Exhibit 10.9
FORM OF
DEPOSIT ACCOUNT CONTROL AGREEMENT
---------------------------------
--------------------------------------------------------------------------------
Dated as of: Company:
____ __, 2007 River Capital Group, Inc.,
a Delaware corporation
The Bank: Other Debtors:
[Insert Bank Name] Sonterra Resources, Inc.,
a Delaware corporation
Address of Bank: Secured Party/Pledgee:
[Insert Bank Address] Viking Asset Management, LLC, a
California limited liability
company, in its capacity as
Collateral Agent for the benefit
of itself and the Buyers referred
to below
--------------------------------------------------------------------------------
This DEPOSIT ACCOUNT CONTROL AGREEMENT (as amended, restated,
supplemented or otherwise modified from time to time, this "Agreement"), by and
among the Bank identified above, the Company identified above, the Other
Debtor[(s)] identified above and the Secured Party/Pledgee identified above (the
"Collateral Agent") is dated as of the date written above.
WHEREAS:
A. The Company and The Longview Fund, L.P., a California limited
partnership ("Longview"; Longview, together with its successors and assigns and
each other holder of a Note (as defined below) and their respective successors
and assigns, individually and collectively, the "Buyers") have entered into that
certain [ PURCHASE, CONTRIBUTION AND EXCHANGE AGT ] dated as of _____ __, 2007
(as amended, restated, supplemented or otherwise modified and in effect from
time to time, the "Purchase Agreement") pursuant to which the Buyers have
purchased a certain [ senior secured notes ] dated as of _____ __, 2007 in the
original principal amount of [ $__________ ] (such note, together with any notes
issued in substitution or exchange, or in replacement or addition thereof, as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Initial Notes") and made certain financial accommodations to the
Company and may hereafter purchase certain additional [ senior secured notes ]
(such additional notes, together with any notes issued in substitution or
exchange, or in replacement or addition thereof, as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Subsequent
Notes", the Subsequent Notes and the Initial Notes, collectively, the "Notes").
B. Pursuant to a Security Agreement dated as of _____ __, 2007
(as the same may be amended, restated, modified or supplemented and in effect
from time to time, the "Security Agreement"), entered into among the Company,
the other "Debtors" party thereto and Collateral Agent, the Company and the
Other Debtors have granted the Collateral Agent, for its benefit and the benefit
of the Buyers, a first priority security interest in, lien upon and pledge of
all of their right, title and interest in and to the Account(s) (as defined
below) and the Account Collateral (as defined below), including, without
limitation, all free credit balances, cash and cash balances contained or on
deposit in the Accounts and all proceeds thereof, whether now existing or
hereafter arising.
C. This Agreement is intended to perfect Collateral Agent's and
the Buyers' security interest in the Account(s) and the Account Collateral
pursuant to Sections 9-104, 9-312 and 9-314 of the Uniform Commercial Code and
shall also serve as instructions regarding the operation of and procedures for
all deposit accounts now or hereafter maintained at Bank by, or for the deposit,
credit or custody of property of, the Company and the Other Debtors.
NOW THEREFORE, the Bank, the Company, the Other Debtors and Collateral
Agent hereby agree as follows:
1. Account Identification. This Agreement applies to the accounts
identified below that have been established at the Bank on behalf of and in the
name of the Company and/or such Other Debtors and to each other deposit account
hereafter established at the Bank on behalf of the Company and/or the Other
Debtors (collectively, the "Accounts"). All parties hereto acknowledge and agree
that each of the Accounts is a "Deposit Account" within the meaning of Article 9
of the Uniform Commercial Code. The Bank hereby agrees to deliver written notice
to Collateral Agent of the establishment of any accounts other than those listed
below (whether characterized as a deposit account or otherwise) at the Bank by
or on behalf of the Company and/or the Other Debtors.
