Exhibit (b)(4)
LOAN AGREEMENT
BETWEEN
▇▇▇▇▇▇▇ B.V.
AND
PLATFORM PURCHASER, INC.
MAY *, 2000
CONTENTS
page
Clause 1 - Subject *
Clause 2 - Payment of Principal *
Clause 3 - Interest *
Clause 4 - Repayment *
Clause 5 - Costs
Clause 6 - Payment *
Clause 7 - Breach and damages *
Clause 8 - General *
Clause 9 - Governing law; competent court *
SCHEDULES
Schedule 1 - Exchangeable Loan Agreement -
LOAN AGREEMENT
THE UNDERSIGNED:
1. Platform Purchaser, Inc., a legal entity incorporated under the law of
The State of Georgia, [with registered office in **, **], (the
"BORROWER"),
and
2. ▇▇▇▇▇▇▇ B.V., a private company with limited liability, with corporate
seat in Amsterdam, and office address at Amsterdam, the Netherlands,
("LENDER"),
WHEREAS:
a. The Lender will enter or has entered into an exchangeable loan agreement
with Entero B.V., a wholly-owned subsidiary of ING Bank Corporate
Investments B.V. on the date hereof (the "EXCHANGEABLE LOAN AGREEMENT") a
copy of which is attached hereto as SCHEDULE 1. The aggregate principal
of the loan (the "LOAN") to be made under the Exchangeable Loan Agreement
(the "LOAN PRINCIPAL") shall be Euro [--]
([EURO] --) (the "LOAN PROCEEDS"),
b. The purpose of the issuance of the Loan is to lend the Loan Proceeds to
the Borrower.
[c. **.]
DECLARE TO HAVE AGREED AS FOLLOWS:
SUBJECT
CLAUSE 1
The Lender agrees to lend to the Borrower, and the Borrower agrees to borrow
from the Lender, an amount (the "PRINCIPAL") equal to the Loan Principal.
PAYMENT OF PRINCIPAL
CLAUSE 2
2.1. The Lender shall pay the nominal amount of the Principal to the Borrower,
(the "PROCEEDS").
The Proceeds shall be made available to the Borrower on the same day on
which the Lender receives the Loan Proceeds.
2.2. If the Lender fails to perform clause 2.1, it shall not be in default or
be under any obligation to pay damages, unless the failure is due to its
own fault.
INTEREST
CLAUSE 3
3.1 The Borrower shall pay interest to the Lender.
3.2. The interest percentage payable on the Principal shall be equal to the
interest payable on the Loan Principal (the "LOAN INTEREST") increased by
0.2%. Interest shall be calculated on the basis of the actual number of
days elapsed and a year of 360 days.
3.3. Interest shall be paid two business days before each day on which the
Lender has to pay the corresponding Loan Interest Amount under the
Exchangeable Loan Agreement.
REPAYMENT
CLAUSE 4
4.1. The Borrower shall repay the Principal to the Lender two business days
before the day on which the Lender must repay the Loan Principal under
the Exchangeable Loan Agreement.
4.2. Clause 4.1 shall apply irrespective of whether the Lender has to repay
the Loan Principal on the due date or, for whatever reason, early,
pursuant to article 10.1 of the Exchangeable Loan Agreement or otherwise.
4.3. To the extent that the Lender has to pay interest, premiums or other
additional charges upon repayment of the Loan Principal or a part thereof
or otherwise in connection with the Loan, the Borrower shall pay to the
Lender on the second day before the due date thereof an equal amount of
interest, premium and additional charges.
COSTS
CLAUSE 5
The Borrower shall reimburse the Lender for all costs, including taxes and
duties, incurred by the Lender in connection with this agreement. To cover the
costs, including taxes and duties, incurred by the Lender in connection with the
Loan or this agreement, the Borrower shall pay the Lender within five business
days after receiving a request for payment.
PAYMENT
CLAUSE 6
6.1. All payments under this agreement shall be made exclusively by way of
transfer to [account no. - ] or such other bank or giro account in the
Netherlands as most recently notified in writing to the debtor by the
creditor, such notification to be effected no later than ten days before
payment.
6.2. The amount due must be credited to the correct account no later than
10.00 a.m. (Amsterdam time) on the due date with same day value.
6.3. Each debt under this agreement shall be paid in its full nominal amount.
Each payment must be effected in the currency in which the debt is
expressed. The costs of making a payment shall be for the account of the
Borrower.
6.4. If any statutory provision requires the Borrower to withhold any amount
from a payment, it shall, upon making the payment, pay such additional
amount as is necessary to ensure that the Lender receives the full
nominal amount of the payment. The additional payment shall be for the
account of the Borrower.
BREACH AND DAMAGES
CLAUSE 7
7.1. If the Borrower fails to perform any obligation under this agreement, it
shall be liable to compensate the Lender for all damage suffered by the
latter.
7.2. The damages to be paid by the Borrower shall include:
a. if the Borrower fails to perform an obligation to pay a money
debt, the actual financial loss resulting therefrom; the payment
of such loss shall replace the statutory interest;
b. all costs incurred by the Lender to obtain payment in or out of
court.
7.3. Failure to timely make any payments hereunder or otherwise perform any
obligations hereunder shall constitute an "Event of Default" under this
agreement as a result of which all amounts outstanding together with
interest, fees and charges payable shall immediately become due and
payable.
GENERAL
CLAUSE 8
Clauses 11, 12, 13 and 14 of the Exchangeable Loan Agreement shall apply MUTATIS
MUTANDIS to this agreement.
GOVERNING LAW; COMPETENT COURT
CLAUSE 9
9.1. This agreement shall be governed exclusively by Dutch law.
9.2. The provisions of clause 17.2 of the Loan Agreement shall apply MUTATIS
MUTANDIS to this agreement.
