of the relationship between the Customer and the Bank has been
given, the Customer shall return to the Bank any unused forms as well as other
data carriers and means of communication put at his disposal by the
Bank.
Article
15: Crediting and debiting of interest
At such
times as will be determined by the Bank but at least once a year, the Bank shall
credit or debit, as the case may be, the current interest to the account of the
Customer. If the time at which the current interest is credited to the said
account does not coincide with the time at which the current interest is debited
to such account, the Bank shall inform the Customer in writing.
Article
16: Commissions and fees
The Bank
is authorized to charge commissions and fees to the Customer for its services.
If the amount of these commissions and fees has not been previously agreed upon
between the Customer and the Bank, the Bank shall charge its usual commissions
and fees. The Bank shall see to it that information about this is in any case
available at its branch-offices.
Article
17: Credit entries under reserve
Each
credit entry is made subject to the proviso that, if the Bank is still to
receive the counter-value for such entry, such counter-value will timely and
duly come into its possession. Failing this, the Bank shall be entitled to
reverse the credit entry. If the Customer’s guilder account has been credited on
account of documents denominated in a foreign currency or on account of other
items which, as far as the guilder-equivalent is concerned, arc subject to
fluctuations in value, the reversal shall be effected by making a debit entry up
to the amount for which the Customer could have acquired such foreign currency
or such items on the day of the reversal.
Article
18: Lien
The Bank
shall have a lien on all goods, documents of title and securities which are in
the possession or will come into the possession of the Bank or of a third party
on the Bank’s behalf from or for the benefit of the Customer on any account
whatsoever and on all shares forming part of a collective deposit within the
meaning of the Securities Giro Administration and Transfer Act (’Wet giraal
effectenverkeer’) which are in the possession or will come into the possession
of the Bank, as security for all and any present and future debts owing by the
Customer to the Bank on any account whatsoever. In its capacity as the
Customer’s attorney the Bank is authorized to pledge all present and future
debts owing by the Bank to the Customer on any account whatsoever to the Bank
itself as security for all and any present or future debts receivable by the
Bank from the Customer on any account whatsoever.
If the
Customer wishes to dispose of part of the collateral, the Bank shall release
such part of the collateral provided that the balance of the collateral
remaining after such release offers sufficient coverage for all current or
future debts receivable by the Bank from the Customer.
The Bank
shall not be entitled to sell the collateral unless the Customer’s debt to the
Bank has become due and payable. In addition, the Bank shall not sell the
collateral until the Customer is in default. The Bank’s right to sell the
collateral is limited to the extent of Customer’s debt.
After the
Bank has exercised its right to sell collateral, it shall give the Customer
written notice thereof as soon as possible.
Article
19: Right of set-off
The Bank
shall at all times be entitled to set off all and any debts receivable by the
Bank from the Customer, whether or not due and payable and whether or not
contingent, against any debts owed by the Bank to the Customer, whether due and
payable or not, regardless of the currency in which such debts arc
denominated.
If,
however, the Customer’s debt to the Bank or the Bank’s debt to the Customer is
not yet due and payable -and provided that the Customer’s debt and the Bank’s
debt are expressed in the same currency - the Bank shall not exercise its right
of set-off except in the event of an attachment being levied upon the Bank’s
debt to the Customer or recovery being sought from such debt in any other way,
or in the event that a right in rem is created thereon or the Customer assigns
the Bank’s debt to a third party by singular title.
Debts
expressed in foreign currency shall be set off at the rate of exchange
pertaining on the day of set-off.
If
possible, the Bank shall inform the Customer in advance that it will exercise
its right of set-off.
Article
20: Giving security
Upon
demand the Customer shall provide adequate security for the fulfilment of his
existing obligations towards the Bank. If the security that has been given is no
longer adequate, the Customer is bound to supplement or replace such security
upon demand. Any such demand shall be made in writing and shall specify the
reason for it. The extent of the security so demanded must bear a reasonable
proportion to the amount of the relative obligations of the
Customer.
Article
21: Immediately due for payment
If the
Customer has been given notice of default and still fails to perform any of his
obligations towards the Bank, the Bank shall be entitled to make the Customer’s
debts to the Bank immediately due and payable by giving notice. Such notice
shall be made in writing and shall specify the reason for the giving
thereof.
