SERVICE PARTICIPANT OPERATING CONTRACT FOR THE “CAMARA DE COMPENSACION DE PAGOS DE ALTO VALOR” (HIGH VALUE PAYMENTS CLEARING HOUSE)
Exhibit
4A.5
FOR
THE
“CAMARA DE COMPENSACION DE PAGOS
DE
ALTO
VALOR” (HIGH VALUE PAYMENTS
CLEARING
HOUSE)
This
Service
Participant Operating Contract of the High Value Payments Clearing House is
signed in ▇▇▇▇▇▇▇▇ de Chile on August 9, 2005, by and between the Sociedad
Operadora de ▇▇ ▇▇▇▇▇▇ de Compensación de Pagos de Alto Valor, S.A., hereinafter
“COMBANC”, represented herein by its President, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and its General Manager, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, both
domiciled at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇,
▇▇ the city of Santiago, party of the first part, and the Banco
Santander-Chile, a banking institution, hereinafter the
“Participant”, represented herein by its General Manager, Oscar
von ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, both domiciled at Calle Bandera 140 in the city of
▇▇▇▇▇▇▇▇, party of the second part.
Based
on the above,
the parties stipulate and agree as follows:
| 1. | GENERAL BACKGROUND |
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1.1
|
ComBanc
is a corporation organized and existing under the laws of the Republic
of
Chile as a banking support institution, whose line of business is
providing payment clearance and remittance services and the undertaking
of
activities allied with or supplementary to the banking support
business.
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1.2
|
The
company is
governed by Chapter III.H.5 of the Compendium of Financial Rules
&
Regulations of the Banco Central de Chile, and by the corresponding
regulations of the Office of the Superintendent of Banks and Financial
Institutions.
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|
1.3
|
On
June 2,
2005, it was authorized to operate a Cámara de Compensación de Pagos
de Alto Valor (High Value Payments Clearing House), and to provide
the service which is the subject of this
agreement.
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|
1.4
|
ComBanc
has developed, and is the holder of a usage license for, a high value
payment clearance and remittance system, which among other functionalities
provides the Participants with a safe, secure and
expeditious electronic medium for making those payments, which on
their
own behalf or that of third parties, must be made to the other
Participants, and to pay and otherwise settle the
remittance in the Real Time Gross Payment System of the Banco Central
de
Chile (the “RTGP System”).
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|
1.5
|
The
Participant, for its part, declares that it has the
technological capability, the infrastructure and the staff necessary
for
receiving the ComBanc services, in accordance with what
is set forth in the present
agreement.
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|
2.
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ADHERENCE
TO THE OPERATING RULES OF THE HIGH VALUE PAYMENTS CLEARING
HOUSE
|
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2.1
|
The
Participant hereby expressly declares that it shall abide
by the “Operating Rules and Regulations of the Sociedad Operadora de ▇▇
▇▇▇▇▇▇ de Compensación de Pagos de Alto Valor, S.A.” (the “Regulations”),
adhering to the laws governing it and any amendments that may be
made to
such laws. Consequently, the Participant declares that
any and all operations conducted through the Clearing House operated
by
ComBanc shall be governed fully by said
Regulations.
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|
2.2
|
ComBanc
herein delivers to the Participant one copy of the
Regulations, and the latter declares that it has received these
Regulations, that it is fully knowledgeable of the contents thereof,
and
that they are within the scope of its
operations.
|
3.
DEFINITIONS
|
3.1
|
For
purposes
of this agreement, the parties agree to apply the definitions given
in
Appendix 9, Glossary, of the
Regulations.
|
4. PURPOSE
OF THE CONTRACT
|
4.1
|
This
instrument sets forth the terms, conditions, rights, obligations
and
responsibilities that will govern the reciprocal relations of the
parties,
so that ComBanc can provide the subject high value
payment clearance and remittance
service.
|
|
5.
|
GENERAL
DESCRIPTION OF THE HIGH VALUE PAYMENT CLEARANCE AND REMITTANCE
SERVICE
|
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5.1
|
The
detailed
description of the high value payment clearance and remittance service
is
found in the Regulations. Without prejudice thereto, a summary of
this
operation is given below:
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|
5.2
|
The
high value
payment clearance and remittance service is provided within a clearing
house (the “Clearing House”), which allows for remittance in real time,
bilaterally and multilaterally, of payment orders issued by the
Participants.
