AGENCY ACCOUNT AGREEMENT
XXXXXXXXX XXXXX, INC.
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
December 5, 1997
[Agency Account Institution]
[Address]
Re: Account No. 14508-02607
Ladies and Gentlemen:
This letter refers to Account No. and all other accounts (collectively,
the "Store Account") which [Name of Borrower] (the "Company") maintains with
you ("you" or the "Bank").
The Company hereby notifies you that it has entered into certain
financial arrangements with BankBoston, N.A., as agent (the "Agent") for
itself and other lending institutions and, in connection with those financial
arrangements, it has transferred exclusive ownership and control of the Store
Account to the Agent.
By its execution and delivery of this letter to the Agent, the Bank
irrevocably acknowledges and agrees as follows: (a) the Bank has been advised
that all funds which may from time to time be on deposit in the Store Account
are the property of the Agent; (b) the Bank shall disclose to the Agent such
information relating to the Store Account and the debits and credits thereto
as the Agent may from time to time reasonably request; (c) except as set
forth below, the Bank will not exercise any right of set-off, banker's lien
or any similar right in favor of itself or any other person in connection
with any monies, checks, drafts, instruments or other items of payment
deposited into the Store Account, or any funds on deposit thereon; (d) the
Bank will collect all monies, checks, drafts, instruments and other items of
payment deposited into the Store Account; and (e) upon the Bank's receipt of
written notice from the Agent, it will on a daily basis transfer the
collected available balance of funds standing to the credit of the Store
Account by wire transfer (or other means acceptable to the Agent) solely to:
BankBoston, N.A.
Account #________________
ABA 0 11000930
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Re: Xxxxxxxxx Xxxxx, Inc.
Attn: Xxxxxx X. XxXxxxxxxx, Large Corporate
(the "Agent Concentration Account") or such other destination as the Agent
shall designate. The Agent hereby notifies you that the Agent will from time
to time access the Store Account for the sole purpose of facilitating the
transfer of funds therein to the Agent Concentration Account pursuant to the
instructions set forth in the foregoing sentence.
For providing the services described in this letter agreement, the
Company shall pay to the Bank a nonrefundable monthly fee of $_, payable in
advance. This fee is in addition to the Bank's customary wire transfer of
funds. The Bank is authorized to debit the Store Account to pay this fee and
the wire transfer charges.
Notwithstanding anything in this letter to the contrary, the Bank Shall
have the right to deduct from or set off against amounts from time to time in
the Store Account (1) its usual and customary costs and expenses in respect
of interest on overdrafts and any return items, and its usual and customary
fees and expenses associated with any such return item, overdraft and/or the
maintenance of the Store Account and (ii) the face amount (or portion
thereof) of any check, instrument or other item which was deposited in the
Store Account and which has been returned unpaid for reasons of insufficient
funds or has otherwise not been collected. You hereby acknowledge and agree
that all such interest, costs, fees and expenses shall be for the account of
the Company and in the event the amounts in the Store Account are
insufficient to reimburse you for the same, the Company hereby agrees to
reimburse you for such interest, costs, fees and/or expenses immediately upon
your demand therefor in immediately available funds.
The Bank shall have no duty to inquire into the source or use of any
monies, checks, drafts, instruments or other items or amounts deposited into
the Store Account. The Company hereby agrees that any deposits of monies,
checks, drafts, instruments or other items into or withdrawals from the Store
Account now or hereafter directed by the Agent are authorized by the Company
and the Company acknowledges that it has no right to direct such transfers at
any time. The Bank shall be fully protected in acting on any instruction of
the Agent with respect to the Store Account without making any inquiry as to
the Agent's authority to give such instruction.
The Company consents and agrees to the foregoing, authorizes the Bank to
enter into this letter agreement, and agrees to indemnify and hold harmless
the Bank from and against any and all claims, actions and suits (whether
groundless or otherwise), losses, damages, costs, expenses and liabilities of
every nature and character arising out of the Bank's compliance with the
terms of this letter, except such as result from the Bank's gross negligence
or willful misconduct, and in no event shall the Bank be liable for any
consequential, indirect or special damages.
This letter agreement is binding upon each of the undersigned and you
and each of our respective successors and assigns and shall inure to the
benefit of each of us and other respective successors and assigns. It
supersedes all prior agreements, oral or written, with respect to the
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subject matter hereof, and may not be modified without the prior written
consent of each of the parties hereto.
This letter agreement may be terminated only as follows: (1) you may
terminate this letter agreement and the Store Account at any time which is
thirty (30) days or more after the date you shall have given written notice
of such termination to the Agent and (ii) the Agent may terminate this letter
agreement and the Store Account at any time which is thirty (30) days or more
after the date the Agent shall have given written notice of such termination
(sent to each of the Company and you).
Any notice hereunder shall be delivered to the relevant party hereto at
the address and to the attention of such party set forth below, or at such
other address or to the attention of such other party as the party to be
addressed may specify by written notice delivered to each other party hereto.
No termination shall affect or impair any of the agreements, rights or
obligations hereunder of any party with respect to any periods of time prior
to the date of such termination.
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This letter agreement shall be governed by and construed in accordance
with the internal laws of the Commonwealth of Massachusetts and applicable
federal law. This letter agreement shall become effective immediately upon
being executed by all of the parties hereto.
Very truly yours,
XXXXXXXXX XXXXX, INC.
By: /s/ XXX XXXXXXX
------------------------------
Name: Xxx X. Xxxxxxx
Title: Chief Financial Officer
Address: 0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telephone:
Telecopier:
Attention:
BANKBOSTON, N.A., AS THE AGENT
By: /s/ XXXXX XXXXX
------------------------------
Name: Xxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxxxx
Acknowledged and agreed to this
3rd day of December, 1997
[NAME OF BANK]
By: /s/ XXXXX XXXXXX
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: 000 X Xxxxxx
Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
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