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,
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