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5.3
|
The
Clearing
House has a risk management model that is composed of the following
elements.
|
|
a.
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Bilateral
and
multilateral limits that delimit the Participants’ risk
exposure;
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b.
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The
availability of DAES funds that back up the Participants’
obligations within the Clearing House;
and
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c.
|
A
Mandatory
Financing Agreement, hereinafter the “MFA”, which irrevocably obligates
the Participants to have the necessary financing to cover
at least 1.15 times the highest Multilateral Net Debtor
Position.
|
|
5.4
|
The
settlement
of the results of the Clearing House remittance(s) is made at the
end of
the day in the RTGP system operated by the Banco Central de
Chile.
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|
6.
|
HIGH
VALUE PAYMENTS CLEARING HOUSE DEPOSIT ACCOUNT FOR
EXTRAORDINARY SETTLEMENT
(“DAES”)
|
|
6.1
|
In
order to
participate in the Clearing House, the Participant agrees
to apply to the Banco Central de Chile (BCCH) for the opening of
a High
Value Payments Clearing House Deposit Account for
Extraordinary Settlement (“DAES”).
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|
6.2
|
The
funds
established in the DAES may be used only for the Clearing House’s special
Settlement Procedure, upon request of ComBanc, who will
act on behalf and in representation of the
Participant.
|
|
6.3
|
The
procedure
for the daily establishment of funds in this account, its method
of
utilization and restitution, is governed by Chapter 7, “Risk Management
and Control in Payment and Settlement Processes”, and by Chapter 10,
“Special or Extraordinary Settlement Procedure”, as well as by Appendix 7,
“Mandatory Financing Agreement”, of the
Regulations.
|
7.
IRREVOCABILITY
|
7.1
|
The
parties
expressly agree that once payment orders are accepted into the Clearing
House, they shall be considered
|
|
final
and
irrevocable, and may not under any pretext be modified or invalidated
by
the issuing Participant.
|
| 8. | OBLIGATIONS |
|
8.1
|
ComBanc
must comply strictly with the obligations established in the Regulations,
in the present agreement and its Appendices, and with any rules,
regulations and the like issued by the Banco Central de Chile and
the
Office of the Superintendent of Banks and Financial
Institutions.
|
8.2 More
specifically, the obligations of ComBanc are as
follows:
|
a.
|
To
verify that
the Participants have established the Bilateral Limits
corresponding to a Business Cycle;
|
|
b.
|
To
calculate
the Multilateral Limit corresponding to each Participant
in a Business Cycle;
|
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c.
|
To
verify that
the Participants have established the corresponding
Mandatory and Voluntary Deposits;
|
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d.
|
To
comply with
the participation rules of a Business
Cycle;
|
|
e.
|
To
receive and
validate the Payment Orders sent by the Participants for
remittance;
|
|
f.
|
To
pay
bilaterally and multilaterally the Payment Orders issued by the
Participants, in conformity with Articles 1.655 et seq.
of the Civil Code, and further in accordance with the regulations
established by the Banco Central de Chile, to the extent that these
regulations are in accordance with the limits established in Chapter
7,
“Risk Management and Control in Payment and Settlement Processes” of the
Regulations.
|
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g.
|
To
keep the
Participants informed with respect to all of their
positions;
|
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h.
|
To
communicate
to the Banco Central de Chile the results of the payment for purposes
of
settlement within the RTGP system;
|
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i.
|
To
apply the
Mandatory Financing Agreement in the case set forth in Chapter 10,
“Special or Extraordinary Settlement Procedure”, and Appendix 7,
“Mandatory Financing Agreement”, of the
Regulations.
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|
j.
|
To
assess the
penalties provided for in the
Regulations.
