[LETTERHEAD OF HVB CZECH REPUBLIC]
Exhibit 10.23
(Non-binding translation for reference)
AMENDMENT NO. 1
to the Credit Facility Agreement dated May 29, 1997
concluded between:
HVB Bank Czech Republic a.s.,
having its registered office at Xxxxxx 0, xxx. Xxxxxxxxx 3a/c.p. 2090, zip code
110 00,
IC (company Id No) 64 94 82 42, entered in the Commercial Register administered
by the Municipal Court in Prague,
Section B, Folio 3608,
represented by the undersigned authorised persons,
as one party - the creditor
(hereinafter referred to as the "Bank")
and
the company Automotive Safety Components International s.r.o.,
having its registered office at Jevicko, Biskupicka 781, zip code 569 43,
IC 63 66 75 76, entered in the Commercial Register administered by the Regional
Court in Hradec Kralove, Section C,
Folio 14566,
represented by Ing. Xxxxxxxx Xxxxxxx,
as the other party - the debtor
(hereinafter referred to as the "Client")
A.
1. The Parties represent that on May 29, 1997 a Credit Facility Agreement was
concluded between the Client and Bank Austria (CR) a.s., on the basis of
which the Client was provided a credit in the original amount of USD
7,500,000.- (hereinafter referred to as the "Credit Facility Agreement")
2. The Bank declares that effective as of October 1, 2001 the Bank as the
legal successor assumed any and all contractual relationships concluded by
the Bank Austria Creditanstalt Czech Republic, a.s., IC 15 27 10 64, which
effective as of July 1, 1998 based on the merger had assumed any and all
contractual relationships concluded by the Bank Austria (CR) a.s., IC 16
19 33 93.
3. The Parties represent that the fulfilment of the Client's obligations
under the Credit Facility Agreement is secured by the following:
a) by a first in order pledge right to the real estate in favour of the
Bank under the terms set forth in the "Real Property Pledge
Agreement (with respect to building)" and the "Real Property Pledge
Agreement (with respect to land)" dated May 29, 1997, with legal
effects of the entry as of June 6, 1997;
b) by pre-emption right with real effect to the real estate under the
terms set forth in the "Agreement on Pre-emption right with respect
to land and building" dated May 29, 1997, with legal effects of the
entry as of June 6, 1997;
c) conditional transfer of the ownership title under the terms set
forth in the "Agreement on Conditional Transfer of Ownership" dated
May 29, 1997
4. The Parties represent that on the basis of the above specified Credit
Facility Agreement the final due date of the provided credit was agreed to
be March 31, 2002.
5. The Parties also represent that they negotiated further continuation of
their credit relationship established on the basis of the Credit Facility
Agreement as well as its terms.
6. The Parties represent that as of March 28, 2002 the total outstanding
amount of the Client against the Bank under the Credit Facility Agreement
amounts to USD 4,125,000.- whereupon as of March 29, 2002 the Client
undertakes to pay an instalment in the amount of USD 375,000.- .
7. By its execution hereof the Client acknowledges both the existence and
indisputable character of its financial obligations under the credit
specified supra and undertakes to honour the obligations duly and on time
pursuant to the valid wording of the Credit Facility Agreement.
B.
With a view to the above mentioned facts the Parties hereby agree to amend the
wording of the above-mentioned Credit Facility Agreement and replace with the
following new wording :
I.
Form and Amount of the Credit
1. On the basis of the terms stipulated herein, the Bank provided the Client
with a specific credit in the amount of USD 7,500,000.-. The amount of the
outstanding balance of the credit as of the date of the execution of this
Amendment amounts to USD 4,125,000.- (in words: four million one hundred
and twenty five thousand US dollars) (hereinafter referred to as the
"Credit" or the "Credit Amount"). On March 29, 2002, the outstanding
Credit Amount shall be reduced by the instalment in the amount of USD
375,000 and subsequently converted in EUR with such rate EUR/USD, that
shall be agreed between the Bank and the Client by phone on March 28,
2002, provided that such exchange rate shall be based on the current
market rate for similar transactions. The Client shall confirm this
agreement in writing.
If the agreement between the Bank and the Client is not reached, the
rights of the Bank with respect to all its rights and obligations date
under the Credit Facility Agreement dated May 29, 1997 will be unchanged."
