Rabobank General Terms and Conditions
for Current Accounts and Credit 2009
Rabobank General Terms and
Conditions for Current Accounts and
Credit 2009
This English translation, made by a professional translation agency, only serves the purpose of informing the reader of the contents of the Dutch deed and the general conditions.
In case of any discrepancy or any dispute arising on the interpretation of the deed and the general conditions, the Dutch text shall be decisive. The legal relationship shall be governed by Dutch law.
1 Definitions
In the deed and in these general terms and conditions, the following terms are defined as follows:
subordination: the obligation not to accept any - whole or par-tial - payment of the subordinated claim(s) and the interest owed on them, not to set off, sell or encumber this/these claim(s) and the interest owed on them, not to subordinate it/them again and not to accept any collateral for this/ these claim(s) and the interest from one or all of the debtors of this/these subordinated claim(s); deed: written document(s), both jointly and
separa-tely, in which the agreement is set down; bank: the bank which maintains an account for the
account holder or which has provided an credit facility to the borrower;
payment order: order to perform a payment transaction issued by or on behalf of an account holder to the bank, or by the beneficiary to his/her payment service provider;
payment transaction: act by means of which funds are deposited, transferred or withdrawn;
combined balance: the amount at any moment of the total of all credit balances in the accounts, less the total of all debit balances in the accounts;
property: each item and each property right within the meaning of Section 3:6 of the Dutch Civil Code; customer group: account holder and/or borrower and all current
and future - direct and indirect - subsidiaries within the meaning of Section 2:24a of the Dutch Civil Code, or comparable entities under any foreign or international legal system and all - direct or indirect - majority shareholders with legal personality or comparable entities under any foreign or international legal system of an account holder and/or borrower, both jointly and each of them separately;
credit facility: a financing facility provided to the borrower by the bank or its legal predecessor(s), which is administered in the account(s) listed in a deed; credit limit: the maximum amount of the financing facility
stated in a deed;
borrower: the natural person(s) and/or legal entity/-ies and/or the general and/or managing or other associate(s) of a limited partnership and/or of a general partnership and/or of a limited or other public partnership with or without legal perso-nality and/or accessor(s) listed in a deed, both jointly and each of them separately, to which the bank or its legal predecessor(s) has/have provided an credit facility;
agreement: the agreements made in the context of the account and/or the credit facility between the bank or its legal predecessor(s) and the account holder (including an accessor) and/or the bor-rower (including an accessor);
Rabobank Group: the economic unit in which legal entities and partnerships and/or comparable entities under any foreign or international legal system are organisationally linked together, to which unit Rabobank Nederland belongs;
Rabobank: the Coöperatieve Centrale Raiffeisen
Boerenleenbank B.A., with its registered office in Amsterdam, the Netherlands;
registered property: any registered property mortgaged as collateral for one or more of the account holder and/or borrower’s debts to the benefit of the bank or its legal predecessor(s);
account: the account(s) referred to in a deed, both jointly and each of them separately, which the bank maintains or will maintain in its administration in the name of the account holder;
account holder: the natural person(s) and/or legal entity/-ies and/or the general and/or managing or other associate(s) of a limited partnership and/or of a general partnership and/or of a limited or other public partnership with or without legal perso-nality and/or accessor(s), both jointly and each of them separately, in the name of whom/which the account is held;
account information all information on the account (and movements and other therein) and/or the credit facility and/or the information: regulations governing use of and/or the terms
and conditions applicable to the agreement; accessor: the natural person(s) and/or legal entity/-ies and/or the general and/or managing or other associate(s) of a limited partnership and/or of a general partnership and/or of a limited or other public partnership with or without legal perso-nality and/or accessor(s), both jointly and each of them separately, who/which has entered into an accession agreement with the bank or its legal predecessor(s);
accession agreement: the agreement entered into between the bank or its legal predecessor(s), the account holder and/or borrower and the accessor, both jointly and with each of them separately, in which said accessor becomes a party to the agreement with the previous account holder and/or bor-rower as account holder and/or borbor-rower; website: www.rabobank.nl and/or one or more of its
sub-pages, and webpages substituting for it; working day: a day on which the bank institutions in the
Netherlands or - as far as is applicable in the bank’s opinion - in any other country are open and/or on which transactions take place in the interbank market in Amsterdam and/or any other location where actions are performed in compliance with the obligations in the context of the deed and of these general terms and con-ditions, unless otherwise determined in these terms and conditions;
item: any material object which can be controlled by humans;
provider of collateral: the person or persons, both jointly and each of them separately, who provide(s) collateral to the bank or its legal predecessor(s) for one or more debts of the account holder and/or bor-rower, for whatever reason, in any form what-soever, including suretyship(s), guarantee(s), joint and several debt obligation(s) (hoofdelijke medeschuldverbintenissen), as well as any later acquirer of a property thus pledged as collate-ral.
A Preliminary provisions
2 Account registered in the name of multiple account holders and/or borrowers
In the event that the bank maintains an account for multiple account holders and/or borrowers, the account holders and/or borrowers in question can - unless otherwise agreed with the bank in writing - both jointly and each of them separately have at their disposition a credit balance and/or an credit facility wholly or partly administered in said account and perform all other legal and other acts relating to the agreement, irrespective of whether the credit balance and/or credit facility fall under any (other) joint property at any time. If a joint pro-perty - including the joint propro-perty of an estate - into which a credit balance in the account and/or an credit facility falls is divided, no change will be made to the authorisation of each account holder and/ or borrower to separately have at his/her disposition a credit balance in the account and/or an credit facility and to perform all other legal and other acts relating to the agreement. As far as is necessary, the account holders and/or borrowers have now granted one another power of attorney to this effect by entering into the agreement, with the right of substitution, which does not end as a result of the death or placing under guardianship of the principal. This is subject to the following provisions:
a after the death or placing under guardianship of an account holder and/or borrower, in the event that the account holder and/ or borrower is a natural person, the other account holder(s) and/ or borrower(s) remain(s) authorised to exercise the rights which they had previously, including the authorisation to have at their disposition a credit balance and/or credit facility wholly or partly administered in said account;
b after the death of an account holder and/or borrower, his/her legal successors jointly have the same rights with regard to the account as the deceased account holder and/or borrower had. This includes the right to have disposition of a credit balance and/or credit facility wholly or partly administered in said account, and the rights referred to below in point d. to terminate/revoke the individual authorisation of the other account holders and/or borrowers or the powers of attorney referred to at the start of this article;
c in exceptional cases, in the bank’s opinion, the bank can request the cooperation of all account holders and/or borrowers to have disposition of a credit balance and/or an credit facility wholly or partly administered in said account;
d after a written termination/revocation by an account holder and/or borrower - or by his/her joint legal successors following the death of an account holder and/or borrower - of the authorisation and/ or of a power of attorney as referred to at the start of this article to have disposition of a credit balance in an account and/or an credit facility wholly or partly administered in said account, the powers of attorney referred to at the start of this article shall end, and the account holders and/or borrowers can only have joint disposition of a credit balance in the account and/or an credit facility wholly or partly administered in said account. A termination/revocation can only be enforced against the bank after it has received written notification thereof. The bank may legally perform or continue to perform payment or other orders issued to the bank by a former authorised account holder and/or borrower before or shortly after the bank has received the notification of termination/revocation if it could not reasonably have prevented said performance; e each account holder and/or borrower is authorised to acknowledge
the balance of the account. Each account holder and/or borrower is bound by this, subject to proof to the contrary;
f the bank is at all times authorised to set off a credit balance in said account against a claim by it against one or more of the account holders and/or borrowers.
