EXHIBIT 99.7
Account Numbers:
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SILICON VALLEY BANK
DEPOSIT ACCOUNT CONTROL AGREEMENT
Customer:
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Creditor:
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Date:
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This Deposit Account Control Agreement ("Agreement") is entered into
as of the above date between Silicon Valley Bank ("Bank"), Creditor identified
above ("Creditor"), and Customer identified above ("Customer").
All parties agree as follows:
1. DEPOSIT ACCOUNT. Bank maintains one or more demand, time, savings, passbook,
certificates of deposit or other similar accounts that are identified above in
which Customer has an interest. The referenced account(s) is (are) subject to
the Bank's Deposit Agreement Disclosure Statement, unless specifically altered
by this Agreement. The parties acknowledge that the Deposit Account constitutes
a "Deposit Account" within the meaning of Section 9102 of the Uniform
Commercial Code of the State of California ("UCC") and Bank is a "Bank" within
the meaning of Section 9102 of the UCC. The provisions of this Agreement
constitute "Control" over the Deposit Account within the meaning of Section
9104 of the UCC.
2. SECURITY INTERESTS. Pursuant to a security agreement or similar agreement
identified in Exhibit A hereto ("Security Agreement"), Customer has granted to
Creditor a security interest in the above account(s) and in all funds now or
later deposited into or held therein (collectively, the "Deposit Account").
Bank acknowledges the security interest in the Deposit Account granted by
Customer to Creditor. With respect to Bank's rights pursuant to Section 6 of
this Agreement, Customer has granted to Bank a security interest in the Deposit
Account, or Bank has a lien under the UCC or other laws applicable to the
Deposit Account. Creditor acknowledges the Bank's lien on the Deposit Account
under the UCC or other laws applicable to the Deposit Account and/or the
security interest in the Deposit Account granted by Customer to Bank. Customer
hereby ratifies and confirms the security interests and/or liens it has granted
in the Deposit Account to Bank and Creditor.
3. OTHER DEPOSIT CONTROL AGREEMENTS. Bank has entered into Deposit
Account Control Agreements with the parties listed on Exhibit A attached
hereto. Customer covenants and agrees that it will not enter into a deposit
control agreement with any other party without Creditor's
prior written consent. Bank agrees that it will not enter into a deposit
control agreement with any other party with respect to the Deposit Account
without Creditor's prior written consent
4. CUSTOMER'S RIGHTS IN DEPOSIT ACCOUNT. Until Bank receives a Notice of
Exclusive Control (as described and set forth below), Customer will be entitled
to draw items on and otherwise to withdraw or direct the disposition of funds
from the Deposit Account. So long as this Agreement is in effect, Customer may
not close the Deposit Account without Creditor's prior written consent. Bank
may close Customer's Deposit Account in accordance with Bank's business
practices and as required by applicable law. Customer will notify Creditor if
Bank closes Customer's Deposit Account.
5. CREDITOR'S CONTROL OF DEPOSIT ACCOUNT. Except as permitted in section 6 of
this Agreement, and except as required pursuant to the terms of any other
deposit account control agreement executed by Customer and/or referenced in
Section 3 and Exhibit A to this Agreement, after Bank receives a Notice of
Exclusive Control from Creditor and has had reasonable opportunity to comply
with it, but no later than two Business Days ("Business Days" means days which
Bank is open to the public for business and are measured in 24 hour increments)
after the Notice of Exclusive Control has been validly given (in accordance
with Section 13(B) below), Bank and Customer agree that Bank will comply with
Creditor's instructions as to the withdrawal or disposition of any funds
credited to the Deposit Account, and to any other matters relating to the
Deposit Account, without Customer's further consent. Creditor agrees that it
will not send a Notice of Exclusive Control unless it believes that it is
entitled to exercise its rights as to the Deposit Account under the Security
Agreement or any of the other documents executed in connection with the
Security Agreement. The Notice of Exclusive Control must be in the form set
forth in Exhibit B hereto and must be signed by an authorized representative of
Creditor. Creditor's instructions may include the giving of stop payment orders
for any items being presented to the Deposit Account for payment. Bank will be
fully entitled to rely upon such instructions from Creditor even if such
instructions are contrary to any instructions or demands given by Customer.
Customer confirms that Bank should follow instructions from Creditor even if
the result of following such instructions is that Bank dishonors items
presented for payment from the Deposit Account. Customer further confirms that
Bank will have no liability to Customer for wrongful dishonor of such items in
following such instructions from Creditor. Bank shall have no duty to inquire
or determine whether Customer's obligations to Creditor are in default, or
whether the Creditor is entitled to send a Notice of Exclusive Control.
