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Ulster Bank Ireland Limited - General Terms and Conditions for Committed Facility for Bond/ Guarantee/Letter of Credit Issuance

1. INTRODUCTION
1.1 This document sets out the general terms and conditions (“ General Conditions”) governing guarantee, bond and letter of credit facilities provided by the Bank to the Account Party under a Facility Letter unless otherwise provided in these General Conditions or in the Facility Letter.
1.2 Where these General Conditions apply to a Facility, other specific terms and conditions will also apply to the Facility and these will be set out in the Facility Letter. If any such specific terms and conditions conflict with these General Conditions, the specific terms and conditions will apply.

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In this Agreement, unless the context otherwise requires:
“Account Party” means the person for whose account a guarantee, bond or letter of credit under the Facility Letter has been issued, and where there is more than one such person, shall be deemed to refer to all such persons and shall include its/their successors and permitted assignees;
“This Agreement” means the Facility Letter, these General Conditions, any Application Forms and any Schedule;
“Availability Period” means the period specified in the Facility Letter during which a Facility will be available for utilisation by an Account Party;
“Bank” means Ulster Bank Ireland Limited and its successors, transferees and assignees in accordance with their respective interests;
“Bond” has the meaning given to it in Section 3.1;
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in Dublin;
“Event of Default” means an event of default under the Facility Letter or any event specified in Section 6 (Events of Default) of these General Conditions;
“Facility” or “Facilities” shall have the meaning assigned to them in the Facility Letter;
“Facility Letter” means any facility letter to which these General Conditions are stated to apply;
“Finance Documents” means this Agreement, the Security Documents and any other agreements, documents, certificates or undertakings that may be entered into or executed in connection with the Facilities;
“Guarantor” means any guarantor specified in the Facility Letter and shall include his/her/its personal representatives, executors, administrators, successors and permitted assignees (as appropriate);
“Letter of Credit” has the meaning given to it in Section 3.1;
“Regulatory Authority” includes the Central Bank of Ireland, the European Central Bank, the Prudential Regulation Authority and the Financial Conduct Authority, the Bank of England, the Revenue Commissioners, the UK Inland Revenue and any other fiscal, monetary or regulatory authority in any jurisdiction including the Basel Committee on Banking Supervision (and, in each case, any successor);
“Schedule” has the meaning given to it in Section 3.7;
“Security” means the security comprised in the Security Documents;
“Security Documents” means the security documents specified in the Facility Letter.

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Nature and Availability
3.1 A facility where the Bank agrees to execute guarantees, bonds or indemnities, or any covering note or instrument to a beneficiary (or potential beneficiary) agreeing to issue or provide any bond, guarantee or indemnity which imposes on the Bank (or purports to impose on the Bank) any liability (together referred to as “Bonds”) or letters of credit (“Letters of Credit”) on behalf of the Account Party in the amount, for the term and purpose, and on the specific terms specified in the Facility Letter.
3.2 This Facility is committed meaning that the Facility will be available for utilisation during the Availability Period and for the term specified in the Facility Letter unless an Event of Default has occurred before then.

Amount
3.3 The aggregate of the maximum potential liability of the Bank under each Bond or Letter of Credit shall not exceed the Facility Amount specified in the Facility Letter.
3.4 Where the maximum liability of the Bank under a Bond or Letter of Credit is expressed to increase by reference to any published index, the Bank shall determine (in its absolute discretion) for the purposes of the Facility Letter and these General Conditions the timing and amount of such increase. Where, by operation of such a provision in any Bond or Letter of Credit issued by the Bank, the maximum liability has, or would, exceed the maximum liability permitted under the Facility Letter, the Bank shall not be deemed to have permitted, or acquiesced, to such increase for the purposes of the Facility Letter.
3.5 If the Bank is required by law to deduct or withhold any amount from any payment made or to be made under any Bond or Letter of Credit, it shall be permitted to do so and, where that Bond or Letter of Credit does not expressly provide that any such payment is to be made net of any such deduction or withholding, the relevant beneficiary may claim any additional amount to make up for the amount of that deduction or withholding up to the maximum liability under that Bond or Letter of Credit.
3.6 For the purposes of calculating the maximum liability under any Bond or Letter of Credit, any limitation or potential reduction in liability on the part of the Bank (in whole or in part) by reference to a statutory provision or legal or equitable principle (foreign or domestic) or event, act, omission or circumstance (other than the payment of an amount by the Bank thereunder where the Bond or Letter of Credit allows for the Bank’s liability to be irrevocably reduced by the amount of any such payment), shall be ignored.

