Exhibit 99.5
[LOGO]
The BANK of NEW YORK.
ESCROW AGREEMENT
among
AFG ENTERPRISES USA, INC.,
THE BANK OF NEW YORK
as Indenture Trustee and Collateral Agent
and
THE BANK OF NEW YORK
as Escrow Agent
Dated as of March 29, 2006
ACCOUNT NUMBER: GLA 111565, with further credit to account number 116293
SHORT TITLE OF ACCOUNT: AFG Enterprises USA Inc. Escrow A/C
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ESCROW AGREEMENT made this 29th day of March, 2006 by and between THE BANK OF
NEW YORK, as Escrow Agent,(in such capacity "Escrow Agent"), THE BANK OF NEW
YORK, a New York banking corporation, as Collateral Agent (in such capacity
"Collateral Agent") under that certain Security Agreement with AFG ENTERPRISES
USA, INC. (the "Company"); THE BANK OF NEW YORK, a New York banking corporation,
as Trustee for the holders of certain notes of the Company (in such capacity,
"Trustee") under that certain Indenture dated as of the date hereof with the
Company (the "Indenture") and the Company.
The Company, the Trustee, the Collateral Agent and Escrow Agent hereby agree
that, in consideration of the mutual promises and covenants contained herein,
Escrow Agent shall hold in escrow and shall distribute Escrow Property (as
defined herein) in accordance with and subject to the following Instructions and
Terms and Conditions:
I. INSTRUCTIONS:
1. Escrow Account
This account shall be at all times the account of the Trustee for the
benefit of the Nonconvertible Holders (as defined in the Indenture), and
shall be maintained in the name of the Trustee. The Company acknowledges
it will receive substantial benefit from the existence of the Escrow
Account and therefore agrees to bear the costs and expenses thereof, all
as more specifically set forth herein.
2. Escrow Property
The property and/or funds deposited or to be deposited with Escrow Agent
by the Buyers of the Notes pursuant to that certain Securities Purchase
Agreement dated as of the date hereof by and among the Company and the
Buyers party thereto (the "Buyers") shall be as follows:
FOURTY-SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($47,500,000.00)
which amount may be increased by a deposit by the Company to the Escrow
Account by TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00), as
provided in the Indenture.
The foregoing property and/or funds, plus all interest, dividends and
other distributions and payments thereon (collectively the
"Distributions") received by Escrow Agent, less any property and/or funds
distributed or paid in accordance with this Escrow Agreement, are
collectively referred to herein as "Escrow Property."
The Escrow Property, shall at all times be, and be deemed the property of
the Nonconvertible Holders.
3. Investment of Escrow Property The Buyers select the following option:
(a) Escrow Agent shall have no obligation to pay interest on or to
--- invest or reinvest any Escrow Property deposited or received
hereunder.
|X| (b) The Escrow Property shall be invested in U.S. Treasury Notes or
--- Bills or "money market" accounts of banks or trust companies that
are members of the United States Federal Reserve System having a
minimum net worth $1 billion, in each case with maturity dates not
later 30 days after the date of investment. The Escrow Agent is
hereby instructed to invest the Escrow Property in the Goldman Sachs
Treasury Instruments Fund, until otherwise jointly instructed by the
Company and the Trustee. The Escrow Agent shall pay to the party or
parties entitled to delivery of the Escrow Property the amount of
income actually received, if any, from the investment of the cash
comprising the Escrow Property in accordance with the terms of this
Agreement.
Escrow Agent shall have no liability for any loss arising from or related
to any such investment other than in accordance with paragraph 4 of the
Terms and Conditions.
For tax purposes only, the Escrow Property shall be the property of the
Company and all interest, dividends and other income earned on the Escrow
Property, which shall become part of the Escrow Property for all purposes
of this Escrow Agreement, shall be taxable to the Company, and all parties
hereto shall file all tax returns consistent with such treatment.