II.
Purpose of the Credit
1. The Credit was provided for a construction of a factory for manufacture of
airbags and for financing of the relevant equipment thereof.
III.
Drawing of the Credit
1. The Credit was fully drawn by the Client. Starting from April 2, 2002, the
Credit shall be recorded on credit account in EUR No. 0000000-082/2700.
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2. The Client is not entitled to draw again the parts of the Credit which
were already repaid.
IV.
Interest on the Credit and Other Payments
1. Starting from April 2, 2002, the interest rate is agreed on the roll-over
basis and was stipulated by the Parties following the Client's option to
have the period of validity of 1 (one) month, 3 (three) months or 6 (six)
months or 12 (twelve) months (hereinafter referred to as the "Period") as
the rate EURIBOR, quotated for the relevant Period, with an increment of
1.7 % p.a.
Bank shall notify the Client of the specific amount of the interest rate
in writing.
2. a) At any time during the term of validity of the interest rate on the
roll-over basis (i.e. the Period), however, no later than 3 banking days
prior to the expiry of the term of validity of the interest rate on the
roll-over basis, the Client shall be entitled to choose the manner of
interest charging and the type of the interest rate for the following
Period pursuant to para. 1., or to request the Bank to stipulate a fix
rate (while maintaining the margin of 1.7 % p.a.) for a period exceeding
12 (twelve) months; the fix rate agreed in the course of the relevant
pending Period shall always be stipulated effective as of the 1st day of
the Period following the Period in the course of which the fix rate was
agreed.
No later than 2 days prior to the end of the pending agreed Period, the
Client shall be obliged to negotiate with the Bank and agree on the length
of the following term of validity of the fix interest rate and its amount,
or, as the case may be, to choose the interest rate on the roll-over basis
pursuant to para. 1.
b) If agreement between the Bank and the Client is not reached with
respect to the length of the Period or term of validity of the fix
interest rate and its amount pursuant to this paragraph, the Bank shall be
entitled to charge interest on the Credit with an interest rate stipulated
on the roll-over basis as a three-month EURIBOR, augmented by 1.7 % p. a.
3. The period for which the Client is obliged to pay the interest
(hereinafter referred to as the "Interest Period"), is hereby agreed for
the whole term of duration of the credit relationship to be monthly. The
interest on the Credit shall fall due and payable always retrospectively
as of the last day of each Interest Period, i.e. the last day of the
relevant calendar month.
4. Starting from April 2, 2002 the due interest and charges shall be
collected by the Bank from current account in EUR No. 0000000-074/2700,
administered by the Bank. As of the due date, the Client shall be obliged
to ensure sufficient financial funds on the current account. In the event
there are not sufficient financial funds on the current account of the
Client the Bank shall be entitled to charge the debit balance in EUR
occurred in this manner with late charges stipulated by the General
Business Terms and Conditions of the Bank.
5. If, as of the last day of the given Interest Period, there are not
sufficient financial funds on the relevant current account in EUR, the
Bank shall be entitled to charge against any account of the Client
administered by the Bank -- up to the amount of the relevant interest for
the given Interest Period.
6. The fact that the Bank did not charge against any account of the Client
and that there are not sufficient financial funds on such accounts does
not relieve the Client of its obligations against the Bank.
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V.
Repayment of the Credit
and Payment of Other Bank's Claims Arising from this Agreement
1. Credit
The Client undertakes to repay the Credit as follows:
a) on March 29, 2002 to settle the instalment in the amount of USD 375,000.-,
b) starting from the day of April 30, 2002, in 60 regular monthly
instalments, while the last instalment falls due and payable on March 30,
2007. The amount of the individual instalments is one sixtieth of the
amount USD 3,750,000.- converted into EUR in the same manner provided for
in Article I, Section 1 of this Agreement, provided that such exchange
rate shall be based on the current market rate for similar transactions.
The last instalment shall equal the amount of the remainder of the
principal of the Credit.
The specific schedule of payments with specification of deadlines and
amounts of the instalments shall be provided by the Bank to the Client in
writing subsequent to the conversion of currencies USD/EUR pursuant to
Article I. para l. of this Amendment.