6. PRIORITIES OF SECURITY INTERESTS; RIGHTS RESERVED BY BANK. Creditor agrees
that nothing herein subordinates or waives, and that Bank expressly reserves,
any and/or all of Bank's present and future rights (whether described as rights
of setoff, banker's liens, chargeback or otherwise, and whether available to
Bank under the law or under any other agreement between Bank and Customer
concerning the Deposit Account) with respect to (a) items deposited to the
Deposit Account and returned unpaid, whether for insufficient funds or for any
other reason; (b)overdrafts on the Deposit Account; (c) automated clearing
house entries; (d) any provisional credits granted by Bank to the Deposit
Account; (e) claims of breach of the Uniform Commercial Code's transfer or
presentment warranties made against Bank in connection with items deposited to
the Deposit Account; (f) Bank's usual and customary charges for services
rendered in connection with the Deposit Account; or (g) any lien arising in
connection with any loan or other
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credit relationship between Customer and Bank, which lien shall be subject to
the provisions of the Subordination/Intercreditor Agreement identified in
Exhibit A hereto. Creditor agrees that notwithstanding receipt of Creditor's
Notice of Exclusive Control, subject to the terms and obligations in the
Subordination/Intercreditor Agreement listed in Exhibit A, Bank may exercise
Bank's rights and remedies in connection with any liens, security interests or
claims it may have in or on the Deposit Account as described in this Section 6.
7. STATEMENTS. At Customer's expense, Bank will send copies of all statements
for the Deposit Account to Creditor at Creditor's address set forth below
Creditor's signature block at the end of this Agreement. Until this Agreement
is terminated, Customer authorizes Bank to disclose to Creditor at Creditor's
request any information concerning Customer's Deposit Account, including but
not limited to the identity of any other party with which Customer and Bank
have executed deposit control agreements or similar agreements.
8. RETURNED ITEMS. Bank will pay returned items by debiting the Deposit
Account. If anytime after Creditor exercises exclusive control over the Deposit
Account (a) funds are not available in the Deposit Account to cover the amount
of any returned item, and (b) Customer fails to pay such amount within 15
Business Days of Bank's written demand therefor, then Creditor agrees that it
will pay, within ten (10) Business Days of a written demand by Bank, any
amounts owed for a returned item that is not paid in full by Customer up to the
amount of the proceeds received by Creditor from the corresponding returned
item.
9. INDEMNITY AND HOLD HARMLESS OF BANK BY CUSTOMER. Customer hereby agrees to
indemnify and hold harmless Bank, its affiliates and their respective
directors, officers, agents and employees (each, an "Indemnified Person")
against any and all claims, causes of action, liabilities, lawsuits, demands
and damages (each, a "Claim") asserted by Creditor or any other party (other
than an Indemnified Person), including without limitation, any and all court
costs and reasonable attorneys' fees, in any way related to or arising out of
or in connection with this Agreement or any action taken or not taken pursuant
hereto, including any Claims arising as a result of Bank's adherence (or
alleged failure of adherence) to the foregoing instructions including, without
limitation, Claims that allegedly result from Bank's ceasing, based on this
Agreement, to permit withdrawals of or from the Deposit Account or the funds in
the Deposit Account or resulting from Bank's paying over or delivering all or
any part of the Deposit Account or the funds in the Deposit Account pursuant to
the directions of Creditor; provided that no Indemnified Person shall be
entitled to be indemnified to the extent that such Claims result from an
Indemnified Person's gross negligence or willful misconduct. Customer will
indemnify Creditor for any indemnity obligations Creditor owes to Bank under
this Agreement.