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4. Distribution of Escrow Property
Escrow Agent is directed to hold and distribute the Escrow Property in the
following manner:
Upon written instruction from the Company and the Trustee, the Escrow
Agent shall release and deliver amounts to the controlled account of the
Company maintained by The Bank of New York in the amounts and on the
date(s) set forth in such instructions.
Upon written instruction from the Company and the Trustee, the Escrow
Agent shall release and deliver amounts to the an account of the Company
in the amounts and on the date(s) set forth in such instructions.
Upon written instruction from the Company and the Trustee, the Escrow
Agent shall release and deliver amounts to the Paying Agent (as defined in
the Indenture, which may be the Trustee or the Company) for the benefit
of, and distribution to, one or more Nonconvertible Holders in the amounts
and on the date(s) set forth in such instructions.
5. Addresses
Notices, instructions and other communications shall be sent to Escrow
Agent, Corporate Trust Administration Division, 101 Barclay Street, 8th
Floor West, New York, New York 10286, Attn.: Insurance Trust and Escrow
Unit and to Company and the Trustee, as follows:
AFG ENTERPRISES USA, INC. The Bank of New York
181 Wells Avenue, 101 Barclay Street
Suite 100, 8th Floor West
Newton, Massachusetts 02459 New York, NY 10286
6. Distribution of Escrow Property Upon Termination
Upon termination of this Escrow Agreement, Escrow Property then held
hereunder shall be distributed as follows:
To the Trustee for distribution to the holders of the Nonconvertible
Notes.
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7. Compensation
(a) At the time of execution of this Escrow Agreement, the Company shall
pay Escrow Agent an acceptance fee of $5,000. In addition, the
Company shall pay Escrow Agent an annual fee of $5,000, payable upon
execution of this Agreement and thereafter on each anniversary date
of this Agreement. The annual fee shall not be pro-rated for any
portion of a year.
(b) The Company shall pay all activity charges as per Escrow Agent's
current fee schedule.
(c) The Company shall be responsible for and shall reimburse Escrow
Agent upon demand for all expenses, disbursements and advances
incurred or made by Escrow Agent in connection with this Agreement.
II. TERMS AND CONDITIONS:
1. The duties, responsibilities and obligations of Escrow Agent in its
capacity as such, shall be limited to those expressly set forth herein and
no duties, responsibilities or obligations shall be inferred or implied.
Escrow Agent, in its capacity as such, shall not be subject to, nor
required to comply with, any other agreement with the Company or to which
the Company is a party, even though reference thereto may be made herein,
or to comply with any direction or instruction (other than those contained
herein or delivered in accordance with this Escrow Agreement) from the
Company or any entity acting on its behalf or the Trustee, as applicable.
Escrow Agent shall not be required to, and shall not, expend or risk any
of its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
2. This Agreement is for the exclusive benefit of the parties hereto and
their respective successors hereunder, and shall not be deemed to give,
either express or implied, any legal or equitable right, remedy, or claim
to any other entity or person whatsoever.
3. If at any time Escrow Agent is served with any judicial or administrative
order, judgment, decree, writ or other form of judicial or administrative
process which in any way affects Escrow Property (including but not
limited to orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of Escrow Property), Escrow
Agent is authorized to comply therewith in any manner as it or its legal
counsel of its own choosing deems appropriate; and if Escrow Agent
complies with any such judicial or administrative order, judgment, decree,
writ or other form of judicial or administrative process, Escrow Agent
shall not be liable to any of the parties hereto or to any other person or
entity even though such order, judgment, decree, writ or process may be
subsequently modified or vacated or otherwise determined to have been
without legal force or effect.
