The Collateral Access Agreement is essential in structured finance and secured lending transactions under German law, where assets are held by a custodian as security. This document is typically used when financial institutions require a formal framework for managing and accessing collateral assets held by a third-party custodian. It addresses the complex requirements of German banking regulations and financial services laws, including specific provisions required under the German Civil Code (BGB) and Banking Act (KWG). The agreement details operational procedures, access rights, security protocols, and reporting requirements, while ensuring compliance with German and EU financial collateral regulations. It is particularly crucial in scenarios involving multiple parties where clear guidelines for collateral management and access are necessary.
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1. Parties: Identification of all parties to the agreement - typically the collateral provider, secured party, and custodian
2. Background: Context of the agreement, including reference to related agreements and purpose of the collateral arrangement
3. Definitions: Detailed definitions of terms used throughout the agreement
4. Appointment of Custodian: Terms of custodian appointment and scope of authority
5. Access Rights: Specific rights and conditions for accessing the collateral
6. Security and Control: Provisions regarding the security and control of collateral
7. Instructions and Notifications: Procedures for giving instructions and required notifications
8. Representations and Warranties: Standard representations and warranties from all parties
9. Duties and Obligations: Specific duties and obligations of each party
10. Liability and Indemnification: Allocation of liability and indemnification provisions
11. Fees and Expenses: Payment terms for custodian services and related expenses
12. Term and Termination: Duration of agreement and termination provisions
13. Governing Law and Jurisdiction: Specification of German law as governing law and jurisdiction details
14. Miscellaneous: Standard boilerplate provisions including notices, amendments, and severability
1. Additional Secured Parties: Used when multiple secured parties need access to the collateral
2. Sub-Custodian Provisions: Required when sub-custodians may be appointed
3. Electronic Access Arrangements: Included when electronic access to collateral or systems is provided
4. Foreign Law Requirements: Required when collateral includes assets in other jurisdictions
5. Special Asset Provisions: Used when specific types of assets require special handling
6. Force Majeure: Detailed force majeure provisions beyond standard terms
7. Information Rights: Additional reporting and information access rights
8. Tax Provisions: Specific tax-related provisions when relevant to the collateral structure
1. Schedule 1 - Authorized Persons: List of individuals authorized to give instructions or access collateral
2. Schedule 2 - Operating Procedures: Detailed procedures for collateral access and management
3. Schedule 3 - Fee Schedule: Detailed breakdown of fees and charges
4. Schedule 4 - Form of Instructions: Standard forms for giving instructions
5. Schedule 5 - Notice Details: Contact details and notice requirements for all parties
6. Appendix A - Security Procedures: Detailed security protocols and procedures
7. Appendix B - Reporting Requirements: Forms and timing of required reports
8. Appendix C - Eligible Collateral: List and descriptions of eligible collateral types
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