Exhibit 10.9
RESTRICTED ACCOUNT AGREEMENT
This Restricted
Account Agreement (this "Agreement") is entered into this
25th day of June 2004, by and among NORTH
FORK BANK, a New York banking
corporation with offices at 275 Broadhollow
Road, Melville, New York 11747
(together with its successors and assigns,
the "Bank"), DATALOGIC
INTERNATIONAL, INC., a Delaware corporation
with offices at 18301 Von Karman,
Suite 250, Irvine, California 92612
(together with its successors and assigns,
the "Company"), and LAURUS MASTER FUND,
LTD., a Cayman Islands corporation
with offices at 825 Third Avenue, 14th
Floor, New York, New York 10022
(together with its successors and assigns,
"Laurus"). Unless
otherwise
defined herein, capitalized terms used
herein shall have the meaning provided
such terms in the Purchase Agreement
referred to below.
WHEREAS, Laurus
has provided financing to the Company, which financing is
evidenced by a Securities Purchase
Agreement (as amended, modified or
supplemented from time to time, the
"Purchase Agreement") and the Related
Agreements referred to therein;
WHEREAS, the
Company and Laurus have retained the Bank to provide certain
services with respect to the Restricted
Account (as defined below); and
WHEREAS, the
Company and Laurus have agreed that an amount of cash equal
to $1,250,000 shall be deposited by Laurus
on behalf of the Company by wire
transfer of immediately available funds
into the Restricted Account, which
cash shall be held by the Bank for the
benefit of Laurus, as security for the
Company's and its Subsidiaries' obligations
under the Purchase Agreement and
the Related Agreements. For the purposes of this
Agreement, the "Restricted
Account" shall mean that certain deposit
account (as defined in Section 9-102
of the Uniform Commercial Code as in effect
in the State of New York on the
date hereof) described on Exhibit B hereto,
which Restricted Account shall be
maintained at the Bank and shall be in the
sole dominion and control of
Laurus;
NOW THEREFORE,
in consideration of the mutual promises contained herein
and for other good and valuable
consideration the sufficiency of which is
hereby acknowledged, the parties hereto
agree as follows:
1. The Bank is hereby
authorized to accept for deposit into the
Restricted Account the sum of $1,250,000.
The Bank hereby agrees
to hold any
and all monies, and other amounts from time
to time on deposit and/or held in
the Restricted Account for the benefit of
the Laurus and shall not release any
monies held in the Restricted Account until
such time as the Bank shall have
received a notice from Laurus substantially
in the form attached hereto as
Exhibit A (a "Release Notice").
Following the receipt
of a Release Notice
from Laurus, the Bank agrees to promptly
disburse the amount of cash referred
to in such Release Notice to such account
as Laurus shall determine in its
sole discretion. The Bank hereby agrees that it
will only comply with written
instructions originated by Laurus directing
disposition of funds in the
Restricted Account. The Company hereby irrevocably
authorizes the Bank to
comply with any and all instructions given
to the Bank by Laurus with respect
to the Restricted Account without further
consent by the Company. The Bank,
the Company and Laurus agree that the
Restricted Account is in Laurus' sole
dominion and control.
2. Each of the Company, Laurus
and the Bank hereby agrees that the
Restricted Account shall not be closed, and
the account name and account
number in respect thereof shall not be
changed, in any case, without the
consent of the Laurus, except as
specifically provided for in Section 9 below.
3. The Bank hereby
subordinates any claims and security interests it
may have against, or with respect to, the
Restricted Account (including any
amounts from time to time on deposit
therein) to the security interests of
Laurus therein, and agrees that no amounts
shall be charged by it to, or
withheld or set-off or otherwise recouped
by it from, the Restricted Account
or any amounts from time to time on deposit
therein; provided that, in
connection with all service charges and any
other charges which the Bank is
entitled to receive in connection with the
servicing and maintaining of the
Restricted Account (such charges,
collectively, the "Charges"), each of the
Company, Laurus and the Bank hereby agrees
that the Bank will collect such
Charges in the following manner: (i) first,
the Bank will charge other deposit
accounts maintained by the Company with the
Bank, (ii) second, in the event
that there are insufficient colle
