LOAN AGREEMENT No. 0367050568897
EXHIBIT
4.43
LOAN
AGREEMENT No. 0367050568897
By
means
of the present private deed, drawn up in 5 original copies with the same
legal
effects, between:
a)
The
Lender, SANPAOLO IMI S.p.A. - hereinafter denominated "Bank" - Parent Company
of
the Bank Group SANPAOLO - IMI (Register of Bank Groups n. 1025.6), with
registered offices in Turin, Piazza San Carlo 156, (tax code and V.A.T. n.
06210280019), share capital of Euro 5,399,548.807.68 (fully paid-up), registered
with the Register of Companies of Turin under n. 06210280019 and with the
Register of Banks under n. 5084.9.0. The above Lender is represented by Xxxxxxx
Xxxxxxx Maruti, born in Soresina (CR) on 01/07/1955, who is acting in his
office
of Manager of the Branch denominated Filiale Imprese Milano Sempione, is
domiciled for his role in Milan, X.xx Xxxxxxxx 00/x and is authorized to
enter
this deed by virtue of the current Memorandum;
And
GENTIUM
SPA, with registered offices in Villa Guardia (CO), Piazza xx Settembre,2
Tax
Code 02098100130, VAT Number 02098100130 -
in the
person of Mr. Xxxxxxxxx Xxxxxxxxx, born on 04/01/1970, acting in his office
of
Administrative Manager and domiciled for his role in Piazza xx Settembre,
2
Villa Guardia (CO) - hereinafter referred to as "Borrowing Party";
Premise:
Attached to the present agreement is a “Synthetic Document, pursuant to the
Interdepartmental Committee for Credit and Savings (C.I.C.R.) resolution
of 4
March 2003” published in the Official Gazette (G.U.) n. 72 of 27 March 2003. The
above Synthetic Document has been undersigned by the parties and attached
to the
present deed under the letter “A”;
In
accordance with the resolution passed by the Bank on 09/06/2006
, the
parties execute the following Loan Agreement.
ART.
1
1.
The
Bank agrees to lend to the Borrowing Party, which accepts, the sum of Euro
750,000.00
(seven
hundred fifty thousand/00
). The
Borrowing Party declares to have received the above sum at the time of execution
of this deed and gives quittance thereof. The sum has been credited on the
current account n. 00353/1000/61948, opened in the name of the Borrowing
Party
at the Branch n. 3 of Milan, X.xx Xxxxxxxx 00/X of the Bank, and is immediately
available.
2.
The
loan is regulated by the covenants and obligations of the present Agreement
and
by the covenants and obligations indicated in the "General Terms and
Conditions". These are undersigned by the Parties and attached to the present
Deed under the letter “B”. The Borrowing Party states that it is fully informed
regarding the General Terms and Conditions indicated above, since it received
a
copy by the Bank when it submitted the loan request.
3.
The
articles contained in the "General Terms and Conditions" which are incompatible
with the nature of the loan and its warranties or, in any case, with the
covenants of the present Agreement, shall not be applied, in particular art.
11
and art. 13, letter f).
4.
The
present loan is granted for the purchase, installation and operation of two
reactors (denominated R30 and R45) for the production of defibrotide and
sulglicotide. The estimated
total cost of the above is of Euro 750,000.00. The two reactors are to be
realized by 21/01/2007, in accordance with the terms as well as the general
and
technical characteristics foreseen by the project, which is undersigned by
the
Parties and attached to the present Deed under the letter “C”. The above project
(hereinafter and in any related or
-1-
connected
deeds also referred to as “Project”) is considered by the same Parties as an
essential document of the present operation.
5.
In the
case in which, on examining the result of the checks that the Bank is authorized
to carry out in compliance with norms that regulate the present loan, at
the
time of the final checks on the realization of the Project, the aforementioned
Bank finds that the total cost for the realization of the Project is lower
than
the total sum already estimated in Euro 750,000.00, or in the circumstance
in
which the Project has been realized only in part, the Bank shall have the
faculty to reduce the amount of the loan proportionally. In such an event,
the
Borrowing Party hereby undertakes to reimburse, before the end date of the
contract, all the sums due with respect to the reduction, without paying
to the
Bank the fee foreseen in art. 5 hereinafter.
