GBC
Dear customer, this English translation of the General Business Conditions is provided solely for the convenience of customers.
The translation is not binding on the Bank. The German text is the sole authoritative version and prevails in case of any conflict.
General Business Conditions
– Basis of the business relationship between the customer and the HSH Nordbank AG (Bank) –
Version: July 2012
Table of Contents
General
No. 1 – Basis for the Business Relationship
No. 2 – Amendments to the Terms and Conditions
No. 3 – Bank Information
No. 4 – Authorization for Representation and Disposals
No. 5 – Legitimization Documents
No. 6 – Choice of Law, Jurisdiction, Place of Performance
Current Accounts and other Transactions
No. 7 – Current Account, Statements of Account
No. 8 – Correction of incorrect Credits
No. 9 – Credits and Cashing Collection Documents
No. 10 – Order Confirmation prior to Execution
No. 11 – Set-off and Crediting
No. 12 – Accounts in foreign Currency
No. 13 – Release from Performance in Transactions in foreign Currency
No. 14 – Receipt of Money in foreign Currency
No. 15 – Exchange Rate
No. 16 – Deposit Transactions
Charges
No. 17 – Interest and Fees
No. 18 – (intentionally left blank)
Duties and Liabilities of the Bank and the Customer
No. 19 – Liability of the Bank
No. 20 – Duties to Cooperate and Duties of Care on the part of the Customer
General Lien, Supplemental Collateral, Release of Collateral
No. 21 – Lien, Assignment for purposes of Security
No. 22 – Supplemental Collateral and Release
Collection Documents
No. 23 – Cashing in Collection Transactions
No. 24 – Deadline for Presentation, Urgent Means
No. 25 – Security Interests in Collection Transactions
Termination of the Business Relationship
No. 26 – Right of Termination
No. 27 – Continuing Applicability of the General Terms and Conditions
No. 28 – Protection of Deposits by Protection of Institutions
No. 29 – Syndication / Approval to Transfer of Contract and Release from Banking Secrecy
General
No. 1 – Basis for the Business Relationship
(1) Business Relationship as a Relationship of Confidence
The business relationship between the customer and the Bank is characterized by the specific aspects of the banking business and a special relationship of confidence. The customer can rely on the Bank to execute the customer’s orders with the care of a prudent commercial party and to maintain the banking secrecy.
(2) General and Special Terms and Conditionss
These General Terms and Conditions apply to the entire business relationship and supplement the individual contractual agreements. Supplemental or different special terms and conditions may apply for individual areas of business, e.g. for payment processing, savings and securities transactions; such terms and conditions to be agreed with the customer at the time contracts are entered into (for example, when opening an account) or orders are given.
No. 2 – Amendments to the Terms and Conditions
(1) Offer by the Bank
Amendments to the General Terms and Conditions or the special terms and conditions, or the introduction of additional terms and conditions will be offered to the customer in each case in the form permitted by law no later than two months before their proposed date of application.
(2) Approval of the Amendment
The amendment is deemed to have been approved by the customer if the customer has not objected to the amendment before the proposed date for the amendments to take effect. The Bank will specifically inform the customer in the offer about such deemed approval. The Bank will then base the further business relationship on the amended version of the General Terms and Conditions, the amended special terms and conditions and/or the additional terms and conditions introduced.
(3) Special right of termination in the case of amendments to terms and conditions for payment services
If the customer is offered amendments to the terms and conditions for payment services (e. g. terms and conditions for payment transfers), the customer can also terminate the framework contract on payment services which is affected by the amendment with immediate effect and free of charge prior to the proposed date on which the amendments are to take effect. The Bank will specifically inform the customer in the offer about the special right of termination.
(4) Differing Agreements
The amendment process under paragraph 1 and paragraph 2 does not apply to the extent that differing agreements have been made. Sentence 1 does not apply to amendments of terms and conditions for payment services.
