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Exhibit 4.43
BLOCKED ACCOUNT CONTROL AGREEMENT
("SHIFTING CONTROL")
AGREEMENT
dated as of November 25, 2003, by and among Tidel Engineering,
L.P. ("Company"), Laurus Master Fund, Ltd.
("Lender") and JPMorgan Chase Bank
("Depositary").
The
parties hereto refer to Account No.32407011661 in the name of
Company
maintained at Depositary (the "Account")
and hereby agree as follows:
1. Company
and Lender notify Depositary that by separate agreement Company
has granted Lender a security interest in
the Account and all funds on deposit
from time to time therein. Depositary
acknowledges being so notified.
2. Prior
to the Effective Time (as defined below) Depositary shall honor
all withdrawal, payment, transfer or other
fund disposition or other
instructions which the Company is entitled
to give under the Account
Documentation (as hereinafter defined)
(collectively, "instructions") received
from the Company (but not those from
Lender) concerning the Account. On and
after the Effective Time (and without
Company's consent), Depositary shall honor
all instructions received from Lender (but
not those from Company) concerning
the Account and Company shall have no right
or ability to access or withdraw or
transfer funds from the Account.
For the purposes hereof, the "Effective
Time" shall be the opening of business
on the second business day next succeeding
the business day on which a notice
purporting to be signed by Lender in
substantially the same form as Exhibit A,
attached hereto, with a copy of this
Agreement attached thereto (a "Shifting
Control Notice"), is actually received by
the individual employee of Depositary
to whom the notice is required hereunder to
be addressed; provided, however,
that if any such notice is so received
after 12:00 noon, New York City time, on
any business day, the "Effective Time"
shall be the opening of business on the
third business day next succeeding the
business day on which such receipt
occurs; and, provided further, that a
"business day" is any day other than a
Saturday, Sunday or other day on which
Depositary is or is authorized or
required by law to be closed.
The Lender hereby covenants that it shall
not send a Shifting Control Notice to
Depositary prior to the occurrence of an
Event of Default (as such term is
defined in that certain Convertible Note in
the aggregate principal amount of
six million four hundred fifty thousand
dollars ($6,450,000) payable to Lender
by Company, as the same may be amended,
modified and supplemented from time to
time).
Notwithstanding the foregoing: (i) all
transactions involving or resulting in a
transaction involving the Account duly
commenced by Depositary or any affiliate
prior to the Effective Time and so
consummated or processed thereafter shall be
deemed not to constitute a violation of
this Agreement; and (ii) Depositary
and/or any affiliate may (at its discretion
and without any obligation to do so)
(x) cease honoring Company's instructions
and/or commence honoring solely
Lender's instructions concerning the
Account at any time or from time to time
after it becomes aware that Lender has sent
to it a Shifting Control Notice but
prior to the Effective Time therefor
(including without limitation halting,
reversing or redirecting any transaction
referred to in clause (i) above), or
(y) deem a Shifting Control Notice to be
received by it for
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purposes of the foregoing paragraph prior
to the specified individual's actual
receipt if otherwise actually received by
Depositary (or if such Shifting
Control Notice contains minor mistakes or
other irregularities but otherwise
substantially complies with the form
attached hereto as Exhibit A or does not
attach an appropriate copy of this
Agreement), with no liability whatsoever to
Company or any other party for doing
so.
3. This
Agreement supplements, rather than replaces, Depositary's
deposit
account agreement, terms and conditions and
other standard documentation in
effect from time to time with respect to
the Account or services provided in
connection with the Account (the "Account
Documentation"), which Account
Documentation will continue to apply to the
Account and such services, and the
respective rights, powers, duties,
obligations, liabilities and responsibilities
of the parties thereto and hereto, to the
extent not expressly conflicting with
the provisions of this Agreement (however,
in the event of any such conflict,
the provisions of this Agreement shall
control). Prior to issuing any
instructions on or after the Effective
Time, Lender shall provide Depositary
with such documentation as Depositary may
reasonably request to establish the
identity and authority of the individuals
issuing instructions on behalf of
Lender. Lender may request the Depositary
to provide other services (such as
automatic daily transfers) with respect to
the Account on or after the Effective
Time; however, if such services are not
authorized or otherwise covered under
the Account Documentation, Depositary's
decision to provide any such services
shall b
