General Terms and Conditions for Counter Guarantees GTC CG

Transcription

1 General Terms and Conditions for Counter Guarantees GTC CG Valid from 1 April 2013 (Version 2.3/2013)

2 Table of Contents 1 Object and Scope of the Counter Guarantee 3 2 Liability Period 3 3 Occurrence of the Guaranteed Event 3 4 Currency of the Counter Guarantee 4 5 Payment under the Counter Guarantee 4 6 Legal Action and Cost Contribution 4 7 Obligations of the Exporter 4 8 Obligations of the Guarantor 4 9 Exclusion of Indemnification 5 10 Repayment of Compensations 5 11 Premiums 6 12 Assignment 6 13 Counter Coverage 6 14 Miscellaneous 6

3 The General Terms and Conditions for Counter Guarantees (GTC CG) issued by Swiss Export Risk Insurance (SERV) shall apply to the extent that individual regulations are not expressly excluded or amended by special conditions in the counter guarantee. The GTC CG shall apply within the scope of the Federal Act on the Temporary Extension of the Insurance Services of SERV (SR ), the Swiss Export Risk Insurance Act (SERVG, SR ), and the Swiss Export Risk Insurance Ordinance (SERV-V, SR ) in the version valid on the date the counter guarantee is issued. These GTC CG and other terms and conditions of SERV shall not grant the guarantor and the exporter any rights beyond those set forth in the Federal Act on the Temporary Extension of the Insurance Services of SERV, the SERVG, and the SERV-V. 1 Object and Scope of the Counter Guarantee 1.1 By means of the counter guarantee, SERV undertakes the commitment (guarantee) to make the financial institution issuing the bond (guarantor) a payment up to the set maximum amount on first written demand, provided that the guarantor provides evidence that he has made payments to the beneficiary due to the calling, in proper form, of the set contract bond, and states that he has not been reimbursed by the exporter. 2 Liability Period 2.1 The liability under the counter guarantee begins when the contract bond comes into force, at the earliest, however, when the guarantor receives the counter guarantee. 2.2 If risk aggravating factors occur, SERV may at any time give notice in writing that any liability is excluded for contract bonds that the guarantor has not yet issued at the time the guarantor receives the notice. 2.3 SERV s liability under the counter guarantee expires: upon return of the counter guarantee, discharge of SERV by the guarantor, or 30 days after the expiry of the contract bond; if the claims under the counter guarantee or the contract bond are assigned without the consent of SERV; or if a risk aggravating amendment to the contract bond has been made without the consent of SERV. 3 Occurrence of the Guaranteed Event The guaranteed event occurs if the guarantor has made payments to the beneficiary on the basis of the formally justified calling of the contract bond covered by the counter guarantee and has not been reimbursed by the exporter. Page 3 of 6

4 4 Currency of the Counter Guarantee Payments under the counter guarantee shall be made in the currency set forth therein (currency of the counter guarantee). 5 Payment under the Counter Guarantee 5.1 SERV makes payments under the counter guarantee within ten banking days of receipt of the written demand and the necessary evidence according to the counter guarantee. 5.2 Any costs for payment to an account outside Switzerland shall be borne by the guarantor. 6 Legal Action and Cost Contribution Upon written request, SERV may, in addition to the payment under the counter guarantee, proportionally contribute to all appropriate and reasonable costs and expenses that the guarantor incurs in connection with the defence against the illegitimate calling of a contract bond and for which the guarantor has a claim for reimbursement of expenses against the exporter. 7 Obligations of the Exporter 7.1 The exporter shall fully and correctly disclose all circumstances material to the issuance and possible amendment of the counter guarantee. Any changes of such circumstances shall be notified to SERV in writing without delay. 7.2 The exporter shall ensure that the counter guarantee is not called upon. The exporter shall therefore reimburse the guarantor if the contract bond is called. 7.3 If SERV has nevertheless made payments under the counter guarantee, the exporter is obligated to reimburse any amount he is not entitled to under the contract bond insurance. The reimbursement obligation plus five percent interest for the period since SERV made the payment to the guarantor are due immediately; the exporter may not raise any defences or objections against this obligation. It rests with the exporter to provide the evidence that he is entitled to indemnity under the contract bond insurance. 7.4 The exporter continues to be subject to the terms and conditions of the GTC CB. 8 Obligations of the Guarantor 8.1 The guarantor is obligated to fully and correctly disclose all circumstances material to the acceptance and possible amendment to the counter guarantee as well as to entitlement to payments from SERV. Amendments shall be communicated to SERV in writing without delay. Page 4 of 6

