ACCOUNT CONTROL AGREEMENT
ACCOUNT
CONTROL AGREEMENT (this “Agreement”)
dated
as of October 19, 2007, among MRU
HOLDINGS, INC, a
Delaware corporation (the
“Grantor”),
VIKING
ASSET MANAGEMENT, LLC, a
California limited liability company,
as
collateral agent (the “Secured
Party”),
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., (“BNYTC”)
as
depository bank (BNYTC, in such capacities, the “Account
Holder”).
PRELIMINARY
STATEMENTS.
(1) The
Grantor and the Secured Party are parties to a certain Pledge and Security
Agreement dated as of October 19, 2007 (the “Security
Agreement”).
(2) Pursuant
to the terms of the Security Agreement, it is required, and the Secured Party
and the Grantor have requested, that there be established and maintained with
the Account Holder a trust account (the “Account”)
into
which funds are to be transmitted and held, and from which funds are to
disbursed, from time to time upon the instructions of the Secured
Party.
(3) Pursuant
to the Security Agreement, the Grantor has granted a security interest (the
“Security
Interest”)
to the
Secured Party, in (among other things) all of the Grantor’s right, title and
interest in and to the Account, all funds held in the Account and all proceeds
of the foregoing (the “Collateral”).
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements
contained herein, the parties hereto hereby agree as follows:
SECTION
1. Defined
Terms.
Terms
defined in Article 9 of the Uniform Commercial Code in effect in the State
of
New York (“N.Y.
Uniform Commercial Code”
or
“NYUCC”),
including without limitation the terms “control” and “deposit account” are used
in this Agreement as such terms are defined in such Article 9. In addition,
“Authorized
Person”
shall
mean any person, whether or not an officer or employee of Secured Party or
Grantor, duly authorized by Secured Party or Grantor, respectively, to give
directions on behalf of Secured Party or Grantor, respectively, such persons
to
be designated in a Certificate of Authorized Persons substantially in the form
of Exhibit B which contains a specimen signature of such person (as such
Certificate of Authorized Person may be supplemented or modified from time
to
time by delivery of a supplement or replacement thereto by Grantor or Secured
Party, as applicable).
SECTION
2. The
Account.
The
Grantor and Account Holder represent and warrant to, and agree with, the Secured
Party that:
(a) The
Grantor has established with the Account Holder the following account
constituting the Account within the meaning hereof:
Account
No.: 217560
Account
Name: Viking Collection Account
(b) The
Account is maintained pursuant to the terms of this Agreement.
(c) The
Account Holder maintains such Account for the Grantor, and all property
(including, without limitation, all funds) held by the Account Holder for the
account of the Grantor are, and will continue to be, credited to the Account
in
accordance with instructions given by the Secured Party.
(d) The
Account Holder is the bank with which the Account is maintained. The Grantor
is
the Account Holder’s customer with respect to the Account.
(e) Notwithstanding
any other agreement to the contrary, the Account Holder’s jurisdiction with
respect to the Account for purposes of the N.Y. Uniform Commercial Code is,
and
will continue to be for so long as the Security Interest shall be in effect,
the
State of New York.
(f) The
Grantor and Account Holder do not know of any claim to or interest in the
Account or any property (including, without limitation, funds) credited to
the
Account, except for claims and interests of the parties referred to in this
Agreement.
(g) Funds
held in the Account shall not be invested.
SECTION
3. Control
by Secured Party.
The
Account Holder will comply with (i) all instructions directing disposition
of
the funds in the Account, and (ii) all other directions concerning the Account,
including, without limitation, directions to distribute to or at the direction
of the Secured Party proceeds of any such transfer or interest on property
in
the Account (any such instruction, notification or direction referred to in
clause (i) or (ii) above being an “Account Direction”), in each case of clauses
(i) and (ii) above originated by the Secured Party without further consent
by
the Grantor or any other Person.
SECTION
4. Priority
of Secured Party’s Security Interest.
(a) The Account Holder (i) subordinates to the Security Interest
and in favor of the Secured Party any security interest, lien, or right of
recoupment or setoff that the Account Holder may have, now or in the future,
against the Account or property (including, without limitation, any funds)
credited to the Account, and (ii) agrees that it will not exercise any right
in
respect of any such security interest or lien or any such right of recoupment
or
setoff until the Security Interest is terminated, except
that the
Account Holder may exercise any right of recoupment or setoff against the
Account to secure or to satisfy, and only to secure or to satisfy, payment
for
amounts owed to it in connection with the maintenance and operation of such
Account as set forth on that certain “Account Holder Services Fee Schedule”
attached hereto as Schedule I and for the face amount of any items that have
been credited to such Account but are subsequently returned unpaid because
of
uncollected or insufficient funds.
(a) The
Account Holder will not enter into any other agreement with any Person relating
to Account Directions or other directions with respect to the
Account.