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| 8.3 | Other ComBanc obligations: |
|
a.
|
To
offer and
maintain a proper and adequate infrastructure that will properly
provide
the high value payment clearance and remittance
service;
|
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b.
|
To
have
available at all times the necessary elements, equipment and staff
for
maintaining the continuity and effectiveness of the high value payment
clearance and remittance services;
|
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8.4
|
The
Participant must comply strictly with the obligations
established in the Regulations, in the present agreement and its
Appendices, and in any rules, regulations and the like issued by
the Banco
Central de Chile and the Office of the Superintendent of Banks and
Financial Institutions.
|
| 8.5 | More specifically, the obligations of the Participant are as follows: |
|
a.
|
To
make
available during all hours of operation its systems and a properly
trained
staff for correctly performing and completing the tasks associated
with
the high value payment clearance and remittance
services;
|
|
b.
|
To
formally
appoint all Authorized Agents to act before ComBanc. In
addition, the Participant must advise of any changes in
such authorized agents in a timely
fashion.
|
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c.
|
To
designate
the security managers for those applications provided by
ComBanc.
|
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d.
|
To
contract
the communications networks and cover the cost of maintaining
them.
|
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e.
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To
pay the
service fee in accordance with the provisions of Appendix No. 3,
“Fee
System”.
|
| 9. | RESPONSIBILITIES |
|
9.1
|
Without
prejudice to the responsibilities set forth in the Regulations, in
the
present agreement and its Appendices that are incumbent upon each
party,
the parties expressly agree upon the
following:
|
| 9.2 | ComBanc shall be solely responsible for: |
|
a.
|
Receiving,
processing and reporting, as appropriate, each and every one of the
payment orders that it receives from the Participants,
and in each case guaranteeing their timely and safe
processing.
|
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b.
|
Ensuring
the
integrity and authenticity of every message that is
sent.
|
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c.
|
Complying
with
both current and future rules issued by the Banco Central de Chile
or the
Office of the Superintendent of Banks and Financial Institutions
governing
the operation of clearing houses.
|
| 9.3 | The Participant shall be solely responsible for: |
|
a.
|
Ensuring
the
integrity and authenticity of every message that it
sends;
|
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b.
|
Complying
with
the provisions established in this agreement, in the Regulations,
and with
any current and future rules issued by the Banco Central de Chile
and the
Office of the Superintendent of Banks and Financial Institutions
with
respect to the high value payment clearance and remittance
services.
|
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9.4
|
Both
ComBanc and the Participant shall be
individually and independently liable for any damages and losses
that
either of them cause third-parties through the non-performance of
any the
obligations that are stipulated in this agreement and its Appendices
or in
the Regulations, which derive from its sole negligence or the actions
or
omissions of any of its employees, advisors or sub-contractors, or
which
are caused by objects or assets or property used by it or under its
care
and custody.
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9.5
|
The
Participant and ComBanc shall be
individually liable for any damages and losses caused their respective
employees, advisors or sub-contractors through negligence, fraud,
or
improper or erroneous use of the high value payment clearance and
remittance service.
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9.6
|
In
no case may
the parties claim from each other payment of indemnities for losses
that
they may experience because of the negligence or fraud of other
Participants or of any third-party. Without prejudice to
the foregoing, the parties shall cooperate and put forth their best
efforts possible to have the party causing the damage or loss to
be held
accountable for it.
|
| 10. | EXEMPTION FROM LIABILITY |
| 10.1 |
ComBanc
is released from any liability for any losses caused directly or
indirectly, whether through erroneous, improper or fraudulent use
of the
Participant’s identifying codes and its respective access
keys to the computer system through which the Participant
accesses the ComBanc systems. This release includes any
type of loss that might result, whether monetary or
otherwise.
|
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10.2
|
In
the same
way, the hardware, programs and computer applications administered
by
ComBanc are tools for data processing that by their very
nature are subject to failures, whether because of ordinary functioning,
maintenance, or development. In view of the foregoing, the
Participant must take the necessary preventive measures
that are customary in computing activities in order to avoid any
failures
that might result in some type of damage or loss, whether to itself
or
others, and shall make available the necessary back-ups and will
establish
the appropriate methods and designs for verifying the results thereof;
ComBanc shall assume no liability for any damages or
losses stemming from the direct or indirect use or operation of the
aforementioned hardware, programs and
applications.