6.
In the
case of partial realization of the Project, as an alternative to the faculty
indicated above to reduce the amount of the loan, the Bank shall have the
right
of considering the loan ended, and it shall not receive the fee foreseen
in art.
5 hereinafter.
ART.
2
1.
The
duration of the loan is agreed in 20
(
twenty
) quarters. The term “quarter” shall mean the periods from 16/3 to 15/6, from
16/6 to 15/9, from 16/9 to 15/12 and from 16/12 to 15/3 of each year of duration
of the loan. For the purpose of calculating the duration of the loan, the
quarter current on the present date shall be considered as a full
quarter.
2.
The
interest rate due for each quarter shall be calculated as a quarter of the
sum
of the following addenda:
A.
An
annual nominal fixed share equal to 1.20 (one
point twenty) percentage points, which constitutes the brokerage margin of
the
Bank. Starting from the beginning of the amortization period, the annual
nominal
fixed share indicated above shall be reduced to 1.02 (one point zero two)
percentage points, in the case in which the Bank has verified that the Project
has been realized within the terms foreseen and in accordance with the technical
characteristics agreed, as laid down in art. 1 above and in attachment “C” of
the present deed;
B.
A
variable share equal to the annual nominal rate applied to interbank deposits,
which shall calculated in Euro every three months (on a 360 basis ). The
above
rate (currently equal to 2.704% annually), denominated EURIBOR, is calculated
by
the European Bank Federation
(E.B.F.) at 11.00 a.m., Brussels time,
on the
day before the last bank working day - that is on a day in which the TARGET
(
Trans-European Automated Real-Time Gross-Settlement Express Transfer )
regulation system is open - previous to the starting date of each quarter
for
which the interest is due: respectively on 16/3, 16/6, 16/9 and 16/12 of
each
year. The above rate is publicized on the Bridge Telerate telematic network
or,
if unavailable, on the Reuters network. It is also normally published in
the
daily newspaper "Il Sole 24 Ore" on the following day.
If,
for
any reason, the European Bank Federation does not calculate the above rate,
the
same shall be calculated on the basis of the arithmetic mean, truncated on
the
third decimal number, of the offer prices (on a 360 basis) which are applied
to
three-months intra-bank deposits expressed in Euro. The offer prices are
published on the same aforementioned day by at least two of the following
banks:
ABN-AMRO BANK N.V. of Amsterdam, Deutsche Bank of Frankfurt, Société Générale of
Paris, Banco Bilbao Vizcaja Argentaria S.A. of Bilbao or SANPAOLO IMI S.p.A.
of
Turin.
The
interest rate of the loan is currently equal to the annual nominal rate of
3.904
%.
3.
The
payment of the interest due on the sums lent and not yet reimbursed shall
take
place by quarterly deferred installments on the following due dates: 15/3,
15/6,
15/9 and 15/12, each year of duration of the loan, starting
from the present date. The first installment shall therefore be due on
while
the subsequent installments shall be due on the same day of each
quarter.
4.
On the
present date, the Cost Synthetic Indicator (CSI) of the present loan corresponds
to
the
annual
rate of
_____________ .
-2-
5.
Starting on 16/03/2008
(the
beginning of the amortization period),
the
principal shall be paid back by equal installments on a quarterly basis.
Any
possible rounding off shall be calculated on the last installment.
6.
The
first installment for the repayment of the principal shall be due on
15/06/2008.
Any
subsequent installments shall be due on the due dates of the interest
installments.
7.
With
the exception of any default interest, the interest shall be calculated on
the
basis of the actual number of days elapsed, by applying the 36,000 fixed
divisor
on an annual basis.
ART.
3
1.
The
Borrowing Party shall pay the Bank default interest on each sum due for any
reason in connection with the present Agreement and still outstanding, and,
therefore, also following the termination of this Agreement. The above default
interest shall be calculated from the due date, without any need to formally
place the borrower in default.
