Attached files
| file | filename |
|---|---|
| EX-10.BK - FORTIS BANK GENERAL CREDIT OFFER DATED OCTOBER 19, 2005 (ENGLISH TRANSLATION) - MET PRO CORP | mpr201002bv1exbk.htm |
| EX-10.BL - POSITIVE NEGATIVE MORTGAGE STATEMENT DATED OCTOBER 19, 2005 (ENGLISH TRANSLATION)` - MET PRO CORP | mpr201002bv1exbl.htm |
| EX-10.BM - GENERAL CONDITIONS OF FORTIS BANK (ENGLISH TRANSLATION) - MET PRO CORP | mpr201002bv1exgc.htm |
| 8-K - FORM 8K - MET PRO CORP | mpr201002bv1.htm |
| [English Translation]
|
Exhibit (10)(bn) |
| FORTIS |  |
General credit
conditions of Fortis Bank (Nederland) N. V.
These General
Credit Conditions of Fortis Bank (Nederland) N.V. consist of:
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1.
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Definitions
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2.
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General
provisions
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3.
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Provisions
applicable to Credit Facilities
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4.
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Provisions
applicable to Loans
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5.
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Provisions
applicable to the furnishing of
security
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(Version dated
March 2007)
This
is a translation
of the Dutch text of the General Credit Conditions
of
Fortis
Bank (Nederland) N.V..
In
the event of any discrepancy between the English and Dutch texts, the Dutch
text of the
General Credit Conditions shall prevail.
1. Definitions:
In these general
credit conditions the following definitions apply:
1.1. General
Conditions:
The General
Conditions a copy of which was filed by the Netherlands
Bankers' Association at the registry of the District Court of
Amsterdam on 22 December 1995;
1.2. General
Credit Conditions:
These General
Credit Conditions of Fortis Bank (Nederland) N.V.;
1.3. Bank:
Fortis Bank
(Nederland) N.V.;
1.4. Plant
and Equipment:
Goods pledged or
yet to be pledged by the Pledgor to the Bank and forming part of its plant and
equipment in the broadest sense of the word, as described in the Deed of
Pledge;
1.5. Depositary
Receipts:
The depositary
receipts for shares pledged or yet to be pledged by the Pledgor to the bank, as
described in the Deed of Pledge;
1.6. Client:
The natural or
legal person or persons, both together and individually, who have entered into a
Credit Agreement with the Bank;
1.7. Credit
Facility:
Overdraft
facilities, contingent liability facilities, credits against securities,
multipurpose facilities and all other forms of credit, with the exception of
Loans, granted or yet to be granted by the Bank to the Client;
1.8. Credit
Agreement:
An
agreement in effect between the Client and the Bank, whether or not in the form
of a credit offer letter from the Bank to the Client and accepted by the Client,
in which a Credit Facility or Loan has been or is made available and in which
the General Credit Conditions are declared applicable:
1.9. Credit
Documentation:
The Credit
Agreement, a Deed of Pledge and any other written document in which agreements
between the Bank and the Client in relation to the Credit Facility and/or the
Loan have been or are recorded;
1.10.
Loan:
Fixed interest
loans, roll-over loans and revolving loan facilities from the Bank to the
Client;
1.11. Deed
of Pledge:
Each notarial deed
or private deed concluded by the Bank in which the Pledgor pledges or undertakes
to pledge Goods, Receivables, Depositary Receipts and or Rights to the Bank, and
in which the General Credit Conditions have been declared applicable;
1.12.
Pledgor:
The Client or a
third party who has granted a pledge for the Client to the Bank;
1.13. Pledge
Lists:
The documents
referred to in article 5.4.9;
1.14.
Rights:
Specific rights
pledged or yet to be pledged by the Pledgor to the Bank, including copyrights,
patents, trademark rights and trade names, as specified in the Deed of Pledge;
1.15. Secured
Obligations:
Any and all claims
that the Bank has or will have against the Client and the Pledgor (both together
and individually) on any grounds whatsoever;
1.16. Stack:
Goods pledged or
yet to be pledged by the Pledgor to the Bank and forming part of its
stock-in-trade in the broadest sense of the word, as described in the Deed Of
Pledge;
1.17.
Receivables:
Claims/receivables
pledged or yet to be pledged by the Pledgor to the Bank as described in the Deed
of Pledge and those which the Pledgor may have at any time against third
parties as evidenced by the records kept by the Pledgor;
1.18.
Goods:
The movable assets
pledged or yet to be pledged by the Pledgor to the Bank as described in the Deed
of Pledge:
1.19.
Borrowing Base:
In
so far as applicable, the aggregate of the base limit included in the Credit
Agreement and the net advance financing value of trade receivables and
stock-in-trade available for advance financing, for which purpose the
advance financing values will be determined by the Bank on the basis of the
advance financing rates agreed with the Client.
2.
General provisions
2.1. Applicability:
The General Credit
Conditions are applicable to and form part of all Credit Documentation and other
agreements in which the General Credit Conditions are declared applicable. In so
far as the provisions of the General Credit Conditions differ from the
provisions in the Credit Documentation or the provisions of other agreements
concerned, the provisions of the Credit Documentation or other agreements shall
prevail.
2.2. Banking
business:
The Client shall
transact as much of its banking business as possible through the
Bank
2.3.
Use:
The Client shall
not use the Credit Facility and/or the Loan to earn additional interest income
by means of transactions which cannot be deemed to be part of its normal
business.
2.4. Annual
report:
If
the Client runs a business, it shall supply the Bank each year with a copy of
its annual report (including the explanatory notes) after the report has been
prepared, but in any event within six months after the end of the financial
year; the report shall bear a positive auditor's statement.
2.5.
Criteria for financial ratios:
The criteria for
the financial ratios included in the Credit Documentation have been determined
on the basis of generally accepted accounting principles which are now
applicable to the Client. If these rules are changed at any time or other rules
are used (on the basis of international developments such as the introduction of
international Financial Reporting Standards IFRS) that would cause the outcome
of these ratios to change (if circumstances otherwise remain the same), the
Client shall be obliged to notify the Bank immediately about the nature and
consequences of the changed rules. The Client shall for this purpose supply the
Bank with a comparison to the ratios as calculated on the basis of the current
rules for financial reporting with the ratios as calculated on the basis of the
new rules. In this case the Bank shall have the right to redefine the criteria
for – or the manner of calculation of – the said financial ratios. Before doing
so, the Bank shall consult with the Client in order to give the Client the
opportunity to make known its views on the new criteria to the
Bank.
