RESTRICTED ACCOUNT AND SECURITIES ACCOUNT CONTROL AGREEMENT (Access Restricted after Instructions)
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RESTRICTED
ACCOUNT AND SECURITIES
ACCOUNT
CONTROL AGREEMENT
(Access
Restricted after Instructions)
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This
Restricted
Account and Securities Account Control Agreement
(this
“Agreement”), dated as of the date specified on the initial signature page of
this Agreement, is entered into by and among Rancher
Energy Corporation
(“Company”), GasRock
Capital, LLC
(“Secured Party”) and Xxxxx
Fargo Bank, National Association
(“Bank”), and sets forth the rights of Secured Party and the obligations of Bank
with respect to the deposit accounts of Company at Bank identified at the end
of
this Agreement as the Restricted Accounts (each hereinafter referred to
individually as a “Restricted Account” and collectively as the “Restricted
Accounts”) and each securities account of Company at Bank linked to any
Restricted Account by a sweep mechanism, provided that such securities account
either (i) bears an account number identical to the linked Restricted Account
or
(ii) is separately identified by number at the end of this Agreement as a
Securities Account (each hereinafter referred to individually as a “Securities
Account” and collectively as “Securities Accounts”). As used in this Agreement,
the term “Restricted Account” also refers to each Eurodollar Sweep Account or
Preferred Option Sweep Account (each hereinafter an “Offshore Account”)
maintained by Company and linked to another Restricted Account by a sweep
mechanism. Company and Secured Party understand and acknowledge that each
Restricted Account which is an Offshore Account is a subaccount, in the name
of
Company, of an offshore U.S. Dollar-denominated deposit account of Bank
maintained with Bank’s Grand Cayman branch, and that any transfer of funds into
or out of the Offshore Account, pursuant to Section 4 of this Agreement or
otherwise, must pass through the domestic Restricted Account to which the
Offshore Account is specifically linked. Each account numerically designated
as
a Restricted Account includes, for purposes of this Agreement, and without
the
necessity of separately listing subaccount numbers, all subaccounts presently
existing or hereafter established for deposit reporting purposes and integrated
with the numerically designated Restricted Account by a protocol under which
deposits made through the subaccounts are posted only to the numerically
designated Restricted Account.
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1.
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Secured
Party’s Interest in Restricted Accounts and Securities
Accounts.
Secured Party represents that it is either (i) a lender who has extended
credit to Company and has been granted a security interest in the
Restricted Accounts or (ii) such a lender and/or the agent for a
group of
such lenders (the “Lenders”). Company hereby confirms, and Bank hereby
acknowledges, the security interest granted by Company to Secured
Party in
all of Company’s right, title and interest in and to (i) the Restricted
Accounts and all funds now or hereafter on deposit in or payable
or
withdrawable from the Restricted Accounts (the “Restricted Account
Funds”), and (ii) the Securities Accounts and all financial assets,
security entitlements, investment property, and other property and
the
proceeds thereof now or at any time hereafter held in the Securities
Accounts (the “Securities Account Assets”). (As used herein, the terms
"investment property," "financial asset" and "security entitlement"
shall
have the respective meanings set forth in the Uniform Commercial
Code of
the state whose law governs this Agreement. The parties hereby expressly
agree that all property, including without limitation, cash, certificates
of deposit and mutual funds, at any time held in any of the Securities
Accounts is to be treated as a "financial asset".) Except as specifically
provided otherwise in this Agreement, Company has given Secured Party
complete control over the Restricted Accounts, the Restricted Account
Funds, the Securities Accounts, and the Securities Account Assets,
and
Company, Secured Party, and Bank hereby agree that Bank will comply
with
instructions originated by Secured Party directing disposition of
funds in
the Restricted Accounts and Securities Accounts without further consent
of
Company. Company and Secured Party desire to enter into this Agreement
to
further the arrangements between Secured Party and Company regarding
the
Restricted Accounts and the Securities
Accounts.
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2.
