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EXHIBIT 10.17.7
SECURITIES ACCOUNT CONTROL AGREEMENT
WELLS FARGO BANK (WELLS FARGO BANK INTERMEDIARY)
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THIS SECURITIES ACCOUNT CONTROL AGREEMENT (this "Agreement") is entered into as
of MAY 1, 2000, by and among CHOLESTECH CORPORATION ("Customer"), WELLS FARGO
BANK, NATIONAL ASSOCIATION, acting through its Investment Group
("Intermediary"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, acting through its
EAST BAY RCBO Office ("Secured Party").
RECITALS
A. Customer maintains that certain INVESTMENT MANAGEMENT Account No.
358-210114 (the "Securities Account") with Intermediary pursuant to an agreement
between Intermediary and Customer dated as of DECEMBER 2, 1996, and governed by
the laws of the State of CALIFORNIA (the "Account Agreement"), and Customer has
granted to Secured Party a security interest in the Securities Account and all
financial assets and other property now or at any time hereafter held in the
Securities Account.
B. Secured Party, Customer and Intermediary have agreed to enter into this
Agreement to perfect Secured Party's security interests in the Collateral, as
defined below.
NOW, THEREFORE, in consideration of their mutual covenants and promises, the
parties agree as follows:
1. DEFINITIONS. As used herein:
(a) the term "Collateral" shall mean: (i) the Securities Account; (ii) all
financial assets credited to the Securities Account; (iii) all security
entitlements with respect to the financial assets credited to the Securities
Account; (iv) any and all other investment property or assets maintained or
recorded in the Securities Account; and (v) all replacements or substitutions
for, and proceeds of the sale or other disposition of, any of the foregoing,
including without limitation, cash proceeds; and
(b) the terms "investment property," "entitlement order," "financial asset"
and "security entitlement" shall have the respective meanings set forth in the
California Uniform Commercial Code. The parties hereby expressly agree that all
property, including without limitation, cash, certificates of deposit and mutual
funds, at any time held in the Securities Account is to be treated as a
"financial asset."
2. AGREEMENT FOR CONTROL. Intermediary is authorized by Customer and agrees to
comply with all entitlement orders originated by Secured Party with respect to
the Securities Account, and all other requests or instructions from Secured
Party regarding disposition and/or delivery of the Collateral, without further
consent or direction from Customer or any other party.
3. CUSTOMER'S RIGHTS WITH RESPECT TO THE COLLATERAL.
(a) Until Intermediary is notified otherwise by Secured Party: (i) Customer,
or any party authorized by Customer to advise or otherwise act with respect to
the Securities Account, may give trading instructions to Intermediary with
respect to Collateral in the Securities Account; and (ii) Intermediary may
distribute to Customer or any other party in accordance with Customer's
directions that portion of the Collateral which consists of interest and/or cash
dividends earned on financial assets maintained in the Securities Account.
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(b) Without Secured Party's prior written consent, except to the permitted by
Section 3(a) hereof: (i) neither Customer nor any party other than Secured Party
may withdraw any Collateral from the Securities Account; and (ii) Intermediary
will not comply with any entitlement order or request to withdraw any Collateral
from the Securities Account given by any party other than Secured Party.
(c) Upon receipt of either written or oral notice from Secured Party: (i)
Intermediary shall promptly cease complying with entitlement orders and other
instructions concerning the Collateral, including the Securities Account, from
all parties other than Secured Party; and (ii) Intermediary shall not make any
further distributions of any Collateral to any party other than Secured Party,
nor permit any further voluntary changes in the financial assets.
4. INTERMEDIARY'S ACKNOWLEDGEMENTS. Intermediary acknowledges that:
(a) The Securities Account is maintained with Intermediary solely in
Customer's name.
(b) Intermediary has no knowledge of any claim to, security interest in or
lien upon any of the Collateral, except: (i) the security interests in favor of
Secured Party; and (ii) Intermediary's liens securing fees and charges, or
payment for open trade commitments, as described in Section 4(c) hereof.
(c) Any claim to, security interest in or lien upon any of the Collateral
which Intermediary now has or at any time hereafter acquires shall be junior and
subordinate to the security interests of Secured Party in the Collateral, except
for Intermediary's liens securing: (i) fees and charges owed by Customer with
respect to the operation of the Securities Account; and (ii) payment owed to
Intermediary for open trade commitments for purchases in and for the Securities
Account.
5. AGREEMENTS OF INTERMEDIARY AND CUSTOMER. Intermediary and Customer agree
that:
(a) Intermediary shall flag its books, records and systems to reflect Secured
Party's security interest in the Collateral, and shall provide notice thereof to
any party making inquiry as to Customer's accounts with Intermediary to whom
Intermediary is legally required or permitted to provide information.
(b) Intermediary shall send copies of all statements relating to the
Securities Account simultaneously to Customer and Secured Party.
(c) Intermediary shall promptly notify Secured Party if any other party
asserts any claim to, security interest in or lien upon any of the Collateral,
and Intermediary shall not enter into any control, custodial or other similar
agreement with any other party that would create or acknowledge the existence of
any such other claim, security interest or lien.
(d) Without Secured Party's prior written consent, Intermediary and Customer
shall not amend, modify or terminate the Account Agreement, other than: (i)
amendments to reflect ordinary and reasonable changes in Intermediary's fees and
charges for handling the Securities Account; and (ii) operational changes
initiated by Intermediary as long as they do not alter any of Secured Party's
rights hereunder.
6. MISCELLANEOUS.
(a) This Agreement shall not create any obligation or duty of Intermediary
except as expressly set forth herein.
(b) In the event of any conflict between this Agreement and the Account
Agreement or any other agreement between Intermediary and Customer, the terms of
this Agreement shall control.
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(c) All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing (unless otherwise specifically provided) and delivered to each party
at the address or facsimile number set forth below its signature, or to such
other address or facsimile number as any party may designate by written notice
to all other parties. Each such notice, request and demand shall be deemed given
or made as follows: (i) if sent by hand delivery, upon delivery; (ii) if sent by
facsimile, upon receipt; and (iii) if sent by mail, upon the earlier of the date
of receipt or 3 days after deposit in the U.S. mail, first class and postage
prepaid.
(d) This Agreement shall be binding upon and inure to the benefit of the
heirs, executors, administrators, legal representatives, successors and assigns
of the parties. This Agreement may be amended or modified only in writing signed
by all parties hereto.
(e) This Agreement shall terminate upon Intermediary's receipt of written
notice from Secured Party expressly stating that Secured Party no longer claims
any security interest in the Collateral.
(f) This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first set forth above.
WELLS FARGO BANK, WELLS FARGO BANK,
NATIONAL ASSOCIATION, NATIONAL ASSOCIATION,
Acting through its acting through its
Investment Group East Bay RCBO Office
WELLS CAPITAL MANAGEMENT
By: /s/ Paul Johnson By:/s/ Jose B. Henriquez
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PAUL JOHNSON, Client Administrator JOSE B. HENRIQUEZ
Title: Client Administrator Title: Relationship Manager
Address: 525 MARKET STREET, 10TH FLOOR Address: ONE KAISER PLAZA
SAN FRANCISCO, CA 94105 SUITE 850
OAKLAND, CA 94612
CHOLESTECH CORPORATION
By: /s/ Warren Pinckert
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Warren Pinckert, President
Address: 3347 INVESTMENT BLVD.
HAYWARD, CA 94545