2. Manner of Repayment
a) The Bank is entitled to collect the due interest on the Credit, charges
and commissions from the Client's current account no. 0000000-074/2700,
administered in EUR.
b) The Bank is entitled to collect the instalments of the Credit from the
Client's current account no. 0000000-074/2700, administered in EUR
c) In the event on the stipulated day there are not sufficient available
financial funds for the settlement of the due claim on the stated account,
the Bank shall be entitled to collect the amount of its due claim from any
account on which financial funds of the Client are deposited.
d) By its execution of the Credit Facility Agreement as amended by this
Amendment, the Client empowers the Bank collect any and all of its due
payments from the current accounts stated supra.
e) If a due obligation established hereunder is not settled, the Bank shall
be entitled, during the period of the delay, to charge interest on the
outstanding amount the payment of which is delayed on the part of the
Client, with late charges instead of a duly agreed interest rate, which
late charges are stipulated by General Terms and Conditions of the Bank.
3. Premature or Extraordinary Instalments
The Client may prepay the Credit Amount in whole or in part at any time,
provided that:
a) the Client shall have given to the Lender not less than thirty (30)
days prior notice of its intention to prepay
b) the prepayment shall be done only at days agreed for payment
instalment, at the same date, when the periods end and,
c) The Client will be obligated to pay to the Bank compensation fee in
the amount of 1.5% (in word one point five percent) of the prepayed
amount.
VI.
Security for the Client's Obligations
1. The following serves for the purpose of security of the Bank's obligations
hereunder:
a) a first in order pledge right in favour of the Bank to the real estate
specified in the "Real Property Pledge Agreement (with respect to
building)" and "Real Property Pledge Agreement (with respect to land)"
dated May 29, 1997, with legal effects of the entry as of June 6, 1997,
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(hereinafter referred to as the "Pledge Right to Real Estate").
Pledge Right to Real Estate was established under the following terms:
1. The Real Estate to which the pledge right in favour of the Bank was
established, must be insured. The Client hereby undertakes that as of the
day of the conclusion hereof the Real Estate is insured under the terms
corresponding to the provisions of the General and Business Terms and
Conditions and of this Agreement with the insurance company Kooperativa
Pojistovna a.s. IE 47116617, on the insurance of Property and Business
Interruption based upon the contract No 595037350-4 from April 30, 2001 on
the "All risks" and business interruption insurance for the insured amount
of CZK 230,432,310.
2. The documents proving the payment of the insurance premium in the agreed
terms must be submitted to the Bank always within 10 days from the due
date thereof. Should the Bank discover that the insurance premium for the
agreed insurance of the pledge is not paid duly and on time, the Bank
shall be entitled to do so itself at the costs of the Client. The Parties
hereby agree on the authorisation of the Bank to settle its claim, arisen
by virtue of such payment of the insurance premium for the agreed
insurance of the pledge, from the Client's current account.
3. The Client is obliged to ensure that, in the event of a claim for payment
of insurance benefit under the insurance, such insurance benefit was paid
in favour of the account determined by the Bank. In order to meet this
obligation, the Client undertakes to perform any and all necessary acts,
i.e. apart from others to escrow, as a rule, in favour of the bank the
fulfilment under the insurance policy. Such escrowing of insurance benefit
must be ensured and its existence must be evidenced to the bank on the
basis of submitting the confirmation of the relevant insurance company in
the form and with the contents accepted by the Bank no later than by April
30, 2002.
4. The Client is obliged to take reasonable steps to ensure that the
insurance company at which the real estate is insured informs the Bank
about all substantial facts related to the insurance policies concluded in
the sense of this provision and fulfilment of these policies. To that
effect, the Client undertakes to take reasonable steps to ensure that the
insurance company be relieved of its statutory duty of confidentiality to
the stated extent with respect to the Bank -- in the form stipulated by
the Bank and accepted by the insurance company.
b) pre-emption right to the real estate with real effects to the real estate
specified in the "Agreement on Pre-emption right with respect to land and
building" dated May 29, 1997, with legal effects of the entry as of June
6, 1997.
c) conditional transfer of ownership title under the terms stipulated in the
"Agreement on Conditional Transfer of Ownership" dated May 29, 1997.
