DEPOSIT ACCOUNT CONTROL AGREEMENT Executed and Delivered as of February __, 2008 PARTIES
Executed
and Delivered as of February __, 2008
PARTIES
This
Agreement is among the persons signing this Agreement as the “Secured
Party”,
the
“Debtor”
and
the
“Bank”.
BACKGROUND
The
Debtor is the Bank’s customer with respect to one or more deposit accounts
identified by the account numbers specified below (individually and
collectively, as re-numbered and including any funds in the account or accounts,
the "Deposit
Account").
The
Debtor has granted the Secured Party a security interest in the Deposit
Account.
The
Debtor is requesting that the Bank enter into this Agreement.
The
Bank
is willing to do so upon the terms contained in this Agreement.
This
Agreement includes the General Terms, the Specific Terms and the Exhibit, each
as defined or referred to below.
AGREEMENTS
A. General
Terms.
This
Agreement is subject to the General Terms for Deposit Account Control Agreement
(the “General
Terms”),
attached herewith as Attachment B. The General Terms are incorporated in this
Agreement by reference and without modification except as may be provided in
Section 10 of the Specific Terms.
B. Specific
Terms.
The
following terms (the “Specific
Terms”)
complete, supplement or modify the General Terms:
1. Deposit
Account (see
“Background” above).
The
following deposit account(s) comprise the Deposit Account:
2. Business
Day (see
definition of “Business Day” in Section 1 of the General
Terms):
A
day
will not be considered as a “Business Day” if commercial banks in Buffalo,
New York are
closed on that day.
3. Outside
Time (see
definition of “Outside Time” in Section 1 of the General
Terms):
The
Outside Time is to be based on a period of two Business Days.
4. Disposition
of less than all or multi-disposition of funds (see
Section 4(a)(ii)(E) of the General Terms):
A
Disposition Instruction originated by the Secured Party must be for a
disposition of all of the funds, and must require that the funds be sent to
a
single recipient.
5. Reimbursement
Claim Period (see
Section 6(b) of the General Terms):
The
number of days following the termination of the Agreement in which a
reimbursement claim must be made against the Secured Party under Section 6(b)
of
the General Terms is 90.
6. Electronic
Records (see
definition of “writing” in Section 1 of the General Terms):
The
parties do not permit a writing to include an electronic record and do not
permit communications by email.
7. Governing
Law (see
Section 13(a) of the General Terms):
The
jurisdiction whose law governs this Agreement is the
State of New York.
8. Bank’s
Jurisdiction for UCC Purposes (see
Section 13(b) of the General Terms):
The
Bank’s jurisdiction for purposes of part 3 of UCC Article 9 is the
State of New York.
9. Delivery
of Executed Copy (see
Part D):
The
delivery of an executed copy of this Agreement may not be made by a form of
electronic transmission other than facsimile.
10. Additional
Provisions (see
Section 12(b) of the General Terms):
The
following provisions modify or supplement the General Terms:
Time
Deposit
(a) Initial
Block
The
Bank
will not comply with the Debtor’s Disposition Instructions. All references in
the General Terms to the Outside Time shall instead be to the Agreement Date.
This Agreement is amended to delete the Exhibit and all references to the
Initial Instruction and the Exhibit.
2
(b) Non-Demand
Deposit Account
(i) The
words
“demand deposit accounts” in the first sentence of the first paragraph in the
“Background” section of the Specific Terms are deleted and replaced with
“deposit accounts”.
(ii) Section
7(ii) of the General Terms is deleted and replaced with the following: “(ii)
maintains, in the ordinary course of the Bank’s business, the Deposit Account as
a time, savings, passbook, or similar account not payable on demand,
and”.
(c) Other
Matters
(i) Any
early
withdrawal penalties as provided in the relevant Deposit-related Agreement
resulting from withdrawal of funds from the Deposit Account prior to its
maturity date shall be included as a charge permitted by Section 5(b) of the
General Terms.
(ii) This
clause (ii) is subject to clause (iii) or (iv) of this paragraph (c). The Bank
agrees that, absent any contrary Disposition Instruction originated by the
Secured Party and received by the Bank within the time period provided in the
relevant Deposit-related Agreement, or if not so provided, a reasonable time
for
the Bank to act thereon prior to the maturity date of the Deposit Account,
the
Deposit Account, together with all interest earned thereon, will automatically
renew and be reinvested for the same period of time as was most recently
applicable to the then maturing Deposit Account. If that period is unavailable,
then the Deposit Account, together with all interest earned thereon, will
automatically renew for such period as provided in the relevant Deposit-related
Agreement, and if not so provided, then for such period of time as is in
accordance with the Bank’s customary practice.