2.
The
periodic capitalization is not allowed on the above interest.
3.
The
default interest shall be calculated at the same nominal annual rate as the
pro-tempore rate applied to the marginal lending facility fixed by the European
Central Bank, currently corresponding to the annual 3% (three per cent).
The
above rate is published on the Reuters’ telematic network on page ECB01, or on
the daily newspaper "Il Sole 24 Ore". The rate shall be increased by 2.5
(two
point five) percentage points.
4.
The
default interest shall be calculated on the basis of the actual number of
days
elapsed and by applying the 36,500 interest divisor on an annual
basis.
ART.
3 BIS (1)
1. Until
all
the credit rights of the Bank with regard to the loans have been fully honored,
the Borrowing Party undertakes, on its own behalf, its successors and assigns,
to show the following in its accounts:
Ø Equity
not lower than 5,000,000.00
In
order
to fulfill the requisites of the financial parameter indicated above, the
Parties shall take into account the following definitions:
“NET
EQUITY”:
As
laid
down in art 2424 of the Civil Code, the term indicates the sum of the balance
sheet items, in the Liability section, identified by the letter A) (net equity),
from which it must be deduced the sum of the amounts of the items entered
in the
Asset section identified by the following letters: A) (credits from Shareholders
for payments not yet made); B) (assets) indicated under n. III (financial
assets) sub n. 4 (own shares); C) (current assets) under n. III (financial
investments other than financial assets ) sub n. 5 (own shares).
3.
In the
case of breach of even one of the obligations indicated above, the Bank reserves
the right to declare the Agreement terminated pursuant to art. 1456 of the
Civil
Code, with the consequences laid down to this regard in art. 13 of the General
Terms and Conditions attached herewith, unless, by the term of 30 days from
the
reception of the related communication by the aforementioned Bank, the Borrowing
Party has demonstrated to have already remedied the breach, by producing
the
appropriate documentary justification,
-3-
or
unless
it has reached an agreement with the aforementioned Bank regarding the terms
and
conditions of the remedy.
ART.
4
1.
In
consideration of the objectives of the loan, the Borrowing Party
undertakes:
| 1) |
To
comply with the terms and conditions of the loan laid down in art.
1
above;
|
| 2) |
To
realize the Project completely and to comply with both the terms
and
technical conditions foreseen for the realization of the same,
as shown in
the document attached to the present deed under the letter “C”;
|
| 3) |
To
submit to the Bank, a Technical Report, drawn up exclusively in
accordance
with the lay out attached to the present deed under the letter
“D”,
stating the total cost incurred for the realization of the Project.
The
above Technical Report must be submitted within two months from
21/01/2007
(the date of completion of the Project) and include the photocopies
of all
the invoices related to the above cost. It is understood that,
as an
alternative to the photocopies of the invoices that do not exceed
Euro
2,500.00, the Borrowing Party shall have the faculty of producing
a
substitute statement ;
|
| 4) |
To
allow to the people designated by the Bank to carry out visits
on and
inspections of the places, plants and works included in the Project,
perform all the checks and acquire all the documentation that they
shall
consider useful, facilitating their work in any possible
way.
|
2.
Non-compliance even with a single obligation shall give faculty to the Bank
to
consider the present loan terminated by law. The Bank shall furthermore have
the
right to receive the fee foreseen in art. 5 below - save the conditions laid
down above in art. 1, points 5 and 6.
3.
The
Borrowing Party furthermore declares that it does not operate in the sector
of
the supply of armaments, and acknowledges that, in the case of false
declaration, the Bank shall have the faculty to consider the present loan
terminated, with the related consequences laid down in art. 5
below.
ART.
5
1.
Save
the conditions laid down in art. 1 above, in the hypothesis of total or partial
early repayment of the loan, or in the case of termination pursuant to the
law
or by contract, the Bank shall only be entitled to receive a percentage fee
on
the principal paid in advance, which shall be equal to 1% (one per
cent).