3 Authorisation of account holder and borrower
If the account holder or borrower is a legal entity, a partnership, a limited partnership, a general partnership or a limited or other public partnership with or without legal personality, or if the deed was entered into by multiple account holders or borrowers, each director, associate (including any general and/or managing associates), partner or account holder or borrower is granted power of attorney, with the
right of substitution, to perform all legal and other acts, including acts of disposition, in the performance of or in connection with the account, the credit facility, and the provisions in the deed and in the general or other terms and conditions declared applicable in the deed. The power of attorney will not end as a result of the death of an account holder and/or borrower. The end of a power of attorney can only be enforced against the bank and Rabobank Nederland after it has received written notification thereof. The bank may legally perform or continue to perform payment or other orders issued to the bank by a former holder of a power of attorney as referred to in this article, before or shortly after the bank has received the notification of termination/revocation if it could not reasonably have prevented said performance. If and for as long as a director, an associate (including a general and/or managing associate), partner and/or a holder of a power of attorney has not been identified and verified as such, the bank is not required to perform legal and other acts, including acts of disposition, of said director, associate (including a general and/or managing associate), partner and/or holder of a power of attorney.
4 Power of attorney for third parties
An account holder and/or borrower may (also) grant a power of at-torney, in writing or in any other way permitted by the bank, to a third party - non-account holder and/or non-borrower - to have disposition of a credit balance and/or an credit facility wholly or partly adminis-tered in the account in the name of the account holder in question. This power of attorney is not intended to mean a direct debit man-date as referred to in article 22. The bank may attach conditions to the form and/or content and/or the procedure for the granting of such a power of attorney. At no time is the bank required to have dealings with such a holder of a power of attorney. Such a power of attorney may, in any event, no longer be used vis-à-vis the bank in the event of: a the bankruptcy, insolvency, suspension of payments, placing under guardianship or death of the account holder and/or borrower who granted or jointly granted the power of attorney, a court admini-stration order on the account holder and/or borrower - or his/her assets - who granted or jointly granted the power of attorney, the declaring applicable of a statutory debt rescheduling arrangement to the account holder and/or borrower who granted or jointly granted the power of attorney or in the event that the account holder and/or borrower who granted or jointly granted the power of attorney is/are no longer authorised or solely authorised to have disposition of a credit balance or an credit facility wholly or partly administered in said account;
b dissolution of or loss of legal personality by the account holder and/or borrower which granted or jointly granted the power of attorney, if the account holder and/or borrower is a legal entity; c the bankruptcy, insolvency, placing under guardianship or death
of a holder of a power of attorney or the declaring applicable of a statutory debt rescheduling arrangement to a holder of a power of attorney;
d dissolution of or loss of legal personality by a holder of a power of attorney, if the holder of a power of attorney is a legal entity; e revocation by the account holder and/or borrower who granted or
jointly granted the power of attorney; f termination by a holder of a power of attorney;
g by lapse of the time for which the power of attorney was granted. If the power of attorney was granted to multiple persons or legal en-tities, and a situation occurs as referred to in c, d, e or f, the power of attorney can in any event no longer be used vis-à-vis the bank by the holder of the power of attorney to which the situation referred to in c, d, e or f relates. The account holder and/or borrower and the holder of the power of attorney are required to notify the bank immediately in writing of any legal fact as referred to above in points a through g or of any other fact that leads to or could lead to termination of the power of attorney. A legal fact as referred to in points a through g or the termination of the power of attorney can only be enforced against the bank if it has received written notification thereof. The account holder and/or borrower guarantees to the bank that he/she will stipulate the stated obligations of the holder of the power of attorney vis-à-vis the bank to the benefit of the bank.
The bank may legally perform or continue to perform orders issued to the bank by a former holder of a power of attorney before or shortly
after the bank has received the notification of termination/revocation if it could not reasonably have prevented said performance.
5 Certificate of inheritance/information/death
After the death of an account holder and/or borrower, the bank can request that the person(s) claiming to be authorised to perform legal and other acts in respect of an account and/or an credit facility must - as proof of this - provide, inter alia, a certificate of inheritance issued by a Dutch civil-law notary and/or submit other documents deemed acceptable by the bank. The bank is not required to provide any information regarding movements in the account and/or credit facility from before the date of death of the account holder and/or borrower.
6 Interest, commission and costs
a The bank can pay interest, to be determined by the bank, on a credit balance in the account.
b The bank can charge a commission and/or costs for: - the maintenance and/or use of the account
- the provision, keeping available and/or use of the credit facility - its information obligations and/or the use of corrective or
preventive measures
- other facilities connected to the account and/or the credit facility.
c The account holder and/or borrower will jointly or severally (hoofdelijk) owe interest to be determined by the bank on an (unauthorised) debit balance in the account.
d If the account holder is a beneficiary of a payment transaction, the bank may withhold its costs from the transferred amount before the bank credits the account.
e Interest, costs and commissions are calculated and settled in accordance with a calculation method, calculation period and payment date to be determined by the bank, with due observance of the value dating rules usual at the bank, and are administered in the account in the manner usual at the bank. The bank is at all times authorised to change the interest, costs, commissions, the calculation method, the calculation period, the payment date, the due date, the value dating rules and the method of administration. f In the calculation of the interest, costs and commission, the bank is
authorised to base itself on the combined balance of the accounts held (jointly or separately) on behalf of the account holder and/or borrower.
g If an interest rate to be paid and/or charged by the bank is based on a figure determined and/or published by the European Central Bank and/or another institution, the bank can - if the determination and/or publication ceases - set the interest rate on the basis of a comparable standard, to be determined by the bank.
7 Taxes, costs and/or levies
If an account holder and/or borrower is required by law to apply a discount or deduction to any payment to the bank by virtue of the deed and the general or other terms and conditions declared applicable in the deed, the account holder and/or borrower will pay a supplementary amount to the bank in such a way that the bank receives the same amount as the bank would have received without said discount or deduction.