SECTION
5. Statements,
Confirmations, and Notices of Adverse Claims. (a) The
Account Holder will send copies of all statements and confirmations for the
Account simultaneously to the Secured Party and the Grantor.
(a) When
the
Account Holder receives written notice of any claim or interest in the Account
or any property (including, without limitation, funds) credited to the Account
other than the claims and interests of the parties referred to in this
Agreement, the Account Holder will promptly notify the Secured Party and the
Grantor of such claim or interest.
SECTION
6. The
Account Holder’s Responsibility.
(a) The Account Holder will not be liable to the Grantor or the
Secured Party for complying with an Account Direction or other direction
concerning the Account originated by the Secured Party, even if the Grantor
notifies the Account Holder that the Secured Party purportedly is not legally
entitled to issue the Account Direction or such other
direction.
2
(a) This
Agreement does not create any obligation of the Account Holder except for those
expressly set forth in this Agreement and in Article 4 of the N.Y. Uniform
Commercial Code. In particular, the Account Holder need not investigate whether
the Secured Party is entitled under the Secured Party’s agreements with the
Grantor to give an Account Direction or other direction concerning the Account.
The Account Holder may conclusively rely and act upon notices and communications
it believes given by the appropriate party.
SECTION
7. Standard
of Care; Indemnity.
(a) Except
as
otherwise expressly provided herein, Account Holder shall not be liable for
any
costs, expenses, damages, liabilities or claims, including attorneys’ fees
(“Losses”)
incurred by or asserted against Grantor or Secured Party, except those Losses
determined to have been caused by the gross negligence or willful misconduct
of
Account Holder. Account Holder shall have no liability whatsoever for the action
or inaction of any Depository. In no event shall Account Holder be liable for
special, indirect or consequential damages, or lost profits or loss of business,
arising in connection with this Agreement.
(b) Each
of
the Secured Party and Grantor, jointly and severally, agrees to indemnify
Account Holder and hold Account Holder harmless from and against any and all
Losses sustained or incurred by or asserted against Account Holder under this
Agreement in connection with or arising out of Account Holder’s execution and
performance of this Agreement, including, without limitation, its compliance
with Account Directions originated by the Secured Party; provided, that Account
Holder shall not be indemnified for those Losses determined to have been caused
by Account Holder’s own gross negligence or willful misconduct. This indemnity
shall be a continuing obligation of Grantor and Secured Party and their
respective successors and assigns notwithstanding the termination of this
Agreement.
SECTION
8. Termination;
Survival.
(a) The Secured Party may terminate this Agreement by written notice
to the Account Holder and the Grantor. If the Secured Party notifies the Account
Holder that the Security Interest has terminated, this Agreement will
immediately terminate.
(a) The
Account Holder may not terminate this Agreement without 60 days’ prior notice to
the Secured Party and the Grantor, provided
that
before such termination shall be effective the Grantor shall make arrangements
to transfer the property (including, without limitation, all funds) credited
to
the Account to another Account Holder that shall have executed, together with
the Grantor, a control agreement in favor of the Secured Party in respect of
such property in substantially the form of this Agreement or otherwise in form
and substance satisfactory to the Secured Party.
(b) The
Grantor may not terminate this Agreement without the written consent of the
Secured Party.
(c) Section
7
will survive termination of this Agreement.
SECTION
9. No
Responsibility Concerning Security
Agreement.
Grantor
and Secured Party hereby agree that, notwithstanding references to the Security
Agreement in this Agreement, Account Holder has no interest in, and no duty,
responsibility or obligation with respect to, the Security Agreement (including
without limitation, no duty, responsibility or obligation to monitor Grantor’s
or Secured Party’s compliance with the Security Agreement or to know the terms
of the Security Agreement).
3
SECTION
10. Advice
of Counsel.
Account
Holder may, with respect to questions of law, obtain the advice of counsel
at
the expense of Grantor and shall be fully protected with respect to anything
done or omitted by it in good faith in conformity with such advice.
SECTION
11. Account
Disclosure.
Account
Holder is authorized to supply any information regarding the Account that is
required by any law or governmental regulation now or hereafter in
effect.
SECTION
12. Force
Majeure.
Account
Holder shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; interruptions,
loss
or malfunctions of utilities, computer (hardware or software) or communications
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; inability to obtain labor, material, equipment or
transportation.
SECTION
13. No
Implied Duties.
Account
Holder shall have no duties or responsibilities whatsoever other than such
duties and responsibilities as are specifically set forth in this Agreement,
and
no covenant or obligation shall be implied against Account Holder in connection
with this Agreement.
SECTION
14. Certificates
of Authorized Persons.
Secured
Party and Grantor agree to furnish to Account Holder a new Certificate of
Authorized Persons in the event of any change in the then present Authorized
Persons. Until such new Certificate is received, Account Holder shall be fully
protected in acting upon directions of such present Authorized
Persons.
SECTION
15. Governing
Law.
