EXHIBIT K
CONTROL ACCOUNT AND SECURITY AGREEMENT
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THIS CONTROL ACCOUNT AND SECURITY AGREEMENT (this "Agreement") is made as
of June 30, 2006, by and among Consolidated Energy, Inc., a Wyoming corporation
(the "Company"), Atoll Asset Management, LLC as agent (the "Agent") to the
purchasers signatory to the Purchase Agreement referred to in the first recital
(each individually, a "Purchaser," and collectively, the "Purchasers"), the
Purchasers and Community Trust and Investment Company, a Kentucky corporation,
with an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Custodian"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Purchase Agreement referred to in the first recital.
W I T N E S S E T H:
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WHEREAS, the Company and the Purchasers have entered into the Securities
Purchase Agreement, dated as of June 30, 2006 (the "Purchase Agreement")
pursuant to which the Purchasers are purchasing from the Company up to
$4,444,444 in principal amount of the Debentures; and
WHEREAS, in order to induce the Purchasers to enter into the Purchase
Agreement and to purchase the Debentures, and as a condition precedent thereto,
the Company has agreed to place $250,000 ("Funds") of proceeds from the sale of
Debentures into a deposit control account for the benefit of the Purchasers to
fund the payment of interest and principal under the Debentures and to secure
the performance of the Company's obligations under the Purchase Agreement and
the other Transaction Documents by granting to the Purchasers a first priority
security interest in the Funds; and
WHEREAS, the Company and the Purchasers have requested that the Custodian
hold the Funds for the benefit of the Purchasers, as secured parties, in
accordance with the terms hereof;
WHEREAS, the Purchasers wish to appoint the Agent as representative of the
Purchasers to act on behalf of all of the Purchasers solely with respect to the
release of the Funds pursuant to this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Closing.
(a) On the Closing Date, the Company shall instruct the
Purchasers to wire an aggregate of $250,000 to the Custodian. Upon
receipt of the Funds, the Custodian shall transfer the Funds to a
deposit control account with Account No. 1940002507 for the benefit of
the Purchasers satisfying the requirements of Section 9-104(a)(2) of
the Uniform Commercial Code (the "Control Account").
Community Trust Bank, Inc., a Kentucky banking corporation
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ABA #▇▇▇▇▇▇▇▇▇
Account # 4002127324
For further credit to CTIC A/C #108427101,
For further credit to A/C # 1940002507 (Account Name:
Consolidated Energy, Inc., a Wyoming corporation, by
Community Trust and Investment Company as Custodian)
(b) The Custodian, by its execution and delivery of this
Agreement, hereby agrees to accept receipt of the Funds and to hold
such Funds for the benefit of the Purchasers, as secured parties and
shall not release such proceeds except as provided herein.
(c) The Purchasers hereby appoint the Agent as the representative
of the Purchasers to act on behalf of all of the Purchasers with
respect to the release of funds pursuant to this Agreement.
2. Release of Funds.
(a) Monthly Releases. Commencing on August 1, 2006 and continuing
on the first business day of each succeeding calendar month until the
Maturity Date of the Debentures, except as set forth elsewhere in this
Agreement, the Custodian shall send to each Purchaser the amounts set
forth on Annex A hereto under the title "Monthly Payment" pursuant to
the wire transfer instructions included on such Purchaser's signature
page hereto, which instructions may be amended from time to time by
written notice from the Purchaser to the Custodian. Any amounts paid
to a Purchaser shall be applied and credited to the Company's
obligation to make to such Purchaser the applicable monthly interest
payments under the Debentures. Custodian is hereby authorized to amend
the amount of the Monthly Payments set forth on Annex A on written
instructions from the Agent (along with reasonable supporting
documentation, including evidence of notice to the Company of such
amendment).
(b) Release Upon Satisfaction of Production and Sale Requirement.
Upon the issuance of one or more widely disseminated press releases by
the Company reporting that the Company has produced and sold in excess
of 70,000 tons of coal during each of three consecutive calendar
months ("Production and Sale Requirement"), the Company shall promptly
deliver a copy of each press release to each Purchaser. Promptly after
delivery of such press releases to each Purchaser, which press
releases shall be in form and substance satisfactory to such
Purchaser, each Purchaser shall deliver notice to the Agent confirming
that the Production and Sale Requirement has been satisfied. Upon
receipt by the Agent of a notice from each Purchaser stating that the
Production and Sale Requirement has been satisfied, the Agent shall
promptly deliver to the Custodian and the Company a certificate (a
"Consent Certificate") confirming that the Production and Sale
Requirement has been satisfied. Upon receipt of the Consent
Certificate, the Custodian shall release all Funds in accordance with
the instructions of the Company.