Article
22: Custody of securities
The
custody of securities which form part of a collective deposit within the meaning
of the Securities Giro Administration and Transfer Act (’Wet giraal
effectenverkeer’) held by the Bank shall be subject to the provisions of this
Act and to the provision set forth in the next sentence. To the extent these
securities are susceptible of drawings by lot, the Bank shall see to it that
each time a drawing takes place, there shall be allotted to each Customer
individually an amount of securities - designated for redemption - corresponding
to his entitlement.
The
custody of all other securities is assumed by ABN AMRO Effectenbewaarbedrijf
N.V. or by ABN AMRO Global Custody N.V. to the extent that they accept such
custody under their own conditions. Such custody shall be subject to the "Rules
for the Custody of Securities" and the "Rules for the Custody of Bearer
Securities or Securities other than Bearer Securities which are located abroad",
respectively.
Article
23: Use of the services of third parties for the custody of
securities
The
securities of the Customer which the Bank has placed in the custody of third
parties pursuant to article 3, shall form part of the aggregate of securities
deposited in the name of the Bank with such third parties in one of the Bank’s
general securities deposits. The Bank shall not be bound to cause the serial
numbers of these securities to be recorded separately for each individual
Customer.
Article
24: Administration of securities deposits
The Bank
is charged with the administration of the Customer’s securities deposit to the
extent that the securities deposit consists of securities admitted to the
official quotation on the Official Market or the Parallel Market of the
Amsterdam Stock Exchange.
The
duties incidental to this administration include inter alia the duty to collect
interests, redemption payments and dividends, to exercise or realize
subscription rights, to obtain new coupon or dividend sheets, to effect
conversions and to lodge securities for the Purpose of meetings.
If,
pursuant to article 3, the Bank has placed securities of the Customer in the
custody of third parties, such third parties shall be charged with the duties
incidental to the administration of these securities, without prejudice to the
Bank’s liability under article 3 and without prejudice to the Bank’s obligation
to pass on to the Customer any amounts received by the Bank from such third
parties for the benefit of the Customer on account of interest, redemption
payments, dividend or on any other account.
Article
25: Securities not subject to lien
The lien
referred to in article 18 does not extend to securities deposited with the Bank
exclusively for specific purposes such as the collection of interests,
redemption payments and dividends, obtaining new coupon or dividend sheets,
effecting conversions or attending meetings.
Article
26: Period of validity of stock exchange orders; reduction of the
limit
The Bank
will keep stock exchange orders on its books for a period of time to be
determined by the Bank.
As from
the day on which securities are quoted ex-dividend or ex-rights of subscription,
any limit set by the Customer for the purchase or sale of such securities shall
be reduced by the arithmetical value of the dividend or the subscription right,
as the case may be, but only if such reduction of the limit arises from the
regulations or customs applying to the securities in question.
Article
27: Defective securities
The Bank
shall be liable for any defects of securities acquired by the Customer as a
result of transactions concluded by the Bank with itself as the other party, or
as the result of transactions in securities admitted to the official quotation
on the official Market or the Parallel Market of the Amsterdam Stock
Exchange.
If
pursuant to the above provision the Bank is liable, it shall, at the Customer’s
option, either as yet deliver securities of the same kind but without defects or
refund the amount charged together with interest thereon, in both cases against
return of the securities originally acquired by the Customer.
Article
28: Costs
The costs
of legal assistance incurred by the Bank in court proceedings or in proceedings
before a consumer disputes committee on account of a dispute between the
Customer and the Bank shall be for the account of the Customer or for the
account of the Bank, as the case may be, if and to the extent that the decision
or award of such court or such committee includes an award of
costs.
Any costs
the Bank has to incur in or out of court if the Bank becomes involved in legal
proceedings or disputes between the Customer and a third party, shall be for the
Customer’s account.
Without
prejudice to the above provisions all other costs arising for the Bank from the
relationship with the Customer shall be for the Customer’s account within the
limits of reasonableness.
Article
29: Laws of the Netherlands; disputes
The
relations between the Customer and the Bank shall be governed by the laws of the
Netherlands.
Disputes
between the Customer and the Bank shall be brought before the competent
Netherlands Court, unless the law or international conventions contain a
mandatory provision to the contrary.
