GENERAL TERMS AND CONDITIONS OF USE OF THE FIDUCIARY SERVICE
Chapter I: Scope
Any client, whether a natural person and/or a legal entity, holding a French-law fiducie agreement with the firm (hereinafter the “Settlor” or the “Beneficiary ») accepts, without restriction or reservation and fully and irrevocably, these terms of use of the service as well as any future changes thereto, failing which its agreement may be terminated.
It is recalled that these terms are enforceable against any Settlor and/or any Beneficiary by the mere fact that they are permanently made available on the firm’s website and that a copy may be taken by printing, downloading and/or copying the present text (CJEU, Third Chamber, 21 May 2015, Case C‑322/14) which holds that “a communication by electronic means which makes it possible to record that agreement durably […] where that technique makes it possible to print and save the text of those terms before the conclusion of the contract.”
Chapter II: Guarantee Fund
In the course of its fiduciary activity, the Fiduciaire has decided, in order to strengthen the protection of the assets of the Settlors and the Beneficiaries, to establish an autonomous guarantee and performance fund (hereinafter « the Fiduciary Guarantee and Performance Fund » or « FGPF») subsidiary to the other banking and insurance guarantee funds already imposed under the regulations in force.
Art. 1: Conditions of access
The FGPF is open to any Settlor entrusting the Fiduciaire with assets to be placed under its management with a value of at least 500.000 euros net for a continuous period of at least eight (8) years.
Art.2: Management of the Fiduciary Guarantee and Performance Fund
The Fiduciary Guarantee and Performance Fund is managed under the sole authority of the Fiduciaire, which shall act at its discretion. On that basis, the Fiduciaire may carry out any reallocations it considers useful to the sound management of the FGPF in order to meet its objectives.
The Fiduciaire shall receive annual remuneration for the management of the Fiduciary Guarantee and Performance Fund, which shall be published each year on this website.
Art.3: Activation of the Fiduciary Guarantee
In the event of market underperformance (i), of insufficient performance (ii) and/or of a capital loss exceeding a threshold set each year by the Fiduciaire (iii), the latter may draw funds from the Fiduciary Guarantee and Performance Fund, within the limits of its capacity, in order to pay them to one or more Settlors and/or Beneficiary, over one or more years, so as to offset all or part of its capital loss(es).
This Guarantee shall be subsidiary, in that it may apply only in the absence of application of the other guarantee mechanisms provided for by the regulations in force, which are deemed to apply on a priority basis for the benefit of the Settlor(s) and/or the Beneficiary(ies).
Art. 4: Fiduciary Performance Bonus
A performance bonus (hereinafter « the Bonus ») may be paid to any Settlor and/or Beneficiary at the sole discretion of the Fiduciaire in order to enhance its return for one or more individual and/or successive years.
Art. 5: Principle of equitable treatment
The Fiduciaire undertakes that the Guarantee and Performance Fund shall be managed equitably as between all Settlors and/or Beneficiaries in a comparable situation during the same period and/or in the same market context.
Art. 6: Anti-abuse provisions
Save as otherwise provided in this article, a Settlor and/or a Beneficiary may not obtain a benefit arising under these fiduciary general terms and conditions which would otherwise be covered and/or conferred by the guarantee mechanisms inherent in the French-law fiducie (insurance for the account of whom it may concern, deposit guarantee, etc.), unless that Settlor and/or Beneficiary is a « qualified person », as defined in paragraph 2, on the date on which the benefit would be granted.
A Settlor and/or a Beneficiary is a qualified person on the date on which a benefit would otherwise be granted under these general terms and conditions if, on that date, that Settlor and/or that Beneficiary is:
a) a political subdivision or local authority of that State, or a public body or an agency of that State, that political subdivision or that local authority;
b) a company or an entity, if the principal class of its shares is regularly traded on one or more recognised stock exchanges;
c) a person, other than an individual, which:
(i) is a non-profit organisation,
(ii) is a recognised pension fund,
Chapter III: Liquidity Mechanism
Art.7: Redemption Fund
In order to contribute to the liquidity of the fiduciary assets, the Fiduciaire hereby establishes, either directly or through any third-party entity which it controls and which is dedicated to that purpose, a liquidity mechanism in favour of the Settlor(s) and/or the Beneficiary(ies), namely a redemption fund (hereinafter “the Redemption Fund” or “RF”) up to a maximum amount of 100 000 000 euros, without any further authorisation from the Settlor(s) and/or Beneficiary(ies) being required.
