Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges that this Agreement is an “authenticated” record and that the arrangements established under this Agreement constitute “control” of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] (the “[State] UCC”). (b) The Company represents and warrants to the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s compliance with this Section 1(b). (c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. (d) The Company authorizes and directs the Bank to comply with all instructions given by the Secured Party in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company. (e) The Secured Party authorizes and instructs the Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against any Account even if it results in dishonor of the item presented against the Account. (f) Until delivery of the Notice by the Secured Party in accordance with the provisions of Section 7, the Secured Party shall not give any instruction to the Bank or otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateral. Upon the implementation of the Notice by the Bank, the Bank shall not permit any officer, agent or other representative of the Company or its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or otherwise exercise any authority or power with respect to any Lockbox, Account or Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement. (g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) and the Deposit Agreement shall also apply to the Secured Party’s exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 3 contracts
Samples: Credit Agreement (New Century Transportation, Inc.), Credit Agreement (Osi Systems Inc), Credit Agreement (Osi Systems Inc)
Control of the Accounts. (a) The Statement of Facts is true and correct and incorporated herein by reference. The Bank represents Each party to this Agreement hereby confirms that it is a “bank”. The Company and the Bank acknowledge that (i) each Account is a “deposit account”. Each party to , (ii) this Agreement acknowledges that this Agreement is shall constitute an “authenticated” record authenticated record”, and that (iii) the arrangements established under this Agreement shall constitute “control” of each Account. Each , as each of these those terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by in the State of [ ] in which the respective Account identified in Appendix 1 is located (hereinafter referred to as the “[State] Applicable UCC”).
(b) The Company represents and warrants to the Secured Party Agent that Exhibit A Appendix 1 contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company hereby covenants for the benefit of the Secured Party Agent that the Company shall not open or maintain any deposit account with the Bank other than the Account(s)Accounts listed on Appendix 1. Nothing in this Agreement shall be deemed to impose upon the Bank any duty to monitor or otherwise assure the Company’s compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company hereby authorizes and directs the Bank to comply comply, and the Bank agrees to comply, with all instructions given by the Secured Party Agent in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds from time to time in any Account or as to any other matter matters relating to any Account or any of the other Account Collateral, Collateral without further consent by the Company.
(e) . The Secured Party authorizes Bank shall be entitled to rely and instructs the Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the any instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation received by the Bank of the written instruction from the Secured Party to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this AgreementAgent. The Secured PartyAgent’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item items that may be presented to the Bank against any Account Account, and the Company also authorizes the Bank to follow such instructions by the Agent even if it results in the dishonor of the item items presented against the any Account.
(fd) Until delivery Each of the Notice by Company and the Secured Party Agent hereby authorizes and directs the Bank to act solely upon the instructions of the Agent concerning the Lockboxes and the Accounts including, but not limited to, instructions to: (i) direct disposition of funds in the Accounts (including, but not limited, dispositions to or for the benefit of the Agent and/or the Bank), (ii) withdraw any amount from the Account(s), or (iii) draw upon or otherwise exercise any authority or powers with respect to the Lockboxes, the Accounts and all other Account Collateral until the Bank shall have received written instructions from the Agent in accordance with the provisions of Section 77 of this Agreement to the contrary. Effective as of the date of this Agreement: all Items Collateral received by the Bank in a Lockbox (subject to specific Lockbox instructions for processing the contents of mail received in the Lockbox) shall be deposited to the Account listed opposite such Lockbox on Appendix 1; all other Items Collateral received directly by the Bank for credit to an Account shall be credited to such Account, and; all available funds in an Account either shall (i) automatically and without further direction on each banking day be remitted, at the Secured Party shall not give any instruction Company’s expense, solely to the account of the Agent set forth on Appendix 2 attached hereto and made a part hereof, or (ii) be subject to withdrawal or transfer based on written instructions given by the Agent to the Bank or in accordance with this Section 7 of this Agreement. Unless otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required instructed by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateral. Upon the implementation Agent in writing, none of the Notice by the Bankofficers, the Bank shall not permit any officer, agent agents or other representative representatives of the Company or any of its affiliates shall at any time during the term of this Agreement have any authority to direct the disposition of funds in any Account, withdraw any amount from any Account or to draw upon or otherwise exercise any authority or power with respect to any the Lockbox, any Account or any Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(ge) All defenses of the Bank under the Deposit Agreement, Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) as to the collection and the Deposit Agreement payment of items shall also apply be applicable to and enforceable against the Secured Party’s exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the BankAgent. Each of the Company and the Secured Party Agent hereby authorizes and instructs the Bank to supply the Company’s or the Secured PartyAgent’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive and deposit for deposit collection to any Account.
