Exhibit 99.10
Conformed Copy
March 29 2006
The Bank of New York
101 Barclay Street - 8-E
New York, NY 10286
Attention: Corporate Trust Department - Corporate Finance Unit
Re: Account Control Agreement by and among AFG Enterprises USA Inc., (the
"Account Holder"), The Bank of New York, as Bank (the "Bank") and The Bank of
New York as Collateral Agent (the "Collateral Agent")
Ladies and Gentlemen:
1. Reference is made to the non-interest bearing trust account number referenced
on Schedule I hereto (the "Account"), which the Account Holder maintains with
the Bank.
2. The Account Holder and the Collateral Agent hereby notify the Bank that the
Account Holder has granted the Collateral Agent a first priority security
interest in the Account and all funds therein pursuant to a Security Agreement
dated as of March 29, 2006 (the "Security Agreement"). This letter agreement has
been prepared to provide such notice and to set forth the understanding and
agreement of the parties in respect of the Account.
3. The Account Holder and the Collateral Agent each hereby authorizes and
directs the Bank as follows:
(a) the Account Holder shall have no right to withdraw or direct the
withdrawal of funds from the Account, close the Account or exercise any
authority of any kind in respect of the Account, other than as expressly
permitted in paragraph 3(b) hereto.
(b) to honor the joint instructions of the Account Holder and the
Collateral Agent with respect of the disposition of funds in the Account, unless
the Collateral Agent shall deliver to the Bank in writing a notice substantially
in the Form of Exhibit A hereto (the "Blocked Account Notice") following the
occurrence of an Event of Default (as defined in the Security Agreement). Upon
and at all times following receipt of the Blocked Account Notice, the Bank,
without any consent by any Account Holder, shall dispose of the funds in the
Account as the Collateral Agent shall direct from time to time in writing, with
all such written directions by the Collateral Agent to (i) be delivered by
overnight delivery (identifiable by tracking number) to the Bank at the address
set forth beneath its signature below or such other address(es) as the Bank
shall furnish to the Collateral Agent in writing and (ii) become effective,
without further consent by the Account Holder, upon telephonic and facsimile
confirmation of the Bank's receipt of same by any one of the officers identified
in the address for the Bank set forth beneath its signature below (or such other
addresses as the Bank shall furnish to the Collateral Agent in writing) to any
one of the officers as Collateral Agent shall identify in such notice;
(c) prior to the receipt by the Bank of a Blocked Account Notice, to
continue to provide account statements and account balance information regarding
the Account to the Account Holder, including access to such information by
telephone or computer, to the extent practicable; and
(d) to deliver copies of all account statements (but not cancelled checks)
for the Account to the Collateral Agent, on a monthly basis, by first class U.S.
mail at the Collateral Agent's address as set forth beneath its signature below.
Collateral Agent's rights under this Letter Agreement to give the Bank
instructions from time to time as to the withdrawal or disposition of any funds
in the Account or as to any other matters relating to the Account includes
without limitation the power to give stop payment orders for any items being
presented to the Account for payment. Account Holder confirms that Bank should
follow such instructions from Collateral Agent even if the result of following
such instructions is that Bank dishonors items presented for payment from any
Account. Account Holder further confirms that Bank will have no liability to
Account Holder for the wrongful dishonor of such items resulting from the Bank's
compliance with such instructions form Collateral Agent. The Account Holder
hereby grants to the Collateral Agent access to any information that may be
accessible to the Account Holder by telephone or by computer. The term,
"business day", as used in this letter agreement shall mean a weekday that is
not a holiday for the Bank in the State and city of New York. The Bank shall
have no responsibility to advise the Account Holder that it has ceased to honor
the instructions of the Account Holder in respect of the Account. Any written
instructions by the Collateral Agent to the Bank pursuant to clause (b) of this
paragraph shall include complete wire transfer instructions, as applicable. All
of the foregoing is subject to the Bank's standard charges for such services.
Nothing in this paragraph shall negate, limit or alter the Bank's right to
offset and charge the Account as provided in this letter agreement.