Utilisation
3.7 Each request for a Bond or Letter of Credit shall be by way of a completed Bank application form incorporating details of the document required.
3.8 The Bank shall issue the relevant Bond/Letter of Credit to such beneficiary as the Account Party may request provided:
(a) the wording of the Bond/Letter of Credit (including the beneficiary and maturity date) have been approved by the Bank; and
(b) where applicable, a Schedule of Understanding (“Schedule”) has been countersigned and dated by the Account Party.

Duration/ Reduction/ Expiry of Bank Liability
3.9 Where the Bond or Letter of Credit does not expressly state when it comes into operation, or the date on which it comes into operation is dependent on any act, event, circumstance or thing, it will be treated as valid immediately from the date of execution by the Bank and the Bank shall have to honour any claim accordingly.
3.10 Where the Bond or Letter of Credit:
(a) does not contain a specific expiry date or expiry event,
(b) does not state how the occurrence of the event controlling expiry is to be evidenced to the Bank, or
(c) is not issued subject to Irish law and the exclusive jurisdiction of the Irish courts,
release from liability will not take place until either the beneficiary confirms to the Bank directly that the Bank is released from liability or the Bond or Letter of Credit is returned to the Bank direct from the beneficiary for cancellation. Further, where the Bond or Letter of Credit does not state that claims “must be received by Expiry”, the Bank may have to pay claims received after the expiry date.
3.11 In the case of a Bond, subject to Section 3.10, the Bank’s maximum liability under such Bond shall be treated as reduced or extinguished for the purposes of this Agreement when and to the extent that:
(a) the Bank has received written confirmation from the beneficiary of the Bond (i) of the amount of such reduction or (ii) that the Bank’s maximum liability under the Bond has been extinguished and/or the Bond is returned to the Bank; or
(b) the Bank has made a payment under the Bond and the terms of the Bond allow for the Bank’s maximum liability thereunder to be irrevocably reduced by the amount of any such payment or the Bank has settled its maximum liability under the Bond in full; or
(c) the expiry date (if any) stated in the Bond has passed and the Bond provides that claims must be received before expiry except to the extent that a valid claim has been made on the Bank prior to that expiry date; or
(d) the Bank is otherwise satisfied that its maximum liability under the Bond has been irrevocably reduced or extinguished.
3.12 In the case of a Letter of Credit, subject to Section 3.10, the Bank’s maximum liability under such Letter of Credit shall be treated as reduced or extinguished for the purposes of this Agreement when and to the extent that:
(a) the Bank has made a payment under such Letter of Credit and the terms of such Letter of Credit allow for the Bank’s maximum liability thereunder to be irrevocably reduced by the amount of any such payment, or extinguished; or
(b) the Bank is otherwise satisfied that its maximum liability under the Letter of Credit has been irrevocably reduced or extinguished.
3.13 Where the Bond or Letter of Credit is, or is to be, issued by a correspondent bank, the Bank will be unable to confirm cancellation of the Account Party’s liability until the Bank receives confirmation of its release from liability from the correspondent bank.

