EXHIBIT 10.1
LOAN AGREEMENT
between
COMPEX SA ZI LARGES PIECES, XXXXXX XX XXXXXX, 0000 XXXXXXXX XX
(hereinafter referred to as "the Borrower")
and
CREDIT SUISSE, DOMICILED IN ZURICH
Delivery address: Xxxx xxxxxxx 0000, 0000 Xxxxxxxx
Contact address: Xxxxx-Xxxx 0, 0000 Xxxxxxxx
(Lender, hereinafter referred to as "the Bank")
AMOUNT OF LOAN CREDIT LINE OF
EUR 5'000'000.00
UTILIZATION - up to the sum of EUR 5'000'000.00 as a
current account credit in EUR, account
Nr 0525-365457-42-3, and/or in existing
and/or future accounts and/or in freely
convertible foreign currencies. Current
account credits can be terminated with
immediate effect at any time by either
party.
- up to the sum of EUR 5'000'000.00 in the
form of fixed advances. In principle,
fixed advances are due for repayment on
their maturity date.
- up to the sum of EUR 5'000'000.00 in the
form of loans. Loans may be terminated
by either part at any time subject to a
6-week notice period.
LIMIT REDUCTION EUR 1'000'000.00 per annum shall be repaid,
the first time on 30.6.2004 up to the amount
of EUR 1'000'000.00.
Instalments, the method of payment and any
changes in respect of capital repayments
shall be mutually agreed and confirmed in
writing by the Bank ("Product Agreement")
INTEREST RATE Current account loan
5.8 % per annum when utilized in EUR
The Bank may at any time adjust the interest
rates in line with the prevailing money and
capital market rates either with immediate
effect or as from a future date specified by
the Bank (without notification in the case
of foreign currency accounts). Interest
rates applicable to foreign currencies are
shown on the corresponding account
statements.
Fixed advances
Interest rates will be determined according
to prevailing market conditions at the time
of draw down.
Loans
The Bank may at anytime adjust the interest
rates in line with the prevailing money and
capital market rates either with immediate
effect or as from a future date specified by
the Bank.
CREDIT COMMISSION 0.25% per quarter of the maximum amount of
credit used if drawn as a current account
loan.
TERMINATION This framework agreement can be terminated
by either party at any time with immediate
effect. Loans currently outstanding under
the agreement will remain unaffected by such
a termination. Furthermore, the termination
of a loan granted under this framework
agreement will not automatically result in
the termination of the agreement as a whole.
SETTLEMENT UPON EARLY If any term loans granted under the
TERMINATION OR REPAYMENT framework agreement are repaid prematurely,
the Borrower is obliged to pay the Bank, in
addition to the principal amount and current
and accrued interest, a pre-payment penalty
of 0.1% of the principal amount of the loan,
minimum CHF 1'000.00.
Additionally, the Bank will credit or charge
the Borrower for the interest gain or
interest shortfall. The interest gain or
shortfall are determined by the prevailing
conditions on the money and capital markets
with reference to the remaining term of the
fixed-term loan.
ARREARS The Bank is entitled to give one month's
notice of termination of all fixed advances
with a term of more than 12 months granted
under the framework agreement if the
Borrower is more than 30 days in arrears
with the interest payment. In this case the
same procedure as in the case of premature
repayment shall apply.
ACCOUNT STATEMENTS Current accounts will be settled quarterly.
Fixed advances with a term of over 12 months
are settled on a quarterly basis and those
with a term of less than 12 months on the
due date.
Loans are settled on a quarterly basis.
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SECURITY Pledging by the Borrower of 100% of the
paid-up capital of Filsport Assistance
S.r.l., Verbania Intra, Italy, of EUR
33'800.00 divided into 33'800 Quotas of EUR
1.00 each, in accordance with the "Special
Deed of Pledge" to be signed.
Pledging by the Borrower of 100% of the
capital of Rutenia S.r.l., Milano, Italy,
whose name will be changed into Compex
Italia S.r.l., of EUR 10'400.00, in
accordance with the "Special Deed of Pledge"
to be signed.
PLACE OF PERFORMANCE The place of performance is the Swiss office
of the Bank with which the contractual
relationship exists. In the case of
Borrowers who, now or in the future, have
their place of residence or domicile abroad,
such place of performance shall also be the
place of enforcement (special domicile
within the meaning of Article 50 paragraph 2
of the Swiss Federal Law on Debt Enforcement
and Bankruptcy).
APPLICABLE LAW AND PLACE This legal relationship is subject to Swiss
OF JURISDICTION law. The Borrower recognises the exclusive
jurisdiction of the courts of Zurich or of
the place where the branch of the Bank with
which the contractual relationship exists is
located. The Bank is also entitled to take
legal action against the Borrower before any
other competent court.
CREDIT ANALYSIS FEE CHF 3'000.00
OTHER CONDITIONS The provision of the funds is subordinated
to the handing-over of a copy of the bylaws
of the companies Filsport Assistance S.r.l.
and Rutenia S.r.l., as well as a signed copy
of the purchase agreements.
The Bank shall be entitled at any time to
declare the entire outstanding loan
(including interest accrued up to the date
of payment) due for repayment, in the event
of any major change affecting the control
(shareholders, shares) of the Borrower.
The Borrower undertakes not to distribute
any dividends to Compex Technologies Inc.
during the entire term of the credit
relationship without the prior consent of
the Bank.
Each year within 4 months of the date of the
statement, the Borrower undertakes to send
the Bank for inspection a signed copy of
his/her balance sheet and profit and loss
account together with the complete Auditor's
Report, as well as the consolidated
statements, which the Bank will treat in the
strictest confidence,
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The terms of the mentioned pledge agreement
and the Bank's "General Conditions including
Safe Custody Regulations" form an integral
part of this agreement.
This agreement shall be drawn up in
duplicate. The Borrower and the Bank shall
each receive one specimen.
CREDIT SUISSE COMPEX SA
/s/ Xxxxxxxx Xxx-Xxxxxxx /s/ Xxxxxx Xxxxxx /s/ Xxxxx Xxxxx
------------------------ ----------------- ------------------
Xxxxxxxx Xxx-Xxxxxxx Xxxxxx Xxxxxx Borrower's signature
Lausanne, July 2, 2003 Lausanne, July 3, 2003
---------------------- ----------------------
Place and date Place and date
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GENERAL CONDITIONS
These General Conditions govern the relationship between CREDIT SUISSE
(hereinafter referred to as Bank) and its clients subject to any special
agreement and the established rules of banking practice. For the sake of
clarity, the Bank uses only masculine pronouns in its forms. These are to be
understood as including both sexes.
ART. 1 IDENTITY CHECK
The Bank undertakes to check carefully the identity of its clients and their
authorised agents. The client is liable for any damage resulting from failure to
recognise falsifications or incorrect identification provided that the Bank has
exercised the degree of due care usual in banking transactions.
ART. 2 LEGAL INCAPACITY
The client is liable for any damage resulting from his incapacity to act
provided that such incapacity to act was not apparent to the Bank on exercising
the degree of due care usual in banking transactions. The client is liable in
all cases for any damage or loss resulting from incapacity on the part of his
authorised agent or other third party.
ART. 3 COMMUNICATIONS FROM THE BANK
Communications from the Bank are deemed to have been duly transmitted if sent to
the last address supplied to the Bank by the client.
ART. 4 ERRORS IN TRANSMISSION
Damage resulting from the use of postal services, fax, telephone, telex, e-mail
and other means of communication or transport, such as from loss, delay,
misunderstandings, mutilation or duplicate dispatch is to be borne by the client
provided that the Bank has exercised the degree of due care usual in banking
transactions.