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Access
to Restricted Accounts and Securities Accounts. Secured
Party hereby agrees and directs Bank as of the date hereof that until
Bank
receives, and has had a reasonable opportunity to act upon, written
instructions from Secured Party directing that Company no longer
have
access to any Restricted Account Funds or Securities Account Assets
(the
“Instructions”), Company will be allowed access to the Restricted Account
Funds, and access to the Securities Account Assets through redemption
of
Securities Account Assets and transfer of the proceeds of such redemption
in each case to the applicable Restricted Account. After Bank receives
the
Instructions, (a) Company will no longer be allowed access to the
Restricted Account Funds or Securities Account Assets, and (b) Secured
Party will have the exclusive right to direct the disposition of
all
Restricted Account Funds and Securities Account Assets; and Bank
agrees to
transfer the Restricted Account Funds and Securities Account Assets
to
Secured Party in accordance with the provisions of Section 4 below,
subject to the conditions set forth in this Agreement. Company agrees
that
the Restricted Account Funds and Securities Account Assets should
be paid
and/or delivered to Secured Party after Bank receives the Instructions,
and hereby irrevocably authorizes Bank to comply with the Instructions
even if Company objects in any way to the
Instructions.
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3.
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Balance
Reports.
Bank agrees, at the telephone request of Secured Party on any day
on which
Bank is open to conduct its regular banking business other than a
Saturday, Sunday or public holiday (a “Business Day”), to make available
to Secured Party a report (“Balance Report”) showing the available balance
in the Restricted Accounts and Securities Accounts as of the beginning
of
such Business Day, either on-line or by facsimile transmission, at
Bank’s
option. Company expressly consents to this transmission of
information.
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4.
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Transfers
to Secured Party.
Bank agrees that on each Business Day after it receives the Instructions
it will transfer to the Secured Party’s account specified at the end of
this Agreement with the bank specified at the end of this Agreement
or (if
no account is so specified) to such account as Secured Party specifies
in
the Instructions (in either case, the “Secured Party Account”) the full
amount of the available balance in the Restricted Accounts at the
beginning of such Business Day, including all Restricted Account
Funds and
Securities Account Assets in all Offshore Accounts or Securities
Accounts
linked to the Restricted Accounts. Bank will use the Fedwire system
to
make each funds transfer unless for any reason the Fedwire system
is
unavailable, in which case Bank will determine the funds transfer
system
to be used in making each funds transfer and the means by which each
transfer will be made. Bank, Secured Party and Company each agree
that
Bank will, without further consent of Company, comply with (i)
instructions given to Bank by Secured Party directing disposition
of funds
in the Restricted Accounts, and (ii) entitlement orders originated
by
Secured Party directing dispostion of Securities Account Assets in
the
Securities Accounts, subject otherwise to the terms of this Agreement
and
Bank’s standard policies, procedures and documentation in effect from
time
to time governing the type of disposition requested. Except as otherwise
required by law, Bank will not agree with any third party to comply
with
instructions or entitlement orders originated by such third party
for
disposition of funds in any of the Restricted Accounts or Securities
Account Assets in any of the Securities
Accounts.
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5.
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Returned
Items. Secured
Party and Company understand and agree that the face amount (“Returned
Item Amount”) of each Returned Item will be paid by Bank debiting the
Restricted Account into which such Returned Item was originally deposited,
without prior notice to Secured Party or Company. As used in this
Agreement, the term “Returned Item” means (i) any item deposited to a
Restricted Account and returned unpaid, whether for insufficient
funds or
for any other reason, and
without regard to the timeliness of such return or the occurrence
or
timeliness of any drawee’s notice of non-payment;
(ii) any item subject to a claim against Bank of breach of transfer
or
presentment warranty under the Uniform Commercial Code (as adopted
in the
applicable state) or Regulation CC (12 C.F.R. §229), as in effect from
time to time; (iii) any automated clearing house (“ACH”) entry credited to
a Restricted Account and returned unpaid or subject to an adjustment
entry
under applicable clearing house rules, whether for insufficient funds
or
for any other reason, and
without regard to the timeliness of such return or adjustment;
(iv) any credit to a Restricted Account from a merchant card transaction,
against which a contractual demand for chargeback has been made;
and (v)
any credit to a Restricted Account made in error. Company agrees
to pay
all Returned Item Amounts immediately on demand, without setoff or
counterclaim, to the extent there are not sufficient funds in the
applicable Restricted Account to cover the Returned Item Amounts
on the
day they are to be debited from the Restricted Account. Secured Party
agrees to pay all Returned Item Amounts within thirty (30) calendar
days
after demand, without setoff or counterclaim, to the extent that
(i) the
Returned Item Amounts are not paid in full by Company within fifteen
(15)
calendar days after demand on Company by Bank, and (ii) Secured Party
has
received proceeds from the corresponding Returned
Items.