2. In order to secure the Bank's claims arising from the Credit Facility
Agreement as amended by this Amendment, the Client further undertakes to
submit a "Letter of Guarantee" issued by the company Safety Components
International, Inc. USA (hereinafter referred to as the "Guarantor") to
the Bank, in the form and with the contents agreed upon by the Bank, for
the amount of USD 500,000,-. (in words: "five hundred thousand US
dollars"). The guarantee must be submitted to the Bank no later than April
2, 2002. Should the Guarantor breach any of its duty stipulated in the
"Letter of Guarantee", this fact shall be deemed to be a Substantial
Breach of the Agreement by the Client in the sense of Article IX. hereof.
VII.
Declarations and Warranties of the Client
1. Client declares that all deeds and other documents which the Client
submitted to the Bank in connection with this credit relationship are
full, complete, true, valid, effective and legally enforceable, and the
Client also confirms and
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warrants that all of its warranties and declarations made with respect to
the Bank, including the declarations specified in the Business Terms and
Conditions, are true, valid and effective.
2. The Client further represents that:
a) the conclusion hereof and its fulfilment shall lead neither to a
breach of any of its obligations nor to a breach of property or
contractual rights of third parties;
b) the assumption of obligations hereunder and the related legal acts
and their fulfilment was duly approved by all relevant bodies active
within the business and organisational-legal structure of the Client
and that it does/shall not require any other consent or approval,
neither by any external body or entity whatsoever;
c) the Client is not aware of the fact that there would be imminent or
already initiated proceedings held by a court, arbitrator or a body
of public administration against the entity of the Client or against
its property, which proceedings might adversely impact on the
Client's capacity or possibility to fulfil its obligations arising
hereunder duly and on time or on its total property or economic and
business situation;
d) all data with respect to its entity and property or economic and
business situation and other information communicated by the Client
to the Bank in connection with negotiating and concluding this
Agreement and with the related legal acts, are true and complete and
represent an integrated overview of the Client's total property or
economic and business situation as well as on its capacity to honour
its obligations in future;
e) the Client acquainted the Bank with all of its currently known
obligations that arose or might realistically arise from a securing
provided by the Client or from the Client's currently known
liability for the payment of either own obligations or obligations
of third persons.
3. By its execution hereof the Client declares, that as of the day of the
execution of this Amendment there is no currently known obligation of the
Client towards a third person to which the Client would not have expressly
alerted the Bank and the satisfaction of which would have priority to the
Bank's entitlement to satisfaction of its claims hereunder or the securing
of which would provide a third person with a higher security of
satisfaction then the securing provided by the Client to the Bank. Until
the fulfilment of its obligations towards the Bank in full the Client
undertakes not to enable the establishment of such an obligation against a
third person. Simultaneously, by its execution hereof, the Client
undertakes not to permit advantaging of any of its creditors against the
Bank. In the event the Bank's position among the Client's creditors
worsens in future in any manner whatsoever, Client simultaneously
undertakes to provide the Bank with more security for the fulfilment of
its obligations hereunder to the extent and in the manner to be stipulated
by the Bank.
VIII.
Some Other Client's Obligations
1. The Client undertakes to perform any and all of its payments through its
accounts administered by the Bank, until the full repayment of its
obligations to the Bank hereunder. This obligation shall become valid on
April 29, 2002. For a breach of this obligation the Bank shall be entitled
to claim the Client to pay a contractual penalty in the amount of CZK
100,000,- per month until the moment when the Client reasonably
demonstrates to the Bank the fulfilment of its obligation stated above.
2. Further, the Client is obliged and undertakes, in advance sufficiently
ahead of time in compliance with the General Terms and Conditions and
Business Terms and Conditions, to inform the Bank about its intention to
enter -- outside of its common business - into a contractual relationship
with any third party(ies), if a material financial obligation might arise
to the Client from such relationship.
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3. Above the framework of its duties to the extent under the provisions of
the Business Terms and Conditions and General Terms and Conditions, the
Client is obliged to inform the Bank without any undue delay about the
following:
a) personnel changes to top manager functions of its enterprise;
b) change, through one or more transactions, in their ownership
structure exceeding 30% of votes bearing the decision-making rights;
c) conclusion of a leasing or other similar contract or group of such
contracts, if the volume of fulfilment assumed by the Client under
such contracts is not insignificant in terms of the Client's assets;
d) conclusion of a factoring contract or any contract of similar
character or of a group of such contracts, if the volume of traded
claims is not insignificant in terms of the Client's assets;
e) any other facts that might have an material negativeimpact on the
business, scope and condition of the assets or financial, economic
and business situation of the Client or the Client's ability and
capacity to honour its obligations hereunder or which would in any
material manner restrict its authorisation or capacity to perform
business or its earning capacity.