No. 3 – Bank Information
(1) Content of Bank Information
Bank information consists of determinations and comments in general terms about the economic circumstances of customers, their credit worthiness and ability to meet their payment obligations. Information regarding amounts concerning account balances, savings deposits, securities or other assets entrusted to the Bank and the use of credit will not be made available.
(2) Prerequisites for providing information
The Bank can provide Bank information on legal entities and commercial parties registered in the commercial register if the inquiry relates to their business activity and the Bank has not received any different instruction from the customer. In all other instances, the Bank is only allowed tomake Bank information available if the customer has expressly consented thereto in general or in the specific case. Bank information is provided only to the Bank’s own customers and other credit institutions for their own purposes and the purposes of their customers; the Bank information is provided only if the requesting party can show in a plausible manner a justified interest for the requested information.
(3) Written Confirmation
In the case of oral information about credit worthiness and ability to meet payment obligations, the Bank reserves the right to provide a written confirmation without undue delay, and from that time on the content of the written confirmation is determinative.
No. 4 – Authorization for Representation and Disposals
(1) Notice
Any authorization to represent the customer and dispose of assets on behalf of the customer notified to the Bank remains valid until the Bank receives written notice about the cancellation or a change or, if electronic communications were agreed in connection with the business relationship (e.g. online banking) by means thereof, unless such circumstances are known to the Bank or are not known due to negligence. This also applies if the authorization is registered in a public register and a change has been published.
(2) Defects in the Legal Capacity of the Representative
The customer is liable for damages resulting from a defect occurring in the legal capacity of the customer’s representative of which the Bank gains no knowledge without any fault on its part.
No. 5 – Legitimization Documents
(1) Proof of Inheritance
After the death of the customer, the Bank can require the presentation of a certificate of inheritance, a certificate of executorship or similar court certifications in order to clarify the authorization to effect transactions; documents in foreign language must be submitted with a German translation upon request of the Bank. The Bank can waive the presentation of a certificate of inheritance or executorship if an original or a certified copy of the last will and testament or the inheritance contract of the customer together with the record of the corresponding hearing opening probate is submitted.
(2) Authority to act for the Bank
The Bank is authorized to treat the persons designated as heirs or executors in the documents under paragraph 1 sentence 2 as authorized persons and especially to permit them to make disposals and to render performance to them thereby discharging its obligations. This does not apply if the Bank was aware of the inaccuracy or invalidity of such documents or was not aware of this due to negligence.
(3) Other Foreign Documents
If foreign documents are submitted to the Bank as identification of the person or as proof of authorization, the Bank will review whether the documents are suitable to provide proof. However, the Bank is liable with regard to the suitability, validity and completeness of such documents and for their correct translation and interpretation only in the case of negligence or if the document as a whole is forged. Within the above limits, the Bank can treat the persons designated in the documents as authorized as being authorized, and especially permit them to make disposals and render performance to them thereby discharging its obligations.
No. 6 – Choice of Law, Jurisdiction, Place of Performance
(1) German Law
German laws shall apply to the business relationship but for the operation of mandatory provisions of law.
(2) Place of Performance
Place of performance for the Bank and the customer is the registered office of the Bank.
(3) Jurisdiction
If the customer is a commercial party, a public law entity or a special public law estate, the Bank can file complaints at its general place of jurisdiction and actions can only be filed against the Bank in that venue.
Current Accounts and other Transactions
No. 7 – Current Account, Statements of Account
(1) Current Account
The Bank maintains an account for processing day-to-day business and payment transactions (Giroaccount) as a current account within the meaning of § 355 of the Commercial Code (account as account current).
(2) Statements of Account
Unless agreed otherwise, the Bank issues a statement of account at the end of each calendar quarter. If there is a justified interest of either one of the parties hereto, the statements of account will be issued also on other dates.
(3) Objections against the Statement of Account
Objections against statements of account must be received at the Bank in writing or, if electronic communications were agreed in connection with the business relationship (e. g. online banking) by means thereof. Without prejudice to the obligation to raise objections against statements of account without undue delay (No. 20 paragraph 1 point g), statements of account are deemed to have been approved if no objection has been raised against them prior to the expiration of six weeks after receipt of the statement of account. Mailing in time is sufficient to meet the deadline. The Bank will specifically inform the customer about these consequences when issuing the statement of account. If an inaccuracy is discovered subsequently, both the customer as well as the Bank can request a correction on the basis of statutory claims.