(iii)
o If
this
box is checked and the following line is filled in, then the Deposit Account,
together with all interest earned thereon, shall automatically renew and be
reinvested for a ____________ period, notwithstanding clause (ii) of this
paragraph (c).
(iv)
o If
this
box is checked, the Secured Party directs that the disposition of the interest
earned on the Deposit Account (but not the principal) as of any maturity date
shall be made as directed by the Debtor, absent another Disposition Instruction
from the Secured Party.
(v) If,
upon
maturity, the renewal of the Deposit Account results in the creation of a new
account, the term “Deposit Account” shall thereafter include the new
account.
If
no
provisions are inserted above in this Section 10, then there are no
modifications to or supplements of the General Terms.
C. Exhibit.
The
parties have completed and attach hereto the Exhibit to be used as the form
of
the Initial Instruction.
3
D. Single
Agreement; Counterparts.
The
General Terms, the Specific Terms and the Exhibit shall be read and construed
together with the other provisions of this Agreement as a single agreement.
Delivery of executed copies of this Agreement may be made by facsimile. This
Agreement may be executed in counterparts, each of which shall constitute an
original and all of which collectively shall constitute a single
agreement.
[remainder
of page intentionally left blank]
4
SIGNATURES
Debtor:
Nutrition
21, Inc.
By:___________________________
Name:
Title:
Address:
Attention:
Telephone
Number (for information only):
Facsimile
Number:
Secured
Party:
Gerber
Finance, Inc.
By:___________________________
Name:
Title:
Address:
Attention:
Telephone
Number (for information only):
Facsimile
Number:
5
Bank:
HSBC
Bank
USA, National Association
By:___________________________
Name:
Xxxxx Xxxxx
Title:
First Vice President
Address
for Notice: Legal Paper Processing, Xxx XXXX Xxxxxx, 00xx
Xxxxx,
Xxxxxxx, XX 00000
Telephone
Number (for information only): 000-000-0000
Facsimile
Number: 000-000-0000
6
Exhibit
[LETTERHEAD
OF THE SECURED PARTY]
INITIAL
INSTRUCTION
[Date]
HSBC
Bank
USA, National Association
Xxx
XXXX
Xxxxxx
Xxxxxxx,
XX 00000
Attention:
Legal
Paper Processing, 12th
Floor
Ladies
and Gentlemen:
This
is
the Initial Instruction as defined in the Deposit Account Control Agreement
dated _______ __, 20__, among you, us and [Debtor] (the “Debtor”)
(as
currently in effect , the “Control
Agreement”).
A
copy of the Control Agreement as fully executed is attached. Capitalized terms
used in this Initial Instruction have the meanings given them in the Control
Agreement
This
Initial Instruction directs the Bank no longer to comply with the Debtor’s
Disposition Instructions.
[As
an
included Disposition Instruction, we direct you to send the funds in the Deposit
Account to us by the method and at the address indicated below. We recognize
that, as a condition to your complying with this Disposition Instruction and
to
the extent that we have not already done so, we must provide to you evidence
reasonably required by you as to the authority of the person giving this
Disposition Instruction to act for us. We also recognize that your obligation
to
comply with this Disposition Instruction is subject to the other provisions
of
Section 4(a)(ii) of the General Terms.]
Funds
transfer instructions:
Receiving
bank: _____________________________________________.
ABA
routing number for domestic wire:________________________.
ABA
routing number for ACH transaction:_____________________.
7
International:
Swift Code No. ________________________________.
Reference
details:____________________________________________.]
Very
truly yours,
[SECURED
PARTY]
By:______________________
Title:____________________
8
Attachment B
GENERAL
TERMS FOR DEPOSIT ACCOUNT CONTROL AGREEMENT
1. Definitions
and Rules of Interpretation.