ART. 5 DEFECTIVE EXECUTION OF INSTRUCTIONS
In the event of damage resulting from the defective execution, late execution or
non-execution of instructions (with the exception of instructions relating to
stock exchange transactions), the Bank's liability is limited to an amount equal
to the loss of interest, unless its attention has been expressly directed to the
risk of more extensive damage at the time of and in respect of such
instructions.
ART. 6 SATURDAY AN OFFICIAL HOLIDAY
In business transactions with the Bank, Saturday shall be treated as an official
Bank holiday.
ART. 7 COMPLAINTS
Complaints by a client relating to the execution of instructions as well as to
other communications must be lodged immediately upon receipt of the
communication concerned and at the latest within the particular period specified
by the Bank. If the Bank fails to send a communication which the client expects,
the client must nevertheless lodge his complaint as if he had received the
communication by ordinary mail. Any damage arising from delay in making a
complaint is to be borne by the client.
Objections concerning account or safekeeping account statements must be
submitted within one month of receipt. Upon expiry of this period the statement
is deemed to have been approved.
ART. 8 RIGHT OF LIEN AND SET-OFF
The Bank has a right of lien on all assets it holds for the account of a client
whether in its own custody or placed elsewhere and a right of set-off as regards
all funds credited to a client's account in respect of all claims which the Bank
may have against the client, irrespective of the due dates of such claims or
currencies in which they are expressed. Immediately upon default by the client
the Bank shall be entitled to dispose, either by forced sale or in the open
market, of any assets over which it has a right of lien.
ART. 9 ACCOUNTS
The Bank reserves the right to alter its interest and commission rates at any
time, e.g. in the event of changes in market conditions and to advise the client
of such change in writing or by other suitable means. No deductions are allowed
from interest and commissions due to the Bank. Any expenses, taxes or other
charges are to be borne by the client.
If the client gives several instructions, the total amount of which exceeds his
available balance, the Bank will decide at its discretion which of the
instructions to carry out, in whole or in part, irrespective of the date they
bear or the date of their receipt by the Bank.
ART. 10 ACCOUNTS IN FOREIGN CURRENCIES
The Bank's assets corresponding to the client's credit balances in foreign
currency are held in the same currency in or outside of the country whose
currency is involved. The client bears proportionately to his share all the
economic and legal consequences which, as a result of measures taken by the
country in question, affect all the Bank's assets in the country of the currency
or in the country where the funds are invested. The obligations of the Bank
arising from accounts in foreign currencies will be discharged exclusively at
the place of business of the branches or offices at which the accounts in
question are held solely through the establishment of a credit entry at a Bank
branch, a correspondent bank or a bank nominated by the client in the country of
the currency.
ART. 11 DRAFTS, CHEQUES AND OTHER INSTRUMENTS
The Bank reserves the right to debit the client's account with unpaid drafts,
cheques or other instruments, previously credited or discounted. Pending the
settlement of any outstanding debit balance, the Bank retains a claim to payment
of the total amount of the draft, cheque or similar instrument, plus related
claims against any party liable under the instrument, whether such claims
emanate from the instrument or exist for any other legal reason.
ART. 12 TERMINATION OF BUSINESS RELATIONSHIP
The Bank or the client may terminate the business relationship at any time and
at either's own discretion. The Bank may in particular cancel credit facilities
at any time and demand repayment of debts without notice.
ART. 13 OUTSOURCING OF OPERATIONS
The Bank reserves the right to outsource, in whole or in part, certain areas of
business (e.g. funds transfer and securities operations).
ART. 14 APPLICABLE LAW AND VENUE FOR LEGAL PROCEEDINGS
All legal relations between the that and the Bank are governed by Swiss law. The
exclusive venue for any kind of legal proceedings is Zurich or the place of
business of the Swiss branch of the Bank with which the contractual relationship
exists. The Bank also reserves he right to take legal action against the client
before any other competent court.
