BLOCKED ACCOUNT CONTROL AGREEMENT
EXHIBIT
10.15
U.S. Bank
National Association
000 00xx
Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx Xxxxxxx
Ladies
and Gentlemen:
Please be advised that pursuant to
certain agreements dated February 20, 2009 among Apollo Gold Corporation, a
corporation organized under the laws of the Yukon Territory, Canada ("Company")
and RMB Resources Inc.,
a Delaware corporation (“Security Agent”), as security agent on behalf of
Macquarie Bank Limited and RMB Australia Holdings Limited, Company has granted
to Security Agent a security interest in all rights of the Company with respect
to account numbered 103690231420 (such account, together with all substitutions
and replacements therefor, the "Debt Service Reserve Account") located at U.S.
Bank National Association ("Depositary Bank") and subject to the terms of the
Deposit Agreements (defined below).
1. Deposit Agreements. The
terms and conditions of this Agreement are in addition to any deposit account
agreements and other related agreements that Company has with Depositary Bank,
including without limitation all agreements concerning banking products and
services, treasury management documentation, account booklets containing the
terms and conditions of the Debt Service Reserve Account, signature cards, fee
schedules, disclosures, specification sheets and change of terms notices
(collectively, the "Deposit Agreements"). The provisions of this
Agreement shall supersede the provisions of the Deposit Agreements only to the
extent the provisions herein are inconsistent with the Deposit Agreements, and
in all other respects, the Deposit Agreements shall remain in full force and
effect. All items deposited into the Debt Service Reserve Account shall be
processed according to the provisions of the Deposit Agreements, as amended by
this Agreement.
2. Security
Interest. Company hereby grants to Security Agent a security
interest in, among other property, the Debt Service Reserve Account and all
credits or proceeds thereto and all monies, checks and other instruments held or
deposited therein (all of which shall be included in the definition of the "Debt
Service Reserve Account"). Company represents and warrants that there
are no perfected liens or encumbrances with respect to the Debt Service Reserve
Account and covenants with Security Agent that it shall not enter into any
acknowledgment or agreement that gives any other person or entity except
Security Agent control over, or any other security interest, lien or title in,
the Debt Service Reserve Account.
3. Control. In order
to provide Security Agent with control over the Debt Service Reserve Account,
Company agrees that Depositary Bank may, and Depositary Bank agrees that it
will, comply with any and all orders, notices, requests and other instructions
originated by Security Agent directing disposition of the funds in the Debt
Service Reserve Account without any further consent from Company, even if such
instructions are contrary to any of Company’s instructions or demands or result
in Depositary Bank dishonoring items which may be presented for
payment. Company agrees that instructions from Security Agent may
include the giving of stop payment orders for any items presented to the Debt
Service Reserve Account, instructions to transfer funds to or for the benefit of
Security Agent or any other person or entity, and instructions to close the Debt
Service Reserve Account.
Page 1 of
5
4. Access to Debt Service Reserve
Account.
|
|
x
|
(a)
The Debt Service Reserve Account shall be under the sole dominion
and control of Security Agent. Neither Company, nor any other
person or entity, acting through or under Company, shall have any control
over the use of, or any right to withdraw any amount from, the Debt
Service Reserve Account. Depositary Bank is hereby authorized
and instructed to transfer all available funds (subject to Depositary
Bank's funds availability policy) in the Debt Service Reserve Account to
such account and at such times as Security Agent may direct in writing to
Depositary Bank.
|
|
|
¨
|
(b)
The Debt Service Reserve Account shall be under the control of Security
Agent; provided, that
unless and until Depositary Bank receives Security Agent’s written notice
that Company’s access to the funds in the Debt Service Reserve Account is
terminated, Depositary Bank shall honor Company’s instructions, notices
and directions with respect to the transfer or withdrawal of funds from
the Debt Service Reserve Account, including paying or transferring the
funds to Company or any other person or
entity.
|
Upon
receipt of a written notice from Security Agent instructing Depositary Bank to
terminate Company's access to funds in the Debt Service Reserve Account,
Depositary Bank shall transfer all available funds (subject to Depositary Bank's
funds availability policy) in the Debt Service Reserve Account in accordance
with Security Agent’s written instructions.
As for
any such written notice sent under this subsection (b) to Depositary Bank,
Depositary Bank shall endeavor to promptly transfer to Security Agent the
available funds as referenced above, but Depositary Bank shall not be obligated
to do so until it provides written confirmation to Security Agent that it
received Security Agent’s notice of direction.