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10.3
|
Both
ComBanc and the Participant shall be
exempt from all liability and released from the performance of their
respective obligations if the contracted service cannot be maintained
or
operated because of reasons of force majeure or acts of God, such
as
earthquakes, electric and/or telephone and/or data transmission line
outages, third-party acts intervening against public and/or private
networks, acts of terrorism, strikes or other similar labor
actions.
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10.4
|
The
Participant hereby waives any action, claim or legal
proceeding against ComBanc for damages or losses, whether
material and/or immaterial, expenses or costs, with respect to what
is
indicated in numeral 10.2 above.
|
| 11. | AUTHORIZED AGENT |
|
11.1
|
Any
instructions sent to ComBanc by the
Participant’s Authorized Agent(s) shall be understood for
all due and legal purposes as having been formulated and sent by
the
Participant. In view of the foregoing, the
Participant agrees that it is its exclusive obligation to
monitor the compliance of its authorized agent(s) with regard to
the
provisions of this agreement and the
Regulations.
|
| 12. | OPERATING RULES AND REQUIREMENTS. |
|
Without
prejudice to what is indicated in the Appendices to this agreement,
the
parties undertake to comply with the following rules and requirements
necessary for the proper operation of the
service:
|
| 12.1 | SWIFT Messaging: Payment orders issued by the Participant and received by ComBanc, as well as messages between both parties |
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Operating Contract for the High Value Payments Clearing House
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deriving
from
the processing of the aforementioned payment orders, shall be transmitted
via SWIFT messaging, of which the parties declare to be fully
knowledgeable and declare this is within the scope of its operations.
The
technical specifications of this messaging system are given in Appendix
No. 5, “Message Formats”.
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12.2
|
Information
for the Participant:
ComBanc shall provide real time information on the
Participant’s transactions, the characteristics and
definitions of which are found in Appendix 4, “Participant’s Operating
Instructions”.
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12.3
|
Systems:
The equipment of each party through which the subject services are
this
agreement are provided, must ensure the continuity of those
services.
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| 12.4 | Schedules: Will be those established in the Regulations. |
|
12.5
|
Security:
The Participant will gain access to the Clearing House
systems by using access keys and digital identification codes. Obtaining,
handling, use and custody of these codes and logins fall under the
exclusive responsibility of the
Participant.
|
| 13. | APPENDICES |
| 13.1 | The following Appendices form part of this agreement: |
|
·
|
Appendix
No.
1, “Operating Regulations of the Sociedad Operadora de ▇▇ ▇▇▇▇▇▇ de
Compensación de Pagos de Alto Valor
S.A.”
|
|
·
|
Appendix
No.
2, “Operating Mandate, Deposit Account for Extraordinary or Special
Settlement and Promissory Note
Subscription”
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·
|
Appendix
No.
3, “Fee System”
|
|
·
|
Appendix
No.
4, “Operating Instructions for
Participants”
|
|
·
|
Appendix
No.
5, “Message Format”
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13.2
|
The
Appendices
indicated above form an integral part of this agreement, and the
parties
hereto declare that they are fully knowledgeable of the contents
of those
Appendices and accept them, and moreover given that they fall within
their
operating domains, they undertake to comply in full with the contents
thereof.
|
|
13.3
|
The
parties
expressly state that Appendices 3, 4 and 5 may be modified by
ComBanc, who must
advise
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Operating Contract for the High Value Payments Clearing House
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the
Participant of any such modification at least fifteen
days in advance of such modification’s
effectiveness.
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14. STAFF
|
14.1
|
The
staff
required for operating the high value payment clearance and remittance
service shall fall under the exclusive responsibility of
ComBanc insofar as concerns the providing of the services
offered by it. On its part, the Participant shall be
exclusively responsible for its staff that is assigned to do what
is
necessary for receiving and facilitating the services that will be
rendered to it by
ComBanc.
|
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14.2
|
The
staff for
which the Participant will be responsible for and will
require in order to comply with the functions that relate to the
high
value payment clearance and remittance services, shall be subject
to any
and all technical specifications and instructions that
ComBanc may issue. If in ComBanc’s
judgment, the staff must undergo training provided by ComBanc, such
training shall not in any way limit the rights and authority of the
Participant in its capacity as the employer of said staff, a status
that
it shall fully maintain.