In
this
Agreement (a) terms defined in the UCC and not otherwise defined in this
Agreement have the same meanings in this Agreement as in the UCC,
(b)
the
rules of interpretation in Article 1 of the UCC apply to the interpretation
of
this Agreement and (c) the term “or” is not exclusive. Unless otherwise stated,
section references are to sections of these General Terms. In addition, the
following terms in this Agreement have the following meanings or
interpretations:
This
“Agreement”
means
the Deposit Account Control Agreement dated the Agreement Date among the Secured
Party, the Debtor and the Bank. The Deposit Account Control Agreement includes
these General
Terms
(incorporated by reference), the Specific
Terms
and the
Exhibit
read and
construed together as a single agreement.
“Agreement
Date”
means
the date set forth at the beginning of this Agreement as the date as of which
this Agreement was executed and delivered by the parties.
An
“address”
includes the person or persons or department of the Bank on an “attention” line.
“Bank”
means
the organization signing this Agreement as the Bank.
“Business
Day"
means:
(i)
for
communications to the Bank, a day other than a day (A) that is not a “business
day” as defined in Federal Reserve Board Xxxxxxxxxx XX, 00 XXX Xxxx 000, (X) on
which the office, branch or department of the Bank specified as the Bank’s
address in the Exhibit
is
closed, or (C) on which commercial banks are closed in the city or cities set
forth in the Specific
Terms;
and
(ii)
for
communications to any other party, a day, other than a Saturday or Sunday,
on
which the other party is open for business at the location to which the
communication is sent.
“Claim”
means
a
claim, loss, cost or expense, and includes out-of-pocket or allocable internal
legal fees and expenses incurred in bringing or defending a claim.
A
“communication”
includes the Initial Instruction, a Disposition Instruction or a
notice.
“Debtor”
means
the person signing this Agreement as the Debtor.
“Deposit
Account”
has
the
meaning set forth in the “Background” of this Agreement. The Deposit Account is
identified in Section 1 of the Specific
Terms.
“Deposit-related
Agreements”
means,
collectively, the deposit account agreement and any other agreements between
the
Bank and the Debtor governing the Deposit Account and any cash management or
similar services provided by the Bank to the Debtor in connection with the
Deposit Account.
“Disposition
Instruction”
means
an instruction to the Bank directing the disposition of the funds in the Deposit
Account.
“Exhibit”
means
the Exhibit
referred
to in Part C of and attached to this Agreement as the form to be used as the
Initial Instruction.
“Initial
Instruction”
means
the first instruction to the Bank originated by the Secured Party directing
that
the Bank no longer comply with the Debtor’s Disposition Instructions. The
Initial Instruction may also contain a Disposition Instruction originated by
the
Secured Party.
“Order
or Process”
means
an order, judgment, decree or injunction, or a garnishment, restraining notice
or other legal process, directing, or prohibiting or otherwise restricting,
the
disposition of the funds in the Deposit Account.
B-9
"Outside
Time"
means,
unless an earlier Outside Time is stated in the Specific
Terms,
the
opening of business on the second Business Day after the Business Day on which
the Initial Instruction in substantially the form of the Exhibit
is
actually received at the address for the Bank specified in the Exhibit.
If the
Initial Instruction is actually received at that address after 12:00 noon,
local
time, at that address, then in determining the Outside Time, the Initial
Instruction will be considered to have been actually received on the following
Business Day.
“Secured
Party”
means
the person signing this Agreement as the Secured Party, whether the person
is
acting in a representative capacity or otherwise.
“Specific
Terms” means
the
terms contained in Part B of this Agreement.
“UCC”
means
the Uniform Commercial Code of the jurisdiction whose law governs this Agreement
or, if relevant to any matter other than the meaning of a defined term, the
Uniform Commercial Code of the jurisdiction whose law applies to the matter
under the choice of law rules of the jurisdiction whose law governs this
Agreement.
A
“writing”
means
a
tangible writing, including a facsimile and, if the Specific
Terms
permit,
an electronic record; “written”
refers
to a communication in the form of a writing.
2. The
Debtor’s Dealings with the Deposit Account.
(a) Except
as
provided in Section 2(b), the Bank may comply with the Debtor’s Disposition
Instructions in accordance with the Deposit-related Agreements.
(b) The
Bank
will not comply with the Debtor’s Disposition Instructions after the Outside
Time. In its discretion the Bank may cease complying with the Debtor’s
Disposition Instructions at an earlier time as permitted by Section
4(a)(iv).