Notwithstanding
the foregoing, if the Bank is acting as the plaintiff the Bank shall be entitled
to bring disputes before the foreign court having competence to decide disputes
involving the Customer. Notwithstanding the foregoing, if the Customer is acting
as the plaintiff the Customer shall be entitled to refer disputes to any
Consumer Disputes Committee or Committee of Good Offices to whose competence the
Bank has submitted, within the limits of the rules governing the Committee in
question.
Article
30: Termination of the relationship
Both the
Customer and the Bank may terminate the relationship between the Customer and
the Bank. If the relationship is terminated by the Bank it shall, upon request,
inform the Customer of the reason for such termination.
After
notice of termination has been given, the existing individual agreements between
the Customer and the Bank shall be settled as soon as possible but subject to
the applicable time periods. During such settlement the present General
Conditions shall remain in full force.
Article
31: Liability of the Bank
Without
prejudice to the other provisions of these General Conditions the Bank shall be
liable if any shortcoming in the performance of any obligation vis-à-vis the
Customer is imputable to the Bank or attributable to the Bank by virtue of the
law, any legal act or generally prevailing views.
In any
case, insofar as liability is not already excluded by operation of the law, the
Bank shall not be liable if a shortcoming of the Bank is the result
of:
-international
conflicts;
-violent
or armed actions;
-measures
taken by any domestic, foreign or international government
authority;
-measures
taken by any supervisory authority;
-boycotts;
- labour
disturbances among the staff of third parties or the Bank's own
staff;
- power
failures or breakdowns in communication links or equipment or software of the
Bank or of third parties.
Should
any circumstance referred to in the preceding paragraph occur, then the Bank
shall take such measures as may reasonably be required from it in order to
reduce the resulting adverse effects for the Customer.
Article
32: Deviation from the General Conditions
Any
deviation from the present General Conditions shall be laid down in writing.
Deviations which have not been laid down in writing may be proved by the parties
by all means of evidence admitted by the law.
Article
33: Amendment of and additions to the General Conditions
Amendments
of and additions to the present General Conditions shall not take effect until
after representative Dutch consumers' and employers' organizations have been
consulted about such amendments and additions and also about the manner in which
the Customer will be notified of their contents. Such notification will in any
case have to be made before the expiry of the thirty days' period referred to
below.
The
amendments and additions adopted after the said consultations shall be filed at
the Registrar's office of the District Court of Amsterdam. Such filing shall be
announced by a publication in at least three daily newspapers with national
circulation. The amendments and additions which have been filed in this manner
shall be binding upon the Bank and the Customer as of the thirties" day after
the date of the abovementioned publication.
A copy of
these General Conditions has been filed by the Netherlands Bankers' Association
at the Registrar's office of the District Court of Amsterdam on 22 December
1995.
ABN AMRO
Bank N.V.
Rules
for the custody of securities
1 All securities which are not
included in a collective deposit within the meaning of the Wet giraal
effectenverkeer (Securities Giro Administration and Transfer Act), and which in
the Netherlands are in or will come in the possession of ABN AMRO Bank N.V.,
hereinafter referred to as "the Bank", for the purpose of being kept in custody
for a Customer, shall be placed by the Bank on behalf of and in the name of the
Customer concerned, in the custody of ABN AMRO Effectenbewaarbedrijf N.V.,
hereinafter referred to as "the Depositary", and be kept in custody for the
Customer by the Depositary.
2 Although the Depositary -
except in cases where the securities would have been individualized - holds the
legal title to the securities, the Depositary may not exercise any rights
whatsoever attaching to the ownership of the securities, except such rights of
ownership as arise from involuntary loss of possession The benefits and burdens
resulting from or connected with the legal title to or, as the case may be, the
ownership of the securities placed in the Depositary’s custody shall accrue to
or, as the case may be, be for the account of the Customer, so that the
Depositary will not incur any economic or commercial risk in respect of the
legal title to the securities.
3 The Depositary shall not
entrust the custody to third parties, except when the securities are placed, in
the Depositary’s name, in the custody of a third party appointed for this
purpose by the Stichting Administratiekantoor VABEF (Administration Office VABEF
Foundation) and provided that such custody is governed by rules as laid down by
this Foundation.
4 The Bank shall remain
charged with the duties entailed by the administration of the securities,
including the collection of interests and dividends, realising subscription
rights, obtaining new coupon or dividend sheets, effecting conversions, lodging
securities for the purpose of meetings, as well as executing orders for the sale
of securities. Insofar as such actions require the surrender to the Bank of the
securities concerned or parts thereof, the Depositary shall be bound to put the
said securities or parts thereof at the Bank’s disposal.
