A Collateral Access Agreement is essential in secured financing transactions where collateral is held by a third-party custodian. This document, governed by Hong Kong law, is commonly used in financial transactions where a secured party requires assured access to collateral while the assets remain in the custody of a neutral third party. The agreement becomes particularly important in complex financial arrangements, including secured lending, derivatives transactions, and structured finance deals. It outlines specific circumstances under which the secured party can access the collateral, the custodian's obligations in maintaining and protecting the assets, and the procedures for exercising rights over the collateral. The document must comply with Hong Kong's regulatory framework, particularly the Securities and Futures Ordinance and related regulations, while providing practical operational procedures for all parties involved.
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1. Parties: Identification of all parties to the agreement, including the collateral provider, secured party, and custodian/depositary
2. Background: Context of the agreement, including reference to the primary security agreement and the purpose of the collateral access arrangement
3. Definitions: Definitions of key terms used throughout the agreement, including 'Collateral', 'Security Interest', 'Event of Default', etc.
4. Appointment and Authority: Appointment of the custodian/depositary and scope of their authority regarding the collateral
5. Collateral Requirements: Description of the collateral, maintenance requirements, and any eligibility criteria
6. Access Rights: Terms governing when and how the secured party can access the collateral
7. Notice Requirements: Procedures for giving notices regarding access to collateral, defaults, or other significant events
8. Custodian's Obligations: Duties and responsibilities of the custodian in maintaining and protecting the collateral
9. Representations and Warranties: Standard representations and warranties from all parties
10. Fees and Expenses: Provisions regarding custodian fees and allocation of expenses
11. Liability and Indemnification: Limitations of liability and indemnification obligations
12. Term and Termination: Duration of the agreement and termination provisions
13. Governing Law and Jurisdiction: Specification of Hong Kong law as governing law and jurisdiction for disputes
14. General Provisions: Standard boilerplate provisions including notices, amendments, and assignment
1. Security Interest Provisions: Detailed provisions regarding the creation and perfection of security interests, used when the agreement combines collateral access with security creation
2. Control Agreement Provisions: Specific provisions establishing control over financial assets, used for financial collateral arrangements
3. Voting Rights: Provisions governing voting rights for securities held as collateral, included when the collateral includes corporate securities
4. Income and Distributions: Provisions governing the treatment of dividends, interest, or other income from the collateral, used when income-generating assets are involved
5. Substitution Rights: Provisions allowing for substitution of collateral, included when the collateral provider needs flexibility
6. Multiple Currency Provisions: Provisions dealing with multiple currencies, included when the collateral involves different currencies
7. Regulatory Compliance: Additional provisions addressing specific regulatory requirements, included when parties are regulated entities
1. Schedule 1 - Collateral Description: Detailed description of the collateral assets covered by the agreement
2. Schedule 2 - Authorized Persons: List of persons authorized to give instructions regarding the collateral
3. Schedule 3 - Fee Schedule: Detailed breakdown of custodian fees and charges
4. Schedule 4 - Notice Details: Contact information and notice requirements for all parties
5. Schedule 5 - Operating Procedures: Detailed procedures for collateral movements, valuations, and reporting
6. Appendix A - Form of Notice: Standard forms for various notices required under the agreement
7. Appendix B - Reporting Requirements: Templates and requirements for regular reporting on collateral
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