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6.
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Settlement
Items.
Secured Party and Company understand and agree that the face amount
(“Settlement Item Amount”) of each Settlement Item will be paid by Bank
debiting the applicable Restricted Account, without prior notice
to
Secured Party or Company. As used in this Agreement, the term “Settlement
Item” means (i) each check or other payment order drawn on or payable
against any controlled disbursement account or other deposit account
at
any time linked to a Restricted Account by a zero balance account
connection (each a “Linked Account”), which Bank cashes or exchanges for a
cashier’s check or official check over its counters in the ordinary course
of business prior to receiving the Instructions and having had a
reasonable opportunity to act on them, and which is presented for
settlement against the Restricted Account (after having been presented
against the Linked Account) after Bank receives the Instructions,
(ii)
each check or other payment order drawn on or payable against a Restricted
Account, which, on the Business Day Bank receives the Instructions,
Bank
cashes or exchanges for a cashier’s check or official check over its
counters in the ordinary course of business after Bank’s cutoff time for
posting, (iii) each ACH credit entry initiated by Bank, as originating
depository financial institution, on behalf of Company, as originator,
prior to Bank having received the Instructions and having had a reasonable
opportunity to act on them, which ACH credit entry settles after
Bank
receives the Instructions, and (iv) any other payment order drawn
on or
payable against a Restricted Account, which Bank has paid or funded
prior
to receiving the Instructions and having had a reasonable opportunity
to
act on them, and which is first presented for settlement against
the
Restricted Account in the ordinary course of business after Bank
receives
the Instructions and has transferred Account Funds to Secured Party
under
Section 4 of this Agreement. Company agrees to pay all Settlement
Item
Amounts immediately on demand, without setoff or counterclaim, to
the
extent there are not sufficient funds in the applicable Restricted
Account
to cover the Settlement Item Amounts on the day they are to be debited
from the Restricted Account. Secured Party agrees to pay all Settlement
Item Amounts within thirty (30) calendar days after demand, without
setoff
or counterclaim, to the extent that (i) the Settlement Item Amounts
are
not paid in full by Company within fifteen (15) calendar days after
demand
on Company by Bank, and (ii) Secured Party has received Account Funds
under Section 4 of this Agreement.
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7.
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Bank
Fees.
Company agrees to pay all Bank’s fees and charges for the maintenance and
administration of the Restricted Accounts and Securities Accounts
and for
the treasury management and other account services provided with
respect
to the Restricted Accounts and Securities Accounts (collectively
“Bank
Fees”), including, but not limited to, the fees for (a) the Balance
Reports provided on the Restricted Accounts and Securities Accounts,
(b)
the funds transfer services received with respect to the Restricted
Accounts, (c) Returned Items, (d) funds advanced to cover overdrafts
in
the Restricted Accounts (but without Bank being in any way obligated
to
make any such advances), and (e) duplicate bank statements on the
Restricted Accounts. The Bank Fees will be paid by Bank debiting
one or
more of the Restricted Accounts on the Business Day that the Bank
Fees are
due, without notice to Secured Party or Company. If there are not
sufficient funds in the Restricted Accounts to cover fully the Bank
Fees
on the Business Day they are debited from the Restricted Accounts,
such
shortfall or the amount of such Bank Fees will be paid by Company
sending
Bank a check in the amount of such shortfall or such Bank Fees, without
setoff or counterclaim, within fifteen (15) calendar days after demand
of
Bank. After Bank receives the Instructions, to the extent Secured
Party
has received proceeds from the Restricted Accounts, Secured Party
agrees
to pay the Bank Fees within thirty (30) calendar days after demand,
without setoff or counterclaim, to the extent such Bank Fees are
not paid
in full by Company by check within fifteen (15) calendar days after
demand
on Company by Bank.
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8.
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Account
Documentation.