ART. 15 BANK CUSTOMER SECRECY
All agents, employees and representatives of the Bank are obliged by law to
treat the business transactions of the client with confidentiality. The client
releases the Bank from its obligation to secrecy in so far as this is necessary
to safeguard the legitimate interests of the Bank:
o in the case of legal proceedings against the Bank initiated by the client
o to secure claims of the Bank and enable it to make use of securities of the
client or third parties
o to collect claims by the Bank on the client
o in the case of client accusations against the Bank in public or to the
authorities in Switzerland or abroad
o to the extent the terms applying to transactions in foreign securities or
rights demand disclosure.
All legal obligations imposed upon the Bank to disclose information are
expressly reserved.
ART. 16 AMENDMENTS TO THE GENERAL CONDITIONS
The Bank reserves the right to amend the General Conditions at any time. The
client will be notified in writing or by other suitable means.
SAFE CUSTODY REGULATIONS (INCLUDING SECURITIES LENDING)
GENERAL PROVISIONS
ART. 1 VALIDITY
These Safe Custody Regulations shall apply, in addition to the General
Conditions of the Bank, to all assets and other objects of value (hereinafter
called "Safe Custody Assets") accepted by the Bank for safe custody. These
Regulations shall be supplementary to any special contractual agreements or
special regulations for special safe custody accounts.
ART. 2 ACCEPTANCE OF SAFE CUSTODY ASSETS
The Bank will accept
a) securities for safe custody and administration, as a rule in OPEN
SAFEKEEPING ACCOUNTS
b) precious metals for safe custody, as a rule in OPEN SAFEKEEPING ACCOUNTS
c) money market and capital market investments not issued in the form of
securities for entry and administration in OPEN SAFEKEEPING ACCOUNTS
d) documents of title or documents evidencing entitlements for safe custody,
as a rule in OPEN SAFEKEEPING ACCOUNTS
e) valuables and other appropriate objects for safe custody, as a rule in
SEALED SAFE DEPOSIT ARRANGEMENTS.
Separate, additional regulations shall apply to sealed safe deposit
arrangements.
The Bank may refuse to accept Safe Custody Assets without stating any reasons.
ART. 3 VERIFICATION OF SAFE CUSTODY ASSETS
The Bank may verify Safe Custody Assets delivered to the Bank by the depositor
or by third parties for the account of the depositor for authenticity and
blocking or freezing notifications, without thereby assuming any liability for
such verification. In particular, the Bank shall undertake administrative acts
only after such verification is completed. Accordingly, the Bank shall not be
obliged during the verification period to execute any sales orders or other
transactions in which the assets must be released to a third party against
payment. The Bank shall undertake the verification of the Safe Custody Assets in
accordance with the resources and documents at its disposal. Foreign Safe
Custody Assets may be given to the depository or another suitable agent in the
relevant country for verification.
ART. 4 BOOK-ENTRY SECURITIES WITH A SIMILAR FUNCTION AS SECURITIES
Certificated Securities and book-entry securities with a similar function for
which no physical certificates are issued shall be treated the same. The rules
on commission (art. 425 et seq. Swiss Code of Obligations) shall apply to the
relationship between the depositor and the Bank.
ART. 5 DUTY OF CUE OF THE BANK
The Bank shall exercise the same degree of care in safeguarding the Safe Custody
Assets as if such assets were the property of the Bank.
ART. 6 DELIVERY AND DISPOSAL OF THE SAFE CUSTODY ASSETS
The depositor may at any time, subject to notice periods and provisions of the
law as well as pledges, charges, liens, rights of retention or set-off and other
similar entitlements of the Bank, demand that the Safe Custody Assets be
delivered to him/her or put at his/her disposal. The usual time to effect
delivery in the market concerned must be observed.
The Safe Custody Assets shall be transported or dispatched for the account and
at the risk of the depositor. If no instructions are received from the
depositor, the Bank may insure and declare the value of the Safe Custody Assets
at its own discretion.