2.6.
Tax return:
If the Client is a
natural person, the Client shall supply the Bank with a copy of its income tax
return every year after the return has been prepared, but in any event no later
than six months after the end of the year of assessment.
2.7.
Insurance:
The Client and the
Pledgor shall ensure that all their movable and immovable assets are and remain
properly insured at all times against the usual risks in the business of the
Client or the Pledgor (including the risk of consequential loss). The Client and
the Pledgor shall be obliged to hand over for safekeeping to the Bank - at its
first request - the insurance policies and proof of payment of the premiums. If
the Client or the Pledgor fails to perform the Obligation of having satisfactory
insurance, the Bank may take out or maintain (additional) insurance for the movable and
immovable assets at the expense of the Client or the
Pledgor.
The Bank shall be
entitled at all times to inform the insurance company of the pledge in favour of
the Bank.
2.8. Joint
and several liability:
If
the Client consists of more than one natural or legal person, each Client shall
be jointly and severally liable for everything which the Bank is or will be
entitled to claim from the Client on any grounds whatsoever. By signing the
Credit Agreement each Client subordinates in favour of the Bank all present and
future claims which it may have by way of recourse and/or subrogation against
that other Client to all present and/or future claims which the Bank has against
such other Client on any grounds whatsoever, as a result of which the Client
cannot enforce its claims against the other Client as long as the Bank has any
claim against that Client. By signing the Credit Agreement, each Client pledges
to the Bank all its present and future Receivables against another Client by way
of recourse and/or subrogation and hereby declares that it is entitled to create
such pledge. Notice of this pledge is hereby given to each Client. By signing
the Credit Agreement the Client also undertakes to grant such a pledge by
private deed to the Bank at its first request. If the Bank has released a Client
from such joint and several liability or makes some arrangement with the Client,
whether or not in full and final settlement, this shall occur only subject to
the reservation that the other Clients remain fully jointly and severally liable
for the entirety of the claim of the Bank. The share of the Client discharged
from joint and several liability may not be deducted by the other Clients from
their joint and several liability.
2.9.
Provision of security for third parties:
Without the prior
written consent of the Bank, the Client shall not grant any real or personal
security to third parties as long as it owes any amount to the Bank on any
grounds whatsoever or may owe any amount to the Bank under any Credit Facility
and/or Loan (negative pledge).
2.10.
Taxes and costs:
All taxes other
than on profit and other fees which are levied or charged at any time on the
amounts that the Client owes to the Bank, and all costs that the Bank bears as a
result of its relationship with the Client (whether or not as a consequence of
court proceedings) and costs that the Bank reasonably incurs in entering into
the Credit Agreement and preparing the Credit Documentation and exercising its
rights thereunder – including without limitation the costs of
collection of
debts, costs of experts and costs of litigation - shall be borne by the Client.
The costs of legal assistance incurred in proceedings before a court or dispute
resolution committee in respect of a dispute between the Client and the Bank
shall be borne by the Client or, as the case may be, by the Bank if and in so
far as this is determined in the judgment of the court or the ruling of the
dispute resolution committee. The costs which the Bank must incur (whether or
not as a consequence of court proceedings) if the Bank becomes involved in
proceedings or disputes between the Client and a third party shall be borne by
the Client.
If
statutory provisions and rules or guidelines, whether or not having the force of
law, (including measures, instructions or guidelines of any central bank), for
example those relating to solvency, liquidity and other reserves, are amended or
introduced, or the interpretation or application thereof is changed, thereby
causing: (i) a reduction in the return on the Bank's capital, in so far as this
relates to the Credit Documentation or the amounts received or yet to be
received by it pursuant to the Credit Documentation, (ii) the imposition on the
Bank of any obligation in connection with the conclusion or performance of its
obligations under the Credit Documentation and/or (iii) an increase in the costs
– or the imposition of additional costs – in connection with the provision,
continuation or funding of the Credit Facility and/or the Loan, the Client
shall, at the first request of the Bank, pay such an amount to the Bank as is
necessary according to the written statement of the Bank in order to indemnify
it in respect of such reduction or obligation or in respect of the imposition of
or increase in costs.
All costs connected
with the establishment of pledges and all other costs that may be incurred at
any time in connection with the matters agreed in the Credit Documentation, such
as the costs of all judicial and extrajudicial acts and assistance which the
Bank may consider necessary in order to enforce and exercise its rights under
the Deed of Pledge, shall be borne by the Pledgor and the Client, who are
jointly and severally bound to pay these costs, The Bank shall be entitled, as
soon as it so wishes, to pay the above-mentioned costs for the account of the
Pledgor.
2.11. Information:
The Client shall,
either at the first demand of the Bank or on its own initiative, supply the Bank
with all information and data about its business which could be of importance to
the Bank and shall allow the Bank and experts appointed by
the Bank to inspect
its books and related documents at any time. The related costs and costs
connected with extra work shall be borne by the Client. The Client shall also
inform the Bank in good time about special developments in its business. If the
Client becomes aware that it is unable to fulfill the obligations and/or
conditions laid down in the Credit Documentation or if a default occurs or is
likely to occur, the Client shall notify the Bank of this as quickly as
possible.
The Pledgor shall
always immediately notify the Bank of any circumstances or acts that could be of
importance in relation to the Goods, Receivables, Rights or Depositary Receipts,
such as:
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the filing
with the court of a petition for the bankruptcy of the debtor against whom
a Receivable lies;
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a request for
the granting a moratorium on the payment of debts to the debtor against
whom a Receivable lies;
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a
notification of the inability of the debtor against whom a Receivable lies
to pay tax debts and/or social security contributions and/or contributions
to an occupational pension fund;
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an
infringement by a third party of one or more of the
Rights.
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2.12.
Representations:
By
signing the Credit Documentation, the Client represents and
warrants:
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that it
possesses all the consents and authorizations necessary for the
conclusion, legal validity, performance and enforceability of the Credit
Documentation;
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that there
are no pending civil, administrative or criminal proceedings or
arbitration in which it is involved and which can reasonably be expected
to have a material adverse effect on its business, assets or financial
position and that in so far as it is aware no such proceedings or
arbitration are expected;
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that it is
not in default under any contract or any obligation to pay any amount of
money under a credit or loan.
