EXHIBIT 10.73
(LOCKBOX - WITH ACTIVATION)
DEPOSIT ACCOUNT CONTROL AGREEMENT
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This Agreement is entered into as of June 23, 2004, among Host
America Corporation, Xxxxxxx Food Service Corporation and GlobalNet
Energy Investors, Inc. (each of the foregoing entities, collectively,
"Company"), Laurus Master Fund, Ltd. ("Lender"), and Fleet National Bank
("Bank") with respect to the following:
A. Bank has established and maintains for Company the
following post office numbers (the "Lockbox Addresses")
and deposit account numbers (the "Accounts"):
XX Xxx 00000 Xxxx Xxxxxxx Corporation
account #9485371811
PO Box 33344 Xxxxxxx Food Service
account #9485371926
XX Xxx 00000 Xxxxxxxxx Xxxxxx Investors
account #9485371950
B. Bank performs the services described in Exhibit A, which
includes receiving mail at the Lockbox Address, processing
it and depositing all checks and other payment
instructions ("Checks") into the Accounts (the "Lockbox
Service").
C. Company has assigned to Lender a security interest in the
Accounts and in Checks mailed to the Lockbox Address.
D. Company, Lender and Bank are entering into this Agreement
to evidence Lender's security interest in the Accounts and
such Checks and to provide for the disposition of net
proceeds of Checks deposited in the Accounts.
Accordingly, Company, Lender and Bank agree as follows:
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1. (a) This Agreement evidences Lender's control over the Accounts.
Notwithstanding anything to the contrary in the agreement between Bank
and Company governing the Accounts, Bank will comply with instructions
originated by Lender as set forth herein directing the disposition of
funds in the Accounts without further consent of the Company.
(b) Company represents and warrants to Lender and Bank that it has
not assigned or granted a security interest in the Accounts or any Check
deposited in the Accounts, except to Lender.
(c) Company will not permit the Accounts to become subject to any
other pledge, assignment, lien, charge or encumbrance of any kind, other
than Lender's security interest referred to herein.
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2. During the Activation Period (as defined below), Bank shall prevent
Company from making any withdrawals from the Accounts. Prior to the
Activation Period, Company may operate and transact business through the
Accounts in its normal fashion, including making withdrawals from the
Accounts, but covenants to Lender it will not close the Accounts.
Furthermore, Bank agrees that it (i) shall not permit Company to close
the Accounts without written approval from Lender and (ii) will perform
the services described in Exhibit A, which includes receiving mail at the
Lockbox Address, processing it and depositing all Checks into the
Accounts, unless Lender consents to the contrary in writing. A
reasonable period of time following the commencement of the Activation
Period, and continuing on each Business Day thereafter, Bank shall
transfer all available balances in the Accounts to Lender at its account
specified in the Notice (as defined below). The "Activation Period"
means the period which commences within a reasonable period of time not
to exceed two Business Days after Bank's receipt of a written notice from
Lender in the form of Exhibit B (the "Notice"). A "Business Day" is each
day except Saturdays, Sundays and Bank holidays. Funds are not available
if, in the reasonable determination of Bank, they are subject to a hold,
dispute or legal process preventing their withdrawal.
3. Bank agrees it shall not offset, charge, deduct or otherwise
withdraw funds from the Accounts, except as permitted by Section 4, until
it has been advised in writing by Lender that all of Company's
obligations that are secured by the Checks and the Accounts are paid in
full. Lender shall notify Bank promptly in writing upon payment in full
of Company's obligations.
4. Bank is permitted to charge the Accounts:
(a) for its fees and charges relating to the Accounts or
associated with the Lockbox Service and this Agreement; and
(b) in the event any Check deposited into the Accounts is
returned unpaid for any reason or for any breach of warranty claim.
5. (a) If the balances in the Accounts are not sufficient to
compensate Bank for any fees or charges due Bank in connection with the
Accounts, the Lockbox Service or this Agreement, Company agrees to pay
Bank on demand the amount due Bank. Company will have breached this
Agreement if it has not paid Bank, within five days after such demand,
the amount due Bank.
(b) If the balances in the Accounts are not sufficient to
compensate Bank for any returned Check, Company agrees to pay Bank on
demand the amount due Bank. If Company fails to so pay Bank immediately
upon demand, Lender agrees to pay Bank within five days after Bank's
demand to Lender to pay any amount received by Lender with respect to
such returned Check. The failure to so pay Bank shall constitute a
breach of this Agreement.
