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Common use of Priority of Lien Clause in Contracts

Priority of Lien. Bank hereby acknowledges and agrees that: (a) Bank has received notice of the existence of the security interest of Secured Party in the Deposit Account, and recognizes the security interest granted to Secured Party by Customer; (b) all of Bank’s present and future rights against the Deposit Account are subordinate to Secured Party’s security interest therein; provided, however, that Secured Party hereby acknowledges and agrees that nothing herein subordinates or waives, and that Bank expressly reserves, all of its present and future rights (whether described as rights of setoff, banker’s lien, security interest, chargeback or otherwise, and whether available to Bank under the law or under any other agreement between Bank and Customer concerning the Deposit Account, or otherwise) solely with respect to: (a) items deposited to the Deposit Account and returned unpaid, whether for insufficient funds or for any other reason, and without regard to the timeliness of return of any such items or the occurrence or timeliness of any drawee’s notice of non-payment of such items; (b) ACH entries credited to the Deposit Account and later reversed, whether for insufficient funds or for any other reason, and without regard to the timeliness of such entries’ reversal; (c) chargebacks to the Deposit Account of credit card transactions; (d) erroneous entries to the Deposit Account; (e) overdrafts on the Deposit Account, (f) claims of breach of the transfer or presentment warranties made to Bank pursuant to the Code in connection with items deposited to the Deposit Account; and (g) Bank’s usual and customary charges for services rendered in connection with the Deposit Account; and; (c) Except as otherwise required by law, Bank shall not enter into any agreement with any third party relating to the Deposit Account or agree that it will comply with any Orders concerning the Deposit Account originated by any such third party without the prior written consent of Secured Party and Customer.

Appears in 2 contracts

Samples: Loan and Security Agreement (GlassHouse Technologies Inc), Loan and Security Agreement (GlassHouse Technologies Inc)

Priority of Lien. Bank hereby acknowledges and agrees that: (a) Bank has received notice of the existence of the security interest of Secured Party in the Deposit Account, and recognizes the security interest granted to Secured Party by Customer; (b) all of Bank’s present and future rights against the Deposit Account are subordinate to Secured Party’s security interest therein; provided, however, that Secured Party hereby acknowledges and agrees that nothing herein subordinates or waives, and that Bank expressly reserves, all of its present and future rights (whether described as rights of setoff, banker’s lien, security interest, chargeback or otherwise, and whether available to Bank under the law or under any other agreement between Bank and Customer concerning the Deposit Account, or otherwise) solely with respect to: (a) items deposited to the Deposit Account and returned unpaid, whether for insufficient funds or for any other reason, and without regard to the timeliness of return of any such items or the occurrence or timeliness of any drawee’s notice of non-payment of such items; (b) ACH entries credited to the Deposit Account and later reversed, whether for insufficient funds or for any other reason, and without regard to the timeliness of such entries’ reversal; (c) chargebacks to the Deposit Account of credit card transactions; (d) erroneous entries to the Deposit Account; (e) overdrafts on the Deposit Account, (f) claims of breach of the transfer or presentment warranties made to Bank pursuant to the Code in connection with items deposited to the Deposit Account; (g) that certain Pledge and Security Agreement dated as of October 21, 2004 cash securing that certain Standby Letter of Credit #596267-43 in the amount of $903,200.00 (as amended, restated, supplemented from time to time); and (gh) Bank’s usual and customary charges for services rendered in connection with the Deposit Account; and; (c) Except as otherwise required by law, Bank shall not enter into any agreement with any third party relating to the Deposit Account or agree that it will comply with any Orders concerning the Deposit Account originated by any such third party without the prior written consent of Secured Party and Customer.

Appears in 2 contracts

Samples: Loan and Security Agreement (ARYx Therapeutics, Inc.), Loan and Security Agreement (ARYx Therapeutics, Inc.)

Priority of Lien. Bank hereby acknowledges and agrees that: (a) Bank has received notice of the existence of the security interest of Secured Party in the Deposit AccountAccount and all amounts from time to time on deposit therein for the benefit of (i) the Purchasers and the Secured Party and (ii) The Bank of New York Mellon, or any successor thereto, as trustee (the “Bond Trustee”) under the Indenture dated as of November 8, 2001 between Consumers Funding LLC and the Bond Trustee, as supplemented, and Bank recognizes the security interest granted to Secured Party by Customer; (b) all All of Bank’s present and future rights against the Deposit Account and all funds deposited therein from time to time are subordinate to Secured Party’s security interest therein; provided, however, that Secured Party hereby acknowledges and agrees that nothing herein subordinates or waives, and that Bank expressly reserves, all of its present and future rights (whether described as rights of setoff, banker’s lien, security interest, chargeback or otherwise, and whether available to Bank under the law or under any other agreement between Bank and Customer concerning the Deposit Account, or otherwise) solely with respect to: (ai) items deposited to the Deposit Account and returned unpaid, whether for insufficient funds or for any other reason, and without regard to the timeliness of return of any such items or the occurrence or timeliness of any drawee’s notice of non-payment of such items; (bii) ACH entries credited to the Deposit Account and later reversed, whether for insufficient funds or for any other reason, and without regard to the timeliness of such entries’ reversal; (ciii) chargebacks to the Deposit Account of credit card transactions; (div) erroneous entries to the Deposit Account; (ev) overdrafts on the Deposit Account, (fvi) claims of breach of the transfer or presentment warranties made to Bank pursuant to the Code in connection with items deposited to the Deposit Account; and (gvii) Bank’s usual and customary charges for services rendered in connection with the Deposit Account; and; (c) Except as otherwise required by law, Bank shall not enter into any agreement with any third party relating to the Deposit Account or agree that it will comply with any Orders concerning the Deposit Account originated by any such third party without the prior written consent of Secured Party and Customer.

Appears in 1 contract

Samples: Receivables Purchase Agreement (CMS Energy Corp)

Priority of Lien. Bank hereby acknowledges and agrees that: (a) Bank has received notice of the existence of the security interest of Secured Party in the Deposit Account, and recognizes the security interest granted to Secured Party by CustomerDebtor; (b) Except as otherwise required by law, Bank shall not enter into any other agreement with any third party relating to any of the Account or agree that it will comply with any Orders concerning the Account originated by any such third party without the prior written consent of Secured Party; and (c) Bank hereby waives any and all rights it may have at law or otherwise to set off, or make any claim, against the Account, except Bank expressly reserves all of Bank’s present and future rights against the Deposit Account are subordinate to Secured Party’s security interest therein; provided, however, that Secured Party hereby acknowledges and agrees that nothing herein subordinates or waives, and that Bank expressly reserves, all of its present and future rights (whether described as rights of setoff, banker’s lien, security interest, chargeback or otherwise, and whether available to Bank under the law or under any other agreement between Bank and Customer Debtor concerning the Deposit Account, Account or otherwise) solely with respect to: to (ai) items any item deposited to the Deposit Account and returned unpaid, or with respect to which Bank fails to receive final settlement, whether for insufficient funds or for any other reason, and without regard including but not limited to the timeliness claim of return of any such items or the occurrence or timeliness of any drawee’s notice of non-payment of such itemsa forged instrument; (bii) ACH entries any item subject to a claim against Bank of breach of transfer or presentment warranty under the Uniform Commercial Code, as adopted in the applicable state; (iii) any automated clearing house entry credited to the Deposit Account and later reversedreturned unpaid or subject to an adjustment entry under applicable clearing house rules, whether for insufficient funds or for any other reason, and without regard ; (iv) any credit to the timeliness of such entries’ reversalAccount from a merchant card transaction, against which a contractual demand for chargeback has been made; (cv) chargebacks any credit to the Deposit Account of credit card transactions; (d) erroneous entries to the Deposit Account; (e) overdrafts on the Deposit Account, (f) claims of breach of the transfer or presentment warranties made to Bank pursuant to the Code in connection with items deposited to the Deposit Accounterror; and (gvi) Bank’s usual and customary charges for services rendered in connection with the Deposit Account including the payment of Bank’s fees and expenses for maintenance of the Account; and;. Items, entries, and transactions described in clauses (i) through (vi) of this paragraph are hereinafter collectively referred to as “Returned Items.” (cd) Except as otherwise required by lawBank shall send or make available via Bank’s internet banking system or otherwise, a monthly report to Debtor and Secured Party containing information specifying the amount deposited into the Account for the previous month. (e) Deposits received for deposit in the Account shall be deemed to bear the valid and legally binding endorsement of the payee and to comply with all of Bank’s requirements for the supplying of missing endorsements, now or hereafter in effect. Bank shall not enter into be responsible for the effect of processing of any agreement with any third party relating to the Deposit Account check or agree that it will comply with any Orders concerning the Deposit Account originated by any such third party without the prior written consent of Secured Party and Customerother instrument bearing a legend.

Appears in 1 contract

Samples: Account Control Agreement (BRT Realty Trust)

Priority of Lien. Bank hereby acknowledges and agrees that: (a) Bank has received notice of the existence of the security interest of Secured Party in the Deposit Account, and recognizes the security interest granted to Secured Party by Customer; (b) all of Bank’s present and future rights against the Deposit Account are subordinate to Secured Party’s security interest therein; provided, however, that Secured Party hereby acknowledges and agrees that nothing herein subordinates or waives, and that Bank expressly reserves, all of its present and future rights (whether described as rights of setoff, banker’s lien, security interest, chargeback or otherwise, and whether available to Bank under the law or under any other agreement between Bank and Customer concerning the Deposit Account, or otherwise) solely with respect to: (a) items deposited to the Deposit Account and returned unpaid, whether for insufficient funds or for any other reason, and without regard to the timeliness of return of any such items or the occurrence or timeliness of any drawee’s notice of non-payment of such items; (b) ACH entries credited to the Deposit Account and later reversed, whether for insufficient funds or for any other reason, and without regard to the timeliness of such entries’ reversal; (c) chargebacks to the Deposit Account of credit card transactions; (d) erroneous entries to the Deposit Account; (e) overdrafts on the Deposit Account, (f) claims of breach of the transfer or presentment warranties made to Bank pursuant to the Code in connection with items deposited to the Deposit Account; (g) any lien arising in connection with any loan or other credit relationship between Customer and Bank; and (gh) Bank’s usual and customary charges for services rendered in connection with the Deposit Account; and; (c) Except as otherwise required by law, Bank shall not enter into any agreement with any third party relating to the Deposit Account or agree that it will comply with any Orders concerning the Deposit Account originated by any such third party without the prior written consent of Secured Party and Customer.

Appears in 1 contract

Samples: Secured Promissory Note (Transcept Pharmaceuticals Inc)