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
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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 ”).
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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 ”).
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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).
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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.
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As used herein
the following terms shall have the following meanings:
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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.
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shall mean the
Luxembourg law of 5 August 2005 on Financial Collateral
Arrangements, as amended.
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means the
Global Custody agreement between the Bank and the Customer dated
September 15, 2008.
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“
Financial Instruments ”
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shall have the
meaning ascribed to the term instruments financiers in
Article 1 (8) of the Collateral Law.
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shall have the
meaning given to it in the Preliminary Statements.
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shall have the
meaning given to it in Section 8.
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shall mean any
instructions other than a Payment Instruction.
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shall have the
meaning given to it in Section 8.
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“
Notice of Exclusive Control ”
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shall have the
meaning given to it in Section 4.
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shall mean a
notification communicated to the Bank directing transfer or
redemption of Financial Instruments to which the Secured Party has
a security interest.
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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.
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shall have the
meaning given to it in Section 4.
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shall mean the
securities accounts listed at Schedule 1
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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