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Exhibit 10.9
FORM OF
DEPOSIT ACCOUNT CONTROL AGREEMENT
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Dated as of: Company:
____ __, 2007 River Capital Group, Inc.,
a Delaware corporation
The Bank: Other Debtors:
[Insert Bank Name] Sonterra Resources, Inc.,
a Delaware corporation
Address of Bank: Secured Party/Pledgee:
[Insert Bank Address] Viking Asset Management, LLC, a
California limited liability
company, 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 Other
Debtor[(s)] identified above and the Secured Party/Pledgee
identified above (the
"Collateral Agent") is dated as of the date written above.
WHEREAS:
A. The Company and The Longview Fund, L.P., a California
limited
partnership ("Longview"; Longview, 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 [ PURCHASE, CONTRIBUTION AND EXCHANGE AGT ] dated as of
_____ __, 2007
(as amended, restated, supplemented or otherwise modified and in
effect from
time to time, the "Purchase Agreement") pursuant to which the
Buyers have
purchased a certain [ senior secured notes ] dated as of _____
__, 2007 in the
original principal amount of [ $__________ ] (such note,
together with any notes
issued in substitution or exchange, or in replacement or
addition thereof, as
the same may be amended, restated, supplemented or otherwise
modified from time
to time, the "Initial Notes") and made certain financial
accommodations to the
Company and may hereafter purchase certain additional [ senior
secured notes ]
(such additional notes, together with any notes issued in
substitution or
exchange, or in replacement or addition thereof, as the same may
be amended,
restated, supplemented or otherwise modified from time to time,
the "Subsequent
Notes", the Subsequent Notes and the Initial Notes,
collectively, the "Notes").
B. Pursuant to a Security Agreement dated as of _____ __,
2007
(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,
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the other "Debtors" party thereto and 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 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 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
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 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.
Account Holder Name of Account Account Number
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2. Security Interest; Agency.
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(a) Each of Bank, the Company, the Other Debtors and
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
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").
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(b) The Bank agrees to comply with instructions
originated by 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 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 Collateral Agent as to the
holding, investment
and transfer of all Account Collateral (including without
limitation, any
instructions to transfer such collected amounts to Buyers or to
an account
designated by Collateral Agent). Each of the Company and the
Other Debtors
hereby irrevocably authorizes and directs the Bank to comply
with any such
instructions by 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 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 agree that the Bank shall be entitled to rely,
without independent
investigation, on any written notice in the form of Exhibit A
from 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 Collateral
Agent to the
effect that any exercise of set-off requested by 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, Collateral Agent, on its behalf and on behalf
of the Buyers,
hereby appoints the Bank as 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 Agre
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