Exhibit 10.8
LOCK-BOX AGREEMENT
March 31, 1999
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: ACS Funding Trust I
Lock-Box No.: 4522
Lock-Box Account No. 8601046967
Ladies and Gentlemen:
ACS Funding Trust I (the "Assignor") hereby notifies you that
in connection with certain transactions involving the Assignor's accounts
receivables, the Assignor will transfer exclusive ownership and control of its
lock-box number 4522 (the "Lock-Box") and the corresponding lock-box account no.
8601046967 maintained with you (the "Lock-Box Account") to First Union Capital
Markets Corp., as deal agent (the "Agent"). These transfers will become
effective upon your receipt of a notice of effectiveness, substantially in the
form attached hereto as Attachment 1 (the "Notice of Effectiveness"), which
shall be delivered via facsimile transmission to your attention. Except as
specifically stated herein, the Wholesale Lockbox Mail Service Agreement between
you and the Assignor ("Lockbox Mail Service Agreement") shall remain in full
force and effect and is hereby acknowledged. The execution, delivery and
effectiveness of this Agreement shall not operate as a waiver of any right,
power or remedy you have under the Lockbox Mail Service Agreement, nor
constitute a waiver or any provision of the Lockbox Mail Service Agreement,
except as specifically set forth herein. You may rely upon the contents of any
Notice of Effectiveness or any other instructions you reasonably believe in good
faith are those of the Agent. You have no obligation or responsibility to
determine or verify any statements contained in any Notice of Effectiveness or
any other instructions.
In connection with the foregoing, the Assignor and the Agent
hereby instruct you, beginning on the date of receipt of the Notice of
Effectiveness: (i) to collect the monies, checks, instruments and other items of
payment mailed to the Lock-Box, (ii) to deposit into the Lock-Box Account all
such monies, checks, instruments and other items of payment (unless otherwise
instructed by the Agent) and (iii) to transfer all funds deposited and collected
in the Lock-Box Account pursuant to instructions given to you by the Agent from
time to time.
You are hereby further instructed: (i) that unless and until
the Agent notifies you to the contrary, you shall make such transfers from the
Lock-Box Account at such times and in such manner as the Assignor shall from
time to time instruct to the extent such instructions are not inconsistent with
the instructions set forth herein, and (ii) to permit the Assignor and the
Agent to obtain upon request any information relating to the Lock-Box Account,
including, without limitation, any information regarding the balance or activity
of the Lock-Box Account.
The Assignor also hereby notifies you that, beginning on the
date of receipt by facsimile of the Notice of Effectiveness from the Agent,
notwithstanding anything herein or elsewhere to the contrary, the Agent shall be
irrevocably entitled to exercise any and all rights in respect of or in
connection with the Lock-Box and the Lock-Box Account, including, without
limitation, the right to specify when payments are to be made out of or in
connection with the Lock-Box and the Lock-Box Account. The Agent acts as agent
for persons having a continuing interest in all of the checks and their proceeds
and all monies and earnings, if any, thereon in the Lock-Box Account, and you
shall be the Agent's agent for the purpose of holding and collecting such
property. The monies, checks, instruments and other items of payment mailed to
the Lock-Box and the funds deposited into the Lock-Box Account will not be
subject to deduction, set-off, banker's lien, or any other right in favor of any
person other than the Agent (except that you may set off (i) all amounts due to
you in respect of your customary fees and expenses for the routine maintenance
and operation of the Lock-Box Account, and (ii) the face amount of any checks
returned unpaid because of uncollected or insufficient funds).
This Agreement may be terminated at any time by the Assignor
or you, upon thirty days' notice to the other party and the Agent. Neither this
Agreement nor any provision hereof may be changed, amended, modified or waived
orally but only by an instrument in writing signed by you, the Agent and the
Assignor. Any claim or cause of action of any party against any other relating
to this Agreement which existed at the time of termination shall survive the
termination. All mail received after the date specified in such notice of
termination shall be returned by you to the Agent by first class mail or such
other means mutually agreeable to you and the Agent.
No party shall assign or transfer its rights or obligations
hereunder (other than to the Agent) without the prior written consent of you,
the Agent and the Assignor. Subject to the preceding sentence, this Agreement
shall be binding upon each of the parties hereto and their respective successors
and assigns, and shall inure to the benefit of, and be enforceable by, the
Agent, each of the parties hereto and their respective successors and assigns.