ART. 7 REMUNERATION OF THE BANK
The remuneration of the Bank shall be calculated according to the fee tariff in
force at the time. The Bank reserves the right to alter the fee tariff at any
time. Changes shall be notified to the depositor in an appropriate manner.
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ART. 8 DURATION OF THE AGREEMENT
The Agreement shall generally be for an indefinite period. The legal
relationships established by these Regulations shall not lapse upon the death,
incapacity or bankruptcy of the depositor.
ART. 9 AMENDMENTS TO THE SAFE CUSTODY REGULATIONS
The Bank may amend the Safe Custody Regulations at any time. Amendments shall be
notified to the depositor in writing or another appropriate manner.
SPECIAL PROVISIONS FOR OPEN SAFEKEEPING ACCOUNTS
ART. 10 FORM OF SAFEKEEPING
The Bank is explicitly authorised to deposit Safe Custody Assets with third
parties in its own name but for the account and at the risk of the depositor.
Unless instructed to the contrary, the Bank is also authorised to hold the Safe
Custody Assets in collective deposit according to their type or to deposit them
with a central collective depository. Depositors shall have a right of
co-ownership based on the ratio of Safe Custody Assets deposited by them to all
Safe Custody Assets in the collective depository, provided that the collective
depository is in Switzerland. This does not include Safe Custody Assets which,
because of their form or for other reasons, have to be kept separately in safe
custody. Safe Custody Assets held abroad shall be subject to the laws and
customs of the place of deposit. If the applicable law of the foreign country
renders it difficult or impossible for the Bank to return assets deposited
abroad or to transfer the proceeds from the sale of such assets, then the Bank
shall only be obliged to procure for the depositor a claim for the return of
property or payment of the sums involved, provided that such a claim exists and
is assignable. Safe Custody Assets in registered form may be registered in the
name of the depositor. The depositor hereby accepts the disclosure of its name
to the third party depository. Alternatively the Bank may register the assets in
its own name or in the name of a third party, in either case for the account and
at the risk of the depositor, especially if it is not customary or possible to
register the assets in the name of the depositor. Safe Custody Assets redeemable
by drawings may also be held according to their type in collective safe custody;
drawn lots shall be allocated amongst the depositors by the Bank, using a met
which guarantees all owners the same chance of inclusion in the sub-drawing as
under the main drawing.
ART. 11 ADMINISTRATION
The Bank shall, without specific instructions from the depositor, attend to the
usual administrative matters such as the collection of dividends and interest,
repayments of principal, monitoring of drawings, redemptions and maturities,
conversions and subscription rights, etc. and shall also normally require
depositors to take the measures incumbent on them pursuant to par. 2 of this
article. In this regard the Bank shall rely on the customary information media
available to it but does not assume any responsibility therefore. The Bank shall
notify the depositor on the deposit statement or by other means if it is unable
to administer individual assets in the usual manner. The administrative actions
in respect of registered shares without coupons shall be carried out only if the
address for delivery of dividends and subscription rights is that of the Bank.
Unless otherwise agreed, it shall be the responsibility of the depositor to take
all other measures to obtain and preserve the rights accruing on the Safe
Custody Assets, in particular to issue instructions for the handing of
conversions, the exercise, purchase or sale of subscription rights and the
exercise of conversion rights. If instructions from the depositor are not
received in time, the Bank shall be authorised, but not obliged, to act at its
discretion (including to debit the customer's account, for example when
exercising subscription rights).
ART. 12 POSTPONED PRINTING OF CERTIFICATES
If it is intended to postpone the issuance of certificates for the duration of
the deposit for safe custody with the Bank, the Bank shall be explicitly
authorised to
a) cause the respective certificates to be cancelled upon their delivery into
the safekeeping account
b) carry out the usual administrative actions for the account of the depositor
during the safe custody and give the issuer the necessary instructions and
obtain the necessary information, and
c) demand the physical issuance of the certificates on behalf of the depositor
upon their delivery out of the safekeeping account.
ART. 13 FIDUCIARY ACCEPTANCE OF SAFE CUSTODY ASSETS
If it is not customary or possible for title to the Safe Custody Assets to be
vested in the depositor, the Bank may purchase the Safe Custody Assets or cause
them to be purchased in its own name or in the name of a third party and to
exercise the rights arising thereunder or cause them to be exercised, at all
times for the account and at the risk of the depositor.
ART. 14 CREDITS AND DEBITS
Amounts (principal, income, fees, expenses, etc.) shall be credited or debited
to the account pursuant to the booking instructions as agreed, unless instructed
otherwise by the depositor. Such amounts shall be converted into the currency of
the relevant account if necessary.
Changes to the account instructions must be received by the Bank at least 5 bank
business days before the transaction falls due.
ART. 15 STATEMENTS
The Bank shall provide the depositor with a statement of the Safe Custody Assets
in the safekeeping account, as a rule at the end of the year. The statement may
also include other assets (such as options) which are not subject to the Safe
Custody Regulations.
Safekeeping account valuations shall be based on approximate prices and market
values taken from the usual bank sources of information. The given values are
guidelines only and shall not be binding on the Bank. The Bank shall also not
assume any liability for the accuracy of these values or for further information
relating to the posted assets.
PROVISIONS REGARDING SECURITIES LENDING
ART. 16 AUTHORISATION FOR THE BANK TO BORROW
The depositor (hereinafter referred to in part as "the Lender") hereby grants to
the Bank for the duration of the safekeeping account relationship the right to
borrow all securities which are or will be booked into his/her safekeeping
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account at the Bank. The Borrower of the securities shall always be the Bank
itself. The Bank shall not act as agent for the account and at the risk of the
Lender. The depositor may at any time exclude specific securities from the
authorisation to borrow by means of written instructions to the Bank. Such an
exclusion shall not be effective in respect of any securities that are at that
time the subject of a fixed term loan; upon expiry of that fixed term, the
securities so loaned shall be covered by the exclusion. The borrowing of assets
of the Lender by the Bank shall take place against the payment of a commission.
The Lender has no right to require the borrowing of all or specific securities -
even if he/she has corresponding safekeeping account holdings. Specific customer
sectors may be excluded in whole or in part from securities lending, at the
Bank's discretion. The principle of equal treatment shall apply to customer
sectors included in securities lending.
ART. 17 UNALTERED SAFEKEEPING ACCOUNT STATEMENT
The Bank shall not inform the Lender of the individual loan transactions.
Borrowed securities will be listed in the Lender's safekeeping account statement
during the period of the loan without being specifically identified as lent.
The Bank is entitled at any time to allocate the borrowing of securities to
individual Lenders. The principle of equal treatment shall apply. This means
that the securities borrowed by the Bank will be allocated amongst individual
Lenders in proportion to the number of securities authorised for borrowing by
each Lender in the relevant securities category.
ART. 18 TITLE AND PLEDGE
When securities are lent to the Bank, the title to the securities, together with
the ancillary rights, shall pass to the Bank. The Lender receives in lieu
thereof a claim for return of securities of the same kind, quality and quantity.
When securities which are pledged to the Bank as present or future collateral
are lent, the claim for return which arises in lieu thereof shall be deemed to
be pledged or assigned to the Bank. The regulations contained in the relevant
pledge agreement or declaration of assignment shall also apply.
ART. 19 DURATION OF THE LOAN
An individual loan begins on the day upon which title to the securities,
together with the ancillary rights, passes to the Bank and ends on the day upon
which the title and rights are transferred back to the Lender. Unless expressly
stipulated otherwise, the duration of individual loans shall always be for an
indefinite period.