4. Every year, the Client is bound to inform the Bank, without the Bank's
invitation to do so, about its current income and property situation. To
this effect, the Client shall submit to the Bank its complete final
balance with auditor's statement including the auditor's report - no later
than within 180 days form the last day of the relevant fiscal year end. If
the Client is not subject to audit, the Client undertakes to submit to the
Bank its legally valid and binding income tax return for the previous year
with an entrance stamp of the tax authority including balance sheet,
profit and loss statement and all annexes in the form prescribed by the
tax authority for the purposes of tax returns, or as the case may be
including the cash book and overview of assets and liabilities, no later
than within 180 days form the last day of the relevant fiscal period.
Further, the Client undertakes to quarterly submit to the Bank, always
within 30 from the expiry of the relevant quarter, information on its
economic situation (i.e. balance sheet and profit and loss statement on
the form according to the currently valid sample of the Ministry of
Finance of the Czech Republic). Also, the Client is obliged to submit to
the Bank a report from each extraordinary accounting audit. The Client
which forms a part of a consolidation unit is obliged to submit a
consolidated final balance -- no later than within 180 days form the last
day of the relevant fiscal year end. The Bank hereby reserves itself the
right to reasonable request further supporting documents.
5. The Client undertakes to inform the Bank upon the Bank's request on the
current income and property situation of both any company in which the
Borrower has a substantial property share ("Significant Related Party").
To that effect, the Client is obliged to submit to the Bank, with respect
to any Significant Related Party (ies), the complete final balance with
auditor's statement including the auditor's report (if audited)- no later
than within 180 days from the last day of the relevant fiscal period. The
Bank hereby reserves itself the right to reasonable request further
supporting documents 6. The Client undertakes to inform the Bank upon the
Bank's request on the current income and property situation of the
Guarantor. To that effect, the Client undertakes to submit quarterly
without a specific Bank's request to the Bank,
(i) within 60 days subsequent to the expiry of the relevant fiscal
quarter (not including the quarter that corresponds with the
fiscal year end), information on the economic situation of the
Guarantor (interim consolidated statements and SEC Form 10-Q).
The Bank hereby reserves itself the right to request further
supporting documents, which shall not be unreasonably
withheld.
(ii) within 180 days subsequent to the expiry of the fiscal year
end, information on the economic situation of the Guarantor
(auditor's report and SEC Form 10-K). The Bank hereby reserves
itself the right to request further supporting documents,
which shall not be unreasonably withheld.
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7. The Client undertakes to submit to the Bank upon the Bank's request at any
time during the term of the credit relationship established hereunder, its
declarations and warranties pursuant to Article 6.1 and 6.7 of the General
Terms and Conditions.
8. During the term of the credit relationship established hereunder, the
Client undertakes to refrain from any actions aiming at establishment of
pledge right or other right to thing with respect to its assets in favour
of third person, or as the case may be from providing to such person any
other securing, e.g. in the form of an assumption of guarantor obligation,
assignment of a claim, or assumption of another xxxx obligation without
previous consent of the Bank, except for the cases in which such
restriction is not admitted by law.
Further, such restriction does not apply to the following:
a) securing or guarantee granted by the Client already existing as of
the day of the execution of this Amendment and about the existence
of which the Client informed the Bank in writing, namely the
guarantors obligation to the credits from Congress Financial
Corporation and KeyBank National Corporation or the refinancing or
the replacement thereof to the amounts not higher than 20% of
current exposure,
b) any and all securing which is necessary or needed for regular and
ordinary everyday business cases connected to the Client's subject
of business or arising directly from law.
IX.
Substantial Breach of the Agreement and Other Material Facts;
Consequences thereof
1. The actions and facts expressly stipulated in this sense in the General
Terms and Conditions and the Business Terms and Conditions shall be
deemed, in particular, by the Parties to be a substantial breach of this
Agreement and other material facts and their consequences.
