EXHIBIT 10.03
SECURITIES ACCOUNT CONTROL AGREEMENT
SECURITIES ACCOUNT CONTROL AGREEMENT dated as of May 1, 2000 among
XXXXXX XXXXXXX XXXX XXXXXX CHARTER MILLBURN L.P. (the "Lien Grantor"), XXXXXX
XXXXXXX & CO. INCORPORATED (the "Secured Party"), and XXXX XXXXXX XXXXXXXX INC.
(the "Securities Intermediary"). All references herein to the "UCC" refer to the
Uniform Commercial Code as in effect from time to time in [the State of New
York]. Terms defined in the UCC have the same meanings when used herein.
W I T N E S S E T H :
WHEREAS, the Lien Grantor is the entitlement holder with respect to the
Account (as defined below);
WHEREAS, the Lien Grantor pursuant to Section 6(f) of a Commodity Futures
Customer Agreement dated as of November 6, 2000 (the "Customer Agreement") has
granted to the Secured Party a continuing security interest (the "Security
Interest") in all right, title and interest of the Lien Grantor in, to and under
the Account, all financial assets credited thereto and all security entitlements
in respect thereof, whether now owned or existing or hereafter acquired or
arising; and
WHEREAS, the parties hereto are entering into this Agreement in order to
perfect the Security Interest in the Account, all financial assets from time to
time credited thereto and all security entitlements in respect thereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. Establishment of Account. The Securities Intermediary confirms
that:
(a) the Securities Intermediary has established the account numbers
listed on the attached Appendix A (which Appendix may be amended in writing by
the parties from time to time) in the name of "Xxxxxx Xxxxxxx Xxxx Xxxxxx
Charter Millburn L.P." (such account and any successor account, the "Account"),
(b) the Account is a "securities account" as defined in Section
8-501 of the UCC,
(c) the Securities Intermediary is acting as a "securities
intermediary" (as defined in Section 8-102 of the UCC) in respect of the
Account,
(d) the Securities Intermediary shall, subject to the terms of this
Agreement, treat the Lien Grantor as entitled to exercise the rights that
comprise all financial assets from time to time credited to the Account,
(e) all property delivered to the Securities Intermediary by or on
behalf of the Lien Grantor for credit to the Account will be promptly credited
to the Account, and
(f) all financial assets (except cash) credited to the Account will
be registered in the name of the Securities Intermediary, indorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will any
financial asset credited to the Account be registered in the name of the Lien
Grantor, payable to the order of the Lien Grantor or specially indorsed to the
Lien Grantor unless such financial asset has been further indorsed to the
Securities Intermediary or in blank.
2. "Financial Assets" Election. The parties hereto agree that each
item of property (whether investment property, financial asset, security,
instrument, cash or other property) credited to the Account shall be treated as
a "financial asset" within the meaning of Sections 8-102(a)(9) and 8-103 of the
UCC.
3. Entitlement Orders. The Securities Intermediary agrees to comply
with any "entitlement order" (as defined in Section 8-102 of the UCC) originated
by the Secured Party and relating to the Account or any financial asset credited
thereto without further consent by the Lien Grantor or any other person. The
Lien Grantor consents to the foregoing agreement by the Securities Intermediary.
4. Choice of Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York. The State of New York
shall be deemed to be the securities intermediary's jurisdiction with respect to
the Account, all financial assets credited thereto and all security entitlements
in respect thereof for purposes of the UCC (including, without limitation,
Section 8-110 thereof).
5. Amendments. No amendment or modification of this Agreement or
waiver of any right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all the parties hereto.
6. Notice of Adverse Claims. Except for the claims and interests of
the Secured Party and the Lien Grantor, and security interests in favor of the
Securities Intermediary, the Securities Intermediary does not know of any claim
to, or interest in, the Account, any financial asset credited thereto or any
security entitlement in respect thereof. If any person other than the Lien
Grantor, the Secured Party or the Securities Intermediary asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment,
attachment, execution or similar process) against the Account, any financial
asset credited thereto or any security entitlement in respect thereof, the
Securities Intermediary will promptly notify the Secured Party and the Lien
Grantor thereof.
7. Maintenance of Account. In addition to, and not in lieu of, the
obligation of the Securities Intermediary to honor entitlement orders as agreed
in Section 3 hereof, the Securities Intermediary agrees to maintain the Account
as follows:
(a) Lien Grantor Entitlement Orders; Notice of Exclusive Control. So
long as the Securities Intermediary has not received a Notice of Exclusive
Control (as defined below), the Securities Intermediary may, subject to
paragraph (ii) below, comply with entitlement orders of the Lien Grantor or any
duly authorized agent of the Lien Grantor in respect of the Account and any or
all financial assets credited thereto. After the Securities Intermediary
receives a written notice from the Secured Party that it is exercising exclusive
control over the Account (a "Notice of Exclusive Control"), the Securities
Intermediary will cease complying with entitlement orders of the Lien Grantor
and any of its agents.