3. The
Secured Party’s Right to Give Instructions as to the Deposit
Account.
The Bank
will comply with the Initial Instruction, and with any Disposition Instructions
originated by the Secured Party, in each case (i) without the Debtor’s further
consent, and (ii) even if following the instruction results in the dishonoring
by the Bank of items presented for payment from the Deposit Account or the
Bank
otherwise not complying with the Debtor’s Disposition Instructions. The Initial
Instruction may not be rescinded or otherwise modified without the Bank’s
consent.
4. Exculpation
of the Bank.
(a) Notwithstanding
the Bank’s agreements in Sections 2 and 3, the Bank will not be liable to any
other party for:
(i) either
failing to follow an Initial Instruction that (A) is not in the form of the
Exhibit,
(B)
does not specify the address to which the Initial Instruction was to have been
sent, (C) is not otherwise completed, or (D) does not have attached to it a
copy
of this Agreement as fully executed or, as a result of any such defect in the
Initial Instruction, continuing to comply with the Debtor’s Disposition
Instructions;
(ii) failing
to follow a Disposition Instruction originated by the Secured Party (A) before
the Outside Time, (B) that requires the disposition of the funds in the Deposit
Account by a method not available to the Debtor under the Deposit-related
Agreements, (C) that the Bank determines would result in the Bank’s failing to
comply with a statute, rule or regulation, or an Order or Process, binding
upon
the Bank, (D) that requires the disposition of funds that are not immediately
available in the Deposit Account, (E) that, unless otherwise set forth in the
Specific
Terms,
directs
the disposition of less than all the funds in the Deposit Account or directs
that the funds be sent to more than one recipient, or (F) for which the Bank
has
not received evidence reasonably required by the Bank as to the authority of
the
person giving the Disposition Instruction to act for the Secured
Party;
(iii) complying
with the Debtor’s Disposition Instructions, or otherwise completing a
transaction involving the Deposit Account, that the Bank or an affiliate had
started to process before the Outside Time; or
B-10
(iv) after
the
Bank becomes aware that the Secured Party has sent the Initial Instruction,
but
before the Outside Time, complying with the Initial Instruction or a Disposition
Instruction originated by the Secured Party, notwithstanding any fact or
circumstance and even if the Initial Instruction (A) has not been actually
received at the address specified in the Exhibit,
(B)
fails to have attached to it a copy of this Agreement as fully executed, or
(C)
is not completed or otherwise fails to be in the form of Initial Instruction
set
forth on the Exhibit.
(b) The
Bank
will not be liable to any other party for:
(i) wrongful
dishonor of any item as a result of the Bank following the Initial Instruction
or any Disposition Instruction originated by the Secured Party,
(ii) failing
to comply or delaying in complying with the Initial Instruction, any Disposition
Instruction or any provision of this Agreement due to a computer malfunction,
interruption of communication facilities, labor difficulties, act of God, war,
terrorist attack, or other cause, in each case beyond the Bank’s reasonable
control,
(iii) any
other
Claim, except to the extent directly caused by the Bank’s gross negligence or
willful misconduct, or
(iv) any
indirect, special, consequential or punitive damages.
(c) The
Bank
will have no fiduciary duties under this Agreement to any other party, whether
as trustee, agent, bailee or otherwise.
The
Bank
will have no duties to the Secured Party except as expressly set forth in this
Agreement.
The
Bank
will have no duty to inquire into or determine the existence or enforceability
of the Debtor’s obligations to the Secured Party or whether, under any separate
agreement between the Debtor and the Secured Party, the Debtor’s obligations to
the Secured Party are in default, the Debtor may originate a Disposition
Instruction or the Secured Party may originate the Initial Instruction or any
Disposition Instruction.
5. The
Bank’s Recourse to the Deposit Account.
(a) Except
for amounts referred to in Section 5(b), the Bank (i) subordinates any security
interest, lien or other encumbrance against the Deposit Account to the Secured
Party's security interest and (ii) will not exercise any right of recoupment,
setoff or debit against the Deposit Account.
This
subordination will not apply to any security interest that the Bank has in
an
item under UCC Article 4 as a collecting bank.
