BLOCKED ACCOUNT CONTROL AGREEMENT
EXHIBIT
10.10
U.S. Bank
National Association
000 00xx
Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx Xxxxxxx
Ladies
and Gentlemen:
Please be advised that pursuant to
certain agreements dated December 10, 2008 among Apollo Gold Corporation, a
corporation organized under the laws of the Yukon Territory, Canada ("Company")
and RMB Resources Inc.,
a Delaware corporation (“Security Agent”), as security agent on behalf of
Macquarie Bank Limited and RMB Australia Holdings Limited, Company has granted
to Security Agent a security interest in all rights of the Company with respect
to account numbered 103690226313 (such account, together with all substitutions
and replacements therefor, the "Deposit Accounts") located at U.S. Bank National
Association ("Depositary Bank") and subject to the terms of the Deposit
Agreements (defined below).
1. Deposit
Agreements. The terms and conditions of this Agreement are in
addition to any deposit account agreements and other related agreements that
Company has with Depositary Bank, including without limitation all agreements
concerning banking products and services, treasury management documentation,
account booklets containing the terms and conditions of the Deposit Accounts,
signature cards, fee schedules, disclosures, specification sheets and change of
terms notices (collectively, the "Deposit Agreements"). The
provisions of this Agreement shall supersede the provisions of the Deposit
Agreements only to the extent the provisions herein are inconsistent with the
Deposit Agreements, and in all other respects, the Deposit Agreements shall
remain in full force and effect. All items deposited into the Deposit Accounts
shall be processed according to the provisions of the Deposit Agreements, as
amended by this Agreement.
2. Security
Interest. Company hereby grants to Security Agent a security
interest in, among other property, the Deposit Accounts and all credits or
proceeds thereto and all monies, checks and other instruments held or deposited
therein (all of which shall be included in the definition of the "Deposit
Accounts"). Company represents and warrants that there are no
perfected liens or encumbrances with respect to the Deposit Accounts and
covenants with Security Agent that it shall not enter into any acknowledgment or
agreement that gives any other person or entity except Security Agent control
over, or any other security interest, lien or title in, the Deposit
Accounts.
3. Control. In order
to provide Security Agent with control over the Deposit Accounts, Company agrees
that Depositary Bank may, and Depositary Bank agrees that it will, comply with
any and all orders, notices, requests and other instructions originated by
Security Agent directing disposition of the funds in the Deposit Accounts
without any further consent from Company, even if such instructions are contrary
to any of Company’s instructions or demands or result in Depositary Bank
dishonoring items which may be presented for payment. Company agrees
that instructions from Security Agent may include the giving of stop payment
orders for any items presented to the Deposit Accounts, instructions to transfer
funds to or for the benefit of Security Agent or any other person or entity, and
instructions to close the Deposit Accounts.
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4. Access to Deposit
Accounts.
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(a) The
Deposit Accounts shall be under the sole dominion and control of Security
Agent. Neither Company, nor any other person or entity, acting
through or under Company, shall have any control over the use of, or any
right to withdraw any amount from, the Deposit
Accounts. Depositary Bank is hereby authorized and instructed
to transfer all available funds (subject to Depositary Bank's funds
availability policy) in the Deposit Accounts to such account and at such
times as Security Agent may direct in writing to Depositary
Bank.
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(b) The
Deposit Accounts shall be under the control of Security Agent; provided, that
unless and until Depositary Bank receives Security Agent’s written notice
that Company’s access to the funds in the Deposit Accounts is terminated,
Depositary Bank shall honor Company’s instructions, notices and directions
with respect to the transfer or withdrawal of funds from the Deposit
Accounts, including paying or transferring the funds to Company or any
other person or entity.
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Upon
receipt of a written notice from Security Agent instructing Depositary Bank to
terminate Company's access to funds in the Deposit Accounts, Depositary Bank
shall transfer all available funds (subject to Depositary Bank's funds
availability policy) in the Deposit Accounts in accordance with Security Agent’s
written instructions.
As for
any such written notice sent under this subsection (b) to Depositary Bank,
Depositary Bank shall endeavor to promptly transfer to Security Agent the
available funds as referenced above, but Depositary Bank shall not be obligated
to do so until it provides written confirmation to Security Agent that it
received Security Agent’s notice of direction.
5. Subordination by Depositary
Bank. Company and Depositary Bank acknowledge notice of and
recognize Security Agent's continuing security interest in the Deposit Accounts
and in all items deposited in the Deposit Accounts and in the proceeds thereof.