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2.13. Information
to third parties:
The Client agrees
that the Bank may inform a Pledgor and a third party who has acted as surety
and/or guarantor for the Client or who has in some other way acted in support of
the Client, about the financial position of the Client and about everything
which may be of importance to the Pledgor and the relevant third party
connection with the Credit Facility and/or the Loan.
2.14.
Transfer of contract:
The Bank shall be
entitled to transfer its contractual relationship with the Client, by means of a
deed of transfer, wholly or partly to another financial institution or, in the
context of securitization, to a special-purpose company. By signing the Credit
Documentation the Client gives its consent in advance to the transfer of
contract. Where appropriate, the Bank shall notify the Client of a transfer of
contract, either before or after it takes place.
2.15. No
waiver of rights:
If
the Bank fails at any time to require performance of any obligation to which the
Client is subject or fails to exercise any power to which it is entitled, this
shall not mean that the Bank waives its right to claim performance of the
obligation or to exercise the right concerned.
2.16. Changes:
The Credit
Documentation may be changed only by a written communication by the Bank to the
Client or the Pledgor, or by a written agreement between the Bank and the Client
or the Pledgor.
2.17. Statement
of address by the Client:
The Client shall
inform the Bank of the address to which the documents intended for it should be
sent. The Client shall give written notice of any change of
address.
2.18.
Address for service:
To
provide for the eventuality that the Client does not at any time have an
address or place of abode known to the Bank in a municipality in The
Netherlands, the Client hereby chooses as its address for service the office of
the Bank at Blaak 555, Rotterdam, the Netherlands, where all papers,
notifications, writs and other documents intended for it will be delivered or
served by the Bank.
2.19. Involvement
of third parties:
In
executing the instructions of the Client and in performing other agreements with
the Client, the Bank shall be entitled to use the services of third parties and
to hand over goods and/or negotiable instruments of the Client to third parties
for custody in the name of the Bank. The Bank shall exercise due care in
selecting such third parties. If the Bank proves that it has exercised due care
in making its selection, it shall not be liable for shortcomings by such third
parties.
2.20. Bank
or third parties as counterparty:
In executing
instructions for the purchase and sale of goods and/or negotiable instruments
the Bank shall be entitled at its discretion to deal with itself or with third
parties as counterparty.
2.21. Risk
of Dispatches:
If the Bank
dispatches monies or securities to the Client or to third parties on the
instructions of the Client, such dispatch shall be at the Bank's risk. If the
Bank dispatches other goods and/or
negotiable instruments to the Client or to third parties
on the instructions of
the Client, such dispatch shall be at the Client's
risk.
2.22. Instructions
etc. intended for more than one branch:
Instructions,
statements and communications of the Client to the Bank shall be addressed
separately to each of the branches of the Bank for which the
instructions, statements and communications concerned are intended, unless
the Bank has expressly designated a different address. If written instructions,
statements and communications are intended for a branch of the Bank – expressly
specified by the Client – other than the
branch which receives them, the latter shall arrange for them to be forwarded to
the correct branch.
2.23. Changes
in the power to represent the Client:
if
the Client has granted a power of representation to any person, it shall be
obliged. Irrespective of whether it is entered in the public registers, to
notify the Bank in writing of any change in or withdrawal of such power, failing
which the change or withdrawal may not be invoked as an argument against the
Bank.
2.24. Use
of forms:
The Client shall
ensure that instructions, statements and communications to the Bank are clear
and contain the correct data. The Bank shall carry out instructions for fund
transfers on the basis of the account number quoted by the Client and shall not
be obliged to verify the correctness of the data specified in the instructions.
Forms should be completed in full by the Client. Other information carriers or
means of communication approved by the Bank shall be used by the Client in
accordance with the instructions of the Bank. The Bank shall be entitled not to
carry out instructions if the Client for this purpose does not use the forms
adopted or approved by the Bank or other information carriers or means
of
communication
approved by the Bank. The Bank may require
that communications be made in a particular form.
2.25.
Evidential value of bank records:
An
extract from the Bank's records signed by the Bank shall serve as complete proof
vis-à-vis the Client, subject to evidence to the contrary provided by the
Client.
2.26. Verification
of bank documents:
It
the Bank discovers that it has made an error or mistake in confirmations, bank
statements, advice notes or other statements to the Client, the Bank
shall be obliged to notify the Client of
this as
soon as possible. The Client shall be
obliged to verify immediately after receipt the confirmations, bank statements,
advice notes or other statements sent to it by the Bank. The Client shall also
verify whether the instructions given by it or on its behalf nave been correctly
and fully executed by the Bank. If it
discovers anything to be incorrect or incomplete, the Client shall notify
the Bank of this as soon as possible. In the cases referred to above the Bank
shall be obliged to rectify its errors and mistakes.
2.27. Approval
of bank documents:
If
the Client has not disputed the content of confirmations, bank statements,
advice notes or other statements of the Bank to the Client within twelve months
of the date on which it may reasonably be assumed that the documents reached the
Client, the content of such documents shall be deemed to have been approved
by the Client. If calculation errors occur in such documents the Bank shall be
authorized and obliged to correct such errors even after the said period of
twelve months has expired.
2.28. Loss
etc. of forms:
The Client shall
carefully keep and treat the forms, information carriers and means of
communication made available to it by the Bank. If the Client discovers any
irregularity such as loss, theft or misuse of such forms, information carriers
or means of communication, it shall immediately inform the Bank of this. Until
the moment when the Bank receives
this communication, the consequences of the use of such forms,
information carriers or means of communication shall be for the account and risk
of the Client, unless the Client shows that the blame can be imputed to the
Bank. Thereafter the consequences shall be for the account
and risk of the
Bank, unless the Bank proofs that intent or gross negligence can be imputed to
the Client. A communication concerning any irregularity shall be confirmed in
writing by the Client to the Bank. If the relationship between the Client and
the Bank has been terminated, the Client shall be obliged to return to the Bank
any unused forms and any other information carriers and means of communication
that have been made available to it by the Bank.
2.29. Crediting
and debiting of interest:
The Bank shall
credit or debit the current interest to the account of the Client at points of
time determined by the Bank, but at least once a year. If the date on which the
current interest is credited to the said account does not coincide with the date
on which the current interest is debited to that account, the Bank shall notify
the Client of this in writing.
