DEPOSIT ACCOUNT CONTROL AGREEMENT
---------------------------------
(No Notification)
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This DEPOSIT ACCOUNT CONTROL AGREEMENT ("Agreement") is made and entered into as
of this ____ day of February 2005 by and among WACHOVIA BANK, NATIONAL
ASSOCIATION as depositary bank (the "Bank"), the Bank's depositor customer, XRG,
INC., a Florida Corporation (the "Company"), and CAPCO FINANCIAL, a Washington
Corporation "Secured Party").
Statement of Facts
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The Bank acknowledges that, as of the date hereof, it maintains in the name of
the Company the deposit account(s) identified on Exhibit A attached hereto and
made a part hereof (each an "Account" and, collectively, the "Accounts"). One or
more of the Accounts may be served by one or more lockboxes operated by the
Bank, which lockboxes (if any) also are listed on Exhibit A (each a "Lockbox"
and, collectively, the "Lockboxes"). The Account(s) and any Lockbox(es) are
governed by the terms and conditions of the Company's commercial deposit account
agreement published by the Bank from time to time and, with respect to any
Lockbox, also may be governed by a lockbox service description between the Bank
and the Company (collectively, with all applicable services descriptions and/or
agreements, the "Deposit Agreement").
The Secured Party has provided financing to Company pursuant to one or more
written agreements (the "Financing Documents"). In connection therewith, the
Company hereby confirms to the Bank that the Company has granted to the Secured
Party a security interest in its property including but not limited to its
deposit accounts, cash, accounts, accounts receivable and proceeds thereof, as
set forth in the Financing Documents (collectively, the "Account Collateral"),
which includes: (a) Account(s), (b) the Lockbox(es) and (c) the Items
Collateral. The term "Items Collateral" means, collectively, all checks, drafts,
instruments, cash and other items at any time received in any Lockbox or for
deposit in any Account (subject to specific Lockbox instructions in effect for
processing items), wire transfers of funds, automated clearing house ("ACH")
entries, credits from merchant card transactions and other electronic funds
transfers or other funds deposited in, credited to, or held for deposit in or
credit to, any Account.
The parties desire to enter into this Agreement in order to provide for control
by Secured Party of the Account Collateral and to perfect the security interest
of the Secured Party in the Account Collateral. In consideration of the mutual
covenants herein as well as other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. 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 "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. 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) direct disposition of funds in the
Account(s) (including, but not limited to, dispositions to 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
the Lockbox(es), the Account(s) and other Account Collateral, which instructions
shall be delivered to the Bank 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 the right to give "stop
payment orders" to the Bank for any item presented to it against any Account
even if it results in dishonor of the item presented against the Account.
(f) 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 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 Exhibit B attached hereto and
made a part hereof. The Bank shall not permit any of the officers, agents or
other representatives of the Company or any of its affiliates to direct the
disposition of funds in any Account or to otherwise exercise any authority or
power with respect to any Lockbox, Account or other Account Collateral.
(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.
2. Statements and Other Information If so requested of the Bank by the Secured
Party in writing, the Bank will send to the Secured Party (in a manner
consistent with the Bank's standard practices) at the Secured Party's address
specified in Section 7, copies of all Account statements and communications (but
not canceled checks) that the Bank is required to send to the Company under the
Deposit Agreement. The Bank also shall provide to each of the Company and the
Secured Party when requested (as a service under this Agreement and/or the
Deposit Agreement) copies of Account statements and other deposit account
information, including Account balances, by telephone and by computer
communication, to the extent practicable when requested by the Company or by the
Secured Party. The Company consents to the Bank's release of such Account
information to the Secured Party. The Bank's liability for its failure to comply
with this Section 2 shall not exceed its cost of providing such information.