No. 8 – Correction of incorrect Credits
(1) Cancellation Booking prior to the Statement of Account
Credits which are booked without an order creating an obligation for the entry (e. g. due to mistake, typographical error) can be reversed by a simple booking (cancellation booking) until the next statement of account to the extent that the Bank has a claim for repayment against the customer.
(2) Booking Corrections after the Statement of Account
The Bank can also make the claim for repayment under paragraph 1 by means of booking a correction even after the statement of account if the Bank did not discover the incorrect credit in time prior to that date. Upon objection by the customer, the Bank will reverse the booking of the correction and assert its claim in a different manner.
(3) Indication
Bookings of cancellations and corrections will be indicated in the statement of account.
No. 9 – Credits and Cashing Collection Documents
(1) Credits subject to "receipt of funds reserved"
If the Bank credits an account with the value of cheques, direct debits or other collection documents before they have been cashed, it will be made on the condition that the document will be cashed and value will be received ("E. v." credit). This also applies if the cheques, direct debits or other collection documents are payable at the Bank itself. If cheques or direct debits are not cashed or if the value of collection documents is not received by the Bank, it will cancel the credit pursuant to No. 23 paragraph 2 of these General Terms and Conditions even after any statement of account which may have been issued in the meantime.
(2) Cashing
Direct debits pursuant to authorization or orders, cheques and other collection documents will only be cashed if the debit booking has not been cancelled by the end of the second following banking day1. Such documents will also be cashed if the Bank previously expressed its intent to cash the document in a recognizable manner to third parties (e.g. by advice of payment). In connection with direct debits based on other procedures the provisions on cashing in the special terms and conditions agreed for those procedures apply. Cheques cashed through the clearing office of the German Federal Bank will be cashed if they can no longer be returned under the German Federal Bank’s general terms and conditions. Cash cheques will be cashed when payment is made to the party presenting the cheque.
No. 10 – Order Confirmation prior to Execution
In the case of orders given by telephone or other technical means and in the case of orders which are not signed, the Bank reserves the right to obtain confirmation of the order without undue delay prior to execution of the order.
No. 11 – Set-off and Crediting
(1) Set-off by the Customer
The customer can only set off claims against the Bank to the extent that the customer’s claims are undisputed or have been confirmed in a final non-appealable judgement.
(2) Crediting by the Bank
The Bank can determine against which of several claims due payments received will be credited if payments are not sufficient to settle all claims. This does not apply to the extent that the customer has determined otherwise or a different manner of crediting is required by mandatory law.
No. 12 – Accounts in foreign Currency
Foreign currency accounts serve exclusively for processing of non-cash payments to the customer and disposals by the customer in foreign currency.
No. 13 – Release from Performance in Transaction in foreign Currency
The obligation of the Bank to execute a disposal debiting a foreign currency deposit or to satisfy a foreign currency liability is suspended to the extent and for so long as the Bank cannot make any disposals or can only make disposals to a limited extent in the currency in which the deposit or liability is denominated as the result of politicalmeasures or events in the country of that currency. To the extent, and so long as these measures or events continue, the Bank is also not required to satisfy an obligation at any other location outside of the country of the currency or to satisfy it in any other currency (also not in Euro) or by acquiring cash. The obligation of the Bank to execute a disposal debiting a deposit in foreign currency, however, is not suspended if the Bank can execute the disposal completely within its own institution. The right of the customer and the Bank to set-off mutual claims which denominate in the same currency against each other shall not be affected by the preceding provisions.
No. 14 – Receipt of Money in foreign Currency
The Bank can credit amounts of money in foreign currency in Euro if there is no express instruction to the contrary from the customer unless the Bank maintains an account for the customer in the relevant currency.