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14.3
|
ComBanc
shall not be liable for the acts or actions of those associated with
the
Participant in connection with the performance by such
employees in work or tasks related to the payment clearance and remittance
service.
|
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14.4
|
The
Participant shall be liable for any damages or losses
that may be caused by its employees because of misuse or improper
use of
the high value payment clearance and remittance service. Likewise,
the
Participant shall be liable for any damages that it or
its employees might cause because of failure to follow the instructions
and guidelines given by ComBanc with respect to the
methods and procedures set forth for the proper and correct operation
of
the said high value payment and remittance
service.
|
|
14.5
|
The
Participant shall be subject to
ComBanc’s instructions and guidelines regarding
organization, methods and procedures pertaining to said proper and
correct
operation of the high value payment clearance and remittance
service.
|
|
14.6
|
The
Participant or ComBanc shall be liable
for any damages or losses caused by their employees, advisors
or
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Operating Contract for the High Value Payments Clearing House
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sub-contractors
through negligence, fraud, or improper or erroneous use of the high
value
payment clearance and remittance
service.
|
15. CONTINUITY
OF THE SERVICES
|
15.1
|
ComBanc
shall operate on all banking days at the times established in the
Regulations.
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15.2
|
Notwithstanding
the foregoing, the services provided by ComBanc may be
discontinued, suspended or interrupted in whole or in part,
when:
|
|
a.
|
It
is
necessary to make repairs and/or do scheduled maintenance on all
or part
of the components and equipment that ComBanc uses for
providing the high value payment clearance and remittance service;
in such
event, ComBanc must give notification within a period of
not less than 24 hours in advance,
or
|
|
b.
|
Under
and
because of circumstances of force majeure or an act of God. In that
case,
no prior communication will be necessary, but the services must be
restored as soon as possible and with diligent promptness. Understood
as
force majeure or act of God for the purpose of this agreement, shall
be
what the law defines as such.
|
|
15.3
|
Under
the
circumstances or situations of force majeure or an act of God,
ComBanc shall not be liable for any damages or losses
that may be caused to the Participant. In any case,
ComBanc undertakes to restore the services as soon as
the
causes that resulted in their interruption or suspension have
ceased.
|
16. ARCHIVING
OF TRANSACTIONS
|
16.1
|
The
Participant shall be obligated and responsible for
maintaining the archives of all operations conducted through the
high
value payment and remittance
service.
|
|
16.2
|
ComBanc
shall maintain an active or on-line archive of only those transactions
that have taken place in the last thirty (30) days, but shall subsequently
maintain an archive of them on magnetic media. In the event that
the
Participant requests ComBanc to recover
data, it must reimburse it for all costs
incurred.
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16.3
|
The
ComBanc archives shall constitute sufficient proof in
the
event a dispute arises between the
parties.
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Operating Contract for the High Value Payments Clearing House
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17. CONFIDENTIALITY
AND SECRECY
|
17.1
|
ComBanc
and the Participant and those associated with it,
advisors and sub-contractors agree not to disclose in any way or
by any
means any of the data or information that they may receive from their
respective counterpart, or any other information that might
circumstantially fall into their hands, or to which they may have
access
in connection with the providing of the services subject to this
instrument.
|
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17.2
|
ComBanc
and the Participant undertake to remain expressly
vigilant regarding this obligation of confidentiality and secrecy
in any
contracts or agreements signed with those associated with it, advisors
and
sub-contractors, penalizing any infraction with immediate termination
of
the respective contract, without prejudice to any other penalties
and
fines that might be appropriate under the
law.
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|
17.3
|
Both
ComBanc and the Participant undertake to
reciprocally transmit only the information and data that are essential
for
the proper rendering of the services and in connection with the services
subject to this contract.
|
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17.4
|
The
prohibitions referred to in the preceding paragraphs shall not apply
if
some legal provision or court ruling exists that obligates either
of the
parties to submit matters subject to the aforementioned confidentiality
and secrecy to courts of justice or institutions or agencies empowered
by
law and acting within the scope of their
authority.
