EXHIBIT 10.6
DEPOSIT ACCOUNT CONTROL AGREEMENT
THIS DEPOSIT ACCOUNT CONTROL AGREEMENT, dated as of November 5, 2003, by
and between RMB INTERNATIONAL (DUBLIN) LIMITED, a corporation organized under
the laws of the Republic of Ireland and having an address of 00 Xxxxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxx 0 Xxxxxxx, and its agent, RMB RESOURCES LIMITED, a
corporation organized under the laws of England and having an address of Xxxxx
0, Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx (collectively, the "Secured
Party"), WESTERN MESQUITE MINES, INC., a corporation organized under the laws of
the State of Nevada and having an address of 0000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx
000 #000, Xxxxx, Xxxxx 00000 ("Debtor"), and XXXXX XXXXX NATIONAL BANK, having
an address at 0 Xxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 (the "Bank").
WHEREAS, pursuant to a Security Agreement dated November 5, 2003, between
the Secured Party and the Debtor, Debtor has granted Secured Party a security
interest in two deposit accounts maintained by Bank for Debtor. The parties are
entering into this agreement to perfect Secured Party's security interest in
those accounts.
1. THE ACCOUNT. Bank maintains two deposit accounts for Debtor as described
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below (as each such account may be renumbered or retitled, the "Account" and
collectively, the "Accounts"). All parties agree that each Account is a
"deposit account" within the meaning of Article 9 of the Uniform Commercial Code
of the State of Colorado (the "UCC").
Project Account Account No. 0000000
Proceeds Account Account No. 0000000
2. CONTROL. Bank will comply with instructions originated by Secured Party
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directing disposition of the funds in the Accounts without further consent by
Debtor. Except as provided below, Bank will not permit the withdrawal or other
disposition of any funds in the Accounts by Debtor without Secured Party's prior
written consent. Bank may also comply with instructions directing the
disposition of funds in the Accounts originated by Debtor or its authorized
representatives until such time as Secured Party delivers a written notice to
Bank that Secured Party is thereby exercising exclusive control over the
Accounts. Such notice is referred to herein as the "Notice of Exclusive
Control." After Bank receives a Notice of Exclusive Control and has had
reasonable opportunity to comply, it will cease complying with instructions
concerning the Account or funds on deposit therein originated by Debtor or its
representatives. Bank has not and will not agree with any third party to comply
with instructions or other directions concerning the Account or the disposition
of funds in the Account originated by such third party without the prior written
consent of Secured Party and Debtor.
3. SUBORDINATION OF BANK'S SECURITY INTEREST. Bank hereby subordinates all
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security interests, encumbrances, claims and rights of setoff it may have, now
or in the future, against the Accounts or any funds in the Accounts other than
in connection with the payment of Bank's
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customary fees and charges pursuant to its agreement with Debtor and for the
reversal of provisional credits.
4. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE CLAIMS. Bank will send
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copies of all statements concerning the Accounts to Debtor and to RMB Resources
Limited at the addresses set forth in the heading of this Agreement. Upon
receipt of written notice of any lien, encumbrance or adverse claim against the
Accounts or any funds credited thereto, Bank will make reasonable efforts
promptly to notify Secured Party (and each of them) and Debtor thereof.
5. BANK'S RESPONSIBILITY. Except for acting on Debtor's instructions in
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violation of Section 2 above, Bank shall have no responsibility or liability to
Secured Party for complying with instructions concerning the Accounts from
Debtor or Debtor's authorized representatives which are received by Bank before
Bank receives a Notice of Exclusive Control and has had reasonable opportunity
to act on it. Bank shall have no responsibility or liability to Debtor for
complying with a Notice of Exclusive Control or complying with instructions
concerning the Accounts originated by Secured Party, and shall have no
responsibility to investigate the appropriateness of any such instruction or
Notice of Exclusive Control, even if Debtor notifies Bank that Secured Party is
not legally entitled to originate any such instruction or Notice of Exclusive
Control.
6. INDEMNITY. Debtor and Secured Party hereby agree to indemnify and hold
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harmless Bank, its directors, officers, agents and employees against any and all
claims, causes of action, liabilities, lawsuits, demands and damages, including
without limitation, any and all court costs and reasonable attorney's fees, in
any way related to or arising out of or in connection with this Agreement or any
action taken or not taken pursuant hereto, except to the extent caused by Bank's
negligence or willful misconduct or Bank's breach of any of the provisions
hereof.
7. CUSTOMER AGREEMENT. In the event of a conflict between this Agreement
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and any other agreement between the Bank and the Debtor relating to the
Accounts, the terms of this Agreement will prevail; provided, however, that this
Agreement shall not alter or affect any mandatory arbitration provision
currently in effect between Bank and Debtor pursuant to a separate agreement.
8. DEBTOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING THE
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ACCOUNTS. The Debtor represents and warrants to, and covenants with, the
Secured Party as follows: (a) the Accounts described herein are the only
deposit accounts established by the Debtor for the purpose of receiving funds
from whatever source, including receipt of the financing to be provided by the
Secured Party and receipt of Debtor's accounts receivables from any third party,
and for deposit of Working Capital requirements; (b) the Debtor shall not open
any other deposit or other account for the purpose of receiving funds for any
purpose without the prior written consent of the Secured Party, and in any event
without obtaining execution by the Secured Party, the Debtor and the relevant
financial institution of a control agreement in form and substance satisfactory
to the Secured Party; (c) the Debtor shall not close or terminate either of the
Accounts without the prior written consent of the Secured Party; and (d) the
Accounts shall not be used for deposit of funds held by the Debtor in any
fiduciary capacity, including without limitation funds for payment of payroll,
employee benefits or taxes
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9. TERMINATION. Unless earlier terminated by Bank pursuant to this Section
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9, this Agreement shall continue in effect until Secured Party has notified Bank
in writing that this Agreement, or its security interest in the Accounts, is
terminated. Upon receipt of such notice, the obligations of Bank hereunder with
respect to the operation and maintenance of the Accounts after the receipt of
such notice shall terminate, Secured Party shall have no further right to
originate instructions concerning the Accounts and any previous Notice of
Exclusive Control delivered by Secured Party shall be deemed to be of no further
force and effect.
10. COMPLETE AGREEMENT; AMENDMENTS. This Agreement and the instructions and
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notices required or permitted to be executed and delivered hereunder set forth
the entire agreement of the parties with respect to the subject matter hereof
and, subject to Section 7 above, supersede any prior agreement and
contemporaneous oral agreements of the parties concerning its subject matter.
No amendment, modification or (except as otherwise specified in Section 9 above)
termination of this Agreement, nor any assignment of any rights hereunder
(except to the extent contemplated under Section 13 below), shall be binding on
any party hereto unless it is in writing and is signed by each of the parties
hereto, and any attempt to so amend, modify, terminate or assign except pursuant
to such a writing shall be null and void. No waiver of any rights hereunder
shall be binding on any party hereto unless such waiver is in writing and signed
by the party against whom enforcement is sought.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
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accordance with the law of the State of Colorado.
12. SEVERABILITY. To the extent a provision of this Agreement is
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unenforceable, this Agreement will be construed as if the unenforceable
provision were omitted.
13. SUCCESSORS AND ASSIGNS. The terms of this Agreement shall be binding
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upon, and shall inure to the benefit of, the parties hereto and their respective
corporate successors or heirs and personal representatives. This Agreement may
be assigned by Secured Party to any successor of Secured Party under its
security agreement with Debtor; provided, however, that written notice thereof
is given by Secured Party to Bank.
14. NOTICES. Except as otherwise expressly provided herein, any notice,
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order, instruction, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been properly
given when delivered in person, or when sent by facsimile transmission or other
electronic means, or upon receipt of notice sent by overnight mail or certified
or registered United States mail, return receipt requested, postage prepaid,
addressed to the party at the address set forth below. Any party may change its
address for notices in the manner set forth above.
XXXXX XXXXX NATIONAL BANK WESTERN MESQUITE MINES, INC.
7 West Main 0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000 Suite 160, #135
Attn: Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000 Attn: Xxxx Xxxxxxx
E-mail: xxxxxxx@xxxxxxxxxx.xxx Fax: 000-000-0000
E-Mail: xxxxxxxx@xxx.xxx
0
XXX Xxxxxxxxxxxxx (Xxxxxx) Xxxxxxx XXX Resources Limited, agent
00 Xxxxxxxxxx Xxxx Xxxxx 0
Xxxxxxxxxxx One Mitre Square
Dubin 0 Xxxxxxx Xxxxxx XX0X 0XX
Attn: Xxxxxxx Xxxxxxxxx United Kingdom
Fax: 00-000-000-0000 Attn: Xxxxxxx Xxxxxxxxx
E-mail: Xxxxxxx.Xxxxxxxxx@xxxx.xx.xx Fax: 00-000-000-0000
E-mail: Xxxxxxx.Xxxxxxxxx@xxxx.xx.xx
15. JURY WAIVER. THE DEBTOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT
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TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, ANY RIGHTS, REMEDIES, OBLIGATIONS, OR DUTIES HEREUNDER, OR THE
PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
16. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
XXXXX XXXXX NATIONAL BANK WESTERN MESQUITE MINES, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
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Title: Executive Vice President Title: Secretary
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Printed Name: Xxxx X. Xxxxxx Printed Name: Xxxx X. Xxxx
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XXX XXXXXXXXXXXXX (XXXXXX) XXX RESOURCES LIMITED, AGENT
LIMITED
By: /s/ X. Xxxxxxx By: /s/ X.X. Xxxxxxxx
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Title: Authorized Signatory Title: Managing Director
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Printed Name: X. Xxxxxxx Printed Name: X.X. Xxxxxxxx
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By: /s/ X. Xxxxxxxxx
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Title: Authorized Signatory
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Printed Name: X. Xxxxxxxxx
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