5. Subordination by Depositary
Bank. Company and Depositary Bank acknowledge notice of and
recognize Security Agent's continuing security interest in the Debt Service
Reserve Account and in all items deposited in the Debt Service Reserve Account
and in the proceeds thereof. Depositary Bank hereby subordinates all security
interests and any statutory or contractual right or claim of setoff or lien
resulting from any transaction which involves the Debt Service Reserve Account
if Section 4(a) is checked above or upon Depositary Bank's confirmation of
receipt of Security Agent's notice under Section 4(b) if Section 4(b) is checked
above. Notwithstanding the preceding sentence, in the event any fees
and expenses ("Fees") related to the Debt Service Reserve Account go unpaid or
any checks or other items which were deposited or credited to the Debt Service
Reserve Account are returned, reversed, refunded or charged back for
insufficient funds or for any other reason ("Returned Items"), Depositary Bank
may charge the Debt Service Reserve Account or other accounts of Company
maintained at Depositary Bank. If there are insufficient funds in the
Debt Service Reserve Account or any of Company's other accounts to cover the
Fees and Returned Items, Company agrees to immediately reimburse Depositary Bank
for the amount of such shortfall. If Company fails to pay the amount
demanded by Depositary Bank, Security Agent agrees to reimburse Depositary Bank
within three (3) business days of demand thereof by Depositary Bank for any
Returned Items to the extent Security Agent received payment in respect thereof
pursuant to section 4.
6. Indemnity. Company
agrees to defend, indemnify and hold Depositary Bank and its directors,
officers, employees, attorneys, successors and assigns (collectively "Depositary
Bank Parties") harmless from and against any and all claims, losses,
liabilities, costs, damages and expenses, including, without limitation,
reasonable legal and accounting fees (collectively, "Claims"), arising out of or
in any way related to this Agreement, excepting only liability arising out of
Depositary Bank's gross negligence or willful misconduct. Without
regard to Company's indemnification obligations to the Depositary Bank Parties,
Security Agent agrees to: (i) reimburse Depositary Bank for any Returned Items
(the proceeds of which were received by Security Agent) and (ii) defend,
indemnify and hold the Depositary Bank Parties harmless from and against any and
all Claims arising out of Depositary Bank's compliance with Security Agent's
instructions. IN NO EVENT WILL DEPOSITARY BANK BE LIABLE FOR ANY INDIRECT
DAMAGES, LOST PROFITS, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHICH ARISE
OUT OF OR IN CONNECTION WITH THE SERVICES CONTEMPLATED BY THIS AGREEMENT EVEN IF
DEPOSITARY BANK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES.
7. Depositary's Bank's
Responsibility. The duties of Depositary Bank are strictly
limited to those set forth in this Agreement and Depositary Bank is not acting
as a fiduciary for any party hereto. Depositary Bank shall be
protected in relying on any form of instruction or other notice purporting to be
from Security Agent which Depositary Bank, in good faith, believes to be genuine
and what it purports to be. Depositary Bank shall have no duty to
inquire as to the genuineness, validity, or enforceability of any such
instruction or notice even if Company notifies Depositary Bank that Security
Agent is not legally entitled to originate any such instruction or
notice. The Debt Service Reserve Account and all actions and
undertakings by Depositary Bank shall be subject to all rules and regulations
relating to the Debt Service Reserve Account and to applicable law.
8. Termination. This
Agreement shall not be terminable by Company so long as any obligations of
Company to Security Agent are outstanding and unpaid. This Agreement
may be terminated by Depositary Bank upon thirty (30) days prior written notice
to all parties; provided, however, that Depositary Bank may terminate this
Agreement immediately in the event Security Agent fails to make payments to
Depositary Bank in accordance with section 5 above. This Agreement
may be terminated by Security Agent in a writing sent to Depositary Bank in
which Security Agent releases Depositary Bank from any further obligation to
comply with instructions originated by Security Agent with respect to the Debt
Service Reserve Account. Any available funds remaining in the Debt
Service Reserve Account upon termination or deposited thereafter shall be
transferred in accordance with the provisions of section 4 above after deduction
for any amounts otherwise reimbursable to Depositary Bank or provided
hereunder. Termination shall not affect the rights and obligations of
any party hereto with respect to any period prior to such
termination.
9. Legal Process and
Insolvency. In the event Depositary Bank receives any form of
legal process concerning the Debt Service Reserve Account, including, without
limitation, court orders, levies, garnishments, attachments, and writs of
execution, or in the event Depositary Bank learns of any insolvency proceeding
concerning Company, including, without limitation, bankruptcy, receivership, and
assignment for the benefit of creditors, Depositary Bank will respond to such
legal process or knowledge of insolvency in the normal course or as required by
law.
10. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Colorado. The parties agree that Colorado is the "bank's
jurisdiction" for purposes of the Uniform Commercial Code.