4. The Bank agrees that, so long as this letter agreement is in effect, it will
not exercise or claim any right of set-off or banker's lien against the Account,
and the Bank hereby waives during the term of this letter agreement any such
right or lien which it may have against any funds in the Account, except as
follows: the Bank may offset and charge the Account for any items deposited
therein or credited thereto which (i) are returned for insufficient, uncollected
or unavailable funds after two attempts for collection have been made, (ii) are
returned for any other reason, (iii) are otherwise not collected or paid, or
(iv) in respect of which the Bank fails to receive final settlement. The Bank
may offset and charge the Account for all customary service charges, fees,
expenses and other items chargeable to the Account, including, but not limited
to, account operation and maintenance fees. If there are insufficient funds in
the Account to pay the aforementioned amounts, then the Bank may offset and
charge any other account of the Account Holder for such amounts, and to the
extent there are insufficient funds in such other accounts to pay such amounts,
then the Account Holder agrees to promptly pay such amounts, together with any
reasonable attorneys' fees, disbursements and expenses incurred in connection
therewith.
5. Notwithstanding anything to the contrary in this letter agreement, the Bank
shall be permitted to comply with any writ, levy, order or other judicial or
regulatory order or process concerning the Accounts or any check or withdrawal
and shall not be in violation of this letter agreement for acting thereon. The
Bank will make reasonable efforts to notify the Collateral Agent in writing
prior to acting on any writ, levy, order or other judicial or regulatory order
or process to the extent permitted by law.
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Control Agreement
6. This letter agreement may be terminated by the Collateral Agent upon notice
to the Bank of such termination in writing. This letter agreement may be
terminated by the Bank at any time on not less than thirty days' prior written
notice thereof delivered by it to both the Account Holder and the Collateral
Agent, unless the Bank is required to close the Account and thereby terminate
sooner by order of a court, judicial ruling or any regulatory body that
regulates the Bank. In the case of termination of this letter agreement, without
further consent by the Account Holder, the Account shall be closed and cashier's
checks for the collected and available funds in the Account shall be mailed to
the Collateral Agent, unless the Collateral Agent directs the Bank otherwise in
writing. To the extent uncollected and unavailable funds are in the Account,
then, without further consent by the Account Holder, a cashier's check for such
funds shall be mailed to the Collateral Agent, unless the Collateral Agent
directs the Bank otherwise in writing, after such funds are collected or become
available.
7. The Bank shall be entitled to rely conclusively upon any direction,
instruction or other communication it receives in connection with this letter
agreement or the subject matter hereof and shall have no obligation to
investigate or verify or be required to inquire into the authenticity or
correctness of any such direction, instruction or other communication. The Bank
shall be entitled to rely conclusively on, and shall be fully protected from
liability and loss in acting or omitting to act pursuant to, any such direction,
instruction or other communication purporting to be from the Collateral Agent or
the Account Holder, without having the obligation to investigate or verify or be
required to determine the authenticity or the correctness of any statement
therein or the identity or authority of any person purporting to sign or deliver
such direction, instruction or other communication. The Bank shall have no
responsibility for the contents of any such direction, instruction or other
communication and may rely without any liability upon the contents thereof. The
Bank shall have no liability to the Account Holder for honoring any direction,
instruction or other communication regarding the Account that the Bank receives
from the Collateral Agent and the Bank shall be fully discharged from liability
with respect to any funds in the Account to the extent it honors such direction,
instruction or other communication and transfers any such funds to or at such
direction, instruction or other communication of the Collateral Agent. The Bank
shall not be liable in connection with the performance or non-performance of its
duties hereunder, except for its own gross negligence or willful misconduct.
8. The Bank's duties shall be determined only with reference to this letter
agreement, any amendment or modification of this letter agreement signed by the
Bank, the Collateral Agent and the Account Holder, and applicable laws, orders,
rulings, or guidelines, rules or regulations of any governmental authority, and
the Bank shall not be charged with knowledge of, or any duties and
responsibilities in connection with, any other document or agreement.
Notwithstanding the foregoing, except as may be modified by this letter
agreement, it is understood and agreed by all parties that the Account is
subject to the terms and conditions therefor entered into by the Account Holder
and the Bank. No implied covenants or obligations shall be read into this letter
agreement against the Bank. If at anytime the Bank, in good faith, is in doubt
as to the action it should take under this letter agreement, the Bank shall have
the right to commence an interpleader action in the United States District Court
for the Southern District of New York and to take no further action except in
accordance with the final order of the court in such action. The Bank may offset
and charge the Account and any other account of the Account Holder for the cost
of such interpleader, including, without limitation, reasonable attorneys' fees,
disbursements and expenses incurred in connection therewith. If there are
insufficient funds to reimburse the Bank for same, then the Account Holder
agrees to promptly reimburse the Bank for same.