The cash allocated to the Redemption Fund is intended exclusively for the reimbursement of the Settlor(s) and/or Beneficiary(ies) who have submitted a withdrawal request which remains unsatisfied, provided that they expressly adhere to the Redemption Fund mechanism and to these general terms and conditions in their fiducie agreement(s) (the French-law fiducie). The drawing of the sums available in the Redemption Fund shall be the subject of a reasoned report by the Fiduciaire, brought beforehand to the attention of the Settlor(s) and/or Beneficiary(ies) and of the Bâtonnier, without any decision by the latter being required. This liquidity mechanism applies only to the assets comprising the Fiduciary Patrimony managed and offered by the Fiduciaire.
The assets comprising the Fiduciary Patrimony whose initial and/or subsequent allocation was carried out by and/or on the recommendation of a third-party financial adviser (CGP, CGPI, CIF, etc…) are not eligible for the Redemption Fund.
Art.8: Eligible fiducies
Only the Settlor(s) and/or Beneficiary(ies) whose withdrawal request has remained unsatisfied for at least one compensation period may be eligible, for all or part of their pending rights, for the Redemption Fund mechanism, up to the amount of its endowment. It is important to note that the Fiduciaire will not be able to honour the reimbursement request in whole or in part if the amount available in the redemption fund is insufficient.
Art.9: Implementation arrangements
In the event of a redemption and/or withdrawal request made by the Settlor(s) and/or the Beneficiary(ies) (hereinafter “the Request”) and on the express condition that this Request is duly justified by a vital financial imperative (e.g. medical treatment, funding of studies, renovation of a principal residence) by the Settlor(s) and/or the Beneficiary(ies), the Fiduciaire may redeem all or part of the securities comprising the Fiduciary Patrimony in order to offer the Settlor(s) and/or the Beneficiary(ies) additional liquidity.
Art.10: Amount of the exercise price
In the event that the Redemption Fund is effectively endowed, the Fiduciaire shall send to the eligible members, in the chronological order in which their withdrawal request was entered in the withdrawal register, a notification by email and, failing that, by ordinary post, informing them (i) of the possibility of obtaining the total or partial reimbursement of their pending rights by drawing on the Redemption Fund, and (ii) of the price at which the reimbursement of the rights concerned would be made.
The eligible fiducies shall have a period of fifteen (15) calendar days, from the date of dispatch of the notification issued by the Fiduciaire, in which to notify the latter of their express acceptance of the reimbursement of their rights at the stated reimbursement price.
Where the Redemption Fund mechanism is accepted by the Settlor(s) and/or the Beneficiary(ies), the withdrawal of the rights by drawing on the Redemption Fund shall take effect on the date on which the member’s positive reply is received by the Fiduciaire. The reimbursed rights shall be cancelled. The withdrawing Settlor(s) and/or Beneficiary(ies) shall cease to benefit from their rights to interim payments of dividends/interest/coupons/etc… as from the first day of the month of that effective date.
In the absence of a reply within the period of fifteen (15) calendar days, or in the event of a refusal, the Settlor(s) and/or Beneficiary(ies) concerned shall be deemed to maintain their withdrawal request at the same rank entered in the register provided for, pending corresponding subscriptions.
Art.11: Amount of the exercise price
Such redemption(s) shall be carried out, by decision of the Fiduciaire, by drawing on the Redemption Fund, provided that this fund is sufficiently endowed at the exercise date to satisfy the eligible Requests.
In that event, the reimbursement may not be made at a price higher than the last known realisation value, nor lower than that value reduced by 35% excluding tax (hereinafter “the Exercise Price”).
Art.12: Option right
Payment of the reimbursement value shall take place within a period of two (2) calendar months, depending on administrative constraints, as from the last day of the month in which the notification of express acceptance by the eligible Settlor(s) and/or Beneficiary(ies) of the proposal to reimburse their units was received by the Fiduciaire.
Art.13: Option right
The Settlor(s) and/or the Beneficiary(ies) shall have the choice of accepting or refusing the redemption offer at the price proposed by the Fiduciaire on behalf of the Redemption Fund.
They shall have a period of fifteen (15) days in which to communicate their reply to the Fiduciaire by registered letter with acknowledgement of receipt or by email with acknowledgement of receipt.
Art.14: Subsidiarity principle
The Settlor(s) and/or the Beneficiary(ies) are informed that the benefit of the Redemption Fund is reserved for, and subordinated to, the sole cases in which the statutory guarantee attached to each fiducie agreement entered into for the account of whom it may concern would not apply (hereinafter “the Subsidiarity Principle »).
Any Settlor and/or Beneficiary already receiving, through their insurance policy for the account of whom it may concern, an indemnity of any nature and/or amount whatsoever may not claim the benefit of the subsidiary Redemption Fund mechanism.