9.3. Clauses 9.1 and 9.2 shall also apply to agreements which are connected
with this agreement, unless the relevant agreement expressly provides
otherwise.
CONFIDENTIALITY
CLAUSE 10
10.1. Each of the Borrower and the Lender (each a "PARTY") undertakes to the
other Party not to disclose the provisions of this agreement unless with
the express written consent of the other Party.
10.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to the other Party and their respective affiliates or their
activities or products, including information concerning suppliers and
customers and other relationships, ("CONFIDENTIAL INFORMATION"), unless
the performance or enforcement of this agreement so requires.
10.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 10.2 only if the third party is under an obligation
and the third party has committed itself in writing to use or disclose
the Confidential Information only in accordance with this clause. Each
Party shall store Confidential Information, or procure its storage, in a
prudent manner, and shall ensure that no third party obtains knowledge of
it in violation of this clause.
10.4. This clause shall not apply to the extent that the Party in question is
under an obligation to use or disclose information pursuant to the law,
arbitral decision a binding decision of a court or another government
authority or any stock exchange. Where possible, however, the disclosing
Party shall consult with the other Party prior to disclosure about the
form and contents of the disclosure.
10.5. If the agreement ends, any right of any Party to use or disclose
Confidential Information shall also end. The obligations of each Party
under this clause shall, however, continue to exist.
IN EVIDENCE WHEREOF:
this agreement was signed in duplicate in the manner set out below.
1. By ▇▇▇▇▇▇▇ B.V.,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
and
2. By Platform Purchaser, Inc.,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
SCHEDULE 1
EXCHANGEABLE LOAN AGREEMENT
BETWEEN
ENTERO B.V.
AND
▇▇▇▇▇▇▇ B.V.
AND
VEDIOR N.V.
MAY * , 2000
CONTENTS
page
Clause 1 -Subject *
Clause 2 -Conditions precedent *
Clause 3 -Payment of principal *
Clause 4 -Exchange right *
Clause 5 -Interest *
Clause 6 -Repayment *
Clause 7 -Costs *
Clause 8 -Payment *
Clause 9 -Representations, warranties and obligations of the Borrower, VNV and the Lender *
Clause 10 -Accelerated maturity *
Clause 11 -Evidence *
Clause 12 -Rights not exclusive; no forfeiture of rights *
Clause 13 -Binding effect and entire agreement; amendment *
Clause 14 -Assignment of rights and obligations *
Clause 15 -Notices; place of residence *
Clause 16 -General conditions *
Clause 17 -Governing law; competent court *
Clause 18 -Confidentiality *
SCHEDULES
Schedule 1 Stock Transfer Form
Schedule 2 Borrowing Notice
Schedule 3 Exercise notice put option
Schedule 4 Exercise option call option
Schedule 5 General conditions of the Lender
EXCHANGEABLE LOAN AGREEMENT
THE UNDERSIGNED:
1. ▇▇▇▇▇▇▇ B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands (the "BORROWER"),
2. Entero B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands, a wholly-owned subsidiary of ING Bank Corporate Investments
B.V., (the "LENDER"),
3. VEDIOR N.V., a limited liability company under the law of the
Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands ("VNV"),
WHEREAS:
A. ING Bank Corporate Investments B.V., the sole shareholder of the Lender
("CI"), VNV and Vedior Holding B.V. ("VHBV") have entered into an agreement
in principle, dated April 13, 2000, as amended on the date hereof (the
"AIP") pursuant whereto CI has agreed to cause the Lender to provide
financing in the form of equity and loans to the Borrower and Platform
Purchaser Inc., a corporation organised and existing under the laws of the
state of Georgia, United States of America ("PLATFORM"), in order to enable
Platform to acquire shares of common stock in Acsys, Inc., a company under
the laws of the state of Georgia, United States of America ("ACSYS")
pursuant to a tender offer dated April 27, 2000 (the "OFFER") and upon the
Offer having been consummated, Platform is to merge into Acsys in
accordance with and subject to the terms and conditions of an agreement and
plan of merger, dated as of April 16, 2000 (the "PLAN OF MERGER") to which
they each are a party;
B. According to the AIP, the Lender will fund the Borrower with US $ 40
million in debt (the "LOAN") which is exchangeable into depositary receipts
to be issued by Stichting Administratiekantoor van gewone aandelen Vedior,
a "STICHTING" under the law of the Netherlands, with seat in Amsterdam (the
"ADMINISTRATOR"), relating to common shares in the issued share capital of
VNV (the "SHARES");
C. The Lender and the Borrower have further agreed that the Loan will be
expressed in the Euro equivalent of US$ 1 = Euro ---- being a total
principal nominal amount of Euro---.
D. The Works Councils Act ("WET OP DE ONDERNEMINGSRADEN") - to the extent
applicable - has been observed.
E. In addition to this agreement VNV, VHBV and the Lender will enter into a
share exchange agreement the date hereof (the "SHARE EXCHANGE AGREEMENT").
DECLARE TO HAVE AGREED AS FOLLOWS:
SUBJECT
CLAUSE 1
1.1. The Lender agrees to lend to the Borrower, and the Borrower agrees to
borrow from the Lender, the sum of [--] million Euro ([EURO] --) (the
"PRINCIPAL").
1.2. The Borrower shall use the Principal only for granting a loan in the same
nominal principal amount to Platform in accordance with the terms and
conditions of a loan agreement to be entered into by the Borrower, as
lender, and Platform, as borrower (the "ON-LOAN AGREEMENT") immediately
following the execution of this agreement in order to enable Platform to
purchase all shares tendered in the capital stock of Acsys and to make
payments for any non-tendered shares of common stock in accordance with
the Plan of Merger.