ART. 20 PARTICIPATION RIGHTS
The Lender shall not be entitled to any of the rights of participation
associated with the borrowed securities (right to participate at a general or
extraordinary meeting of shareholders, voting rights) for the duration of the
ban period. If a Lender does not wish to forego his/her voting rights, he/she
must temporarily exclude the relevant securities from the authority to borrow.
If the Lender wishes to participate at an annual general meeting, the Bank must
receive from him/her instructions excluding the relevant securities by no later
than 30 days prior to expiration of the deadline for ordering entrance tickets.
In specific cases, this deadline may be extended for reasons relating to
corporate law or for technical reasons.
ART. 21 PECUNIARY RIGHTS
Unless agreed otherwise, the Bank shall be obliged to immediately credit to the
Lender any pecuniary rights accruing on the borrowed securities such as income
(dividends, interest, premiums, etc.) as well as any liquidation or redemption
proceeds, after deduction of all domestic and foreign taxes and regular bank
commissions, fees and expenses.
The Lender will be notified in accordance with art. 11 of any right which
accrues with respect to the borrowed securities. If the Lender wishes to receive
or dispose of the right in its original form, he or she must exclude the
relevant securities from the authority to borrow on a timely basis. Otherwise,
the Bank may, at its discretion, within the scope of its obligation to return
borrowed securities, either transfer to the Lender the relevant right in its
original form or compensate him or her in cash, unless the rights involved have
expired due to lack of fulfilment of the necessary prerequisites for the
exercise thereof. If lots are drawn, the Bank may return to the Lender either
the securities or the corresponding value thereof, at the Bank's discretion.
In all other respects, the Bank shall proceed in accordance with the guidelines
for open safekeeping accounts, i.e., as if the securities had not been lent. The
Bank's entitlement to charge the Lender the usual fees shall extend to borrowed
securities.
ART. 22 COMMISSION
The Bank shall pay the Lender a stand-by commission for the securities
authorised for lending. This commission shall be calculated on the basis of the
specific securities authorised for lending by the individual Lender. In the
event of allocation of the borrowing of securities in accordance with art. 17.2
of these Safe Custody Regulations, the commission during the term of the loan
shall either be calculated on the basis of the daily market value or be fixed at
the same rate for the entire loan period. In either case, the day on which the
securities are returned shall not be taken into consideration in calculating the
commission. The commissions owed to the Lender will be credited to an account
designated by the Lender at least once a year or upon termination of the
safekeeping account relationship.
ART. 23 LIABILITY
If the Bank fails to meet its obligations regarding return of the borrowed
securities or fails to do so on a timely basis, the Lender shall only be
entitled to damages for non-performance. The extent of liability on the part of
the Bank is therefore limited to the equivalent value of the borrowed
securities, including commissions and any earnings from accrued pecuniary
rights.
The equivalent value shall be calculated based on the mid price on the Swiss
Stock Exchange (SWX) on the date on which the Lender's claim to return of the
borrowed securities falls due. If there is no trading on the SWX on this date,
the corresponding price on the stock exchange on which such securities are
principally traded shall apply. If there is also no such price, the current OTC
price shall apply or, if no such price can be determined, the price most
recently paid prior to the termination of trading on the SWX or the
corresponding primary stock exchange shall be applicable, in that order.
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FINAL PROVISIONS
ART. 24 TERMINATION
The safekeeping account agreement between the depositor and the Bank shall be
valid for an indefinite term. It may, however, be terminated in writing by
either party at any time. The termination, however, shall have no effect on
individual loans of securities outstanding on the date of termination. Such
loans shall continue to be governed by the provisions in these Regulations.
ART. 25 GENERAL PROVISIONS
Should an individual provision in these Regulations contravene mandatory law,
this shall not impair the validity of the Regulations. Instead, the relevant
provision shall be replaced by a regulation which the parties would have
selected in good faith if they had known about the invalidity of the relevant
provision.
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