1
ACCOUNT CONTROL AGREEMENT
Citizens Bank of Massachusetts ("Creditor"); DM Management Company
("Debtor"); and Fleet National Bank ("Securities Intermediary") hereby agree as
follows:
PREAMBLE:
1. Securities Intermediary maintains a securities account number 0123680070
in the name of DM Management Company (the "Account"), and of which Account the
Debtor is the entitlement holder.
2. Debtor has granted Creditor a security interest in the Account pursuant
to a certain loan agreement between Debtor and Creditor dated June 5, 1997
(herein the "Loan Agreement") and a certain security agreement between the
Debtor and the Creditor dated June 5, 1997 (herein the "Security Agreement").
3. Creditor, Debtor and Securities Intermediary are entering into this
Agreement to perfect the security interest of Creditor in the Account and intend
that this Agreement shall provide to Creditor control of the Account.
TERMS:
SECTION 1. THE ACCOUNT. Securities Intermediary hereby represents and
warrants to Creditor and Debtor that (a) the Account has been established in the
name of Debtor as recited above, (b) Exhibit A attached hereto is a complete and
accurate statement of the Account and the financial assets carried therein as of
the date hereof, (c) Exhibit A does not reflect any financial assets which are
registered in the name of Debtor, payable to this order, or specially endorsed
to him which have not been endorsed to Securities Intermediary or in blank, and
(d) except for the claims and interest of Creditor and Debtor in the Account
(subject to any claim in favor of Securities Intermediary permitted under
Section 2), Securities Intermediary does not know of any claim to or interest in
the Account. Securities Intermediary will treat all property held by it in the
Account as financial assets under Article 8 of the Uniform Commercial Code of
The Commonwealth of Massachusetts.
SECTION 2. PRIORITY OF LIEN. Securities Intermediary hereby acknowledges
the security interest granted to Creditor by Debtor. Securities Intermediary
hereby confirms that the Account is a cash account and that it will not advance
any margin or other credit to Debtor therein, either directly by executing
purchase orders in excess of any credit balance or money market mutual funds
held in the Account, executing sell orders on securities not held in the Account
or by allowing him to trade in instruments such as options and commodities
contracts that create similar obligations, nor hypothecate any securities
carried in the Account. Securities Intermediary hereby waives and releases all
liens, encumbrances, claims and rights of setoff it may have against the account
or any financial asset carried in the account or any credit balance in the
Account and agrees
2
that, except for payment of its customary fees and commission pursuant to the
Securities Intermediary Agreement with Debtor, it will not assert any such lien,
encumbrance, claim or right against the Account or any financial asset carried
in the account or any credit balance in the Account. Securities Intermediary
will not agree with any third party that Securities Intermediary will comply
with entitlement orders concerning the Account originated by such third party
without the prior written consent of Creditor and Debtor.
SECTION 3. CONTROL. Securities Intermediary will comply with entitlement
orders originated by Creditor concerning the Account without further consent by
Debtor. Except as otherwise provided in section 2 above and 4 below, Securities
Intermediary shall make trades of financial assets held in the Account at the
direction of Debtor, or his authorized representatives, and comply with
entitlement orders concerning the Account from Debtor, or his authorized
representatives, until such time as Creditor delivers a written notice to
Securities Intermediary that Creditor is thereby exercising exclusive control
over the Account. Such notice may be referred to herein as the "Notice of
Exclusive Control". After Securities Intermediary receives the Notice of
Exclusive Control, it will immediately cease complying with entitlement orders
or other directions concerning the Account originated by Debtor or his
representatives.
SECTION 4. NO WITHDRAWALS. Notwithstanding the provisions of Section 3
above, Securities Intermediary shall neither accept nor comply with any
entitlement order from Debtor withdrawing any financial assets from the Account
nor deliver any such financial assets to Debtor nor pay any free credit balance
or other amount owing from Securities Intermediary to Debtor with respect to the
Account without the specific prior written consent of Creditor.
SECTION 5. STATEMENTS, CONDITIONS AND NOTICES OF ADVERSE CLAIMS. Securities
Intermediary will send copies of all statements, confirmations and other
correspondence concerning the Account simultaneously to each of Debtor and
Creditor at the address set forth below, and as the same may be changed from
time to time by notice hereunder. If any person asserts any lien, encumbrance or
adverse claim against the Account or in any financial asset carried therein,
Securities Intermediary will promptly notify Creditor and Debtor thereof.
SECTION 6. RESPONSIBILITY OF SECURITIES INTERMEDIARY. Except for permitting
a withdrawal or payment in violation of Section 4 above or advancing margin or
other credit to Debtor in violation of Section 2 above, Securities Intermediary
shall have no responsibility or liability to Creditor for making trades of
financial assets held in the Account at the direction of Debtor, or his
authorized representatives, or complying with entitlement orders concerning the
Account from Debtor, or his authorized representatives, which are received by
Securities Intermediary before Securities Intermediary receives a Notice of
Exclusive Control. Securities Intermediary shall have no responsibility or
liability to Debtor for complying with a Notice of Exclusive Control or
complying with entitlement orders concerning the Account originated by Creditor.
Securities Intermediary shall have no duty to investigate or make any
determination as to whether a default exists under any agreement between Debtor
and Creditor and shall comply with a Notice of Exclusive Control even if it
believes that no such default exists. This Agreement does not create any
obligation or duty of Securities Intermediary other than those expressly set
forth herein.
-2-
3
SECTION 7. TAX REPORTING. To the extent the Securities Intermediary is
required to make any reports of income to the Internal Revenue Service or any
other state or local taxing authority, all items of income, gain, expense and
loss recognized in the Account shall be reported to the Internal Revenue Service
and such state and local taxing authorities under the name and taxpayer
identification number of Debtor.
SECTION 8. OTHER AGREEMENT WITH DEBTOR. In the event of a conflict between
this agreement and any other agreement between the Securities Intermediary and
Debtor, the terms of this Agreement will prevail. Regardless of any provision in
any such agreement, The Commonwealth of Massachusetts shall be deemed to be the
Securities Intermediary's location for the purposes of this Agreement and the
perfection and priority of Creditor's security interest in the Account.
SECTION 9. TERMINATION. The rights and powers granted herein to Creditor
have been granted in order to perfect its security interest in the Account, are
powers coupled with an interest and will neither be affected by the death or
bankruptcy of Debtor nor by any lapse of time. The obligations of Securities
Intermediary under Sections 2, 3, 4 and 5 above shall continue in effect until
the security interest of Creditor in the Account has been terminated and
Creditor has notified Securities Intermediary of such termination in writing.
Upon receipt of such notice the obligations of Securities Intermediary under
Sections 2, 3, 4, and 5 above with respect to the operation and maintenance of
the Account after the receipt of such notice shall terminate. Creditor shall
have no further right to originate entitlement orders concerning the Account and
Securities Intermediary may take such steps as Debtor may request to vest full
ownership and control of the Account in Debtor, including, but not limited to,
transferring all of the financial assets and credit balances in the account to
another securities account in the name of Debtor of his designee.
SECTION 10. THIS AGREEMENT. This Agreement, the schedules and exhibits
hereto and the agreements and instruments required to be executed and delivered
hereunder set forth the entire agreement of the parties with respect to the
subject matter hereof and supersede and discharge all prior agreement (written
or oral) and negotiations and all contemporaneous oral agreements concerning
such subject matter and negotiations. There are no oral conditions precedent to
the effectiveness of this Agreement. The provisions of this Section 10 do not
effect the terms and provisions of the Loan Agreement or the Security Agreement
as between the Debtor and the Creditor .
SECTION 11. AMENDMENTS. No amendment, modification or termination of this
Agreement or waiver of any right hereunder shall be binding on any part hereto
unless it is in writing and is signed by the party to be charged.
SECTION 12. SEVERABILITY. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or unenforceable, shall be construed in
all respect as if such invalid or unenforceable term or provision were omitted.
SECTION 13. SUCCESSORS. The terms of this Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
corporate successor or heirs and personal representatives.
-3-
4
SECTION 14. RULES OF CONSTRUCTION. In this Agreement, words in the singular
number include the plural, and in the plural include the singular; words of the
masculine gender include the feminine and the neuter, and when the sense so
indicates words of the neuter gender may refer to any gender and the word "or"
is disjunctive but not exclusive. This captions and section numbers appearing in
this Agreement are inserted only as a matter of convenience. They do not define,
limit or describe the cope of intent of the provisions of this Agreement.
SECTION 15. NOTICES. Any notice, request or other communication required or
permitted to be given under this Agreement shall be in writing and deemed to
have been properly given when delivered in person, or when sent by telecopy or
other electronic means and electronic confirmation or error free receipt is
received or two days after being sent by certified or registered United States
mail, return receipt requested, postage prepaid, addressed to the party at the
address set forth next to such parties' below. Any party may change his address
for notices in the manner set forth above.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereby may execute this Agreement by signing and delivering one or more
counterparts.
SECTION 17. CHOICE OF LAW. The parties hereto agree that certain material
events, occurrences and transaction relating to this Agreement bear a reasonable
relationship to The Commonwealth of Massachusetts. The validity, terms,
performance and enforcement of this Agreement shall be governed by those laws of
The Commonwealth of Massachusetts which are applicable to agreement which are
negotiated, executed, delivered and performed solely in The Commonwealth of
Massachusetts.
Executed as an instrument under seal as of the 5th day of June, 1997.
Address: CITIZENS BANK OF MASSACHUSETTS
55 Summer Street
Boston, MA 02110 By: /s/ Lori B. Leeth, VP
--------------------------------------
Lori B. Leeth, Vice President
Address: DM MANAGEMENT COMPANY
25 Recreation Park Drive
Hingham, MA 02043 By: /s/ Olga L. Conley
Attn: Olga L. Conley, V.P. ---------------------------------------------
Olga L. Conley, Its Vice President of Finance
Address: FLEET NATIONAL BANK
One Federal Street
Boston, MA 02110 By: /s/ Luke G. Tsokanis
Attn: Luke Tsokanis ---------------------------------------------
Title: Vice President
------------------------------------------
-4-