Appears in 1 contract
Samples: Senior Secured Working Capital Credit Facility (Transmontaigne Inc)
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges that this Agreement is an “authenticatedauthenticated record” record and that the arrangements established under this Agreement constitute “control” of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] New York (the “[State] New York UCC”).
(b) The Company represents and warrants to the Secured Party Collateral Agent that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. The Company covenants for the benefit of the Collateral Agent and the Lenders that the Company shall not close or instruct the Bank to close any Account or Lockbox without the prior written consent of the Collateral Agent. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party Collateral Agent pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply comply, and the Bank agrees to comply, with all instructions given by the Secured Party Collateral Agent in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company. The Collateral Agent’s right to give instructions to the Bank regarding any Account Collateral also shall include the right to give “stop payment orders” to the Bank for any item presented to the Bank against any Account even if it results in dishonor of the item presented against the Account.
(e) The Secured Party Collateral Agent authorizes and instructs the Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from delivered by the Secured Party Collateral Agent to the Bank substantially in the form text of Exhibit B attached hereto and made a part hereof hereof, completed accordingly (the “Notice”) ), in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right Bank shall not be obligated to give instructions honor or accept any document purported to be the Notice unless it: (A) shall be in the text of Exhibit B and completed accordingly; and (B) shall be accompanied by a copy of this Agreement as fully executed; and (C) shall have been delivered to the Bank regarding any Account Collateral also shall include (but is not limited to) Bank’s Designated Officer in accordance with the right to give “stop payment orders” to the Bank for any item presented to the Bank against any Account even if it results in dishonor provisions of the item presented against the AccountSection 7.
(f) Until delivery of the Notice by the Secured Party Collateral Agent to the Bank in accordance with the provisions of Section 7this Agreement, the Secured Party Collateral Agent shall not give any instruction to the Bank or otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party Collateral Agent with regard to the Account(s) and the Account Collateral. Upon the implementation of the Notice by the Bank, the Bank shall not permit any officer, agent or other representative of the Company or its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or otherwise exercise any authority or power with respect to any Lockbox, Account or Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party Collateral Agent in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) and the Deposit Agreement shall also apply to the Secured PartyCollateral Agent’s exercise of control over the Account(s) and to the Account Collateral and to the performance of services hereunder by the BankBank of its obligations under this Agreement. Each of the Company and the Secured Party Collateral Agent authorizes and instructs the Bank to supply the Company’s or the Secured PartyCollateral Agent’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “"bank”". The Company and the Bank acknowledge that each Account is a “"deposit account”". Each party to this Agreement acknowledges that this Agreement is an “"authenticated” " record and that the arrangements established under this Agreement constitute “"control” " of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] Florida (the “[State] "Florida UCC”").
(b) The Company represents and warrants to the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s 's compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply with all instructions given by the Secured Party in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company. The Bank shall neither accept nor comply with any instruction from the Company withdrawing any funds or other property from the Account or deliver any of the funds or property of the Account to the Company without the specific prior written consent of the Secured Party.