Chapter III: Mechanism for the protection of the Fiduciary Patrimony
Art.15: Purpose and scope
The Fiduciaire may, on the proposal and/or recommendation of the management companies and/or of the insurance company and/or of the protector, or after the opinion of the Bâtonnier, in respect of all or a subset of the persons referred to and provided for in the fiduciary contract (in points 1° to 5° of B of I of the same article L. 612-2), in order to prevent risks representing a serious and clearly established threat to the financial position of all or of a significant subset of those persons party to the fiduciary contract, take the following protective measures:
a) Temporarily limit the carrying out of certain transactions or activities, including the acceptance of premiums or payments;
b) Temporarily restrict the free disposal of all or part of the assets;
c) Temporarily limit, for all or part of the portfolio, the payment of surrender values;
d) Temporarily delay or limit, for all or part of the portfolio, the right to carry out arbitrages or the payment of advances on the contract;
e) Temporarily limit the distribution of a dividend to shareholders, of remuneration on mutual or joint certificates or of remuneration on membership shares to members.
The Fiduciaire shall decide on the measures provided for above for a maximum period of six months, which may be renewed if the conditions that justified the implementation of those measures have not ceased, after consulting the same bodies referred to above and the Beneficiary(ies). The measures provided for above may not be maintained for more than twelve consecutive months.
In its decision, the Fiduciaire shall ensure the protection of financial stability and of the interests of the Fiduciary Patrimony and of the Beneficiaries.
Chapter IV: Funds on deposit and awaiting instructions
Art.16: Purpose and scope
The Settlor(s) and the Beneficiary(ies) are informed of and accept, without restriction or reservation, that all funds placed in fiducie (the French-law fiducie) and awaiting instructions (hereinafter the “Pending Funds“), specific instructions given by the Settlor(s) and the Beneficiary(ies), may be placed by the Fiduciaire in various financial products liable to produce interest, it being specified that the fiduciary capital paid in by the Settlor(s) shall remain guaranteed for as long as it is held in the fiduciary account. The interest so produced shall remain vested in the Fiduciaire in order to cover part of the operating costs of the fiduciary service (i) and to contribute to the endowment of the Reimbursement Fund (ii), precisely in the interest of the Settlor(s) and/or the Beneficiary(ies).
Pending Funds are deemed to be all financial assets deposited by the Settlor(s) and the Beneficiary(ies) in the fiduciary account which are devoid of any specific investment instruction and/or awaiting effective execution on the desired and/or possible date of the specific instruction.
Art.17: Allocation to the Reimbursement Fund
The interest, dividends, coupons or other income generated during this period may be allocated, at the Fiduciaire’s choice, to covering the operating costs of the fiduciary service or to the Reimbursement Fund.
Art.18: Allocation to the operating costs of the Fiduciary service
The interest, dividends, coupons or other income generated during this period may be allocated, at the Fiduciaire’s choice, to covering the operating costs of the fiduciary service or to the operating costs of the fiduciary service in order to cover, in particular but without this list being exhaustive: bank charges, brokerage fees, order execution fees, custody fees, account-keeping and/or administrative fees, etc…
Chapter V: Miscellaneous
Art.19: Adherence to these terms and conditions
These general terms and conditions form an indivisible whole with the specific terms of each fiducie agreement (the French-law fiducie) administered by the Fiduciaire, and the capacity of Settlor and/or Beneficiary entails full adherence to and acceptance of these terms, both in the form in force at the date of signature of the agreement and in all their subsequent amendments.
The Settlor(s) and/or the Beneficiary(ies) may freely terminate their agreement within 30 days following any amendment to these general terms and conditions, by simple notification addressed to the Fiduciaire. Failing termination within the aforementioned 30-day period, the amended general terms and conditions shall be deemed accepted and immediately enforceable against the Settlor(s) and/or the Beneficiary(ies) as from their date of entry into force and publication.
Art.20: Commissions
The Settlor(s) and/or the Beneficiary(ies) are informed, and accept without restriction or reservation, that the Fiduciaire may receive, on a one-off and/or recurring basis, commissions from the Management Companies in respect of subscriptions made. These commissions are intended to (i) reduce the amount of the fiduciary fees charged to the fiducies by covering part of the operating costs of the fiduciary department and (ii) contribute to the endowment of the Redemption and Performance Fund. It is nevertheless specified that these commissions will never be levied on, nor ever derive from, the Fiduciary Patrimony, but will be deducted from the costs, commissions and/or fees lawfully invoiced by those Management Companies under their contractual documentation.
Chapter VI: Governing law
These terms and conditions are governed by Luxembourg law and the courts of the country of residence of the Fiduciaire shall have sole jurisdiction over any interpretation and/or application of these general terms and conditions.