5 The Depositary shall at all
times be bound to record the serial numbers of the securities, on the
understanding that: a in
respect of premium bonds and other securities with special rights attached to
specific numbers, the Depositary shall at all times record the serial numbers
separately for each individual Customer; b In respect of securities -
other than those referred to under a. - which are subject to drawings by lot,
the Depositary shall, well in advance of the time at which a drawing is to take
place, record the serial numbers or parts of serial numbers and/or other
characteristics which are relevant in case of a drawing, for each individual
Customer separately; c
the Depositary shall be bound to notify the Customer of the serial
numbers, parts of serial numbers and/or characteristics referred to under a. and
b. The Depository shall have the right, however, to individualize securities
other than those referred to under a. and b. by recording the serial numbers for
a specified Customer, and to undo such individualization, whenever it believes
that it is in the interest of the Customer to do so.
6 Insofar as the Depositary
has not individualized the securities for Customers, the Bank, being irrevocably
authorized by the Customer, is entitled to pledge to itself - also on the
Customer’s behalf - the Customer’s rights to delivery of the securities held in
custody by the Depositary, for the purpose of securing all present or future
claims of the Bank on the Customer, whether or not due and payable or contingent
- which pledging also includes the exercise of the right to delivery - and to
inform the Depositary of such pledging. If the Bank should wish to exercise its
rights of pledge, the Depositary - upon the Bank’s request -shall be bound to
deliver the securities to the Bank, where necessary after individualization.
Insofar as the Depositary individualizes securities for Customers, these
securities shall be pledged to the Bank pursuant to the above provision, the
Depositary functioning as a third party pledgee.
7 If securities, of which the
serial numbers have not been recorded so as to identify them as being the
property of specific Customers, are destroyed or otherwise lost by the
Depositary or the Bank, as the case may be, for reasons for which neither the
Depositary nor the Bank can be held liable, the deficiency in question shall be
apportioned by the Depositary per class of securities among those Customers who,
at the moment of the destruction or loss, had a claim on the Depositary for the
delivery of securities of the relative class of securities, pro rata to the
amounts of their claims at the said moment. In this case the Depositary and/or
the Bank are under no other obligation than to take measures to cause the
securities referred to in the preceding paragraph to be replaced by duplicates
or to take investigation measures with regard to those securities. If, in such a
case, it is impossible or possible only with delay, to restore the securities to
the Depositary’s control or to have them replaced by duplicates, neither the
Depositary nor the Bank shall be liable for the consequences. The apportionment
referred to in the first paragraph shall be partly or wholly undone in
proportion to the number of securities of the same class received back by the
Depository as a result of the measures referred to in the preceding paragraph.
The expenses entailed by the actions referred to in the second paragraph may be
apportioned on the same basis as laid down above in respect of the missing
securities referred to in the first paragraph. If it is impossible to establish
the exact time of the destruction or loss, the apportionments referred to above
shall be made among the Customers who, on the day before the discovery of the
deficiency after office closing time, had a claim for delivery of securities
belonging to the class in question. As soon as the Depositary discovers that an
event has taken place which might cause a deficiency as referred to in the first
paragraph of this article, the Depositary shall have the right to refuse
delivery and transfer of securities until such deficiency and also the amount of
the apportionment have been determined, which shall be done by the Depositary
with the utmost speed, and the outcome of which shall be communicated by the
Depositary without delay to all Customers involved in the
apportionment.
8 The Bank shall debit the
Customer’s account on its books for the custody fee due by him
9 The Bank guarantees to the
Customer that the obligations of the Depositary vis-à-vis the Customer will be
properly fulfilled.
10 Amendments of and additions
to these rules, provided they are made jointly by the Bank and the Depositary
(the latter requiring the approval of the Stichting Administratiekantoor VABEF)
shall also be binding on the Customer commencing one month after such amendments
and additions have been widely publicized in at least three much read Dutch
daily newspapers. As soon as possible the Bank and the Depositary shall send
notice of these amendments and additions to the address of the Customer known to
them. The provisions of paragraphs 2 and 9, however, are not capable of
amendment.
11 In addition, the conditions
regulating the relationship between the Customer and the Bank shall apply
correspondingly to the custody, insofar as the above Rules do not differ from
these conditions.