(e) The Secured Party hereby authorizes and instructs the Bank to act solely upon the instructions of the Secured Party concerning the Account Collateral, including the Lockbox(es) and the Account(s), which instructions may include, but are not limited to, instructions to: (i) permit direct disposition of funds in the Company Account(s) (including, but not limited to, dispositions to have access or for the benefit of the Secured Party and/or the Bank), (ii) withdraw any amount from the Account(s), and (iii) otherwise exercise any authority or power with respect to and disposition over the Lockbox(es), the Account(s) and other Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the Collateral, which instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party be delivered to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s 's right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “"stop payment orders” " to the Bank for any item presented to the Bank it against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery Effective as of the Notice date of this Agreement, all Items Collateral received by the Bank in a Lockbox (subject to specific Lockbox instructions for processing the contents of mail received in the Lockbox) shall be deposited to the Account listed opposite such Lockbox in Exhibit A; all other Items Collateral received directly by the Bank for credit to an Account shall be credited to such Account, and; all available funds in an Account shall automatically and without further direction on each banking day (defined in Section 7) be remitted solely to the deposit account of the Secured Party set forth in accordance with the provisions of Section 7, the Secured Party shall not give any instruction to the Bank or otherwise exercise control over the Account(s) Exhibit B attached hereto and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateralmade a part hereof. Upon the implementation of the Notice by the Bank, the The Bank shall not permit any officerof the officers, agent agents or other representative representatives of the Company or any of its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or to otherwise exercise any authority or power with respect to any Lockbox, Account or other Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “"Applicable UCC”")) and the Deposit Agreement shall also apply to the Secured Party’s 's exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s 's or the Secured Party’s 's endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company confirms and the Bank acknowledge acknowledges that each Account is a “deposit account”. Each party to this Agreement hereto acknowledges that this Agreement is an “authenticated” record authenticated record”, and that the arrangements established under this Agreement are intended to constitute “control” of each Account. Each of these terms is used in this Agreement as defined or used in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] New York (the “[State] New York UCC”).
(b) The Company represents and warrants to the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with instruct the Bank other than to close any Account without the Account(s)prior written consent of the Secured Party. Nothing in this Agreement shall impose upon the Bank any duty obligation to monitor or assure the Company’s compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have has not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items other Account Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items other Account Collateral.
(d) The Company authorizes and directs the Bank to comply comply, and the Bank agrees to comply, with all instructions given delivered by the Secured Party to the Bank in accordance with and subject to this Agreement and permissible with which the Bank would be obligated contractually to implement under the Deposit Agreement, including directing the disposition of funds in any an Account or as to any other matter relating to any an Account or other Account Collateral, without further consent by the Company.
(e) The Secured Party authorizes and instructs the Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against any an Account even if it the instruction results in dishonor of the item presented against the Account.
(fe) Until delivery of the Notice by the The Secured Party in accordance with the provisions of Section 7, the Secured Party shall not give any instruction to authorizes and instructs the Bank or otherwise exercise control to: (i) permit the Company to have access to and disposition over the Account(s) and the Account Collateral and, until and to otherwise deal with same as provided in the Deposit Agreement; and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and other Account Collateral until the implementation by the Bank of the written instruction by the Secured Party to the Bank in the form and text of Exhibit B attached hereto and made a part hereof, and completed in full (a “Notice”), and delivered to the Bank in accordance with and subject to the provisions of Section 7 below. The Bank shall be obligated to implement the Notice only if the Notice: (A) shall be in the form and text of Exhibit B and completed in full; (B) shall have attached to it a copy of this Agreement as fully executed (together with all amendments thereto); and (C) shall have been delivered to the Bank in accordance with Section 7 (provided, however, the Bank shall be fully authorized, in its exercise of its sole discretion, to implement the Notice even if the conditions of clause (B) shall not have been fulfilled).
(f) Upon implementation of a Notice by the Bank as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateral. Upon the implementation of the Notice by the Bank, the Bank shall not permit any officer, agent or other representative of the Company or its affiliates to direct the disposition of funds in any Account, withdraw or transfer any amount from any Account Account, or otherwise exercise any authority or power with respect to any LockboxAccount, Lockbox or other Account or Account CollateralCollateral until such time, if any, that the Bank shall have implemented a Rescission of Notice in accordance with Section 1(g). Upon implementation of the a Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred therefrom based on instructions given delivered by the Secured Party to the Bank in accordance with this AgreementSection 7. Each other instruction that the Secured Party shall deliver to the Bank in connection with an Account or other Account Collateral must be delivered to the Bank in accordance with the provisions of Section 7, and shall either accompany delivery of a Notice by the Secured Party to the Bank or subsequently shall be delivered by the Secured Party to the Bank. Any instruction by the Secured Party to the Bank to remit or transfer funds from an Account to any recipient account of the Secured Party or any other recipient account, and which recipient account shall not be an account maintained by the Bank, must only be an instruction to the Bank to remit or transfer funds from the Account via wire transfer in accordance with the Bank’s procedures governing wire transfers of funds. The Secured Party shall not instruct the Bank to remit or transfer funds from any Account via ACH.
