THIS SECURITIES ACCOUNT CONTROL AGREEMENT (this “Agreement”) is entered into as of September 30, 2015 by and among __________ (“Customer”), T.R. Winston & Company, LLC, a Delaware limited liability company (“Intermediary”), and LBB Acquisition, LLC, a limited liability company organized under the laws of the state of North Carolina (the “Secured Party”).
WHEREAS, the Customer and the Secured Party entered into that certain Stock Pledge and Security Agreement dated as of even date herewith, whereby Customer agreed to deposit the Collateral (as hereinafter defined) in order to secure certain obligations owed to the Secured Party; and
WHEREAS, Customer maintains that certain account no. _________, and may now or hereafter maintain sub-accounts thereunder or consolidated therewith (collectively, the “Securities Account”) with Intermediary pursuant to an agreement between Intermediary and Customer dated as of September ___, 2015 (the “Account Agreement”), a copy of which is attached hereto as Exhibit A, and Customer has granted to Secured Party a security interest in the Securities Account and all financial assets and other property now or at any time hereafter held in the Securities Account; and
WHEREAS, Secured Party, Customer and Intermediary have agreed to enter into this Agreement to perfect Secured Party’s security interests in the Collateral, as defined below.
NOW, THEREFORE, in consideration of their mutual covenants and promises, the parties agree as follows:
1. DEFINITIONS. As used herein:
(a) the term “Collateral” shall mean: (i) the Securities Account; (ii) all financial assets credited to the Securities Account; (iii) all security entitlements with respect to the financial assets credited to the Securities Account; (iv) any and all other investment property or assets maintained or recorded in the Securities Account; and (v) all replacements or substitutions for, and proceeds of the sale or other disposition of, any of the foregoing, including without limitation, cash proceeds; and
(b) the terms “investment property,” “entitlement order,” “financial asset” and “security entitlement” shall have the respective meanings set forth in the Uniform Commercial Code. The parties hereby expressly agree that all property, including without limitation, cash, certificates of deposit and mutual funds, at any time held in the Securities Account is to be treated as a “financial asset.”
2. AGREEMENT FOR CONTROL. Intermediary is authorized by Customer and agrees to comply with all entitlement orders originated by Secured Party with respect to the Securities Account, and all other requests or instructions from Secured Party regarding disposition and/or delivery of the Collateral, without further consent or direction from Customer or any other party.
3. CUSTOMER’S RIGHTS WITH RESPECT TO THE COLLATERAL.
(a) Until Intermediary is notified in writing otherwise by Secured Party, Customer, or any party authorized by Customer to act with respect to the Securities Account, may give trading instructions to Intermediary with respect to Collateral in the Securities Account.
(b) Without Secured Party’s prior written consent, except to the extent permitted by the preceding paragraph: (i) neither Customer nor any party (whether authorized by Customer or not) other than Secured Party may withdraw any Collateral from the Securities Account; and (ii) Intermediary will not comply with any entitlement order or request to withdraw any Collateral from the Securities Account given by any party other than Secured Party.
(c) Upon receipt of written notice from Secured Party (with a copy to Customer): (i) Intermediary shall promptly cease complying with entitlement orders and other instructions concerning the Collateral, including the Securities Account, from all parties other than Secured Party; and (ii) Intermediary shall not make any further distributions of any Collateral to any party other than Secured Party, nor permit any further voluntary changes in the financial assets.
4. INTERMEDIARY’S REPRESENTATIONS AND WARRANTIES. Intermediary represents and warrants to Secured Party that:
(a) The Securities Account is maintained with Intermediary solely in Customer’s name.
(b) Intermediary has no knowledge of any claim to, security interest in or lien upon any of the Collateral, except: (i) the security interests in favor of Secured Party; and (ii) Intermediary’s liens securing fees and charges, or payment for open trade commitments, as described in the last paragraph of this Section.
(c) Attached hereto as Exhibit A is a true and complete copy of the Account Agreement.
(d) Attached hereto as Exhibit B is an accurate and complete statement of the financial assets in the Securities Account as of the date set forth in said statement.
(e) Any claim to, security interest in or lien upon any of the Collateral which Intermediary now has or at any time hereafter acquires shall be junior and subordinate to the security interests of Secured Party in the Collateral, except for Intermediary’s liens securing: (i) fees and charges owed by Customer with respect to the operation of the Securities Account; and (ii) payment owed to Intermediary for open trade commitments for purchases in and for the Securities Account.
5. AGREEMENTS OF INTERMEDIARY AND CUSTOMER. Intermediary and Customer agree that:
(a) Intermediary shall flag its books, records and systems to reflect Secured Party’s security interests in the Collateral, and shall provide notice thereof to any party making inquiry as to Customer’s accounts with Intermediary to whom or which Intermediary is legally required or permitted to provide information.
(b) Intermediary shall send copies of all statements relating to the Securities Account simultaneously to Customer and Secured Party.
(c) Intermediary shall promptly notify Secured Party if any other party asserts any claim to, security interest in or lien upon any of the Collateral, and Intermediary shall not enter into any control, custodial or other similar agreement with any other party that would create or acknowledge the existence of any such other claim, security interest or lien.
(d) Without Secured Party’s prior written consent, Intermediary and Customer shall not amend or modify the Account Agreement, other than amendments to reflect ordinary and reasonable changes in Intermediary’s fees and charges for handling the Securities Account.
(e) Neither Intermediary nor Customer shall terminate the Account Agreement without giving thirty (30) days’ prior written notice to Secured Party.
(a) This Agreement shall not create any obligation or duty of Intermediary except as expressly set forth herein.
(b) As to the matters specifically the subject of this Agreement, in the event of any conflict between this Agreement and the Account Agreement or any other agreement between Intermediary and Customer, the terms of this Agreement shall control.
(c) All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the signature page (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid) and shall be deemed received on the second business day after deposit.
(d) The prevailing party in the prosecution or defense of any action arising out of this Agreement, including any action for declaratory relief, shall be reimbursed by the party whose course of action necessitated such prosecution or defense for all costs and expenses, including reasonable attorneys’ fees (to include outside counsel fees and all allocated costs of the prevailing party’s in-house counsel), expended or incurred by the prevailing party in connection therewith, whether incurred at the trial or appellate level, in an arbitration proceeding, bankruptcy proceeding or otherwise.
(e) This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, legal representatives, successors and assigns of the parties; provided however, that Intermediary may not assign its obligations hereunder without Secured Party’s prior written consent. This Agreement may be amended or modified only in writing signed by all parties hereto.
(f) This Agreement shall terminate upon: (i) Intermediary’s receipt of written notice from Secured Party expressly stating that Secured Party no longer claims any security interest in the Collateral; or (ii) termination of the Account Agreement pursuant to the terms hereof and Intermediary’s delivery of all Collateral to Secured Party or its designee in accordance with Secured Party’s written instructions.
(g) This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
|____________________, as Customer||LBB ACQUISITION, LLC, as Secured Party|
|Address:||Name:||Michael D. Pruitt|
|Title:||Chief Executive Officer|
|7621 Little Avenue, Suite 414|
|Charlotte, North Carolina 28226|
|T.R. Winston & Company, LLC,|
|a Delaware limited liability company|