(b) Notwithstanding
Section 5(a), and regardless of any agreement of the Debtor to compensate the
Bank by means of balances in the Deposit Account, the Bank may charge the
Deposit Account, to the extent permitted by any of the Deposit-related
Agreements or applicable law, for:
(i)
the
face amount of a check, draft, money order, instrument, wire transfer of funds,
automated clearing house entry, credit from a merchant card transaction, other
electronic transfer of funds or other item (A) deposited in or credited to
the
Deposit Account, whether before or after the Agreement Date, and returned unpaid
or
otherwise uncollected or subject to an adjustment entry, whether for
insufficient funds or for any other reason and without regard to the timeliness
of the return or adjustment or the occurrence or timeliness of any other
person’s notice of nonpayment or adjustment,
(B)
subject to a claim against the Bank for breach of transfer, presentment,
encoding, retention or other warranty under Federal Reserve Regulations or
Operating Circulars, clearing house rules, the UCC or other applicable law,
or
(C) for a merchant card transaction, against which a contractual demand for
chargeback has been made;
(ii)
normal service charges or fees payable to the Bank in connection with the
Deposit Account or any related services;
(iii)
any
adjustments or corrections of any posting or encoding errors; and
(iv)
reimbursements for out-of-pocket or allocable internal legal fees and expenses
in connection with the negotiation, administration or enforcement of this
Agreement
by the
Bank.
B-11
6. Indemnification
and Reimbursement.
(a) The
Debtor indemnifies the Bank against all Claims incurred, sustained or payable
by
the Bank arising out of this Agreement except to the extent directly caused
by
the Bank’s gross negligence or willful misconduct.
(b) The
Secured Party agrees to reimburse the Bank for any charge against the Deposit
Account under Section 5(b) for which there were insufficient funds in the
Deposit Account to satisfy the charge.
Such
reimbursement will be limited to the aggregate amount transferred from the
Deposit Account as a result of the Bank’s acting upon Disposition Instructions
originated by the Secured Party or pursuant to Section 9(b). Any demand by
the
Bank for reimbursement must be made within the number of days after the
termination of this Agreement set forth in the Specific
Terms.
The Bank
may not make a Claim for reimbursement under this subsection unless (i) the
Debtor fails to satisfy the Claim within 15 days after the Bank makes a demand
on the Debtor under Section 6(a) or (ii) the Bank is enjoined, stayed or
prohibited by operation of law from making the demand on the
Debtor.
(c) The
Secured Party’s reimbursement obligations under Section 6(b) will not apply to
(i) a charge for reimbursement of or indemnification for any out-of-pocket
or
allocable internal legal fees and expenses incurred by the Bank in connection
with any claim or defense by the Bank against the Secured Party relating to
this
Agreement or (ii) the amount of any loss incurred by the Bank to the extent
directly caused by the Bank’s gross negligence or willful misconduct.
If
the
Bank satisfies any Claim against the Debtor referred to in the foregoing clause
(i) by charging the Deposit Account, the amount of the Secured Party’s maximum
liability for reimbursement obligations under Section 6(b) will be reduced
by
the amount of the Claim so satisfied.
(d) If
the
Secured Party fails to reimburse the Bank for any amount under Section 6(b),
the
Secured Party will pay the Bank’s out-of-pocket or allocable internal legal fees
and expenses in collecting from the Secured Party the amount
payable.
(e) The
Secured Party indemnifies the Bank against all other Claims incurred, sustained
or payable by the Bank arising from the Bank following an Initial Instruction
or
a Disposition Instruction originated by the Secured Party, or from the Bank’s
remittance of funds pursuant to Section 9(b), except to the extent directly
caused by the Bank’s gross negligence or willful misconduct.
7. Representations
and Warranties; Agreements with Other Persons.
The
Bank
represents and warrants to the Secured Party that the Bank (i) is an
organization engaged in the business of banking, (ii) maintains the Deposit
Account as a demand deposit account or accounts in the ordinary course of the
Bank’s business and (iii) has not entered into any currently effective agreement
with any person under which the Bank may be obligated to comply with Disposition
Instructions originated by a person other than the Debtor or the Secured
Party.
The
Bank
will not enter into any agreement with any person under which the Bank may
be
obligated to comply with Disposition Instructions originated by a person other
than the Debtor or the Secured Party.
8. Deposit
Account Information.
If the
Secured Party so requests, to the extent that the Bank has the operational
ability to do so, the Bank will provide to the Secured Party, whether by
Internet access or otherwise, a copy of each periodic account statement relating
to the Deposit Account ordinarily furnished by the Bank to the
Debtor.