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(c) Release Upon Consent of Agent. If the Agent consents to the
release of all or a portion of the Funds to the Company, the Agent and
the Company shall execute and deliver to the Custodian a certificate
certifying such consent of Agent to release such Funds has been
obtained, which certificate shall include the amount of the Funds to
be released. Upon receipt of such certificate, the Custodian shall
release the Funds (or portion thereof specified in the certificate) to
the account of the Company designated in such certificate.
(d) Release Upon an Event of Default. At any time after the
occurrence of an Event of Default, the Agent may, at its option,
deliver a certificate to the Custodian and the Company specifying that
an Event of Default has occurred (along with reasonable supporting
documentation, including evidence of notice to the Company of such
default). Upon receipt by the Custodian of any such certificate, the
Custodian shall promptly release the Funds in accordance with the
written instructions of the Agent.
(e) Certificates, Instructions, Etc. In the event that any
certificate or written instruction is delivered by facsimile
transmission or by e-mail delivery of a ".pdf" format data file, such
certificate or written instruction shall create a valid and binding
obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or
".pdf" signature page were an original thereof.
3. Security Agreement.
(a) Grant. The Company hereby unconditionally and irrevocably
grants to the Purchasers, to secure the payment and performance in
full when due of all of the Obligations (as said term is defined
below), a continuing first priority security interest in, and so
pledges and assigns to the Purchasers all of, the Control Account, the
Funds and any interest that accrues thereon and all other financial
assets, investment property, security entitlements and proceeds
credited in or to the Control Account ("Collateral"). "Obligations"
means all present and future indebtedness, obligations, covenants,
duties and liabilities of any kind or nature of the Company to the
Purchasers (or any of them) under this Agreement, the Purchase
Agreement, the Debentures and the other Transaction Documents, in each
case whether now or hereafter existing, voluntary or involuntary,
direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others. Without
limiting the generality of the foregoing, this Agreement secures the
payment of all amounts that constitute part of the Obligations and
would be owed by the Company to the Purchasers under the Transaction
Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Company or any of the Company's
Subsidiaries.
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(b) Further Assurances. The Company agrees that at any time and
from time to time, at the expense of the Company, the Company shall
promptly execute and deliver all further instruments, documents and/or
control agreements and take all further action, that may be necessary
or desirable, or that the Agent may reasonably request, in order to
perfect and protect any security interest granted or purported to be
granted hereby or to enable any Purchaser to exercise and enforce its
rights and remedies hereunder with respect to any of the Collateral.
(c) Rights and Remedies. At any time after the occurrence of an
Event of Default, and without any other notice to or demand upon the
Company, the Agent shall have, in any jurisdiction in which
enforcement hereof is sought, in addition to all other rights and
remedies, the rights and remedies of a secured party under the Uniform
Commercial Code in effect from time to time in the State of New York
(the "UCC") and any additional rights and remedies which may be
provided to a secured party in any applicable jurisdiction.
(d) Power of Attorney. The Company hereby irrevocably constitutes
and appoints the Agent, and any officer, partner, member or agent
thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the
name, place and stead of the Company or in their own names, for the
purpose of carrying out the terms of this Agreement, to take any and
all appropriate action and to execute any and all documents and
instruments that may be necessary or useful to accomplish the purposes
of this Agreement and, without limiting the generality of the
foregoing, hereby gives said attorneys the power and right, on behalf
of the Company, without notice to or assent by the Company, at any
time after the occurrence of an Event of Default, to sell, transfer,
pledge, make any agreement with respect to or otherwise dispose of or
deal with any of the Collateral in such manner as is consistent with
the UCC and as fully and completely as though the Purchasers were the
absolute owners thereof for all purposes, and to do, at the Company's
expense, at any time or from time to time, all acts and things which
the Agent deems necessary or useful to protect, preserve or realize
upon the Collateral and the security interest of the Purchasers
therein, in order to effect the intent of this Agreement, all at least
as fully and effectively as the Company might do.
(e) Marshalling. All rights and remedies of the Purchasers
hereunder and in respect of the Collateral and other assurances of
payment shall be cumulative and in addition to all other rights and
remedies, however existing or arising. To the extent that it lawfully
may, the Company hereby agrees that it will not invoke any law
relating to the marshalling of assets which might cause a delay in or
impede the enforcement of the rights and remedies of the Purchasers
under this Agreement, the Debentures, the other Transaction Documents
or under any other instrument creating or evidencing any of the
Obligations or under which any of the Obligations is outstanding or by
which any of the Obligations is secured or payment thereof is
otherwise assured, and to the extent that it lawfully may, the Company
hereby irrevocably waives the benefits of all such law.