You hereby represent that the person signing this Agreement on
your behalf is duly authorized by you to so sign.
You agree to give the Agent and the Assignor prompt notice if
the Lock-Box or the Lock-Box Account becomes subject to any writ, judgment,
warrant of attachment, execution or similar process of which you have knowledge.
Assignor will pay your charges and fees applicable to the
services provided pursuant to this Agreement. You will send Assignor a monthly
statement of service charges and fees which are due and payable. Such charges
and fees may be charged directly against the Lock-Box Account.
You will be liable only for direct damages in the event you
fail to exercise ordinary care. You shall be deemed to have exercised ordinary
care if your actions or failure to act is in conformity with general banking
usages or is otherwise a commercially reasonable practice of the banking
industry. You shall not be liable for any special, indirect or consequential
damages, even if you have been advised of the possibility of these damages.
Assignor and Agent agree to indemnify you for, and hold you
harmless from all claims, demands, losses, liabilities and reasonable
out-of-pocket expenses, including legal fees and expenses, resulting from or
with respect to this Agreement and the administration and maintenance of the
Lock-Box Account and the services provided hereunder, including, without
limitation any action taken, or not taken, by you in regard thereto in
accordance with the terms of this Agreement. This indemnity shall survive the
termination of this Agreement.
No party will be liable for any failure to perform its
obligations when the failure arises out of causes beyond its control, including,
without limitation, an act of God, accident, equipment failure, labor disputes
or system failure, provided its has exercised such diligence as the
circumstances require.
This Agreement shall be construed in accordance with the
internal laws (and not the law of conflicts) of Illinois and applicable federal
laws.
Nothing in this Agreement or any course of dealing among the
parties commits or obligates you to extend any overdraft or other credit to
Assignor or the Agent.
This Agreement may be executed in several separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
Any notice, demand or other communication required or
permitted to be given hereunder shall be in writing and may be (a) personally
served, (b) sent by courier service, (c) telecopied or (d) sent by United States
mail and shall be deemed to have been given when (a) delivered in person, (b)
delivered by courier service, (c) upon receipt of the telecopy or (d) three
business days after deposit in the United States mail (registered or certified,
with postage prepaid and properly addressed), provided, however, that notices to
the Agent hereunder shall not be effective until actually received by the Agent.
For the purposes hereof, (i) the addresses of the parties hereto shall be as set
forth below each party's name below, or, as to each party, at such other address
as may be designated by such party in a written notice to the other party and
the Agent, and (ii) the address of the Agent shall be Xxx Xxxxx Xxxxx Xxxxxx,
XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn.: Xxxx Xxxxxx or at such other
address as may be designated by the Agent in a written notice to each of the
parties hereto.
Please agree to the terms of, and acknowledge receipt of, this
Agreement by signing in the space provided below.
Very truly yours,
ACS FUNDING TRUST I
By:
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Beneficiary Trustee
ACS Funding Trust I
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Beneficiary
Trustee
Telecopy #: (000) 000-0000
ACKNOWLEDGED AND AGREED:
LASALLE NATIONAL BANK
By:
--------------------------------
Name:
Title:
Date:
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LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
[Attention:]
ATTACHMENT 1
LOCK-BOX AGREEMENT
VIA FACSIMILE TRANSMISSION
TO: LaSalle National Bank
DATED: [Date]
ATTENTION:
Re: Lock-Box No.: 4522
Lock-Box Account No._________
Gentlemen:
Pursuant to the Lock-Box Agreement between ACS Funding Trust I
and you, dated as of March 31, 1999 (the "Agreement"), we hereby give you notice
that the transfers of the above-referenced Lock-Box and the Lock-Box Account, as
described in the Agreement, are effective as of the date hereof. You are hereby
instructed to comply immediately with the instructions set forth in the
Agreement and, until we notify you to the contrary, to transfer on each Business
Day all immediately available funds deposited in the Lock-Box Account by wire
transfer, ACM or other method of transfer mutually agreeable to you and the
Agent, to transfer all funds deposited and collected in the Lock-Box Account to
account number in the name of the Agent ________ at __________________________.
FIRST UNION CAPITAL MARKETS CORP.,
as Agent
By:
-------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
LASALLE NATIONAL BANK
By:
---------------------------------
Name:
Title:
Date:
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LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
[Attention:]
Telecopy #:
