FORM OF RESTRICTED ACCOUNT AGREEMENT
Exhibit 10.34
FORM OF RESTRICTED ACCOUNT AGREEMENT
This Restricted Account Agreement (this “Agreement”) is entered into this 19th day of May, 2005, by and among [BANK], a New York banking corporation with offices at [ADDRESS] (together with its successors and assigns, the “Bank”), CORGENIX MEDICAL CORPORATION, a Nevada corporation with offices at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (together with its successors and assigns, the “Company”), and [PURCHASERS] (“Purchasers”). Unless otherwise defined herein, capitalized terms used herein shall have the meaning provided such terms in the Purchase Agreement referred to below.
WHEREAS, Purchasers have provided financing to the Company, which financing is evidenced by a Securities Purchase Agreement (as amended, modified or supplemented from time to time, the “Purchase Agreement”) and the Related Agreements referred to therein;
WHEREAS, the Company and Purchasers have retained the Bank to provide certain services with respect to the Restricted Account (as defined below); and
WHEREAS, the Company and Purchasers have agreed that an amount of cash equal to $250,000 shall be deposited by Purchasers on behalf of the Company by wire transfer of immediately available funds into the Restricted Account, which cash shall be held by the Bank for the benefit of Purchasers, as security for the Company’s and its Subsidiaries’ obligations under the Purchase Agreement and the Related Agreements. For the purposes of this Agreement, the “Restricted Account” shall mean that certain deposit account (as defined in Section 9-102 of the Uniform Commercial Code as in effect in the State of New York on the date hereof) described on Exhibit B hereto, which Restricted Account shall be maintained at the Bank and shall be in the sole dominion and control of Purchasers;
NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. The Bank is hereby authorized to accept for deposit into the Restricted Account the sum of $250,000. The Bank hereby agrees to hold any and all monies, and other amounts from time to time on deposit and/or held in the Restricted Account for the benefit of Purchasers and shall not release any monies held in the Restricted Account until such time as the Bank shall have received a notice from Purchasers substantially in the form attached hereto as Exhibit A (a “Release Notice”). Following the receipt of a Release Notice from Purchasers, the Bank agrees to promptly disburse the amount of cash referred to in such Release Notice to such account as Purchasers shall determine in their sole discretion. The Bank hereby agrees that it will only comply with written instructions originated by Purchasers directing disposition of funds in the Restricted Account. The Company hereby irrevocably authorizes the Bank to comply with any and all instructions given to the Bank by Purchasers with respect to the Restricted Account without further consent by the Company. The Bank, the Company and Purchasers agree that the Restricted Account is in Purchasers’ sole dominion and control.
2. Each of the Company, Purchasers and the Bank hereby agrees that the Restricted Account shall not be closed, and the account name and account number in respect thereof shall
not be changed, in any case, without the consent of Purchasers, except as specifically provided for in Section 9 below.
3. The Bank hereby subordinates any claims and security interests it may have against, or with respect to, the Restricted Account (including any amounts from time to time on deposit therein) to the security interests of Purchasers therein, and agrees that no amounts shall be charged by it to, or withheld or set-off or otherwise recouped by it from, the Restricted Account or any amounts from time to time on deposit therein; provided that, in connection with all service charges and any other charges which the Bank is entitled to receive in connection with the servicing and maintaining of the Restricted Account (such charges, collectively, the “Charges”), each of the Company, Purchasers and the Bank hereby agrees that the Bank will collect such Charges in the following manner: (i) first, the Bank will charge other deposit accounts maintained by the Company with the Bank, if any, (ii) second, in the event that there are insufficient collected funds in such other deposit accounts to pay such Charges, the Bank will promptly notify the Company and Purchasers with respect to same and, within seven (7) business days of the Company’s receipt of such notice, the Company shall pay to the Bank the full amount of such Charges then due, and (iii) third, if the Company fails to pay to the Bank such Charges then due within the time period set forth in the preceding clause (ii), the Bank will promptly provide a written notice to Purchasers of such occurrence and, in such case, the Bank is hereby authorized, following a period of five (5) business days after the receipt of such written notice by Purchasers, to deduct such Charges then due from the Restricted Account, unless, during such five (5) business day period, Purchasers pays the amount of any such Charges then due to the Bank from its own account. Except for the payment of the Charges as set forth in the immediately preceding proviso, the Bank agrees that it shall not offset, deduct or claim against the Restricted Account unless and until Purchasers have notified the Bank in writing that all of the Company’s obligations under the Purchase Agreement and the Related Agreements have been performed.