Account Holder Name of Account Account Number
-------------- --------------- --------------
------------------------- ------------------------ -----------------------
------------------------- ------------------------ -----------------------
------------------------- ------------------------ -----------------------
2. Security Interest; Agency.
-------------------------
(a) Each of Bank, the Company, the Other Debtors and
Collateral Agent acknowledges that, in order to secure the prompt and complete
payment, performance and observance of all "Liabilities" (as defined in the
Security Agreement), the Company and the Other Debtors have granted, and for
avoidance of doubt and without limiting any prior grant, do hereby grant, to
Collateral Agent, for the benefit of itself and the Buyers, a continuing lien
upon, and security interest in, the Accounts and all funds, checks, cash, items,
instruments, investments, securities and other things of value at any time paid,
deposited, credited or held in, payable or withdrawable from or in transit to
any Account (whether for collection, provisionally or otherwise), and all other
property of the Company and the Other Debtors from time to time in the
possession or under the control of, or in transit to, the Bank or any agent,
bailee or custodian therefor, and all proceeds of all of the foregoing
(collectively, the "Account Collateral").
2
(b) The Bank agrees to comply with instructions
originated by Collateral Agent directing disposition of the funds in the
Accounts or any other Account Collateral or to take such other action as shall
from time to time be specified in writing from Collateral Agent, in all cases
without notice to or the consent of the Company or the Other Debtors. The Bank
shall follow the instructions of Collateral Agent as to the holding, investment
and transfer of all Account Collateral (including without limitation, any
instructions to transfer such collected amounts to Buyers or to an account
designated by Collateral Agent). Each of the Company and the Other Debtors
hereby irrevocably authorizes and directs the Bank to comply with any such
instructions by Collateral Agent without further action or consent by the
Company or the Other Debtors and notwithstanding any subsequent objection or
contrary direction the Bank may receive from the Company or the Other Debtors.
In addition, each of the Company and the Other Debtors agrees that the Bank may
act as the agent of Collateral Agent in exercising any rights of set-off
provided by applicable law or by any Transaction Document (as defined in the
Purchase Agreement) as to any Account Collateral. The Company and the Other
Debtors each agree that the Bank shall be entitled to rely, without independent
investigation, on any written notice in the form of Exhibit A from Collateral
Agent to the effect that an Event of Default (each as defined in the Notes) has
occurred and is continuing or any other statement of Collateral Agent to the
effect that any exercise of set-off requested by Collateral Agent is permitted
under applicable law, the Security Agreement or any applicable Transaction
Document.
(c) Without limiting or qualifying the provisions of
clause (b) above, Collateral Agent, on its behalf and on behalf of the Buyers,
hereby appoints the Bank as Collateral Agent's and the Buyers' agent and
pledgee-in-possession for the Accounts and all Account Collateral, for the
purpose of perfecting Collateral Agent's and the Buyers' security interest
therein; and the Bank by its execution and delivery of this Agreement hereby
accepts such appointment and agrees to be bound by the terms of this Agreement.
The Company and the Other Debtors each hereby agrees to such appointment of the
Bank and further agrees that the Bank, on behalf of Collateral Agent and the
Buyers, shall be entitled to exercise, upon the instructions of Collateral
Agent, any and all rights that the Collateral Agent and the Buyers may have
under the Purchase Agreement, the Security Agreement and all other agreements,
documents and instruments executed pursuant thereto, or under applicable law,
with respect to the Accounts and the Account Collateral.
3. Debtor's Access to Accounts. Collateral Agent agrees that,
until such time as Bank receives written notice in the form of Exhibit A from
Collateral Agent of the occurrence of any Event of Default, the Company and the
Other Debtors shall be allowed access to the Accounts and the Account Collateral
without Collateral Agent's further consent (including, without limitation,
presenting items drawn on the Accounts or giving Bank instructions as to the
withdrawal or other disposition of any funds from time to time credited to the
Accounts); provided, that neither the Company nor the Other Debtors shall be
permitted to close any of the Accounts. Upon receipt by Bank of notice by
Collateral Agent of the occurrence of an Event of Default, and at all times
thereafter, neither the Company nor any of the Other Debtors shall be entitled
access to the Accounts or the Account Collateral and the Bank shall not comply
with any instructions or directions originated by the Company or any of the
Other Debtors or otherwise permit the Company or any of the Other Debtors access
to or control over the Accounts or the Account Collateral, including without
limitation giving stop payment orders, presenting items for payment or making
withdrawals therefrom.