(c) Company hereby authorizes Bank, without prior notice, from
time to time to debit any other account Company may have with Bank for
the amount or amounts due Bank under subsection 5(a) or 5(b).
6. (a) Each Business Day, Bank will send any Checks not processed
in accordance with the Lockbox Service set-up documents as well as any
other materials, such as
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invoices, received at the Lockbox Address plus information regarding the
deposit for the day to the address specified below for Company or as
otherwise specified in writing by Company to Bank, and will send a copy
of the deposit advice to the address specified below for Lender.
(b) In addition to the original Bank statement provided to
Company, Bank will provide Lender with a duplicate of such statement.
7. (a) Bank will not be liable to Company or Lender for any
expense, claim, loss, damage or cost ("Damages") arising out of or
relating to its performance under this Agreement other than those Damages
which result directly from its acts or omissions constituting negligence
or intentional misconduct.
(b) In no event will Bank be liable for any special, indirect,
exemplary or consequential damages, including but not limited to lost
profits.
(c) Bank will be excused from failing to act or delay in
acting, and no such failure or delay shall constitute a breach of this
Agreement or otherwise give rise to any liability of Bank, if (i) such
failure or delay is caused by circumstances beyond Bank's reasonable
control, including but not limited to legal constraint, emergency
conditions, action or inaction of governmental, civil or military
authority, fire, strike, lockout or other labor dispute, war, riot,
theft, flood, earthquake or other natural disaster, breakdown of public
or private or common carrier communications or transmission facilities,
equipment failure, or negligence or default of Company or Lender or (ii)
such failure or delay resulted from Bank's reasonable belief that the
action would have violated any guideline, rule or regulation of any
governmental authority.
(d) Bank shall have no duty to inquire or determine whether
Company's obligations to Lender are in default or whether Lender is
entitled to provide the Notice to Bank. Bank may rely on notices and
communications it believes in good faith to be genuine and given by the
appropriate party.
(e) Notwithstanding any of the other provisions in this
Agreement, in the event of the commencement of a case pursuant to Xxxxx
00, Xxxxxx Xxxxxx Code, filed by or against Company, or in the event of
the commencement of any similar case under then applicable federal or
state law providing for the relief of debtors or the protection of
creditors by or against Company, Bank may act as Bank deems necessary to
comply with all applicable provisions of governing statutes and shall not
be in violation of this Agreement as a result.
(f) Bank shall be permitted to comply with any writ, levy
order or other similar judicial or regulatory order or process concerning
the Lockbox Address, the Accounts or any Check and shall not be in
violation of this Agreement for so doing.
8. Company and Lender shall jointly and severally indemnify Bank
against, and hold it harmless from, any and all liabilities, claims,
costs, expenses and damages of any nature (including but not limited to
allocated costs of staff counsel, other reasonable attorney's fees and
any fees and expenses) in any way arising out of or relating to disputes
or legal actions concerning Bank's provision of the services described in
this Agreement. This section does not apply to any cost or damage
attributable to the gross negligence or intentional misconduct of
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Bank. Company's and Lender's obligations under this section shall
survive termination of this Agreement.
9. Company and Lender shall jointly and severally pay to Bank, upon
receipt of Bank's invoice, all costs, expenses and attorneys' fees
(including allocated costs for in-house legal services) incurred by Bank
in connection with the enforcement of this Agreement and any instrument
or agreement required hereunder, including but not limited to any such
costs, expenses and fees arising out of the resolution of any conflict,
dispute, motion regarding entitlement to rights or rights of action, or
other action to enforce Bank's rights in a case arising under Xxxxx 00,
Xxxxxx Xxxxxx Code. Company agrees to pay Bank, upon receipt of Bank's
invoice, all costs, expenses and attorneys' fees (including allocated
costs for in-house legal services) incurred by Bank in the preparation
and administration of this Agreement (including any amendments hereto or
instruments or agreements required hereunder).
10. Termination and Assignment of this Agreement shall be as follows:
(a) Lender may terminate this Agreement by providing notice to
Company and Bank that all of Company's obligations which are secured by
Checks and the Accounts are paid in full. Lender may also terminate or
it may assign this Agreement upon 30 day's prior written notice to
Company and Bank. Bank may terminate this Agreement upon 30 days' prior
written notice to Company and Lender. Company may not terminate this
Agreement or the Lockbox Service except with the written consent of
Lender and upon prior written notice to Bank.