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4. (a) Escrow Agent shall not be liable for any action taken or omitted or
for any loss or injury resulting from its actions or its performance or
lack of performance of its duties hereunder in the absence of gross
negligence or willful misconduct on its part. In no event shall Escrow
Agent be liable (i) for acting in accordance with or relying upon any
instruction, notice, demand, certificate or document from the Trustee (in
its capacity as such) or any entity acting on behalf of the Trustee or the
Company (provided that if the terms of this Agreement require that
instruction comes from both the Company and the Trustee, the Escrow Agent
shall remain liable if it acts upon Company instructions when no
instructions are received from the Trustee or when contrary instructions
are received from the Trustee), (ii) for any consequential, punitive or
special damages, (iii) for the acts or omissions of its nominees,
correspondents, designees, subagents or subcustodians, or (iv) for an
amount in excess of the value of the Escrow Property, valued as of the
date of deposit.
(b) As security for the due and punctual performance of any and all of the
Company's obligations to Escrow Agent hereunder, now or hereafter arising,
the Company, hereby pledges, assigns and grant to Escrow Agent a
continuing security interest in, and a lien on, any and all Distributions
due to the Company on any Escrow Property. The security interest of Escrow
Agent shall at all times be valid, perfected and enforceable by Escrow
Agent against the Company and all third parties in accordance with the
terms of this Escrow Agreement.
(c) Escrow Agent may consult with legal counsel at the expense of the
Company as to any matter relating to this Escrow Agreement, and Escrow
Agent shall not incur any liability in acting in good faith in accordance
with any written advice from such counsel.
(e) Escrow Agent shall not incur any liability for not performing any act
or fulfilling any duty, obligation or responsibility hereunder by reason
of any occurrence beyond the control of Escrow Agent (including but not
limited to any act or provision of any present or future law or regulation
or governmental authority, any act of God or war, or the unavailability of
the Federal Reserve Bank wire or telex or other wire or communication
facility).
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5. Unless otherwise specifically set forth herein, Escrow Agent shall proceed
as soon as practicable to collect any checks or other collection items at
any time deposited hereunder. All such collections shall be subject to
Escrow Agent's usual collection practices or terms regarding items
received by Escrow Agent for deposit or collection. Escrow Agent shall not
be required, or have any duty, to notify anyone of any payment or maturity
under the terms of any instrument deposited hereunder, nor to take any
legal action to enforce payment of any check, note or security deposited
hereunder or to exercise any right or privilege which may be afforded to
the holder of any such security.
6. Escrow Agent shall provide to the Company and the Trustee monthly
statements identifying transactions, transfers or holdings of Escrow
Property and each such statement shall be deemed to be correct and final
upon receipt thereof by the Company and the Trustee unless Escrow Agent is
notified in writing to the contrary within thirty (30) business days of
the date of such statement.
7. Escrow Agent shall not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities
deposited hereunder, or for any description therein, or for the identity,
authority or rights of persons executing or delivering or purporting to
execute or deliver any such document, security or endorsement.
8. Notices, instructions or other communications shall be in writing and
shall be given to the address set forth in the "Addresses" provision
herein (or to such other address as may be substituted therefor by written
notification to Escrow Agent or the Trustee and/or the Company, as
applicable). Notices to Escrow Agent shall be deemed to be given when
actually received by Escrow Agent's Insurance Trust and Escrow Unit of the
Corporate Trust Division. Escrow Agent is authorized to comply with and
rely upon any notices, instructions or other communications believed by it
to have been sent or given by the Trustee or by a person or persons
authorized by the Trustee. Whenever under the terms hereof the time for
giving a notice or performing an act falls upon a Saturday, Sunday, or
banking holiday, such time shall be extended to the next day on which
Escrow Agent is open for business.
9. The Company, shall be liable for and shall reimburse and indemnify Escrow
Agent and hold Escrow Agent harmless from and against any and all claims,
losses, liabilities, costs, damages or expenses (including reasonable
attorneys' fees and expenses) (collectively, "Losses") arising from or in
connection with or related to this Escrow Agreement or being Escrow Agent
hereunder (including but not limited to Losses incurred by Escrow Agent in
connection with its successful defense, in whole or in part, of any claim
of gross negligence or willful misconduct on its part); provided, however,
that nothing contained herein shall require Escrow Agent to be indemnified
for Losses caused by its gross negligence or willful misconduct.