10. INDEMNIFICATION AND HOLD HARMLESS OF BANK BY CREDITOR. Creditor hereby
agrees to indemnify Indemnified Persons against any and all Claims asserted by
Customer or any other party (other than an Indemnified Person), including,
without limitation, any and all court costs and reasonable attorneys' fees,
arising directly out of Bank's adherence or failure of adherence to Creditor's
instructions in its Notice of Exclusive Control, including, without limitation,
any Claim that arises directly out of Bank's ceasing, based on this Agreement,
to permit withdrawals of or from the Deposit Account or the funds in the
Deposit Account or resulting from Bank's paying over or delivering all or any
part of the Deposit Account or the funds in the Deposit Account pursuant to
Creditor's instructions in its Notice of Exclusive Control; provided, that no
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Indemnified Person shall be entitled to be indemnified (a) to the extent that
such Claim results from an Indemnified Person's gross negligence or willful
misconduct; (b) for any special, indirect, consequential or punitive damages
asserted by Customer if the waiver in Section 11 of this Agreement is
enforceable; or (c) any Claim asserted against Bank for Bank's breach of the
Subordination/Intercreditor Agreement identified in Exhibit A. Creditor agrees
that it will not hold Indemnified Persons liable for any Claim arising out of
or relating to any Indemnified Person's performance or failure of performance
under this Agreement other than those Claims that result directly from the acts
or omissions of an Indemnified Person which constitute gross negligence or
willful misconduct.
11. WAIVER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT OR ANYWHERE ELSE, CUSTOMER WAIVES AND AGREES THAT IT SHALL NOT SEEK
FROM BANK OR CREDITOR UNDER ANY THEORY OF LIABILITY (INCLUDING WITHOUT
LIMITATION ANY THEORY IN TORT), ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES.
12. AMENDMENTS. This Agreement and all exhibits attached hereto may be
amended only by a written agreement, signed by Bank, Creditor, and Customer.
13. NOTICES.
(A) Any notice, other than a Notice of Exclusive Control, or other
communication provided for or allowed hereunder shall be in writing and shall
be considered to have been validly given (a) when received if delivered
personally (whether by messenger, hand delivery or otherwise), overnight
delivery or sent by facsimile to the recipient to the address or facsimile
number set forth below the signature of the applicable party hereto, or (b) 72
hours after being deposited in the United States mail, registered or certified,
postage prepaid, return receipt requested, if sent to the address and addressee
as set forth below the signature of the applicable party hereto. The addresses
to which notices or other communications are to be given (including a Notice of
Exclusive Control pursuant to subsection (B) below) may be changed from time to
time by notice served as provided herein.
(B) A Notice of Exclusive Control shall be in writing, must be in the form set
forth in Exhibit B hereto, must be delivered to the address listed below Bank's
signature block at the end of this Agreement, must be delivered to Bank via
hand delivery, messenger, overnight delivery or facsimile and shall be
considered to have been validly given when actually received, except that a
facsimile will be considered to have been validly given only when acknowledged
in writing by Bank (Bank agrees that it will use its good faith effort to
acknowledge receipt of such facsimile). Creditor acknowledges that Bank may not
be able to respond to a Notice of Exclusive Control pursuant to Section 5
above, and Creditor agrees that Bank will not be held liable for any failure to
respond to a Notice of Exclusive Control, if the Creditor does not deliver the
Notice of Exclusive Control as set forth in this Section 13 or to the address
listed below Bank's signature block at the end of this Agreement.
14. INTEGRATION PROVISION. Except for the Subordination/Intercreditor
Agreement identified in Exhibit A, this Agreement constitutes the entire
agreement among Bank, Customer and
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Creditor with respect to Creditor's control over the Deposit Account and
matters related thereto, and all prior communications, whether verbal or
written, between any of the parties hereto with respect to the subject matter
hereof shall be of no further effect or evidentiary value.
15. COUNTERPARTS. This Agreement may be signed in counterparts that, when
signed by all parties, shall constitute one agreement.
16. RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall create
any agency or fiduciary relationship between Customer, Creditor and Bank.
17. GOVERNING LAW AND JURISDICTION. The parties hereto agree that this
Agreement shall be governed exclusively under and in accordance with the laws of
the State of California. All parties hereto each submit to the exclusive
jurisdiction of the State and Federal courts in Santa Xxxxx County, California.
18. JURY TRIAL WAIVER. CUSTOMER, CREDITOR, AND BANK EACH WAIVE THEIR RIGHT
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON
THIS AGREEMENT, OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT,
BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR
ALL PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER
WITH ITS COUNSEL.
19. SUCCESSORS. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective corporate
successors or heirs and personal representatives. However, Customer may not
assign this Agreement without the prior written consent of the Creditor and
Bank. Creditor may not assign this Agreement without the prior written consent
of Bank. Bank may not assign this Agreement without 30 days prior written notice
to the other parties.
20. ATTORNEYS' FEES, COSTS AND EXPENSES. In any action or proceeding
between Bank and any other party to this agreement, the prevailing party will be
entitled to recover its reasonable attorneys' fees and other reasonable costs
and expenses incurred, in addition to any other relief to which it may be
entitled.