The law
of the State of New York will govern this Agreement and the Account. The Account
Holder and the Grantor may not change the law governing the Account without
the
Secured Party’s express prior written agreement.
SECTION
16. Entire
Agreement.
This
Agreement is the entire agreement, and supersedes any prior agreements, and
contemporaneous oral agreements, of the parties concerning its subject
matter.
SECTION
17. Amendments.
No
amendment of, or waiver of a right under, this Agreement will be binding unless
it is in writing and signed by the party to be charged.
SECTION
18. Notices.
A
notice or other communication to a party under this Agreement will be in writing
(it being understood that writing for this purpose includes facsimile
transmission or electronic mail), will be sent to the party’s address set forth
in Exhibit A or to such other address as the party may notify the other parties
and will be effective on receipt.
SECTION
19. Binding
Effect.
This
Agreement shall become effective when it shall have been executed by the
Grantor, the Secured Party and the Account Holder, and thereafter shall be
binding upon and inure to the benefit of the Grantor, the Secured Party and
the
Account Holder and their respective successors and assigns.
SECTION
20. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement. Delivery of an executed counterpart of a signature page to
this
Agreement by facsimile shall be effective as delivery of an original executed
counterpart of this Agreement.
4
SECTION
21. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS ACCOUNT CONTROL
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CONTROL AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
21.
SECTION
22. Fees
and Expenses.
In
connection with its services hereunder, the Account Holder shall be entitled
to
charge and the Grantor hereby agrees to pay such fees and reasonable charges
as
are set forth on that certain “Account Holder Services Fee Schedule” attached
hereto as Schedule I.
SECTION
23. Successors
and Assigns.
This
Agreement shall inure to the benefit of, and be binding upon, the successors
and
permitted assigns of each of the parties hereto. None of the rights, duties
or
obligations of any of the parties hereunder may be assigned without the express
written consent of the other parties.
SECTION
24. Other
Dealings.
Nothing
herein shall restrict, or prevent the parties herein from entering into, other
business transactions or relationships with any of the other parties
hereto.
SECTION
25. Account
a Deposit Account.
The
parties hereto acknowledge and agree that the Account is a “deposit account”
within the meaning of Section 9-102(a)(29) of the NYUCC, this Agreement
constitutes an “authenticated record” for purposes of Section 9-104 of the NYUCC
and the Secured Party maintains exclusive “control” of the Account pursuant to
Section 9-104(a)(2) of the NYUCC.
5
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
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MRU
HOLDINGS, INC., as Grantor
|
|
|
By:
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/s/ Xxxxxx Xxxx |
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Name:
|
Xxxxxx Xxxx |
|
Title:
|
Chief Financial Officer |
|
VIKING
ASSET MANAGEMENT L.L.C., a California limited liability company,
as
Secured Party
|
|
|
By:
|
/s/
S. Xxxxxxx Xxxxxxx
|
|
Name:
|
S.
Xxxxxxx Xxxxxxx
|
|
Title:
|
Chief
Financial Officer
|
|
THE
BANK OF NEW YORK TRUST COMPANY, N.A., as Account Holder
|
|
|
By:
|
/s/
Xxxxxxxx Xxxxxxx
|
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Name:
|
Xxxxxxxx Xxxxxxx |
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Title:
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Assistant Vice President |
Exhibit
A to the
ADDRESSES
FOR NOTICES
|
·
|
To
MRU HOLDINGS, INC.:
|
MRU
Holdings, Inc.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx Xxxxxxxx
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
·
|
To
Viking Asset Management L.L.C.:
|
Viking
Asset Management, LLC
000
Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxxxx, Xx 00000
Attention:
Xxxxxxx Xxxxxxx
Fax:
(000) 000-0000
with
a
copy to:
Viking
Asset Management, LLC
00
Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxxx
Fax:
(000) 000-0000
|
·
|
To
THE BANK OF NEW YORK TRUST COMPANY, N.A.:
|
The
Bank
of New York Trust Company, N.A.
0
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attn: Structured
Finance--MRU
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Exhibit
B to the
INCUMBENCY
CERTIFICATE
The
undersigned, ____________, being the ____________ of ____________ (the
"Company") does hereby certify that the individuals listed below are qualified
and acting officers of the Company as set forth in the right column opposite
their respective names and the signatures appearing in the extreme right column
opposite the name of each such officer is a true specimen of the genuine
signature of such officer and such individuals have the authority to execute
documents to be delivered to, or upon the request of, The Bank of New York
Trust
Company, N.A., as Account Holder under the Account Control Agreement dated
as of
October 19, 2007, by and among the Company, [MRU Holdings, Inc.,
a
Delaware corporation as Grantor] [Viking Asset Management LLC, as Secured Party]
[use
name of party not signing below],
and The
Bank of New York Trust Company, N.A.
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Name
|
Title
|
Signature
|
||
IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate as of the 19th day of October, 2007.
|
Name:
|
|
Title:
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