5 8.2 The guarantor shall keep confidential all information that he receives in connection with SERV s decision on the creditworthiness of the debtor or exporter. 8.3 If the guarantor has received collateral for the contract bond, he is obligated to advise SERV of the fact and realise the collateral in coordination with SERV in the event of occurrence of the guaranteed event; this does not apply to global collateral that the guarantor was provided with for the entire credit lines of the exporter. Any proceeds shall be paid to SERV in proportion to the cover ratio after deducting the substantiated necessary realisation costs, provided SERV has made payment under the counter guarantee. 8.4 The guarantor shall, without delay, void any claims for cover against the exporter in the amount of the payments made by SERV under the counter guarantee. Only if collateral exists shall the guarantor maintain the claim for cover as long as this is necessary to obtain settlement from the collateral. 9 Exclusion of Indemnification 9.1 No payment shall be made under the counter guarantee if the guarantor is in breach of any of his obligations and SERV would not have issued the counter guarantee or not have issued it to the same extent, if the guarantor had fulfilled its obligations, or such a breach of obligations has caused or threatens to cause a guaranteed event. 9.2 Indemnification shall not be excluded if the guarantor establishes that the breach of obligations was not its fault. In all other respects, SERV may partially or wholly waive its right to exclude indemnification in consideration of the particular circumstances of the specific case. 9.3 Compensation is definitely excluded if the guarantor breached legal provisions in connection with the conclusion or during performance of the contract bond agreements. 9.4 Any further claims of SERV based on the policyholder's breach of obligations remain unaffected. 10 Repayment of Compensations If, after the payment under the counter guarantee has been made, it emerges that the conditions for calling the counter guarantee were not fulfilled, the guarantor shall reimburse the payments received including any reimbursed costs of legal action plus five per cent interest for the period since SERV made the payment. Page 5 of 6

6 11 Premiums 11.1 The SERV premium tariff in effect at the time the counter guarantee is issued shall apply to premiums and any reimbursement of premiums paid The premium is payable in Swiss francs (premium currency), unless a different premium currency is agreed in the agreement with the exporter. In the case of foreign currency cover, premiums are calculated at the closing rate on the foreign exchange market on the day before the policy is issued by SERV, as set forth in the agreement with the exporter (premium conversion rate). 12 Assignment 12.1 The assignment of the claim under the counter guarantee is subject to the written consent of SERV. SERV may make its consent conditional upon the fulfilment of special conditions The legal relations between SERV and the guarantor remain unaffected by the assignment. 13 Counter Coverage The exporter is aware of the fact that SERV may take out counter coverage for the counter guarantee at its own discretion. The exporter authorises SERV to grant access to the files required for the counter coverage relationship and provide the necessary information to persons from whom SERV has taken out or intends to take out counter coverage for the counter guarantee; to this extent, the exporter releases SERV from the obligation to maintain secrecy. 14 Miscellaneous 14.1 All amendments and supplements to the counter guarantee shall be made in writing All notifications and declarations by the guarantor and the exporter shall be submitted to SERV in writing The federal administrative law of Switzerland applies. The Federal Administrative Court shall have sole jurisdiction over disputes in connection with this counter guarantee (Art. 35 letter a of the Swiss Administrative Court Act). Notwithstanding and without prejudice to the foregoing, SERV shall also be entitled to bring action against the guarantor at any other court having competent jurisdiction if the guarantor has a registered office abroad. Page 6 of 6