BLOCKED ACCOUNT CONTROL AGREEMENT (WITH LOCKBOX SERVICES)
Exhibit
10.18
(WITH
LOCKBOX SERVICES)
U.S. Bank
National Association
US Bank
Business Credit
000 X.
XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx,
XX 00000
Ladies
and Gentlemen:
Please be
advised that pursuant to certain agreements between Commerce Energy, Inc., a
California corporation (“Company”) and Wachovia Capital Finance Corporation
(Western), as agent (“Lender”), Company will cause all checks, drafts and other
orders of payments made payable to Company to be mailed to a lockbox (the
“Lockbox”) maintained at U.S. Bank National Association (“Depositary
Bank”). All payments mailed to the Lockbox shall be deposited to
deposit account number(s) [*] (such account(s), together with all substitutions
and replacements therefor, the “Deposit Account”) located at 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 Account,
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 received at the Lockbox
and deposited into the Deposit Account shall be processed according to the
provisions of the Deposit Agreements, as amended by this Agreement.
2. Security
Interest. Company has granted to Lender a security interest
in, among other property, the Lockbox, the Deposit Account 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
Account”). Company represents and warrants that there are no
perfected liens or encumbrances with respect to the Deposit Account and
covenants with Lender that it shall not enter into any acknowledgment or
agreement that gives any other person or entity except Lender control over, or
any other security interest, lien or title in, the Deposit Account.
3. Control. In order
to provide Lender with control over the Deposit Account, Company agrees that
Depositary Bank may comply with any and all orders, notices, requests and other
instructions originated by Lender directing disposition of the funds in the
Deposit Account 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 Lender may include the
giving of stop payment orders for any items presented to the Deposit Account
instructions to transfer funds to or for the benefit of Lender or any other
person or entity, and instructions to close the Deposit Account.
4. Access
to Deposit Account [CHECK ONE BOX ONLY]
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(a) The
Deposit Account shall be under the sole dominion and control of
Lender. 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
Account. Depositary Bank is hereby authorized and instructed to
transfer all available funds (subject to Depositary Bank’s funds
availability policy) in the Deposit Account to such account and at such
times as Lender may direct in writing to Depositary Bank.
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(b) The
Deposit Account shall be under the control of Lender; provided, that unless and until Depositary
Bank receives Lender’s written notice that Company’s access to the funds
in the Deposit Account is terminated. Depositary Bank shall
honor Company’s instructions, notices and directions with respect to the
transfer or withdrawal of funds from the Deposit Account, 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 Lender instructing Depositary Bank to
terminate Company’s access to funds in the Deposit Account, Depositary
Bank shall transfer all available funds (subject to Depositary Bank’s
funds availability policy) in the Deposit Account in accordance with
Lender’s written instructions.
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As
for any such written notice sent under this subsection (b) to
Depositary Bank, Depositary Bank shall endeavor to promptly transfer to
Lender the available funds as referenced above, but Depositary Bank shall
not be obligated to do so until it provides written confirmation to Lender
that it received Lender’s notice of direction.
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5. Subordination by Depositary
Bank. Company and Depositary Bank acknowledge notice of and
recognize Lender’s continuing security interest In the Deposit Account and in
all items deposited in the Deposit Account and in the proceeds thereof
Depositary Bank hereby subordinates any statutory or contractual right or claim
of offset or lien resulting from any transaction which involves the Deposit
Account if Section 4(a) is checked above or upon
[*]=
Information redacted pursuant to a confidential treatment
request. Such omitted information has been filed separately with the
Securities and Exchange Commission.
Depositary
Bank’s confirmation of receipt of Lender’s notice under Section
4(b). Notwithstanding the preceding sentence, in the event any fees
and expenses (“Fees”) related to the Deposit Account go unpaid or any checks or
other items which were deposited or credited to the Deposit Account are
returned, reversed, refunded or charged back for insufficient funds or for any
other reason (“Returned Items”), Depositary Bank may charge the Deposit Account
or other accounts of Company maintained at Depositary Bank. If there
are insufficient funds in the Deposit Account 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, Lender agrees to reimburse
Depositary Bank within three (3) business days of demand thereof by
Depositary Bank for any Returned Items to the extent Lender 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”) 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 Depositary Bank, Lender agrees
to: (I) reimburse Depositary Bank for any Returned Items (the
proceeds of which were received by Lender) and (II) defend, indemnify and
hold Depositary Bank harmless from and against any and all Claims arising out of
Depositary Bank’s compliance with Lender’s instruction. Lender’s
obligations to Depositary Bank hereunder shall in no way operate to release
Company from its obligations to Lender and shall not impair any rights or
remedies of Lender to collect any such amounts from Company. 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 Lender which Depositary Xxxx, 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 Lender is not legally
entitled to originate any such instruction or notice. The Deposit
Account and all actions and undertakings by Depositary Bank shall be subject to
all rules and regulations relating to the Deposit Account and to applicable
law.
8. Termination. This
Agreement shall not be terminable by Company so long as any obligations of
Company to Lender 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 Lender fails to make payments to Depositary
Bank in accordance with section 5 above. This Agreement may be
terminated by Lender in a writing sent to Depositary Bank in which Lender
releases Depositary Bank from any further obligation to comply with instructions
originated by Lender with respect to the Deposit Account. Any
available funds remaining in the Deposit Account upon termination or deposited
in thereafter shell be transferred in accordance with the provisions of section
4 above after deduction for any amounts otherwise reimbursable to Depositary
Bank as provided hereunder. Termination shall not affect the rights
end obligations of any party hereto with respect to any period prior to such
termination.
9. Legal Promise and
Insolvency. In the event Depositary Bank receives any form of
legal process concerning the Deposit Account, 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 Minnesota. The parties agree that Minnesota 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 xxxxxx or received by facsimile or upon deposit in the
United States Mail or with such courier at the address 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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Commerce
Energy, Inc.
000
Xxxxx Xxxx., Xxxxx 0000
Xxxxx
Xxxx, XX 00000
Attn:
Chief Financial Officer
Facsimile:
000-000-0000
Telephone:
000-000-0000
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Lender:
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Wachovia
Capital Finance Corporation (Western)
000
Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attn:
Portfolio Manager
Facsimile:
000-000-0000
Telephone:
000-000-0000
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Depositary
Bank:
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U.S.
Bank National Association
U.S.
Bank Business Credit
000
X. XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxxxx
Facsimile:
000-000-0000
Telephone:
000-000-0000
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12. 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.
13. 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
14. Jury Trial
Waiver. COMPANY, LENDER 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: April 15, 2008
Very
truly yours,
Commerce
Energy, Inc.
COMPANY
By: /s/ C. Xxxxxxx
Xxxxxxxx
Name:
C. Xxxxxxx
Xxxxxxxx
Title:
Chief Financial
Officer (Interim)
LENDER
Wachovia
Capital Finance Corporation (Western), as agent
By: /s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx
Xxxxxx
Title:
Director
ACCEPTED: U.S.
BANK NATIONAL ASSOCIATION
DEPOSITARY BANK
By: /s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X.
Xxxxxxx
Title:
Vice
President
LEGAL_US_W # 59144636.1
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