Authority from Account Party in relation to payments of demands
3.14 The Account Party irrevocably and unconditionally authorises and directs the Bank to pay, following a demand purported to be made by any beneficiary under a Bond or Letter of Credit which appears on its face to be in order, any sum demanded. Any such demand shall be conclusive evidence that the sum stated in the demand is properly due.
3.15 The Account Party acknowledges and agrees that:
(a) the Bank deals in documents only and is not concerned with the legality of a demand or any underlying transaction (whether or not expressly referred to in the relevant Bond or Letter of Credit), any available set-off, counterclaim or other defence of the Account Party or with the accuracy of any facts referred to in a demand or any document supporting, or purporting to support, a demand; and
(b) its obligations to the Bank will not be affected by any incapacity of, or limitation on the powers of, any person signing a demand, claim or other document.
3.16 Where there is insufficient detail in the wording of the Bond or Letter of Credit by way of tender/contract reference number/date or description of services or goods to be supplied, by which the Bond or Letter of Credit can be linked to a particular tender/contract or related claim or demand, the Account Party acknowledges that the Bank will have to accept any purported claim whether it is in relation to the correct tender/contract or not.
3.17 Where the Bond or Letter of Credit does not state how claims are to be lodged with the Bank, does not state explicitly that it is payable “on first demand” or does not contain specified “conclusive evidence” whereby the Bank can know that claims are properly due, the Bank will pay against the first written demand of the beneficiary in writing without any obligation on the Bank to verify the authenticity of the source and, if receipt of claims at the paying office is delayed as a consequence and the beneficiary claims interest on the delay, such interest will be for the Account Party’s account.
3.18 Where the Bond or Letter of Credit;
(a) does not provide for the signature(s) of the beneficiary on any claim to be authenticated by its bankers, the Bank will accept any claim which on its face appears in order which purports to emanate from the beneficiary,
(b) provides that the Bank is made primary obligor/principal debtor, the beneficiary is able to claim on the Bank without first having to claim on the Account Party or even notify the Account Party that a claim is being made,
(c) does not specifically state that claims by facsimile, unauthenticated telex or unauthenticated electronic data interchange are precluded, the Bank may have to pay any claim presented to it by those means,
(d) states the terms and conditions of a contract, permission or arrangement or any foreign law, statutory or constitutional provision or legal or equitable principle are incorporated into it, as the Bank will not have investigated those laws, provisions or principles and is not a party to the contract, permission or arrangement and is not able to interpret its terms and conditions, the Bank shall be permitted to pay against the first written demand of the beneficiary without obligation to investigate further,
(e) specifies that the amount of any demand is to be ascertained pursuant to and in accordance with the provisions of or by reference to any contract, undertaking, permission or by reference to any event, fact or circumstance, the Bank shall be obliged to honour any demand up to the maximum amount of the Bond or Letter of Credit without obligation to investigate further.

Account Party as Party to the Bond/Letter of Credit
3.19 Where the Account Party is, or is expressed to be, a party to a Bond or Letter of Credit for any reason:
(a) notwithstanding the terms of that Bond or Letter of Credit, as between the Account Party and the Bank, if any of the terms of that Bond or that Letter of Credit are inconsistent or conflict with this Agreement, this Agreement shall prevail;
(b) and, without prejudice to the generality of paragraph (a) above, that Bond or Letter of Credit is expressed to, or may, continue beyond the expiry date or availability period of the facility (or relevant facility) under the Facility Letter, nothing therein or herein shall oblige the Bank to continue to make available that facility beyond that expiry date or availability period or otherwise prejudice its right to call for cash cover then or at any time before;
(c) the rights and remedies of the Bank under this Agreement shall not be impaired in any way by any lack of authority or capacity on the part of the Account Party (or who is expressed to be party) to that Bond or Letter of Credit or if that Bond or Letter of Credit is or becomes unenforceable or invalid as against the Account Party for any reason; and
(d) and the Account Party is obliged on demand to make a payment thereunder, where the sequence of demands is not expressly set out, or expressly set out but not followed, the Bank’s rights and remedies shall not be adversely affected or impaired in the event the Account Party makes a payment in addition to any payment made by the Bank (whether before, after or at the same time).

Assignment
3.20 Where the Bond or Letter of Credit is not expressed to be personal to the beneficiary or non-transferable/non-assignable, if the beneficiary should transfer/assign the benefit of it to another party they must get the prior written consent of the Bank to the assignment and the Bank may make a payment to any direct or indirect assignee without any further investigation.
3.21 Where a transfer or assignment has occurred or where the Bond or Letter of Credit is addressed to multiple beneficiaries, the Bank may receive a claim from one or more beneficiaries or parties purporting to be assignees at the same time in amounts which may exceed the maximum liability. The Bank may make a payment to one or more of such beneficiaries or purported assignees (and in the amount or amounts determined by it) in its absolute discretion without any requirement to investigate further.