All taxes and/or levies owed in the context of the agreement, the account and/or an credit facility, or which may be levied in the future shall be borne by the account holder and/or borrower.
B The account and payment transactions
8 Designated use of account
The account is designated for the settlement of business payments of the account holder. The account holder may not use the account for transactions which breach legislation and/or regulations and/or transactions which in the opinion of the bank lead or could lead to damage to the integrity and/or reputation of the financial sector and/ or the bank.
9 Having disposition of the account
a An account holder can have disposition of a credit balance and/ or an credit facility wholly or partly administered in said account
by issuing payment orders and by withdrawing cash. The account can also be used for receiving funds. Disposition can take place in a manner to be determined by the bank and by making use of the forms, cards, codes, tools, software and other documentation made available to him/her by the bank.
b Transfers to the benefit of and dispositions charged against the account - including deposits and withdrawals in cash - are subject to the administrative and other regulations and instructions to be determined by the bank.
c An account holder is responsible for the forms, cards, codes, tools, software and other documentation made available to him/her by the bank, as well as their use.
d If an account holder is no longer able to have disposition or sole disposition of the account, he/she is required to return to the bank immediately all forms, cards, tools, software and other documen-tation with which he/she had disposition or sole disposition of the account.
10 Bankruptcy, suspension of payments, statutory debt rescheduling arrangement, attachment
a During bankruptcy, insolvency proceedings or suspension of payments of an account holder or the period that a statutory debt rescheduling arrangement is applicable to an account holder, only the guardian of the account holder, or the account holder with the cooperation of the administrator, or the administrator of the account holder, respectively, may perform acts of management and disposition with regard to the account and any credit balance in it. If the bank maintains an account for multiple account holders, the situations referred to above would also require the cooperation of every other account holder, or the other account holder(s) would require the cooperation of the guardian or the administrator, respectively, for acts of management and disposition with regard to the account and any credit balance in it, and the powers of attorney referred to at the start of article 2 will end.
b In the event of attachment against an account holder at the bank, no acts of management or disposition can be performed in respect of the credit balance in the account subject to the attachment.
11 Ways to use the account
Ways to use the account
- making payments and withdrawing money - direct debit
- receiving money - depositing cash
Making payments and withdrawing money
The diagram below states which types of payment transactions are possible for payments and withdrawals, and in which ways orders can be issued for these purposes.
Method of issuing order Betalings transactie In w riting By te lepho ne (s peec h)
Fax Internet bankin
g Rib/ RibP ro/RFLP* Rabo phon e (Ra bofo on)* Rabo Mobil e Inter net b ankin g* Bank card or Cre dit Ca rd* Transfer Transfer insite the Netherlands ✓ ✓ ✓ ✓ Urgent order (Spoedopdracht) ✓ ✓ ✓ ✓ Automatic recurring transfer ✓ ✓ ✓ Giro collection within the Netherlands ✓ ✓ ✓ ✓ Euro payment (Eurobetaling) ✓ ✓ World payment (Wereldbetaling) (basis/plus) ✓ ✓ iDeal payment ✓ Card payment Payment via a point-of-sale terminal ✓ Payment with a
bank card of credit card and signature
✓
Cash withdrawal
Withdrawal of cash via an ATM
in euros ✓ Withdrawal of cash at the counter in euros. If permitted by the bank ✓ Withdrawal of cash in euros via a coin roll machine
✓
Ordering cash ✓ ✓ ✓
Emergency cash ✓
* The account holder can only issue an order in this way if this has been agreed with the bank. Other conditions may also apply in this respect.
Direct debit
A direct debit gives the account holder the option of issuing a direct debit mandate to the collector to directly debit an amount from the account on a one-off basis or periodically. See article 22 for more information about Dutch direct debits and Euro Direct Debit. Receiving money
Payment transactions by means of which the account holder can receive money by transfer or in cash.
With regard to methods of receiving money, the bank can stipulate that the bank and the account holder agree on the details. If money is received in a currency other than that in which the account is held, the amount will be credited in the currency of the account. The bank determines whether the currency will be accepted, the exchange rate and the moment of exchange.
Depositing cash
The diagram below shows in which manner cash can be deposited and in which manner orders to this effect can be given.
Method of depositing cash Payment transaction At the counter Bank card of Cre dit ca rd* Depositing cash
Depositing cash (euros) via cash deposit machine ✓
Depositing cash at the counter ✓
* The account holder can only issue an order in this way if this has been agreed with the bank. Other conditions can also apply in this respect.
a Depositing cash (euros) via cash deposit machine
Cash in euros can be deposited using a cash deposit machine. This can take place with both coins and banknotes. The account holder must follow the instructions on the cash deposit machine. To deposit cash using a cash deposit machine, the bank card with PIN of the account holder or his/her authorised representative must be used. Approval will be granted by or on behalf of the account holder for each deposit by entering the PIN belonging to the bank card of the account holder or his/her authorised representative, and the confirmation button. The cash deposit machine determines the amount deposited in a binding manner.
b Depositing cash in euros at the counter
Depositing cash in euros can take place at the counter of the bank. When depositing cash in euros at the counter of the bank, the account holder agrees to the following:
a the execution of the deposit
b the binding determination of the deposited amount by the bank. c Depositing cash in foreign currency at the counter
The deposit of cash in valid foreign currency, in the bank’s opinion,
and other foreign currency accepted by the bank can take place at the counter of the bank. The bank has the foreign currency counted by a third party appointed by the bank. This third party determines in a manner binding on the account holder the amount of the deposit in foreign currency. Foreign currency can only be deposited in banknotes at the counter of the bank. When depositing cash in foreign currency at the counter of the bank, the account holder agrees to the following:
a the execution of the deposit
b the engagement of a third party appointed by the bank in the execution of the deposit
c the binding determination of the deposited amount in foreign currency by said third party, notwithstanding evidence to the contrary to be provided by the account holder.
d Control information
The account holder is required immediately to inspect confirma-tions, account statements, invoices or other statements (hereinafter referred to as: deposit information) issued by the bank, and to check whether a deposit has been processed properly. If the bank makes deposit information available to the account holder in an electronic form, the account holder must check this information at least every working day. The account holder must notify the bank immediately, but no later than within five working days after
receipt of this deposit information or within five days of the bank having made it available, in writing of any inaccuracies or incom-pleteness in this information.
e Account credit/debit and authorisation to amend
The credit of the value of the deposited cash to be received, and/ or the equivalent thereof in euros, and the debit of the amounts owed takes place in a manner and at times to be determined by the bank to and from the account of the account holder indicated by the account holder. This can also take place to and from the account holder’s savings account, if this is permitted on the basis of the terms and conditions of the savings account. Only amounts in euros can also be deposited into an account held by someone else, other than the account referred to in the deed, who holds such an account at the bank or at another Rabobank belonging to the Rabobank Group.
