Exhibit 4.11.5
LAURUS RESTRICTED ACCOUNT AGREEMENT
This Laurus Restricted Account Agreement (this "Agreement") is entered
into this 14th day of May 2004, by and among NORTH FORK BANK, a New York banking
corporation with offices at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
(together with its successors and assigns, the "Bank"), Epixtar Corp., a Florida
corporation with offices at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000 (together with its successors and assigns, the "Company"), and LAURUS
MASTER FUND, LTD., a Cayman Islands corporation with offices at 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and
assigns, "Laurus"). Unless otherwise defined herein, capitalized terms used
herein shall have the meaning provided such terms in the Purchase Agreement
referred to below.
WHEREAS, Laurus has provided financing to the Company, which financing
is evidenced by a Securities Purchase Agreement (as amended, modified or
supplemented from time to time, the "Purchase Agreement") and the Related
Agreements referred to therein;
WHEREAS, the Company and Laurus have retained the Bank to provide
certain services with respect to the Laurus Restricted Account (as defined
below); and
WHERERAS, the Company and Laurus have agreed that an amount of cash
equal to $1,930,000 shall be deposited by Laurus on behalf of the Company by
wire transfer of immediately available funds into the Laurus Restricted Account,
which cash shall be held by the Bank for the benefit of Laurus, as security for
the Company's and its Subsidiaries' obligations under the Purchase Agreement and
the Related Agreements. For the purposes of this Agreement, the "Laurus
Restricted Account" shall mean that certain deposit account (as defined in
Section 9-102 of the Uniform Commercial Code as in effect in the State of New
York on the date hereof) described on Exhibit B hereto, which Laurus Restricted
Account shall be maintained at the Bank and shall be in the sole dominion and
control of Laurus;
NOW THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The Bank is hereby authorized to accept for deposit into the Laurus
Restricted Account the sum of $1,930,000. The Bank hereby agrees to hold any and
all monies, and other amounts from time to time on deposit and/or held in the
Laurus Restricted Account for the benefit of the Laurus and shall not release
any monies held in the Laurus Restricted Account until such time as the Bank
shall have received a notice from Laurus substantially in the form attached
hereto as Exhibit A (a "Release Notice"). Following the receipt of a Release
Notice from Laurus, the Bank agrees to promptly disburse the amount of cash
referred to in such Release Notice to such account as Laurus shall determine in
its sole discretion. The Bank hereby agrees that it will only comply with
written instructions originated by Laurus directing disposition of funds in the
Laurus Restricted Account. The Company hereby irrevocably authorizes the Bank to
comply with any and all instructions given to the Bank by Laurus with respect to
the Laurus Restricted Account without further consent by the Company. The Bank,
the Company and Laurus agree that the Laurus Restricted Account is in Laurus'
sole dominion and control.
2. Each of the Company, Laurus and the Bank hereby agrees that the
Laurus Restricted Account shall not be closed, and the account name and account
number in respect thereof shall not be changed, in any case, without the consent
of the Laurus, except as specifically provided for in Section 9 below.
3. The Bank hereby subordinates any claims and security interests it
may have against, or with respect to, the Laurus Restricted Account (including
any amounts from time to time on deposit therein) to the security interests of
Laurus therein, and agrees that no amounts shall be charged by it to, or
withheld or set-off or otherwise recouped by it from, the Laurus Restricted
Account or any amounts from time to time on deposit therein; provided that, in
connection with all service charges and any other charges which the Bank is
entitled to receive in connection with the servicing and maintaining of the
Laurus Restricted Account (such charges, collectively, the "Charges"), each of
the Company, Laurus and the Bank hereby agrees that the Bank will collect such
Charges in the following manner: (i) first, the Bank will charge other deposit
accounts maintained by the Company with the Bank, (ii) second, in the event that
there are insufficient collected funds in such other deposit accounts to pay
such Charges, the Bank will promptly notify the Company and Laurus with respect
to same and, within seven (7) business days of the Company's receipt of such
notice, the Company shall pay to the Bank the full amount of such Charges then
due, and (iii) third, if the Company fails to pay to the Bank such Charges then
due within the time period set forth in the preceding clause (ii), the Bank will
promptly provide a written notice to Laurus of such occurrence and, in such
case, the Bank is hereby authorized, following a period of five (5) business
days after the receipt of such written notice by Laurus, to deduct such Charges
then due from the Laurus Restricted Account, unless, during such five (5)
business day period, Laurus pays the amount of any such Charges then due to the
Bank from its own account. Except for the payment of the Charges as set forth in
the immediately preceding proviso, the Bank agrees that it shall not offset,
deduct or claim against the Laurus Restricted Account unless and until Laurus
has notified the Bank in writing that all of the Company's obligations under the
Purchase Agreement and the Related Agreements have been performed.
4. The Company and the Bank agree that the maintenance by the Bank of
the Laurus Restricted Account shall be as agent for Laurus. The Bank shall be
responsible for the performance of only such duties as are set forth herein. The
Bank's duties hereunder, however, are merely ministerial, and the Bank shall
have no liability or obligation to the Company or Laurus or to any other person
for any act or omission of the Bank in connection with the performance of the
Bank's duties in servicing and/or maintaining the Laurus Restricted Account,
except for acts of gross negligence or willful misconduct by Bank. IN NO EVENT,
HOWEVER, SHALL THE BANK HAVE ANY RESPONSIBILITY FOR CONSEQUENTIAL, INDIRECT,
SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS, WHETHER OR NOT IT HAS NOTICE
THEREOF, AND REGARDLESS OF THE BASIS, THEORY OR NATURE OF THE ACTION UPON WHICH
THE CLAIM IS ASSERTED, NOR SHALL IT HAVE ANY RESPONSIBILITY OR LIABILITY FOR THE
VALIDITY OR ENFORCEABILITY OF ANY SECURITY INTEREST OR OTHER INTEREST OF LAURUS
OR THE COMPANY IN THE LAURUS RESTRICTED ACCOUNT. In furtherance of and without
limiting the foregoing, the Company and Laurus agree that the Bank shall not be
liable for any damage or loss to them for any delay or failure of performance
arising out of the acts or omissions of any third parties, including, but not
limited to, various communication services, courier services, the Federal
Reserve system, any other bank or any third party who may be affected by funds
transactions, fire, mechanical, computer or electrical failures or other
unforeseen contingencies, strikes or any similar or dissimilar cause beyond the
reasonable control of the Bank. This paragraph shall survive the termination of
this Agreement.
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5. Except where the Bank has been grossly negligent or has acted in bad
faith, each of Laurus and the Company and their respective successors and
assigns will release the Bank from and shall indemnify and hold the Bank
harmless from and against any and all losses, claims, damages, liabilities,
costs and expenses (including, without limitation, reasonable counsel fees,
whether arising in an action or proceeding among the parties hereto or
otherwise, without regard to the merit or lack of merit thereof) to which the
Bank may become subject, or which it may suffer or incur, arising out of or
based upon this Agreement or the actions contemplated hereby. This paragraph
shall survive termination of this Agreement.
6. The Bank shall be fully protected in acting on any order or
direction by Laurus respecting the items received by the Bank or the monies or
other items in the Laurus Restricted Account without making any independent
inquiry whatsoever as to Laurus' rights or authority to give such order or
direction or as to the application of any payments made pursuant thereto.
7. Nothing in this Agreement shall be deemed to prohibit the Bank from
complying with its customary procedures in the event that it is served with any
legal process with respect to the Laurus Restricted Account.
8. The rights and powers granted in this to Laurus have been granted in
order to protect and further perfect its security interests in the Laurus
Restricted Account (including any amounts from time to time on deposit therein)
and are powers coupled with an interest and will be affected neither by any
purported revocation by the Company of this Agreement or the rights granted to
Laurus hereunder or by the bankruptcy, insolvency, conservatorship or
receivership of the Company or the Bank or by the lapse of time.
9. This Agreement may not be amended or waived except by an instrument
in writing signed by each of the parties hereto. This Agreement may be
terminated by the Bank upon giving the Company and Laurus thirty (30) days prior
written notice. Laurus shall designate a successor bank on or prior to the
effective date of such termination and the Bank shall deliver the balance in the
Laurus Restricted Account to such successor bank. Any notice required to be
given hereunder may be given, and shall be deemed given when delivered, via
telefax, U.S. mail return receipt requested or nationally recognized overnight
courier to each of the parties at the address set forth above. This Agreement
may be executed in any number of counterparts, each of which shall be an
original and all of which, when taken together, shall constitute one agreement.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof or thereof, as the case may be. This Agreement 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. This Agreement sets forth the entire
agreement between the parties hereto as to the matters set forth herein and
supersede all prior communications, written or oral, with respect to the matters
herein. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED
BY THIS AGREEMENT. THE BANK, THE COMPANY AND LAURUS EACH HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE
COUNTY OF NEW YORK IN CONNECTION WITH ANY DISPUTE IN WHICH THE BANK IS NAMED AS
A PARTY RELATED TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR THEREBY.
ANY DISPUTE SOLELY BETWEEN THE COMPANY AND/OR ANY OF ITS SUBSIDIARIES, ON ONE
HAND AND LAURUS, ON THE OTHER HAND, SHALL BE RESOLVED IN ACCORDANCE WITH SECTION
11.1 OF THE PURCHASE AGREEMENT.
* * * *
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Agreed and accepted this 14th day of May, 2004.
NORTH FORK BANK
By:
-------------------------------------
Name:
Title:
LAURUS MASTER FUND, LTD.
By:
-------------------------------------
Name: Xxxxxx Grin
Title: Director
EPIXTAR CORP.
By:
-------------------------------------
Name:
Title:
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EXHIBIT A
RELEASE NOTICE
TO: NORTH FORK BANK
000 XXXXX XXX., XXXXX 0
XXX XXXX, XX 00000
RE: ACCOUNT NAME: EPIXTAR CORP.
ACCOUNT NUMBER: 2704051586
Reference is made to that certain Laurus Restricted Account Agreement,
dated as of May 14, 2004 (the "Laurus Restricted Account Agreement"), among
North Fork Bank (the "Bank"), Epixtar Corp. (the "Company"), and Laurus Master
Fund, Ltd. ("Laurus").
This is to notify you that Laurus authorizes the release of
$_____________ (the "Release Amount") from the account referenced above in
accordance with the terms of the Laurus Restricted Account Agreement. Within one
business day following the receipt of this Release Notice, the Bank hereby
agrees to wire the Release Amount (or, in the event that the amount in the
Laurus Restricted Account is less than the Release Amount, such lesser amount)
to the following account in accordance with the wire instructions set forth
below:
[INSERT WIRE INSTRUCTIONS]
LAURUS MASTER FUND, LTD.
By:
----------------------------------------
Name:
Title:
Agreed and accepted this __ day of ___________ 200__.
NORTH FORK BANK
By: ______________________________
Name:
Title:
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EXHIBIT B
Laurus Restricted Account
o Bank: North Fork Bank
o Bank Routing Number: 000000000
Attn: Xxxxxxx Xxxxxx
Phone: 000-000-0000
Account Name: Epixtar Corp.
Account #: 2704051586
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