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(f) No Waiver, etc. The Purchasers shall not be deemed to have
waived any of their rights or remedies in respect of the Obligations
or the Collateral unless such waiver shall be in writing and signed by
the Purchasers. No delay or omission on the part of the Purchasers in
exercising any right or remedy shall operate as a waiver of such right
or remedy or any other right or remedy. A waiver on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on
any future occasion. All rights and remedies of the Purchasers with
respect to the Obligations or the Collateral, whether evidenced hereby
or by any other document or instrument, shall be cumulative and may be
exercised singularly, alternatively, successively or concurrently at
such time or at such times as the Purchasers deem expedient.
(g) Certain Defined Terms. Terms used in this Section 3 but not
otherwise defined in this Agreement that are defined in the UCC (as
such term is hereinafter defined) shall have the respective meanings
given such terms therein; provided, however, that if a term is defined
in Article 9 of the UCC differently than in another Article of the
UCC, then such term shall have the meaning specified in Article 9.
"UCC" means the Uniform Commercial Code in effect from time to time in
the State of New York.
4. Conditions to Custodian's Duties. The acceptance by the Custodian
of its duties as such under this Agreement is subject to the following terms and
conditions, which all of the parties to this Agreement hereby agree shall govern
and control with respect to the rights, duties, liabilities and immunities of
the Custodian:
(a) The Custodian is not a party to, nor is it bound by, any
other agreement by which the other parties hereto may be bound.
(b) The Custodian shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other document which the
Custodian, in good faith, believes to be genuine and what it purports
to be. No waiver or any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding
breach thereof, or of any other covenant or provision herein
contained. No extension of time for performance of any obligation or
act shall be deemed an extension of the time for performance of any
other obligation or act. If the Custodian reasonably requires other or
further instruments in connection with this Agreement or obligations
in respect hereto, the necessary parties hereto shall join in
furnishing such instruments.
(c) The Custodian shall be indemnified and held harmless by the
Company and the Purchasers, jointly and severally, from and against
any and all loss, expense, fees (including attorneys' fees) and
damages that may be incurred by the Custodian as a result of its
agreeing to act in such capacity and its performance of this
Agreement. The Custodian shall not be obligated to any party for any
error in judgment or for any act done or steps taken or omitted by it
in good faith, or for any mistake of fact or law, or for anything
which it may do or refrain from doing in connection therewith, except
as a result of its own gross negligence or willful misconduct. This
indemnity includes the costs of enforcing the indemnification
(including attorneys' fees).
(d) The Custodian may consult with or retain legal counsel in
connection with any dispute or question as to the construction of any
of the provisions hereof or with regard to its duties and shall be
held harmless and protected by the Company and the Purchasers in
acting in good faith in accordance with the instructions of such
counsel. Such counsel's fees and expenses shall be paid as set forth
in Section 4(f) hereof. The Custodian may represent itself at its
usual rates.
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(e) The Custodian shall not be responsible or liable for the
default or misconduct of its agents, attorneys or employees, if they
are selected with reasonable care.
(f) The Company shall pay the Custodian's fees, including legal
fees in establishment of the Control Account, and out-of-pocket
disbursements for time spent in performing its duties under this
Agreement. The Company fees are set forth on Schedule 4(f) attached
hereto. If any of Custodian's invoices are not paid in full within 15
days, the Custodian is directed to pay itself directly from the
Control Account, provided that if fees are taken directly from the
Control Account by the Custodian, the Purchasers shall have no claim
against the Custodian for such funds but shall have a claim against
the Company for reimbursement. The Company shall promptly replenish
any funds that are disbursed to the Custodian from the Control
Account.
(g) The Custodian shall have no obligation to seek to maximize
the rate of interest on the Funds, and shall be without liability to
any person in respect thereof.
(h) No modification of this Agreement shall, without the consent
of the Custodian and all other parties hereto, modify the provisions
of this Agreement relating to the duties, obligations or rights of the
Custodian. This Agreement is the final expression of, and contains the
entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect
thereto.
5. Conflict with Respect to Collateral.
(a) In the event that the Custodian at any time receives or
becomes aware of conflicting demands or claims with respect to the
Collateral, this Agreement or its duties hereunder, the Custodian
shall have the right to discontinue and refrain from any and all
activities on its part under this Agreement or in connection herewith
until such conflict is resolved to its satisfaction.
