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