Secured Party and Company agree that, except as specifically provided
in
this Agreement, the Restricted Accounts and Securities Accounts will
be
subject to, and Bank’s operation of the Restricted Accounts and Securities
Accounts will be in accordance with, the terms and provisions of
(i)
Bank’s Commercial Account Agreement or other deposit account agreement
governing the Restricted Accounts and (ii) Bank’s Acceptance of Services,
Master Agreement for Treasury Management Services, and applicable
sweep
option Service Description or securities account agreement governing
the
Offshore Accounts and Securities Accounts (collectively, the “Account
Documentation”).
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9.
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Bank
Statements.
After Bank receives the Instructions, Bank will, upon receiving a
written
request from Secured Party, send to Secured Party by United States
mail,
at the address indicated for Secured Party after its signature to
this
Agreement, duplicate copies of all bank statements on the Restricted
Accounts and Securities Accounts which are sent to Company. Company
and/or
Secured Party will have thirty (30) calendar days after receipt of
a bank
statement to notify Bank of an error in such statement. Bank’s liability
for such errors is limited as provided in the “Limitation of Liability”
section of this Agreement.
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10.
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Partial
Subordination of Bank’s Rights.
Bank hereby subordinates to the security interest of Secured Party
in the
Restricted Accounts and Securities Accounts (i) any security interest
which Bank may have or acquire in the Restricted Accounts or Securities
Accounts, and (ii) any right which Bank may have or acquire to set
off or
otherwise apply any Restricted Account Funds or Securities Account
Assets
against the payment of any indebtedness from time to time owing to
Bank
from Company, except for debits to the Restricted Accounts permitted
under
this Agreement for the payment of Returned Item Amounts, Settlement
Item
Amounts or Bank Fees.
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11.
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Bankruptcy
Notice; Effect of Filing.
If
Bank at any time receives notice of the commencement of a bankruptcy
case
or other insolvency or liquidation proceeding by or against Company
(a
“Bankruptcy Notice”), Bank will continue to comply with its obligations
under this Agreement, except to the extent that any action required
of
Bank under this Agreement is prohibited under applicable bankruptcy
laws
or regulations or is stayed pursuant to the automatic stay imposed
under
the United States Bankruptcy Code or by order of any court or agency.
With
respect to any obligation of Secured Party hereunder which requires
prior
demand upon Company, the commencement of a bankruptcy case or other
insolvency or liquidation proceeding by or against Company shall
automatically eliminate the necessity of such demand upon Company
by Bank,
and shall immediately entitle Bank to make demand on Secured Party
with
the same effect as if demand had been made upon Company and the time
for
Company’s performance had expired.
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12.
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Legal
Process, Legal Notices and Court Orders.
Bank will comply with any legal process, legal notice or court order
it
receives if Bank determines in its sole discretion that the legal
process,
legal notice or court order is legally binding on
it.
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13.
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Indemnification
for Following Instructions.
Secured Party and Company each agree that, notwithstanding any other
provision of this Agreement, Bank will not be liable to Secured Party
or
Company for any losses, liabilities, damages, claims (including,
but not
limited to, third party claims), demands, obligations, actions, suits,
judgments, penalties, costs or expenses, including, but not limited
to,
attorneys’ fees, (collectively, “Losses and Liabilities”) suffered or
incurred by Secured Party or Company as a result of or in connection
with,
(a) Bank complying with any binding legal process, legal notice or
court
order referred to in Section 12 of this Agreement, (b) Bank following
any
instruction or request of Secured Party, or (c) Bank complying with
its
obligations under this Agreement. Company will indemnify Bank against
any
Losses and Liabilities Bank may suffer or incur as a result of or
in
connection with any of the circumstances referred to in clauses (a)
through (c) of this Section 13. To the extent not paid by Company
within
fifteen (15) calendar days after demand, and to the extent Secured
Party
has received proceeds from the Restricted Accounts, Secured Party
will
indemnify Bank against any Losses and Liabilities Bank may suffer
or incur
as a result of or in connection with any of the circumstances referred
to
in clause (b) of this Section 13.
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14.
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No
Representations or Warranties of Bank.