2.30. Commissions
and fees:
The Bank shall be
entitled to charge commissions and fees to the Client for its services. If the
amount of the commissions and fees has not been agreed in advance between the
Client and the Bank, the Bank shall charge its usual commissions and fees. The
Bank shall ensure that information about this is in any event available at its
branches.
2.31. Crediting
subject to reservation:
Each credit entry
shall be made subject to the reservation that if the Bank has not yet received
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 Client's euro account has been credited on account of
documents denominated in a foreign currency or on account of other items which,
as far as the euro 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 Client could have acquired such foreign currency or such items on
the day of the reversal.
2.32.
Lien:
The Bank shall have
a lien on all goods, documents of title and securities which are in possession
or will come into the possession of the Bank or a third party on the Bank's
behalf from or for the benefit of the Client on any account whatsoever and on
all shares forming part of a collective deposit within the
meaning of the
Securities Giro Administration and Transfer Act ("Wet giraal
effectenverkeer") which are in the possession or will come into the
possession of the Bank, as security for all and any present and future debts
owing by the Client to the Bank on any account whatsoever. In its capacity as
the Client's attorney the Bank is authorized to pledge all present and future
debts owing by the Bank to the Client on any account whatsoever to the Bank
itself as security for all and any present or future debts receivable by the
Bank from the Client on any account whatsoever.
2.33. 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 Client, whether or not due and payable and whether or not contingent,
against any debts owed by the Bank to the Client, whether or not due and
payable, regardless of the currency in which such debts are denominated.
Debts in foreign currency shall be set-off at the exchange rate on the day of
set-off. The Bank shall, if possible, inform the Client in advance that it will
exercise its right of set-off.
The provisions of
the General Conditions relating to the right of set-off shall not
apply.
2.34. Provision
of security towards the Bank:
The Client Shall be
obliged, on request, to provide sufficient security for the performance of its
existing obligations to the Bank. If the security that has been provided has
become insufficient, the Client shall be obliged, on request, to supplement or
replace such security. A request as referred to above shall be made in writing
and shall specify the reason for the request. The amount of the requested
security shall be in a reasonable proportion to the relevant obligations of the
Client.
In
addition to the obligation to provide security for the performance of its
existing obligations to the Bank, the Client shall be obliged at all times to
provide sufficient security for the performance of its obligations under
any new or additional Credit Facility and any new or additional Loan if
requested.
2.35. Provision
of Loan/Credit Facility:
After all
conditions precedent specified in the Credit Documentation have been fulfilled
(including the provision of security, if this has been agreed) to its
satisfaction, the Bank shall provide the Loan and/or the Credit Facility to the
Client.
2.36.
Termination of the relationship:
The relationship
between the Client and the Bank may be terminated both by the Client and by the
Bank. If the Bank terminates the relationship, it shall inform the Client, at
request, of the reason for the termination. After termination of the
relationship the individual agreements between the Client and the Bank shall be
wound up as soon as possible accordance with the terms applicable to them. If
the relationship is terminated and the Loan and/or the Credit Facility is
terminated or demanded, the General Credit Conditions shall remain in force as
long as the Client has not fulfilled its obligations to the Bank in any respect
whatsoever.
2.37. Default:
Without prejudice
to the right of the Bank to terminate the Credit Facility forthwith in
accordance with Article 3.5, the amounts owed under the Credit Facility and
the Loan and the other amounts owed by the Client to the Bank in this respect
shall be due and payable without prior notice of default – and the Client shall
consequently be in default vis-à-vis the Bank and the Bank shall be entitled to
demand that the subject of the security granted to the Bank are immediately
transferred to its control or that of a third party – in the following
cases:
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If the Client
and/or the Pledgor fails to perform one or more of the obligations entered
into in respect of the Credit Documentation, the obligations specified in
these General Credit Conditions, or any other obligation on any grounds
whatsoever in relation to the Bank;
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if the Bank
has grounds for fearing that the Client and/or the Pledgor will fail to
perform one or more of the obligations entered into in respect
of the Credit Documentation, the obligations specified in these General
Credit Conditions, or any other obligation on any grounds whatsoever
in relation to the Bank;
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if a request
for a moratorium on the payment of debts is submitted by the
Client and/or the Pledgor or if the Client and/or the Pledgor
is/are granted a provisional moratorium on the payment of
debts;
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if a petition
is filed for the bankruptcy of the Client and/or the Pledgor or if the
Client and/or the Pledgor is/are declared
bankrupt;
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| - | if the goods of the Client and/or the Pledgor are seized pending judgment or by way of execution and the seizure is not lifted within four weeks; |
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if the legal
form of any of the Client and/or the Pledgor is changed or if any
of the Client and/or the Pledgor, being a legal person, ceases to
exist or is liquidated, or if any of the Client and/or the Pledgor
terminates its business
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if it appears
that any of the information provided by or any of the representations
made by the Client and/or the Pledgor, when entering into the Credit
Documentation, was inaccurate or incorrect and the Bank
would not have entered into the relevant agreement or would have entered
into it on different terms if it had obtained the correct information or
had received the correct representations;
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if the Client
or the Pledgor, being a natural person, dies, is made the subject of a
guardianship order or debt management plan, becomes legally incompetent in
some other way, settles in another country, changes the matrimonial
property system applicable to it, any community of property applicable to
the marriage of the Client or the Pledgor is dissolved, or the assets of
the Client or the Pledgor are put under
administration;
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if the
business (or part at the business) of the Client and/or the Pledgor or
control of the business of the Client and/or the Pledgor is transferred,
without the prior consent of the Bank;
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if the
relationship between the Client and the Bank is
terminated;
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| - | if the nature of the business of the Client and/or the Pledgor undergoes a material change after the date of the Credit Documentation, without the prior written approval of the Bank | |
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if the Client
and/or the Pledgor fails to perform any of its/their obligations towards
third parties, or such obligations towards third parties become due and
payable before their maturity for any reason whatsoever or may become due
and payable forthwith on demand;
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if any
amendment is effected in the articles of association of the Client and/or
the Pledgor which amendment, in the view of the Bank, has a material
adverse effect on the Bank's position under the Credit
Documentation;
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if an event
occurs which, in the opinion of the Bank, has a material adverse effect
on:
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the
(financial) condition, business, assets or other prospects of the Client;
and/or
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the ability
of the Client to perform its obligations on the basis of the Credit
Documentation; and/or
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the validity
and enforceability of the Credit Documentation or of any right of the Bank
on the basis thereof.