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Control Agreement
9. The Account Holder agrees to indemnify and hold the Bank, its directors,
officers, employees and agents, and their respective legal representatives,
successors and assigns (collectively, the "Bank Parties"), harmless from any
claim, action or suit (whether groundless or otherwise), loss, damage, expense
(including, but not limited to, charges, fees, expenses and returned items for
which the Account Holder and/or the Collateral Agent received a benefit), cost,
liability or demand (including reasonable attorneys' fees, court costs,
disbursements and expenses), or for any interruption of services, arising out
of, relating to or in connection with this letter agreement (or the entering
into hereto or the subject matter hereof), any related document, direction,
instruction or other communication, any transaction contemplated hereby or
thereby, any action taken or omitted to be taken by the Bank Parties or any of
them hereunder or thereunder, the honoring of any direction, instruction or
other communication the Bank Parties or any of them receive from the Collateral
Agent, or to the extent required by this letter agreement, not honoring any
direction, instruction or other communication from the Account Holder.
10. The Account Holder agrees that no claim shall be made by it against the Bank
Parties or any of them, and the Bank Parties and any of them shall not be liable
for any act or omission relating to its/their performance under this letter
agreement or any related document, direction, instruction or other
communication, except for gross negligence or willful misconduct of the Bank. In
no event shall the Bank Parties or any of them be liable for special,
incidental, indirect, exemplary, consequential or punitive damages. The Bank
Parties or any of them shall not be liable for any failure or delay in
performance arising out of or caused by any instruction, action or omission of
the Collateral Agent or the Account Holder. The Bank Parties or any of them will
be excused from failing to act or delay in acting if such failure or delay
arises out of circumstances beyond their control or if they reasonably believe
that action or inaction would violate any law, order, ruling, or guideline, rule
or regulation of any governmental authority.
11. The Bank's offset, charge, reimbursement and indemnity rights under this
letter agreement shall survive the expiration or termination of this letter
agreement.
12. All notices and other communications required or provided under this letter
agreement shall be in writing and shall be sent to each party hereto at its
respective address(es) as set forth beneath its signature below or to such other
address(es) as such party shall furnish to the others in writing.
13. This letter agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns. The Account
Holder and the Collateral Agent shall provide immediate written notice to the
Bank, substantially in the form of Exhibit B hereto, via overnight delivery
(identifiable by tracking number) at all of the addresses set forth beneath its
signature below or such other addresses as the Bank shall furnish to the
Collateral Agent in writing, of any such assignment by either or both of them,
together with written confirmation of such assignment and acceptance of the
terms of this letter agreement by such assignee. The Account Holder and/or
Collateral Agent shall provide any other information with respect to such
assignment as the Bank shall reasonably request.
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Control Agreement
14. If any provision in or obligation under this letter agreement or any related
document shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
15. This letter agreement may only be modified or amended by written agreement
of all the parties evidencing such modification or amendment.
16. This letter agreement shall be governed by the laws of the State of New York
(without giving effect to its conflicts of law rules other than Section 5-1401
of the New York General Obligations Law). Any legal action or proceeding arising
out of or relating to this letter agreement or any related document shall be
brought in the Courts of the State of New York or of the United States for the
Southern District of New York. Each party hereto consents to the exclusive
jurisdiction of those courts, irrevocably waives any objection, including any
objection to venue or based on the grounds of an inconvenient forum, that such
party may now or hereafter have to the bringing of any action or proceeding in
such jurisdiction arising out of or relating to this letter agreement or any
related document, and agrees that any summons or complaint or any process in any
such action or proceeding may be served by first class or certified mail
addressed to the address(es) as set forth beneath such party's signature below
or by hand delivery to a person of suitable age and discretion at such
address(es). Each party hereto waives all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this letter agreement
or any related document.
17. Please acknowledge your agreement to and acceptance of the foregoing by
signing and returning the enclosed copies of this letter agreement in the space
marked "Agreed to and Accepted", whereupon it will constitute the parties
agreement with respect to the matters contained herein.
18. Each party hereto signing below represents and warrants that such party, as
well as any individual signing on such party's behalf, has due authority to sign
and deliver this letter agreement.
