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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 be ma
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