Bank agrees to perform its obligations under this Agreement in a
manner
consistent with the quality provided when Bank performs similar services
for its own account. However, Bank will not be responsible for the
errors,
acts or omissions of others, such as communications carriers,
correspondents or clearinghouses through which Bank may perform its
obligations under this Agreement or receive or transmit information
in
performing its obligations under this Agreement. Secured Party and
Company
also understand that Bank will not be responsible for any loss, liability
or delay caused by wars, failures in communications networks, labor
disputes, legal constraints, fires, power surges or failures, earthquakes,
civil disturbances or other events beyond Bank’s control. BANK
MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT
TO
THE SERVICE OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS
AGREEMENT.
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15.
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Limitation
of Liability.
Bank will not be responsible for any Losses and Liabilities due to
any
cause other than its own negligence or breach of this Agreement,
in which
case its liability to Secured Party and Company shall, unless otherwise
provided by any law which cannot be varied by contract, be limited
to
direct money damages in an amount not to exceed ten (10) times all
the
Bank Fees charged or incurred during the calendar month immediately
preceding the calendar month in which such Losses and Liabilities
occurred
(or, if no Bank Fees were charged or incurred in the preceding month,
the
Bank Fees charged or incurred in the month in which the Losses and
Liabilities occurred). Company will indemnify Bank against all Losses
and
Liabilities suffered or incurred by Bank as a result of third party
claims; provided, however, that to the extent such Losses and Liabilities
are directly caused by Bank’s negligence or breach of this Agreement such
indemnity will only apply to those Losses and Liabilities which exceed
the
liability limitation specified in the preceding sentence. The limitation
of Bank’s liability and the indemnification by Company set out above will
not be applicable to the extent any Losses and Liabilities of any
party to
this Agreement are directly caused by Bank’s gross negligence or willful
misconduct. IN
NO EVENT WILL BANK BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR PUNITIVE DAMAGES, WHETHER ANY CLAIM IS BASED ON CONTRACT
OR
TORT, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO BANK AND
REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, INCLUDING, BUT NOT
LIMITED
TO, ANY CLAIM OR ACTION ALLEGING GROSS NEGLIGENCE, WILLFUL MISCONDUCT,
FAILURE TO EXERCISE REASONABLE CARE OR FAILURE TO ACT IN GOOD
FAITH.
Any action against Bank by Company or Secured Party under or related
to
this Agreement must be brought within twelve (12) months after the
cause
of action accrues.
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16.
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Termination.
This Agreement and the Service may be terminated by Secured Party
or Bank
at any time by either of them giving thirty (30) calendar days prior
written notice of such termination to the other parties to this Agreement
at their contact addresses specified after their signatures to this
Agreement; provided, however, that this Agreement and the Service
may be
terminated immediately upon written notice (i) from Bank to Company
and
Secured Party should Company or Secured Party fail to make any payment
when due to Bank from Company or Secured Party under the terms of
this
Agreement, or (ii) from Secured Party to Bank upon termination or
release
of Secured Party’s security interest in the Restricted Accounts and
Securities Accounts. Company’s and Secured Party’s obligation to report
errors in funds transfers and bank statements and to pay Returned
Items
Amounts, Settlement Item Amounts, and Bank Fees, as well as the
indemnifications made, and the limitations on the liability of Bank
accepted, by Company and Secured Party under this Agreement will
continue
after the termination of this Agreement and/or the closure of the
Restricted Accounts and/or Securities Accounts with respect to all
the
circumstances to which they are applicable existing or occurring
before
such termination or closure, and any liability of any party to this
Agreement, as determined under the provisions of this Agreement,
with
respect to acts or omissions of such party prior to such termination
or
closure will also survive such termination or closure. Upon any
termination of this Agreement and the Service or closure of the Restricted
Accounts all available balances in the Restricted Accounts (including
proceeds from redemption of all Securities Account Assets) on the
date of
such termination or closure will be transferred to Secured Party
as
requested by Secured Party in writing to
Bank.
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17.
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Modifications,
Amendments, and Waivers.
This Agreement may not be modified or amended, or any provision thereof
waived, except in a writing signed by all the parties to this
Agreement.
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18.
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Notices.