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The Client and the
Pledgor undertake to notify the Bank forthwith if one of the above-mentioned
circumstances – or any other circumstance that may be of importance to the Bank
in connection with the enforcement of its rights under the Credit Documentation
– occurs.
2.38. Extra
fee:
lf
interest and/or repayments (or early repayments) and/or other amounts owed are
not paid in due time, the Client shall owe the Bank an extra fee, due and
payable forthwith, amounting to one percent per month of the amount not paid to
the Bank in time, for which purpose a part of a month shall be treated as a full
month. This extra fee shall not take the place of compensation payable by law.
The Bank may claim performance of the payment of this extra fee even if the late
payment cannot be attributed to the Client.
2.39. Liability
of the Bank:
The Bank shall be
liable if a failure in the performance of an obligation owed to the Client is
attributable to its fault or if such fault is its responsibility by law, under a
legal act or according to generally accepted practice.
In
so far as this is not already provided for by law, the Bank shall in any event
not be liable if a failure on the part of the Bank is a consequence
of:
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international
conflicts;
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acts
involving the use of force or weapons;
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measures of
any Dutch, foreign or international government
body;
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measures of a
regulatory authority;
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boycotts;
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labour
disturbances affecting third parties or among the Bank's own
staff;
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power cuts or
disruptions in communications or hardware of software of the Bank or third
parties.
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If a circumstance
as referred to in the previous paragraph occurs, the Bank shall take such
measures as can reasonably be expected of it in order to minimize the adverse
consequences for the Client.
2.40.
General Conditions:
In so far as not
provided otherwise in the General Credit Conditions, the
provisions the General Conditions used by the Bank (which
provisions are deemed
to
be repeated and incorporated herein) shall apply to the legal relationship
between the Bank and the Client.
2.41. Applicable
law and competent court:
Relations between
the Client and the Bank shall be governed by Dutch law. Disputes between the
Client and the Bank shall be submitted to the competent Dutch court, unless
legislation or international treaties contain mandatory provisions that provide
otherwise. If the Bank acts as plaintiff, it shall be entitled, notwithstanding
the above provisions, to bring proceedings before the foreign court having
jurisdiction over the Client. If the Client acts as plaintiff, it shall be
entitled, notwithstanding the above provisions, to submit proceedings, within
the limits of the relevant regulations, before the dispute and complaint
committees whose jurisdiction has been accepted by the Bank. The above shall
apply mutatis mutandis to the legal relations between the Bank and the
Pledgor.
3. Provisions
applicable to Credit Facilities
3.1. Interest
and commission:
On
debit balances related to a Credit Facility – other than a contingent liability
facility – denominated in euro the Bank shall charge interest consisting of the
aggregate of the base rate or other interest rate as agreed in the Credit
Documentation and an individual surcharge as specified in the Credit
Agreement. A change in the base rate of interest charged by the Bank shall be
published by the Bank in a national daily newspaper. On debit balances
denominated in foreign currency the Bank shall charge such interest as it may
determine. For the purpose of calculating interest on debit balances, a month
shall be deemed to have the actual number of days and the year to have 360
days.
3.2.
Imputation:
Payment of a sum of
money owed by the Client to the Bank shall be set off firstly against the costs,
thereafter against the interest owed and finally against the principal and
current interest. If the Bank recovers a claim against the Client from the
proceeds of the exercise of the security rights granted to the Bank, the
imputation scheme referred to in the Article 5.7.8 below shall
apply.
3.3. Excess
of the limit:
The Client shall
owe to the Bank a fee in an amount to be determined by the Bank on the amount by
which its debit balance exceeds the overdraft limit or, if lower, the Borrowing
Base, without prejudice to the other rights which the Bank has where the
overdraft limit or Borrowing Base is exceeded.
3.4. Entry
of debit interest and commission:
The debit interest
and commissions owed by the Client to the Bank shall be charged to the Client by
debiting a current account designated by the Bank in the name of the Client.
Debit interest shall be charged once a quarter in arrear, and the commission
shall be debited at such times as the Bank specifies.
3.5. Revocation:
Both the Bank and
the Client shall have the right to terminate a Credit Facility with immediate
effect, as a result of which the Client will no longer be entitled to use any
undrawn part of the Credit Facility. After revocation the Client shall remain
obligated to provide security for the performance of its obligations until
everything owed by the Client to the Bank has been paid. In addition,
the Client shall be obligated to pay the outstanding balance to the Bank within
such period as the Bank specifies. If the Bank does not specify any period for
payment of the outstanding balance, the Client shall clear the balance
forthwith.
3.6. Interest
compensation:
If
agreed in the Credit Agreement, the Bank shall apply interest compensation.
until further notice, in respect of the current accounts in the same currency in
the name of companies which belong to the Client's group and form a group in an
organizational and economic sense. In this context the Bank shall treat the
accounts as a single consolidated account, which means that interest will be
charged or paid on the consolidated debit and credit balances of the
accounts.
3.7. Interest
compensation conditions:
In
the context of the interest compensation the relevant companies shall pledge
their credit balances, as recorded on the accounts involved in the interest
compensation, to the Bank as security for all present and future claims of the
Bank against these companies.
3.8. Balance
compensation:
If
agreed in the Credit Agreement the Bank shall apply balance compensation, until
further notice, in respect of the current accounts in the name of companies
that belong to the Client's group and form a group in an organizational and
economic sense.
3.9. Conditions
for balance compensation:
In
the context of the balance compensation the relevant companies shall pledge
their credit balances, as recorded on the accounts involved in the balance
compensation, to the Bank as security for all present and future claims of the
Bank against these companies.
4. Provisions
applicable to Loans
4.1.
Interest review:
If
no agreement can be reached about the interest rate on the agreed date on which
the interest is to be adjusted, the Client shall – notwithstanding the following
provisions – be entitled to make early repayment of a fixed interest loan
in its
entirety on the date of this interest review or, as the case may be, the last
interest review, provided that the Client gives the Bank five working days'
notice in writing of its intention to make repayment. In the event of early
repayment in full of a fixed interest loan after an interest review, the Client
shall not owe any extra interest as referred to in Article 4.3. The above
mentioned right to early repayment shall not apply if a specific reference rate
of interest has been agreed between the Bank and the Client, as for example (but
not limited to) LIBOR or EURIBOR.
