CONTROL ACCOUNT AGREEMENT (No Access by Borrower)
(No
Access by Borrower)
THIS
CONTROL ACCOUNT AGREEMENT ("Agreement") is made effective as of
the 3rd day of November 2010 by and among ONE UP INNOVATIONS, INC., a
Georgia corporation having a principal place of business at 0000 Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 ("Borrower"), CREDIT CASH NJ,
LLC, a Delaware company, having a place of business at 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000 ("Lender") and SIGNATURE BANK, a
New York commercial bank, having a principal place of business at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Depository").
BACKGROUND
A. Pursuant
to the terms of the Loan Agreement (as hereinafter defined) Lender has agreed to
make a loan to Borrower.
B. Borrower
has granted to Lender, inter alia, a security interest in all dividends, cash,
securities, investment property, financial assets and other property issued,
paid, declared and/or distributed to Borrower and all rights with respect to the
Deposit Account (as hereinafter defined) and all funds therein.
C. Borrower
has opened a Deposit Account (as hereinafter defined).
D. The
parties are entering into this Agreement to set forth their rights and
obligations with respect to the Deposit Account
NOW,
THEREFORE, intending to be legally bound hereby, the parties hereto agree as
follows:
1. Defined
Terms. Capitalized terms used in this Agreement and not
specifically defined in this Agreement have the meaning provided in the Loan
Agreement. The following terms have the respective meanings set forth
below.
(a) “Business Day” means
any day other than a Saturday, Sunday or any day on which Federal or state
chartered banks in the State of New York or in the state where the Deposit
Account is located are permitted to be closed for legal holidays or by
government directive.
(b)
“Deposit
Account” means the
non-interest bearing demand deposit account that Borrower has opened with
Depository in the name of ONE UP INNOVATIONS, INC. designated as Account
Number 15XXXXXX47 together with all
replacements, substitutions, increases and decreases of such account and
all items from time to time on deposit therein.
(c)
“Loan
Agreement”
means the loan agreement between Borrower and Lender dated on or about
November 3, 2010 and entitled Credit Card Advance Agreement.
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2. Name of
Account. The Deposit Account will be titled in the name of ONE
UP INNOVATIONS, INC.
3. Control. Notwithstanding
any separate agreement that Borrower may have with Lender or Depository, Lender
shall be entitled and is hereby irrevocably authorized by Borrower, for purposes
of this agreement, at any time, to give Depository instructions as to the
withdrawal or disposition of any funds from time to time credited to the Deposit
Account, or as to any other matters relating to the Deposit Account, without
Borrower's further consent. Depository hereby agrees to comply with
any such instructions without any further consent from
Borrower. Depository shall be fully entitled to rely upon such
instructions from Lender even if such instructions are contrary to any
instructions or demands that Borrower may give to Depository. The
Depositary will not be liable to Borrower for complying with Lender’s
instructions relating to the Deposit Account. Until Depository
receives written notice to the contrary, Lender hereby instructs Depository to
automatically transfer all monies available in the Deposit Account, on a daily
basis by federal wire transfer, to Lender’s account as set forth in Schedule 2, attached
hereto (the “Lender’s Account”).
4. Funds in Deposit Account as
Security for Lender’s Loan To Borrower; Grant of Security
Interest. As security for full payment of the loans made under
the Loan Agreement and timely performance of Borrower’s obligations under the
Loan Agreement and this Agreement, Borrower hereby pledges, transfers, assigns
and sets over to Lender, and grants to Lender a continuing security interest in
and to, the Deposit Account, all money deposited therein from time to time, and
all profits and proceeds thereof. Borrower agrees to execute,
acknowledge, deliver, file or do, at its sole expense, all other acts,
assignments, notices, agreements or other instruments as Lender may reasonably
require in order to perfect the foregoing security interest, pledge and
assignment or otherwise to fully effectuate the rights granted to Lender by this
section. This Agreement constitutes a “security agreement” and the
Deposit Account constitutes a “deposit account” within the meaning of Article 9
of the UCC. In addition to all other rights and remedies provided for
herein or otherwise available at law or in equity, Lender shall have all rights
of a secured party under Article 9 of the UCC with respect to the Deposit
Account and funds deposited therein. Borrower and Depository acknowledge and
agree that all funds deposited in the Deposit Account are held in Borrower’s
name for the benefit of Lender and Lender shall have sole right to access and
withdraw such funds. Borrower shall have no right of access to and
withdrawal from the Deposit Account. Borrower shall not assign or otherwise
encumber the Deposit Account or any funds therein.
5. No Notice of Other
Assignment. Depository acknowledges that it has received no
notice of any other assignment or pledge of funds at any time on deposit in the
Deposit Account and agrees that it will promptly notify Lender in the event that
it receives notice of any other assignment or pledge thereof.
6. No
Lien. Depository hereby acknowledges that it has no lien
against or security interest in the Deposit Account or any funds
therein. Depository hereby waives any right of offset, deduction,
banker's lien or other claim against any and all existing or future funds in the
Deposit Account, except that the Depository may, however, from time to time
debit the Deposit Account for (i) any of Depository’s customary charges relating
to the Deposit Account, (ii) the reversal of any provisional credits to the
Deposit Account for items returned unpaid or (iii) the reversal of any amounts
credited to the Deposit Account in error. If the amount of available and
collected funds in the Deposit Account is insufficient to fully reimburse
Depositary for any of the above amounts, Borrower agrees to pay such deficiency
to Depositary.
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7. Fees. Borrower
agrees to pay upon demand all taxes, fees and charges due or owing with in
connection with the maintenance of the Deposit Account and this Agreement and
the Depositary’s services hereunder. Borrower acknowledges and agrees
that it shall be, and at all times remains, liable to Depositary and Lender for
all fees, charges, costs and expenses in connection with the Deposit Account,
this Agreement and the enforcement hereof, including, without limitation, the
reasonable fees and expenses of legal counsel to Depositary and Lender as needed
to enforce performance of this Agreement. In the event that Borrower
fails to pay for fees, charges, costs and expenses in connection with the
Deposit Account, Bank may deduct such fees, charges, costs and expenses from the
Deposit Account. The standard fees of the Depositary currently in
effect are set forth in the Depositary’s Business Account Fee Schedule, as
amended from time to time, and in Schedule 1 attached hereto. Any such taxes,
fees or charges paid by Lender on behalf of Borrower and not promptly reimbursed
by Borrower shall be considered part of the Debt (as defined in the Loan
Agreement).
8. Notices. Each
notice or other communication required or deemed desirable hereunder (other than
statements and information and documentation routinely provided by Depositary
with respect to the Deposit Account) shall be in writing, shall be sent by
messenger or by registered or certified mail, shall be effective when received
and shall be sent to the relevant party at its address appearing above or to
such other address as a party may by notice pursuant to this paragraph designate
from time to time, except notices to the Depositary shall be sent to Signature
Bank, 000 Xxxxxxxx, Xxx # 000, Xxxxxxxxx: Xxxxxxx XxXxxxxx, Group Director and
Senior Vice President, Telephone: 000-000-0000, Fax:
000-000-0000.
9. Binding
Effect. This Agreement and all rights and powers granted
hereby will bind and inure to the benefit of the parties hereto and their
respective permitted representatives, successors and assigns.
10. Indemnification. Borrower
agrees to fully indemnify, release and hold Depository, its officers, directors,
attorneys, representatives, employees and agents harmless from and against any
claims, demands, liabilities, losses, costs, damages and expenses (including
attorneys' fees and expenses) incident thereto, which may be asserted against or
incurred by Depository, its officers, directors, employees and agents, whether
with or without basis in fact or in law, arising out of, or with respect to any
act or omission to act on Depository's part in connection with this Agreement.
Lender agrees to release Depository, its officers, directors, attorneys,
representatives, employees and agents from and against any claims, demands,
liabilities, losses, costs, damages and expenses (including attorneys' fees and
expenses) incident thereto, which may be asserted against or incurred by
Depository, its officers, directors, employees and agents, whether with or
without basis in fact or in law, arising out of, or with respect to any act or
omission to act on Depository's part in connection with this Agreement, except
to the extent arising out of the gross negligence or willful misconduct of
Depository. The provisions of this Section 10 shall survive termination of this
Agreement.
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11. Statements. Depository
agrees that it shall furnish to Borrower, with a copy to Lender, periodic
statements itemizing activity with respect to the Deposit Account in accordance
with Bank’s regular practices for providing account statements to its customers.