Letters of Credit – General
3.22 The Bank may select the advising bank, even where the Account Party has specified an alternative. The Bank may restrict the availability for negotiation of any Documentary Letter of Credit even if the customers instructions are for it to be freely negotiable.
3.23 The Bank may act through correspondent banks or agents.
3.24 The Bank is not responsible for any act, delay, error, default or insolvency of any correspondent bank or agent nor for any errors in translation or interpretation of technical terms.

Letter of Credit – Goods
3.25 The goods are those subject to the transaction financed by a Letter of Credit.
3.26 The Account Party must acquire ownership of the goods, not subject to any charge or interest.
3.27 The Bank is not responsible for the description, quantity, quality or value of the goods as stated in invoices, bills of lading or other documents or the conditions or sufficiency of any insurance of goods.
3.28 The import of the goodsmust not be prohibited and theAccount Partymust hold a valid import licence, where required, and provide it to the Bank, on request.
3.29 The Bank may arrange to transport, insure and store the goods (but without any obligation to do so).
3.30 The Account Party will:
(a) pay all freight, warehouse charges, dock transit charges, rent and all other costs of transporting and storing the goods;
(b) comply with any instructions of the Bank about dealing with or storing the goods;
and
(c) tell the Bank where the Goods are and allow it access at any time to inspect, take samples or take possession of the goods.

Letter of Credit – Insurance
3.31 Unless a Letter of Credit requires the presentation of insurance documents, the Account Party will:
(a) insure the goods to the Bank’s reasonable satisfaction and have the Bank’s interest noted on each policy or, on request, have the Bank named as first loss payee. If the Account Party fails to comply, the Bank may arrange insurance;
(b) on request, provide the Bank with copies of all insurance documents;
(c) immediately tell the Bank of any circumstances likely to give rise to an insurance claim, not take or omit any action that could invalidate the insurance;
(d) promptly pay to the Bank any insurance proceeds it receives and, until payment, hold those proceeds on trust for the Bank; and
(e) at its cost, pursue any insurance claim that may arise or, at the Bank’s request, do everything necessary to enable the Bank to pursue any claim.

Letter of Credit – Pledge
3.32 The Account Party as beneficial owner and as a continuing security for all amounts owing by the Account Party under the Facility Letter, pledges to the Bank:
(a) all bills of exchange and other negotiable instruments, and all documents of title, transportation, storage and other documents presented to the Bank under a Documentary Letter of Credit; and
(b) the goods identified in those documents, and charges to the Bank the benefit of each insurance policy relating to the Goods.
3.33 The Bank may at any time take possession of any goods and has power to sell the goods, without notice to the Account Party. The Bank may apply the proceeds of any sale to the Account Party’s liabilities in the order it decides.
3.34 The Bank will not be responsible for the goods and documents beyond the exercise of reasonable care.
3.35 The Account Party will:
(a) procure endorsements of bills of lading in blank or to the order of the Bank and obtain acknowledgements or receipts from any warehouse keeper (or other third party) confirming that Goods are held for the Bank;
(b) not do or permit anything that might reduce the value of the goods and will immediately tell the Bank of anything which may affect their value or condition;
(c) not dispose of, charge or pledge the goods, without the written consent of the Bank; and
(d) keep the Goods and any sale or insurance proceeds from the goods separate from any other asset or funds of the Account Party.
3.36 The Account Party irrevocably appoints the Bank as the Account Party’s agent to sign or execute all documents and do all acts or take, continue, defend or compromise any proceedings, on the Account Party’s behalf, as the Bank requires to perfect, protect or enforce the pledge.
3.37 Any purchaser or other person dealing with the Bank may assume that the Bank is acting within its rights under the Facility Letter can dispose of the goods and give a good receipt for the proceeds.

Fees and Expenses – Specific to contingent liability facility
3.38 The Account Party shall pay to the Bank the fees set out in the Facility Letter and any other fees notified to the Account Party in connection with the issuance of a Bond or Letter of Credit at the request of the Account Party. Such fees shall accrue from day to day and shall be payable in accordance with the terms of the Facility Letter or as otherwise agreed.
3.39 In addition, in the case of Letters of Credit, the Account Party will be responsible for the payment of all charges arising from time to time in accordance with the Bank’s standard documentary credit charges or such other tariff as may be agreed between the Account Party and the Bank. The Account Party (if affected) will be given 30 days prior notice of any increase in such charges or of the introduction of any new charges. The Bank may, at its discretion, debit an account in the name of the Account Party with the amount of such charges. Details of the Bank’s current standard documentary credit charges are available at all times on request to the Bank.