CONDITIONS PRECEDENT
CLAUSE 2
2.1. This agreement shall be subject to the conditions precedent
("OPSCHORTENDE VOORWAARDEN") that on or before May 25, 2000 (9 a.m. New
York City time):
a. the Lender shall have received confirmation from the
Borrower and Platform that all conditions to the Offer
shall have been satisfied;
b. the Lender shall have received an opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ in form and substance satisfactory to the Lender
as to the validity, enforceability and binding effect of
the documentation relating to the Offer and the
transactions contemplated by this agreement and the AIP and
the effect thereof on ING Bank N.V. and its group
companies with respect to United States federal law;
c. the Lender shall have received an opinion from ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇ in form and substance satisfactory to the Lender in
respect of validity, enforceability and binding effect of
the documentation relating to the issuance of shares in
Platform and validity, enforceability and binding effect of
the documentation contemplated by the AIP to which Platform
is a party, including a confirmation that such shares will
be fully paid and non-assessable and not encumbered with
any security interest;
d. the Lender shall have received a duly executed copy of a
stock transfer form duly and validly executed by the
Borrower in the form of SCHEDULE 1 hereto (the "STOCK
TRANSFER FORM").
2.2. The conditions referred to in paragraphs a, b ,c and d of clause 2.1
shall cease to apply if the Lender informs the Borrower to that effect on
or before the day referred to in clause 2.1.
PAYMENT OF PRINCIPAL
CLAUSE 3
The Lender shall pay the Principal to the Borrower on or before May 30, 2000, by
transferring such amount to [account info]. The Borrower shall deliver to the
Lender not less than 3 business days prior to the date of funding a duly
executed borrowing notice in the form of SCHEDULE 2.
EXCHANGE RIGHT
CLAUSE 4
4.1 Lender has the right to sell and assign the Loan in its entirety and not
in part to VNV in which event VNV shall have the obligation to acquire
the Loan at a purchase price payable in depository receipts
("CERTIFICATEN") to be issued by the Administrator for Shares, nominal
value NLG 0.05 each (the "RECEIPTS"), at an exchange ratio of one Receipt
per each Euro sixteen ([EURO] 16) of the Outstanding Amount (as
hereinafter defined) so assigned to VNV (the "EXCHANGE PRICE"). The
Lender can exercise this option at any time by sending a notice in the
form of SCHEDULE 3 to the Borrower and VNV, with a copy to the
Administrator. It is expressly agreed that the Lender is only entitled to
exercise this exchange right if simultaneously the Lender or its
affiliate exercises the exchange right pursuant to Clause 1.1 of the
Share Exchange Agreement.
A transfer of the Loan to VNV, in whole and not in part against payment
in the form of Receipts, shall constitute a discharge for the Lender with
respect to its payment of consideration for the Receipts, a discharge for
the Administrator with respect to its obligation to pay up the Shares and
a discharge for VNV in respect of payment of consideration for the
transfer of the Loan.
4.2 If (a) VNV shall (i) split, re-denominate, consolidate or reclassify the
Shares, (ii) alter any right attaching to the Shares (including voting,
dividend and liquidation distribution rights), (iii) issue, redeem or
repurchase Shares or other shares in its share capital against a price
which is less than fair market value at that time (other than the
granting of options and the issuance of shares pursuant thereto to
management and employees in accordance with customary practice), (iv)
engage in a legal merger or demerger, (v) distribute dividends or make
other distributions on the Shares or other shares in its share capital
(other than cash dividends or stock dividends in accordance with
customary practice of VNV), or (vi) perform any other act having an
effect with respect to the Shares similar to the effect of the acts
referred to in (i) to (v), or (b) the Administrator shall take any of the
actions mentioned in (i) to and including (vi) with respect to the
Receipts (except for cash distributions or issuance of depository
receipts in lieu of cash by the Administrator in accordance with
customary practice), VNV shall, within one month after the such action
has been taken, agree with Lender such amendments to this agreement as
are necessary to ensure that the economic and legal effect of Lender's
exchange right remains unaffected by such act.
4.3 If at any time, the price of the Receipts on AEX-stock exchange (or any
successor stock exchange) equals or exceeds Euro twenty ([EURO] 20) for
at least sixty (60) consecutive trading days, the Loan must be exchanged
into Receipts at the Exchange Price by way of assignment as referred to
in clause 4.1.
4.4 During the month of May 2005 (the "EXERCISE PERIOD"), VNV shall have the
right to purchase, and in such event the Lender shall assign to VNV, the
right to repayment of the nominal amount then outstanding under the Loan
(being the principal plus any overdue interest) (the "OUTSTANDING
AMOUNT") at a purchase price equal to the Outstanding Amount. VNV can
exercise this option by sending the notice in the form of SCHEDULE 4 to
the Lender.
4.5 If VNV does not exercise the option in accordance with clause 4.4, the
Lender may during a period of four weeks after the Exercise Period either
(i) exchange the Outstanding Amount for Receipts by assigning the right
to demand payment of the Outstanding Amount to VNV in which event VNV
must acquire the claim for the Outstanding Amount at a purchase price
payable in Receipts at an exchange price equal to the average closing
price ("SLOTKOERS") of the Receipts on AEX stock exchange (or its
successor stock exchange) during the five trading days immediately prior
to the day on which the Lender exercises this right or (ii) sell, assign
and transfer the shares in Acsys pursuant to the Stock Transfer Form and
apply the proceeds against repayment of Loan and distribute the remaining
proceeds to the Borrower. The Stock Transfer Form is to be used
exclusively for the sale, assignment and transfer of the shares
contemplated by this Clause 4.5.