Depositary Bank hereby subordinates all security interests and any statutory or
contractual right or claim of setoff or lien resulting from any transaction
which involves the Deposit Accounts if Section 4(a) is checked above or upon
Depositary Bank's confirmation of receipt of Security Agent's notice under
Section 4(b) if Section 4(b) is checked above. Notwithstanding the
preceding sentence, in the event any fees and expenses ("Fees") related to the
Deposit Accounts go unpaid or any checks or other items which were deposited or
credited to the Deposit Accounts are returned, reversed, refunded or charged
back for insufficient funds or for any other reason ("Returned Items"),
Depositary Bank may charge the Deposit Accounts or other accounts of Company
maintained at Depositary Bank. If there are insufficient funds in the
Deposit Accounts or any of Company's other accounts to cover the Fees and
Returned Items, Company agrees to immediately reimburse Depositary Bank for the
amount of such shortfall. If Company fails to pay the amount demanded
by Depositary Bank, Security Agent agrees to reimburse Depositary Bank within
three (3) business days of demand thereof by Depositary Bank for any Returned
Items to the extent Security Agent received payment in respect thereof pursuant
to section 4.
6. Indemnity. Company
agrees to defend, indemnify and hold Depositary Bank and its directors,
officers, employees, attorneys, successors and assigns (collectively "Depositary
Bank Parties") harmless from and against any and all claims, losses,
liabilities, costs, damages and expenses, including, without limitation,
reasonable legal and accounting fees (collectively, "Claims"), arising out of or
in any way related to this Agreement, excepting only liability arising out of
Depositary Bank's gross negligence or willful misconduct. Without
regard to Company's indemnification obligations to the Depositary Bank Parties,
Security Agent agrees to: (i) reimburse Depositary Bank for any Returned Items
(the proceeds of which were received by Security Agent) and (ii) defend,
indemnify and hold the Depositary Bank Parties harmless from and against any and
all Claims arising out of Depositary Bank's compliance with Security Agent's
instructions. IN NO EVENT WILL DEPOSITARY BANK BE LIABLE FOR ANY INDIRECT
DAMAGES, LOST PROFITS, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHICH ARISE
OUT OF OR IN CONNECTION WITH THE SERVICES CONTEMPLATED BY THIS AGREEMENT EVEN IF
DEPOSITARY BANK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES.
7. Depositary's Bank's
Responsibility. The duties of Depositary Bank are strictly
limited to those set forth in this Agreement and Depositary Bank is not acting
as a fiduciary for any party hereto. Depositary Bank shall be
protected in relying on any form of instruction or other notice purporting to be
from Security Agent which Depositary Bank, in good faith, believes to be genuine
and what it purports to be. Depositary Bank shall have no duty to
inquire as to the genuineness, validity, or enforceability of any such
instruction or notice even if Company notifies Depositary Bank that Security
Agent is not legally entitled to originate any such instruction or
notice. The Deposit Accounts and all actions and undertakings by
Depositary Bank shall be subject to all rules and regulations relating to the
Deposit Accounts and to applicable law.
8. Termination. This
Agreement shall not be terminable by Company so long as any obligations of
Company to Security Agent are outstanding and unpaid. This Agreement
may be terminated by Depositary Bank upon thirty (30) days prior written notice
to all parties; provided, however, that Depositary Bank may terminate this
Agreement immediately in the event Security Agent fails to make payments to
Depositary Bank in accordance with section 5 above. This Agreement
may be terminated by Security Agent in a writing sent to Depositary Bank in
which Security Agent releases Depositary Bank from any further obligation to
comply with instructions originated by Security Agent with respect to the
Deposit Accounts. Any available funds remaining in the Deposit
Accounts upon termination or deposited thereafter shall be transferred in
accordance with the provisions of section 4 above after deduction for any
amounts otherwise reimbursable to Depositary Bank or provided
hereunder. Termination shall not affect the rights and obligations of
any party hereto with respect to any period prior to such
termination.
9. Legal Process and
Insolvency. In the event Depositary Bank receives any form of
legal process concerning the Deposit Accounts, including, without limitation,
court orders, levies, garnishments, attachments, and writs of execution, or in
the event Depositary Bank learns of any insolvency proceeding concerning
Company, including, without limitation, bankruptcy, receivership, and assignment
for the benefit of creditors, Depositary Bank will respond to such legal process
or knowledge of insolvency in the normal course or as required by
law.
10. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Colorado. The parties agree that Colorado is the "bank's
jurisdiction" for purposes of the Uniform Commercial Code.
11. Notices. Except as
otherwise provided in this Agreement, all notices and other communications
required under this Agreement shall be in writing and may be personally served
or sent by United States Mail or courier or by facsimile, and shall be deemed
given when delivered in person or received by facsimile or upon deposit in the
United States Mail or with such courier within the continental United States at
the address or addresses specified below. Any party may change its
address for notices hereunder by notice to all other parties given in accordance
with this section 11.
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Company:
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Apollo
Gold Corporation
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0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx
Village
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Colorado,
80111-3220
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United
States of America
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Attn: R.
Xxxxx Xxxxxxx
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Facsimile: x0
000 000 0000
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Telephone: x0
000 000 0000
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E-mail: xxxxxxx00@xxx.xxx
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Security
Agent:
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RMB
Resources Inc.
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000
Xxxxx Xxxxxxxxx
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Xxxxx
000
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Xxxxxxxx,
Xxxxxxxx 00000
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Attn: Xxxx
X. Xxxxxxx
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Facsimile: x0
000 000 0000
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Telephone: x0
000 000 0000
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E-mail:
xxxx.xxxxxxx@xxxxxxxxxxxx.xxx
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Depositary
Bank:
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U.S.
Bank National Association
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000
00xx Xxxxxx, 0xx
Xxxxx
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Xxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxx Xxxxxxx
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Facsimile:
x0 000 000 0000
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Telephone:
x0 000 000 0000
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Email:
xxxxxxx.xxxxxxx@xxxxxx.xxx
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12. Authorization of Security
Agent. Macquarie Bank Limited and RMB Australia
Holdings Limited appoints and authorizes the Security Agent as its
representative for the purposes of administering on their behalf the
transactions and arrangements contemplated by this Agreement, including the
giving of any notices required to be given under it. The Security Agent accepts
this appointment. Any amendment to this Agreement agreed to by the Security
Agent, or anything done by the Security Agent in relation to this Agreement, is
agreed to by Macquarie Bank Limited and RMB Australia Holdings
Limited.
13. Miscellaneous. This
Agreement shall bind and benefit the parties and their respective successors and
assigns. This Agreement may be amended only with the prior written
consent of all parties hereto. None of the terms of this Agreement
may be waived except as Depositary Bank may consent thereto in
writing. No delay on the part of Depositary Bank in exercising any
right, power or privilege hereunder shall operate as a waiver hereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude other or further exercise thereof or the exercise of any right, power
or privilege. The rights and remedies specified herein are cumulative
and are not exclusive of any rights or remedies which Depositary Bank would
otherwise have. To the extent a provision of this Agreement is
unenforceable, this Agreement will be construed as if the unenforceable
provision were omitted.
14. Counterparts. This Agreement
may be executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the
same instrument.
15. Jury Trial
Waiver. COMPANY, SECURITY AGENT AND DEPOSITARY BANK HEREBY
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING ARISING OUT OF, OR
RELATING TO, THIS AGREEMENT OR SERVICES RENDERED IN CONNECTION WITH THIS
AGREEMENT.
Dated as
of: December 10, 2008
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Very
truly yours,
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APOLLO
GOLD CORPORATION
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By:
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/s/ R. Xxxxx Xxxxxxx
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Name: R.
Xxxxx Xxxxxxx
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Title:
President & CEO
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SECURITY
AGENT
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
President
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MACQUARIE
BANK LIMITED
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By
its attorney: /s/ Xxxx Xxxxxx
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Name:
Xxxx Xxxxxx
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Title:
Executive Director
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and
its attorney: /s/ Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title: Senior
Lawyer
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in
the presence of: /s/ Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title: Division
Director, Macquarie Bank Limited
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RMB
AUSTRALIA HOLDINGS LIMITED
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By:
/s/ X. Xxxxxxxxx
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Name:
X. Xxxxxxxx
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Title: Director
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and
by: /s/ Xxxxxxx Xxx
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Name:
Xxxxxxx Xxx
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Title: Director
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ACCEPTED:
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U.S.
BANK NATIONAL ASSOCIATION
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By:
/s/ Xxxxx Enquest
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Name: Xxxxx
Enquest
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Title: Vice
President, Commercial
Banking
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