The bank is always authorised to amend the fees and the above-mentioned method and times. The bank will notify the account holder to this effect, or give him/her the opportunity to take cognisance of this. If foreign currency is deposited, the bank credits the equivalent of this in euros to the account on the basis of the value date, exchange rate date and the exchange rate set by the bank. The bank is at all times authorised to change the value date, the exchange rate date and the exchange rate.
f Costs and other terms and conditions
The bank charges costs for each deposit of cash, and can deduct these from the amount deposited. The bank can set these costs off against the amount of the deposit or its equivalent.
The bank can always determine maximum amounts per time unit for the deposit of cash. With regard to the depositing of money, the bank can always stipulate that the bank and the account holder agree on the details.
The bank is always authorised to change the procedure(s) referred to in this article.
Authorisation to change
The bank can change, supplement, limit or terminate the methods of issuing orders, the payment transactions and types of payment trans-actions. The bank gives the account holder the opportunity to take cognisance of more information about the methods of issuing orders, the payment transactions and the types of payment transactions via the website, or sends this information at the account holder’s first request.
12 Issuing a payment order
a If a payment order can be issued in writing, by telephone or by fax in accordance with Diagram A above, this must take place by one of the following methods:
- In writing: By receipt by the bank of a correctly and fully com-pleted and duly signed form/transfer form which the bank makes available, or of a screen print which the bank makes available in the case of an order at the bank’s offices, or of a giro collection form which the account holder receives from the beneficiary, or by another method accepted by the bank.
- By telephone: By phoning the bank, following the instructions of the bank and issuing a verbal order to the bank.
- By fax: By receipt by the bank of a telefax, in which a correct and full order is given, which is duly signed, and by following the regulations of the bank. The account holder agrees to the payment order and its implementation by the account holder or his/her authorised representative placing their signature on the fax.
b The bank can permit other methods of issuing payment orders, and can require that an additional agreement be entered into for these. c The bank can set limits, including expenditure limits, on the
methods of issuing orders in terms of number and/or size. d In the case of an urgent order, the bank can place a temporary
block on the account or apply a provision for the amount of the urgent order, prior to processing the urgent order.
e If, according to the administration of the bank, a payment transaction is carried out in the execution of an order referred to in a., this forms full evidence that the account holder has agreed to
the execution of the payment transaction, subject to proof to the contrary.
13 Revocation of a payment order
a The account holder can no longer revoke a payment order as of the moment of receipt of the payment order by or on behalf of the bank, unless otherwise determined in this article.
b The account holder cannot revoke a payment order to order cash or deposit cash.
c The account holder can revoke a payment order in writing up to no later than the end of the working day preceding the agreed day, if it has been agreed that the execution of the payment order commences on a specific date or at the end of a specific period. The bank can change the method of revocation. An urgent order cannot be revoked.
d In the event of revocation of a payment order for a series of payment transactions, the revocation applies to the future payment transactions with an execution date which is more than one working day after the date of revocation.
e If the payment transaction was initiated through the beneficiary, as is the case with a payment using a card, the account holder cannot revoke the payment order after he/she has issued a payment order or has given his/her agreement for the execution of the payment transaction to the beneficiary. In such cases of revocation, the beneficiary must also agree to the revocation. This provision does not apply to a direct debit transaction.
f After the moments referred to in this article, the payment order cannot be revoked.
g At the request of the bank, the account holder will pay the costs which the bank has incurred as a result of the revocation.
14 Refusal of a payment order
a The bank is entitled to refuse a payment order if one of the fol-lowing grounds for refusal is applicable:
- there is an insufficient balance and/or credit facility in the ac-count to be able to execute the payment order in full; - a tool or payment instrument used has been blocked, used
without authorisation, is not known at the bank or has exceeded a spending or other limit, if applicable;
- the payment order was not issued by or on behalf of the person(s) who is/are authorised, independently or otherwise, to do so.
- if and for as long as a director, associate (including a general and/or managing associate), partner and/or authorised represen-tative is not identified and verified as such.
- a written payment order is not signed by a person who is aut-horised to have disposition of the account, or the bank suspects this to be the case;
- the required approval for (the execution of) a payment order has not been given;
- the payment order is incorrect, unclear, incomplete or not in line with the agreed payment service;
- the account holder has not followed the regulations and/ or applicable procedures and/or general or other terms and conditions set by the bank;
- there is no valid agreement between the bank and the account holder for the method used to issue the payment order to the bank;
- the account has been blocked for the execution of payment orders, for example in the context of an attachment or pledge imposed on it;
- the currency is not valid, in the bank’s opinion;
- the bank of the beneficiary is not part of the network of the bank for payments;
- the bank of the beneficiary is bankrupt or is threatened with bankruptcy;
- it is not possible for the bank to execute the order, for technical and/or organisational reasons;
- in all cases in which the bank could be held liable if it were to execute the payment order;
- the bank is of the opinion or suspects that the payment order breaches legislation and/or regulations and/or contractual
obligations of the bank and/or in the opinion of the bank could result in damage to the integrity and/or reputation of the financial sector and/or the bank;
- the bank is of the opinion or suspects that the payment order breaches the rules applicable at the bank or within the Rabobank Group;
- the bank suspects fraud or abuse;
- the account holder fails in compliance with any obligation vis-à-vis the bank.
b After a refused payment order, the bank is entitled to check, one or more times, whether the refused payment order can nevertheless be executed, up to a maximum of three working days after the refusal. In such cases, the account holder is deemed to have issued a new payment order.
c The bank notifies the account holder electronically, in writing or by another method to be determined by the bank regarding a refusal to execute a payment order. Except in the case of amendment by the bank, in the event of a refusal of a written payment order, the bank gives written notification to this effect, and in the case of refusal of a telephone payment order or a payment order issued at the office of the bank, the bank gives verbal notification to this effect, and in the case of refusal of a payment order by fax, the bank gives notification verbally or in writing or by fax to this effect. The bank is permitted to charge costs for the notification of the refusal, if the refusal is objectively justified.
15 Date of receipt of a payment order
a If the bank receives a payment order and/or other acts relating to a payment order or payment transaction after the end of a working day, this will be deemed to have been received on the next working day.
b In the case of payment transactions to the benefit of the account, the end of the working day is deemed to be the time at which the market for the currency in question closes, or when the bank closes, if this is earlier.
c The bank determines the times at which a working day ends and can change these times and determine new times for the various payment orders and/or other acts relating to a payment order or payment transaction which are deemed to be the end of a working day for payment transactions and methods of issuing orders. The bank will make it possible for the account holder to find out about these via the website.