2.
The
amount of the fee mentioned above shall therefore be calculated by multiplying
the amount of the principal repaid in advance by one, and by dividing the
result
obtained by one hundred.
3.
No
other fee may be charged for the reason indicated above.
ART.
6
The
possible undertaking of the loan shall be effective with respect to the Bank
only following the explicit consent of the Bank and on its unobjectionable
decision.
ART.
7
1.
For
the effects of the Agreement and of any judgments, the Parties select the
following domiciles: the Bank at the registered offices in Turin, Piazza
San
Carlo, 156; the Borrowing Party at the registered offices stated in the present
deed or, by default, at the Secretary Office of Municipality where the
registered offices are located, pursuant to art. 143 of the Civil
Code.
ART.
8
-4-
1.
All
the obligations laid down in the present Agreement are undertaken , jointly
and
severally, by the Borrowing Party on its own behalf, on behalf of its successors
or assigns, also in the case of waiving of any possible substitution by the
committed parties arisen from any payments connected with the present
Agreement.
ART.
9
1.
Pursuant to and with the effects of the norms in force regarding the
transparency of operations and bank services, it should be noted that the
expenses to be charged to the Borrowing Party in connection with the present
Agreement and for the duration of the loan are the expenses specified in
the
section called: Expenses of the Synthetic Document, attached under the letter
“A”.
2.
The
Bank reserves the faculty of changing, unfavorably for the Borrowing Party,
only
the expenses indicated under the letter A-2) in the section Expenses of the
aforementioned Synthetic Document, by giving prior notice of the new changes
and
applying them in accordance with the terms and conditions of the norms indicated
above.
3.
In any
case, the Borrowing Party shall pay the expenses (if due) related to the
registration of the present Deed and of any deeds connected to it.
ART.
10
1.
The
Borrowing Party acknowledges the information received by the Bank pursuant
to
Law Decree n. 196 of 30/06/2003 and gives its consent to the treatment of
the
data with regard to the present operation. The Borrowing Party moreover gives
its consent to the communication of the same data by the Bank to the relevant
Automated Interbank Risk Service, to the Facilitating Body and, possibly,
in the
case of non-compliance on the part of the Borrowing Party, to the companies
which carry out credit recovery activities.
2.
If
necessary, the Borrowing Party also authorizes the communication of its personal
data on the occasion of a possible transfer of the credit on the part of
the
Bank, even if it is carried out pursuant to art. 58 of Law Decree n.
385/1993.
3.
The
Borrowing Party also acknowledges the information received from the lending
Bank
pursuant to the Code of Professional and Correct Conduct regarding the
information systems managed by individuals with respect to consumer credit,
reliability and punctuality of payment - approved by Resolution n. 8 of
16/11/2004 by the Warrantor of the protection of personal data, and published
in
the Official Gazette n. 300 of 23/12/2004.
ART.
11
-5-
1.
The
Parties agree that, in compliance with the application of the provisions
laid
down in art. 117 of Law Decree n.385/1993 and the norms and regulations in
force
on the transparency of operations and bank services, the copy of the present
Deed of the Borrowing Party be delivered to the latter by the Bank.
2.
With
regard to the right to obtain the pre-contractual information pursuant to
the
Interdepartmental Committee for Credit and Savings (CICR) resolution of 4
March
2003, published on the Official Gazette (G.U.) n. 72 of 27 March 2003, before
the execution of the present Agreement, the Borrowing Party declares that
it has
availed itself of the above right.
ART.
12
1.
The
fiscal charges related to the fiscal treatment of the present loan, which
benefits from the conditions laid down in Presidential Decree n. 601 of 29
September 1973 and subsequent modifications, as well as, when applicable,
of the
benefits laid down in laws n.796 of 30.11.1976 and n. 1231 of 31.10.1961,
shall
be charged to the Borrowing Party .
