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DEPOSIT ACCOUNT CONTROL AGREEMENT

Account Control Agreement

DEPOSIT ACCOUNT CONTROL AGREEMENT | Document Parties: GRAN TIERRA ENERGY, INC. You are currently viewing:
This Account Control Agreement involves

GRAN TIERRA ENERGY, INC.

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Title: DEPOSIT ACCOUNT CONTROL AGREEMENT
Governing Law: New York     Date: 1/6/2010
Industry: Oil and Gas Operations     Sector: Energy

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Exhibit 10.9

EXECUTION VERSION

DEPOSIT ACCOUNT CONTROL AGREEMENT

 

Deposit Account Control Agreement , dated as of August 24, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “ Agreement ”), by and among Standard Bank Plc , in its capacity as administrative agent under the Credit Agreement (as defined in the Pledge Agreement referred to below) (“ Secured Party ”); Solana Petroleum Exploration (Colombia) Limited (“ Debtor ”); and BNP Paribas (“ Bank ”).

 

PREAMBLE:

 

3.

Bank has established deposit account number 200-615151-001-97-USD in the name of Debtor (such account, together with any other demand, time, savings, passbook or similar account established in replacement thereof or now or hereafter maintained by the Debtor with the Bank, being collectively referred to as the “ Account ”).

 

4.

Debtor (a) is a party to that certain Collection Account Pledge Agreement, dated as of August 24, 2009 (as amended, modified and supplemented from time to time, the “ Pledge Agreement ”), by Debtor in favor of the Secured Party, and (b) pursuant to the Pledge Agreement, Debtor has granted a security interest in its assets including, without limitation, the Account and any funds and remittances to the Account including checks, ACH transfers, wires, deposits and any other proceeds deposited in the Account (the “ Funds ”) to secure the obligations referenced in such Pledge Agreement.

 

4. Secured Party, Debtor and Bank are entering into this Agreement to perfect the security interest of Secured Party in the Account.

 

TERMS:

 

Section 1. The Account.   All parties agree that the Account is a “deposit account” within the meaning of Article 9 of the Uniform Commercial Code of the State of New York (as amended from time to time, the “ UCC ”). Bank has not and will not agree with any third party to comply with instructions or other directions concerning the Account or the disposition of funds in the Account originated by such third party without the prior written consent of Secured Party and Debtor. The Bank shall not change the name or account number of the Account without the prior written consent of Secured Party.

 

Section 2. Subordination of Security Interest.   Bank hereby subordinates all security interests, encumbrances, claims and rights of setoff it may have, now or in the future, against the Account or any funds in the Account, other than in connection with (i) the payment of Bank’s (or its affiliate’s) fees, charges and expenses pursuant to its agreement with Debtor relating to the Account, or pursuant to this Agreement or otherwise related to the Account or transactions therein, (ii) reversals of provisional credits, returned or chargeback items, reversals or cancellations of payment orders and other electronic funds transfers and other corrections or adjustments to the Account and transactions therein and (iii) overdrafts on the Account.

 

1


 

Section 3. Control. Bank may (but is not required to) comply with instructions directing the disposition of funds in the Account originated by Debtor or its authorized representatives until such time as Secured Party delivers a written notice to Bank that Secured Party is thereby exercising exclusive control over the Account. Such notice is referred to herein as the “Notice of Exclusive Control” and shall be in the form of Exhibit A hereto.  After Bank receives a Notice of Exclusive Control, it will cease complying with instructions concerning the Account or funds on deposit therein originated by Debtor or its representatives and shall thereafter comply with instructions originated by Secured Party directing disposition of the funds in the Account without further consent by Debtor or any other person.

 

Section 4. Statements, Confirmations and Notices of Adverse Claims. Bank will (a) send copies of all statements concerning the Account to each of Debtor and Secured Party at their respective addresses referred to in Section 13 of this Agreement and (b) provide promptly to Secured Party upon request, the Account balance. Upon receipt of written notice of any lien, encumbrance or adverse claim against the Account or any Funds credited thereto, Bank will make reasonable efforts to notify Secured Party thereof. Debtor agrees to promptly review account statements for the Account and to notify Bank of any errors or improper charges to the Account within 30 days of the receipt of the end of month statement.

 

Section 5. Limited Responsibility of Bank.   Except for acting on Debtor’s instructions in violation of Section 3 above following delivery of a Notice of Exclusive Control, Bank shall have no responsibility or liability to Secured Party for complying with instructions concerning the Account from Debtor or Debtor’s authorized representatives which are received by Bank before Bank receives a Notice of Exclusive Control and has had reasonable opportunity (not to exceed two business days) to act on it, provided that (a) all transactions involving or resulting in a transaction involving the Account commenced by Debtor prior to the end of the second business day after Bank receives such Notice (the “ Effective Time ”) and completed or processed thereafter shall not be deemed a violation of this Agreement and (b) Bank (at its discretion and without any obligation to do so) may cease honoring Debtor’s instructions regarding the Account and/or honor Secured Party’s instructions concerning the Account at any time or from time to time after it becomes aware that Secured Party has sent to it a Notice of Exclusive Control but prior to the Effective Time (including without limitation, halting, reversing or redirecting any transaction referred to in clause (a) hereof), with no liability whatsoever to the Debtor or to any other party for doing so.  Notwithstanding anything to the contrary in this Agreement: (a) Bank shall have only the duties and responsibilities with respect to the matters set forth herein as is expressly set forth in writing herein and shall not be deemed to be an agent, bailee or fiduciary or any party hereto; (b) Bank shall be fully protected in acting or refraining from acting in good faith without investigation of any notice (including without limitation a Notice of Exclusive Control), instruction or request purportedly furnished to it by Debtor


 
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