4.6 Each of VNV and the Borrower hereby unconditionally and irrevocably
undertakes to take or omit to take any action and to execute any document
necessary or desirable to give effect to clause 4.
INTEREST
CLAUSE 5
5.1. The Borrower shall pay to the Lender interest on the Principal or, if
part of the Principal has been repaid or converted, on the amount of
Principal outstanding at any time at an annual rate of 9.5% (9.5
percent).
5.2. After the end of each calendar quarter, the interest due over that period
shall be calculated. The Borrower shall also pay compound interest on the
interest due but not paid calculated at a rate of 9.5% per annum. For the
purposes of clause 5.3, the interest shall be deemed to have been paid to
the Lender on the first day following the period in respect of which it
has been calculated.
5.3. The interest shall accrue from the day on which the underlying amount is
paid to the Borrower up to and including the day before that on which
said amount is due for repayment to the Lender.
5.4. The interest shall be paid each calendar quarter in arrears, on the first
day following the end of the period over which it is due. The interest
for the period running from the day on which the Borrower receives the
Principal up to and including the last day of the then current calendar
quarter shall be paid on the first day of the next succeeding calendar
quarter.
5.5. To calculate the interest due over a particular period, the annual
interest shall be multiplied by a fraction the numerator of which is the
actual number of days in that period and the denominator 360.
REPAYMENT
CLAUSE 6
6.1. The Loan shall be repaid in full on June 30, 2005 prior to 12:00
Amsterdam time.
6.2. The Borrower may not prepay the Principal or any part thereof.
COSTS
CLAUSE 7
The Borrower shall reimburse the Lender for all reasonable costs incurred by the
latter in preparing, concluding or performing this agreement and setting up the
financing and acquisition structure in accordance with the AIP. In addition, the
Borrower or VNV shall pay, or cause to be paid, all and any amounts due by way
of capital tax or any other tax which is the result of the setting up of the
structure contemplated by the AIP and transactions relating thereto and the
Borrower shall indemnify the Lender in respect of any taxes payable by the
Lender as a result of the structure and transactions contemplated by the AIP
other than for taxes that are in the nature of corporate income taxes. VNV
agrees to reimburse the Borrower in respect of all payments made or to be made
by the Borrower to the Lender pursuant to this clause 7.
PAYMENT
CLAUSE 8
8.1. All payments under this agreement shall be made by debiting account no.
-----("AUTOMATISCHE INCASSO").
8.2. The amount due must be credited to the correct account no later than on
the due date with same day value. If the due date is not a business day,
the payment must be credited to the account no later than on the next
business day together with interest. Business day shall mean a day on
which banks in the Netherlands are open to receive payments.
8.3. If a payment to the Lender has not been made by the due date, the
Borrower shall be in default without any notice and it shall owe the
Lender interest at a monthly rate of 1.00% (one percent) on the overdue
amount. Interest shall accrue from the day on which the default
commences, up to and including the day on which it ends. In calculating
the interest, the overdue amount shall, upon expiry of each month, be
increased by the interest due over that period.
8.4. Each debt under this agreement shall be paid in its full nominal amount.
Each payment must be effected in the currency in which the debt is
expressed. The costs of making a payment shall be for the account of the
Borrower.
8.5. The Borrower may not set off a debt under this agreement against any
claim on the Lender or suspend its payment on any ground. The Lender may
set off a debt under this agreement against any claim on the Borrower by
notifying the latter thereof.
8.6. If any statutory provision requires the Borrower to withhold any amount
from a payment, it shall, upon making the payment, pay such additional
amount as is necessary to ensure that the Lender receives the full
nominal amount of the debt. The additional payment shall be for the
account of the Borrower.
8.7. A payment to the Lender shall be allocated in the following order:
a. to damage and costs as referred to in clause 10.3;
b. to interest as referred to in clause 8.3;
c. to interest as referred to in clause 5;
d. to the Principal, to the extent that it may be repaid.
REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF THE BORROWER, VNV AND THE LENDER
CLAUSE 9
9.1 The Borrower and VNV hereby represent and warrant (each as to themselves
only) that the following statements are true and correct as of the date
hereof and as of each interest payment date contemplated by clause 5:
(a) The Borrower is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated and
existing under the law of the Netherlands.VNV is a company with limited
liability ("NAAMLOZE VENNOOTSCHAP") validly incorporated and existing
under the laws of the Netherlands.
(b) Each of the Borrower and VNV has the corporate power to enter into this
agreement, the AIP and the agreements contemplated thereby (hereinafter
the "TRANSACTION DOCUMENTS") to which it is a party and to perform its
obligations thereunder. VNV also represents that ANT is empowered to
issue Receipts on behalf of the Administrator pursuant to a valid power
of attorney.
(c) Each of the Borrower and VNV has taken all corporate action to enable it
to enter into this agreement and the other Transaction Documents to which
it is a party and to ensure that this agreement and any other Transaction
Document to which it is a party is legal valid and binding.
(d) The execution and delivery of the Transaction Documents by the Borrower
and VNV do not and will not (i) violate or result in a material violation
of any agreement to which the Borrower or VNV is a
party, (ii) conflict with any constitutive documents of the Borrower or
VNV or (iii) conflict with any applicable law, regulation or official or
judicial order.
9.2. The Lender hereby represents and warrants that the following statements
are true and correct as of the date hereof:
(a) The Lender is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated and
existing under the law of the Netherlands.
(b) The Lender has the corporate power to enter into this agreement and the
other Transaction Documents to which it is a party and to perform its
obligations thereunder.