4.2. Calculation
of interest:
For the purpose of
calculating interest or extra interest, a month shall be deemed to have the
actual number of days and a year to have 360 days.
4.3. Early
repayment:
Early repayments of
the Loan, in whole or in part, are possible only with the Bank's prior written
consent to the Client. The Bank shall be entitled to attach conditions to such
consent. In the event of early repayment of a fixed interest loan, the Client
shall be obliged to pay additional interest equal to the cash
value
of
the agreed interest on the repaid amount, calculated over the remaining term of
the fixed-interest period of the fixed interest loan, less the cash value of the
interest that the Bank would receive by lending the amount of the early
repayment for such remaining term on the interbank market. In the case of a
rollover loan or a revolving loan, early repayment shall be possible only on the
last day of a fixed-interest period, and the Client shall be obliged to pay
additional interest equal to the cash value of the interest margin which the
Client would have paid the Bank during the remaining term of the roll-over loan
or a revolving loan if the early repayment had not taken place.
In
the event of default the provisions on early repayment shall apply mutatis
mutandis unless the Bank allows the Loan to continue, in which case the extra
fee referred to above in Article 2.38 will be owed.
4.4. Payments:
The Client shall
pay all amounts due under the Loan, without costs for the Bank and without any
deduction or set-off, in the currency of the Loan, The payments shall be set off
first of all against the costs, thereafter against the interest due and payable,
the additional interest that is owed and extra fees, thereafter against the
principal, and finally against the current interest, regardless of any
indication to the contrary when the payments are made. The payments shall
be
remitted to an account designated by the Bank and in such manner that the Bank
has the relevant amounts at its disposal on the due dates.
4.5. Deposit:
If
it has been agreed that the Bank will hold the amount of the Loan, in whole or
in part, on deposit, the Bank shall make payments from such deposit only after
it has
been proved to the satisfaction of the Bank that the value of the security
financed with the Loan has increased proportionally as a result of building,
refurbishment or finishing work. Any costs of a valuation incurred in
connection therewith shall be borne by the Client. Interest equal to the
interest rate charged for the Loan shall be paid – on a day-by-day basis – on
the deposit during a maximum term of six months (or such longer or shorter
period as is agreed in writing between the Bank and the Client) after the
opening of the deposit. If the deposit has not been drawn in full by the end of
this period, interest shall be paid on the residual amount for a period of six
months at a rate based on the interest rate applicable to the Loan less 1%.
Thereafter the Bank shall no longer pay any
interest on the
deposit. Interest on the deposit shall be paid at the same time as at which the
interest is charged on the Loan. The balance of the account on which the deposit
is kept is pledged to the Bank for all claims that the Bank has or will have
against the Client on any grounds whatsoever.
5. Provisions
applicable to security
5.1. The
Goods are pledged subject to the following provisions:
5.1.1.
Authority:
The Pledgor
declares that it is entitled to pledge the Goods and that the Goods are not
subject to any limited rights (encumbrances), with the exception of Goods that
have already been pledged to the Bank or that have been pledged to third parties
with the prior written consent of the Bank.
5.1.2.
New goods:
The pledge includes
all goods that are acquired by the Pledgor to supplement, replace or increase
the Goods or for any other reason (the term 'Goods' in the Deed of Pledge also
includes all new goods as referred to above). The Pledgor declares that it has
not transferred and will not transfer the Goods to another party, and that it
has not and will not grant a limited right on the said Goods in favour of
another party.
5.1.3. Storage
and maintenance:
The Pledgor shall
store, keep and maintain the Goods properly. All ordinary and extraordinary
costs incurred in storing, keeping and maintaining the Goods shall be borne by
the Pledgor.
5.1.4. Specification:
If
the Bank requires a further specification of the Goods at any time, the Pledgor
undertakes to supply the Bank with a detailed specification of the Goods on the
forms supplied to it by the Bank for such purpose. If Goods are not mentioned on
the above-mentioned specification or such a specification is lacking, this
cannot serve as proof that the Goods have not been pledged to the
Bank,
5.1.5.
Inspection:
The Pledgor hereby
grants to the Bank or its authorized representatives the right at all times to
satisfy itself/themselves as to the existence of the Goods and to examine their
condition and to enter the places and buildings where the Goods are located or
are assumed to be located.
5.1.6.
Different method of sale:
After the Bank has
become entitled to sell, the Bank and the Pledgor can agree on a different
method of sale. Only the Bank can request the president of the district court to
provide that the Goods will be sold other than at a public auction.
5.2.
The
following specific provisions apply to the pledge of the Plant and
Equipment:
5.2.1.
Use:
The Pledgor may
continue to use the Plant and Equipment in accordance with its nature and or
permitted use until the Bank withdraws its consent.
5.2.2.
Use by third parties:
Without the written
prior consent of the Bank the Pledgor may not allow all or part of the Plant and
Equipment to be used by third parties on any grounds whatsoever, unless the Bank
is aware that the use of the Plant and Equipment is occurring in the normal
course of business of the Pledgor (for example by way of hire or
lease).
5.2.3.
Prohibition on disposal:
Without the prior
written consent of the Bank the Pledgor may not wholly or partly dispose of the
Plant and Equipment or establish limited right on it for the benefit of third
parties.
5.2.4.
Link with mortgage:
The Plant or
Equipment which is, by common consent, intended to serve a specific item of
immovable property and is recognizable as such due to Its form, or the Plant or
Equipment intended to be used in carrying on a business in a factory or
workplace specifically set up for this purpose, is pledged to the Bank in
accordance with the Deed of Pledge for a claim of the Bank which is also secured
by a mortgage on the said immovable property, factory or workplace
or
on a limited riqht to which it is subject, the Bank shall be entitled to enforce
the pledge and the mortgage together in accordance with the rules relating to
mortgages.
5.3. The
following specific provisions shall apply to the pledge of Stock:
5.3.1. Disposal:
The Pledgor may, in
the normal course of its business, sell and transfer ownership of the Stock
as though they were not subject to a pledge, provided it ensures that (i)
it replenishes its Stock by acquiring new Stock and (ii) the proceeds of the
sale of the Stock are remitted to or deposited in one of its accounts at the
Bank. The Bank may revoke this consent whenever it wishes. A sale and/or
transfer of ownership to a buyer who belongs to the same group as the group of
which the Pledgor forms part shall not be treated as a sale in the normal course
of business of the Pledgor, unless the Bank has confirmed its agreement in
writing in advance to the Pledgor
5.4.