16 Execution period for payment order
a The provisions in this article of these terms and conditions and Sections 7:536 through 541 of the Dutch Civil Code are only ap-plicable to:
- payment transactions in euros; and
- payment transactions with only one currency exchange between the euro and the currency of a member state of the European Union which does not have the euro as its currency, on condition that the required currency exchange is performed in the member state in question in which the euro is not the currency, and, in the event of cross-border payment transactions, the transfer is made in euros.
b Until 1 January 2012 (or until such a time as is permitted by the competent authority, if this is after this date) the account of the payment services provider of the beneficiary will be credited no later than at the end of the third working day after the moment of receipt by the bank of the amount of the payment transaction. After this date, the account of the payment services provider of the beneficiary will be credited no later than at the end of the first wor-king day after the moment of receipt by the bank of the amount of the payment transaction.
c The maximum execution period for payment transactions which are initiated in writing is one working day longer than the periods referred to in the previous paragraph.
d The moment of receipt of a written payment order is the moment at which the bank has received the payment order at the address indicated by the bank.
e The days on which TARGET2 is closed are also not deemed to be working days for the determination of the execution period of a
payment order for a euro payment, a world payment (basic/plus) or payment on the basis of a direct debit mandate. TARGET2 is an abbreviation for Trans-European Automated Real-Time Gross Settlement Express Transfer, the payment system which is used for euro payments inside Europe within the European System of Central Banks (ESCB).
f In the case of payment transactions inside the European Union in the currency of a member state which does not have the euro as its currency, there is a maximum execution period of four working days following receipt by the bank of the payment order. g The bank can engage a third party for processing a cash deposit. If
the bank engages a third party for this, the moment of receipt of the deposit is the moment that the third party has actually gained disposition of the monies.
17 Execution on the basis of a unique identifier - no name/number control
a The bank executes payment orders and payment transactions to the benefit of the account on the basis of the account number and/ or International Bank Account Number (IBAN) and/or Bank Identifier Code (BIC) and/or another unique identifier to be determined by the bank, as stated on the payment order, depending on the type of payment transaction. The website states which type of unique identifier is required for which type of payment transaction. The bank is not required to check the accuracy of the name or other data stated in the payment order.
b The bank is not liable if the payment order contains an incorrect unique identifier, including for the non-execution or faulty exe-cution of the payment transaction. If applicable, and if requested, the bank will request that the payment services provider of the beneficiary transfer back the transferred amount. The bank can charge the account holder costs for this.
c This article is without prejudice to the provisions on this matter in the General Terms and Conditions of the Bank.
18 Precautionary measures
a The account holder must take the following precautionary measures with a paper form/transfer form (such as a giro collection form):
- store it in a location that cannot be accessed by third parties; - complete it in accordance with the applicable completion
instructions, and sign it;
- only deliver it to the bank in a letter box intended for this purpose, or to an address intended for this purpose; - in the event of loss, theft or fraud (or suspicion thereof), notify
the bank immediately to this effect; - if sending by post, use a sealed envelope.
The bank is at all times entitled to change these regulations. The bank will give the account holder the opportunity to view the most recent statements via the website, or will send them to the account holder on request.
b As soon as the account holder no longer makes use of paper transfer forms, he/she must render them unusable or, if requested, return them to the bank.
19 Liability in the event of non-permitted payment transactions
a If the bank has executed a non-permitted payment transaction, the bank’s liability is limited to repayment of the amount of the payment transaction and the costs charged by the bank for said payment transaction. The bank is not liable for any other direct or indirect loss of the account holder.
b Contrary to the previous paragraph, the account holder shall bear all loss ensuing from non-permitted payment transactions which are performed using a payment instrument up to the moment of the notification referred to below. After notification to the bank of loss, theft or unlawful use of the payment instrument, in the manner indicated by the bank, the bank shall be liable for the amounts of non-permitted payment transactions executed after the notification. The latter does not apply if the account holder has acted fraudulently or has deliberately or with gross negligence not complied with one or more obligations relating to the payment instrument.
c An account holder is not entitled to repayment of a payment transaction executed with his/her permission which was initiated through a beneficiary.
20 Responsibility for non-execution or faulty execution of a payment order
a If a payment order is initiated by the account holder, the bank is responsible for its correct execution. If this does not take place, and as a result of the non-execution or faulty execution of a payment transaction an amount is debited from the account, the bank is not liable for more than the amount of the non-executed or faultily executed payment transaction. The bank is not responsible, or is no longer responsible, if the payment services provider of the beneficiary has received the amount of the payment transaction. b If the bank is responsible for a payment order for which the account
holder is the beneficiary, the bank will make the amount of the payment transaction available to the account holder by crediting it to the account.
21 Other cross-border payment transactions relating to the account
In the case of cross-border payment transactions which are not or will not be subject to the payment services directive (directive no. 2007/64/EC of the European Parliament and the Council of the European Union of 13 November 2007 concerning payment services in the internal market (Pb EU L 319)), the following provisions also apply.
a If the account holder intends to instruct the bank to execute a cross-border payment transaction against the account, or is involved in a cross-border payment transaction as beneficiary to the benefit of the account, the following conditions also apply: 1 The account holder is obliged to request information from the
bank in advance regarding the terms and conditions under which the bank will execute an order or under which a cross-border payment transaction can take place.
2 The account holder is required to notify the bank to this effect within a reasonable period before the cross-border payment transaction takes place.
b 1 The bank is not liable for non-compliance, late compliance or faulty compliance with an order, or the instruction to execute an order, by a bank or another institution in the country in question, to which this instruction was issued, if the bank sent this instruc-tion and/or transferred the amount of the order in good time in the agreed or usual manner.
2 If the account holder is the beneficiary of a cross-border payment transaction, the bank is not liable for the non-execution or late execution of a payment to the benefit of the account if the bank does not receive the instruction from the other (foreign) bank or institution, or does not receive it in good time, or if the instruc-tion does not comply with the bank’s terms and condiinstruc-tions, or if the bank has not received the cross-border payment transaction, or its equivalent, or has not received it in good time, properly or fully.
3 If it is not possible, for any reason, for the bank to instruct a bank or an institution in the country in question, or if an instructed bank or institution does not implement the bank’s instruction, the bank is not liable for a failure of the instructed bank or institution in question. If as a result of such a failure the account holder suffers a loss, the bank will in any event assist the account holder in his/her attempts to rectify and/or limit this loss. 4 The bank is authorised to agree on other methods of instruction
or sending instructions with other banks and/or institutions, including foreign ones, than the usual methods.
c In the event that a permit and/or the permission of De Nederlandsche Bank N.V. or any other national or international supervisory body or other body is required for the execution of an order or the receipt of a cross-border payment transaction by the bank, the bank is authorised, as necessary, to declare regulations, circulars, notifications, etc., applicable to the cross-border payment transaction referred to above.
d The periods, commissions, costs, fees and other terms and condi-tions applied by the bank at that moment are applicable to such cross-border transfers.
