Collateral Account Control Agreement
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Collateral Account Control Agreement
Instructions: Complete Boxes A, B, C and Names and Addresses and Sign Below
1. The Parties
The Parties to this agreement ("Agreement") are the Client named below, the Creditor named below and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx").
2. The Pledged Account
Box A
Client has granted Creditor a security interest in Xxxxxxx Xxxxx account 25E-07495 ("Account") pursuant to a separate Security Agreement between Client and Creditor.
If the Account will be a new Xxxxxxx Xxxxx account, Client hereby instructs Xxxxxxx Xxxxx to transfer the assets listed in Exhibit A to the Account. The Account shall be maintained as a cash securities account, and will be titled "[Name of Client] Pledged Collateral Account for [Name of Creditor]."
The purpose of this Agreement is to perfect the Creditor's security interest in the Account by granting Creditor control over the Account; however, this Agreement does not create Creditor's security interest in the Account inasmuch as Client and Creditor have a separate Security Agreement for that purpose.
Client has not granted a security interest in the Account to any party other than Creditor, except for Xxxxxxx Xxxxx'x broker lien referenced in section 7 and any lien for service fees to an Investment Manager or Agent named in Box B in section 4. Xxxxxxx Xxxxx has not entered into a Control Agreement with respect to the Account with any other party and agrees that it will not do so while this Agreement is in effect. The manager signing this Agreement on behalf of Xxxxxxx Xxxxx hereby represents, to the best of his or her knowledge, that no person other than Client, Creditor, Xxxxxxx Xxxxx and any Investment Manager or Agent named in Box B in section 4 have any claim, lien or interest in the Account or the assets in the Account.
All assets in the Account will be treated as financial assets under Article B of the New York Uniform Commercial Code.
3. Excluded Assets
Client and Creditor acknowledge that the following assets are not covered by this Agreement even if shown, for information purposes, on a periodic account statement for the Account, because Xxxxxxx Xxxxx is not the legal custodian of such assets; money market deposit account (MMDA) balances, shares of Mt. Ready Assets Trust, USA Government and USA Treasury money market funds and of the Xxxxxxx Xxxxx Institutional Funds, non-listed limited partnership interests, annuities and life insurance contracts, and precious metals. Xxxxxxx Xxxxx will not be responsible for assuring that any of these assets are not acquired with assets from the Account.
4. Client's Authority over the Account
Until Creditor delivers to Xxxxxxx Xxxxx a Notice of Exclusive Control pursuant to section 8, Client will have full authority to give instructions with respect to assets in the Account in regard to voting and other rights, but will not have the authority to give any entitlement orders with respect to, or terminate the Account, without written consent by Creditor. Client's authority with respect to trading in the
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Account and receipt of income from the Account will be governed by the completion of boxes B and C, which authority Creditor may revoke at any time by written notice delivered to Xxxxxxx Xxxxx.
Box B
Is Client permitted to trade in the Account?
o Yes ý No
If yes, except as otherwise provided in section 5, Xxxxxxx Xxxxx may comply with any trading instructions from Client or the Investment Manager or Agent named below without further consent by Creditor.
Print name of Investment Manager or Agent
designated by separate power of attorney or
equivalent document on file with Xxxxxxx Xxxxx
Box C
Is Client permitted to withdraw income?
o Yes ý No
If yes, Client is authorized to receive all interest and regular cash dividends earned on assets in the Account monthly:
o
by check
or
o by transfer to account no.
If an Investment Manager or Agent is named in Box B, Creditor agrees that the assets in the Account are subject to Client's agreement with such manager or agent and that periodic payment of normal advisory and service fees from assets in the Account pursuant to such an agreement is permitted without consent of Creditor.
5. Control by Creditor
Xxxxxxx Xxxxx agrees to comply with any instructions it receives from Creditor at any time to transfer, sell, redeem, close open trades or otherwise liquidate any assets in the Account (including instructions to transfer assets directly to, or into an account in the name of, Creditor), without further consent by Client. All instructions to transfer assets from the Account must be in writing. If Creditor is an entity, Xxxxxxx Xxxxx is authorized to take instructions from any person Xxxxxxx Xxxxx reasonably believes represents Creditor.
6. Notice of Exclusive Control
Creditor may at any time deliver to Xxxxxxx Xxxxx a "Notice of Exclusive Control" substantially in the form of Exhibit B. Upon receipt of such notice by the manager of the Xxxxxxx Xxxxx office servicing the Account, Xxxxxxx Xxxxx will cease complying with trading instructions from, or on behalf of, Client with respect to the Account, cease distributing to Client interest and regular cash dividends earned on assets in the Account, and refuse to accept any other instructions from Client intended to exercise any authority with respect to the Account except upon instruction of Creditor.
7. Priority of Creditor's Security Interest
So long as this Agreement is in effect, Xxxxxxx Xxxxx subordinates in favor of Creditor any security interest, lien, or right of setoff it may have, now or in the future, against assets in the Account, except
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Xxxxxxx Xxxxx may retain a prior lien on assets in the Account to secure payment for assets purchased for the Account and to collect normal commissions and service fees.