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17.5
|
In
other
cases, when the requested background information falls under
ComBanc’s or the Participant’s
confidentiality and secrecy obligation, the parties hereto may not
deliver
that information without the prior consent of the
other.
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17.6
|
The
aforementioned confidentiality and secrecy obligations shall remain
in
full force even after the expiration of this
agreement.
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18. FEES
|
18.1
|
The
Participant undertakes to pay ComBanc
the fees indicated in Appendix 3, “Fee
System”.
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19. BANKING
CONFIDENTIALITY AND SECRECY
|
19.1
|
Both
the
Participant and ComBanc with respect to
the high value payment clearance and remittance service conducted
through
ComBanc, shall be subject to
the
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Operating Contract for the High Value Payments Clearing House
Page 11 of
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banking
secrecy and confidentiality referred to in Article 154 of the General
Banking Law. In addition, they will be subject to all directives,
rules
and regulations that may in such respect be issued in the future
by the
Office of the Superintendent of Banks & Financial Institutions within
the scope of the authority vested in that agency by
law.
|
|
19.2
|
The
obligations regarding banking confidentiality and secrecy shall continue
indefinitely and beyond the life of this
instrument.
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| 20. | MEANS OF EVIDENCE |
|
20.1
|
The
digital
records of ComBanc are considered admissible as means of
evidence, and shall be kept up-to-date with records showing the times
of
sending and receipt, content and sums indicated in messages interchanged
and stored and/or debits and credits made; these records shall have
probative value pursuant to the provisions of Articles 4 and 5 of
Law
19,799.
|
| 21. | NEW SERVICES |
|
21.1
|
ComBanc
may offer new services to the Participant. If such new
services are agreed to by the parties, these services shall be considered
as having been agreed to by the mere approval of
ComBanc’s proposal to the Authorized Agent, including
operating conditions and fees, which shall form an integral part
of the
respective current Appendices to the present agreement, as
applicable.
|
| 21.2 | The Participant may opt not to accept the new services. |
| 22. | KNOWLEDGE OF THE SYSTEM |
|
22.1
|
The
parties
undertake to make each of their customers, in an express and timely
manner, familiar with the characteristics, potential outcomes and
inherent
risks of a high value payment clearance and remittance service, as
established in this agreement, so that such customers will assume
in an
informed and responsible manner the risks and responsibilities of
signing
this contract.
|
|
22.2
|
Consequently,
the Participant shall have the exclusive obligation of
making its customers aware of the conditions governing the providing
of
the services subject to this agreement, as well as of informing those
customers of the conditions governing the high value payment clearance
and
remittance service. Notwithstanding, in some cases, those agreements
might
run counter to the purpose and terms of the present
service.
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Service
Participant
Operating Contract for the High Value Payments Clearing House
Page 12 of
15
23. LIFE
OF THE PRESENT AGREEMENT
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23.1
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The
term of
the present agreement shall be indefinite. Without prejudice to the
foregoing, either party may terminate this agreement by giving notice
to
the other via certified mail sent to the address indicated herein
at least
one hundred twenty (120) days in advance. For the purpose of the
present
agreement, it shall be understood that the parties will maintain
the
addresses indicated in the introductory part of this agreement, except
if
notice is given by certified mail of a change in address, which must
indicate the complete new address.
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23.2
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Notwithstanding
the foregoing, providing of the services subject to this agreement
shall
terminate in advance in the following
cases:
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a.
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Bankruptcy,
insolvency, cessation of payments or proposals of payment agreements
with
its creditors on the part of ComBanc or the
Participant;
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b.
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Mutual
agreement by ComBanc and the Participant
to terminate in advance;
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c.
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At
the request
of the properly performing party, in the case of gross non-performance
of
the contractual obligations, in part or in whole, by
ComBanc or the Participant, such
non-performance will be ruled upon by a subsequently appointed
arbitrator.