(b) Limits on Free Deliveries From Account. Notwithstanding the
provisions of paragraph (i) above, the Securities Intermediary shall not,
without specific prior written consent of the Secured Party:
(i) accept or comply with any entitlement order from the Lien
Grantor, or any agent of the Lien Grantor, withdrawing from the Account,
or making a free delivery of, any financial asset credited to the Account,
(ii) deliver any such financial asset to the Lien Grantor or
(iii) pay to the Lien Grantor any credit balance or other cash
amount credited to the Account.
provided that, until the Securities Intermediary receives a Notice of Exclusive
Control, the Securities Intermediary may pay to the Lien Grantor amounts
sufficient to pay all fees and expenses of, and to fund all redemptions from,
the Lien Grantor in the ordinary course of business.
(c) Voting Rights. Until the Securities Intermediary receives a
Notice of Exclusive Control, the Lien Grantor shall be entitled to direct the
Securities Intermediary with respect to the voting of any financial assets
credited to the Account.
(d) Statements and Confirmations. The Securities Intermediary will
promptly send copies of all statements, confirmations and other correspondence
concerning the Account and/or any financial assets credited thereto
simultaneously to each of the Lien Grantor and the Secured Party at their
respective addresses specified in Section 12 hereof.
(e) (v) Tax Reporting. All items of income, gain, expense and loss
recognized in the Account or in respect of any financial assets credited thereto
shall be reported to the Internal Revenue Service and all state and local taxing
authorities under the name and taxpayer identification number of the Lien
Grantor.
8. Representations, Warranties and Covenants of the Securities
Intermediary. The Securities Intermediary makes the following representations,
warranties and covenants:
(a) The Account has been established as set forth in Section 1 above
and will be maintained in the manner set forth herein until this Agreement is
terminated. The Securities Intermediary will not change the name or account
number of the Account without the prior written consent of the Secured Party.
(b) No financial asset credited to the Account is or will be
registered in the name of the Lien Grantor, payable to the order of the Lien
Grantor, or specially indorsed to the Lien Grantor, unless such financial asset
has been further indorsed by the Lien Grantor to the Securities Intermediary or
in blank.
(c) This Agreement is a valid and binding agreement of the
Securities Intermediary enforceable in accordance with its terms.
(d) The Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with any person
(other than the Secured Party) relating to the Account and/or any financial
asset credited thereto pursuant to which it has agreed, or will agree, to comply
with entitlement orders of such person. The Securities Intermediary has not
entered into any other agreement with the Lien Grantor or the Secured Party
purporting to limit or condition the obligation of the Securities Intermediary
to comply with entitlement orders as agreed in Section 3 hereof.
9. Successors. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors and
assigns.
10. Notices. Each notice, request or other communication given to
any party hereunder shall be in writing (which term includes facsimile or other
electronic transmission) and shall be effective (i) when delivered to such party
at its address specified below, (ii) when sent to such party by facsimile or
other electronic transmission, addressed to it at its facsimile number or
electronic address specified below, and such party sends back an electronic
confirmation of receipt or (iii) ten days after being sent to such party by
certified or registered United States mail, addressed to it at its address
specified below, with first class or airmail postage prepaid:
Lien Grantor: Xxxxxx Xxxxxxx Xxxx Xxxxxx
Charter Millburn L.P.
c/o Demeter Management Corporation, General
Partner
0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Secured Party: Xxxxxx Xxxxxxx & Co. Incorporated
0 Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Commodity Operations Manager
Securities Intermediary: Xxxx Xxxxxx Xxxxxxxx Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Managed Futures Department
Any party may change its address, facsimile number and/or e-mail address for
purposes of this Section by giving notice of such change to the other parties in
the manner specified above.
11. Termination. The rights and powers granted herein to the Secured
Party (i) have been granted in order to perfect the Security Interest, (ii) are
powers coupled with an interest and (iii) will not be affected by any bankruptcy
of the Lien Grantor or any lapse of time. The obligations of the Securities
Intermediary hereunder shall continue in effect until the Secured Party has
notified the Securities Intermediary in writing that the Transaction Lien has
been terminated pursuant to the terms of the Security Agreement.
XXXXXX XXXXXXX XXXX XXXXXX
CHARTER MILLBURN X.X.
Xxxxxxx Management Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chairman
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ W. Xxxxxx Xxxxx
--------------------------------
Name: W. Xxxxxx Xxxxx
Title:
XXXX XXXXXX XXXXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT A
[Letterhead of Secured Party]_______
[Date]
[Name and Address of Securities Intermediary]
Attention: _________________________
Re: Notice of Exclusive Control
---------------------------
Ladies and Gentlemen:
As referenced in the Securities Account Control Agreement dated as of May
1, 2000 among Xxxxxx Xxxxxxx Xxxx Xxxxxx Charter Millburn L.P. (the "Lien
Grantor"), us and you (a copy of which is attached), we notify you that we will
hereafter exercise exclusive control over securities account number __________
(the "Account"), all financial assets from time to time credited thereto and all
security entitlements in respect thereof. You are instructed not to accept any
directions, instructions or entitlement orders with respect to the Account or
the financial assets credited thereto from the Lien Grantor or any of its agents
unless otherwise ordered by a court of competent jurisdiction.
You are instructed to deliver a copy of this notice by facsimile
transmission to [name of Lien Grantor].
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------------
Title:
cc: Xxxxxx Xxxxxxx Xxxx Xxxxxx Charter Millburn L.P.
Appendix A
Account numbers established by the Securities Intermediary for Xxxxxx Xxxxxxx
Xxxx Xxxxxx Charter Millburn L.P.
1. 779-009043
