Exhibit 10.18
ACCOUNT CONTROL AGREEMENT
(THE "AGREEMENT")
This Account Control Agreement ("Agreement") is made and entered as of this 6th
day of July, 2005 by and among HERCULES TECHNOLOGY GROWTH CAPITAL, INC., a
Maryland corporation ("Lender"), with its principal place of business located at
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx, XX 00000 (the "CREDITOR"), OMRIX
BIOPHARMACEUTICALS, INC., a Delaware corporation, with its chief executive
office and principal place of business located at Chauss'ee de Waterloo, 200
X-0000 Xxxxx Xx. Xxxxxx Xxxxxxx (the "CUSTOMER"), and HSBC Bank USA, National
Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 (the "BANK").
BACKGROUND
Pursuant to the Loan and Security Agreement between Creditor and Customer dated
March 31, 2005 ("Loan Agreement"), the Customer has granted the Creditor a
security interest, among other things, in the Account (as defined below)
maintained by Customer at the Bank and in all funds currently or hereafter
deposited into such Account, including any interest accrued thereon. The parties
are entering into this Agreement to perfect the Creditor's security interest in
such Account. Bank is not a party to the Loan Agreement or any other agreement
between Creditor and Customer and all of Bank's rights, duties and obligations
are stated in this Account Control Agreement without reference to any other
agreement.
1. The Account. The Customer represents and warrants to the Creditor that the
Customer has established the following account at the Bank:
Account number: 605139458 (the "ACCOUNT").
As of the date hereof, the Bank is not aware of any claim to, or interest in,
the Account, except for claims and interests of the parties referred to in this
Agreement. The Customer agrees that if Customer opens any additional accounts at
the Bank, this Agreement will be deemed to have been amended to include the new
account as an Account, but only if Customer uses the same private client group
to open such additional accounts that was used to open the Account and notifies
that private client group at the time each additional account is opened that it
is subject to this Agreement. The Customer agrees that if it opens additional
accounts with the Bank, it shall be with the same private client group that was
used to open the Account.
2. Control of Accounts by Creditor
a. The Customer and the Creditor agree that upon the occurrence of an Event
of Default (as such term is defined in the Loan Agreement), the Creditor may
deliver written instructions (the "DEFAULT ORDER") in the form attached hereto
as Exhibit A to the Bank and the Bank will, as soon as reasonably possible upon
receipt, comply with such Default Order delivered by the Creditor, without
requiring any further consent from the Customer and without regard to any
inconsistent or conflicting orders provided to the Bank by the Customer or
anyone on its behalf. Bank shall promptly confirm receipt of the Default Order
to Creditor; until Creditor receives Bank's written confirmation that the
Default Order has been received, it shall be presumed that the Default Order
was not received. For purposes hereof, "BUSINESS DAY" shall mean any day of the
year on which New York State chartered banks are required by law to be open to
the public for conducting business.
b. It is hereby clarified that for so long as the Bank has not received a
Default Order from the Creditor, the Customer shall be fully entitled and
authorized to withdraw and deposit any and all funds available in the Accounts.
c. Without limiting and in addition to the requirements set forth in
paragraph (a) of this Section 2, the Creditor agrees that before it attempts to
deliver a Default Order relating to the Account to the Bank, the Creditor shall
deliver to the Bank, such documentation as the Bank may, from time to time,
reasonably request, certifying the person or persons authorized by Creditor to
sign a Default Order. In absence of such documentation the Bank may rely and
shall be protected in acting or refraining from acting upon any Default Order
believed by the Bank to be genuine and to have been signed by the proper party,
3. Priority of Creditor's Security Interest: Rights Reserved by the Bank
a. The Bank agrees that all of its present and future rights with respect
to the Account axe subordinated to the Creditor's security interest therein;
provided, however, that the Creditor agrees that the Bank expressly reserves all
of its present and future rights (whether described as rights of setoff, bankers
lien, chargeback or otherwise, and whether available to Bank under law or under
any written agreement), including, but not limited to, the right to withdraw
from the Account an amount (i) to cover the reversal of a provisional credit,
(ii) to recover funds improperly or incorrectly credited to the Account, and
(iii) to pay any Account fees or fees associated with the aforementioned. If any
checks, drafts or other items deposited or funds wired or otherwise transferred
or deposited into the Account are returned unpaid or otherwise dishonored or are
returned because of improper or incorrect crediting, then the Bank shall have
the right, whether or not a Default Order has been received, to charge the
Account for the amount of such deposit or transfer and any fees or charges
associated with such return, dishonor or requirement.
b. Upon the termination of this Agreement, Creditor shall have no further
right to deliver to the Bank Default Orders relating to the Account or otherwise
control the Account, and the Bank shall take such steps as the Customer may
reasonably request to vest full ownership and control of the Accounts with
Customer.
4. Governing Law. This Agreement and the Account will be governed by the laws of
the State of New York. The Bank may not change the law governing the Account
without the Creditor's express written consent, which consent shall not be
unreasonably withheld.
5. Entire Agreement. This Agreement and all exhibits attached hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subject matters hereof and supersede any prior agreement or arrangement
(whether written or oral).
6. Amendments. No amendment of, or waiver of a right under, this Agreement will
be binding unless it is in writing and signed by all parties hereto.
7. Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable under applicable law, then such
provision shall be excluded from this Agreement and
the remainder of this Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms; provided,
however, that in such event this Agreement shall be interpreted so as to give
effect, to the greatest extent consistent with and permitted by applicable law,
to the meaning and intention of the excluded provision as determined by such
court of competent jurisdiction
8. Other Agreements. For so long as this Agreement remains in effect,
transactions involving the Accounts shall be subject, except to the extent
inconsistent herewith, to the provisions of the Bank's account agreements,
disclosures, and fee schedules as are in effect from time to time for accounts
similar to the Account.