(c) The Lender has taken all corporate action to enable it to enter into this
agreement and the other Transaction Documents to which it is a party and
to ensure that this agreement and any other Transaction Document to which
it is a party is legal valid and binding.
(d) The execution and delivery by the Lender of the Transaction Documents to
which it is a party do not and will not (i) violate or result in a
material violation of any agreement to which the Lender is a party, (ii)
conflict with any constitutive documents of the Lender or (iii) conflict
with any applicable law, regulation or judicial order.
9.3. The Borrower and VNV hereby undertake that :
(a) Each of the Borrower and VNV shall deliver, and the Borrower shall cause
Acsys to deliver, the following:
(i) as soon as they become available but and in any event within
120 days after the end of each of its financial years the audited
consolidated financial statements of each of VNV, the Borrower and Acsys;
(ii) as soon as they become available and in any event within 60
days after each of the three first financial quarters the consolidated
quarterly financial statements (and in the case of the second financial
quarter the consolidated semi-annual financial statements) as at the end
of the relevant calendar quarter of each of VNV, the Borrower and Acsys;
such accounts:
(i) in the case of audited financial statements to include a
profit and loss account, balance sheet, cashflow statement and directors
and auditors report thereon;
(ii) in the case of semi-annual and quarterly consolidated
financial statements, to include a profit and loss account, balance
sheet, cashflow statement and management commentary for the entities
included in the relevant statements.
(b) The Borrower shall comply with reasonable requests from the Lender for
information necessary to the Lender to form an opinion about the
Borrower's or Acsys' financial position or to establish whether there are
any grounds to be concerned that the Borrower will fail to perform its
obligations under this agreement or that the Lender's rights of recourse
will be adversely affected.
ACCELERATED MATURITY
CLAUSE 10
10.1. Without prejudice to any of its other rights and obligations, the Lender
may, at its option, terminate all of its obligations under this agreement
with immediate effect, and demand immediate payment of all of its claims
under this agreement in their nominal amount, by notifying the Borrower,
whether in the country in which the Borrower is established or in any
country in which any property or debtor of the Borrower is located one of
the following events (an "EVENT OF DEFAULT") has occurred and is
continuing:
a. The Borrower has failed to perform any obligation under this
agreement to pay interest as referred to in clause 5 or to repay
Principal on the day such payment becomes due and payable unless
such failure is the result of a technical failure in the payment
system in which case such payment has not been made as soon as
practicably possible.
b. The Borrower shall fail to make payments of dividends annually of
8% of the nominal value of the preferred shares of the Borrower
issued or to be issued to Entero B.V.
c. Any of the Borrower or VNV has failed to perform any obligation
under this agreement other than an obligation referred to in
paragraph a, and, to the extent that such non-performance is
capable of remedy in the reasonable opinion of the Lender, no
performance has taken place within 10 business days after the
Lender has given the Borrower or VNV a notice of default; for the
purposes of this paragraph, any statement which clearly
demonstrates that the Lender requires performance shall constitute
a notice of default ("INGEBREKESTELLING").
d. The Administrator fails to issue Receipts as contemplated by this
agreement.
e. Any of the representations and warranties made by the Borrower or
VNV in this agreement was incorrect, incomplete or misleading when
made.
f. Any of the Borrower, VNV, VHBV, Platform or Acsys has ceased to
exist or has been dissolved, has been converted into another legal
form or has been involved in a legal merger or division (other
than the merger of Platform into Acsys).
g. Any of the Borrower, VNV, VHBV, Platform or Acsys has been
declared bankrupt, or it has been granted suspension of payments,
on a temporary basis or otherwise, or any of the Borrower, VNV,
VHBV, Platform or Acsys has lost the free management or disposal
of its
property in any other way, the foregoing irrespective of
whether that state is final, or any of the Borrower, VNV, VHBV,
Platform or Acsys has offered its creditors a composition outside
a bankruptcy or suspension of payments.
h. The Borrower ceases to own the 100% issued and outstanding capital
stock of Platform prior to the merger with Acsys and subsequent to
the merger of Platform into Acsys the Borrower does not own 100%
of the issued and outstanding capital stock of Acsys.
i. One or more parties (other than the Administrator or any other
entity which holds or acquires Shares for the sole purpose of
issuing depository receipts therefor with the co-operation of VNV)
acquires control ("ZEGGENSCHAP") in the business enterprise
("ONDERNEMING") of VNV within the meaning of the
"SER-Fusiegedragsregels 1975", whether through the transfer,
issue, pledging or transmission of shares or through an agreement
with any shareholder of third party.
j. VNV ceases to own either directly or indirectly 100% of the issued
and outstanding shares of VHBV.
k. One or more assets of the Borrower has become subject to a
security right, other limited right or attachment, other than by
virtue of clause 18 of the General Conditions of the Dutch
Association of Banks ("Nederlandse Vereniging ▇▇▇ ▇▇▇▇▇▇) other
than as contemplated by any financing arrangements to be entered
into or entered into between VNV of its group companies and ING
Bank N.V. or any one or more, acting alone or in its capacity of
arranger, agent or lender.
l. The Borrower has assumed any additional indebtedness for borrowed
money (other than pursuant to this agreement or in respect of
advances made to cover expenses incurred in connection with the
preparation of this agreement and the other Transaction Documents)
or any liability, directly or indirectly, as surety, joint and
several co-debtor, guarantor or otherwise, for the debts of a
third party.