8. Duplicate Statements and Confirmations
Xxxxxxx Xxxxx will send Creditor duplicate copies of periodic account statements and trade confirmations, if any, contemporaneously with those sent to Client.
9. Responsibility and Protection of Xxxxxxx Xxxxx
Except for permitting a transfer of assets from the Account in violation of section 4, Xxxxxxx Xxxxx will not be liable to Creditor for complying with instructions from Client that are received by Xxxxxxx Xxxxx before Xxxxxxx Xxxxx receives a Notice of Exclusive Control in accordance with section 8. Xxxxxxx Xxxxx will not be liable to Client for complying with a Notice of Exclusive Control or any instructions received from any person Xxxxxxx Xxxxx reasonably believes represents Creditor. Xxxxxxx Xxxxx has no duty to investigate whether Creditor is authorized under the Security Agreement to give such Notice of Exclusive Control or such instructions.
Client hereby agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its officers, directors, employees and agents, and any investment Manager or Agent named in Box B in section 4, against claims, liabilities and expenses arising out of maintenance of the Account pursuant to this Agreement (including reasonable attorney's fees), except if such claims, liabilities or expenses are caused solely by Xxxxxxx Xxxxx'x or such manager's or agent's gross negligence or willful misconduct, respectively.
Creditor hereby agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its officers, directors, employees and agents, and any Investment Manager or Agent named in Box B in section 4, against claims, liabilities and expenses (including reasonable attorneys' fees) arising out of Xxxxxxx Xxxxx'x compliance with any instructions from Creditor with respect to the Account except if such claims, liabilities or expenses are caused solely by Xxxxxxx Xxxxx'x or such manager's or agent's gross negligence or willful misconduct, respectively.
This Agreement does not create any obligations for Xxxxxxx Xxxxx except for those expressly set forth in this Agreement.
10. Termination; Survival
Creditor may terminate this agreement by written notice to Xxxxxxx Xxxxx. Xxxxxxx Xxxxx may terminate this agreement on thirty (30) days written notice to Creditor and Client. Upon notification by Creditor to Xxxxxxx Xxxxx that Creditor's security interest in the Account has terminated, this Agreement will automatically terminate. Section 9, "Responsibility and Protection of Xxxxxxx Xxxxx," will survive termination of this Agreement.
11. Effect of Agreement
Client and Creditor agree that this Agreement supplements the applicable Xxxxxxx Xxxxx account agreement with respect to the Account, and any related agreement if the Account is a managed account under a Xxxxxxx Xxxxx advisory program with a manager named in Box B, and that it does not abridge any rights that Xxxxxxx Xxxxx might otherwise have, except as provided in section 7. If there is any inconsistency between this Agreement and such Xxxxxxx Xxxxx account agreements this Agreement will control. The Parties also acknowledge that there are no other understandings or agreements with Xxxxxxx Xxxxx concerning the Account except for this Agreement, the Xxxxxxx Xxxxx account agreements and any agreement with an Investment Manager or Agent named in Box B to which Xxxxxxx Xxxxx may be a party.
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12. Governing law
This Agreement and the Account will be governed by the internal laws of the State of New York with respect to interpretation and enforcement.
13. Amendments
No Amendment of, or waiver of a right under, this Agreement will be binding unless it is in writing and signed by the party to be charged.
14. Severability
To the extent a provision of this Agreement is unenforceable, this Agreement will be construed as if the unenforceable provision were omitted.
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15. Successors and Assigns of Creditor
A successor to or assignee of Creditor's rights and obligations under the Security Agreement between Creditor and Client will succeed to Creditor's rights and obligations under this Agreement.
| SIGNATURES | ADDRESSES | |||
Client: |
||||
| BJ Chicago, LLC | 0000 X. Xxxxxx Xxxx | |||
/s/ XXXXX X. XXX XXXXX |
11/26/02 |
Xxxxxxxx, XX |
00000 |
|
Signature date |
||||
Managing Member |
||||
Title (If applicable) |
||||
Creditor: |
||||
print name* |
||||
signature date |
||||
Title (an authorized officer) |
||||
- *
- This is the name to whom periodic account statements and trade confirmations will be addressed unless another officer's name is provided to Xxxxxxx Xxxxx for this purpose.
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated: | ||||
print name |
Address is the address servicing the Account as indicated on account statement. |
|||
signature date |
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| Resident Vice President (or designee) | ||||
This Agreement may be executed in counterparts, but the preparer should provide the completed original to Xxxxxxx Xxxxx with signed photocopy counterparts provided to Client and Creditor. |
||||
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(Must be initialed by the creditor)
| Account No. | 25E-07495 |
Exhibit A
Use
Exhibit A to list the assets to be transferred into the
Xxxxxxx Xxxxx Pledged Collateral Account.
(Note: If an existing managed account, such as a ML Consults®, Mutual Fund Advisor or other managed account, is being pledged, please attach a copy of the most recent monthly account statement and write "See attached statement" below.)
| Quantity |
Description |
|
|---|---|---|
| 499,003 | Chicago Pizza & Brewery, Inc. | |
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