Exhibit
4.7
FORM
OF
DEPOSIT ACCOUNT
CONTROL AGREEMENT
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Dated as of:
July __, 2009
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Company:
Evolution Resources, Inc., a
Nevada corporation
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The Bank:
[ Insert Bank Name
]
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Other Debtors:
Evolution Resources, Inc., a
Delaware corporation
Liquafaction Corporation, a
Washington corporation
Liqua Ethanol, LLC, a Washington
limited liability company
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Address of Bank:
[ Insert Bank Address
]
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Secured
Party/Pledgee:
Harborview Master Fund, L.P., a
British Virgin Islands limited partnership, in its capacity as
Collateral Agent for the benefit of itself and the Buyers referred
to below
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This DEPOSIT ACCOUNT
CONTROL AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time, this “ Agreement
”), by and among the Bank identified above, the Company
identified above (the “ Company ”), the Other
Debtors identified above (the “ Other Debtors ”)
and the Secured Party/Pledgee identified above (the “
Collateral Agent ”) is dated as of the date written
above.
WHEREAS
:
A.
Company and Harborview
Master Fund, L.P., a British Virgin Islands limited partnership
(“ Harborview ”; Harborview, together with its
successors and assigns and each other holder of a Note (as defined
below) and their respective successors and assigns, individually
and collectively, the “ Buyers ”) have entered
into that certain Securities Purchase Agreement dated as of July
__, 2009 (as amended, restated, supplemented or otherwise modified
and in effect from time to time, the “ Purchase
Agreement ”) pursuant to which the Buyers have purchased
secured senior notes in an original aggregate principal amount of
$215,000 (such notes, together with any promissory notes or other
securities issued in exchange or substitution therefor or
replacement thereof, and as any of the same may be amended,
supplemented, restated or modified and in effect from time to time,
the “ Notes ”) and made certain financial
accommodations to the Company.
B.
The Other Debtors have
executed and delivered to the Collateral Agent that certain
Guaranty dated as of July __, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Guaranty ”), pursuant to which the Other Debtors and
certain other parties have guaranteed all of the
“Obligations” under (and as defined in) the
Guaranty.
B.
Pursuant to a Security
Agreement dated as of July __, 2009 (as the same may be amended,
restated, modified or supplemented and in effect from time to time,
the “ Security Agreement ”), entered into among
the Company, the Other Debtors party thereto and the Collateral
Agent, the Company and the Other
Debtors have granted the
Collateral Agent, for its benefit and the benefit of the Buyers, a
first priority security interest in, lien upon and pledge of all of
their right, title and interest in and to the Account(s) (as
defined below) and the Account Collateral (as defined below),
including, without limitation, all free credit balances, cash and
cash balances contained or on deposit in the Accounts and all
proceeds thereof, whether now existing or hereafter
arising.
C.
This Agreement is
intended to perfect the Collateral Agent’s and the
Buyers’ security interest in the Account(s) and the Account
Collateral pursuant to Sections 9-104, 9-312 and 9-314 of the
Uniform Commercial Code and shall also serve as instructions
regarding the operation of and procedures for all deposit accounts
now or hereafter maintained at the Bank by, or for the deposit,
credit or custody of property of, the Company and the Other
Debtors.
NOW
THEREFORE ,
the Bank, the Company, the Other Debtors and the Collateral Agent
hereby agree as follows:
1.
Account
Identification . This Agreement applies to
the accounts identified below that have been established at the
Bank on behalf of and in the name of the Company and/or such Other
Debtors and to each other deposit account hereafter established at
the Bank on behalf of the Company and/or the Other Debtors
(collectively, the “ Accounts ”). All
parties hereto acknowledge and agree that each of the Accounts is a
“ Deposit Account ” within the meaning of
Article 9 of the Uniform Commercial Code. The Bank hereby
agrees to deliver written notice to the Collateral Agent of the
establishment of any accounts other than those listed below
(whether characterized as a deposit account or otherwise) at the
Bank by or on behalf of the Company and/or the Other
Debtors.
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Account Holder
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Name of Account
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Account Number
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_______________________
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_______________________
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_______________________
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_______________________
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_______________________
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_______________________
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_______________________
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_______________________
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_______________________
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2.
Security Interest;
Agency .
(a)
Each of the Bank, the
Company, the Other Debtors and the Collateral Agent acknowledges
that, in order to secure the prompt and complete payment,
performance and observance of all “ Liabilities
” (as defined in the Security Agreement), the Company and the
Other Debtors have granted, and for avoidance of doubt and without
limiting any prior grant, do hereby grant, to the Collateral Agent,
for the benefit of itself and the Buyers, a continuing lien upon,
and security interest in, the Accounts and all funds, checks, cash,
items, instruments, investments, securities and other things of
value at any time paid, deposited, credited or held in, payable or
withdrawable from or in transit to any Account (whether for
collection, provisionally or otherwise), and all other property of
the Company and the Other Debtors from time to time in the
possession or under the control of, or in transit to, the Bank or
any agent, bailee or custodian therefor, and all proceeds of all of
the foregoing (collectively, the “ Account Collateral
”).
(b)
The Bank agrees to
comply with instructions originated by the Collateral Agent
directing disposition of the funds in the Accounts or any other
Account Collateral or to take such other action as shall from time
to time be specified in writing from the Collateral Agent, in all
cases without notice to or the consent of the Company or the Other
Debtors. The Bank shall follow the instructions of
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the Collateral Agent as
to the holding, investment and transfer of all Account Collateral
(including without limitation, any instructions to transfer such
collected amounts to the Buyers or to an account designated by the
Collateral Agent). Each of the Company and the Other
Debtors hereby irrevocably authorizes and directs the Bank to
comply with any such instructions by the Collateral Agent without
further action or consent by the Company or the Other Debtors and
notwithstanding any subsequent objection or contrary direction the
Bank may receive from the Company or the Other Debtors. In
addition, each of the Company and the Other Debtors agrees that the
Bank may act as the agent of the Collateral Agent in exercising any
rights of set-off provided by applicable law or by any Transaction
Document (as defined in the Purchase Agreement) as to any Account
Collateral. The Company and the Other Debtors each agrees
that the Bank shall be entitled to rely, without independent
investigation, on any written notice in the form of Exhibit
A from the Collateral Agent to the effect that an Event of
Default (each as defined in the Notes) has occurred and is
continuing or any other statement of the Collateral Agent to the
effect that any exercise of set-off requested by the Collateral
Agent is permitted under applicable law, the Security Agreement or
any applicable Transaction Document.
(c)
Without limiting or
qualifying the provisions of clause (b) above, the Collateral
Agent, on its behalf and on behalf of the Buyers, hereby appoints
the Bank as the Collateral Agent’s and the Buyers’
agent and pledgee-in-possession for the Accounts and all Account
Collateral, for the purpose of perfecting Collateral Agent’s
and the Buyers’ security interest therein; and the Bank by
its execution and delivery of this Agreement hereby accepts such
appointment and agrees to be bound by the terms of this Agreement.
The Company and the Other Debtors each hereby agrees to such
app