(g) At any time after the Bank shall have implemented a Notice, the Secured Party may rescind a Notice by the written instruction by the Secured Party to the Bank in the form and text of Exhibit C attached hereto and made a part hereof, and completed in full (a “Rescission of Notice”), and delivered to the Bank in accordance with and subject to the provisions of Section 7 below. The Bank shall be obligated to implement a Rescission of Notice only if the Rescission of Notice: (A) shall be in the form and text of Exhibit C and completed in full; (B) shall have attached to it a copy of this Agreement as fully executed (together with all amendments thereto); and (C) shall have been delivered to the Bank in accordance with Section 7 (provided, however, the Bank shall be fully authorized, in its exercise of its sole discretion, to implement a Rescission of Notice even if the conditions of clause (B) shall not have been fulfilled). Upon the delivery of a Rescission of Notice by the Secured Party to the Bank, the Secured Party shall have authorized and instructed the Bank to: (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement; and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and other Account Collateral until such time as the Bank shall have implemented any subsequent Notice that the Bank shall have received from the Secured Party. During the term of this Agreement the Secured Party shall not deliver a Rescission of Notice to the Bank on more than two (2) separate occurrences, and if the Secured Party shall deliver a Rescission of Notice to the Bank on a third or successive occurrence, such third or successive Rescission of Notice shall be null, void and of no effect and shall not be implemented by the Bank.
(h) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and rules, other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the each respective Account identified on is located as specified in Exhibit A is located (hereinafter, the “Applicable UCC”)) ), and the Deposit Agreement also shall also apply to the Secured Party’s exercise of control over the Account(s) each Account and the Account Collateral and to the performance of services hereunder by the BankBank of its obligations under this Agreement. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any an Account.
Appears in 1 contract
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges that this Agreement is an “authenticated” record and that the arrangements established under this Agreement constitute “control” of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] Florida (the “[State] Florida UCC”).
(b) The Company represents and warrants to the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply with all instructions given by the Secured Party in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company.
(e) The Secured Party hereby authorizes and instructs the Bank to act solely upon the instructions of Secured Party concerning the Lockbox(es) and the Account(s) including, but not limited to, instructions to: (i) permit direct disposition of funds in the Company Account(s) (including, but not limited to, dispositions to have access or for the benefit of Secured Party and/or Bank), (ii) withdraw any amount from the Account(s), and (iii) otherwise exercise any authority or power with respect to and disposition over the Lockbox(es), the Account(s) and other Account Collateral and Collateral, which instructions shall be delivered to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank it against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery Effective as of the Notice date of this Agreement, all Items Collateral received by Bank in a Lockbox (subject to specific Lockbox instructions for processing the Secured Party contents of mail received in the Lockbox) shall be deposited to the Account listed opposite such Lockbox in Exhibit A; all other Items Collateral received directly by Bank for credit to an Account shall be credited to such Account, and; all available funds in an Account shall be remitted solely in accordance with the provisions instructions of Section 7, the Secured Party shall not give any instruction to the Bank or otherwise exercise control over the Account(s) and the Account Collateral andParty, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account CollateralBank from time to time. Upon the implementation of the Notice by the Bank, the Bank shall not permit any officerof the officers, agent agents or other representative representatives of the Company or any of its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or to otherwise exercise any authority or power with respect to any Lockbox, Account or other Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) and the Deposit Agreement shall also apply to the Secured Party’s exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Samples: Securities Purchase Agreement (Healthy Choice Wellness Corp.)
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “"bank”". The Company and the Bank acknowledge that each Account is a “"deposit account”". Each party to this Agreement acknowledges that this Agreement is an “"authenticated” " record and that the arrangements established under this Agreement constitute “"control” " of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] New York (the “[State] "NY UCC”").
(b) The Company represents and warrants to the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s 's compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply with all instructions given by the Secured Party in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company.
(e) The Secured Party hereby authorizes and instructs the Bank to act solely upon the instructions of the Secured Party concerning the Lockbox(es) and the Account(s) including, but not limited to, instructions to: (i) permit direct disposition of funds in the Company Account(s) (including, but not limited to, dispositions to have access or for the benefit of the Secured Party and/or the Bank), (ii) withdraw any amount from the Account(s), and (iii) otherwise exercise any authority or power with respect to and disposition over the Lockbox(es), the Account(s) and other Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the Collateral, which instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party be delivered to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s 's right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “"stop payment orders” " to the Bank for any item presented to the Bank it against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery Effective as of the Notice date of this Agreement, all Items Collateral received by the Secured Party Bank in accordance with a Lockbox (subject to specific Lockbox instructions for processing the provisions contents of Section 7, mail received in the Secured Party Lockbox) shall not give any instruction be deposited to the Bank or otherwise exercise control over the Account(s) and the Account listed opposite such Lockbox in Exhibit A; all other Items Collateral and, until received directly by the Bank for credit to an Account shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard credited to the Account(s) and the Account Collateralsuch Account. Upon the implementation of the Notice by the Bank, the The Bank shall not permit any officerof the officers, agent agents or other representative representatives of the Company or any of its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or to otherwise exercise any authority or power with respect to any Lockbox, Account or other Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “"Applicable UCC”")) and the Deposit Agreement shall also apply to the Secured Party’s 's exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s 's or the Secured Party’s 's endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Samples: Credit and Security Agreement (Conexant Systems Inc)
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges that this Agreement is an “authenticated” record and that the arrangements established under this Agreement constitute “control” of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] Georgia (the “[State] Georgia UCC”).
(b) The Company represents and warrants to the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items CollateralCollateral except for that certain Deposit Account Control Agreement among the Bank, the Company and Wachovia Bank, National Association, as administrative agent (the “Second Lien Secured Creditor”), dated the date hereof (the “Second Lien Control Agreement”). During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party and the Second Lien Secured Creditor pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply with all instructions given by the Secured Party in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company.
(e) The Each of the Company and the Secured Party hereby authorizes and instructs the Bank to act solely upon the instructions of the Secured Party concerning the Lockbox(es) and the Account(s) including, but not limited to, instructions to: (i) permit direct disposition of funds in the Company Account(s) (including, but not limited to, dispositions to have access or for the benefit of the Secured Party and/or the Bank), (ii) withdraw any amount from the Account(s), and (iii) otherwise exercise any authority or power with respect to and disposition over the Lockbox(es), the Account(s) and other Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the Collateral, which instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party be delivered to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank it against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery Effective as of the Notice date of this Agreement, all Items Collateral received by the Secured Party Bank in accordance with a Lockbox (subject to specific Lockbox instructions for processing the provisions contents of Section 7, mail received in the Secured Party Lockbox) shall not give any instruction be deposited to the Bank or otherwise exercise control over the Account(s) Account listed opposite such Lockbox in Exhibit A; and the Account all other Items Collateral and, until received directly by the Bank for credit to an Account shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard credited to the Account(s) and the Account Collateralsuch Account. Upon the implementation of the Notice by the Bank, the The Bank shall not permit any officerof the officers, agent agents or other representative representatives of the Company or any of its affiliates or the Second Lien Secured Creditor to direct the disposition of funds in any Account, withdraw any amount from any Account or to otherwise exercise any authority or power with respect to any Lockbox, Account or other Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “"Applicable UCC”)) and the Deposit Agreement shall also apply to the Secured Party’s exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges that this Agreement is an “authenticated” record and that the arrangements established under this Agreement constitute “control” of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] New York (the “[State] New York UCC”).
(b) The Company represents and warrants to the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). As between the Company and the Secured Party, the Company and the Secured Party acknowledge that the Accounts constitute "Special Accounts" as such term is defined in the Agreement for Inventory Financing dated March 18, 2008 by and among the Company and the Secured Party. Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s compliance with this Section 1(b) and the Bank shall not have any liability with respect thereto or with respect to any other matter referred to in this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply with all instructions given by the Secured Party in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company.
(e) The Secured Party authorizes and instructs the Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery of the Notice by the Secured Party in accordance with the provisions of Section 7, the Secured Party shall not give any instruction to the Bank or otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateral. Upon the implementation of the Notice by the Bank, the Bank shall not permit any officer, agent or other representative of the Company or its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or otherwise exercise any authority or power with respect to any Lockbox, Account or Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) and the Deposit Agreement shall also apply to the Secured Party’s exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Samples: Deposit Account Control Agreement (En Pointe Technologies Inc)
Control of the Accounts. (a) The Statement of Facts is true and correct and incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges hereby confirms that (i) each Account is a "deposit account", (ii) this Agreement is shall constitute an “authenticated” record "authenticated record", and that (iii) the arrangements established under this Agreement shall constitute “"control” " of each Account. Each , as each of these those terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by in the State of [ ] in which the respective Account identified in Appendix 1 is located (hereinafter referred to as the “[State] "Applicable UCC”").