The
Bank’s liability for failing to provide the account statement will not exceed
the Bank’s cost of providing the statement. The Debtor authorizes the Bank to
provide to the Secured Party, whether by Internet access or otherwise, any
other
information concerning the Deposit Account that the Bank may agree to provide
to
the Secured Party at the Secured Party’s request.
9. Termination;
Closure of the Deposit Account.
(a) Neither
the Debtor nor the Bank will close the Deposit Account prior to termination
of
this Agreement. This Agreement may not be terminated by the Debtor except by
a
notice to the Bank given jointly by the other parties. This Agreement may be
terminated (i) by the Secured Party at any time by notice to the other parties
and (ii) by the Bank (A) immediately upon notice to the other parties if the
Bank becomes obligated to terminate this Agreement or to close the Deposit
Account under any statute, rule or regulation, or any Order or Process, binding
upon the Bank, (B) upon five Business Days’ notice to the other parties if any
other party is in material breach of any of the Deposit-related Agreements
or
this Agreement, and (C) otherwise upon 30 days’ notice to the other
parties.
B-12
(b) If
the
Bank terminates this Agreement pursuant to clause (A) of Section 9(a)(ii),
the
Bank will remit any funds in the Deposit Account on the date of termination
(i)
at the direction of the Secured Party if the direction is received by the Bank
prior to the date of termination of this Agreement or (ii) if no such direction
is received by the Bank prior to such date, by check mailed to the address
of
the Secured Party for receiving communications under this Agreement. If the
Bank
terminates this Agreement pursuant to clause (B) or (C) of Section 9(a)(ii),
the
Bank will remit any funds in the Deposit Account on the date of termination
at
the direction of the Secured Party only if the direction is received by the
Bank
prior to the date of termination of this Agreement. Any obligation of the Bank
to remit any funds to or at the direction of the Secured Party under this
subsection is subject to clauses (B) through (F) of Section
4(a)(ii).
(c) Except
as
provided in Section 9(b) and in any event if the Secured Party has communicated
to the Bank that the Secured Party does not wish to receive or direct the
disposition of the funds, the Secured Party will not receive from the Bank
any
remittance of funds from the Deposit Account upon termination of this Agreement
by the Bank.
(d) The
termination of this Agreement will not affect any rights created or obligations
incurred under this Agreement before the termination.
Sections
4 and 6 will survive the termination of this Agreement for actions taken or
omitted before the termination.
Sections
9(b) and (c) will survive the termination of this Agreement, and Section 5
will
survive the termination of this Agreement solely for any funds to be remitted
to
or at the direction of the Secured Party pursuant to Section 9(b).
10. Communications.
(a) All
communications under this Agreement must be in writing and must be delivered
by
hand or overnight courier service, mailed by certified or registered mail,
or
sent by facsimile to the party addressee.
If
the
Specific
Terms
permit a
writing to include an electronic record, a communication, other than the Initial
Instruction, may be sent by email.
(b) For
a
communication under this Agreement to be effective, it must be received (i)
for
the Initial Instruction, at the Bank’s address specified on the Exhibit
and (ii)
in all other cases, at the party’s address indicated below the party’s signature
to this Agreement, in each case subject to any change in address provided in
Section 10(c). Receipt of the Initial Instruction does not occur until it is
received by the person or persons or department specified on the “attention”
line on the Exhibit.
If more
than one person is specified, receipt occurs when the Initial Instruction is
received by one of the persons.
(c) The
Bank
may communicate to the Secured Party changes in the address for the Initial
Instruction, and any party may communicate to the other parties changes in
its
address for communications under this Agreement.
11. Successors
and Transferees.
(a) This
Agreement will inure to the benefit of, and be binding upon, the parties and
their respective successors and other transferees permitted under this
Section.
Except as
provided in this Section, a voluntary transfer of a party’s rights or duties
under this Agreement without the written consent of the other parties will
be
void.
(b) The
Bank
may transfer its rights and duties under this Agreement to a transferee to
which, by contract or operation of law, the Bank transfers substantially all
of
its rights and duties under the Deposit-related Agreements.