3. Setoff; Returned Items and Charges
(a) The Bank will not exercise any security interest (except for the security
interest provided in Section 4-210, "Security Interest of Collecting Bank in
Items, Accompanying Documents and Proceeds", of the Applicable UCC), lien, right
of setoff, deduction, recoupment or banker's lien or any other interest in or
against any Account or any other Account Collateral, and the Bank hereby
subordinates to the Secured Party any such security interest (except for the
security interest provided in such Section 4-210 of the Applicable UCC), lien or
right which the Bank may have against any Account or other Account Collateral.
The Secured Party, Company and Bank agree that the Bank at all times (including
following commencement of any bankruptcy or insolvency proceeding by or against
the Company) may set off and/or charge for Permitted Debits, as defined below,
only in accordance with the terms of subsections 3(b) and 3(c) herein. The term
"Permitted Debits" means the following items (regardless of any agreement by the
Company to compensate the Bank by means of balances in the Account), as
permitted by the Deposit Agreement: (i) the face amount of each Returned Item
(hereinafter defined), (ii) usual and customary service charges and fees, (iii)
account maintenance fees, (iv) transfer fees, (v) out-of-pocket fees and
expenses (including attorneys' reasonable fees) incurred by the Bank (including
those in connection with the negotiation, administration or enforcement of this
Agreement), and (vi) adjustments or corrections of posting or encoding errors;
whether any Permitted Debit shall have accrued or been incurred before or after
the date of this Agreement. "Returned Item" means any (i) Items Collateral
deposited into or credited to an Account before or after the date of this
Agreement and returned unpaid or otherwise uncollected or subject to an
adjustment entry, whether for insufficient funds or any other reason, and
without regard to the timeliness of such return or adjustment or the occurrence
or timeliness of any other party's notice of nonpayment or adjustment; (ii)
Items Collateral subject to a claim against the Bank for breach of transfer,
presentment, encoding, retention or other warranty under Federal Reserve
Regulations or Operating Circulars, ACH or other clearing house rules, or
applicable law (including, without limitation, Articles 3, 4 and 4A of the
Applicable UCC); and (iii) demand for chargeback in connection with a merchant
card transaction.
(b) All Permitted Debits shall be charged against Company's general account
number 2000021178524 with the Bank (the "General Account"). In the event: (i)
the Bank were unable to set off or charge any Permitted Debit against the
Company's General Account because of insufficient funds in the General Account,
or (ii) the Bank in good faith were to believe that any legal process or
applicable law prohibited such setoff or charge against the General Account, or
(iii) the General Account were closed, then: (A) the Bank may charge such
Permitted Debits to and set off same against any other account of the Company
excluding the Account(s) which are set forth on Exhibit A hereof; and (B) if
there were insufficient funds in the account(s) (excluding the Account(s) as set
forth in Exhibit A hereof) against which to charge or set off such Permitted
Debits, then the Bank shall demand (unless the Bank shall believe in good faith
that any legal process or applicable law prohibits such demand) that the Company
pay, and the Company shall pay, to the Bank promptly upon the Company's receipt
of the Bank's written demand therefor, the full amount of all unpaid Permitted
Debits.
(c) If there were insufficient funds in the account(s) of the Company, excluding
the Account(s) set forth on Exhibit A hereof, against which the Bank could
charge or set off Permitted Debits pursuant to subsections (a) and (b) of this
Section 3 and the Company shall have failed to pay the Bank the full amount of
unpaid Permitted Debits as described in paragraph (b) of this Section 3, then
the Bank may demand that the Secured Party pay, and the Secured Party shall pay,
to the Bank within five (5) business days of the Secured Party's receipt of the
Bank's written demand therefor, the full amount of unpaid Permitted Debits;
provided, however, as to unpaid Permitted Debits that are service charges, fees
or expenses, the Secured Party shall be required to pay to the Bank only those
service charges, fees or expenses attributable to any Account that: (i) shall
have been incurred in connection with any Account on or after the date of this
Agreement and on or before the date of termination of this Agreement; and, (ii)
to the extent such expenses include attorneys' fees and costs, they relate to
disputes, claims or actions directly involving the Secured Party.