3
4. Irrevocable Agreement. The Company and the Other Debtors each
hereby agrees and acknowledges that the agreements made by it and the
authorizations granted by it herein are irrevocable and that the authorizations
granted herein are powers coupled with an interest.
5. Set-off. The Bank hereby waives all existing and future rights
of recoupment or set-off and banker's liens against the Accounts and the Account
Collateral, except those rights of set-off and banker's liens arising in
connection with (a) items deposited in the Accounts that are subsequently
returned to the Bank unpaid and (b) any compensation and expenses owing and
payable to Bank with respect to the Accounts which are assessed in accordance
with the Bank's standard account documentation.
6. Account Information. The Bank shall provide Collateral Agent,
at the address indicated in Section 11 below, with such information with respect
to the Accounts and Account Collateral as Collateral Agent may from time to time
reasonably request, including, without limitation and duplicate copies of all
bank statements which are sent to the Company or the Other Debtors. The Company
and the Other Debtors each hereby consents to such information being provided to
Collateral Agent.
7. Exculpation. The Bank undertakes to perform only such duties
as are expressly set forth herein. Notwithstanding any other provisions of this
Agreement, the parties hereto agree that the Bank shall not be liable for any
action taken by it or any of its directors, officers, agents or employees in
accordance with this Agreement. In no event shall the Bank be liable for
indirect, special or consequential damages.
8. Indemnity. Each of the Company and the Other Debtors agrees to
indemnify the Bank and hold it harmless against any loss, damage, or expense
(including reasonable attorneys' fees and other litigation expenses) which it
may suffer as a direct result of the Bank's entering into this Agreement and
performing its obligation hereunder, including, honoring any instructions or
direction it receives from Collateral Agent with respect to the Accounts during
the term of this Agreement, other than any loss, damage or expense incurred as a
result of the gross negligence or willful misconduct of, or breach of this
Agreement by, the Bank or its officers, agents or employees.
9. No Other Assignments. Bank represents and warrants to
Collateral Agent, on its behalf and on behalf of the Buyers, that no other
notices of assignment of, lien upon or security interest in the Accounts or the
Account Collateral are reflected in Bank's records concerning the Accounts, and
Bank has no knowledge of any such assignment or lien. The Company and the Other
Debtors each hereby instructs Bank and Bank hereby agrees to record in Bank's
records concerning the Accounts any such notice of assignment of the Accounts
that it receives, including the notice conferred by this Agreement. Bank agrees
with and covenants to Collateral Agent, on its behalf and on behalf of the
Buyers, that it shall not enter into any other agreement with any Person which
would obligate Bank to follow such Person's instructions with respect to the
Account or the Account Collateral, or which would otherwise confer control of
the Accounts or the Account Collateral upon such Person.
10. Termination. This Agreement shall remain in full force and
effect until such time as Collateral Agent shall deliver written notice to the
Bank that all of the Liabilities have been indefeasibly paid in full in cash and
4
the Security Agreement has been terminated, whereupon this Agreement shall
terminate. All rights of the Bank under Sections 7 and 8 for the period prior to
any such termination shall survive such termination.
11. Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) business day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
Collateral Agent: Viking Asset Management, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: _____________
- and -
Viking Asset Management, LLC
00 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Connecticut
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Bank: _____________________
_____________________
Attention: __________
Telephone: __________
Facsimile: __________
Company and the Other [ River Capital Group, Inc. ]
Debtors: _____________________
_____________________
Attention: __________
Telephone: __________
Facsimile: __________
If to any party named above, at such other address and/or facsimile number
and/or to the attention of such other person as the recipient party has
specified by written notice given to each other party five (5) days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a nationally recognized overnight
delivery service shall be rebuttable evidence of personal service, receipt by
5
facsimile or deposit with a nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively.
12. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES, AND
THE BANK'S JURISDICTION FOR PURPOSES OF SECTION 9-304 OF THE UNIFORM COMMERCIAL
CODE SHALL BE NEW YORK.
13. Miscellaneous Provisions. This Agreement shall supersede any
other agreement (to the extent conflicting herewith) relating to the matters
referred to herein, including any conflicting provision of the Bank's customary
account documentation or any other account agreement between the Company and/or
the Other Debtors and the Bank. This Agreement is binding upon the parties
hereto and their respective successors and assigns (including any trustee of the
Company or any of the Other Debtors appointed or elected in any action under the
Bankruptcy Reform Act of 1978, as amended) and shall inure to their benefit.
This Agreement may not be changed, amended, modified or waived, except by a
writing signed by the parties hereto, provided that any such writing need be
signed only by the Bank and Collateral Agent if it does not change any rights or
obligations of, or authorizations granted by, the Company or the Other Debtors
hereunder and notice thereof is provided to the Company and the Other Debtors by
Collateral Agent. Any provision of this Agreement that may prove unenforceable
under any law or regulation shall not affect the validity of any other provision
hereof. This Agreement may be executed in two or more identical counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to each
other party; provided that a facsimile signature shall be considered due
execution and shall be binding upon the signatory thereto with the same force
and effect as if the signature were an original, not a facsimile signature.
- Remainder of Page Intentionally Left Blank; Signature Page Follows -
6
IN WITNESS WHEREOF, the undersigned have executed this Deposit Account
Control Agreement by their respective duly authorized officers as of the date
first forth above.
Company:
-------
RIVER CAPITAL GROUP, INC., a Delaware corporation
By: _____________________________________________
Name:_____________________________________________
Title:____________________________________________
Other Debtor[s]:
---------------
SONTERRA RESOURCES, INC., a Delaware corporation
By: _____________________________________________
Name:_____________________________________________
Title:____________________________________________
Secured Party/Pledgee:
---------------------
VIKING ASSET MANAGEMENT, LLC, a
California limited liability company, in its
capacity as Collateral Agent
By: _____________________________________________
Name:_____________________________________________
Title:____________________________________________
Bank:
-----
[BANK]
By: _____________________________________________
Name:_____________________________________________
Title:____________________________________________
7
EXHIBIT A
Form of Notification of Event of Default
----------------------------------------
[BANK]
[ADDRESS]
[ADDRESS]
Attention: [____________]
Ladies and Gentlemen:
Reference is made to the Deposit Account Control Agreement, dated as of
____ ___, 200_ (the "Account Control Agreement") among [Bank], River Capital
Group, Inc., a Delaware corporation, Sonterra Resources, Inc., a Delaware
corporation, ________________ and Viking Asset Management, LLC, in its capacity
as Collateral Agent. Capitalized terms used and not otherwise defined in this
notification letter are used with the meanings set forth in the Account Control
Agreement.
You are hereby notified, in accordance with Section 3 of the Account
Control Agreement, that an Event of Default has occurred. In light of the
foregoing, you are hereby instructed not to allow Company or any of the Other
Debtors to access the Accounts or the Account Collateral and not to comply with
any instructions or directions originated by Company or Debtor or otherwise
permit Company or any of the Other Debtors access to or control over the
Accounts or the Account Collateral, including without limitation giving stop
payment orders, presenting items for payment or making withdrawals therefrom.
Date: [ ], 200__ VIKING ASSET MANAGEMENT, LLC, in its
capacity as Collateral Agent
By: _____________________________________
Name: ___________________________________
Title: __________________________________
