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EXHIBIT 10.74
(ACCOUNT - WITH ACTIVATION)
DEPOSIT ACCOUNT CONTROL AGREEMENT
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This Agreement is entered into as of June 23, 2004, among
SelectForce, Inc. ("Company"), Laurus Master Fund, Ltd.
("Lender"), and
Fleet National Bank, N.A. ("Bank") with respect to the
following:
A. Bank has agreed to establish and maintain for Company
deposit account number 9485372398 (the "Account").
B. Company has assigned to Lender a security interest in the
Account and in checks and other payment instructions ("Checks")
deposited
in the Account.
C. Company, Lender and Bank are entering into this Agreement
to evidence Lender's security interest in the Account and such
Checks and
to provide for the disposition of net proceeds of Checks
deposited in the
Account.
Accordingly, Company, Lender and Bank agree as follows:
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1. (a) This Agreement evidences Lender's control over the
Account.
Notwithstanding anything to the contrary in the agreement
between Bank
and Company governing the Account, Bank will comply with
instructions
originated by Lender as set forth herein directing the
disposition of
funds in the Account without further consent of the Company.
(b) Company represents and warrants to Lender and Bank that it
has
not assigned or granted a security interest in the Account or
any Check
deposited in the Account, except to Lender.
(c) Company will not permit the Account to become subject to
any
other pledge, assignment, lien, charge or encumbrance of any
kind, other
than Lender's security interest referred to herein.
2. During the Activation Period (as defined below), Bank shall
prevent
Company from making any withdrawals from the Account. Prior to
the
Activation Period, Company may operate and transact business
through the
Account in its normal fashion, including making withdrawals from
the
Account, but covenants to Lender it will not close the
Account.
Furthermore, Bank agrees that it shall not permit Company to
close the
Accounts without written approval from Lender. A reasonable
period of
time following the commencement of the Activation Period, and
continuing
on each Business Day thereafter, Bank shall transfer all
collected and
available balances in the Account to Lender at its account
specified in
the Notice (as defined below). The "Activation Period" means the
period
which commences within a reasonable period of time not to exceed
two
Business Days after Bank's receipt of a written notice from
Lender in the
form of Exhibit A (the "Notice"). A "Business Day" is each day
except
Saturdays, Sundays and Bank holidays. Funds are not available
if, in the
reasonable determination of Bank, they are subject to a hold,
dispute or
legal process preventing their withdrawal.
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3. Bank agrees it shall not offset, charge, deduct or
otherwise
withdraw funds from the Account, except as permitted by Section
4, until
it has been advised in writing by Lender that all of
Company's
obligations that are secured by the Checks and the Account are
paid in
full. Lender shall notify Bank promptly in writing upon payment
in full
of Company's obligations.
4. Bank is permitted to charge the Account:
(a) for its fees and charges relating to the Account or
associated with the Lockbox Service and this Agreement; and
(b) in the event any Check deposited into the Account is
returned unpaid for any reason or for any breach of warranty
claim.
5. (a) If the balances in the Account are not sufficient to
compensate Bank for any fees or charges due Bank in connection
with the
Account or this Agreement, Company agrees to pay Bank on demand
the
amount due Bank. Company will have breached this Agreement if it
has not
paid Bank, within five days after such demand, the amount due
Bank.
(b) If the balances in the Account are not sufficient to
compensate Bank for any returned Check, Company agrees to pay
Bank on
demand the amount due Bank. If Company fails to so pay Bank
immediately
upon demand, Lender agrees to pay Bank within five days after
Bank's
demand to Lender to pay any amount received by Lender with
respect to
such returned Check. The failure to so pay Bank shall constitute
a
breach of this Agreement.
(c) Company hereby authorizes Bank, without prior notice,
from
time to time to debit any other account Company may have with
Bank for
the amount or amounts due Bank under subsection 5(a) or
5(b).
6. (a) Bank will send information regarding deposits to the
Account to the address specified below for Company or as
otherwise
specified in writing by Company to Bank, and will send a copy of
each
such deposit advice to the address specified below for
Lender.
(b) In addition to the original Bank statement provided to
Company, Bank will provide Lender with a duplicate of such
statement.
7. (a) Bank will not be liable to Company or Lender for any
expense, claim, loss, damage or cost ("Damages") arising out of
or
relating to its performance under this Agreement other than
those Damages
which result directly from its acts or omissions constituting
negligence
or intentional misconduct.
(b) In no event will Bank be liable for any special,
indirect,
exemplary or consequential damages, including but not limited to
lost
profits.
(c) Bank will be excused from failing to act or delay in
acting, and no such failure or delay shall constitute a breach
of this
Agreement or otherwise give rise to any liability of Bank, if
(i) such
failure or delay is caused by circumstances beyond Bank's
reasonable
control, including but not limited to legal constraint,
emergency
conditions, action or inaction of governmental, civil or
military
authority, fire, strike, lockout or other labor dispute, war,
riot,
theft, f
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