4. Exculpation of Bank
(a) At all times the Bank shall be entitled to rely upon any communication it
receives from the Secured Party in connection with this Agreement or that the
Bank shall believe in good faith to be a communication received from the Secured
Party in connection with this Agreement, and the Bank shall have no obligation
to investigate or verify the authenticity or correctness of any such
communication. The Bank shall have no liability to the Company or the Secured
Party for (i) honoring or following any instruction the Bank shall receive from
(or shall believe in good faith to be from) the Secured Party in accordance with
this Agreement and (ii) not honoring or following any instruction the Bank shall
receive from (or shall believe in good faith to be from) the Company in
accordance with this Agreement or the Deposit Agreement. The Bank shall not be
responsible for the validity, priority or enforceability of the Secured Party's
security interest in any Account Collateral, nor shall the Bank be responsible
for enforcement of any agreement between the Company and the Secured Party.
(b) The Bank shall be responsible only for the actual loss that a court having
jurisdiction over the Account(s) shall have determined had been incurred by the
Company or the Secured Party and had been caused by the Bank's gross negligence
or willful misconduct in its performance of its obligations under this
Agreement. The Bank shall have no liability to any party for failure of, or
delay in, its performance under this Agreement resulting from any "act of God",
war or terrorism, fire, other catastrophe or force majeure, electrical or
computer or telecommunications failure, any event beyond the control of the
Bank, or fraud committed by any third party. Nothing in this Agreement shall
create any agency, fiduciary, joint venture or partnership relationship between
the Bank and the Company or between the Bank and the Secured Party. Except as
shall be specifically required under this Agreement or the Deposit Agreement or
applicable law, the Bank shall have no duty whatsoever to the Company in
connection with the subject matter of this Agreement.
5. Indemnification
(a) The Company hereby indemnifies the Bank and holds it harmless against, and
shall reimburse the Bank for, any loss, damage or expense (including attorneys'
reasonable fees and expenses, court costs and other expenses) including, but not
limited to, (i) unpaid charges, fees, and Returned Items for which the Company
and/or the Secured Party originally received credit or remittance by the Bank,
and (ii) any loss, damage or expense the Bank shall incur as a result of (A)
entering into or acting pursuant to this Agreement, (B) honoring and following
any instruction the Bank may receive from (or shall believe in good faith to be
from) the Secured Party, and (C) not honoring or following any instruction it
shall receive from (or shall believe in good faith to be from) the Company in
accordance with this Agreement. The Company shall not be responsible for any
loss, damage, or expense that a court having jurisdiction shall have determined
had been caused by the Bank's gross negligence or willful misconduct in its
performance of its obligations under this Agreement.
(b) Without limiting in any way the Secured Party's obligation to pay or
reimburse the Bank as otherwise specified in this Agreement, the Secured Party
hereby indemnifies the Bank and holds it harmless against any loss, damage or
expense (including attorneys' reasonable fees and expenses, court costs and
other expenses) which the Bank shall incur as a result of honoring or following
any instruction it shall receive from (or shall believe in good faith to be
from) the Secured Party under this Agreement and not honoring or following any
instruction the Bank shall receive from (or shall believe in good faith to be
from) the Company in accordance with this Agreement. The Secured Party shall not
be responsible for any loss, damage, or expense that a court having jurisdiction
shall have determined had been caused by the Bank's gross negligence or willful
misconduct in its performance of its obligations under this Agreement.
(c) No party hereto shall be liable to any other party under this Agreement for
lost profits or special, indirect, exemplary, consequential or punitive damages,
even if such party shall have been advised of the possibility of such damages.