(b) Notwithstanding subsection 10(a), Bank may terminate this
Agreement at any time by written notice to Company and Lender if either
Company or Lender breaches any of the terms of this Agreement, or any
other agreement with Bank.
11. (a) Each party represents and warrants to the other parties
that (i) this Agreement constitutes its duly authorized, legal, valid,
binding and enforceable obligation; (ii) the performance of its
obligations under this Agreement and the consummation of the transactions
contemplated hereunder will not (A) constitute or result in a breach of
its certificate or articles of incorporation, by-laws or partnership
agreement, as applicable, or the provisions of any material contract to
which it is a party or by which it is bound or (B) result in the
violation of any law, regulation, judgment, decree or governmental order
applicable to it; and (iii) all approvals and authorizations required to
permit the execution, delivery, performance and consummation of this
Agreement and the transactions contemplated hereunder have been obtained.
(b) The parties each agree that it shall be deemed to make and
renew each representation and warranty in subsection 11(a) on and as of
each day on which Company uses the services set forth in this Agreement.
12. (a) This Agreement may be amended only by a writing signed by
Company, Lender and Bank; except that Bank's charges are subject to
change by Bank upon 30 days' prior written notice to Company.
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(b) This Agreement may be executed in counterparts; all such
counterparts shall constitute but one and the same agreement.
(c) This Agreement controls in the event of any conflict
between this Agreement and any other document or written or oral
statement. This Agreement supersedes all prior understandings, writings,
proposals, representations and communications, oral or written, of any
party relating to the subject matter hereof.
(d) This Agreement shall be interpreted in accordance with
laws of the State of New York without reference to that state's
principles of conflicts of law.
13. Any written notice or other written communication to be given under
this Agreement shall be addressed to each party at its address set forth
on the signature page of this Agreement or to such other address as a
party may specify in writing. Except as otherwise expressly provided
herein, any such notice shall be effective upon receipt.
14. Nothing contained in the Agreement shall create any agency,
fiduciary, joint venture or partnership relationship between Bank and
Company or Lender. Company and Lender agree that nothing contained in
this Agreement, nor any course of dealing among the parties to this
Agreement, shall constitute a commitment or other obligation on the part
of Bank to extend credit to Company or Lender.
15. This Agreement shall be binding upon, and shall inure to the benefit
of, the permitted successors and assigns of the parties.
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In Witness Whereof, the parties hereto have executed this
Agreement by their duly authorized officers as of the day and year first
above written.
HOST AMERICA CORPORATION
("Company")
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
-------------------------- Address for notices:
Title: CEO 0 Xxxxxxxx
------------------------- Xxxxxx, XX 00000
XXXXXXX FOOD SERVICE CORPORATION
("Company")
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
-------------------------- Address for notices:
Title: CEO 000 Xxxxxxx Xx.
------------------------- Xxx Xxxxx, XX 00000
GLOBALNET ENERGY INVESTORS, INC.
("Company")
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
-------------------------- Address for notices:
Title: CEO 0000 Xxxxxx Xx.
------------------------- Xxxxxxxxxx, XX 00000
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LAURUS MASTER FUND, LTD.
("Lender")
By: /s/ Xxxxx Grin
----------------------------
Name: Xxxxx Grin
-------------------------- Address for notices:
Title: Managing Partner 000 Xxxxx Xxxxxx, 00xx Floor
------------------------- Xxx Xxxx, XX 00000
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Fleet National Bank
("Bank")
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. Address for notices:
--------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx. 1. CASH MANAGEMENT ACCOUNTS
------------------------------ ADMINISTRATION
Title: Sr. VP Fleet National Bank
----------------------------- 000 Xxxxxx Xxxx Xx.
Xxxxxxx, XX 00000
Mail Stop: CT2-507-01-02
Phone: 000-000-0000
Fax: 0-000-000-0000
2. XXXXXX X. XXXXXXXX, XX.
Fleet National Bank
000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Mail Stop: CT2-226-26-04
Phone: 000-000-0000
Fax: 000-000-0000
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EXHIBIT A
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TO DEPOSIT ACCOUNT CONTROL AGREEMENT
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STANDARD TERMS AND CONDITIONS
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The Lockbox Service involves processing Checks that are received at a
Lockbox Address. With this Service, Company instructs its customers to
mail checks it wants to have processed under the Service to the Lockbox
Address. Bank picks up mail at the Lockbox Address according to its mail
pick-up schedule. Bank will have unrestricted and exclusive access to
the mail directed to the Lockbox Address. Bank will provide Company with
the Lockbox Service for a Lockbox Address when Company has completed and
Bank has received Bank's then current set-up documents for the Lockbox
Address.