Overriding Terms
3.40 Where the Bank has issued a Schedule to the Account Party in connection with any Bond or Letter of Credit issued for their account, the terms of the Schedule shall be incorporated into these General Conditions (whether or not the Schedule is countersigned, and returned to the Bank, by the Account Party). If any provision of the Schedule conflicts with or is inconsistent with these General Conditions or the Facility Letter, the provision of the Schedule shall prevail.

Counter Indemnity and Authority to Debit
3.41 In relation to any Bond or Letter of Credit which at the request of the Account Party the Bank may have given or joined in giving or may hereafter give or join in giving the Account Party agrees from time to time and at all times to keep the Bank indemnified from and against all actions proceedings, claims, and demands which may be brought or made against the Bank and all osses, costs, charges, damages and expenses which the Bank may incur or sustain or for which the Bank may become liable by reason either directly or indirectly of the Bank having undertaken any such obligation and the Bank is hereby irrevocably authorised and directed to pay forthwith on any demand appearing or purporting to be made in relation to any Bond or Letter of Credit any sums which may be demanded of the Bank in accordance with clause above or otherwise, and the Bank is further authorised to debit any account of the Account Party and where the Account Party has more than one account with the Bank the whole or any part of the amount of any payment which the Bank may make thereunder may be debited together with all costs, charges, damages, losses and expenses incurred or sustained by the Bank as aforesaid whether any such account or accounts shall be overdrawn or may become overdrawn by reason of any such debit.

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4. FINANCIAL INFORMATION

4.1 The Account Party covenants and undertakes that it shall supply to the Bank:
(a) as soon as they become available but in any event within 120 days after the end of its financial year, the audited financial statements of the Account Party for that year: and
(b) promptly such up-to-date financial and other information in relation to its business as the Bank may from time to time specify or as may be specified in the Facility Letter.
4.2 The Account Party undertakes to ensure that all accounts and other financial information submitted to the Bank are prepared consistently and in accordance with generally accepted accounting principles in Ireland.

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5. CONDITIONS PRECEDENT

5.1 The Bank shall not be obliged to provide the Facility unless the following conditions (in addition to any conditions specified in the Facility Letter) are satisfied on any date on which the Facility is to be utilised:
(a) the Bank receives a certified copy of a resolution of the board of directors of the Account Party approving the transaction contemplated by this Agreement and any Finance Document and authorising a specified person to sign this Agreement and any Finance Document and any other documents required under this Agreement on behalf of the Account Party;
(b) the requirements of the Criminal Justice Act 1994 and any regulations issued pursuant thereto (as the same may be amended, varied or supplemented satisfied from time to time) and any guidelines or practice notes issued (whether by the Bank or otherwise) in respect thereof have been satisfied;
(c) the Bank has received the duplicate of the Facility Letter duly signed on behalf of the Account Party; and
(d) the Security and any other Finance Document is completed to the satisfaction of the Bank and delivered to the Bank.
5.2 If the Bank agrees that a utilisation may be made notwithstanding that all of the Conditions Precedent have not been satisfied, the obligation to satisfy the relevant Condition(s) Precedent shall continue unless the Bank has waived the relevant requirement.