4. The Company and the Bank agree that the maintenance by the Bank of the Restricted Account shall be as agent for Purchasers. The Bank shall be responsible for the performance of only such duties as are set forth herein. The Bank’s duties hereunder, however, are merely ministerial, and the Bank shall have no liability or obligation to the Company or Purchasers or to any other person for any act or omission of the Bank in connection with the performance of the Bank’s duties in servicing and/or maintaining the Restricted Account, except for acts of gross negligence or willful misconduct by the Bank. IN NO EVENT, HOWEVER, SHALL THE BANK HAVE ANY RESPONSIBILITY FOR CONSEQUENTIAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS, WHETHER OR NOT IT HAS NOTICE THEREOF, AND REGARDLESS OF THE BASIS, THEORY OR NATURE OF THE ACTION UPON WHICH THE CLAIM IS ASSERTED, NOR SHALL IT HAVE ANY RESPONSIBILITY OR LIABILITY FOR THE VALIDITY OR ENFORCEABILITY OF ANY SECURITY INTEREST OR OTHER INTEREST OF [PURCHASER’S MANAGER] OR THE COMPANY IN THE RESTRICTED ACCOUNT. In furtherance of and without limiting the foregoing, the Company and Purchasers agree that the Bank shall not be liable for any damage or loss to them for any delay or failure of performance arising out of the acts or omissions of any third parties, including, but not limited to, various communication services, courier services, the Federal Reserve system, any other bank or any third party who may be affected by funds transactions, fire, mechanical, computer or electrical failures or other unforeseen contingencies,
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strikes or any similar or dissimilar cause beyond the reasonable control of the Bank. This paragraph shall survive the termination of this Agreement.
5. Except where the Bank has been grossly negligent or has acted in bad faith, each of each Purchaser and the Company and their respective successors and assigns will release the Bank from and shall indemnify and hold the Bank harmless from and against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable counsel fees, whether arising in an action or proceeding among the parties hereto or otherwise, without regard to the merit or lack of merit thereof) to which the Bank may become subject, or which it may suffer or incur, arising out of or based upon this Agreement or the actions contemplated hereby. This paragraph shall survive termination of this Agreement.
6. The Bank shall be fully protected in acting on any order or direction by Purchasers respecting the items received by the Bank or the monies or other items in the Restricted Account without making any independent inquiry whatsoever as to Purchasers’ rights or authority to give such order or direction or as to the application of any payments made pursuant thereto.
7. Nothing in this Agreement shall be deemed to prohibit the Bank from complying with its customary procedures in the event that it is served with any legal process with respect to the Restricted Account.
8. The rights and powers granted in this Agreement to [PURCHASER’S AGENT] have been granted in order to protect and further perfect its security interests in the Restricted Account (including any amounts from time to time on deposit therein) and are powers coupled with an interest and will be affected neither by any purported revocation by the Company of this Agreement or the rights granted to [PURCHASER’S AGENT] hereunder or by the bankruptcy, insolvency, conservatorship or receivership of the Company or the Bank or by the lapse of time.
9. This Agreement may not be amended or waived except by an instrument in writing signed by each of the parties hereto. This Agreement may be terminated by the Bank upon giving the Company and Purchasers thirty (30) days prior written notice. Purchasers shall designate a successor bank on or prior to the effective date of such termination and the Bank shall deliver the balance in the Restricted Account to such successor bank. Any notice required to be given hereunder may be given, and shall be deemed given when delivered, via telefax, U.S. mail return receipt requested or nationally recognized overnight courier to each of the parties at the address set forth above. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles. This Agreement sets forth the entire agreement among the parties hereto as to the matters set forth herein and supersedes all prior communications, written or oral, with respect to the matters herein. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED BY THIS AGREEMENT. THE BANK, THE COMPANY AND PURCHASERS EACH HEREBY
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SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE COUNTY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY.
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Agreed and accepted this 19th day of May, 2005.
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[BANK] |
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[PURCHASER] |
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CORGENIX MEDICAL CORPORATION |
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