Read,
confirmed and undersigned on each single page, attachments included, in
Milan,
|
SANPAOLO
IMI SpA
|
|
|
/s/
Xxxxx Xxxx Xxxxx
|
|
|
Branch
of ___________
|
(The
Borrowing Party)
|
Pursuant
to art. 1341 of the Civil Code, and, when applicable, in compliance with
art.
117 of Law Decree n. 385/1993, the Borrowing Party expressly approves the
following articles
Of
the
present Deed: 1 (Faculty of the Bank to reduce the loan; Early repayment
of the
sums lent following a reduction in the costs of the Project and/or in case
of
partial realization of the same; Termination clause), 3 BIS (Termination
clause); 4
(Termination clauses); 5
(Fee
for early total repayment); 6 (Ties
of
undertaking); 8 (Joint liability); 9 (Expenses and variability of the same)
and
10 (Consent pursuant to ex Law Decree n. 196/2003);
Of
the
"General Terms and Conditions" attached herewith: Articles 1 - 8 - 13
(Termination clauses); art. 1 (Terms and conditions for the crediting of
the
sums lent); art. 2 (Payment of installments and pre-amortization
installments); art.
6
(Accounting of payments); art. 7 (Payments by third parties); art. 8 (Sums
bearing no interest, as laid down in the first point; Offsetting and ties
as
laid down in the fifth point; Faculty of the Bank to use the guarantee deposits
for the objectives foreseen therein), art. 9 (Assignments); art. 14
(Undertaking), art. 15 (Consent to waive warranties).
Lastly,
pursuant to the Interdepartmental Committee for Credit and Savings (CICR)
resolution of 9/2/2000, published on the Official Gazette (G.U.) n. 42 of
22/2/2000, and, when applicable, in compliance with art. 1341 of the Civil
Code,
the Borrowing Party expressly approves art. 3 of the present Agreement (Default
interest and calculation of the same) .
(Place)
(Date)
|
/s/
Xxxxx Xxxx Xxxxx
|
|
|
(The
Borrowing Party)
|
-6-
ATTACHMENT
A
SYNTHETIC
DOCUMENT PURSUANT TO THE INTERDEPARTMENTAL
COMMITTEE
FOR CREDIT AND SAVINGS (C.I.C.R.) RESOLUTION OF 4/3/2003
<
No .1/ 2006 - DATE:
/ /2006
A)
- ECONOMIC CONDITIONS
- Duration:
20 quarters (The term “quarter” shall mean the periods 16/3-15/6, 16/6-15/9,
16/9-15/12 and 16/12-15/3 of each year). The quarter current on the date
of
execution of the present Loan Agreement shall be considered as a full quarter.
- Interest
rate: Variable, calculated on an annual nominal basis, and obtained from
the sum
of: 1) A fixed rate equal to 1.20% (starting from the beginning of the
amortization, this share shall be reduced to 1.02% in the case in which the
financed Project is realized in accordance with the terms and conditions
agreed); 2) A variable share equal to the 3-months EURIBOR rate (on a 360
basis), which is currently equal to 2.704 % annually. The nominal interest
rate
of the loan is currently equal to % annually.
- Installments:
On a quarterly basis, on the following due dates: 15/3, 15/6, 15/9 and 15/12
of
each year of duration of the loan.
- Payment
of interest: Starting from the date o crediting of the loan.
- Amortization:
Starting from 16/03/2008, the principal shall be repaid in n. 12 equal deferred
installments on a quarterly basis. Any possible rounding off shall be calculated
on the last installment.
- Default
interest: Pro tempore rate applied to the marginal lending facility fixed
by the
European Central Bank, currently corresponding to the annual 3%, increased
by
2.5 (two point five) percentage points.
- Fiscal
treatment: Substitute tax.
- Fee
for
early total repayment: 1% on the principal repaid in advance.
- Cost
Synthetic Indicator (CSI):
%
annually, calculated on the current date.