(b) The Custodian shall have the further right to commence or
defend any action or proceedings for the determination of such
conflict. The Company and the Purchasers jointly and severally agree
to pay all costs, damages, judgments and expenses, including
reasonable attorneys' fees, suffered or incurred by the Custodian in
connection with or arising out of this Agreement and the transactions
described herein in the event of bona fide conflicting claims or
demands, including, but without limiting the generality of the
foregoing, a suit in interpleader brought by the Custodian. In the
event that the Custodian files a suit in interpleader, it shall
thereupon be fully released and discharged from all further
obligations to perform any and all duties or obligations imposed upon
it by this Agreement (except it may not release the Collateral except
as designated by the court).
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6. Resignation of Custodian. The Custodian may at any time resign
hereunder by giving written notice of its resignation to the Company and the
Agent, at least ten (10) days prior to the date specified for such resignation
to take effect, and upon the effective date of such resignation, all property
then held by the Custodian hereunder shall be delivered by it to such Person as
may be designated by the Company and the Agent, in writing, whereupon all the
Custodian's obligations hereunder shall cease and terminate. If no such Person
shall have been designated by such date, all obligations of the Custodian
hereunder shall, nevertheless, cease and terminate. The Custodian's sole
responsibility thereafter shall be to keep safely all property then held by it
and to deliver the same to a Person designated by the parties hereto or in
accordance with the directions of a final order or judgment of a court of
competent jurisdiction, or to file a suit in interpleader as provided in Section
5 above.
7. Interest on Funds. The Custodian shall have no obligation to any
party to maintain any level of interest on the Funds. In the absence of an Event
of Default, all accrued interest, if any, shall be payable to the Company or its
assignees at the direction of the Company when actually paid. Upon the
occurrence of an Event of Default, all accrued interest, if any, shall be
payable to the Agent or its assignees at the direction of the Agent when
actually paid
8. Successors and Assigns. The Purchasers may assign their rights
hereunder in connection with the transfer of Debentures. The Company may not
assign its rights under this Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
administrators, successors and permitted assigns.
9. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND
THE PARTIES AGREE AND CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND
STATE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK IN ANY ACTION OR PROCEEDING
HEREUNDER, AND TO SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED
(WHICH SHALL CONSTITUTE "PERSONAL SERVICE"). THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
10. Amendment. No provision of this Agreement may be amended or waived
without the prior written consent of the Company and all of the Purchasers;
provided, however, that any provision relating to the duties, obligations and
rights of the Custodian shall in addition require the approval of the Custodian,
as provided in Section 4 above.
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Notices. All notices, requests or other communications given to Company, Agent
or Bank shall be given in writing (including by facsimile) at the address
specified below:
Agent: Atoll Asset Management, LLC
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Bank: Community Trust and Investment Company
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Company: Consolidated Energy, Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for notices hereunder by notice to each other
party hereunder given in accordance with this Section 11. Each notice, request
or other communication shall be effective (a) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section 11
and confirmation of receipt is made by the appropriate party, (b) if given by
overnight courier, 24 hours after such communication is deposited with the
overnight courier for delivery, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address specified in this Section 11.
11. Agent.
(a) Appointment. The Purchasers, by their acceptance of the
benefits of the Agreement, hereby designate Atoll Asset Management,
LLC as the Agent to act as specified herein. Each Purchaser shall be
deemed irrevocably to authorize the Agent to take such action on its
behalf under the provisions of this Agreement and any other
instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Agent
by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Agent may perform any of its duties
hereunder by or through its agents or employees.
(b) Nature of Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement.
Neither the Agent nor any of its partners, members, shareholders,
officers, directors, employees or agents shall be liable for any
action taken or omitted by it as such under the Agreement or hereunder
or in connection herewith or therewith, unless caused by its or their
gross negligence or willful conduct. The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of the
Company or any Purchaser; and nothing in the Agreement, expressed or
implied, is intended to or shall be so construed as to impose upon the
Agent any obligations in respect of this Agreement except as expressly
set forth herein and therein.
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(c) Lack of Reliance on the Agent. Independently and without
reliance upon the Agent, each Purchaser, to the extent it deems
appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of
the Company and its subsidiaries in connection with such Purchaser's
investment in the Company, the creation and continuance of the
Obligations, the transactions contemplated by the Transaction
Documents, and the taking or not taking of any action in connection
therewith, and (ii) its own appraisal of the creditworthiness of the
Company and its subsidiaries, and of the value of the Collateral from
time to time, and the Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Purchaser
with any credit, market or other information with respect thereto,
whether coming into its possession before any Obligations are incurred
or at any time or times thereafter. The Agent shall not be responsible
to Company or any Purchaser for any recitals, statements, information,
representations or warranties herein or in any document, certificate
or other writing delivered in connection herewith, or for the
execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement,
or for the financial condition of the Company or the value of any of
the Collateral, or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or
conditions of this Agreement, or the financial condition of the
Company, or the value of any of the Collateral, or the existence or
possible existence of any default or Event of Default under this
Agreement, the Debentures or any of the other Transaction Documents.