(b) The Company represents and warrants to the Secured Party Agent that Exhibit A Appendix 1 contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company hereby covenants for the benefit of the Secured Party Agent that the Company shall not open or maintain any deposit account with the Bank other than the Account(s)Accounts listed on Appendix 1. Nothing in this Agreement shall be deemed to impose upon the Bank any duty to monitor or otherwise assure the Company’s 's compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company hereby authorizes and directs the Bank to comply comply, and the Bank agrees to comply, with all instructions given by the Secured Party Agent in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds from time to time in any Account or as to any other matter matters relating to any Account or any of the other Account Collateral, Collateral without further consent by the Company.
(e) . The Secured Party authorizes Bank shall be entitled to rely and instructs the Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the any instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation received by the Bank of the written instruction from the Secured Party to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this AgreementAgent. The Secured Party’s Agent's right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “"stop payment orders” " to the Bank for any item items that may be presented to the Bank against any Account Account, and the Company also authorizes the Bank to follow such instructions by the Agent even if it results in the dishonor of the item items presented against the any Account.
(fd) Until delivery Each of the Notice by Company and the Secured Party Agent hereby authorizes and directs the Bank to act solely upon the instructions of the Agent concerning the Lockboxes and the Accounts including, but not limited to, instructions to: (i) direct disposition of funds in the Accounts (including, but not limited, dispositions to or for the benefit of the Agent and/or the Bank), (ii) withdraw any amount from the Account(s), or (iii) draw upon or otherwise exercise any authority or powers with respect to the Lockboxes, the Accounts and all other Account Collateral until the Bank shall have received written instructions from the Agent in accordance with the provisions of Section 77 of this Agreement to the contrary. Effective as of the date of this Agreement: all Items Collateral received by the Bank in a Lockbox (subject to specific Lockbox instructions for processing the contents of mail received in the Lockbox) shall be deposited to the Account listed opposite such Lockbox on Appendix 1; all other Items Collateral received directly by the Bank for credit to an Account shall be credited to such Account, and; all available funds in an Account either shall (i) automatically and without further direction on each banking day be remitted, at the Secured Party shall not give any instruction Company's expense, solely to the account of the Agent set forth on Appendix 2 attached hereto and made a part hereof, or (ii) be subject to withdrawal or transfer based on written instructions given by the Agent to the Bank or in accordance with this Section 7 of this Agreement. Unless otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required instructed by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateral. Upon the implementation Agent in writing, none of the Notice by the Bankofficers, the Bank shall not permit any officer, agent agents or other representative representatives of the Company or any of its affiliates shall at any time during the term of this Agreement have any authority to direct the disposition of funds in any Account, withdraw any amount from any Account or to draw upon or otherwise exercise any authority or power with respect to any the Lockbox, any Account or any Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(ge) All defenses of the Bank under the Deposit Agreement, Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) as to the collection and the Deposit Agreement payment of items shall also apply be applicable to and enforceable against the Secured Party’s exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the BankAgent. Each of the Company and the Secured Party Agent hereby authorizes and instructs the Bank to supply the Company’s 's or the Secured Party’s Agent's endorsement, as appropriate, to any Items Collateral that the Bank shall receive and deposit for deposit collection to any Account.
Appears in 1 contract
Samples: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges that this Agreement is an “authenticated” record and that the arrangements established under this Agreement constitute “control” of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] Florida (the “[State] Florida UCC”).
(b) The Company represents and warrants to the Secured Party Agents that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party Agents that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the Company’s compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party Agents pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Bank to comply with all instructions given by the Secured Party Agents in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the Company.
(e) The Secured Party Each Agent authorizes and instructs the Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party any Agent to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured PartyEach Agent’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery of the Notice by the Secured Party any Agent in accordance with the provisions of Section 7, the Secured Party Agents shall not give any instruction to the Bank or otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party Agents with regard to the Account(s) and the Account Collateral. Upon the implementation of the Notice by the Bank, the Bank shall not permit any officer, agent or other representative of the Company or its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or otherwise exercise any authority or power with respect to any Lockbox, Account or Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party Agents in accordance with this Agreement.
