ACCOUNT CONTROL AGREEMENTAccount Control Agreement |
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ALLIED WORLD ASSURANCE CO HOLDINGS LTD | BARCLAYS BANK PLC | MELLON BANK, N.A. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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<PAGE>
[CLIFFORD
CHANCE LOGO]
EXHIBIT 10.36
EXECUTION COPY
BARCLAYS BANK PLC
AS
SECURED PARTY
ALLIED WORLD
ASSURANCE COMPANY, LTD
AS
PLEDGOR
MELLON
BANK, N.A.
AS BANK
---------------------------
ACCOUNT
CONTROL AGREEMENT
---------------------------
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
CLAUSE
PAGE
<S>
<C>
1. The
Account............................................... 3
2. Control By Secured Party.................................. 3
3. Pledgor's Rights In
Account...............................
3
4. Priority Of Secured Party's Security
Interest............. 6
5. Statements, Confirmations And Notices
Of Adverse Claims... 6
6. Bank's Responsibility..................................... 6
7.
Indemnity................................................. 7
8. Termination;
Survival..................................... 7
9. Governing
Law............................................. 8
10. Entire Agreement.......................................... 8
11. Amendments................................................ 8
12. Severability.............................................. 8
13. Successors And Assigns.................................... 8
14. Notices................................................... 8
15. Counterparts.............................................. 8
16. Waiver Of Jury Trial...................................... 8
17. Representations........................................... 9
EXHIBIT A.....................................................
EXHIBIT B.....................................................
Schedule 1....................................................
</TABLE>
<PAGE>
THIS AGREEMENT dated as of 31 December 2003
BETWEEN
(1) BARCLAYS BANK PLC, as Secured
Party;
(2) ALLIED WORLD ASSURANCE COMPANY,
LTD, as Pledgor; and
(3) MELLON BANK, N.A., as Bank
BACKGROUND
(A) Pledgor has granted Secured Party a
security interest in the financial
assets in the securities account
identified in Schedule 1 (the "ACCOUNT"),
maintained by Bank for Pledgor,
(including any security entitlement) and
in the Account.
(B) The parties are entering into this
agreement to provide for the control of
the Account as a means to perfect
the security interest of Secured Party.
Bank has no responsibility to
Secured Party in respect to the validity or
perfection of such security
interest otherwise than to act in accordance
with the terms and conditions of
this Agreement.
1. THE ACCOUNT
Bank represents and warrants to
Secured Party that Bank maintains the
Account. Bank represents and
warrants that except for the claim and
interest of Pledgor and Secured
Party, or as provided in Clause 4 of this
Agreement, Bank does not know of
any claim to or interest in the Account
or any financial assets credited
thereto. Bank, Pledgor and Secured Party
agree that the Account is a
securities account ("SECURITIES ACCOUNT") as
that term is defined in Section
8-501(a) of the Uniform Commercial Code as
in effect from time to time in the
State of New York (the "NYUCC"). Bank,
Pledgor and Secured Party agree
that each item of property (whether
investment property, financial
asset, security, instrument or cash)
credited to the Account shall be
treated as a financial asset ("FINANCIAL
ASSET") within the meaning of
Section 8-102(a)(9) of the NYUCC.
2. CONTROL BY SECURED PARTY
Bank will comply with all
notifications it receives directing it to
transfer or redeem any financial
assets credited to the Account (each an
entitlement order
("ENTITLEMENT ORDER") as defined in Section 8-102(a)(8)
of the NYUCC) originated by Secured
Party and shall otherwise treat
Secured Party as entitled to
exercise the rights in respect of any
financial asset credited to the
Account without further consent by
Pledgor.
3. PLEDGOR'S RIGHTS IN ACCOUNT
Subject to this Clause 3, until
Bank receives an entitlement order from
the Secured Party, Bank may accept
and comply with any entitlement order
from Pledgor with regard to the
Account or any financial asset as follows:
-3-
<PAGE>
3.1.1 Until Bank receives an
entitlement order from Secured Party, Bank
shall distribute to Pledgor
all cash distributions received in
regard to financial assets in
the Account. Cash distributions do not
include any principal
received upon redemption or maturity of a
financial asset, and any such
cash will be held for the benefit of
Secured Party.
3.1.2 Pledgor shall not direct Bank
to release any of the financial assets
in the Account or to close
the Account and Bank agrees that it will
not release any of the
financial assets in the Account or close the
Account without Secured Party's
consent. For this purpose the term
"release" shall be
broadly construed to include release for any
purpose, including (without
limitation) release for settlement of a
sale, release for the
purposes of substituting new financial assets,
release "free"
without consideration and any other manner of leaving
the Account. Secured Party
will consent to the release of the
financial assets provided
that with respect to such financial
assets, the following procedure is adhered
to:
(a) Pledgor will determine (the
"DETERMINATION") that the
financial assets
remaining in the Account will be equal to or
exceed the required
Adjusted Collateral Value (as more
specifically defined
and described in a Credit Agreement dated
as of 31 December 2003
between Pledgor and Secured Party) (the
"REQUIRED ACCOUNT
VALUE") and to determine this shall
diligently and in good faith:
(i) determine that the financial asset is
eligible as
collateral as
specified in Exhibit A hereto; and
(ii) use the mark-to-market value provided by
pricing
services used by
Bank in connection with the valuation
of financial
assets under similar acco