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6. EVENTS OF DEFAULT

Upon the occurrence of any of the events specified below, the Bank may by written notice to the Account Party terminate the Facility and/or demand immediate cash cover acceptable to it for all actual or contingent liabilities in respect of the Facility and all accrued commission or issuance fees and other sums payable in respect of the Facility (and if the Facility is unutilised or only partially utilised, the Facility or that portion of the Facility which remains unutilised shall be cancelled) and the Bank may declare that the Security has become immediately enforceable. For the avoidance of doubt, commission shall continue to be charged on any utilisation under the Facility until the Bank has no further actual, contingent or prospective liability under all outstanding Bonds:
(a) Non-Payment: the Account Party fails to pay on the due date any amount payable under this Agreement; or
(b) Breach of Other Obligations: the Account Party fails to comply with any other term or condition of this Agreement; or
(c) Misrepresentation: any representation or warranty made or repeated by the Account Party in this Agreement is or proves to have been incorrect in any material respect when made or repeated; or
(d) Cross Default: the Account Party or any Guarantor defaults in the performance of any other agreement for borrowed monies so as to accelerate or potentially accelerate the due date of repayment thereunder or such borrowed monies are not repaid in full when due; or
(e) Death of a Guarantor: the death of any Guarantor (being an individual); or
(f) Payment of Debts: the Account Party or any Guarantor stops or threatens to stop payment of any of its debts or suspends making payments on any of its debts or ceases or threatens to cease to carry on, or changes, its business or a substantial part of its business (except in the course of a solvent amalgamation or reconstruction which the Bank has approved in writing) or disposes or attempts to dispose of the whole or any substantial part of its undertaking or assets (except in the ordinary course of business) or shall be deemed to be unable, or shall admit its inability to pay its debts as they fall due or shall become insolvent; or
(g) Insolvency Proceedings and Analogous Proceedings: in respect of the Account Party or any Guarantor (and their assets), if any person petitions for their court protection or winding-up or if any meeting is called to consider a resolution to wind them up or any such resolution is passed or any corporate action or other steps are taken or legal proceedings or other procedures are started for the suspension of payments, moratorium of any indebtedness, winding-up, dissolution, examinership, administration or re-organisation or for the appointment of an insolvency practitioner or any similar proceeding or step is taken in any jurisdiction or any order for their winding up or examinership or similar is made; or
(h) Distress or Execution: any distress, execution, attachment or other legal process affects the whole or a material part of the assets of the Account Party or any Guarantor and is not discharged within twenty-one days; or (i) Judgements: any judgement is obtained against the Account Party or any Guarantor and remains unpaid for a period of fourteen days from the date of such judgement; or
(j) Material Adverse Change: any event occurs after the date of this Agreement which in the Bank’s opinion is likely to have a material adverse effect on the ability of the Account Party or any Guarantor to comply with its obligations under the Finance Documents; or
(k) Finance Documents: if any provision of this Agreement or any Finance Document becomes unlawful, invalid or unenforceable or if the Account Party or any Guarantor breaches or repudiates any Finance Document to which it is party; or
(l) Failure to Reimburse: the Bank is not reimbursed on demand in respect of any Bond or Letter of Credit in terms of which the Bank has implemented its obligations and the Bank is not prepared to exercise its discretion to debit the Account Party’s account in terms of the relevant counter indemnity.

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7. FEES, CHARGES, INTEREST AND INDEMNITIES

Current Account Fees and Charges - General
7.1 Foreign transaction and documentary credit charges and standard transaction, account maintenance and other fees and charges in relation to the operation of current accounts and Facilities thereon will be charged in accordance with the Bank’s standard rates applicable from time to time or as agreed. Details of the Bank’s current standard fees and charges are available at all times on request to the Bank and are displayed in all branches of the Bank. In addition, all applicable account fees and charges will be contained in each pre-notification of interest and charges statement which will be sent to the Account Party quarterly.
7.2 The Bank’s fees and charges for non-standard services on accounts will be advised by the Bank to the Account Party at the time of the request for the relevant service.
7.3 All such fees and charges will unless otherwise agreed be charged quarterly to the Account Party’s nominated account or such other account as is agreed.

Facility Letter and Security – General Fees and Charges
7.4 The Account Party will be responsible, and shall reimburse the Bank on demand, for all fees, costs and expenses (including, without limitation, banking, valuation and legal fees) together with stamp duty, registration fees, VAT and other duties, or general out of pocket expenses, incurred in connection with the provision or continuation of the Facilities, the drafting of any this Agreement, the Finance Documents, the Security Documents and all other documentation, and the enforcement or preservation by the Bank of its rights under this Agreement or any Security Document or the release of any Security held by the Bank or the appointment of a valuer or the performance by the valuer of its duties.

Increased Costs for the Bank
7.5 The Account Party shall pay to the Bank within three days of demand, a charge representing the amount certified by the Bank as sufficient to compensate the Bank, if as a result of any change in the law or its interpretation or administration, or compliance with any requirement of any Regulatory Authority, the cost to the Bank of making a Facility available is increased (including any tax other than a tax imposed on the Bank’s overall net income) or the Bank’s expected rate of return under a Facility is reduced.