No. 15 – Exchange Rate
The determination of the exchange rate for transactions in foreign currency is based on the list of prices and services. The framework contract on payment services applies in addition in case of payment services.
No. 16 – Deposit Transactions
Deposits are due without any notice of termination unless agreed otherwise (demand deposits). Demand deposits bear interest at the respective interest rate set by the Bank for such deposits; this interest rate is announced by display on a board. For purposes of interest calculation on deposits each month will be calculated as having 30 days.
Charges
No. 17 – Interest and Fees
(1) Interest and Fees in Transactions with Consumers
The amount of interest and fees for customary credit and services in transactions with consumers is set forth in the price display and in addition in the list of prices and services. If a consumer uses a credit or other service listed there, the interest and fees set forth at that time in the price display or in the list of prices and services apply unless agreed otherwise.
(2) Interest and Fees in Transactions other than with Consumers
The interest and fees for credit and services used in transactions other than with consumers are determined in accordance with what has been agreed and in addition pursuant to the list of prices and services in the form applicable at the time of use.
(3) Fees for other Services
The Bank can require payment of reasonable compensation in accordance with statutory provisions for services which are not the subject of an agreement or which are not listed in the price display or in the list of prices and services and which are performed pursuant to the order of the customer or in the customer’s presumed interests and which, under the circumstances, can only be expected in exchange for compensation.
(4) Actions not subject to Compensation
The Bank will not charge any compensation for any actions which the Bank is already required to perform by law or pursuant to an ancillary contractual duty or which are taken in the Bank’s own interests unless it is permitted by law and charged in accordance with the statutory provisions.
(5) Change in Interest, Right of Termination for the Customer in the case of an Increase
Changes in interest for credits with variable interest rates will be made on the basis of the respective credit agreements with the customer. The Bank will notify the customer about changes in interest rates. In the case of an increase and unless agreed otherwise, the customer can terminate the credit agreement affected by the change with immediate effect within six weeks after the notice of the change. If the customer gives notice of termination, the increased interest will not be applied to the terminated credit agreement. A notice of termination by the customer is deemed not to have been given if the customer does not repay the amount owed within two weeks after the notice of termination takes effect.
(6) Changes in Compensation for Services which are typically used on an ongoing basis
Changes in compensation for those services which are typically used by the customer on an ongoing basis in connectionwith the business relationship (e. g. maintenance of a securities account) will be offered to the customer in text-form not later than two months prior to the proposed date of application. If the customer has agreed on electronic communication with the Bank in connection with the business relationship (e. g. online banking) the changes can also be offered bymeans thereof. The consent of the customer is deemed to have been given if the customer has not given notice of a rejection prior to the proposed date of application of the changes. The Bank will specifically inform the customer in the offer about this effect of deemed approval. If changes are offered to the customer, the customer can also terminate the contract affected by the changes prior to the proposed date of application of the changes with immediate effect and free of charge. The Bank will specifically inform the customer in the offer about this right of termination. If the customer gives notice of termination, the changed compensation will not be applied to the terminated business relationship.
(7) Special Provisions for Consumer Loan Agreements
The interest and fees in the case of consumer loan agreements are governed by the respective contractual agreements as well as by the statutory provisions.
(8) Special Provisions for Payment Services Contracts with Consumers
The fees in the case of payment services contracts with consumers are governed by the respective contractual agreements and the special terms and conditions. To the extent that no provision has been made therein, paragraphs 1 and 4 apply, and – in relation to any change in any fees in the case of payment services framework contracts (e. g. Girovertrag) – paragraph 6.
No. 18 – Reimbursement of expenses
The reimbursement of expenses by the bank ist governed by the statutory provisions.
Duties and Liabilities of the Bank and the Customer
No. 19 – Liability of the Bank
(1) Liability for Culpable Misconduct
The Bank is liable for its own culpable misconduct as well as the culpable misconduct by persons used by the Bank in the performance of its obligations owed to the customer to the extent the following paragraphs, the special terms and conditions or the regulations in a specific contract do not provide otherwise. If the Bank is liable and the damages are not solely the fault of or caused by the Bank, the obligation to pay damages is subject to the principles on contributory negligence; § 254 Civil Code.