(d) Certain Rights of the Agent. The Agent shall have the right
to take any action with respect to the Collateral, on behalf of all of
the Purchasers. To the extent practical, the Agent shall request
instructions from the Purchasers with respect to any material act or
action (including failure to act) in connection with this Agreement,
and shall be entitled to act or refrain from acting in accordance with
the instructions of Purchasers holding a majority in principal amount
of Debentures; if such instructions are not provided despite the
Agent's request therefor, the Agent shall be entitled to refrain from
such act or taking such action, and if such action is taken, shall be
entitled to appropriate indemnification from the Purchasers in respect
of actions to be taken by the Agent; and the Agent shall not incur
liability to any Person by reason of so refraining. Without limiting
the foregoing, no Purchaser shall have any right of action whatsoever
against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the terms of the Agreement, and
the Company shall have no right to question or challenge the authority
of, or the instructions given to, the Agent pursuant to the foregoing.
(e) Reliance. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message
signed, sent or made by the proper person or entity, and, with respect
to all legal matters pertaining to this Agreement and its duties
thereunder, upon advice of counsel selected by it.
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(f) Indemnification. The Agent shall be indemnified and held
harmless by the Company and the Purchasers, jointly and severally,
from and against any and all loss, expense, fees (including attorneys'
fees) and damages that may be incurred by the Agent as a result of its
agreeing to act in such capacity and its performance of this
Agreement. The Agent shall not be obligated to any party for any error
in judgment or for any act done or steps taken or omitted by it in
good faith, or for any mistake of fact or law, or for anything which
it may do or refrain from doing in connection therewith, except as a
result of its own gross negligence or willful misconduct. This
indemnity includes the costs of enforcing the indemnification
(including attorneys' fees). To the extent that the Agent is not
reimbursed and indemnified by the Company and/or its subsidiaries, the
Purchasers will jointly and severally reimburse and indemnify the
Agent, in proportion to their initially purchased respective principal
amounts of Debentures, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against the Agent in
performing its duties hereunder or under this Agreement, or in any way
relating to or arising out of this Agreement except for those
determined by a final judgment (not subject to further appeal) of a
court of competent jurisdiction to have resulted solely from the
Agent's own gross negligence or willful misconduct.
(g) Resignation by the Agent.
(i) The Agent may resign from the performance of all its
functions and duties under this Agreement at any time by giving
30 days' prior written notice (as provided in the Agreement) to
the Company and the Purchasers. Such resignation shall take
effect upon the appointment of a successor Agent pursuant to
clauses (b) and (c) below.
(ii) Upon any such notice of resignation, the Purchasers,
acting by a majority in interest, shall appoint a successor Agent
hereunder.
(iii) If a successor Agent shall not have been so appointed
within said 30-day period, the Agent shall then appoint a
successor Agent who shall serve as Agent until such time, if any,
as the Purchasers appoint a successor Agent as provided above. If
a successor Agent has not been appointed within such 30-day
period, the Agent may petition any court of competent
jurisdiction or may interplead the Company and the Purchasers in
a proceeding for the appointment of a successor Agent, and all
fees, including, but not limited to, extraordinary fees
associated with the filing of interpleader and expenses
associated therewith, shall be payable by the Company on demand.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Control Account
and Security Agreement as of the day and year first above written.
CONSOLIDATED ENERGY, INC. Address for Notice:
By:__________________________________________ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Title: Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to (which shall not constitute notice):
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
CUSTODIAN:
COMMUNITY TRUST AND INVESTMENT COMPANY
By:__________________________________________
Name:
Title:
AGENT:
ATOLL ASSET MANAGEMENT, LLC
By:___________________________________
Name:
Title:
With a copy to (which shall not constitute notice):
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
The Graybar Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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[PURCHASERS' SIGNATURE PAGES TO FOLLOW]
[PURCHASER'S SIGNATURE PAGE TO CEIW CUSTODIAL AGREEMENT]
Name of Lender: __________________________
Signature of Authorized Signatory of Lender: __________________________
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
Wire Transfer Instructions of Purchaser (for Monthly Releases pursuant to
Section 2(a)):
[ADDITIONAL PURCHASERS' SIGNATURE PAGES TO FOLLOW]
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ANNEX A
Name of Purchaser Percentage Interest in Funds Monthly Payment
----------------- ---------------------------- ---------------
--------------------------------------------------------------------------------
Total 100% $________
-----
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