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Control Agreement
Very truly yours,
AFG ENTERPRISES USA, INC
By: /s/ William Santo
---------------------------------------
Name: William Santo
Title: Chief Executive Officer
Address: 181 Wells Avenue, Suite 100
Newton, Massachusetts 02459
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Control Agreement
THE BANK OF NEW YORK,
as Collateral Agent
By /s/ Gevovanni Barris
--------------------------------------
Name: Geovanni Barris
Title: Vice President
Address:
101 Barclay St. 8 W
New York, NY 10286
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Control Agreement
Agreed to and Accepted:
The Bank of New York
By: /s/ Geovanni Barris
---------------------------------------
Name: Geovanni Barris
Title: Vice President
Address:
101 Barclay St. 8W
New York, NY 10286
Attention: Corporate Trust Department
- Corporate Finance Unit
Control Agreement
Schedule 1
Grantor Account Number
------- --------------
AFG Enterprises USA, Inc. 183592
Control Agreement
Exhibit A
[Letterhead of Collateral Agent]
VIA OVERNIGHT DELIVERY
[Date]
The Bank of New York
101 Barclay Street - 8E
New York, NY 10286
Attention: Corporate Trust Department
- Corporate Finance Unit
Re: Blocked Account Notice
Ladies and Gentlemen:
We hereby instruct you, pursuant to the terms of that certain letter agreement
dated March__, 2006 among the undersigned, AFG Enterprises USA, Inc. (the
"Account Holder") and you, as may be amended from time to time (the "Letter
Agreement"), unless and until otherwise directed by the undersigned, on each
business day to transfer all amounts constituting collected and available funds
on deposit in checking account number _____________ maintained by the Account
Holder with you (the "Account") as follows:
Bank Name:
-----------------------------------------------------------
Bank Address:
--------------------------------------------------------
ABA Routing Number:
--------------------------------------------------
Account Title: [to include Collateral Agent's name]
-------------------------------------------------------
Account Number:
------------------------------------------------------
[Date]
Page 2
Pursuant to the Letter Agreement, please direct your telephonic and facsimile
confirmation of receipt of this letter to one of the following officers:
Name: Name:
------------------------------- -------------------------------------
Title:------------------------------ Title:------------------------------------
Telephone Telephone
Number: Number:
----------------------------- -----------------------------------
Facsimile Facsimile
Number: Number:
----------------------------- -----------------------------------
The term "business day" and capitalized terms used herein but not defined herein
shall have the meanings ascribed to same in the Letter Agreement. This letter is
subject to the terms of the Letter Agreement, including, without limitation, the
date it shall become effective. Nothing herein shall modify, limit, diminish,
negate or alter any rights accorded to you under the Letter Agreement or any
other provisions thereof.
Very truly yours,
The Bank of New York, as Collateral Agent
By
----------------------------------
Name:
Title:
cc: AFG Enterprises USA, Inc
181 Wells Avenue, Suite 100
Newton, MA 02459
Exhibit B
VIA OVERNIGHT DELIVERY
[Date]
The Bank of New York
101 Barclay Street - 8E
New York, NY 10286
Attention: Corporate Trust Department
- Corporate Finance Unit
Re: Notice of Assignment
Ladies and Gentlemen:
We hereby notify you, pursuant to the terms of that certain letter agreement
dated March __, 2006 among the undersigned and you, as may be amended from time
to time (the "Letter Agreement"), that [Collateral Agent/Account Holder, as
appropriate] (the "Assignor") has assigned all of its rights and obligations
under the Letter Agreement to the following party (the "Assignee"):
[Name of Assignee]
[Address]
Attention: [Name, Title]
Facsimile Number:
We hereby request you to acknowledge receipt of this notice telephonically,
confirming such acknowledgement via facsimile, to each of the following:
To Collateral Agent To Account Holder
Name: The Bank of New York Name: AFG Enterprises USA Inc
----------------------------- ---------------------------------
Title: Title:
---------------------------- --------------------------------
Telephone Telephone
Number: Number:
--------------------------- -------------------------------
Facsimile Facsimile
Number: Number:
--------------------------- -------------------------------
- ----------------
[Date]
Page 2
This letter is subject to the terms of the Letter Agreement. Nothing in this
letter shall modify, limit, diminish, negate or alter any rights accorded to you
under the Letter Agreement or any other provisions thereof. Enclosed is a true,
correct and complete copy of the assignment executed by the Assignor and
Assignee.
Very truly yours,
The Bank of New York, as Collateral Agent
By
---------------------------------
Name:
Title:
AFG Enterprises USA Inc.
By ---------------------------------
Name:
Title:
Assignee acknowledges and agrees to the foregoing
and confirms assignment and acceptance of the terms
of the Letter Agreement (as hereinabove defined) this _____
day of ______________, 200___:
[Name of Assignee]
By
---------------------------------
Name:
Title: