1 BUSINESS AND INSTITUTIONALS ACCOUNT AGREEMENT General terms and conditions ASK MORE OF YOUR BANK
2 C O N T E N T S PART I CURRENT ACCOUNTS 1 - OPENING THE ACCOUNT Documents to be provided when opening the account 1.2 Authorizations and powers of attorney 1.3 Information to be provided to the Bank 2 - OPERATION OF THE ACCOUNT Operations credited to the account Main operations Dishonoured items 2.2 Operations debited to the account Main operations Sufficient funds Receiving Customer s orders 2.3 Provisions relative to certain payment instruments Cheques Drafts Payment services General Over-the-counter operations e-cash operations Transfers issued Transfers received Direct debiting - On the debit side Direct debit - Biller s collections Interbank payment Orders (TIP) to the debit of the account TIP sent for collection Telepayment 2.4 Provisions relative to accounts in foreign currencies 2.5 Statement of account - Execution slip - Invoice - Approval of operations 3 - FINANCIAL TERMS Value dating of operations 3.2 Statement of account - Interest and charges 3.3 Financial terms applicable to services and certain operating credits Services Discount Cash facilities 3.4 Annual Proportional Interest Rate Overdraft Discount Other credits 4 - TRANSFERRING THE ACCOUNT TO ANOTHER BRANCH OF THE BANK CLOSING THE ACCOUNT AND TERMINATING FACILITIES Term of the Agreement 5.2 Termination of facilities 5.3 Closing the current account 5.4 Joint provisions for closing accounts and terminating facilities 6 - GENERAL PROVISIONS APPLICABLE TO ALL ACCOUNTS AND SERVICES Changes to services and to the agreement 6.2 Business Affairs Centre and Customer Relations Department P.4 P.5 P.14 P.16 P.16 P.17
3 C O N T E N T S PART II INVESTMENT SERVICES DEFINITIONS Article 1 PURPOSE Article 2 CUSTOMER CATEGORISATION Article 3 SUITABILITY Article 4 ACCOUNT KEEPING CUSTODY Article 5 RECEIPT AND TRANSMISSION OF ORDERS Article 6 LCL s OBLIGATIONS Article 7 CUSTOMER OBLIGATIONS Article 8 SPECIFIC RULES FOR SECURITIES IN REGISTERED FORM Article 9 OPERATIONS ON REGULATED MARKETS INVOLVING SPECIFIC RISKS Article 10 COVER FOR ORDERS ON REGULATED FINANCIAL FUTURES MARKETS Article 11 SECURITIES GUARANTEE MECHANISM Article 12 DEFERRED SETTLEMENT SERVICE ORDERS (OSRD) Article 13 CUSTOMER INFORMATION Article 14 INCIDENTS ON THE ACCOUNT Article 15 RATES Article 16 LEGAL OBLIGATIONS Article 17 CLOSING THE ACCOUNT Appendix 1 - REGULATIONS APPLICABLE TO HOLDERS OF AMERICAN SECURITIES P.17 P.20 P.20 P.22 P.22 P.23 P.27 P.27 P.28 P.28 P.28 P.29 P.29 P.31 P.32 P.32 P.32 P.32 P.33 PART III JOINT PROVISIONS 1 - DISCLOSURE Personal information protection clause 1.2 Personal Data Protection 1.3 Recording of telephone conversations 1.4 Combat against money laundering, terrorist financing, corruption, bribery and fraud and compliance with embargoes 1.5 Electronic mail shots and prospecting 2 - GUARANTEE OF DEPOSITS GOVERNING LAW - COMPETENT JURISDICTION P.34 P.35 P.35
4 These general terms and conditions apply to any account opened by the Client with Crédit Lyonnais, unless expressly specified otherwise. This Agreement, including the general and particular terms of conditions relative to current accounts (part I), the provisions relative to investment services (part II) and joint provisions (part III) is hereinafter called the Agreement. The financial terms applicable to the most frequent operations are specified in the Rates applicable to the main operations by Corporate and Institutional Customers. The Agreement takes into account the provisions of the Monetary and Financial Code, notably including the provisions of articles L133-2 and L PART I CURRENT ACCOUNTS By opening a current account, its holder, hereinafter called "the Customer, and LE CREDIT LYONNAIS, hereinafter called the Bank or LCL, agree to place in a single account the amounts due under operations they may perform together. These are credits and debits to the account that guarantee each other and offset each other to form a balance which alone is payable. The sureties that guarantee the debts on a current account remain in force, but they cover the debit balance determined when the account is closed. The current account encompasses all obligations that exist and shall exist in the future between the Customer and LCL even though operations are posted in different accounts, opened or to be opened, including time accounts, except for those resulting from operations which are expressly excluded from the current account. The current account balance includes debts with a cause prior to its calculation but which, still contingent on that date, shall only accrue in the Bank s favour later. The balance on the statement of account is only final when all outstanding operations have been settled. 1 - OPENING THE ACCOUNT 1.1 Documents to be provided when opening the account When requesting the opening of an account, the Customer must provide LCL with: l a current abstract from the register of companies less than three months old, l a copy, duly certified by the legal representative of the account holding company s articles of incorporation and of any amendment thereto, l a copy, certified true by the legal representative of documents appointing the legal representatives of the account holding company, l the last three balance sheets certified by a chartered accountant or the legal representatives Legal representatives must provide proof of identity and residence at the same time as they give a specimen of their signature. Further documents or information may be requested, particularly for accounts opened by regulated professions or legal entities whose registered offices are located abroad. 1.2 Authorizations and powers of attorney Operations are performed under the signature of the account holder or that of its legal representatives. Authorized persons may appoint a representative by signing a power of attorney that, depending on their choice, enables the representative, who may have the power of delegation to perform all operations or some of them only. The representative shall leave a specimen signature at the same time as providing proof of identity. Where use of a facsimile signature is authorized by law, particularly for the endorsement of cheques and drafts, the Bank shall be notified thereof and the procedure shall have to be accepted by it. 4 The Customer may cancel any proxy subject to notifying the Bank thereof, in writing.
5 Even in the event their holders leave their functions, the signing powers granted by legal representatives remain valid vis-à-vis the Bank until the latter shall have been notified of their cancellation or amendment. 1.3 Information to be provided to the Bank The Customer shall notify the Bank as soon as possible of any change in the information provided at the time the account was opened (notably amendments to the Articles of Incorporation or changes of managers). Furthermore, every year it shall send to LCL its balance sheet and the notes to its financial statements, notably its statutory auditors reports or, in the absence of statutory auditor, its balance sheet prepared and signed by a chartered accountant as well as any other compulsory forecasts and accounting documents or documents that the Bank may require showing its financial situation. As part of its due diligence obligations as a financial organization, particularly in terms of money laundering, LCL may have to ask for explanations about certain operations, their origin and their beneficiary. The Customer undertakes to provide the Bank with all documents or information so required. 2 - OPERATION OF THE ACCOUNT The following provisions concern general rules applicable to operations and are not an unconditional offer of services. Some of them entail signing a specific agreement and/or are subject to conditions of performance specified in technical documents provided to the Customer. The Bank s responsibility in terms of collection times and of the time period for sending notices of dishonour is limited to cases where the usual deadlines are exceeded due to gross negligence. 2.1 Operations credited to the account Main operations The Bank accepts all means of payment to credit the account: l cash, l cheques, l drafts for which the Customer is beneficiary or holder, l transfers in the Customer s favour, l payments by bank card, l collection items issued by the Customer such as domestic direct debit (ADP), SEPA direct debit (SDD), interbank payment Order (TIP) and Telepayments. The Bank also receives payment instruments from overseas such as: l incoming transfers (payment Orders from abroad payable at the Bank), l collection of cheques payable abroad, l collection of payment instruments payable abroad, l documentary collections. Remittances are credited to the account and given value according to type in compliance with the provisions of paragraph 3.1 below. Credit to the account is "under usual reserves i.e., subject to actual collection by LCL of the amount of the remittance. The Bank reserves the right to select remittances. The checks it has to carry out under applicable regulations, particularly for cross-border fund flows, may lead it to defer the entry to the account. The time periods for the execution of collections under transfers are specified in the "Rates applicable to the main operations by Corporate and Institutional Customers". When the Bank accepts collections in connection with bank card Transactions, this service is subject to a specific agreement Dishonoured items Information The Customer is notified of dishonoured items within time frames and according to methods specific to each means of payment (entry on the statement or specific advice, telematic or electronic information). 5
6 Payability Any dishonoured item is due and payable forthwith. These items are charged to the current account, increased by rejection costs. When there are not sufficient funds in the current account, dishonoured drafts and cheques are, at the Bank's initiative, posted to a dishonoured item account excluded from the current account to enable the Bank to exercise its recourse. Unless otherwise agreed, the dishonoured items account shall serve interest in the same conditions as the current account. Return of drafts and cheques Dishonoured cheques are returned to the Customer, upon its written request, after a charge back to the current account except in the case of an interbank rejection for technical reasons. 2.2 Operations debited to the account Main operations The following items are debited to the account: l cash withdrawals ; l payments by the Bank for the Customer s account or to its order: l cheques, l domiciled drafts, l transfers, l payment by bank card, l domestic direct debit (ADP), SEPA direct debit (SDD), l interbank payment orders (TIP), l telepayments. l payments abroad such as: l transfers (international transfers), l cheques, l clean or documentary drafts, l documentary collections. l lastly, any and all amounts due to the Bank in connection with operations with the Customer such as interest, fees, costs, bank charges, repayment instalments, and reimbursements of all and any amounts paid by the Bank upon an order from the Client. These entries are assigned a value date according to type in compliance with the provisions of paragraph 3.1 below. The checks that the Bank is required to make under applicable laws and regulations, particularly cross-border fund flows, may lead it to defer the execution of an order. Execution times for transfers are specified in the "Rates applicable to the main operations by Corporate and Institutional Customers" Sufficient funds The Customer s orders are executed subject to there being sufficient funds available in the account. LCL may reduce or terminate without notice an overdraft it may have exceptionally authorized and the Customer must, when there are insufficient funds in its account for a certain operation, obtain the Bank s prior agreement, notably before issuing cheques. Failing this, the payment may be refused with all ensuing consequences. In this regard, it is specified that if a cheque is dishonoured due to insufficient funds in the Customer s account, the accountholder will be prohibited from issuing further cheques across the banking system. This prohibition will be recorded in Banque de France s files until the payment is regularized for a period of up to five years. When the Bank has to notify the Customer of an abnormal operation of its account, it may do so by mail sent to the Customer s last known address, by fax, telephone or to a machine the Client usually uses in its relations with the Bank. It is understood that this notice shall serve as a warning as to the consequences, referred to above, of insufficient funds Receiving the Customer s orders Generally, except when the Customer may, under a special agreement, send its Orders otherwise, LCL shall only accept original orders given in writing in paper form and bearing the handwritten signature of a duly empowered officer appearing on its face to be in conformity with the specimen in our books. 6 As a consequence of the foregoing, in the absence of instructions given in said form and unless otherwise agreed, the Bank may defer the execution of an order until it receives confirmation of the latter via any means it shall deem appropriate.
7 If LCL exceptionally accepts to perform an order sent by the Client in any other form, the Customer shall indemnify and release LCL of all consequences that may result from the use of any means other than the original paper document bearing a handwritten signature, particularly due to a technical failure, an error, insufficient or imprecise instructions such as abusive or fraudulent use of the means of transmission. The foregoing provisions also apply to any instruction letter from the Client ordering the Bank to issue or cause to be issued an off-b/s commitment. 2.3 Provisions relative to certain payment instruments Cheques Cheque forms These are issued crossed and non-endorsable except in favour of a bank or a similar institution. Even in the absence of a prohibition to issue cheques, the Bank is authorized under applicable laws and regulations to refuse to issue cheques other than those for withdrawing cash over the counter and to ask at any time the account holder to return all the blank cheque in its possession. It is the Customer's interest to ensure that cheque books are kept and used only by itself or its duly authorized representatives. Failing this, it shall be liable in case of fraudulent use. Stopping payment on cheques Under the provisions of article L of the Monetary and Financial Code, stopping payment on a cheque is strictly limited to the following cases: the cheque is lost or stolen, fraudulent use of the cheque, protection, court-ordered reorganization or liquidation of the holder of the cheque. The Customer shall be liable to criminal penalties if it stops payment on a cheque for any other motive. Any stop payment instruction must be confirmed forthwith to the Bank in writing. The Bank cannot refuse to pay a cheque when the stop payment order is based on a reason other than those specified above or until it has received a written confirmation specifying the reason for stopping payment Drafts The Bank shall pay drafts upon the Customer s formal instructions only. The Customer must give its instructions sufficiently ahead of the due date of the drafts, in writing or via any other mutually agreed means, notably including telematic or electronic means Payment services General Under the meaning of the Agreement. Payment services are those listed in article L314-1 of the Monetary and Financial Code. Payment services are mainly cash payment and withdrawal services, payments and withdrawals by bank card, payments and collections via transfers, direct debits, interbank payment orders (TIP) and telepayments. The providers of payment services are payment and credit institutions. Working Days are business days in the meaning of article L133-4 of the Monetary and Financial Code. The Bank s Business Days are any day from Monday to Friday, except for legal holidays, Good Friday and Boxing Day and for the days on which the interbank exchange systems are not operating. If an execution date falls on a day which is not a working day, it shall be deferred to the next following Working Day. For technical reasons the use of some services is subject to cut off times. The latter are specified, when applicable, in the terms and conditions relative to the payment services concerned. Regarding operations relative to payment services expressed in euros or in any other currency of a member state of the European Economic Area (EEA), the value date of operations debited to the account cannot be prior to the date of the debit to the account and the value date of operations credited to the account cannot be later than the Working Day on which the Bank was credited. The Exchange rate is determined by the Bank according to a daily fixing price procedure based on the Bank s overall position for the currency in question. The rate is recorded on the date of receipt of the order or, if necessary, the day after the date of receipt. The Customer accepts all foreign exchange risks due to variations in the rate of the currency in question. 7
8 SEPA (Single Euro Payments Area) includes the EU member countries plus Norway, Iceland, Liechtenstein, Switzerland and Monaco. SEPA means of payment (bank cards, transfers, direct debits) make it as easy to pay in one s home country as in the other SEPA countries. In application of European Regulation (EU) No. 260/2012, they will definitively replace domestic payment instruments in the different SEPA countries on 1 February Some payment instruments have built-in customized security systems using whatever technical device assigned by the Bank to the Customer for use in connection with a payment instrument. This system, which is specific to the Customer for identification purposes, is under the Customer s responsibility. The Customer shall take all reasonable steps to protect the security of its payment instrument. In case of loss, theft or misappropriation of any such payment instrument, the Customer must notify LCL thereof forthwith subject to a confirmation in writing. In case of an unauthorized or improper operation, the Customer must challenge it in writing without delay. Whatever the case, no such complaint shall be taken into account thirteen (13) months from the date on which the account is debited Over-the-counter operations The Customer may make cash payments and withdrawals over the Bank s counters. In case of such payments, the Bank checks that tendered cash is genuine and valid before posting it into the accounts. Cash payments may be made either at LCL branches providing such services or at dedicated ATMs using a card. Evidence of the deposit and of its amount results from the inventory made by the Bank or by its agents. The person who makes an over-the-counter cash payment or withdrawal at a branch or who asks for an express deposit card to make deposits at ATMs must previously show valid ID. Amounts paid in by the Customer are credited to its account the day on which the funds are credited to the Bank s account. Amounts withdrawn by the Customer are debited from its account the day on which the funds are debited from the Bank s account e-cash operations Operations performed with payment and withdrawal cards are subject to specific agreements between the Bank and the Customer, whether the latter acts as cardholder or merchant Transfers issued Conditions of execution of transfers Within the timeframe agreed upon below, the Bank shall execute transfer orders sent by the Customer either in writing or under mutually agreed technical conditions, IT, computer to computer or electronic form, stating the references of the debit account, the amount, the currency of payment and the banking particulars of the beneficiary or beneficiaries. Until 31 January 2014, banking particulars to be used are the International Bank Account Number (IBAN) and the bank s Bank Identifier Code (BIC). Starting 1 February 2014, transmission of the BIC code will become optional for national operators. However if the Customer provides a BIC for this type of operation, however, the Bank will consider that transmission of said BIC constitutes an express order without modification for executing the transfer. The Bank cannot be held responsible if the BIC supplied by the Customer is erroneous. The Bank shall process the Customer s transfer orders based on the banking particulars of the beneficiary as stated in the order and shall not have to check the beneficiary s banking ID. If these details are inaccurate, the Bank shall not be liable for the improper execution of the transfer. At the Customer s request, however, it shall endeavour to recover the funds involved in the payment. To execute a transfer, the Bank can go through another institution when it does not maintain a relationship with the beneficiary s payment service provider. If the Bank refuses to execute a transfer order, it shall notify the Customer thereof, giving the reason therefor, unless prohibited by law. This notice is given in writing in any form whatsoever or using the communication vectors agreed upon with the Customer. Transfer execution deadlines The timeframe for the execution of transfers starts to run upon receipt of the order until it is credited to the beneficiary s payment service provider. Regarding transfers sent in advance, the date of receipt of the order corresponds to the date of execution requested by the Customer. Transfer orders expressed in euros to a payment service provider in the European Economic Area are executed within a maximum of one (1) Working Day from their date of receipt by the Bank. This maximum execution the timeframe is extended to two (2) Working Days for orders sent in paper form. 8 Transfer orders within the European Economic Area expressed in the currency of one member state other than the euro shall be executed within a maximum of four (4) Working Days from their date of receipt.
9 Transfer orders in favour of a payment service provider outside the European Economic Area as well as those issued in a currency of a state outside the European Economic Area are executed within the best possible timeframe allowing for their special characteristics. The Bank may have to defer the transfer of funds to the receiving payment service providers as a consequence of the checks it is required to perform under the provisions of regulations in force, particularly concerning cross-border fund flows. The execution time stated in the Rates applicable to the main operations by Corporate and Institutional Customers means subsequent to such checks. The Bank is responsible for the proper execution of the transfer unless it can show evidence that the beneficiary s payment service provider has received the transfer amount within the above specified deadlines and excepting cases of force majeure. Cost sharing For transfers in favour of an account within the European Economic Area in euros or in the currency of an EEA member state which do not require a monetary conversion, LCL and the beneficiary s payment service provider each charge their own expenses (SHARE expense option) and it is not possible to give instructions to the contrary. Information Once these transfers have been made, the Bank provides the Customer with the following information: the name of beneficiary, the total amount of relative costs, the amount and the date of debit to the account and for cross-border transfers an execution slip, if appropriate, to specify the rate of exchange. Cancelling or putting transfer orders on hold Any transfer order may be cancelled or suspended by the Customer upon written request sent to the Bank and received by the latter at the latest the Working Day immediately before its scheduled execution date. After this date, the order is irrevocable Transfers received When receiving a transfer, the Bank is only required to check that the Customer s bank particulars are accurate. Received transfers expressed in the currency of a European Economic Area member state are available on the day of receipt by the Bank except for those involving a monetary conversion. The checks that the Bank must perform under the provisions of regulations in force, notably including for cross-border fund flows, may lead the Bank to defer crediting the amounts to the Customer. The execution time stated in the Rates applicable to the main operations by Corporate and Institutional Customers means subsequent to such checks. Transfers received in the currency of a country outside the European Economic Area are available within the best possible timeframe in view of their specific characteristics. The following information is provided in connection with these transfers: the issuer s name, relative costs, if appropriate, the amount and the date of credit to the account and for cross-border transfers an execution slip, if appropriate, to specify the rate of exchange. The Bank can reverse to the debit of the Client s account the amount of a received transfer when the latter has been issued or credited by error or when its amount is incorrect Direct debiting On the debit side Domestic direct debit (ADP) The Bank executes the direct debits initiated by issuers to which the Customer has previously given a duly completed debit authorization together with its bank particulars. Unless the amounts of the direct debit are fixed in advance, the issuer of the direct debit notifies the Customer ahead of the debit date of the amount thus to be debited. The Customer also authorizes LCL to pay any direct debit presented by a creditor who is the successor in interest of a creditor in whose favour it had issued its authorization, including following a merger or a partial sale of assets. In the event the Bank refuses to pay a direct debit, it notifies the Customer thereof giving the reasons therefor, unless forbidden by law. This notification is made via any means in writing or made available using the means of communication otherwise agreed with the Customer. Any payment order sent under a direct debit authorization may be revoked at the Customer s request in writing to be received by LCL three (3) Bank Business Days at the latest before the scheduled debit date. The Customer may also ask LCL to cancel its direct debit authorization in favour of a creditor. The latter shall then no longer be able to collect its direct debit orders. The Customer may ask LCL to repay any direct debit made under a valid direct debit authorization during the eight (8) weeks following the date of the debit to its account. This time period is extended to thirteen (13) months for an operation it has not authorized. The Bank shall have no liability whatsoever for the consequences thereof in the obligations between the Customer and the beneficiary of the direct debit. 9
10 If the dispute relates to an unauthorized operation, the Bank shall refuse to execute subsequent operations. In accordance with European Regulation (EU) No. 260/2012, national direct debit may no longer be used as of 1 February It will be replaced by SEPA direct debit, including for operations performed in France. SEPA Direct Debit (SDD) SDD is a direct debit in euros available within the SEPA. SDD requires prior signature by the debtor, here, the Customer, in favour of the creditor (Creditor) of a SDD authorization (the Mandate). By signing this Mandate, the Customer authorizes the Creditor to issue SDD debiting its account and the Bank to debit its account. The Creditor keeps in its records the duly signed Mandate which, unlike the domestic direct debit authorization (ADP), is not sent to LCL. The Creditor must provide the Customer with its SEPA Creditor Identifier (ICS) as well as the Unique Mandate Reference (RUM) being specified that this information alone enables the Bank to identify the SDD. The Creditor must notify the Customer in advance of each SDD specifying the amount and the due date in accordance with agreed upon conditions. SDD can be used for recurring as well as one-off payments. The Customer may refuse any charge of SDD to its account. In this case, it must notify LCL thereof, which shall systematically reject any SDD presented on its account. Any revocation of an SDD mandate must be sent by the Customer to the Creditor directly. Such revocation can also be notified to LCL in writing three (3) Bank Business Days at the latest before the date of debit. The provisions relative to the revocation of a payment order and to the time period for challenging the direct debit specified in the paragraph domestic direct debit (ADP) also apply to SDDs. Any request or complaint relative to a SDD sent to LCL must specify the relevant SEPA Creditor Identifier (ICS) and the Unique Mandate Reference (RUM). In the event the Bank refuses to pay a SDD, it notifies the Customer thereof giving the reasons therefor, unless forbidden by law. Such notification is sent via any means in writing or made available using the communication vectors otherwise agreed upon with the Customer. Migration from the domestic direct debit authorization (ADP) to SEPA direct debit (SDD) SEPA direct debit will replace domestic direct debit (ADP) no later than 1 February Any creditor who decides to use SEPA must previously notify the Customer thereof and provide its SEPA Creditor Identifier (ICS) and its Unique Mandate Reference or References (RUM) under the agreement or agreements entered into between them. The Customer may refuse to accept payment via SDD. In such cases, the Customer shall agree directly with the Creditor on the alternative method of payment. If the Customer accepts payment via a SDD, when it has already given the domestic direct debit authorization (ADP) on its account for the Creditor, it shall not have to sign a SDD authorization, as its acceptance of the domestic direct debit (ADP) is valid for the SEPA direct debit. Likewise, the Customer also benefits by the same principle for stop payment instructions previously sent to the Bank. As a consequence, it is not necessary to renew stop payment instructions sent prior to the migration. If a stop payment instruction had been given for a creditor with whom the Customer has entered into more than one contracts, any SDD in favour of said creditor shall be rejected. As a consequence thereof, to maintain a direct debit relative to a particular contract, the Customer must contact its LCL Corporate branch Direct debit Biller s collections In this situation, the Customer - who is the creditor - issues an order to charge the direct debit to the debtor s account (the Debtor ). Domestic Direct Debit (ADP) and SEPA direct debit are two automated means of payment available to collect recurring or one-off commercial invoices expressed in euros only. They leave the Customer the initiative of collecting its receivables from its debtor. ADP can be used between two accounts open within the French national territory and in the Principality of Monaco until 31 January Starting on 1 February 2014, only SEPA direct debit can be used between two accounts opened within the SEPA. Collections of Domestic Direct Debit (ADP) LCL collects direct debits in the Customer s favour. The use of direct debit is conditional upon the creditor having a single MNE Domestic Issuer Number per SIREN assigned by Banque de France at LCL s request.