ABN AMRO
Bank N.V.
ABN AMRO
Effectenbewaarbedrijf N.V.
Rules
ABN AMRO Global Custody N.V.
1 ABN AMRO Bank N.V.,
hereinafter referred to as the ’Bank’, and ABN AMRO Global Custody N.V.,
hereinafter referred to as ’AAGC’, shall cause all Rights (as hereinafter
defined) that are held for a Customer pursuant to the relationship between the
Customer and the Bank’s branch offices in the Netherlands, to be held
exclusively by AAGC and to be exercised by AAGC for the benefit of the Customer,
the foregoing insofar as reasonably possible in respect of the relevant Right.
For the purposes hereof, ’Rights’ are all rights that are accepted as such by
AAGC that the Bank and/or AAGC hold or holds in its or their own name for the
benefit of Customers with respect to (i) bearer securities that are held outside
the Netherlands, and (ii) non-bearer securities. For the purposes hereof,
’Securities’ are shares, bonds, options, warrants and all other tangible and
intangible property that is accepted as such by AAGC.
2 AAGC shall have obligations
with respect to the Rights held by it for the Customer only vis-à-vis the
Customer. Only the Customer is entitled to give instructions to AAGC with
respect to the Rights held for him. AAGC is not entitled to exercise the Rights
other than in accordance with the instructions of the Customer and with these
rules. The Customer shall give his instructions concerning the Rights to the
Bank, which shall be acting on behalf of the Customer vis-à-vis
AAGC.
3 AAGC shall make use of third
parties to the extent it deems such use necessary in connection with its duties
to its Customers. This use may include the placing of Securities in the custody
of third parties and the obtaining of rights with respect to Securities through
third parties. The Bank shall be entrusted with the selection of such third
parties. The Bank shall not be liable for any shortcomings of such third
parties, if it can prove that is has exercised due care in selecting these third
parties. Should the Bank not be liable for the shortcomings of these third
parties and should the Customer have suffered damage, the Bank shall in any case
assist the Customer as much as possible in repairing his damage. AAGC shall not
be liable for any shortcomings of such third parties, except in the event of
wilful misconduct or gross negligence on the part of AAGC.
4 The benefits and burdens
resulting from or connected with the Rights shall accrue to or, as the case may
be, be for the account of the Customer, so that AAGC will not incur any economic
or commercial risk in respect of the Rights.
5 The Bank is charged with the
duties entailed by the administration of the Rights held by AAGC for the benefit
of the Customer, including the collection of interests and dividends, realizing
subscription rights, obtaining new coupon or dividend sheets, effecting
conversions, lodging securities for the purpose of meetings as well as executing
orders for the sale of securities, and with the giving (directly or indirectly)
of instructions relating to these duties to correspondents. To the extent
possible AAGC shall enable the Bank to perform these duties on behalf of AAGC
when necessary. Except in the event of wilful misconduct or gross negligence on
the part of AAGC, AAGC shall have no liability in connection with these
duties.
6 Neither the Bank nor AAGC
shall be under an obligation to record the serial numbers of the Rights or the
Securities corresponding therewith, albeit that with regard to Rights with
respect to Securities with special rights attached to specific numbers, such
numbers shall be recorded separately for the Customer, and that to the extent
the Rights or the Securities corresponding thereto are subject to drawings by
lot, the Bank and AAGC shall ensure, each time a drawing takes place, that an
amount or number of Rights or Securities corresponding therewith shall be
allotted to the Customer.
7 The Customer shall be under
an obligation to pledge to the Bank, whenever the Bank deems such pledge to be
necessary, all present and future rights the Customer has or may acquire from
time to time vis-à-vis AAGC concerning Rights that are held for the benefit of
the Customer, including the rights to receive payment of the amounts received in
connection with the Rights, for the purpose of securing all present or future
claims of the Bank on the Customer, whether or not due and payable or
contingent.
The
Customer hereby irrevocably authorizes the Bank to create, on behalf of the
Customer, a right of pledge on the rights of the Customer vis-à-vis AAGC which
are referred to in the first paragraph of this Article, whenever the Bank deems
the creation of such right of pledge to be necessary, and to notify AAGC of such
right of pledge. The Bank is authorized to receive notification of such right of
pledge on behalf of AAGC.