- Expenses:
- A
-
1)Procedure:
Euro 5,000;
- A
-
2) For
any
possible transfer registration fees: Euro 51.00;
-7-
Reimbursement
of expenses for sending the communications foreseen by law: Euro 1.00 for
each
dispatch;
Reimbursement
of expenses for sending payment notice of installment due and/or related
quittance: Euro 2.25 for each dispatch;
Issuance
of the duplicate receipt of quittance or early repayment: Euro
5.00;
Issuance
of certificate stating the existence of the credit: Euro 51.00;
For
re-examination of file on request of the Borrowing Party: 0.50% on the amount
of
the residual principal at the time of request, with a minimum charge of euro
100.00.
B)
- CONTRACTUAL CLAUSES REGULATING THE OPERATION
B1)
TERMS OF THE AGREEMENT
- Crediting
of the Sum, Loan Reduction; Termination Clause (Art. 1)
At
the
execution of the Agreement, crediting of the sum on the current account
indicated by the borrowing party, with immediate full availability of the
amount
lent.
In
the
case it is ascertained that the financed Project has been realized at a cost
lower than the estimated cost, or in the case the same Project has been realized
partially, the Bank shall have the faculty to reduce proportionally the amount
of the loan. The Borrowing Party shall reimburse the amount lent in excess
without paying the fee for early total repayment.
Furthermore,
in the case of partial realization of the Project, the Bank shall have the
faculty to terminate the loan agreement, without payment of the fee for early
total repayment.
- Default
Interest (Art. 3)
The
Bank
shall apply the default interest rate indicated in the Agreement on any sum
due
and outstanding, without periodic capitalization .
- Warranties
(Article 3 BIS )
Other
warranties and obligations connected with the accounting results:
Ø Equity
not lower than euro 5,000,000.00=
In
the
case of breach of the obligations connected with the accounting figures,
the
Bank is authorized to terminate the Agreement unless, within the term of
30 days
from the date of reception of the request by the Bank, the Borrowing Party
has
honored its obligation, or unless an agreement is reached regarding the terms
and conditions of the remedy.
-8-
- Obligations
Connected with the Objectives of the Loan and Termination Clause (Art.
4)
| 1) |
Comply
with the terms and conditions of the loan laid down in art.
1;
|
| 2) |
Realize
the Project completely and comply with both the terms and technical
conditions foreseen for the realization of the
same;
|
| 3) |
Submit
to the Bank, a Technical Report on the financed Project within
2 months
from 26/01/2007 (the date foreseen for the completion of the financed
Project), together with a photocopy of the invoices related to
the cost of
the Project (the Borrowing Party may produce a substitute statement
as an
alternative to the photocopies of the invoices whose amount does
not
exceed euro 2,500.00);
|
| 4) |
Allow
the Bank to make visits, inspections and checks, and collect documents
regarding the realization of the financed
Project.
|
Non-compliance
even with a single obligation shall give the Bank faculty to terminate the
present Loan Agreement.
The
Borrowing Party states that it does not operate in the sector of the supply
of
armaments. In the case of false declaration, the Bank shall have the faculty
to
terminate the present Loan Agreement.
- Early
Total Repayment (Art. 5)
It
is
allowed the payment of the contractual fee foreseen.
- Ties
of
Undertaking (Art. 6)
Any
undertaking of the loan shall be effective with respect to the Bank following
the explicit consent of the Bank.
- Joint
and
Several Liability (Art. 8)
The
Borrowing Party is jointly and severally liable with its successors and assigns
regarding the obligations undertaken with the Agreement.
- Expenses
(Art. 9)
The
expenses indicated in point A-2) of the Economic Conditions may vary unfavorably
for the Borrowing Party. These changes shall be publicized and applied in
compliance with the norms and regulations in force regarding the matters
treated
herein.
B2)
CLAUSES INCLUDED IN THE GENERAL TERMS AND CONDITIONS
- Termination
Clause (Art.1)
The
Bank
has the faculty of terminating the Agreement in the case in which the Borrowing
Party does not fulfill the contractual obligations fixed for the granting
of the
loan within the term agreed. In any case, the Bank shall have the faculty
to
abstain from granting the loan if it comes to the knowledge of any events
which,
had they been known in advance, they would have led the Bank to abstain from
the
execution of the Loan Agreement.
