Exhibit
10.9
EXECUTION
VERSION
DEPOSIT
ACCOUNT CONTROL AGREEMENT
Deposit
Account Control Agreement ,
dated as of August 24, 2009 (as amended, restated, supplemented or
otherwise modified from time to time, the “ Agreement
”), by and among Standard Bank Plc , in its capacity
as administrative agent under the Credit Agreement (as defined in
the Pledge Agreement referred to below) (“ Secured
Party ”); Solana Petroleum Exploration (Colombia)
Limited (“ Debtor ”); and BNP Paribas
(“ Bank ”).
PREAMBLE:
|
|
Bank
has established deposit account number 200-615151-001-97-USD in the
name of Debtor (such account, together with any other demand, time,
savings, passbook or similar account established in replacement
thereof or now or hereafter maintained by the Debtor with the Bank,
being collectively referred to as the “ Account
”).
|
|
|
Debtor
(a) is a party to that certain Collection Account Pledge Agreement,
dated as of August 24, 2009 (as amended, modified and supplemented
from time to time, the “ Pledge Agreement ”), by
Debtor in favor of the Secured Party, and (b) pursuant to the
Pledge Agreement, Debtor has granted a security interest in its
assets including, without limitation, the Account and any funds and
remittances to the Account including checks, ACH transfers, wires,
deposits and any other proceeds deposited in the Account (the
“ Funds ”) to secure the obligations referenced
in such Pledge Agreement.
|
4.
Secured Party, Debtor and Bank are entering into this Agreement to
perfect the security interest of Secured Party in the
Account.
TERMS:
Section
1. The Account. All
parties agree that the Account is a “deposit account”
within the meaning of Article 9 of the Uniform Commercial Code of
the State of New York (as amended from time to time, the “
UCC ”). 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. The Bank shall not change the name or account
number of the Account without the prior written consent of Secured
Party.
Section
2. Subordination of Security Interest. Bank
hereby subordinates all security interests, encumbrances, claims
and rights of setoff it may have, now or in the future, against the
Account or any funds in the Account, other than in connection with
(i) the payment of Bank’s (or its affiliate’s) fees,
charges and expenses pursuant to its agreement with Debtor relating
to the Account, or pursuant to this Agreement or otherwise related
to the Account or transactions therein, (ii) reversals of
provisional credits, returned or chargeback items, reversals or
cancellations of payment orders and other electronic funds
transfers and other corrections or adjustments to the Account and
transactions therein and (iii) overdrafts on the
Account.
Section
3. Control. Bank
may (but is not required to) comply with instructions directing the
disposition of funds in the Account 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 Account. Such notice is
referred to herein as the “Notice of Exclusive Control”
and shall be in the form of Exhibit A hereto. After Bank
receives a Notice of Exclusive Control, it will cease complying
with instructions concerning the Account or funds on deposit
therein originated by Debtor or its representatives and shall
thereafter comply with instructions originated by Secured Party
directing disposition of the funds in the Account without further
consent by Debtor or any other person.
Section
4. Statements, Confirmations and Notices of Adverse
Claims. Bank
will (a) send copies of all statements concerning the Account to
each of Debtor and Secured Party at their respective addresses
referred to in Section 13 of this Agreement and (b) provide
promptly to Secured Party upon request, the Account balance. Upon
receipt of written notice of any lien, encumbrance or adverse claim
against the Account or any Funds credited thereto, Bank will make
reasonable efforts to notify Secured Party thereof. Debtor agrees
to promptly review account statements for the Account and to notify
Bank of any errors or improper charges to the Account within 30
days of the receipt of the end of month statement.
Section
5. Limited Responsibility of Bank. Except
for acting on Debtor’s instructions in violation of Section 3
above following delivery of a Notice of Exclusive Control, Bank
shall have no responsibility or liability to Secured Party for
complying with instructions concerning the Account 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 (not to exceed two business days) to act on
it, provided that (a) all transactions involving or
resulting in a transaction involving the Account commenced by
Debtor prior to the end of the second business day after Bank
receives such Notice (the “ Effective Time ”)
and completed or processed thereafter shall not be deemed a
violation of this Agreement and (b) Bank (at its discretion and
without any obligation to do so) may cease honoring Debtor’s
instructions regarding the Account and/or honor Secured
Party’s instructions concerning the Account at any time or
from time to time after it becomes aware that Secured Party has
sent to it a Notice of Exclusive Control but prior to the Effective
Time (including without limitation, halting, reversing or
redirecting any transaction referred to in clause (a) hereof), with
no liability whatsoever to the Debtor or to any other party for
doing so. Notwithstanding anything to the contrary in
this Agreement: (a) Bank shall have only the duties and
responsibilities with respect to the matters set forth herein as is
expressly set forth in writing herein and shall not be deemed to be
an agent, bailee or fiduciary or any party hereto; (b) Bank shall
be fully protected in acting or refraining from acting in good
faith without investigation of any notice (including without
limitation a Notice of Exclusive Control), instruction or request
purportedly furnished to it by Debtor
|