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8. SECURITY

Security
8.1 The Facility will be secured by any security which the Bank may now or hereafter hold for your liabilities. The value of any security will be reviewed regularly and without prejudice to its overriding right to call for cash cover the Bank may seek additional security if there is a significant drop in the value of the security held.

Cash Cover
8.2 The Bank may at any time at its discretion, and without prejudice to the other provisions in any agreement with the Account Party, call on them to deposit with the Bank, within two Business Days of demand, an amount up to the aggregate of the maximum liability under all outstanding Bonds and/or Letters of Credit, together with any fees due and all other sums payable by the Account Party (as determined by the Bank) in respect of any such contingent liability Facility. The Bank may also require that the amount deposited be charged to the Bank as security for any claims.
8.3 Any sums deposited with the Bank may be applied by the Bank, at its sole discretion, against any claims made upon the Bank under any outstanding Bond/Letter of Credit and the Bank shall be entitled to hold such amount until all of the Bank’s obligations under the relevant Bonds/Letters of Credit have been discharged in full and the Bank’s obligations in respect of the Facility have expired without any call or demand having been made upon it. In the absence of such funds being deposited with the Bank, the Bank shall be entitled, at its discretion, to obtain payment by debiting the relevant amount to an account in the Account Party’s name.

Set-Off
8.4 In addition to any other remedy that the Bank may have, and without prior notice to the Account Party, the Bank may, but shall not be obliged to, set off any payment obligation owing by the Account Party to the Bank against any payment obligation owing by the Bank to the Account Party, regardless of the place of payment or currency of each obligation. For such purpose the Bank may make any currency conversion necessary at its then prevailing spot selling rate. References to “payment obligation“ include actual or contingent, matured or unmatured obligations owed alone or jointly. If any obligation is unliquidated or unascertained, the Bank may set off any amount estimated by it in good faith to be the amount of that obligation.

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9. GENERAL

Joint and Several Liability
9.1 Where the Account Party includes more than one person, the liability of such persons in respect of the Facilities and for the performance of each Account Party’s obligations under the Facility Letter shall be joint and several.

Foreign Currency
9.2 The Account Party shall assume any currency exchange costs or losses incurred by the Bank arising if as a result of movements in exchange rates the euro equivalent of the principal amount outstanding under a Facility should at any time exceed the amount available for drawing under such Facility. The Bank may demand immediate repayment of the amount of any such excess as calculated by the Bank.
9.3 The Euro equivalent of any foreign currency utilization shall be calculated by reference to the market rate of exchange for the relevant foreign currency against the Euro on any relevant day as determined by the Bank.

Illegality 9.4 If in the opinion of the Bank any change shall take place in any applicable law or regulation or in the interpretation thereof so that it shall be unlawful or impossible for the Bank to maintain or give effect to its obligations as contemplated in this Agreement, the Bank shall be at liberty to give notice of that fact to the Account Party and may by the same or a subsequent notice declare the Facilities (or any part thereof) immediately due and payable/expired and whereupon the same shall become so payable together with accrued interest and any other sums then outstanding hereunder. All documents presented by the Account Party will be valid, genuine and not tainted by fraud and the Bank will not be responsible for the authenticity of any documents presented.

Governing Law and Jurisdiction
9.5 This Agreement will be governed and construed in accordance with the laws of Ireland. The Account Party irrevocably agrees for the benefit of the Bank that the courts of Ireland shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Agreement and, for such purposes, irrevocably submits to the jurisdiction of such courts.
9.6 The Bank may refer any dispute relating to any Letter of Credit to arbitration under the ICC Rules for Documentary Instruments Dispute Resolution Expertise. This will not affect the Account Party’s submission to the jurisdiction of the Irish courts.
9.7 Documentary Letters of Credit will be subject to Uniform Customs and Practice for Documentary Credits 2007 Revision ICC Publication No. 600 as revised (“ UCP 600”).
9.8 Standby Letters of Credit will be subject to UCP 600 or International Standby Practices (ISP 98) ICC Publication No. 590 as revised. If not specified by the Account Party the Bank will decide.

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