The
following provisions apply to the pledge of Receivables or the obligation
to pledge Receivables:
5.4.1. Warranties:
By
signing the Deed of Pledge, the Client represents and warrants:
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that it has
the full and unencumbered right to the Receivables and that it will have
the full and unencumbered right to all new Receivables if and when they
arise, and that it has or will have the right to dispose of and grant a
first pledge on the Receivables in favour of the Bank;
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that no
Receivables exist or will exist that have not been or, as the case may be,
will not be pledged in accordance with the provisions of the Deed of
Pledge;
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that it will
duly sign the forms and documents (including the Pledge Lists) to be
periodically submitted to the Bank.
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5.4.2.
Prohibition on disposal:
Without the prior
written consent of the Bank, the Pledgor may not transfer Receivables (whether
or not in advance) to others or establish a limited right on them (whether or
not in advance) in favour of others without the prior written consent of the
Bank.
5.4.3
Negotiable instruments:
At
the first request of the Bank the Pledqor shall immediately supply the Bank with
all receipts, bills of exchange, cheques or other documents, whether payable to
order or to bearer (in so far as they have not been given to a first pledgee),
issued or yet to be issued for the Receivables in question. If necessary, the
said documents shall be issued in the name of Bank or endorsed to the Bank or to
the order of the Bank.
5.4.4. Accounting
Data:
At
the first request of the Bank the Pledgor shall provide the Bank with all
information which is necessary and shall cooperate with the Bank in order to
exercise the rights of pledge granted or yet to be granted under the Deed of
Pledge. At the first request of the Bank the Pledgor shall also
enable the Bank to obtain whatever information from the Pledgor's accounts the
Bank may deem necessary to exercise its pledges.
5.4.5. Notice:
The Bank shall be
entitled at all times to give notice of any pledge to the debtors under the
relevant Receivables. The Deed of Pledge shall serve as a notice to the Bank or
the pledge of the Receivables to the Bank. After notice of the pledge of the
Receivables to the debtors, the Bank shall be solely entitled to demand
performance of the Receivables (whether or not in court
proceedings) and to receive payments, unless the Bank has granted this power to
the Pledgor in writing.
5.4.6. Ancillary
rights:
If
the debtor fails to pay the Receivables, the Bank shall be entitled to exercise
the ancillary rights relating to such Receivables, such as – but not limited to
– rights of pledge and mortgage and rights under a suretyship, privileges and
the power to enforce by way of execution rights in respect of the Receivables
and the ancillary rights. The Pledgor shall be obliged at the first request of
the Bank to provide the documents and evidence required in this respect. To the
extent legally required in order to exercise these ancillary rights, the Pledgor
hereby give the Bank an irrevocable power of attorney to exercise these
ancillary rights.
5.4.7. Amicable
settlements:
If
the Bank, after giving the debtors in question notice of the pledge of one or
more Receivables, considers entering into an amicable or judicial settlement
with a debtor, it shall inform the Pledgor thereof. The Pledqor may prevent
the
conclusion of the
settlement by making payment to the Bank of the relevant Receivable or
Receivables immediately after receipt of the above-mentioned notice. In the
event of payment in full by the Pledgor, the pledge of the relevant Receivable
or Receivables shall be extinguished.
5.4.8. Payments:
The Pledgor shall
ensure that the payments which the debtors make in respect of the pledged
Receivables are made to an account kept at the Bank in the name of the Pledgor.
If the Pledgor receives payment from the debtors other than by the crediting of
one of the accounts of the Pledgor at the Bank, the Pledgor shall forthwith
transfer the amounts received to or deposit them in one of its accounts at the
Bank. The payments which the Bank receives after it has become competent to
require the performance of one or more of the Receivables shall be credited
to an account in the name of the Client at the Bank.
5.49. Pledge
Lists:
The pledges of
Receivables shall be effected by means of the registration of the Pledge Lists,
or other documents evidencing the pledge to the satisfaction of the Bank. The
Bank shall be entitled at all times to require the Pledgor to make changes to
this documentation. The Pledgor undertakes to draw up, update, validly sign and
send the Pledge Lists and the relevant annexes to the Bank, or to a third party
designated by the Bank, at least once a month and also on the Bank's first
demand.
5.4.10.
Credit balances:
The Pledgor is
obliged – and by signing the Deed of Pledge grants the Bank as far as necessary
a power of attorney for such purpose – to pledge at all times Receivables of the
Pledgor against the Bank (for example credit balances and deposits) by means of
notarial instruments or private instruments as additional security for the
payment of the Secured Obligations.
5.5. The
following provisions apply to the pledge of Rights:
5.5.1.
Authority:
The Pledgor
warrants that it has the full and unencumbered entitlement to the Rights and
that it has the right to dispose of and grant a first pledge on the Rights in
favour of the Bank.
5.5.2. New
Rights:
The Pledgor
warrants that as soon as it acquires new Rights, including the right to use a
new trade name (these new rights and new trade name are deemed to be included
under the term Rights), it will immediately pledge them to the Bank by
submitting to the Bank an adjusted Deed of Pledge duly signed by the Pledgor,
and will also, on the Bank's first demand, immediately cooperate in full with
the Bank in order to establish a first pledge on these new Rights.
5.5.3.
Prohibition
on Disposal:
Without prior
written consent of the Bank the Pledgor may not transfer the Rights (in
advance) to a third party and may also not grant a licence or
establish a limited right on such Rights for the benefit of a third party
(whether or not in advance).
5.5.4. Registration:
The Pledgor shall
ensure that immediately after the Deed of Pledge is signed a copy of me
Deed of Pledge is sent to the Benelux Trademarks Register or, when appropriate,
any other relevant register with the request that the pledge on the Trademarks
be registered in the relevant register. The Pledgor hereby grants the Bank a
power of attorney to effect, where necessary, such registration on behalf of and
for the account of the Pledgor in cases where the Pledgor has failed, in the
opinion of the Bank, to register the trademarks in these registers. The Pledgor
shall be deemed to have complied with its obligation under this provision only
when it has supplied the Bank with documentary proof of
registration.