21. TERMINATION; SURVIVAL. Creditor may terminate this Agreement by giving
Bank and Customer written notice of termination; provided that, by giving such
notice, Creditor acknowledges that it will thereby be confirming that, as of the
termination date, it will no longer have a perfected security interest in the
Deposit Account via control pursuant to this Deposit Account Control Agreement,
although Creditor may continue to have a perfected security interest in the
Deposit Account by other means. Bank may terminate this Agreement by giving
Creditor and Customer 30 days' prior written notice of termination. Customer may
only terminate this Agreement with the written consent of Creditor; provided
that, by giving such notice with Creditor's written consent, both Customer and
Creditor acknowledge that they will thereby be confirming that, as of the
termination date, Creditor will no longer have a perfected security interest in
the Deposit Account via control pursuant to this Deposit Account Control
Agreement, although Creditor may continue to have a perfected security interest
in the Deposit Account by other means. Subject to the foregoing, this Agreement
automatically terminates when the Deposit Account closes or when Creditor
notifies Bank that all obligations owed to Creditor have been paid in full and
Creditor has terminated its security interest in the Deposit Account. Sections
9, 10, 11, 17, 18 and 20 shall survive the termination of this Agreement.
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BANK: SILICON VALLEY BANK
By
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Title:
Deposit Control Department
Address for Notices:
Silicon Valley Bank
Deposit Control Department
0000 Xxxxxx Xxxxx
Mail Sort HG225
Xxxxx Xxxxx, XX 00000
Telephone: 000-000-0000/000-000-0000/000-000-0000
Facsimile: 000-000-0000
CUSTOMER ,
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a __________ corporation
By
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Name:
Title:
Address for Notices:
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Telephone:
Facsimile:
CREDITOR: ,
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a __________ Corporation
By
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Name:
Title:
Address for Notices:
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Telephone:
Facsimile:
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SILICON VALLEY BANK
DEPOSIT ACCOUNT CONTROL AGREEMENT
EXHIBIT A
1. "SECURITY AGREEMENT":
2. DEPOSIT ACCOUNT CONTROL AGREEMENTS PREVIOUSLY EXECUTED BY SILICON
VALLEY BANK WITH OTHER PARTIES ASSERTING AN INTEREST IN THE DEPOSIT
ACCOUNT:
3. SUBORDINATION/INTERCREDITOR AGREEMENT(S) EXECUTED BY SILICON VALLEY
BANK AND CREDITOR:
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SILICON VALLEY BANK
DEPOSIT ACCOUNT CONTROL AGREEMENT
EXHIBIT B
NOTICE OF EXCLUSIVE CONTROL
To: Silicon Valley Bank ("Bank")
From: ______________________("Creditor")
Re: ______________________("Customer")
Date: ______________________
Pursuant to the Deposit Account Control Agreement dated ___________
("Agreement") entered among Bank, Customer and Creditor, Creditor hereby
notifies Bank of Creditor's exercise of Creditor's rights under the Agreement
and directs Bank to cease complying with instructions or any directions
originated by Customer or its agents. Creditor hereby certifies that it is
entitled to exercise its rights under the Agreement, that Creditor has a right
to all or part of the funds in the Deposit Account (as defined in the
Agreement), and agrees to specify the amount of the funds in the Deposit
Account so due Creditor.
Creditor understands and agrees that Bank shall have no duty or obligation
whatsoever of any kind or character to determine the validity of Creditor's
exercise of its rights under the Agreement or the certification above, to
determine if Bank is obligated to take further instructions from Customer, or
to determine whether Creditor has a right to all or part of the funds in the
Deposit Account. Creditor hereby agrees to indemnify and hold harmless Bank,
its affiliates, and their respective directors, officers, employees and agents
pursuant to the terms of Section 10 of the Agreement.
Creditor agrees that, upon receipt of Creditor's Notice of Exclusive Control,
Bank may exercise Bank's rights and remedies as permitted under Sections 5 and
6 of the Agreement and under any applicable laws, and may need to comply with
obligations pursuant to the deposit account control agreements set forth in
Exhibit A of the Agreement.
Creditor hereby certifies that the person executing this Notice of Exclusive
Control is an officer, representative or agent of Creditor authorized to act on
the behalf of Creditor and to make the representations and agreements contained
in this Notice of Exclusive Control.
CREDITOR:
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By
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Title:
ACKNOWLEDGED BY: SILICON VALLEY BANK
(for facsimile only)
By:
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Name:
Title:
Date:
Time:
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