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10. (a) The Trustee may remove Escrow Agent at any time by giving to Escrow
Agent thirty (30) calendar days' prior notice in writing signed by the
Trustee. Escrow Agent may resign at any time by giving to the Trustee and
the Company thirty (30) calendar days' prior written notice thereof.
(b) Within ten (10) calendar days after giving the foregoing notice of
removal to Escrow Agent or receiving the foregoing notice of resignation
from Escrow Agent, all the Trustee and the Company shall jointly agree on
and appoint a successor Escrow Agent. If a successor Escrow Agent has not
accepted such appointment by the end of such 10-day period, Escrow Agent
may, in its sole discretion, deliver the Escrow Property to the Trustee at
the address provided herein or may apply to a court of competent
jurisdiction for the appointment of a successor Escrow Agent or for other
appropriate relief. The costs and expenses (including reasonable
attorneys' fees and expenses) incurred by Escrow Agent in connection with
such proceeding shall be paid by, and be deemed an obligation of, the
Company.
(c) Upon receipt of the identity of the successor Escrow Agent, Escrow
Agent shall either deliver the Escrow Property then held hereunder to the
successor Escrow Agent, less Escrow Agent's fees, costs and expenses or
other obligations owed to Escrow Agent, or hold such Escrow Property (or
any portion thereof), pending distribution, until all such fees, costs and
expenses or other obligations are paid.
(d) Upon delivery of the Escrow Property to successor Escrow Agent, Escrow
Agent shall have no further duties, responsibilities or obligations
hereunder.
11. (a) In the event of any ambiguity or uncertainty hereunder or in any
notice, instruction or other communication received by Escrow Agent
hereunder, Escrow Agent may, in its sole discretion, refrain from taking
any action other than retain possession of the Escrow Property, unless
Escrow Agent receives written instructions, signed by the Company or
Trustee as applicable, which eliminates such ambiguity or uncertainty.
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(b) In the event of any dispute between or conflicting claims by or among
the Company and the Trustee and/or any other person or entity in respect
of any Escrow Property, Escrow Agent shall be entitled, in its sole
discretion, to refuse to comply with any and all claims, demands or
instructions with respect to such Escrow Property so long as such dispute
or conflict shall continue, and Escrow Agent shall not be or become liable
in any way to the Company for failure or refusal to comply with such
conflicting claims, demands or instructions. Escrow Agent shall be
entitled to refuse to act until, in its sole discretion, either (i) such
conflicting or adverse claims or demands shall have been determined by a
final order, judgment or decree of a court of competent jurisdiction,
which order, judgment or decree is not subject to appeal, or settled by
agreement between the conflicting parties as evidenced in a writing
satisfactory to Escrow Agent or (ii) Escrow Agent shall have received
security or an indemnity satisfactory to it sufficient to hold it harmless
from and against any and all Losses which it may incur by reason of so
acting. Escrow Agent may, in addition, elect, in its sole discretion, to
commence an interpleader action or seek other judicial relief or orders as
it may deem, in its sole discretion, necessary. The costs and expenses
(including reasonable attorneys' fees and expenses) incurred in connection
with such proceeding shall be paid by, and shall be deemed an obligation
of, the Company.
12. This Agreement shall be interpreted, construed, enforced and administered
in accordance with the internal substantive laws (and not the choice of
law rules) of the State of New York. Each of the Company and the Trustee
hereby submits to the personal jurisdiction of, and each agrees that all
proceedings relating hereto shall be brought in, courts located within the
City and State of New York. Each of the Company and the Trustee hereby
waives the right to trial by jury and to assert counterclaims in any such
proceedings. To the extent that in any jurisdiction the Company may be
entitled to claim, for itself or its assets, immunity from suit,
execution, attachment (whether before or after judgment) or other legal
process, each hereby irrevocably agrees not to claim, and hereby waives,
such immunity. Each of the Company and the Trustee waives personal service
of process and consents to service of process by certified or registered
mail, return receipt requested, directed to it at the address last
specified for notices hereunder, and such service shall be deemed
completed ten (10) calendar days after the same is so mailed.