(g) Notwithstanding anything herein to the contrary, (i) prior to receipt by Bank of a Notice of Termination of First Lien Obligations substantially in the form of Exhibit D attached hereto (“Notice of Termination of First Lien Obligations”) sent by First Lien Agent, Bank shall not comply with any instruction originated by Second Lien Agent, and references herein to any action permitted to be taken by “the Agents” or by “any Agent” shall be construed to mean action by the First Lien Agent, and (ii) after receipt by Bank of a Notice of Termination of First Lien Obligations sent by First Lien Agent, Bank shall not comply with any instruction originated by First Lien Agent, and references herein to any action permitted to be taken by “the Agents” or by “any Agent” shall be construed to mean action by the Second Lien Agent.
(h) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) and the Deposit Agreement shall also apply to the Secured Party’s Agents’ exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company and the Secured Party Agents authorizes and instructs the Bank to supply the Company’s or the Secured Party’s Agents’ endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Control of the Accounts. (a) The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company SPV and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges that this Agreement is an “authenticated” record and that the arrangements established under this Agreement constitute “control” of each Account. Each of these terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by the State of [ ] Georgia (the “[State] Georgia UCC”).
(b) The Company SPV represents and warrants to the SPV and the Secured Party that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company SPV with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not open or maintain any deposit account with the Bank other than the Account(s). Nothing in this Agreement shall impose upon the Bank any duty to monitor or assure the CompanySPV’s compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company SPV and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company SPV authorizes and directs the Bank to to, and the Bank agrees that it shall, comply with all instructions given by the Secured Party in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds in any Account or as to any other matter relating to any Account or other Account Collateral, without further consent by the CompanySPV.
(e) The Secured Party authorizes and instructs the Bank to (i) permit the Company SPV and/or the Collection Agent to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from the Company SPV and/or the Collection Agent concerning the Lockbox and the Account Collateral until the implementation by the Bank of the written instruction from the Secured Party to the Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “Notice”) in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery of the Notice by the Secured Party in accordance with the provisions of Section 7, the Secured Party shall not give any instruction to the Bank or otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateral. Upon the implementation of the Notice by the Bank, the Bank shall not permit any officer, agent or other representative of the Company SPV, the Collection Agent or its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or otherwise exercise any authority or power with respect to any Lockbox, Account or Account Collateral. Upon implementation of the Notice by the Bank, all collected and available funds in any Account shall only be withdrawn or transferred based on instructions given by the Secured Party in accordance with this Agreement.
(g) Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) and the Deposit Agreement shall also apply to the Secured Party’s exercise of control over the Account(s) and the Account Collateral and to the performance of services hereunder by the Bank. Each of the Company SPV and the Secured Party authorizes and instructs the Bank to supply the CompanySPV’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to any Account.
Appears in 1 contract
Samples: Waiver Agreement (Tronox Inc)
Control of the Accounts. (a) The Statement of Facts is true and correct and incorporated herein by reference. The Bank represents that it is a “bank”. The Company and the Bank acknowledge that each Account is a “deposit account”. Each party to this Agreement acknowledges hereby confirms that (i) each Account is a "deposit account", (ii) this Agreement is shall constitute an “authenticated” record "authenticated record", and that (iii) the arrangements established under this Agreement shall constitute “"control” " of each Account. Each , as each of these those terms is used in this Agreement as defined in Article 9 of the Uniform Commercial Code as adopted by in the State of [ ] in which the respective Account identified on Exhibit A is located (hereinafter referred to as the “[State] "Applicable UCC”").
(b) As security for the prompt and complete payment and performance when due of all of its indebtedness and obligations to the Purchasers, the Company hereby grants to the Agent a continuing lien upon and security interest in, and transfer to the Agent control of the Account Collateral. The Company represents and warrants to the Secured Party Agent that Exhibit A contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Depository Bank and that are subject to this Agreement. The Company covenants for hereby agrees that without prior written notice to the benefit of the Secured Party that Agent, the Company shall not open or maintain any deposit other account with the Bank other than the Account(s)Depository Bank. Nothing in this Agreement shall be deemed to impose upon the Depository Bank any duty to monitor or otherwise assure the Company’s 's compliance with this Section 1(b).