2. The following facts in particular shall further be deemed to be a
substantial breach hereof, with the consequences specified in the General
Terms and Conditions and the Business Terms and Conditions:
a) The Guarantor does not maintain directly or indirectly 100%
ownership of the issued and outstanding voting share capital of the
Client. Any change in ownership structure resulting in guarantor's
not holding directly or indirectly 100% of the issued and
outstanding voting share capital of the Client will require the
Lender's consent. In the event that the consent is not granted or
not requested, the Lender will have the right to request the Client
to prepay all amounts outstanding under the facility ;
b) the Client or the entity controlling the Client or other entity
different from the Client which provided the securing of the
fulfilment of the Client's obligations, materially breaches any of
its obligations against a third party established for any legal or
factual reason and such material breach may -- in the Bank's opinion
-- adversely affect the Client's capacity to honour its obligations
under the Credit Facility Agreement, or materially reduces the value
of securing of fulfilment thereof.
X.
Final Provisions
1. The Client as the party, against which the rights of the Bank as a
creditor under this Agreement may become statute-barred, hereby extends --
by its explicit declaration in the sense of the provisions ofss.401 of the
Commercial Code -- the length of the statute-barring period of the
creditor's rights under this Agreement for the period of 10 years
2. Other rights and duties not expressly stipulated herein shall be governed
by the General Terms and Conditions of the Bank, as amended (hereinafter
referred to as the "General Terms and Conditions") and the Business Terms
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and Conditions of the Bank for credits and some other bank transactions
included in the credit involvement of banks, as amended (hereinafter
referred to as "Business Terms and Conditions"). The Client confirms by
its signature hereto that it accepted the General Terms and Conditions and
Business Terms and Conditions and familiarised itself with their contents
and that it agrees to the contents, and simultaneously the Client
undertakes to act in compliance with all the provisions thereof.
3. If any of the provisions hereof is invalid, illegal or unenforceable, the
remaining provisions hereof shall remain valid and enforceable. The
Parties hereby undertake to replace such invalid, illegal or unenforceable
provision with a new one that shall be valid or enforceable or at least
that shall have similar commercial or legal sense.
4. This Agreement and any of the parts hereof, and changes or amendments
hereto shall be binding for the legal successors of the both the Bank and
the Client.
5. The persons executing this Agreement on behalf of the Client further
represent, that they are authorised to act on behalf of the Client and to
conclude this Agreement in its name as well as to perform any and all
legal acts envisaged on the basis of this Agreement, and that they execute
this Agreement in such manner that shall be binding for the Client.
They simultaneously represent that the Client acts
|_| on its own account
|_| on the account of (name/business name, domicile/registered office
including country)
6. The jurisdiction of the District Court of Prague 1 is hereby agreed for
resolving the disputes arising from this Agreement, by agreement of the
Parties pursuant toss. 89a of the Civil Procedure Code
C
The Bank charges a remuneration in the amount of USD 20.000 (in words: twenty
thousand US dollars) for the extension of the due date and compilation of the
Amendment to the Credit Facility Agreement and related documentation. The
remuneration shall be collected by the Bank from the Client's current account,
administered by the Bank in USD, No. 2064740031/2700, within 14 (fourteen) days
subsequent to the execution hereof.
D.
1. This Amendment to Credit Facility Agreement is compiled in 2 counterparts
having the validity of original in the Czech language, out of which each
Party shall reserve one counterpart. The translation of the contractual
documentation into English is made without having a legally binding
nature, only for the sake of information and shall be marked "NON-BINDING
TRANSLATION FOR REFERENCE", and shall not be executed by either of the
Parties.
2. This Amendment becomes valid and effective on the day of its execution by
the latter of the Parties.
In Brno on _____________________ In____________ on ____________
HVB Bank Czech Republic a.s. Automotive Safety Components
International s.r.o.
Signature:______________________ Signature: ___________________
Name: Name:
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Signature: _____________________
Name:
Confirmation on the Client's declaration
1. The Client declares to be acting
|_| on its own account
|_| on the account of name/business name, domicile/registered office
including country)
2. Identification of persons(s) authorised to sign
Surname:
Name:
Date of birth:
Identity card / passport no.:
Issued (date, body):
Valid until:
Signature: _________________________________
Name of the Bank's employee -
identifying the persons:
