CONTROL ACCOUNT AGREEMENT (No Access by Borrower)
Exhibit
10.13
(No
Access by Borrower)
THIS
CONTROL ACCOUNT AGREEMENT ("Agreement") is made effective as of the 21st day of
April, 2009 by and among Amber Ready, Inc., a Nevada corporation having a
principal place of business at 000 Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Borrower"), Xxxxxx Asset
Partners, LLC, a Delaware limited liability company having a principal place of
business at 00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx
00000 ("Collateral
Agent") 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. From
time to time on and after the date hereof, Borrower may issue up to $12,000,000
of its 18% secured convertible three year promissory notes (as each may be at
any time amended, extended, restated, renewed or modified, each a “Convertible
Note,” and collectively, the “Convertible Notes”), which are convertible into
Units upon the terms set forth in that certain Confidential Private Placement
Memorandum, dated March 19, 2009, delivered by the Borrower to the holders of
the Convertible Notes (the “Holders”).
B. Pursuant
to the Subscription Agreement in the form attached to the Memorandum, each
Holder has appointed and authorized the Collateral Agent to act as collateral
agent under this Agreement.
C. Pursuant
to a Security Agreement by and between Borrower and the Collateral Agent,
Borrower has granted to the Collateral Agent, for the benefit of the Holders,
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
D. It
is a condition precedent to the closing of the issuance and sale of the
Convertible Notes that Borrower shall have entered into this Agreement for the
benefit of the Holders.
E. Borrower
has opened a Deposit Account (as hereinafter defined) with
Depository.
F. 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:
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1. Defined
Terms. Capitalized terms used in this Agreement and not
specifically defined in this Agreement have the meaning provided in the Security
Agreement (as defined below). 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 the Borrower , designated as Account Number
_____________ , together with all replacements, substitutions, increases and
decreases of such account and all items from time to time on deposit
therein.
(c) “Security
Agreement”
means the security agreement between Borrower and Collateral Agent, of
even date herewith.
2. Name of
Account. The Deposit Account will be titled in the name of the
Borrower.
3. Control. (a)Notwithstanding
any separate agreement that Borrower may have with Collateral Agent or
Depository, Collateral Agent 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 shall comply with any such
instructions without any further consent from Borrower. Depository
shall be fully entitled to rely upon such instructions from Collateral Agent
even if such instructions are contrary to any instructions or demands that
Borrower may give to Depository. The Depository will not be liable to
Borrower for complying with Collateral Agent’s instructions relating to the
Deposit Account.
(b) Borrower
shall not be entitled to give to the Depository any instruction pertaining to or
concerning the Deposit Account or any funds in or credited to the Deposit
Account, except with the prior written consent of Collateral
Agent. The Depository shall not comply with any instruction given by
Borrower pertaining to or concerning the Deposit Account or any funds in or
credited to the Deposit Account, except with the prior written consent of
Collateral Agent.
(c) The
Depository agrees to use reasonable efforts to promptly notify the Collateral
Agent and the Borrower in the event it receives any written notice of any lien,
encumbrance or adverse claim against the Deposit Account or any of the funds
therein, unless prohibited from so doing by applicable law, judicial order or
decree.
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5. No Notice of Other
Assignment. Depository acknowledges and understands that it
has received no notice of any other assignment or pledge of funds at any time on
deposit in the Deposit Account and it shall promptly notify Collateral Agent 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
Depository for any of the above amounts, Borrower shall pay such deficiency to
Depository.
7. Fees. Borrower
shall 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 Depository’s services hereunder. Borrower acknowledges and agrees
that it shall be, and at all times remains, liable to Depository and Collateral
Agent 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
Depository and Collateral Agent as needed to enforce performance of this
Agreement. In the event that Borrower fails to pay for the foregoing
fees, charges, costs and expenses in connection with the Deposit
Account, Depository and Collateral Agent may deduct their
respective fees, charges, costs and expenses from the Deposit
Account. The standard fees of the Depository currently in effect are
set forth in the Depository’s Business Account Fee Schedule, as amended from
time to time, and in Schedule 1 attached hereto. Collateral Agent shall not be
liable to the Depository for any such taxes, fees or charges.
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8. Notices. Each
notice or other communication required or deemed desirable hereunder (other than
statements and information and documentation routinely provided by Depository
with respect to the Deposit Account) shall be in writing, shall be sent by
messenger or by registered or certified mail or by fax, shall be effective when
received and shall be sent to the relevant party at its address appearing above
or on the signature page hereof or to such other address as a party may by
notice pursuant to this paragraph designate from time to time, except notices to
the Depository shall be sent to: Signature Bank, 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxx X. Xxxxxxxx, 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
shall 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.
Collateral Agent shall 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.
11. Statements. Depository
agrees that it shall furnish to Borrower, with a copy to Collateral Agent,
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
Depository’s release of such account information to Collateral
Agent. The Depository’s liability for failure to comply with this
section shall not exceed the cost of providing such information.
12. Certain
Matters Affecting the Depository. The Depository 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 Depository
shall be determined solely by the express provisions of this
Agreement. The Depository 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 Depository. Substantial compliance by
Depository with its standard procedures for the services Depository 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 Depository 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
Depository 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 Depository’s reasonable control or for
indirect, special or consequential damages, (iii) in no event shall the
Depository be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Depository has been advised of the likelihood of such loss or damage and
regardless of the form of action, (iv) Depository 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) Depository 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
Depository 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 Depository
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
Depository may terminate this Agreement and be released of its obligations
hereunder immediately upon written notice to Borrower and Collateral Agent in
the event of suspected fraud or other illegal activity in connection with the
Deposit Account or this Agreement or the Depository becomes obligated to close
the Deposit Account under any statute, rule or regulation or any court or
administrative order or decree. Collateral Agent shall designate a
substitute Depository, in its sole discretion, promptly after receipt of notice
of resignation by the Depository and shall take all reasonable actions necessary
to cause such designated successors promptly to assume the obligations of the
Depository hereunder. Collateral Agent 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 Depository’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 Depository shall be
forwarded by the Depository directly to Collateral Agent, unless the Depository
shall have received written instruction from Collateral Agent prior to the
expiration of the thirty (30) day period set forth above (in the event
Depository elects to terminate this Agreement) or the thirty (30) day period set
forth above (in the event Collateral Agent elects to terminate this Agreement),
directing the Depository to send such funds to Borrower (in the event there are
funds remaining subsequent to a full and final payoff of the Convertible Notes)
or to a depository institution approved in writing by Collateral Agent (with
respect to any other event). Notwithstanding the foregoing, upon the Convertible
Notes being repaid or converted in their entirety, this Agreement shall
automatically terminate.
14. Successors
and Assigns; Assignments. This Agreement
shall bind and inure to the benefit of and be enforceable by the Depository,
Borrower and Collateral Agent and their respective successors and
assigns. Collateral Agent shall have the right to assign or transfer
its rights under this Agreement without limitation, provided that the assignee
or transferee meets the Depository’s Know Your Customer policy, has
complied with the Depository’s account documentation requirement and
the Depository is not prohibited under applicable law from providing
banking or other services with such assignee or transferee. The
Depository 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 Collateral Agent. Borrower shall have the
right to assign and transfer its rights and obligations hereunder only with the
prior consent of Collateral Agent and Depository. Any corporation
into which the Depository 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 Depository in its individual
capacity shall be a party, or any corporation to which substantially all the
deposit account business of the Depository in its individual capacity may be
transferred, shall be the Depository under this Agreement without further act.
Borrower shall not assign or otherwise encumber the Deposit Account or any funds
therein.
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15. Interpleader. If
at any time (i) Borrower becomes subject to a voluntary or involuntary
bankruptcy, reorganization, receivership or similar proceeding, or (ii)
Depository is served with legal process, which Depository, in good faith,
believes prohibits the disbursement of any funds deposited in the Depository or
(iii) the Depository, in good faith, is in doubt as to the action it should take
under this Agreement, the Depository shall have the right, on not less than ten
(10) Business Days’ prior written notice to Collateral Agent, to either (x)
place a hold on funds in the Deposit Account until such time as Depository
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
Collateral Agent and Borrower or in accordance with the final order of the court
in such action.
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.
21. Temporary Liquidity
Guarantee Program. Depository represents and warrants to
Collateral Agent, for the benefit of the Holders, and to the Borrower, that
Depository is, on the date hereof, and shall continue to be through December 31,
2009, a participant in the Temporary Liquidity Guarantee Program (the
“Program”), which guarantees the full amount of all of all funds currently held
in, and that may in the future be deposited in, the Deposit Account. In the
event that the Program expires on December 31, 2009 and is not renewed, or in
the event that the Program is terminated prior to the repayment or conversion of
all Convertible Notes, the Borrower shall cooperate with the Collateral Agent to
ensure that all funds in the Deposit Account are transferred to one or more
insured accounts at one or more other FDIC-insured financial institutions, at
the sole cost and expense of the Borrower, and on terms similar to this
Agreement and otherwise satisfactory to Collateral Agent, subject to the
requirements of the institutions in which such accounts are established. Pending
such transfer, all funds in the Deposit Account shall be delivered to Collateral
Agent to secure the obligations of the Borrower in accordance with this
Agreement.
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.
|
BORROWER:
|
|||
| AMBER READY, INC. | |||
|
Date
|
By:
|
/s/ Xxx Xxxxxxxxx | |
| Name: Xxx Xxxxxxxxx | |||
| Title: Chief Executive Officer | |||
| Address and fax for notices: | |||
| Amber
Ready, Inc.
000
Xxxxxxxxx Xxxxx, 0xx
Xxxxx
Xxxxxxxx,
XX 00000
Attn: Xxx
Xxxxxxxxx, Chief Executive Officer
Fax: (000)
000-0000
|
|||
| COLLATERAL AGENT: | |||
| XXXXXX ASSET PARTNERS, LLC | |||
|
Date
|
By:
|
/s/ Xxxxxx X. Xxxxx | |
| Name: Xxxxxx X. Xxxxx | |||
| Title: Secretary | |||
| Address and fax for notices: | |||
|
Xxxxxx
Asset Partners, LLC
00000
Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
Attn: Xxxxxx
X. Xxxxx, Secretary
Fax: (000)
000 0000
|
|||
| DEPOSITORY: | |||
| SIGNATURE BANK | |||
|
Date
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx X. Xxxxxxxx | |||
| Title: Group Director & SVP | |||
| By: | /s/ X. Xxxxxxxx | ||
| Name: X. Xxxxxxxx | |||
| Title: Associate Group Director | |||
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SCHEDULE
1
Fee
Schedule
Document
Review: $1,000