22 Payment by direct debit (Dutch direct debit and Euro Direct Debit)
a Additional definitions
The following definitions are also used in this article:
Collector: the party which has entered into a contract with a financial services provider for the collection of payments by means of direct debit.
Direct debit: Dutch direct debit and Euro Direct Debit Direct debit order: An order by the collector to its financial services
provider to collect an amount from the account of the account holder.
Direct debit An executed direct debit order, for which the transaction: account of the account holder is debited and the current account of the collector is credited. Direct debit a mandate issued by the account holder to mandate: collect from his/her account by means of direct
debit.
Direct debit All days except Saturdays and Sundays, working day: 1 January, Good Friday, Easter Monday, 1
May, 25 and 26 December (Christmas Day and Boxing Day).
b Description in broad terms of the direct debit payment product A direct debit gives the account holder the option of issuing a
direct debit mandate to the collector to directly debit an amount from the account on a one-off or recurring basis. There are various different types of direct debit. The most important characteristics of the various types of direct debit are shown in the overview below:
Refund period bank Refund period account holder Dutch direct debit
(Continuous General Mandate) 30 calendar days 56 calendar days Dutch direct debit
(One-off Mandate) 5 working days No right to reversal Dutch direct debit (Continuous
General Mandate for Business) 5 working days 5 working days Dutch direct debit (Continuous Mandate
for Business without right to reversal - Auction direct debit)
5 working days 5 working days Euro Direct Debit (one-off and continuous) 5 working days 5 working days The account holder can always retract a direct debit mandate (see
point d) and revoke a direct debit transaction before its execution (see point e). In the case of certain types of direct debit, the account holder is entitled, within a specific period of time, to have a direct debit transaction which has already been executed reversed (see point f). In addition, in the event of a wrongful direct debit, the account holder also has the right, within thirteen months after the debit, to request that the bank refund the amount in question (see point i).
c Issuing a direct debit mandate
The account holder can issue a one-off or continuous direct debit mandate. A continuous direct debit mandate can be used for multiple direct debit transactions. The account holder agrees to a direct debit transaction by signing the direct debit mandate and giving it to the collector.
d Retracting the direct debit mandate
If the account holder wishes to retract an issued direct debit man-date, he/she must issue this retraction to the collector by means of a notification to this effect, with due observance of the period of notice agreed with the collector.
e Revocation of a direct debit transaction
The account holder can always revoke a direct debit order prior to the day of execution of the direct debit transaction stated in the direct debit order. He/she can instruct the bank to do so up to 12:00 on the last direct debit working day prior to the day of the direct debit transaction. The account holder can issue a revocation order in the manner indicated on the website. If the bank does not receive this order on time, the bank will treat this order as a request for a reversal. The revocation right in this provision will not apply in
the event of a Continuous Mandate for Businesses without right to reversal – Auction direct debit.
f Reversal at the initiative of the account holder
In the case of the direct debit types for which it is stated in point b that the account holder has a right to reversal, the account holder is entitled to have a direct debit transaction already executed re-versed by the bank within the period referred to in point b, without giving reasons. The period commences on the day after the direct debit transaction is debited, and the bank must have received the reversal request within this period.
The account holder can issue such a reversal order to the bank in the manner indicated on the website. As quickly as possible, but no later than within ten working days after receipt, in good time, of a correct request for a reversal by the account holder, the bank will credit the account with the full amount of the direct debit transaction in question.
g Reversal or refusal at the initiative of the bank
The bank can refuse or reverse a direct debit transaction on the basis of the grounds for refusal stated in article 14, within the period specified in point b, in which respect the value date of the debit and the credit can be the same. If the bank refuses a direct debit order or reverses it at its own initiative, the bank will notify the account holder to this effect via the account information. h Direct debit block
1 The account holder can instruct the bank to block the account for:
- all direct debit transactions. This means that a complete direct debit block is applicable to the account, so that no debiting whatsoever can take place from the account by means of direct debit.
- direct debit transactions to the benefit of a current account number of a collector provided by the account holder, in the case of a Dutch direct debit. This means that a selective direct debit block is applicable to the account, so that no debiting can take place from the account by means of direct debit to the benefit of the current account number provided.
- direct debit transactions to the benefit of a specific collector in the case of a Euro Direct Debit, if the account holder provides the bank with the specific ‘Collector ID’ code.
- direct debit transactions on the grounds of a specific direct debit mandate in the case of a Euro Direct Debit, if the account holder provides the bank with the identification number of the specific direct debit mandate in question and the specific ‘Collector ID’ code.
2 The account holder can issue such an order to the bank in the manner indicated on the website.
3 A request for a direct debit block received by the bank which is made correctly will come into effect on the first subsequent working day, on condition that it is received no later than 12:00 on a direct debit working day.
4 The bank can apply a general or selective direct debit block to the account. The bank will notify the account holder to this effect.
5 In the event of a direct debit block, the bank is not required to notify the account holder that a direct debit order has been refused by the bank as a result of the block.
i Wrongful direct debit transaction: Procedure for Reporting Wrongful
Direct Debit
If a direct debit transaction is debited from the account for which no valid direct debit mandate exists, the account holder must notify the bank to this effect immediately, and no later than within thirteen months of the debit. The bank will make an effort to complete the Procedure for Reporting Wrongful Direct Debit (MOI) as quickly as possible, and if possible within sixteen direct debit working days. The bank will notify the account holder of the result of this procedure. The bank will credit the account of the account holder with the full amount and will compensate for loss of interest in the account, if, in the bank’s opinion:
- the collector cannot provide a valid, written direct debit man-date, or
- the direct debit mandate is cancelled before the direct debit order is executed, or
- the direct debit mandate does not meet the requirements for a direct debit mandate.
The account holder can issue such a refund request regarding a wrongful direct debit transaction to the bank in the manner indicated on the website.
j Dutch direct debit and Euro Direct Debit
The two main types of direct debit are the Dutch direct debit and the Euro Direct Debit. The account information states whether the direct debit transaction is a Dutch direct debit or a Euro Direct Debit. This article applies to both the Dutch direct debit and the Euro Direct Debit, unless otherwise indicated. The following special characteristics and terms and conditions also apply:
a In the case of direct debit transactions using the Dutch direct debit, the collector must have an account in the Netherlands. A direct debit mandate for a Dutch direct debit can also be can-celled by making use of the ‘red card’, which the account holder can request from the collector or from the bank.
b In the case of direct debit transactions using the Euro Direct Debit, the collector must have an account in the Netherlands or in another European country. The collector must use the letters ‘Sepa’ on the direct debit mandate for a Euro Direct Debit, or use the Sepa logo. A collector using the Euro Direct Debit is required to notify the account holder at least fourteen days before the execution of the direct debit transaction.
c A collector to whom the account holder has issued a Continuous General Mandate or a Continuous Mandate for Businesses for direct debit transactions using Dutch direct debit, can also make direct debits using Euro Direct Debit. A Continuous Mandate issued by the account holder is also deemed to be a direct debit mandate for Euro Direct Debit. This provision is a third party clause to the benefit of the collector.
d Direct debit transactions using Euro Direct Debit can take place as of the date to be determined by the bank. The bank will make this date known via the website.