(2) Liability for Third Parties
The Bank can assign orders completely or partially to third parties to be independently handled to the extent that appears necessary considering the type of order and the interests of the Bank and the customer if there is no instruction to the contrary. In such cases, the obligation and liability of the Bank is limited to forwarding the order, including the selection and instruction of the third party with due care.
(3) Liability in the Case of Force Majeure
The Bank is not liable for damages which are caused by disruption of its operations (e. g. bomb threat, bank robbery), especially as a result of force majeure (e. g. war and natural disasters) or as a result of other incidents for which the Bank is not responsible (e. g. strike, lock-out, traffic disruption) or which arise as a result of governmental acts domestically or abroad.
No. 20 – Duties to Cooperate and Duties of Care on the part of the Customer
(1) General Principle
The Bank executes the customer’s orders with the care of an ordinary business person. The customer for its part has special duties to cooperate and other duties of care, especially the following duties:
a) Notification of material information and changes
The Bank must be informed without undue delay in writing or, if electronic communications have been agreed in connection with the business relationship (e. g. online banking) by means thereof, about all facts which are material for the business relationship, especially changes in the name, address, family status, capacity of the customer to make disposals and enter into obligations (e. g. marriage, entering into a civil union, change inmarital status relating to assets) or the persons authorized to sign on behalf of the customer (e. g. subsequently occurring incapacity to engage in legal transactions on the part of a representative or attorney-in-fact) as well as changes in the economic beneficiary or authorizations to represent or make disposals notified to the Bank (e. g. powers of attorney, registered commercial power of attorney). The duty to give notice also exists if the facts are registered in public registers and published. The names of the persons authorized to act or make disposals on behalf of the customer must be notified to the Bank together with personal specimen signatures on the forms of the Bank. Furthermore, there can be further legal reporting obligations, especially under the Money Laundering Act.
b) Clear information in orders and instructions
Orders and instructions of all kinds must permit the content of the transaction to be clearly recognized. Modifications and confirmations must be designated as such. In the case of payment orders, the customer must especially pay attention to correct, complete, unambiguous and legible information, particularly with regard to the account number and the bank routing number or the IBAN2 and BIC3.
c) Care in the case of special transmission of orders
In the case of orders or instructions given by telephone or other technical means, the customer must make sure that no errors in transmission, misunderstandings, abuses or mistakes occur.
d) Use of forms
The forms approved by the Bank must be used for certain transactions, especially with regard to cheques and direct debits, cash withdrawals and transfers.
e) Express notification in the case of a special instruction
The customer must separately notify the Bank about special instructions for the execution of orders, in the case of orders given on forms outside of the form. This applies in particular if payments are supposed to be credited against specific claims of the Bank.
f) Notifications of deadlines and dates
In accordance with item e), the customer must specifically indicate if orders are supposed to be executed within certain deadlines or on certain dates or if extraordinary damages impend in the case of improper execution of orders, especially if they are not executed on time. Reference is made to the special duty to give notice in the case of short deadlines for presenting cheques in No. 24.
g) Complaints without undue delay
Objections against statements of account, direct debits, Bank statements, lists of securities or other notices from the Bank and objections against the correctness of securities or other assets delivered by the Bank must be raised without undue delay. If statements of account or lists for securities accounts are not received by the customer, the customer must inform the Bank without undue delay. The duty to give notice also exists if other notices, messages or shipments the delivery of which the customer must expect or anticipate are not received.
h) Control of confirmations from the Bank
To the extent that confirmations from the Bank differ from orders or instructions by the customer, the customermust object to this without undue delay.
(2) Liability in the Case of Breach of Duties
Damages and detriments resulting from a culpable breach of the duties to cooperate and other duties of care are to be borne by the customer. In case the Bank culpably contributed to the damages, the liability is governed by the principles on contributory negligence, § 254 Civil Code.