Borrower shall be deemed at all times to have consented to Depositary’s release
of such account information to Lender. The Depositary’s liability for
failure to comply with this section shall not exceed the cost of providing such
information.
12. Certain
Matters Affecting the Depositary. The Depositary may rely and
shall be protected in acting or refraining from acting upon any notice
(including but not limited to electronically confirmed facsimiles of such
notice) believed by it to be genuine and to have been signed or presented by the
proper party or parties. The duties and obligations of the Depositary
shall be determined solely by the express provisions of this
Agreement. The Depositary shall not be liable except for the
performance of such party’s duties and obligations as are specifically set forth
in this Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Depositary. Substantial compliance by
Depositary with its standard procedures for the services Depositary is providing
hereunder shall be deemed to be the exercise by it of ordinary
care. Notwithstanding anything to the contrary contained herein, (i)
in the administration of the account hereunder, the Depositary may execute any
of its powers and perform its duties hereunder directly or through agents or
attorneys and may, consult with counsel, accountants and other
skilled persons to be selected and retained by it, (ii) in no event shall
Depositary be liable either directly or indirectly for losses or delays
resulting from force
majeure, computer malfunctions, interruption of communication facilities,
labor difficulties or other causes beyond Depositary’s reasonable control or for
indirect, special or consequential damages, (iii) in no event shall the
Depositary be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Depositary has been advised of the likelihood of such loss or damage and
regardless of the form of action, (iv) Depositary shall not be under any
obligation or duty to perform any act which would involve it in expense or
liability or to institute or defend any suit in respect hereof, or to advance
any of its own monies, (v) Depositary shall not incur any liability for
following the instructions herein contained or expressly provided for, or
written instructions given by the parties hereto, and (vi) in the event that the
Depositary shall be uncertain as to its duties or rights hereunder or shall
receive instructions, claims or demands from any party hereto which, in its
opinion, conflict with any of the provisions of this Agreement, it shall be
entitled to refrain from taking any action and its sole obligation shall be to
keep safely all property held in the Deposit Account until it shall be directed
otherwise in writing by all of the other parties hereto or by a final order or
judgment of a court of competent jurisdiction.
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13. Termination. The Depositary
may resign from its obligations under this Agreement at any time after thirty
(30) days’ prior written notice to the other parties hereto; provided, however, that
Depositary may terminate this Agreement and be released of its obligations
hereunder immediately upon written notice to Borrower and Lender in the event of
suspected fraud or other illegal activity in connection with the Deposit Account
or this Agreement or the Depositary becomes obligated to close the Deposit
Account under any statute, rule or regulation or any court or administrative
order or decree. Lender shall designate a substitute Depositary, in
its sole discretion, promptly after receipt of notice of resignation by the
Depositary and shall take all reasonable actions necessary to cause such
designated successors promptly to assume the obligations of the Depositary
hereunder. Lender may terminate this Agreement at any time after thirty (30)
days’ prior written notice to the other parties hereto. Borrower has
no right to terminate this Agreement or close the Deposit Account established
hereunder. Upon any termination of this Agreement, the Depositary’s
rights to receive payment and reimbursement of the fees and expenses from
Borrower under this Agreement shall survive any termination of this
Agreement. Upon termination of this Agreement, all funds remaining in
the Deposit Account received by the Depositary shall be forwarded by the
Depositary directly to Lender, unless the Depositary shall have received written
instruction from Lender prior to the expiration of the thirty (30) day period
set forth above (in the event Depositary elects to terminate this Agreement) or
the thirty (30) day period set forth above (in the event Lender elects to
terminate this Agreement), directing the Depositary to send such funds to
Borrower (in the event there are funds remaining subsequent to a full and final
payoff of the Loan) or to a depository institution approved in writing by Lender
(with respect to any other event).
14. Successors
and Assigns; Assignments. This Agreement
shall bind and inure to the benefit of and be enforceable by the Depositary,
Borrower and Lender and their respective successors and
assigns. Lender shall have the right to assign or transfer its rights
under this Agreement without limitation, provided that the assignee or
transferee meets the Deposit Bank’s Know Your Customer policy, has complied with
the Deposit Bank’s account documentation requirement and the Deposit Bank is not
prohibited under applicable law from providing banking or other services with
such assignee or transferee. The Depositary shall have the right to
assign or transfer its rights and obligations hereunder only in connection with
a termination, as set forth in Section 13, or with the prior consent of
Lender. Borrower shall have the right to assign and transfer its
rights and obligations hereunder only with the prior consent of Lender and
Depositary. Any corporation into which the Depositary in its
individual capacity may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Depositary in its individual capacity shall be a
party, or any corporation to which substantially all the deposit account
business of the Depositary in its individual capacity may be transferred, shall
be the Depositary under this Agreement without further act. Borrower shall not
assign or otherwise encumber the Deposit Account or any funds
therein.