All notices from one party to another shall be in writing, or be
made by a
tele-communications device capable of creating a written record,
shall be
delivered to Company, Secured Party and/or Bank at their contact
addresses
specified after their signatures to this Agreement, or any other
address
of any party notified to the other parties in writing, and shall
be
effective upon receipt. Any notice sent by a party to this Agreement
to
another party shall also be sent to all other parties to this Agreement.
Bank is authorized by Company and Secured Party to act on any instructions
or notices received by Bank if (a) such instructions or notices purport
to
be made in the name of Secured Party, (b) Bank reasonably believes
that
they are so made, and (c) they do not conflict with the terms of
this
Agreement as such terms may be amended from time to time, unless
such
conflicting instructions or notices are supported by a court
order.
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19.
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Successors
and Assigns.
Neither Company nor Secured Party may assign or transfer its rights
or
obligations under this Agreement to any person or entity without
the prior
written consent of Bank, which consent will not be unreasonably withheld
or delayed. Bank may not assign or transfer its rights or obligations
under this Agreement to any person or entity without the prior written
consent of Secured Party, which consent will not be unreasonably
withheld
or delayed; provided, however, that no such consent will be required
if
such assignment or transfer takes place as part of a merger, acquisition
or corporate reorganization affecting
Bank.
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20.
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Governing
Law. Company
and Secured Party understand that Bank’s provision of the Service under
this Agreement is subject to federal laws and regulations. To the
extent
that such federal laws and regulations are not applicable this Agreement
shall be governed by and be construed in accordance with the laws
of the
state
of Texas, without regard to conflict of laws
principles.
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21.
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Severability.
To
the extent that this Agreement or the Service to be provided under
this
Agreement are inconsistent with, or prohibited or unenforceable under,
any
applicable law or regulation, they will be deemed ineffective only
to the
extent of such prohibition or unenforceability and be deemed modified
and
applied in a manner consistent with such law or regulation. Any provision
of this Agreement which is deemed unenforceable or invalid in any
jurisdiction shall not affect the enforceability or validity of the
remaining provisions of this Agreement or the same provision in any
other
jurisdiction.
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22.
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Counterparts.
This Agreement may be executed in any number of counterparts each
of which
shall be an original with the same effect as if the signatures thereto
and
hereto were upon the same
instrument.
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23.
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Entire
Agreement.
This Agreement, together with the Account Documentation, contains
the
entire and only agreement among all the parties to this Agreement
and
between Bank and Company, and Bank and Secured Party, with respect
to (a)
the Service, (b) the interest of Secured Party and the Lenders in
the
Restricted Accounts and Restricted Account Funds, (c) the interest
of
Secured Party and the Lenders in the Securities Accounts and Securities
Account Assets, and (c) Bank’s obligations to Secured Party and the
Lenders in connection with the Restricted Accounts and Securities
Accounts.
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[SIGNATURE
PAGE FOLLOWS]
Page
7
This
Agreement has been signed by the duly authorized officers or representatives
of
Company, Secured Party and Bank on the date specified below.
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Date:
October 16, 2007
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Restricted
Account Number(s):
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4121341861
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Securities
Account Number(s):
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4121341861
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Secured
Party Account Number:
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371880
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Bank
of Secured Party Account:
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Amegy
Bank of Texas, ABA
#113012258
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RANCHER
ENERGY CORPORATION
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GASROCK
CAPITAL, LLC
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By:
/s/ Xxxx Works
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By:
/s/ Xxxxxxxx Xxxx Bass
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Name:
Xxxx
Works
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Name:
Xxxxxxxx
Xxxx Bass
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Title:
President
& Chief Executive Officer
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Title:
Principal
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Address
for Notices:
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Address
for Notices:
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000
00xx
Xxxxxx, Xxxxx 0000
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1301
McKinney, Suite 2800
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Xxxxxx,
Xxxxxxxx 00000
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Xxxxxxx,
Xxxxx 00000
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Attention:
Xxxx Works, President/CEO
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Attention:
Xxxxxxxx Xxxx Bass, Principal
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XXXXX
FARGO BANK, NATIONAL
ASSOCIATION
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By:
/s/ Xxx Xxxxx
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Name:
Xxx
Xxxxx
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Title:
Relationship
Manager
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Address
for Notices:
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0000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
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Xxxxxx,
Xxxxxxxx 00000
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Attention:
Xxx Xxxxx, Relationship Manager
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