General Lien, Supplemental Collateral, Release of Collateral
No. 21 – Lien, Assignment for purposes of Security
(1) Scope
The customer hereby grants the Bank a lien on all assets of any kind coming into the possession or control of the Bank from the customer or third parties for the account of the customer in the course of the banking business. The covered assets include all physical objects and rights of any kind (examples: goods, foreign currency, securities including the coupons for interest, annuities and dividends, interests in securities in global custody, subscription rights, cheques, bills of exchange, bills of lading and storage receipts). This also covers claims of the customer against the Bank (e. g. from balances in accounts). Claims of the customer against third parties are assigned to the Bank when documents issued for the claims come into the possession of the Bank in the course of banking business.
(2) Exceptions
If money or other assets come into the possession of the Bank with the express specification of a certain use (e. g. cash deposit for the honoring of a cheque or a bill of exchange or to execute a specific transfer), the lien of the Bank does not extend to such assets. Securities held in foreign countries are, unless otherwise agreed, not covered by the lien. This also applies for the profit participation rights/profit participation certificates issued by the Bank itself and for claims of the customer from subordinated liable capital (e. g. subordinated bearer bonds).
(3) Secured Claims
The lien secures all existing and future claims of the Bank against the customer acquired by it in connection with the business relationship, also including claims subject to conditions or limited by time, and including statutory claims. Claims against customers under suretyships provided for third parties are only secured from the date they become due.
(4) Assertion of the Lien
The Bank can retain assets subject to the lien under the General Terms and Conditions only if there is a justified interest for security. Such an interest exists especially under the conditions for the right to subsequent security pursuant to No. 22.
(5) Realisation
The Bank is authorized to realise these assets if the customer does not satisfy its liabilities when due, notwithstanding a reminder with a reasonable final deadline and a warning of realisation in accordance with § 1234 paragraph 1 Civil Code. The Bank can choose among several security interests. The Bank will take into account the justified interests of the customer when making the selection and conducting the realisation. The Bank has the right to credit proceeds from realisation which are not sufficient to satisfy all claims in accordance with its reasonable discretion. The Bank will structure credits issued to the customer for proceeds from realisation in such a manner that they are considered invoices within the meaning of value added tax law.
No. 22 – Supplemental Collateral and Release
(1) Right to Subsequent Collateral
The Bank can require the customer to grant or increase security for the customer’s liabilities if the risk situation changes due to circumstances subsequently occurring or becoming known, e. g. as a result of a deterioration or impending deterioration in the financial circumstances of the customer, a party jointly and severally liable or a surety or the value of existing collateral.
In case of consumer loan agreements, a claim for granting or increasing security only exists to the extent that the security is set forth in the credit agreement; if the net principal amount of the loan exceeds EUR 75,000, the claim for granting or increasing security also exists if the credit agreement contains no or no exhaustive statements about security.
(2) Obligation to Release
The Bank is required to release collateral of its choice upon request to the extent that the value of all collateral which can be realised exceeds not just temporarily the total amount of all claims of the Bank bymore than 10 percent. This coverage limit is increased by the respectively current value added tax rate to the extent that the Bank, in the event of realisation, has to pay value added tax from the proceeds of realisation. The Bank will take into account the justified interests of the customer when selecting the collateral to be released.
Collection Documents
No. 23 – Cashing in Collection Transactions
(1) Collection Agreement
Cheques, bills of exchange, direct debit or other collection documents will only be accepted by the Bank for the purpose of collection, unless agreed otherwise.
(2) Reversing Credits
If the Bank has already credited the value of collection documents prior to receipt of value, the Bank can reverse the credit for the value if the documents are not honored, even after any statement of account which has been issued in the meantime. This also applies if
- the Bank does not receive the value, or
- the free disposal of the value is restricted by law or by acts of authorities, or
- the documents cannot be submitted at all or in time as a result of insurmountable hindrances, or
- the collection involves disproportionate difficulties which were not known at the time ofacceptance of the documents, or
- a moratorium has been declared in the country in which the documents are to be collected.
The Bank can also return collection documents even before they become due under the same conditions. The reversal of the credit is also permissible if the documents cannot be returned. If the Bank is responsible for that, it bears the damages resulting from it for the customer.
No. 24 – Deadline for Presentation, Urgent Means
If cheques payable at the Bank’s local banking center are not submitted at the latest on the third business day or in case of cheques payable at other banking centers not at least on the fourth business day prior to expiration of the deadline for presentation (Article 29 Act on cheques), or if being mailed the cheques are not received at the Bank within these deadlines before close of business, the customer must provide separate notice of the expiration of the deadline for submission and any means to be used for urgent situations.
No. 25 – Security Interests in Collection Transactions
(1) Title transfer for Purposes of Security
Upon submission of cheques and bills of exchange for collection, the customer transfers title to such documents to the Bank for purposes of security in case that the collection documents are not honored and the Bank has claims against the customer resulting from disposals of the customer made in advance with regard to the collection transaction until such claims are satisfied. Upon acquiring title for purposes of security, the underlying claims also pass to the Bank.
(2) Assignment for Purposes of Security
If other documents are submitted for collection (e. g. direct debit authorizations, commercial trading papers), the underlying claims pass to the Bank in accordance with the conditions in paragraph 1.
Termination of the Business Relationship
No. 26 – Right of Termination
(1) Ordinary Termination
To the extent not in conflict with mandatory provisions, and if neither a term nor other provisions for termination have been agreed, both the customer as well as the Bank can terminate the entire business relationship or individual types of business at any time without compliance with a notice period. If the Bank gives notice of termination, it will take into reasonable account the justified interests of the customer and in particular will not give notice of termination at an inappropriate time. The notice period for termination by the Bank of a framework contract for payment services (e. g. current account or card agreement) is at least two months.
(2) Termination for Cause
Notwithstanding any agreements to the contrary, both the customer as well as the Bank can terminate the entire business relationship or individual types of business at any time with immediate effect if there is a cause, as a result ofwhich the terminating party cannot be reasonably expected to continue the business relationship. In giving such notice, the justified interests of the other contracting party must be taken into account. Such cause for termination for the Bank especially exists if due to any of the circumstance described by example below the fulfillment of the payment obligations of the customer or the realisation of the claims of the Bank is endangered, even if any security is realised:
a) if a material deterioration or a substantial endangerment of the financial condition of the customer or the value of the collateral provided for a loan occurs, especially if the customer stops making payments or declares its intention to stop making payments or if bills of exchange accepted from the customer are sent for protest;
b) if the customer does not comply with its obligation to grant or increase security (No. 22 paragraph 1) within a reasonable period of time after being requested to do so by the Bank;
c) if the customer has made incorrect statements about its financial circumstances;
d) if enforcement has been initiated against the customer;
e) if the financial condition of a party jointly and severally liable or the personally liable partner/shareholder has materially deteriorated or is substantially endangered, as well as in the case of death of or change in the personally liable partner/shareholder.
If the cause involves the breach of a contractual duty, the termination is only permissible after expiration of a deadline set for curing the breach without such breach being cured or after a reminder has been issued without such breach being cured. This shall not apply if the customer seriously and finally refuses performance or if the customer does not render performance on the date set in the contract or within a specified period of time although the Bank has tied the continuation of its interest in performance under the contract to the timeliness of the performance or if special circumstances exist which justify immediate notice of termination after weighing the interests of both parties.
(3) Notice of Termination in the case of Consumer Loan Agreements
To the extent that the Civil Code contains mandatory special provisions for terminating consumer loan agreements, the Bank can give notice of termination only in accordance with those provisions.
(4) Legal Consequences in the Case of Notice of Termination
Upon the termination of the entire business relationship or individual types of business, the amounts owed under the relevant accounts shall become immediately due. The customer is also required to discharge and release the Bank to that extent from all obligations assumed for the customer or on the customer’s order.