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24. ASSIGNMENT
OF THE AGREEMENT
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24.1
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It
is
expressly stipulated that neither party may assign or transfer for
any
reason whatsoever the rights under this agreement, except with the
express
written authorization given in advance by the other
party.
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25. NON-EXCLUSIVITY
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25.1
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The
present
agreement does not grant exclusivity to either party, and both may
request
and provide similar services to other institutions or companies in
general.
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26. PENALTY
INTEREST
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26.1
|
In
the event
that any sums of money owed by the Participant to
ComBanc are not paid
within
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Service
Participant
Operating Contract for the High Value Payments Clearing House
Page 13 of
15
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the
agreed-upon time, they shall be subject to the maximum rate of interest
allowed under the law for credit and lending transactions; such interest
shall be converted to local currency at the rate in effect on the
day of
default, and the interest shall run from that date until the actual
date
on which the payment obligation is met.
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| 27. | ARBITRATION |
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27.1
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Any
disagreements, disputes or conflicts arising between the parties
for any
reason and under any circumstance that relate directly or indirectly
to
this agreement, or to any of its clauses, including but not limited
to the
agreement’s effects, term, application, interpretation, performance,
non-performance, validity or invalidity, nullity or cancellation,
existence or non-existence, shall be submitted to an arbitrator in
accordance with the provisions of Chapter 15, “Resolution of Disputes” of
the Regulations. The arbitrator shall be appointed by mutual agreement
between the parties, and absent such an agreement, by the Chamber
of
Commerce of ▇▇▇▇▇▇▇▇ ▇.▇. (the “Chamber of Commerce”), upon whom the
parties confer a special irrevocable mandate for such purposes. The
mere
fact that either party appeals to the Chamber of Commerce for naming
an
arbitrator shall imply the existence of a disagreement between the
parties
respecting the amicable designation of an
arbitrator.
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27.2
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Without
prejudice to the foregoing, the parties may opt for technical mediation
conducted by a mutually-agreed-upon expert. This mediation shall
not pose
an impediment to the aforementioned
arbitration.
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28. GENERAL
PROVISIONS
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28.1
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Separation
of clauses: In the event that any provision embodied in this
agreement or its Appendices is declared null, legally flawed or
ineffective, it is hereby stipulated that such determination shall
affect
only the provision in question, and the remaining clauses of the
agreement
and/or its Appendices shall continue in full force and
effect.
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28.2
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Conflicting
rules or regulations: In the event of a conflict upon rules
and/or regulations, the following order of precedence shall
apply:
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a.
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Operating
rules and regulations of the Sociedad Operadora de ▇▇ ▇▇▇▇▇▇ de
Compensación de Pagos de Alto Valor
S.A.
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Service
Participant
Operating Contract for the High Value Payments Clearing House
Page 14 of
15
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b.
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Service
Participant Operating Contract for the High Value Payment Clearance
and
Remittance Service
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c.
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Appendices
to
the present agreement
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28.3
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Domicile:
The present parties elect their domiciles in the city of ▇▇▇▇▇▇▇▇
de
Chile, and submit to the jurisdiction of the arbitration court indicated
in Clause 24.
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28.4
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Execution
of this agreement: This agreement is
executed and signed in two (2) copies with the same content, with
one (1)
copy being given to each of the
parties.
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28.5 Legal
Status:
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The
legal
status of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to act on behalf of the Sociedad
Operadora de ▇▇ ▇▇▇▇▇▇ de Compensación de Pagos de Alto Valor S.A. is
embodied in the public instrument dated October 13, 2004, made and
executed before ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Notary in
Santiago.
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The
legal
status of Oscar von ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to act on behalf of the Banco
Santander-Chile is embodied in the public instrument dated July 23,
2003,
made and executed before ▇▇▇▇▇ de la Fuente ▇▇▇▇▇▇▇▇▇, Notary in
Santiago.
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/s/
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
/s/ Oscar von ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
Chief Executive
Officer
Sociedad
Operadora de ▇▇ ▇▇▇▇▇▇
de
Banco Santander-Chile
Compensación
de Pagos de Alto Valor S.A.
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
General
Manager
Sociedad
Operadora de ▇▇ ▇▇▇▇▇▇ de
Compensación
de Pagos de Alto Valor S.A.