6. Third Party Claims; Insolvency of Company
(a) In the event that the Bank shall receive notice that any third party shall
have asserted an adverse claim by legal process against any Account or any sums
on deposit therein, any Lockbox or other Account Collateral, whether such claim
shall have arisen by tax lien, execution of judgment, statutory attachment,
garnishment, levy, claim of a trustee in bankruptcy, debtor-in-possession,
post-bankruptcy petition lender, court appointed receiver, or other judicial or
regulatory order or process (each, a "Claim"), the Bank shall, if legally
permissible, notify the Secured Party of such Claim, provided the Bank shall
have no liability for any failure to give such notice. The Bank may, in addition
to other remedies it possesses under the Deposit Agreement, this Agreement or at
law or in equity: (i) suspend disbursements from such Account without any
liability until the Bank shall have received an appropriate court order or other
assurances reasonably acceptable to the Bank in its sole discretion establishing
that funds may continue to be disbursed according to instructions then
applicable to such Account, and/or (ii) interplead such funds in such Account as
permitted by applicable law. The Bank's costs, expenses and attorneys'
reasonable fees incurred in connection with any such Claim are Permitted Debits
and shall be reimbursed to the Bank in accordance with the provisions of Section
3 above.
(b) If a bankruptcy or insolvency proceeding were commenced by or against the
Company, the Bank shall be entitled, without any liability, to refuse to permit
withdrawals or transfers from the Account(s) until the Bank shall have received
an appropriate court order or other assurances reasonably acceptable to the Bank
in its sole discretion establishing that (i) continued withdrawals or transfers
from the Account(s) or honoring or following any instruction from the Secured
Party are authorized and shall not violate any law, regulation, or order of any
court and (ii) the Bank shall have received adequate protection for its right to
set off against or charge the Account(s) or otherwise be reimbursed for all
Permitted Debits.
7. Notice and Communications
(a) All communications given by any party to another as required or permitted
under this Agreement must be in writing, directed to the respective designated
officer ("Designated Officer") set forth under paragraph (c) of this Section 7,
and delivered to each recipient party at its address (or at such other address
and to such other Designated Officer as such party may designate in writing to
the other parties in accordance with this Section 7) either by U.S. Mail,
receipted delivery service or via telecopier facsimile transmission.
Notwithstanding the foregoing, where a communication: (i) is directed to the
Secured Party, (ii) constitutes a notice of default, a notice of termination of
this Agreement, or a demand to pay, perform or cease and desist; and (iii) is
sent via facsimile transmission; then such communication shall be followed by a
copy delivered via U.S. Mail or receipted overnight delivery service. All
communications given by the Secured Party to the Bank must be addressed and
delivered contemporaneously to both the Bank's Designated Officer and the Bank's
"with copy to" addressee at their respective addresses set forth below.
(b) Any communication made to the Bank under this Agreement shall be deemed
delivered to the Bank if delivered by: (i) U.S. Mail, on the date that such
communication shall have been delivered to the Bank's Designated Officer; (ii)
receipted delivery service, on the date and time that such communication shall
have been delivered to the Bank's Designated Officer and receipted by the
delivery service; or (iii) telecopier facsimile transmission, on the date and at
the time that such communication shall have been delivered to the Bank's
Designated Officer and receipt of such delivery shall have been acknowledged by
the recipient telecopier equipment.
In addition, and notwithstanding the provisions of the preceding sentence, any
communication hereunder to the Bank that is an instruction delivered to the Bank
and made by (or believed by the Bank in good faith to be made by) the Secured
Party shall be deemed received by the Bank when actually delivered to the Bank's
Designated Officer if delivered before 2:00 PM Eastern time on a banking day or,
if such communication were delivered after 2:00 PM Eastern time on a banking day
or delivered on a day that is not a banking day, then such communication shall
be deemed delivered to the Bank's Designated Officer at the Bank's opening of
its business on the next succeeding banking day. A "banking day" means any day
other than any Saturday or Sunday or other day on which the Bank is authorized
or required by law to close.