The Bank is entitled to terminate obligations entered into for the customer or on the customer’s order and to settle other obligations with effect for the customer, especially obligations in foreign currency, and to immediately reverse the credits for bills of exchange and cheques which have been accepted; the claims under bills of exchange or cheques against the customer and each obligor under the document for payment of the full amount of the bills of exchange and cheques including ancillary claims remain with the Bank, however, until any negative balance is covered.
No. 27 – Continuing Applicability of the General Terms and Conditions
The General Terms and Conditions continue to apply after the end of the entire business relationship or individual types of business for the winding-up process and the relationship resulting from the unwinding.
No. 28 – Protection of Deposits by Protection of Institutions
The Bank is a member of the protection system of the German Financial Group of Savings Banks. As a facility protecting institutions within the meaning of the Deposit Protection and Investor Compensation Act, this system protects the existence of the member institutions and monitors the risk situation. The Bank is authorized to provide the protection system or an authorized representative thereof with all information and records necessary in connection therewith.
No. 29 – Syndication / Approval to Transfer of Contract and Release from Banking Secrecy
This provision does not apply to natural persons (natürliche Personen).
(1) Syndication
For the purpose of risk diversification, optimization of equity capital, and refinancing, the Bank shall be entitled to form (also retroactively) in line with common banking usage with members of the European system of the central banks, banking institutions, institutes for financial services, financial enterprises, insurance companies, institutional investors, investment and real estate investment funds companies, pension funds, pension schemes, comparable institutions as well as with so-called “Single Purpose Vehicles” at home and abroad (hereinafter “Syndicate Members”) (i) a syndicate for the granting and/or administration of the loan and/or (ii) to grant sub-participations to one or more Syndicate Members and/or (iii) to resell receivables to Syndicate Members and/or (iv) to dispose of receivables for the purpose of securitization, and to negotiate to this end with interested Syndicate Members (hereinafter “Syndication”).
(2) Transfer of Claims and Rights
In the context of Syndication, the Bank shall be entitled to assign, pledge or transfer money due under the loan together with collateral pertaining thereto, especially mortgages, personal assumption of liability, submission to execution in person and in rem – wholly or partially – to the Syndicate Member(s). Furthermore, the Bank shall be entitled to make dispositions regarding individual rights and obligations and the credit risk under the loan.
(3) Transfer of Contract
In the context of Syndication and to the extent that the loan has been fully paid out, the Bank may transfer subject to prior approval of the customer the loan agreement in the way of a transfer of contract (Vertragsübernahme) to (i) a Single-Purpose-Vehicle or (ii) a fonds company, which both have been established only for the purposes mentioned in the first paragraph of No. 29.
(4) Information Transfer
Subject to prior approval of the customer the Bank shall be entitled to disclose any information concerning the borrower to the Syndicate Member(s), as well as to the respective consultants engaged to the audit of recoverability or the clearing of the transfer due to technical, organizational or legal reasons (for example rating agencies, attorneys and auditors) and to transfer data regarding loans, collateral, financial circumstances and other information as far as necessary for the examination of a potential Syndication and the assessment of risk and for the ongoing monitoring of the loan, especially to the extent required by banking supervisory laws. The Bank shall contractually oblige the recipient of the confidential information to observe the rules of confidentiality unless the recipient is already legally obliged to maintain secrecy. The Bank will oblige the recipient of the confidential information to conclude a corresponding confidentiality agreement in case of any further transfer of rights arising from the loan agreement or any forwarding of information to other recipients.
(5) Approval of Customer / Release from Banking Secrecy
The customer releases the Bank from its obligation of confidentiality and from banking secrecy to the extent necessary for it to perform the above-mentioned measures. Furthermore, the customer herewith agrees to the above-mentioned measures, in particular to the transfer of contract. The Bank shall inform the customer about a successful Syndication provided that implications are to be expected in respect of the customer. To the extent the cooperation of the customer shall be required in the course of Syndication, the customer will take all necessary steps, provided that this shall not result in any additional costs to him.
1 Banking days are all workdays except for Saturdays and 24 and 31 December.
2 International Bank Account Number
3 Bank Identifier Code
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