m. Any litigation, arbitration, or administrative or regulatory
proceeding is commenced by or against a member of the group formed
by VNV and its subsidiaries which could reasonably be expected to
be adversely determined against such party and which, if adversely
determined, (whether by itself or together with any related
claims) could reasonably be expected to have an effect which is
materially adverse to (i) the business, operations or financial
condition of the Borrower, VNV, VHBV or Acsys or (ii) the ability
of the Borrower, VNV, VHBV, Acsys or the Administrator to perform
the obligations contemplated by the Transaction Documents.
n. A body of the Borrower, VNV or VHBV has passed a resolution which,
under the law or the articles of association, is a prerequisite
for the existence of a Event of Default, or the Borrower, VNV or
VHBV has undertaken, or has otherwise become obliged, whether or
not subject to a condition or time limit, to carry out an act
which will constitute a Event of Default if it is carried out.
o. VHBV (or any of its permitted successors or assigns) has breached
any of its obligations under the Shareholders Agreement among VHBV
and Entero B.V. dated as of May *, 2000 .
p. an "Event of Default" as defined in the ▇▇.▇▇▇▇ Agreement shall
have occurred and be continuing.
q. an "Event of Default" as defined in the Share Exchange Agreement
shall have occurred and be continuing.
r. Any of the issued and outstanding shares of VHBV or its permitted
successors in the Borrower shall become subject to a right of
pledge or executorial attachment (EXECUTORIAAL BESLAG) other than
as contemplated by any financing arrangements entered into or to
be entered into between VNV and ING Bank N.V. acting alone or in
its capacity of arranger, agent or lender.
s. Either VNV or VHBV changes or terminates the principal nature of
its business in which it is engaged ("HOUDSTER- EN/OF
FINANCIERINGSMAATSCHAPPIJ VAN ONDERNEMINGEN ACTIEF IN HET
UITZENDWEZEN").
t. Any circumstance occurs which in the Lender's reasonable opinion
justifies the fear that any of the Borrower or VNV will fail to
perform its obligations under this agreement the ▇▇.▇▇▇▇
Agreement, the Shareholders Agreement and the Share Exchange
Agreement, or any one of them or that the Lender's rights of
recourse will be adversely affected.
10.2. If an Event of Default or an event which with notice or passage of time
would constitute an Event of Default occurs or threatens to occur, the
Borrower and VNV shall immediately notify the Lender thereof.
10.3. The Borrower and VNV must compensate the Lender for all damage suffered
by the latter as a result of the Event of Default occurring or in the
Lender's reasonable opinion threatening to occur, irrespective of whether
the Event of Default can be attributed to the Borrower or VNV. The duty
to compensate shall also include any reasonable costs made by the Lender
to prevent the Event of Default, to prevent or limit damage or to enforce
its rights under this agreement in or out of court.
10.4. It is expressly understood that in lieu of making the payment of all
claims referred to in clause 10.1 in cash the Lender may elect to cause
VNV to deliver Receipts in payment thereof. The number of Receipts to be
delivered will be established on the basis of (X) the Exchange Price or
(Y) the price equal to the average closing price ("SLOTKOERS") of
Receipts on the AEX stock exchange (or its succesor stock exchange)
during the five trading days immediately prior to the day on which the
Lender exercises this right, whichever is lower.
EVIDENCE
CLAUSE 11
An extract from the Lender's administration shall constitute evidence of the
Borrower's obligations under this agreement, subject to manifest error and right
of the Borrower to prove otherwise.
RIGHTS NOT EXCLUSIVE; NO FORFEITURE OF RIGHTS
CLAUSE 12
Any entitlement of the Lender to any right derived from this agreement shall be
without prejudice to any other rights and claims under this agreement and any
rights and claims at law. No right of the Lender under this agreement or by law
shall be affected by a failure to invoke that right or to protest against the
Borrower's or VNV's failure to perform an obligation.
BINDING EFFECT AND ENTIRE AGREEMENT; AMENDMENT
CLAUSE 13
13.1. This agreement shall not have any effect until each party has received a
copy of this agreement, validly executed by the other party. The
preceding sentence shall not apply to clauses 7, 15 and 16 nor to this
clause 13.1.
13.2. If part of this agreement becomes invalid or non-binding, the parties
shall remain bound to the remaining part. The parties shall replace the
invalid or non-binding part by provisions which are valid and binding and
the legal effect of which, given the contents and purpose of this
agreement, resembles as much as possible that of the invalid or
non-binding part.
13.3. This agreement may not be rescinded in whole or in part. The mistaken
party shall bear the risk of any mistake made in creating this agreement.
13.4. This agreement together with the AIP and the other Transaction Documents
contains the entire agreement of the parties in relation to its subject
matter. Upon execution of this agreement, all previous agreements and
arrangements made by the parties in relation to its subject matter other
than the AIP and the other Transaction Documents shall end.
13.5. This agreement contains no stipulations for the benefit of a third party
which could be invoked by a third party against a party to this
agreement.
13.6. The schedules to this agreement shall form a part thereof.
13.7. This agreement may only be amended or supplemented in writing.
13.8. Clauses 13.1 up to 13.7 (inclusive) shall apply MUTATIS MUTANDIS to all
agreements connected with this agreement, unless the relevant agreement
expressly provides otherwise.
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
CLAUSE 14
The Borrower may not assign or procure the assumption of, as the case may be,
rights and obligations under this agreement to or by a third party unless it has
obtained the prior written consent of the Lender. The Lender may give its
consent on a conditional basis.
The Lender may assign its rights and obligations under this agreement only to
another entity which forms part of the same group (within the meaning of Section
2:24b of the Dutch Civil Code) as the Lender.