13. Except as otherwise permitted herein, this Escrow Agreement may be
modified only by a written amendment signed by all the parties hereto, and
no waiver of any provision hereof shall be effective unless expressed in a
writing signed by the party to be charged.
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14. The rights and remedies conferred upon the parties hereto shall be
cumulative, and the exercise or waiver of any such right or remedy shall
not preclude or inhibit the exercise of any additional rights or remedies.
The waiver of any right or remedy hereunder shall not preclude the
subsequent exercise of such right or remedy.
15. The Company hereby represents and warrants (a) that this Escrow Agreement
has been duly authorized, executed and delivered on its behalf and
constitutes its legal, valid and binding obligation and (b) that the
execution, delivery and performance of this Escrow Agreement by the
Company do not and will not violate any applicable law or regulation.
16. The invalidity, illegality or unenforceability of any provision of this
Agreement shall in no way affect the validity, legality or enforceability
of any other provision; and if any provision is held to be enforceable as
a matter of law, the other provisions shall not be affected thereby and
shall remain in full force and effect.
17. This Agreement shall constitute the entire agreement of the parties in
respect of the subject matter and supersedes all prior oral or written
agreements in regard thereto.
18. This Agreement shall terminate upon the distribution of all Escrow
Property from the Account. The provisions of these Terms and Conditions
shall survive termination of this Escrow Agreement and/or the resignation
or removal of the Escrow Agent.
19. No printed or other material in any language, including prospectuses,
notices, reports, and promotional material which mentions "The Bank of New
York" by name or the rights, powers, or duties of the Escrow Agent under
this Agreement shall be issued by any other parties hereto, or on such
party's behalf, without the prior written consent of Escrow Agent.
20. The headings contained in this Agreement are for convenience of reference
only and shall have no effect on the interpretation or operation hereof.
21. This Escrow Agreement may be executed by each of the parties hereto in any
number of counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all such counterparts
shall together constitute one and the same agreement.
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22. The Escrow Agent does not have any interest in the Escrowed Property
deposited hereunder but is serving as escrow holder only and having only
possession thereof. The Company shall pay or reimburse the Escrow Agent
upon request for any transfer taxes or other taxes relating to the
Escrowed Property incurred in connection herewith and shall indemnify and
hold harmless the Escrow Agent any amounts that it is obligated to pay in
the way of such taxes. Any payments of income from this Escrow Account
shall be subject to withholding regulations then in force with respect to
United States taxes. The parties hereto will provide the Escrow Agent with
appropriate W-9 forms for tax I.D., number certifications, or W-8 forms
for non-resident alien certifications. It is understood that the Escrow
Agent shall be responsible for income reporting only with respect to
income earned on investment of funds which are a part of the Escrowed
Property and is not responsible for any other reporting. This paragraph
and paragraph (9) shall survive notwithstanding any termination of this
Escrow Agreement or the resignation of the Escrow Agent.
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IN WITNESS WHEREOF, each of the parties has caused this Escrow Agreement
to be executed by a duly authorized officer as of the day and year first
written above.
AFG ENTERPRISES USA, INC.
By: /s/ William Santo
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Name: William Santo
Title: Chief Executive Officer
THE BANK OF NEW YORK, as Escrow Agent
By: /s/ Geovannni Barris
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Name: Geovanni Barris
Title: Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ Geovannni Barris
--------------------------------------
Name: Geovanni Barris
Title: Vice President
THE BANK OF NEW YORK, as Collateral Agent
By: /s/ Geovannni Barris
--------------------------------------
Name: Geovanni Barris
Title: Vice President
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