23 Ordering euros and foreign currency in cash to be charged to the account
Unless the account holder and the bank agree differently in writing with regard to ordering and supplying cash, the following applies:
a With regard to the disposition in cash of euros or valid foreign currency, in the bank’s opinion, to be charged against the ac-count, the bank can require that the account holder order these in good time, with due observance of terms and conditions and procedures to be set by the bank. In the case of dispositions at the bank in cash in a foreign currency which in the bank’s opi-nion is not a valid one, the bank must agree to this in advance. b Each order is deemed to be a payment order with as its purpose
a payment transaction charged against the account. If the ac-count holder places an order in accordance with the procedure prescribed by the bank, the account holder has agreed to the payment order, and its execution. The account holder is not authorised to revoke, amend or retract an order of cash. There is a limit of € 50,000 per order, or the equivalent of this, set
by the bank. The bank may change this limit at all times, and set new limits.
c The bank and/or the third party designated by the bank is authorised to refuse or suspend execution of the order for one of the reasons stated above, and also if the bank is unable to supply the requested order, for any reason whatsoever. In such cases, the bank is not liable for loss of any nature whatsoever. d The delivery of cash can take place in person by an employee of
the bank or by a third party engaged by the bank. e If the order is not collected on time from the bank, or the
account holder does not take receipt of the order on time, the amount of the order, or in the case of foreign currency, the equivalent amount in euros will be credited to the account, after deduction of the fee for the order. The conversion of foreign currency into euros takes place on the basis of the value date, exchange rate date and exchange rate set by the bank. The bank is authorised to change the value date, the exchange rate date and the exchange rate.
f The account holder will check whether the package is intact, complete, unopened and in undamaged condition, and sealed by means of a seal and/or adhesive strip, immediately after actual receipt of the cash. If the contents are packaged in a transparent package, the account holder will first check the correctness of the contents on the basis of the order and the specification of the order (packing slip) in the outer packaging before breaking the seal and/or the adhesive strip and opening the package.
g The account holder is required to check the contents and count the cash immediately after actual receipt of the cash.
h If the nature and quantity of the cash delivered differs from the order and/or that stated in the package, after a careful inspection and recount by the account holder, the account holder must: 1 notify the bank immediately, in a manner determined by the
bank;
2 if the bank requests it, to report the discrepancy to the police; 3 to grant every cooperation in reconstructing the actual course
of events.
i If the account holder has not notified the bank within one working day after actual receipt of the order of a discrepancy between the amount ordered and the cash delivered, the delivery of the cash shall be deemed to have been carried out in accordance with the order, without prejudice to the bank’s right to remedy errors proven by it, and subject to proof to the contrary provided by the account holder.
j The results of the check and count of cash made by or on behalf of the bank as set down in the administration of the bank or of the third party engaged by the bank serve as full evidence, subject to proof to the contrary to be provided by the account holder.
k The account holder shall - jointly and severally - owe the bank a fee per order.
l The debit of the value of the cash ordered and/or the equivalent thereof in euros owed by the account holder, and the debit of the fees owed will take place in the manner and at the times indicated by the bank. The bank is authorised to amend the fees and the above-mentioned method and times. The bank will notify the account holder to this effect, or give him/her the opportunity to take cognisance of this. If foreign currency is ordered, the bank debits the equivalent of this in euros from the account on the basis of the value date, exchange rate date and the exchange rate set by the bank. The bank is authorised to change the value date, the exchange rate date and the exchange rate.
24 Crediting/debiting an account
The bank is authorised:
a to credit the account for all that which is deposited or transferred to the benefit of the account, subject to a good outcome of this deposit and/or transfer;
b to debit the account for all dispositions charged against the ac-count;
c to debit the account for all that which an account holder owes it by virtue of any reason whatsoever.
25 Unauthorised debit balance
If the account holder has not been granted an credit facility, no debit balance is permitted in the account. If a debit balance nevertheless occurs:
a the account holder is jointly and severally liable for the debit balance and the interest and costs owed.
b the account holder shall owe interest to be determined by the bank on this debit balance as of the day on which the debit balance occurred up to and including the date on which the debit balance ends. The bank can charge this interest to the account at times to be set and amended by the bank.
c the debit balance in the account is immediately payable and the account holder must ensure immediate settlement of this debit balance and payment of the interest and costs owed (inasmuch as this interest and these costs have not already been charged to the account).
26 Multiple accounts
If an agreement is entered into with one or more account holders, and in the context of the realisation of this agreement multiple accounts are held for administrative reasons, amounts are in principle credited to and debited from an account by the bank to the extent that the payments take place to the benefit of or charged against the account number indicated in the name of the account holder in whose name the account is jointly or individually held. The bank is at all times entitled to deviate from this.
27 Termination of agreement without credit facility
a Each account holder or the bank can terminate the agreement without credit facility without a period of notice. If the bank main-tains the account for multiple account holders who can only have joint disposition of the credit balance in the account, only the joint account holders or the bank can terminate the agreement without credit facility.
b In the event of termination of the agreement, the bank can sus-pend disposition of a credit balance in the account until all forms, cards, tools, software and other documentation have been returned by the account holder to the bank, and all obligations vis-à-vis the bank in respect of the terminated account have been complied with.
C The credit facility
28 Use of credit facilities/spending purpose
a Each borrower is authorised to use the credit facility by means of dispositions charged against an account held jointly or individually in his/her name.
b The borrower may only make use of an credit facility in the context of the performance of the profession or operation of the business of the borrower and for the agreed financing purposes.
c The borrower may not use the credit facility for transactions which breach legislation and/or regulations and/or transactions which in the opinion of the bank lead or could lead to damage to the integrity and/or reputation of the financial sector and/or the bank. d The borrower may not use the credit facility for:
- gaining interest benefits, or
- engaging in interest arbitrage by means of transactions which cannot be regarded as forming part of his/her normal business operations.
