disbursed under obligations of any kind and nature undertaken under issuance and delivery requests hereunder
- if appropriate, as and when they are claimed to the Bank by its correspondent in accordance with its general terms and conditions, costs, duties, taxes and levies whatsoever and commissions and fees, if any, borne or charged by the latter.
To enable the Bank to make the authorized debits as abovementioned and to charge the charges and fees as agreed in article 5 in respect of which the Company gives its debit authorization herein, the Company agrees to leave sufficient funds in its account.
The release of liability shall result from the provisions of the document itself and/or from the specific terms set by the correspondent or from the laws and regulations of the country of the beneficiary
The termination of the undertaking, meant as the specification in the document that the guarantee cannot be called after a certain date or a certain event even in connection with debts that arose prior to such date or event can be put forward by the Bank when there is no doubt whatsoever and subject to any provision to the contrary of applicable laws and regulations. Subject to the same reservations, the Company can put forward facts triggering the termination of the undertaking in accordance with its terms. The Bank shall consider that it is finally released from liability vis a vis the beneficiary only when the triggering facts are undisputably established by the Company allowing for the rules of any nature relative to the issuance of the relevant documentary evidence. The Bank shall under no circumstances be bound to assume the existence of such facts and events based on other facts or prima facie evidence nor to cause any construction or appreciation to prevail over any other
Liability is automatically released following events and/or on the faith of documents only when this has been expressly specified in the original undertaking. Otherwise the International Guarntees Dept has to obtain the beneficiary’s approval.
The practical terms of articles 4.2 and 4.3 below shall apply subject to the foregoing.
4-2 Documents
The Company agrees to provide the required documents as specified in the text of the guarantee for total or partial releases of liability when the latter are expressly authorized in the text of the undertaking.
As long as any of these documents has not been received by the Bank, the Bank shall continue to be bound by its obligations and fees continue to accrue.
4-3 Partial or total release of liability
The Bank hereby agrees to process partial or total releases of liability within a maximum of five days from their date of receipt by the International Guarantees Department.
In the event an expiry date is specified and if the original instrument is not returned or if the Guarantor’s liability is not released by the beneficiary, the Guarantor’s liability shall be fully and automatically released thirty working days from the expiry date, save as otherwise provided by the laws or regulations applicable to it.
If the Guarantor’s liability is automatically released or if tendered documents are in conformity with the wording of the undertaking, the Bank agrees to issue an execution notice specifying the reduction or the total release within one week of the Computer data capture.
If the documents are not in conformity, the Bank agrees to notify the Company over the telephone, with a written confirmation, if appropriate, of any observed discrepancies.
If the Bank has to obtain the Beneficiary’s approval, the Bank agrees to send to the client copies of the requests and tracers sent to local banks.
5 – Charges and fees
The charges and fees payable to the Bank are specified in Appendix 2. The fees are determined effective from the date of issue of the undertaking. They are paid quarterly upfront for any other quarter or part thereof.
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The fees and charges, if any, of the correspondent bank that has issued the undertaking shall be charged in addition.
6 – Guarantor’s Information
The Bank agrees to send to the Company in January each year, the statutory statement showing all obligations undertaken for its account and outstanding as of 31st December the previous year
The outstanding balance under SBLCs amounts to USD 31,595,000 as of 16th April 2003 for an authorized amount of USD 50,000,000 valid until December 2003.
7 – Representations by the Company
The Company shall make its own affair of the consequences, if any, of payments made by the Bank hereunder
The Company hereby indemnifies and holds the Bank harmless for an against any and all risks which may arise from the issuance and delivery of requested undertakings.
8 – Term of the Agreement
This Agreement is entered into for an unspecified period of time. It can be terminated at any time by either party subject to sending to the other a three month prior notice of termination.
On the date of termination, all outstanding guarantees shall remain valid and the Company shall remain bound unto the Bank for all these obligations under issued undertakings.
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9 – Governing law – Competent jurisdiction
This agreement shall be governed by, and construed according to, French law. The parties hereby submit to the exclusive competence of the Courts within the jurisdiction of the Paris Court of Appeal.
Signed in [ Paris ]. This [ 25 ] day of [ April ] 2003
In three original counterparts
| LE MANS RE | | CREDIT LYONNAIS |
| | | |
| | | /s/ JOSIANE BOURDIN |
| | | Josiane BOURDIN |
| | | Responsable |
| | | Crédits Documentaires |
| | | Garanties Internationales |
| | | |
| | | |
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