(c) Any instruction delivered to the Bank shall be implemented by the Bank by
the close of the Bank's business on the banking day that shall be two (2)
banking days after the banking day on which such instruction was actually
received by the Bank's Designated Officer.
Address for Secured Party: CAPCO Financial
0000 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Daily, Designated Officer
Fax: (000) 000-0000
Address for Bank: Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, Mail Code XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx,
Senior Vice President
Fax: (000) 000 0000
with copy to: Wachovia Bank, National Association
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx,
Assistant Vice President
Fax: (000) 000-0000
Address for Company: XRG, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Designated Officer
Fax: (000) 000-0000
8. Termination
(a) This Agreement may be terminated by the Secured Party at any time upon
receipt by the Bank of the Secured Party's written notice of termination issued
substantially in the form of Exhibit C attached hereto and made a part hereof.
This Agreement may be terminated by the Company only with the express prior
written consent of the Secured Party and, in that case, the Secured Party and
the Company shall jointly so notify the Bank in writing.
(b) This Agreement may be terminated by the Bank at any time on not less than
thirty (30) calendar days' prior written notice given to each of the Company and
the Secured Party.
(c) The Bank's rights to demand and receive reimbursement from the Company under
Section 3 above and the Company's indemnification of the Bank under Section 5
above shall survive termination of this Agreement. The Bank's right to demand
reimbursement from the Secured Party under Section 3 above shall survive
termination of this Agreement for a period of ninety (30) calendar days after
the date of termination of this Agreement. The Bank's right to demand
indemnification of the Bank from the Secured Party under Section 5 above shall
survive termination of this Agreement for a period of one hundred eighty (90)
calendar days after the date of termination of this Agreement.
(d) Upon termination of this Agreement, all funds thereafter on deposit or
deposited in the Accounts and all Items Collateral thereafter received by the
Bank shall be subject solely to the provisions of the Deposit Agreement between
the Company and the Bank.
9. Miscellaneous
(a) The Company shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Bank and the
Secured Party. The Secured Party shall not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Bank. However, (i) such consent shall not be withheld or delayed unreasonably,
(ii) in the event that the Secured Party merges with or into any other entity
and is not the entity surviving the merger, the Secured Party may, without the
prior written consent of the Bank, delegate, assign and transfer its duties and
rights under this Agreement to the entity surviving the merger so long as the
entity surviving the merger assumes all of the Secured Party's duties hereunder
either by operation of applicable law or expressly in an authenticated record
delivered to the Debtor and the Bank, and (iii) the Secured Party may, without
the prior written consent of the Bank but with at least 5 days prior written
notice, assign or transfer its rights under this Agreement to any person or
entity to which the Secured Party assigns or transfers the Debtor's obligations
to the Secured Party under the financing or other arrangements between the
Secured Party and the Debtor. The foregoing notwithstanding, no such assignment
shall be effective with respect to the Bank until two banking days after the
Bank shall have received such notice. The Bank shall not assign or transfer any
of its rights or obligations under this Agreement without the prior written
notification to the Secured Party and the Company. Subject to such notification,
the Bank may transfer its rights and obligations under this Agreement to any
direct or indirect depositary subsidiary of Wachovia Corporation or, in the
event of a merger or acquisition of the Bank, to the Bank's successor depositary
institution (which subsidiary or successor shall be a "bank" as defined in
Section 9-102 of the Florida UCC).
(b) The law governing the perfection and priority of the Secured Party's
security interest in the Account Collateral shall be the law of the State of
Florida; see Section 1(a), which State shall also be the "jurisdiction" of the
Bank within the meaning of Section 9-304 of the Florida UCC. The Accounts, Items
Collateral, operation of the Accounts, and Deposit Agreement shall be governed
by the Applicable UCC, Federal Regulations and Operating Circulars, ACH or other
clearing house rules, and other applicable laws.