29 Notional pooling of balances/administration of credit facility on multiple accounts
If an credit facility is provided to one or more borrowers, and in this context the credit facility is administered on multiple accounts, the following provisions apply:
a The combined balance of the accounts will be determinative for the amount that the bank owes the borrower or is owed by the borrower. The bank is always authorised to limit and/or change the amount that an account holder may be overdrawn on an individual account. In this context, the bank can set and/or change a compensation limit on an individual account and will notify the account holder in question to this effect.
b The debit/credit interest is calculated on the balances of the separate accounts, with due observance of the interest rates agreed with the account holder for the accounts in question. The bank is at all times authorised to change this interest calculation method with immediate effect.
c In principle, an account is credited or debited by the bank to the extent that the deposits or payments take place to the benefit or charged against the account number indicated in the name of the account holder in whose name the account is jointly or individually held. The bank is at all times entitled to deviate from this.
d The bank is at all times authorised to set off all or part of a debit ba-lance in an account against all or part of a credit baba-lance in another account, without prior notification, irrespective of the currency in which these balances are held. Balances held in a currency other than the euro will first be converted to a euro amount. The bank is also authorised - and with the right of substitution is irrevocably granted power of attorney by the borrower - to have disposition
of the credit facility and/or transfer amounts from an account to another account to which the agreement governing the credit facility and these terms and conditions are applicable. e The bank is at all times authorised to also administer the credit
facility on other accounts held in the name of one or more bor-rowers and/or accessor(s) or future accessor(s), and/or no longer to administer the credit facility in one or more accounts.
30 Restriction of credit facility
The bank can at all times restrict, change restrictions or remove agreed restrictions on an credit facility with immediate effect, by amounts to be set by the bank.
31 Additional interest and obligation to settle in the event of credit excess
If the account indicates a debt to the bank which is higher than the maximum credit facility:
a each borrower is jointly and severally liable for the amount of the credit excess and the interest and costs owed.
b the bank can charge the borrower additional interest, to be set by the bank, to be calculated on the amount of the credit excess as of the day on which the credit excess occurs up to and including the date on which the credit excess ends. The bank can charge this interest to the account at times to be set and amended by the bank.
c the amount of the credit excess is immediately payable and the borrower must ensure immediate settlement of this amount and payment of the interest and costs owed (inasmuch as such interest and costs have not already been charged to his/her account).
32 Authorisation to repay debit balance and to terminate credit facility
a The borrower can always repay the debit balance owed by him/her. b Irrespective of any other provision in the deed and/or these terms
and conditions, both the bank and each borrower can terminate the credit facility at all times, with due observance of a period of at least three months. During this period, the borrower cannot make any further use of the credit facility. Any debit balance must be settled immediately after the end of this period.
33 Audit of balance sheets, profit and loss accounts and reports
If the bank and/or Rabobank Nederland wish(es), the borrower is required to submit to an audit by an expert at his/her own expense, to the satisfaction of the bank and/or Rabobank Nederland, and to submit to the bank and/or Rabobank Nederland his/her balance sheets, profit and loss accounts with explanatory notes and the reports relating to the audit regularly and immediately after they have been adopted or issued. Furthermore, the borrower is required, at the first request of the bank and/or Rabobank Nederland, to make avai-lable all financial information relating to the company or profession of the borrower requested by the bank and/or Rabobank Nederland to it/them or to a third party appointed by it/them. The borrower will give the bank and/or Rabobank Nederland and/or the third party or parties and/or appropriate authorised representative(s) appointed by it/them the opportunity to audit his/her entire administration, whenever the bank and/or Rabobank Nederland require.
34 Changed regulations
1 If after the credit facility has been provided any change occurs to the legislation or regulations, or to the interpretation or implemen-tation thereof, or new legislation and regulations are introduced, and if this, in terms of the credit facility, results in the bank: - realising a lower return on capital, and/or
- extra costs must be incurred, and/or - a higher cost price must be paid
The borrower will pay an amount to the bank at the bank’s first request which is sufficient to compensate the bank for the lower return, the extra costs and/or the increased cost price.
2 The provision in paragraph 1 of this article is also applicable if the lower return, the extra costs and/or the increased cost price are a result of the circumstance that the bank complies with a request or demand - for any reason whatsoever - from an authorised body
with regard to the maintenance of capital after the credit facility has been provided.
3 The bank will notify the borrower as quickly as possible in writing of the circumstances referred to above, and of the level of the amount which the borrower must pay on the grounds of paragraphs 1 or 2.
35 Amendment to articles of association
The borrower may not make any change to the agreement of a limited or other public partnership or to its articles of association without the prior written approval of the bank.
36 Share capital
Without the prior written permission of the bank:
a no repayment is permitted of shares or contribution to the bor-rower;
b no shares in its own business may be purchased by the borrower; c no exemption may be granted to the borrower in respect of any
obligation to deposit on not fully paid-up shares or to make a contribution;
d the issued share capital of or the amount of the contribution to the borrower may not be reduced;
e no decision to implement any of the above in points a. through d. may be taken.
37 Debit balance immediately due and payable
1 A debit balance is immediately due and payable without the bank being required to notify the borrower to this effect in advance if one of the circumstances referred to below occurs with regard to the borrower and/or provider of collateral and/or customer group: - application for bankruptcy or declaration of bankruptcy; - requesting a suspension of payments, or the granting thereof; - application for an insolvency arrangement, or the declaration of
applicability of such an arrangement;
- application for a statutory debt rescheduling arrangement, or the declaration of applicability of such a scheme;
- the offer of any composition to creditors;
- a decision to dissolve, if the borrower or provider of collateral or customer group is a legal entity, with the exception of a limited or other public partnership with legal personality, or actual liquidation;
- cessation or actual termination of performance of the profession or operation of the business;
- issuing an announcement within the meaning of Section 36 paragraph 2 of the Collection of State Taxes Act 1990 or Section 60 of the Social Insurance (Funding) Act in combination with Section 36 of the Collection of State Taxes Act 1990 and/or legislation which replaces it and/or similar legislation;
- loss of legal personality, with the exception of a limited or other partnership with legal personality;
or comparable legal facts and circumstances under foreign or international legal systems.
2 With written notification thereof to the borrower, the bank can demand repayment of the debit balance with immediate effect in the following cases or in the case of comparable legal facts and/or circumstances from foreign or international legal systems: a if the borrower and/or provider of collateral and/or customer
group fails, in the opinion of the bank, in compliance, prompt compliance and/or proper compliance with, or acts in breach of: - a provision in the deed or a deed of collateral, including the
general or other terms and conditions declared applicable in said deed(s);
- any other obligation vis-à-vis the bank;
- any financial obligation vis-à-vis another lender/third party; b when the borrower and/or provider of collateral:
- dies or is presumed to have died or is missing; - is placed under guardianship;
- emigrates from the Netherlands, or moves his/her business operation or professional practice wholly or partly abroad; - relinquishes or gains legal personality;
- is converted into another legal form;
- is demerged or merged, if the borrower or the provider of collateral is a legal entity;