If Bank receives any mail containing Company's lockbox number at Bank's
lockbox operations location (instead of the Lockbox Address), Bank may
handle the mail as if it had been received at the Lockbox Address.
PROCESSING
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Bank will handle Checks received at the Lockbox Address according to the
applicable deposit account agreement, as if the Checks were delivered by
Company to Bank for deposit to the Account, except as modified by these
Terms and Conditions.
Bank will open the envelopes picked up from the Lockbox Address and
remove the contents. For the Lockbox Address, Checks and other documents
contained in the envelopes will be inspected and handled in the manner
specified in the Company's set-up documents. Bank captures and reports
information related to the lockbox processing, where available, if
Company has specified this option in the set-up documents. Bank will
endorse all Checks Bank processes on Company's behalf.
If Bank processes an unsigned check as instructed in the set-up
documents, and the check is paid, but the account owner does not
authorize payment, Company agrees to indemnify Bank, the drawee bank
(which may include Bank) and any intervening collecting bank for any
liability or expense incurred by such indemnitee due to the payment and
collection of the check.
If Company instructs Bank not to process a check bearing a handwritten or
typed notation "Payment in Full" or words of similar import on the face
of the check, Company understands that Bank has adopted procedures
designed to detect Checks bearing such notations; however, Bank will not
be liable to Company or any other party for losses suffered if Bank fails
to detect Checks bearing such notations.
RETURNED CHECK
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Unless Company and Bank agree to another processing procedure, Bank will
reclear a Check once which has been returned and marked "Refer to Maker,"
"Not Sufficient Funds" or "Uncollected Funds." If the Check is returned
for any other reason or if the Check is returned a second time, Bank will
debit the Accounts and return the Check to Company. Company agrees
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that Bank will not send a returned item notice to Company for a returned
Check unless Company and Bank have agreed otherwise.
ACCEPTABLE PAYEES
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For the Lockbox Address, Company will provide to Bank the names of
Acceptable Payees ("Acceptable Payee" means Company's name and any other
payee name provided to Bank by Company as an acceptable payee for Checks
to be processed under the Lockbox Service). Bank will process a check
only if it is made payable to an Acceptable Payee and if the check is
otherwise processable. Company warrants that each Acceptable Payee is
either (i) a variation of Company's name or (ii) is an affiliate of
Company which has authorized Checks payable to it to be credited to the
Accounts. Bank may treat as an Acceptable Payee any variation of any
Acceptable Payee's name that Bank deems to be reasonable.
CHANGES TO PROCESSING INSTRUCTIONS
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Company may request Bank orally or in writing to make changes to the
processing instructions (including changes to Acceptable Payees) for any
Lockbox Address by contacting its Bank representative, so long as such
changes do not conflict with the terms of the Deposit Account Control
Agreement. Bank will not be obligated to implement any requested changes
until Bank has actually received the requests and had a reasonable
opportunity to act upon them. In making changes, Bank is entitled to
rely on instructions purporting to be from Company.
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EXHIBIT B
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DEPOSIT ACCOUNT CONTROL AGREEMENT
---------------------------------
[Letterhead of Lender]
TO: CASH MANAGEMENT ACCOUNTS ADMINISTRATION
Fleet National Bank
000 Xxxxxx Xxxx Xx.
Xxxxxxx, XX 00000
Mail Stop: CT2-507-01-02
Phone: 000-000-0000
Fax: 0-000-000-0000
Re: [Name of Company]
Account No._______________________________
Ladies and Gentlemen:
Reference is made to the Deposit Account Control Agreement dated as
of June 23, 2004 (the "Agreement") among [Company Name], us and you
regarding the above-described account (the "Account"). In accordance
with Section 2 of the Agreement, we hereby give you notice of our
exercise of control of the Account and we hereby instruct you to transfer
funds to our account as follows:
Bank Name: ______________________________
Bank Address: ______________________________
ABA No.: ______________________________
Account Name: ______________________________
Account No.: ______________________________
Beneficiary's Name: ______________________________
Very truly yours,
LAURUS MASTER FUND, LTD.
as Lender
By:___________________________
Name:_________________________
Title:________________________
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