(c) This Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same Agreement. Delivery of an executed signature page counterpart to this
Agreement via telecopier facsimile transmission shall be effective as if it were
delivery of a manually delivered, original, executed counterpart thereof. This
Agreement can be modified or amended only by written agreement of all of the
parties hereto evidencing such modification or amendment.
(d) To the extent that any conflict may exist between the provisions of any
other agreement between the Company and the Bank and the provisions of this
Agreement, then this Agreement shall control. It is understood and agreed that
nothing in this Agreement shall give the Secured Party any benefit or legal or
equitable right, remedy or claim against the Bank under the Deposit Agreement.
10. Entire Agreement
This Agreement, together with the schedules and exhibits hereto, set forth the
entire agreement of the parties with respect to the subject matter hereof and
supersede all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter and negotiations.
There are no oral conditions precedent to the effectiveness of this Agreement.
11. Severability
If any term or provision set forth in this Agreement shall be invalid or
unenforceable, the remainder of this Agreement, or the application of such terms
or provisions to persons or circumstances, other than those to which it is held
invalid or unenforceable, shall be construed in all respects as if such invalid
or unenforceable term or provision were omitted.
12. Waiver of Jury Trial
EXCEPT AS PROHIBITED BY APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES ITS
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING ANY COUNTERCLAIM)
OF ANY TYPE IN WHICH ANOTHER PARTY SHALL BE A PARTY AS TO ALL MATTERS ARISING
DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT.
IN WITNESS WHEREOF, each of the parties by its respective duly authorized
officer has executed and delivered this Agreement as of the day and year first
written above.
BANK: WACHOVIA BANK, NATIONAL ASSOCIATION
By: _________________________________________
Name: ______________________________________
Title: ______________________________________
COMPANY: XRG, INC.
By: __________________________________________
Name: ________________________________________
Title: _________________________________________
SECURED PARTY: CAPCO FINANCIAL
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
EXHIBIT A
ACCOUNTS OF COMPANY
----------------------------- ----------------------- ----------------------------------------- ----------------------
Account Number Related Lockbox Account Name State in Which
Number, if any Account is Located
----------------------------- ----------------------- ----------------------------------------- ----------------------
2000025991383 Atlanta #933085 XRG, Inc. FL
----------------------------- ----------------------- ----------------------------------------- ----------------------
EXHIBIT B
SECURED PARTY'S DESIGNATED DEPOSIT ACCOUNT
Bank Name: Key Bank
ABA #: 000000000
Account #: 479681012486
Account Name: CAPCO Financial Co.
EXHIBIT C
[To be Issued on Letterhead of Secured Party]
________________200_
WACHOVIA BANK, NATIONAL ASSOCIATION
Mail Code NC 0817
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: TS Risk Management, Designated Officer
[THE COMPANY]
---------------------------
---------------------------
Attention: __________________________
NOTICE OF TERMINATION OF DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
We refer you to the Deposit Account Control Agreement (No Notification)
among _____________________ (the "Company"), you and us dated as of
_____________ __, 200_ (the "Agreement"), a photocopy of which is attached
hereto. Capitalized terms used but not defined in this letter shall have the
meanings given them in the Agreement.
We hereby notify you that by this letter we are exercising our right
under Section 8(a) of the Agreement (subject to your rights as set forth in the
Agreement) to terminate the Agreement in accordance with its terms. Accordingly
the Agreement shall terminate at the close of the Bank's business [this day] [on
___________ __, 200_], subject to those undertakings that shall survive
termination of the Agreement. Upon termination of the Agreement, all funds
thereafter on deposit or deposited in the Account(s) and all Items Collateral
received by the Bank shall be subject solely to the provisions of the Deposit
Agreement between the Company and the Bank.
Very truly yours,
CAPCO FINANCIAL
By __________________________
Name: _______________________
Title: ________________________
Attachment
WachDACC(nn)/BPB/1204
