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BARCLAYS BANK PLC

 

 

 

FLAGSTONE CAPITAL MANAGEMENT LUXEMBOURG SICAF - FIS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ACCOUNT CONTROL AGREEMENT

 

 

 

 

 

 

 

 


 

 

ACCOUNT CONTROL AGREEMENT

 

This Account Control Agreement (the “Agreement”) is dated as of 1 September 2011 and is entered into by:

 

BARCLAYS BANK PLC , a public limited company organised and existing under the laws of England and Wales (the “ Secured Party ”);

 

FLAGSTONE CAPITAL MANAGEMENT LUXEMBOURG SICAF - FIS, a public limited company ( société anonyme ) incorporated under the laws of Luxembourg, qualifying as a specialised investment fund ( fonds d’investissement spécialisé ), having its registered office at 37, Val St André, L-1128 Luxembourg, and registered with the Luxembourg trade and companies register under number B 141.810 (“Customer”) ; and

 

J.P. MORGAN BANK LUXEMBOURG S.A. , a public limited liability company ( société anonyme ) incorporated under the laws of Luxembourg, having its registered office at 6, Route de Trèves, L-2633 Sennigerberg, and registered with the Luxembourg trade and companies register under number B 109.58.   (the “ Bank ”),

 

 

 

Each of the Secured Party, Customer and the Bank hereby agree as follows:

 

 

 

PRELIMINARY STATEMENTS

 

 

 

1.  

The Customer is a Specialised Investment Fund organised under the Luxembourg law of 13 February 2007 relating to specialised investment funds, as amended (“ FIS law ”).

 

2.  

The Bank acts as depositary to the Customers in accordance with FIS law and qualifies as a financial sector professional  (professionnel de la finance) in accordance with the Luxembourg law of 5 August 2005 on Financial Collateral Arrangements (“ Collateral law ”).

 

 

 

3.  

The Secured Party and the Customer are to enter into, on or about the date hereof, a Luxembourg Account Pledge Agreement (such agreement including its schedules executed by the Bank the “ Account Pledge Agreement ”) providing for a first-ranking pledge in favour of the Secured Party over the Securities Accounts (as defined below).

 

4.  

The Secured Party, the Customer and the Bank , are entering into this Agreement to provide for the control of the Securities Accounts, it being understood that any and all security interests over the Securities Accounts (as defined below) granted by  the Customer to the Bank shall be created, perfected and enforced by the Secured Party under and in accordance with the Account Pledge Agreement and its schedules. It is understood that the Bank is neither subject to the terms of the Account Pledge Agreement  nor has any responsibility with respect to the validity, perfection or enforcement  (other than as set out in this Agreement) of the security interest created therein.

 

 

 

 

 

DEFINITIONS

 

As used herein the following terms shall have the following meanings:

 

Business Day

means a day (other than a Saturday or Sunday) on which the banks are generally open for business on the same business day in London, Luxembourg and New York for the transaction of business of the nature required by this Agreement.

 

 “ Collateral Law

shall mean the Luxembourg law of 5 August 2005 on Financial Collateral Arrangements, as amended.

 

Custody Agreement

means the Global Custody agreement between the Bank and the Customer dated September 15, 2008.

 

 “ Financial Instruments

shall have the meaning ascribed to the term instruments financiers in Article 1 (8) of the Collateral Law.

 

FIS law

shall have the meaning given to it in the Preliminary Statements.

 

Indemnitees

shall have the meaning given to it in Section 8.

 

Instruction”

shall mean any instructions other than a Payment Instruction.

 

 “ Losses

shall have the meaning given to it in Section 8.

 

Notice of Exclusive Control

shall have the meaning given to it in Section 4.

 

 “ Payment Instruction

shall mean a notification communicated to the Bank directing transfer or redemption of Financial Instruments to which the Secured Party has a security interest.

 

Pledged Collateral

shall mean the pledged assets granted by the Customer to the Secured Party defined in Schedule 1 of the Account Pledge Agreement including  any cash, time deposits or other cash credit balance which may be maintained in the Securities Accounts.

 

Secured Party Order

shall have the meaning given to it in Section 4.

 

 “ Securities Accounts

shall mean the securities accounts listed at Schedule 1

 

 

 

TERMS

 

Section 1.                        The Securities Accounts.

 

The accounts are  Securities Accounts. Assets subject to security interest currently maintained in the Securities Accounts do not reflect any  Pledged  Collateral  not held in the form of 1) cash 2) depository eligible securities held in an account in the name of the Bank at the  relevant depository. Should the Customer elect to pledge collateral other than the afore-mentioned, the Bank shall make no assertion as to the effective control or security interest of such assets. To the Bank’s knowledge, the security entitlements arising out of the Pledged Collateral carried in the Securities Accounts are valid and legally binding obligations of the Bank, and except for the claims and interest of the Secured Party and the Customer in the Securities Accounts (subject to any claim in favour of the Bank permitted under Section 2 hereof), the Bank has not been notified in writing of any claim to or interest in the Securities Accounts.

 

 

 

Section 2.                        Pledged Collateral.

 

The Secured Party and the Customer agree that all assets that are transferred into the Securities Accounts as Pledged Collateral shall be fully paid for, and that all trade settlements of transactions for such securities shall be completed prior to transfer of such securities into the Securities Accounts as Pledged Collateral. The Customer and the Secured Party acknowledge and agree that neither the Bank nor its agents shall be required to advance cash, credit, margin or other investments to, for or on behalf of any party, in the Securities Accounts.  The Bank shall be entitled to reverse any cash credit previously made to the Securities Accounts due to error or the non−receipt of any income or divided distribution

 

Section 3.                        Waiver of rights and Payments Instructions.

 

The Bank hereby acknowledges the first ranking security interest granted to the Secured Party by the Customer over the Pledged Collateral in the Securities Accounts. The Bank hereby subordinates all liens, encumbrances, claims and rights of set-off it may have against the Securities Accounts or any Pledged Collateral carried in the Securities Accounts

 

The Bank will not agree with any third party to comply with Payment Instructions concerning the Securities Accounts originated by such third party without the prior written consent of the Secured Party and the Customer.

 

For the avoidance of doubt, the Customer at all times remains subject to Bank's continuing security interest in and lien on the assets in any Customer custody account (other than a Securities Account) established under the Custody Agreement as security for the payment of any liabilities or Losses that may be imposed on  incurred by or asserted against the Bank arising out of or in connection with the Bank’s performance  under this Agreement.

 

 

 

Section 4.                        Control.

 

The Bank agrees that  if at any time it receives from the Secured Party any Payment Instruction or other directives with respect to the Securities Accounts and the Pledged Collateral (each such Payment Instruction or directive, a “a Secured Party Order”) or  upon the deliv


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