11. Notices. Except as
otherwise provided in this Agreement, all notices and other communications
required under this Agreement shall be in writing and may be personally served
or sent by United States Mail or courier or by facsimile, and shall be deemed
given when delivered in person or received by facsimile or upon deposit in the
United States Mail or with such courier within the continental United States at
the address or addresses specified below. Any party may change its
address for notices hereunder by notice to all other parties given in accordance
with this section 11.
|
|
Company:
|
Apollo
Gold Corporation
|
|
|
0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx
Village
|
|
|
Colorado,
80111-3220
|
|
|
United
States of America
|
|
|
Attn: R.
Xxxxx Xxxxxxx
|
|
|
Facsimile: x0
000 000 0000
|
|
|
Telephone: x0
000 000 0000
|
|
|
E-mail: xxxxxxx00@xxx.xxx
|
|
|
Security
Agent:
|
RMB
Resources Inc.
|
|
|
000
Xxxxx Xxxxxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxxxxxx,
Xxxxxxxx 00000
|
|
|
Attn: Xxxx
X. Xxxxxxx
|
|
|
Facsimile: x0
000 000 0000
|
|
|
Telephone: x0
000 000 0000
|
|
|
E-mail:
xxxx.xxxxxxx@xxxxxxxxxxxx.xxx
|
| Depositary Bank: | U.S. Bank National Association |
|
|
000
00xx Xxxxxx, 0xx
Xxxxx
|
|
|
Xxxxxx,
Xxxxxxxx 00000
|
|
|
Attn:
Xxxx Xxxxxxx
|
|
|
Facsimile:
x0 000 000 0000
|
|
|
Telephone:
x0 000 000 0000
|
|
|
Email:
xxxxxxx.xxxxxxx@xxxxxx.xxx
|
12. Authorization of Security
Agent. Macquarie Bank Limited and RMB Australia
Holdings Limited appoints and authorizes the Security Agent as its
representative for the purposes of administering on their behalf the
transactions and arrangements contemplated by this Agreement, including the
giving of any notices required to be given under it. The Security Agent accepts
this appointment. Any amendment to this Agreement agreed to by the Security
Agent, or anything done by the Security Agent in relation to this Agreement, is
agreed to by Macquarie Bank Limited and RMB Australia Holdings
Limited.
13. Miscellaneous. This
Agreement shall bind and benefit the parties and their respective successors and
assigns. This Agreement may be amended only with the prior written
consent of all parties hereto. None of the terms of this Agreement
may be waived except as Depositary Bank may consent thereto in
writing. No delay on the part of Depositary Bank in exercising any
right, power or privilege hereunder shall operate as a waiver hereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude other or further exercise thereof or the exercise of any right, power
or privilege. The rights and remedies specified herein are cumulative
and are not exclusive of any rights or remedies which Depositary Bank would
otherwise have. To the extent a provision of this Agreement is
unenforceable, this Agreement will be construed as if the unenforceable
provision were omitted.
14. Counterparts. This Agreement
may be executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the
same instrument.
15. Jury Trial
Waiver. COMPANY, SECURITY AGENT AND DEPOSITARY BANK HEREBY
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING ARISING OUT OF, OR
RELATING TO, THIS AGREEMENT OR SERVICES RENDERED IN CONNECTION WITH THIS
AGREEMENT.
Dated as
of: February 20, 2009
|
Very
truly yours,
|
||
|
APOLLO
GOLD CORPORATION
|
||
|
By:
|
/s/ Xxxxxx Xxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxxxx
|
||
|
Title:
CFO
|
||
|
SECURITY
AGENT
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
||
|
Title:
President
|
||
|
MACQUARIE
BANK LIMITED
|
|
|
By
its attorney: /s/ Xxxxx Xxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxx
|
|
|
Title:
Executive Director
|
|
|
and
its attorney: /s/ Xxxxx Xxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxx
|
|
|
Title: Senior
Lawyer
|
|
|
in
the presence of: /s/ Xxxxx Xxxx
|
|
|
Name:
Xxxxx Xxxx
|
|
|
Title: Division
Director, Macquarie Bank Limited
|
|
|
RMB
AUSTRALIA HOLDINGS LIMITED
|
|
|
By:
/s/ X. Xxxxxx
|
|
|
Name:
Xxxxxxx P.C. Xxxxxx
|
|
|
Title: Director
|
|
|
and
by: /s/ Xxxxxxx Xxx
|
|
|
Name:
Xxxxxxx Xxx
|
|
|
Title: Director
|
|
|
ACCEPTED:
|
U.S.
BANK NATIONAL ASSOCIATION
|
|
By:
/s/ Xxxxx Enquest
|
|
|
Name: Xxxxx
Enquest
|
|
|
Title: Vice
President, Commercial Banking
|