Service
Participant
Operating Contract for the High Value Payments Clearing House
Page 15 of
15
APPENDIX
No.
3
Fee
System
Introduction:
The
fees that will
apply to participants of the “Servicio Cámara de Compensación de Pago de
Alto Valor” (High Value Clearing House Payment Service) are based on the
following concepts:
a)
Connection:
A
one-time payment
is made when signing the contract for services covering connection, testing,
start-up, training and support provided by
ComBanc.
As
of August 1,
2005, there is no charge for connection.
b)
Operation:
There
is a monthly
payment for operation of the High Value Clearing House Payment and
Delivery-Against-Payment services.
In
accordance with
the “Regulations”, the billing allowed by ComBanc for operation, with respect to
the number of participants, has a fixed component equivalent to 50.9% and a
variable component equivalent to 49.1%.
The
Fixed Component
has an identical quota for all Participants.
The
Variable
Component is determined according to the percentage of participation in total
net exchange sight balances in domestic currency of all the participants,
determined as of the end of January 2003. A minimum percentage of 0.01% will
be
applied to those participants who in January 2003 had no share in the total
net
exchange sight balances in domestic currency.
For
purposes of this
agreement, 24.81% of the variable component of the projected billing will be
applied to the Banco Santander-Chile.
Consequently,
the
operating fees are:
Fixed
Component: UF
243 (Two hundred forty three UFs);
Variable
component:
UF 1,339 (One thousand three hundred thirty-nine UFs)
Appendix
3
Page 1 of 3
Page 1 of 3
c)
SWIFT
message reimbursement:
The
Participant must
reimburse ComBanc for expenses incurred by it on behalf of the
Participant in regards to sending Transfer-of-Funds Instructions through Swift
to a Payment System, or for messaging to the DCV and to the banks, that derive
from payment operations undertaken by the Participant.
d)
Authorization and power of attorney:
In
accordance with
letter c) above, the Participant grants and confers power of attorney to
ComBanc to act on its behalf for receiving and paying invoices
for messaging services charged by SWIFT and initiated by
ComBanc for sending messages on behalf of the Participant through the
Communications Network.
ComBanc,
acting through its own authorized agents, accepts the power of attorney herein
conferred, without prejudice to stipulating that this power of attorney will
be
exercised only pursuant to authorization given by the Participant.
For
the proper
implementation of this power of attorney, the parties stipulate the
following:
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a)
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That
the fees
to be paid to SWIFT by ComBanc shall be
disbursed by the latter, subject to reimbursement by the
Participant;
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b)
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That
the fees
to be paid to SWIFT by ComBanc shall not
be paid by ComBanc’s
employees;
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c)
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That
any sums
paid to SWIFT in exercise of said power of attorney shall
be recorded in special books, indicating the name of the beneficiary
so as
to facilitate reimbursement to ComBanc,
and
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d)
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That
in any
exempt invoices that ComBanc issues to the banks, the
different items in question will have to be clearly detailed and
itemized
so that the banks can proceed with reimbursement, with these supporting
documents serving as sufficient verification of the reporting obligations
of the holder of power of attorney.
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e)
New
services:
New
services are any
services that the Board of Directors of ComBanc may establish,
and which the Participant decides to use.
Appendix
3
Page 2 of 3
Page 2 of 3
Billing
and
payment
The
billing and
payment for the services subject to this Appendix shall be made in national
currency, in accordance with the value given the UF on the last day of the
month in which the service is provided.
The
user must pay
the amount of this invoice within ten (10) days following its
receipt.
If
said invoice is
not paid when due, payment must be made of the value of the UF that is in effect
on the actual payment date, for which a supplementary invoice will be issued
covering the difference.
Any
and all sums
that the user owes ComBanc that are not settled on the corresponding due dates,
shall be subject to the maximum interest rate allowed by law on loan and credit
transactions, adjusted to local currency in accordance with the rate in effect
on the day of default.
Commencement
of Fees
The
fees shall
become effective from the first month of operation of the Clearing
House.
Appendix
3
Page 3 of
3