15. Interpleader. If
at any time (i) Borrower becomes subject to a voluntary or involuntary
bankruptcy, reorganization, receivership or similar proceeding, or (ii)
Depositary is served with legal process, which Depositary, in good faith,
believes prohibits the disbursement of any funds deposited in the Depositary or
(iii) the Depositary, in good faith, is in doubt as to the action it should take
under this Agreement, the Depositary shall have the right to either (x) place a
hold on funds in the Deposit Account until such time as Depositary receives an
appropriate court order or other assurance satisfactory to it as to the
disposition of the funds in the Deposit Account or (y) commence at Borrower’s
expense an interpleader action in any competent Federal or State Court and to take
no further action except in accordance with joint instructions from Lender and
Borrower or in accordance with the final order of the court in such
action.
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16. Governing
Law and Venue. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York applicable to agreements made and to be entirely
performed within such State, without regard to choice of law principles and any
action brought hereunder shall be brought in the courts of the State of New
York, located in the County of New York. Each party hereto
irrevocably waives any objection on the grounds of venue, forum nonconveniens or
any similar grounds and irrevocably consents to service of process by mail or in
any manner permitted by applicable law and consents to the jurisdiction of said
courts.
17. Waiver
of Jury Trial. EACH OF PARTIES HERETO HEREBY IRREVOCABLY
WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING ANY
COUNTERCLAIM) OF ANY TYPE IN WHICH LENDER, THE DEPOSITARY OR BORROWER IS A PARTY
AS TO ALL MATTERS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
AGREEMENT.
18. No
Modifications. This Agreement may be amended, modified,
superseded or canceled, and any of the terms or conditions hereof may be waived,
only by a written instrument executed by each party hereto or, in the case of a
waiver, by the party waiving compliance. The failure of any party at
any time or times to require performance of any provision hereof shall in no
manner affect its right at a later time to enforce the same. No
waiver of any party of any condition, or of the breach of any term contained in
this Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or of the breach of any
other term of this Agreement. No party may assign any rights, duties
or obligations hereunder unless all other parties have given their prior written
consent.
19. Severability. If any term or
provision set forth in this Agreement shall be invalid or unenforceable, the
remainder of this Agreement, other than those provisions held invalid or
unenforceable, shall be construed in all respects as if such invalid or
unenforceable term or provision were omitted.
20. Counterparts. This
Agreement and any modification or amendment of this Agreement may be executed in
several counterparts or by separate instruments and all of such counterparts and
instruments shall constitute one agreement, binding on all of the parties
hereto.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement intending to be
legally bound hereby.
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BORROWER:
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ONE
UP INNOVATIONS, INC.
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By:
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/s/ Xxxxx Xxxxxxxx
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Name:
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Xxxxx
Xxxxxxxx
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Title:
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President
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LENDER:
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CREDIT
CASH NJ, LLC
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By:
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/s/ Xxxx Xxxxxx
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Name:
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Xxxx
Xxxxxx
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Title:
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President
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DEPOSITORY:
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SIGNATURE
BANK
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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VP/Group
Director
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SCHEDULE
1
Fee
Schedule
Document
Review:
$500/hour
charged by Depository if any changes are requested, whether or not change
request is accepted.
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SCHEDULE
2
LENDER’S
REMITTANCE INSTRUCTIONS
Effective
immediately, all collected and available balances in the Deposit Account shall
be wire transferred by the Depository, on a daily basis, to
the following account of Lender or such other account as Lender may designate
from time to time in accordance with the Agreement (the “Lender’s
Account”):
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Bank
name:
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Signature
Bank
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000
Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Routing/ABA
Number:
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02XXXXX76
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Account
Name to credit:
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Credit
Cash NJ
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Account
Number to credit:
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15XXXXXX86
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Reference:
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One
Up Innovations
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