9. Successors and Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the Bank, Creditor and Customer and their
respective successors and assigns.
10. Notices, A notice or other communication to a party under this Agreement
will be in writing and will be sent to the party's address set forth below or to
such other address as the party may notify the other parties, and will be
effective on receipt.
If to the Customer: To: OMRIX BIOPHARMACEUTICALS, INC.
Address: Chauss'ee de Waterloo, 200 X-0000
Xxxxx Xx. Xxxxxx Xxxxxxx
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: x00-0-0000000
If to Creditor: To:
HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Facsimile: 000-000-0000
With a copy to:
HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
Attention: Xxxxx Xxxx
0 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000 000 0000
If to the Bank: To: HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Senior Vice President
6th Floor
Facsimile: 000-000-0000
With a copy to:
HSBC Bank USA, National Association
IPB NY CREDIT ADMINISTRATION
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, First Vice President/Manager
7th Floor
Facsimile: 000-000-0000
11. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
12. Heading, Preamble, and Exhibits. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. The Preamble and Exhibits are an
integral and inseparable part of this Agreement.
13. Further Action. At any time and from time to time, the Customer and the
Creditor each agrees, without further consideration, to take such actions and to
execute and deliver such documents as, in the Bank's opinion, may be reasonably
necessary to carry out and give full effect to the provisions of this Agreement
and the intentions of the parties as reflected hereby and thereby.
14. Expenses. Each party will pay its expenses, if any, relating to the
execution of this Agreement and the transactions contemplated herein.
15. Delays or Omissions. No delay or omission to exercise any right, power, or
remedy accruing to the Creditor pursuant to the provisions of this Agreement,
shall be deemed a waiver by the Creditor of such right.
16. Limited Responsibility of Bank. The Bank shall have no responsibility or
liability to Creditor for complying with instructions concerning the Account
from Customer or Customer's authorized representatives that are received by the
Bank before the Bank has received a Default Order and has had a reasonable
opportunity to act upon such Default Order. The Bank shall have no
responsibility or liability to Customer for complying with a Default Order and
shall have no responsibility to investigate the genuineness, accuracy, validity
or appropriateness of any instructions or Default Order or any signature on such
instructions or Default Order, even if the Customer notifies the Bank that
Creditor is not legally entitled to originate such Default Order. The Bank may
act in reliance upon any signature believed by it to be genuine and may assume
that any person who has been designated by Customer or Creditor to give
instructions or a Default Order pursuant to this Agreement or the Account has
been duly authorized to do so.
17. Exculpation of Bank: Indemnification by Customer. Customer and Creditor
agree that the Bank shall have no liability to either of them for any loss or
damage that either or both may claim to have suffered or incurred, either
directly or indirectly, by reason of this Agreement or any transaction or
service contemplated by the provisions hereof, unless such loss or damage result
from the gross negligence or willful misconduct of the Bank. In no event shall
Bank be liable for losses or delays resulting from computer malfunction,
interruption of communication facilities, labor difficulties or other causes
beyond the Bank's reasonable control or for indirect, special, punitive or
consequential, damages. Customer agrees to indemnify the Bank and hold it
harmless from and
against any and all claims made against the Bank by Creditor or any other person
or entity, other than those ultimately determined to be founded on the gross
negligence or willful misconduct of the Bank, and from and against any damages,
penalties, judgments, liabilities, losses or expenses (including reasonable
attorney's fees and disbursements) incurred as a result of the assertion of any
such claim made against the Bank by Creditor or any person or entity arising out
of, or otherwise related to, any compliance by the Bank with a Default Order or
this Agreement. Creditor agrees that it shall not assert any claim against the
Bank other than with respect to an alleged non-compliance by the Bank with any
Default Order.
IN WITNESS WHEREOF the parties have signed this Agreement in one or more
counterparts as of the date first appearing above.
OMRIX BIOPHARMACEUTICALS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: CFO
HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Legal Officer
HSBC BANK USA, NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
EXHIBIT A
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Senior Vice President, 6th Floor
Copy to: Attention: Xxxxx Xxxxx. First Vice President/Manager
IPB NY CREDIT ADMINISTRATION 7th Floor, 0 Xxxx 00xx Xx.
Xxx Xxxx, XX 00000
Date: __________________
Re: NAME OF CUSTOMER.- Default Order
Dear Sir,
Please be informed that an Event of Default (as such term is defined in that
certain Loan and Security Agreement (the "LOAN AGREEMENT") between Omrix
Biopharmaceuticals, Inc. ("Customer") and Hercules Technology Growth Capital,
Inc. ("Creditor"); dated March 31, 2005), has occurred and was not cured
according to the Loan Agreement. In accordance with the Account Control
Agreement ("Agreement") between Customer. Creditor and HSBC Bank USA, National
Association (the "Bank") dated July 6, 2005, you are hereby given a Default
Order (as such term is defined in the Agreement) to promptly cease to comply
with any orders or instructions originated by the Customer concerning the
Account (as defined in the Agreement).
Furthermore, you are hereby instructed to comply with the following instructions
with respect to such Account:
___________ Cease any transfer or withdrawal of funds from the Account
___________ Effect the transfer of US$[_____] to the Creditor, out of the funds
available in such Account.
Sincerely,
HERCULES TECHNOLOGY GROWTH CAPITAL, INC.
By:
---------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