-9-
- Payment
of Installments (Art. 3)
The
checks regarding the stage of development of the works related to the financed
Project and the payment of installments are reserved to the Bank.
- Accounting
of Payments (Art. 6)
Unless
otherwise decided by the Bank, any payments made by the Borrowing Party or
any
warrantors shall first be accounted for the reimbursement of the expenses
and
charges incurred by the Bank on behalf of the Borrowing Party, then for the
payment of interest and accessory expenses and, lastly, for the repayment
of the
principal.
- Payments
by Third Parties (Art.7)
The
Bank
may reject payments made by third parties in its name, when subrogation in
favor
of the parties who intend to make such payments may arise from the same
payments, save their deferral.
- Deposits.
Termination Clause (Art. 8)
The
sums
deposited with the Bank for the loan shall not bear any interest. In the
case of
default, the Bank may offset the amount due on the loan with the deposits
mentioned above - also in derogation to art. 1246 n. 2 of the Civil Code.
The
Bank has the faculty of terminating the Agreement in case of failure to
integrate the deposits opened with the Bank (if necessary).
- Assignment
(Art. 9)
The
Bank
has the right to assign to third parties the credit arising from the Loan
Agreement.
- Express
Resolution Clauses (Art.13)
Rather
than pronouncing the lapse of the benefit of the term pursuant to ex art.
1186
of the Civil Code, the Bank may terminate the Agreement in compliance with
ex
art. 1456 of the Civil Code, with the consequent obligation for the party
of
repaying the loan in advance, in the cases foreseen by law, in this Agreement
and also in the following cases:
. Non-payment,
even of a partial amount, of any sum due over one hundred and eighty days
from
the due date;
-10-
. Withdrawal
from, suspension of or non-conformity with the obligations undertaken, or
failure to complete the Project in compliance with the terms of the financed
program. Total or partial use of the sums received for objectives different
from
those agreed herein;
. Failure
to inform the Bank regarding any debts for taxes or duties of any kind which
may
have pre-emptive rights with respect to the credit of the Bank;
. Failure
to inform the Bank regarding any fire or damage suffered by the assets mortgaged
or financed;
. Failure
to provide the supplementary warranties in the cases laid down in articles
1186
and 2743 of the Civil Code, or in case the warranties provided have been
reduced
in value or are no longer valid;
. When
the
Borrowing Party or any possible warrantor has been declared bankrupt or is
submitted to insolvency procedures or executory actions; when the equity
of the
Borrowing Party or the warrantors’ may be jeopardized by acts of third parties;
. When
the
equity declared for the purpose of obtaining the loan is reduced due executory
deeds on the part of the Borrowing Party, the warrantor or any assigns
(including deeds such as the collection of assets and the undersigning of
loans
for specific purposes, pursuant to ex art. 2447 bis and following of the
Civil
Code) , unless a new agreement (which may require the granting of warranties)
re-establishes the conditions of trustworthiness of the Borrowing
Party.
. In
the
case of non-fulfillment of even one of the following obligations: communications
regarding the existence of judicial actions or changes in the balance sheet
situation, maintenance of assets, transfer of assets without undertaking
of
mortgage; communications regarding important negative variations in the
situation declared for the mortgage or resolutions regarding assets or financing
operations for specific purposes; substantial changes in the main company
purpose/activity declared;
. In
the
case of non-fulfillment of even one of the following obligations, unless
remedied by a new term - of not less than thirty days - fixed by the Bank
by
specific request in writing: consent to carry out checks on the assets financed
/warranties, regular information, obligations on behalf of the
warrantors.
- Undertaking
(Art. 14)
The
Borrowing Party undertakes to notify the Bank any assignment of title to
the
financed assets or issuance of collateral securities on the same. The
undertaking shall be effective with respect to the Bank only subsequent to
the
consent of the Bank, without any automatic release of the original
debtor.
- Consent
to Waive Warranties (Art. 15)
The
consent of the Bank to waive warranties is subordinated to the proved absence
of
subrogation or revocation.
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