NOTICES; PLACE OF RESIDENCE
CLAUSE 15
15.1. Notices and other statements in connection with this agreement may only
be given by way of a writ or a letter delivered in person or by a courier
against delivery of a receipt or by way of a registered letter with
acknowledgement of receipt or a telex with receipt of the correct code of
receipt, at the recipient's place of residence as most recently nominated
in accordance with clauses 15.2 and 15.3. Each statement must be in the
Dutch or English language. A statement which does not comply with this
clause 15.1 shall have no effect.
15.2. For all matters relating to this agreement, each party nominates the
address referred to below as its place of residence:
(i) the Borrower
address: Jachthavenweg 112
PO box: 75173
postal code and city: 1070 AD Amsterdam
country: The Netherlands
for the attention of: Board of Management
telefax: **
(ii) the Lender
address: Bijlmerplein 888 HG 04.06
PO box: 1800
postal code and city: 1000 BV Amsterdam
country: The Netherlands
for the attention of: Mr J.P.A.M. Vogels
telefax: 020 - 652 39 73
(iii) VNV
address: Jachthavenweg 112
PO box: **
postal code and city: 1076 DC Amsterdam
country: The Netherlands
for the attention of: Chairman of the Board of Management
telefax: **
15.3. A party may nominate a different place of residence from that referred to
in clause 15.2 by notifying the other party of that new place. Nominating
a place of residence outside the Netherlands shall have no effect.
15.4. Clauses 15.1 to 15.3 (inclusive) shall also apply to all matters relating
to agreements which are connected with this agreement, unless the
relevant agreement expressly provides otherwise.
GENERAL CONDITIONS
CLAUSE 16
The general conditions of the Lender attached to this agreement as SCHEDULE 5
shall apply to this agreement, with the exception of article 20 thereof. In
respect of the attached general conditions all references to the Bank are to be
read to refer to the Lender. In case of inconsistency between this Agreement and
the general conditions, the terms of this Agreement shall apply.
GOVERNING LAW; COMPETENT COURT
CLAUSE 17
17.1. This agreement shall be governed exclusively by Dutch law.
17.2. All disputes arising in connection with this agreement, including
disputes concerning the existence and validity thereof, shall be resolved
in accordance with the Arbitration Rules of the Netherlands Arbitration
Institute ("Nederlands Arbitrage Instituut").
The arbitral panel shall consist of three members. Each party shall
appoint one member within ten (10) business days after the date one of
the parties has given written notice to the other party or parties of the
fact that in its opinion a dispute exists between two or more of the
parties which cannot be resolved through further negotiation. The third
member shall be jointly appointed by the members so appointed. In the
event a party has not appointed a member in time, such member shall be
appointed with due observance of and in accordance with article 14 of the
Arbitration Rules of the Netherlands Arbitration Institute. The place of
arbitration will be Amsterdam, the Netherlands. It is expressly
understood that the foregoing will not preclude parties from instituting
a summary proceeding ("KORT GEDING").
17.3. Clauses 17.1 and 17.2 shall also apply to agreements which are connected
with this agreement, unless the relevant agreement expressly provides
otherwise.
CONFIDENTIALITY
CLAUSE 18
18.1. Each of the parties to this agreement (each a "PARTY") undertakes to each
other Party not to disclose the provisions of this agreement unless with
the express written consent of the other Party.
18.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to any other Party and their respective affiliates or their
activities or products, including information concerning suppliers and
customers and other relationships, ("CONFIDENTIAL INFORMATION"), unless
the performance or enforcement of this agreement so requires.
18.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 18.2 only if the third party is under an obligation
and the third party has committed itself in writing to use or disclose
the Confidential Information only in accordance with this clause. Each
Party shall store Confidential Information, or procure its storage, in a
prudent manner, and shall ensure that no third party obtains knowledge of
it in violation of this clause.
18.4. This clause shall not apply to the extent that the other Party in
question is under an obligation to use or disclose information pursuant
to the law, arbitral decision a binding decision of a court or another
government authority or any stock exchange. Where possible, however, the
disclosing Party shall consult with each other Party prior to disclosure
about the form and contents of the disclosure.
18.5. If this agreement ends the obligations of each Party under this clause
shall, however, continue to exist.
IN EVIDENCE WHEREOF:
this agreement was signed in duplicate in the manner set out below.
1. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
2. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
3. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
SCHEDULE 1
draft
FORM OF STOCK TRANSFER
CERTIFICATE
ASSIGNMENT SEPERATE FORM CERTIFICATE
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇ B.V., hereby sells, assigns and transfers unto
_______________ Shares of Common Stock, no par value per share, of Acsys Inc., a
Georgia corporation, (the "Corporation") standing in the name of ▇▇▇▇▇▇▇ B.V. on
the books of the Corporation, represented by Cerfiticate(s) Number(s) _____
herewith and do hereby irrevocably constitute and appoint any officer of the
Corporation as attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises.
____________________, __________
▇▇▇▇▇▇▇ B.V.
By: __________________________
Name:
Title:
SCHEDULE 2
draft
BORROWING NOTICE
Entero B.V.
[--]
Dear Sirs,
Reference is made to that certain Exchangeable Loan Agreement among Entero B.V.,
▇▇▇▇▇▇▇ B.V. and Vedior N.V. dated May *, 2000.
We hereby request you to make the Loan under the Loan Agreement as follows:
Date : -- May *, 2000
Acc. No. : --
(ABA #:
to the attention of ).
Yours sincerely,
By : ______________________
Date : ______________________
SCHEDULE 3
draft
NOTICE
EXERCISE OF OPTION
Entero B.V.
Bijlmerplein 888 HG 04.06
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
The Netherlands
Vedior N.V.
