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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
525 University Avenue, Suite 700, Palo Alto, CA 94301 (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
B-1640 Rhode St. Genese Belgium (the "CUSTOMER"), and HSBC Bank
USA, National
Association, 452 Fifth Avenue, New York, N.Y. 10018 (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
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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