(c) The
Secured Party may transfer its rights and duties under this Agreement to (i)
a
transferee to which, by contract or operation of law, the Secured Party
transfers substantially all of its rights and duties under the financing or
other arrangements between the Secured Party and the Debtor for which the
Deposit Account acts as collateral security or (ii) if the Secured Party is
acting as a trustee, indenture trustee, agent, collateral agent, or other
representative in whose favor a security interest is created or provided for,
a
transferee that is a successor trustee, indenture trustee, agent, collateral
agent, or other representative.
(d)
No
transfer under this Section will be binding upon a non-transferring party until
the transferring party or the transferee notifies the non-transferring parties
of the transfer in a writing signed by the transferee that identifies the
transferee, gives the transferee’s address for communications under this
Agreement, and states that the transferee is a successor of the transferor
or
other transferee permitted under this Section and is entitled to the benefit
of
the transferring party’s rights and has assumed all of the transferring party’s
duties under this Agreement.
B-13
(e) A
non-transferring party need not request proof of any transfer or that the
transferee is a successor of the transferor or other transferee permitted by
this Section.
If
requested by a non-transferring party, however, the transferring party or the
transferee will provide reasonable proof thereof.
If
the
Bank or the Secured Party, as a non-transferring party, requests such proof,
then the effectiveness of the notification of transfer as to the
non-transferring party will be suspended until the proof is
provided.
(f) When
a
transfer becomes binding on the non-transferring parties, the transferring
party
will not be entitled to exercise any rights, and will be relieved of its
obligations, accruing under this Agreement from and after that time. Those
rights may be exercised and those obligations will be incurred by the
transferee.
(g) The
provisions of subsections (d) and (e) requiring notification for a transfer
to
be binding on the non-transferring parties and suspending the effectiveness
of
the notification of transfer until reasonable proof of the transfer has been
provided do not apply to the Bank as the transferring party if the transfer
is
by operation of law and by operation of the law (i) the transferee succeeds
to
all or substantially all of the rights and becomes generally bound by all of
the
duties of the Bank, including the Bank’s duties under this Agreement, and (ii)
the Bank ceases to exist.
12. Entire
Agreement; Relation to Other Agreements.
(a) This
Agreement constitutes the entire agreement of the parties, and supersedes all
previous and contemporaneous negotiations, understandings and agreements, with
respect to its subject matter, all of which have become merged and finally
integrated into this Agreement.
(b) If
a term
in the Specific
Terms
conflicts with a term of this Agreement not in the Specific
Terms,
the
term in the Specific
Terms
controls.
(c) If
this
Agreement conflicts with any of the Deposit-related Agreements, this Agreement
will control.
However,
this Agreement will not (i) derogate from any Claim or defense that the Bank
may
have against the Debtor under any of the Deposit-related Agreements or (ii)
create any third party beneficiary rights under any of the Deposit-related
Agreements in favor of the Secured Party.
(d) This
Agreement does not amend or otherwise modify any of the agreements between
the
Debtor and the Secured Party or provide any rights for the Debtor to originate
a
Disposition Instruction in contravention of any agreement between the Debtor
and
the Secured Party.
13. Governing
Law, Depositary Bank’s Jurisdiction and Waiver of Jury Trial.
(a) Except
as
otherwise required by Article 9 of the UCC, this Agreement will be governed
by
the law of that jurisdiction set forth in the Specific
Terms
without
giving effect to any choice of law rule that would require the application
of
the law of another jurisdiction.
(b) If
the
Specific
Terms
are
completed expressly to designate the Bank’s jurisdiction for purposes of part 3
of Article 9 of the UCC, then the Deposit-related Agreements are amended to
provide that for those purposes that jurisdiction is the Bank’s jurisdiction so
designated.
(c) To
the extent permitted by applicable law, each party waives all rights to trial
by
jury in any action, claim or proceeding (including any counterclaim) of any
type
arising out of or directly or indirectly relating to this
Agreement.
14. Miscellaneous.
(a) No
amendment to this Agreement will be binding on any party unless it is in writing
and signed by all of the parties. Any provision of this Agreement benefiting
a
party may be waived only by a writing signed by that party.
(b) If
a
provision of this Agreement is held invalid or unenforceable in any respect,
the
validity or enforceability of the remaining provisions will not in any way
be
affected, it being understood that the invalidity or unenforceability of an
affected provision in a particular jurisdiction will not in and of itself affect
the validity or enforceability of the provision in any other
jurisdiction.
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