5.5.5. Maintenance:
Each year the
Pledgor shall pay the taxes and/or costs owed under the Benelux Trademarks Act
and/or any other applicable legislation and also do everything that is necessary
and helpful in order to maintain the rights, including arranging in good time
for renewal of the registration of the Rights. The Pledgor shall immediately
provide the Bank with all information that is important in this
respect.
The Pledgor is not
permitted to deregister the Rights without the prior written consent of the
Bank.
5.5.6.
Information:
At
the first request of the Bank the Pledgor shall provide the Bank with all
information connected with registration of the Rights and further information
relating
to
the Rights, as well as all particulars which the Bank requires in order to
exercise its pledge. At the first request of the Bank the Pledgor shall
also enable the Bank to obtain whatever information from the Pledgor's accounts
as the Bank may deem necessary in order to exercise its pledge.
5.5.7.
Use:
The Pledgor shall
use the Rights in a normal manner within the meaning of the Benelux Trademarks
Act and other applicable legislation. In addition, the Pledgor shall ensure that
the Rights do not decrease in value and shall always immediately inform the
Bank if circumstances arise that could cause a decrease in the value of the
Rights.
5.5.8. Infringement:
If
the Pledgor becomes aware of any use or infringement of one or more of the
Rights by a third party, it shall immediately take whatever action is needed to
stop such use or infringement and also give immediate notice of this to the
Bank.
5.6. The
following provisions apply to the pledge of Depositary Receipts:
5.6.1.
Attached rights:
The pledge includes
all rights attached to Depositary Receipts, including the right to dividends and
the rights of the holder of a depositary receipt as referred to in Article 3:259
Civil Code. To the extent necessary the Pledgor hereby grants a power of
attorney to the Bank to exercise such attached rights on the Pledgor's
behalf. The Bank is entitled to collect payments made in respect of these
rights, subject to the obligation to deduct the net amounts received from the
Secured Obligations.
5.6.2. Enforcement:
If
the Client is in default under one or more of its obligations towards the Bank,
the Bank may, if it deems this appropriate, sell (or cause to be sold) the
Depositary Receipts or some of them, subject to observance of the
provisions of the applicable articles of association and trust conditions, in
order to recover the Secured Obligations from the net proceeds of the
Depositary Receipts. The Bank is not obliged to give advance notice of the sale
to the Client, the Pledgor or those persons who have a limited right on or who
have seized the Depositary Receipts.
5.6.3.
Prohibition on disposal:
Without the prior
written consent of the Bank the Pledgor may not dispose of or further encumber
the Depositary Receipts. The Pledgor shall refrain from taking any action that
leads or could lead to a decrease in the value of the Depositary Receipts or
could complicate the enforcement of the pledge.
5.7.
In addition, the following provisions apply with regard to
the pledge of Goods, Receivables, Rights and Depositary Receipts:
5.7.1. Ranking:
The pledges of the
Bank on the Goods, Receivables, Depositary Receipts and Rights shall be first in
rank, unless certain Goods, Receivables, Depositary Receipts and Rights have
already been pledged to a third party with the prior written consent of the
Bank. If this is the case, the Bank's pledge on the relevant Goods, Receivables,
Depositary Receipts and Rights shall be second in rank and the provisions of the
General Credit Conditions shall be read accordingly,
5.7.2.
Rights of third parties:
If
a third party wishes to exercise any right with regard to the Goods,
Receivables, Depositary Receipts and Rights, the Pledgor shall immediately
inform that third party about the existence of the Bank's pledge.
5.7.3.
Performance:
Despite the pledge
the Pledgor itself shall remain obliged vis-à-vis third parties to perform
obligations in connection with Goods, Receivables, Depositary Receipts and
Rights.
5.7.4.
Eventual value of bank records:
An
extract from the Bank's records signed by the Bank shall serve
vis-à-vis the Client as complete proof of the existence and extent of the
Secured Obligations, the proceeds of the sale of the items pledged by or
pursuant to the Deed of Pledge, the use of the proceeds and the calculation of
any surplus.
5.7.5. Waiver
of right of suspension:
If
the Bank exercises its pledge, the Pledgor expressly waives any right it may
have to suspend its own obligations towards the Bank under the Credit
Documentation or to request or demand that the Bank first enforces its rights
in
respect of other
security or first seeks recovery from one or more other
group companies.
5.7.6. Waiver
of right to terminate and annul the pledge agreement:
The Pledgor waives
the right to require that the pledge agreement set out in the Deed of Pledge be
terminated and also waives any right to invoke Article 2:7 of the Civil
Code.
5.7.7. Power
of attorney:
The Pledgor grants
the Bank an irrevocable power of attorney – together with the right to appoint
another authorised representative in its place – to pledge the Goods,
Receivables, Rights and Depositary Receipts to the Bank on behalf of the Pledgor
on the same conditions as set out in the Deed of Pledge by means of a notarial
instrument or private instrument.
5.7.8. Imputation:
The proceeds
obtained by the Bank from the collection or sale of the Goods, Receivables,
Rights and Depositary Receipts pursuant to its right of pledge shall be deducted
from the claims of the Bank against the Client and the various components
thereof in such order as the Bank may determine.
5.7.9. Indivisibility
and order of enforcement:
The Secured
Obligations may be recovered in their entirety from all Goods, Receivables,
Rights and Depositary Receipts in such order of enforcement as the Bank may
determine,
5.7.10.
Termination and limitation:
The Bank is
entitled at all times to give notice terminating the pledge on one or more of
the Goods, Receivables, Rights and/or Depositary Receipts or to limit such a
pledge, by notice to the Pledgor, in such a way that it serves exclusively as
security for the Bank's existing claims against the Client.
5.7.11.
Subrogation and right of recourse:
By signing the Deed
of Pledge the Pledgor, to the extent possible, waives any an all present and
future claims which it may have by way of recourse and/or subrogation,
subsidiarily the Pledgor subordinates in favour of the Bank all present and
future claims which it may have by way of recourse and/or
subrogation
to
all present and/ future claims which the Bank has against the Client on any
grounds whatsoever, as a result of which the Pledgor cannot enforce the claims
it has by way of recourse and/or subrogation as long as the Bank has any claim
against the Client.
Fortis Bank
(Nederland) N.V.