[--]
Stichting Administratiekantoor van gewone aandelen Vedior
[--]
Dear Sirs,
Reference is made to the Exchangeable Loan Agreement between Entero B.V. (the
"LENDER"), ▇▇▇▇▇▇▇ B.V. (the "BORROWER")and Vedior N.V. ("VNV") dated May [--],
2000 (the "LOAN AGREEMENT"). All defined terms used in this letter shall have
the meaning given to such terms in the Loan Agreement.
This is to inform you that the undersigned hereby notifies you of its exercise
of the option set forth in Clause 4.1 of the Loan Agreement in respect of a
portion of the Outstanding Amount equal to [EURO] [--].
The undersigned hereby requests VNV and the Administrator to take all required
steps in order to arrange for an issue of -- Receipts to the undersigned on
[date] (three business days from date of notice) including without limitation
preparation of a description of assets to be contributed and a statement of
contribution required pursuant to the provisions of the Dutch Civil Code
(BURGERLIJK WETBOEK).
Sincerely yours
Entero B.V.
By ___________________________
Name:
Title:
SCHEDULE 4
draft
Entero B.V.
Bijlmerplein 888 HG 04.05
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
The Netherlands
Dear Sirs,
Reference is made to the Exchangeable Loan Agreement between _________, a
wholly-owned subsidiary of ING Bank Corporate Investments B.V. (the "LENDER"),
▇▇▇▇▇▇▇ B.V. (the "BORROWER") and Vedior N.V. ("VNV") dated May [--], 2000 (the
"LOAN AGREEMENT"). All defined terms used in this letter shall have the meaning
given to such terms in the Loan Agreement.
The undersigned hereby informs you that the undersigned hereby exercises the
option set forth in Clause 4.4 of the Loan Agreement.
We will provide you with transfer documents and payment information within two
business days following this notice
Sincerely yours,
Vedior N.V.
By:_______________________
Name:
SCHEDULE 5
GENERAL CONDITIONS 1
GENERAL CONDITIONS
(Translation* of the original Dutch text)
* 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.
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.
2 GENERAL CONDITIONS
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.
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.
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.
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.
GENERAL CONDITIONS 3
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.
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.
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.
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 publich registers, in default of which
notification such change or withdrawal cannot be invoked against the Bank.
9. USE OF FORMS
The Customer must see to it that orders, statements and communications to the
4 GENERAL CONDITIONS
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.
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"
(BankGiroCentre).
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
GENERAL CONDITIONS 5
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.
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-a-vis the Customer, subject to rebuttal evidence produced by
the Customer.
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.
6 GENERAL CONDITIONS
13. APPROVAL OF BANK DOCUMENTS
If the Customer has 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 docments contain any arithmetical errors,
the Bank may and shall rectify such errors, even after the expiry of the said
twelve months'period
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 dalay. 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.
GENERAL CONDITIONS 7
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.
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 in any case available at its branch-offices.
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,
are 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.
18. LIEN
The Bank shall have a lien in 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.
8 GENERAL CONDITIONS
whatsoever and in 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 before the customer has made 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.
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 are 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
GENERAL CONDITIONS 9
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.
20. GIVING SECURITY
Upon demand the Customer shall provide adequate security for the fulfillment 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.
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.
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
10 GENERAL CONDITIONS
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 ING Bank
Effectenbewaarbedrijf N.V. or by ING Bank 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
bearer securities held outside the Netherlands and for non-bearer
securities", respectively, which rules are set for below after the final
article of these General Conditions.
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.
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.
GENERAL CONDITIONS 11
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.
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.
26. PERIOD OF VALIDITY OF STOCK EXCHANGE ORDERS; REDUCTIONS 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 for 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.
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
12 GENERAL CONDITIONS
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.
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.
29. LAWS OF THE NETHERLANDS; DISPUTES
The relations between the Customer and the Bank shall be governed by the law
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
GENERAL CONDITIONS 13
be entitled to bring disputes before the foreign court having jurisdiction
over 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.
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.
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-a-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;
GENERAL CONDITIONS 14
- labour disturbances among the staff of third parties or the Bank's
own staff;
- power failures or breakdown 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.
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.
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 thirtiest 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.
GENERAL CONDITIONS 15
EXPLANATORY NOTES TO THE GENERAL BANKING CONDITIONS
1. The General Conditions (GC) contain rules for all transactions between
the Customer and the Bank. Such transactions take place within the framework
of the relationship into which the Customer and the Bank have entered.
Such a relationship can be confined to one single agreement, for instance a
transfer account. Of course it can also comprise several elements, such as
the renting of a safe-deposit box or a deposit for moneys or securities. In
the GC all these elements taken together are referred to as the "relation".
The GC do not, however, provide exhaustive regulations for all the elements of
which a relation can be composed. To each separate element further conditions
may - and in practice nearly always will - apply. A savings account e.g. may
be subject to specific additional conditions, which may moreover vary
according to the type of savings account chosen by the Customer. Home
financing is another product offered in various types, each subject to its
own specific conditions. The rules found in the GC are therefore mainly basic
rules regulating the relation between the Customer and the Bank.
For the most common services the Bank has brochures and leaflets, which
provide more detailed information.
2. This article provides that the Bank must exercise due care in its
transactions with the Customer, taking the interests of the Customer into
account to the best of its ability.
But the Bank may not disclose all information at its disposal to just any
person coming along. Certain information is confidential or is provided to
the Bank subject to an undertaking of secrecy. So the Customer will have to
proceed on the assumption that all advice given to him, e.g. about securities
transactions, is based exclusively on public information.
3. There are transactions which the Bank can fully settle "in-house", for
instance the sale of foreign currency over the counter. In a number of cases,
however, the Bank must use the services of third parties to execute orders or
other transactions.
When e.g. the Bank purchases securities on a foreign Stock Exchange pursuant
to
