EPSTEIN
page 8 / 645 . OCR, unverified
of its affiliates.
CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e)
DB-SDNY-0093076
CONFIDENTIAL
SDNY_GM_00239260
EFTA01388993
--- SOURCE: IMAGES__0057__EFTA01388994.txt ---
METADATA_SOURCE: IMAGES0057
METADATA_FILENAME: EFTA01388994.pdf
----------------------------------------
secondary account in order to increase its collateral in the secondary account; however,
Intermediary shall only be obligated to honor such Instruction Order if the conditions set forth in
Section 2.6 are satisfied. The Debtor agrees that no additional liens shall be permitted without
the prior written consent of the Secured Party.
2.2.3 If in its sole discretion Secured Party approves the transfer of
assets from the secondary account to the primary account for the settlement of trades,
Intermediary's lien on the financial assets, or any replacement proceeds, while they are held in
the primary account shall be subordinate to that of Secured Patty pending return to the secondary
account.
2.3
Entitlement Orders Given by the Secured Party. If at any time the
Intermediary shall receive an entitlement order (as such term is defined in the UCC) in
substantially the form set forth as Exhibit A from the Secured Party directing transfer or
redemption of any financial asset credited to the Securities Account or any free credit balances
with respect to such Securities Account (hereinafter an "Entitlement Order"), the Intermediary
shall comply with such Entitlement Order without further consent by the Debtor or any other
person.
2.4
Debtor's Rights to Instruct the Intermediary Prior to Delivery of a Notice
of Sole Control.
2.4.1 Primary Account. Until such time as the Intermediary receives a
Notice of Sole Control (as defined in Section 2.5) pursuant to Section 2.5 below, the
Intermediary shall honor all instructions and orders from the Debtor with respect to the financial
assets held in the primary account including but not limited to (i) instructions and orders from the
Debtor with respect to the exercise of voting rights, (ii) orders from the Debtor to redeem or
transfer the financial assets, (iii) orders from the Debtor with respect to the selection of
investments.
2.4.2 Secondary Account.
The Intermediary will not honor any
instructions from the Debtor with respect to (i) orders from the Debtor to redeem or transfer
financial assets in the secondary account or (ii) orders from the Debtor to trade financial assets in
the secondary account. However, Intermediary will honor instructions from the Debtor with
p
rcan.t to the exercise of voting rights until Intermediary has received a written notice from
Secured Party that Debtor shall no longer be entitled to exercise such voting rights.
2.4.3 entitlement Order. In the event that the Intermediary receives an
Entitlement Order from the Secured Party that is inconsistent with any order and/or instructions
received front the Debtor, the Intermediary shall honor the Entitlement Order of the Secured
Party.
2.5
Notice of Sole Control. Without limiting the provisions of Section 2.4.2,
if at any time the Intermediary shall receive from the Secured Party a Notice of Sole Control in
substantially the form set forth in Exhibit B hereto, the Intermediary agrees that after receipt of
such notice, it will take all orders and instructions (including but not limited to instructions
and/or orders with respect to voting, selection of investments, redemption and transfer) with
4111053v3
CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e)
DB-SDNY-0093078
CONFIDENTIAL
SDNY_GM_00239262
EFTA01388994
--- SOURCE: IMAGES__0057__EFTA01388995.txt ---
METADATA_SOURCE: IMAGES0057
METADATA_FILENAME: EFTA01388995.pdf
----------------------------------------
to the Securities Account. The Intermediary shall have rights of set-off with respect to the
Securities Account, however, the Intermediary shall not exercise any such right of set-off unless
and until the Intermediary notifies the Secured Party.
Section 4.
Choke of Law.
4.1
Choice of Law. Both this Agreement and the Securities Account shall be
governed by, and construed in accordance with, the laws of the State of New York, without
regard to its conflict of laws principles. Regardless of any provision in any other agreement, for
purposes of the UCC, New York shall be deemed to be the Intermediary's jurisdiction and the
Securities Account (as well as the security entitlements with respect to any financial assets
credited thereto) shall be governed by the laws of the State of New York.
4.2
Submission to Jurisdiction; Jury Waiver.
EACH OF DEBTOR,
INTERMEDIARY AND SECURED PARTY HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A
JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT. In any action or proceeding arising out of or relating to this
Agreement, the parties hereto hereby irrevocably submit to the exclusive jurisdiction of the