For so
long as the Bank has not made a statement to the contrary, it is deemed to
release, from time to time, the right of pledge, if and to the extent necessary
to enable AAGC to honour the Customer's rights as if no pledge existed. From the
moment the Bank informs AAGC that it no longer agrees to the rights of the
Customer being honoured, no release of the right of pledge shall be assumed and
AAGC shall refrain from honouring the rights of the Customer on the ground of
the right of pledge of the Bank. The Bank shall not use this right
unreasonably.
The Bank
may enforce its rights as holder of a right of pledge notwithstanding the
provision of article 2 hereof.
8 AAGC is under an obligation
with respect to each type of Right to ensure at all times that the Rights of
that type that are held by it conform in their contents and, where applicable,
in their amount, with the rights of Customers vis-à-vis AAGC that correspond
thereto. In the event that, for reasons that are not the result of wilful
misconduct or gross negligence on the part of AAGC, the Rights held by AAGC of a
specific type fall short compared to the rights corresponding thereto of
Customers vis-à-vis AAGC, the deficiency in question shall be apportioned by
AAGC among those Customers who held such rights vis-à-vis AAGC at the close of
business on the day in the Netherlands preceding the day of discovery of the
deficiency by the Bank in the Netherlands, pro rata to the amounts of their
rights at the said moment.
In this
case, AAGC is under no other obligation than to take measures to remove the
cause of the deficiency to the extent possible. In particular, AAGC shall not be
under an obligation to acquire Rights to eliminate the deficiency. The expenses
incurred for the purpose of removing the cause of the deficiency shall be
apportioned in the manner set forth in the preceding paragraph for a
deficiency.
The
apportionment referred to in the second paragraph shall be partly or wholly
undone to the extent that the deficiency is reduced as a result of the measures
taken by AAGC. As soon as AAGC discovers that an event has taken place which has
caused or might cause a deficiency, AAGC shall have the right to refuse to
execute instructions regarding the Rights of the relevant type, until it has
been established that there shall be no deficiency or the deficiency has been
apportioned. In such an event, AAGC shall act with the utmost speed and shall
immediately inform the Customers involved of any apportionment.
9 The Bank shall debit the
Customer's account on its books for the amounts due by the Customer to the Bank
and AAGC for the performance of their duties hereunder.
10 The Bank guarantees to the
Customer that the obligations of AAGC vis-à-vis the Customer will be properly
fulfilled.
11 Amendments and additions to
these rules, provided they are made jointly by the Bank and AAGC, shall also be
binding on the Customer commencing one month after such amendments and additions
have been publicized in at least three Dutch daily newspapers with a wide
circulation and two non-Dutch financial newspapers with a wide circulation. The
Bank and AAGC shall, as soon as possible, send notice of these amendments and
additions to the address of the Customer known to them. The provision of article
10 hereof, however, is not capable of amendment.
12 In addition, the general
conditions regulating the relationship between the Customer and the Bank as
filed by the Netherlands Bankers' Association at the Registrar's Office of the
Amsterdam District Court on December 22, 1995, as amended from time to time,
shall apply correspondingly to the relationship between the Customer on the one
hand and the Bank and AAGC on the other, insofar as the above rules do not
differ from these conditions.
13 If and to the extent that
any provision contained herein cannot be invoked on the ground of its
unreasonably burdensome character or on grounds of reasonableness or fairness,
such provision shall have the effect of a provision that would be valid, the
purpose of which conforms to the first mentioned provision to such an extent
that it must be assumed that such provision would have been included in these
rules if the first mentioned provision had been omitted in view of its
invalidity.
14 These rules and the
activities of the Bank and AAGC governed hereby shall be governed by Netherlands
law. Disputes concerning these rules and such activities shall be brought before
the competent Court in Amsterdam. Notwithstanding the foregoing, the Customer
shall, if acting as the plaintiff, be entitled - subject to the respective rules
of the Geschillencommissie Bankbedrijf (Complaints Committee for Banking
Business) and the Klachtencommissies Effectenbedrijf en Optiebeurs (Committees
of Good Offices of the Amsterdam Stock Exchange and the Options Exchange) - to
bring disputes before these committees. Notwithstanding the foregoing the Bank
and AAGC, if acting as the plaintiff, are entitled to bring a dispute not before
the Amsterdam Court, but before the foreign court having jurisdiction over the
Customer.
ABN AMRO
Bank N.V.
ABN AMRO
Global Custody N.V.