(c) The Bank confirms that, as of the date of this Agreement, the Company and the Bank have not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of Items Collateral.
(d) The Company authorizes and directs the Depository Bank to comply comply, and the Depository Bank agrees to comply, with all instructions given by the Secured Party Agent in accordance with this Agreement and permissible under the Deposit Agreement, including directing the disposition of funds from time to time in any Account or as to any other matter matters relating to any Account or any of the other Account Collateral, Collateral without further consent by the Company. The Depository Bank shall be entitled to rely and act upon any instructions received by the Depository Bank from the Agent, even if such instructions shall be contrary to any instructions received by the Depository Bank from the Company. The Agent's right to give instructions to the Depository Bank regarding any Account Collateral shall include the right to give "stop payment orders" to the Depository Bank for any items that may be presented to the Depository Bank against any Account, and the Company also authorizes the Depository Bank to follow such instructions by the Agent even if it results in the dishonor of items presented against any Account.
(ed) The Secured Party Agent authorizes and instructs directs the Depository Bank to (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement and (ii) act upon the instructions that the Bank shall receive from of the Company concerning the Lockbox and the Accounts including, but not limited to, instructions to: (i) direct the disposition of funds in the Accounts (including, but not limited to, dispositions to or for the benefit of the Company and/or the Depository Bank), (ii) withdraw any amount(s) from any Account(s), or (iii) draw upon or otherwise exercise any authority or powers with respect to the Lockboxes, the Accounts and all other Account Collateral Collateral, until the implementation by the Depository Bank of the unilateral written instruction from the Secured Party Agent to the Depository Bank substantially in the form of Exhibit B attached hereto and made a part hereof (the “"Notice”") in accordance with the provisions of Section 7 of this Agreement. The Secured Party’s right to give instructions to Agent authorizes and instructs the Depository Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against any Account even if it results in dishonor of the item presented against the Account.
(f) Until delivery of the Notice by the Secured Party in accordance with the provisions of Section 7that, the Secured Party shall not give any instruction to the Bank or otherwise exercise control over the Account(s) and the Account Collateral and, until the Bank shall receive and implement the Notice as provided in Section 7, the Bank shall not (and shall not be required by the provisions of this Agreement to) honor and follow any instruction the Bank may receive from the Secured Party with regard to the Account(s) and the Account Collateral. Upon upon the implementation of the Notice by the BankDepository Bank and thereafter, the Depository Bank shall not permit any officer(subject to specific Lockbox instructions for processing items received in the Lockboxes) deposit all Items Collateral received in a Lockbox to the Account listed opposite such Lockbox on Exhibit A, agent or and credit to such Account with all other representative Items Collateral received directly by the Depository Bank for credit to an Account. Furthermore, upon the effectiveness of the Notice upon the Company or its affiliates to direct the disposition of funds in any Account, withdraw any amount from any Account or otherwise exercise any authority or power with respect to any Lockbox, Account or Account Collateral. Upon and implementation of the Notice by the BankDepository Bank as provided in Section 7, all collected and available funds in any an Account shall only be withdrawn or transferred based on instructions given originated by the Secured Party Agent in accordance with this Agreement. Such instructions shall be honored and followed by the Depository Bank without further consent of or notice to the Company. The Agent hereby confirms to the Company that Agent shall only issue the Notice in connection with the exercise of Agent's rights arising under or in connection with an Event of Default set forth in the Security Agreement and the Company confirms that notwithstanding the foregoing, the Agent may issue the Notice without the consent of or notice to the Company.
(ge) The Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules and other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which the respective Account identified on Exhibit A is located (hereinafter, the “Applicable UCC”)) govern the collection and payment of items with respect to the Accounts and interests therein. The terms and conditions of the Deposit Agreement shall also apply to the Secured Party’s exercise of control over the Account(s) and the Account Collateral and Agent, solely with respect to the performance collection and payment of services hereunder by items in the BankAccounts; provided all set-off rights of Depository Bank are set forth in Section 3(b). Each of the Company and the Secured Party Agent hereby authorizes and instructs the Depository Bank to supply the Company’s 's or the Secured Party’s Agent's endorsement, as appropriate, to any Items Collateral that the Depository Bank shall receive and deposit for deposit collection to any Account.
Appears in 1 contract
Samples: Deposit Account Control Agreement (Visual Data Corp)
