Exhibit 10.12
Control Agreement Regarding
Deposit Accounts
CONTROL AGREEMENT REGARDING DEPOSIT
ACCOUNTS (as amended, modified or supplemented from time to time,
this “ Agreement ”), dated as of
October 31, 2005, among the undersigned assignor (the “
Assignor ”) NORDEA BANK FINLAND, PLC, New York Branch,
not in its individual capacity but solely as Collateral Agent (the
“ Collateral Agent ” and the “ Deposit
Account Bank ”), as the bank (as defined in
Section 9-102 of the UCC as in effect on the date hereof in
the State of New York (the “ UCC ”)) with which
one or more deposit accounts (as defined in Section 9-102 of
the UCC) are maintained by the Assignor (with all such deposit
accounts now or at any time in the future maintained by the
Assignor with the Deposit Account Bank being herein called the
“ Deposit Accounts ”).
W I T N E S S E T H
:
WHEREAS, the Assignor, various other
Assignors and the Collateral Agent have entered into a Pledge and
Security Agreement, dated as of October 26, 2005 (as amended,
amended and restated, modified or supplemented from time to time,
the “ Pledge and Security Agreement ”), under
which, among other things, in order to secure the payment of the
Obligations (as defined in the Pledge and Security Agreement), the
Assignor has granted a first priority security interest to the
Collateral Agent for the benefit of the Secured Creditors (as
defined in the Pledge and Security Agreement) in all of the right,
title and interest of the Assignor in and into any and all deposit
accounts (as defined in Section 9-102 of the UCC) and in all
monies, securities, instruments and other investments deposited
therein from time to time (collectively, herein called the “
Collateral ”); and
WHEREAS, the Assignor desires that
the Deposit Account Bank enter into this Agreement in order to
establish “ control ” (as defined in
Section 9-104 of the UCC) in each Deposit Account at any time
or from time to time maintained with the Deposit Account Bank, and
to provide for the rights of the parties under this Agreement with
respect to such Deposit Accounts;
NOW THEREFORE, in consideration of
the premises and the mutual promises and agreements contained
herein, and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1.
Assignor’s Dealings with
Deposit Accounts; Notice of Exclusive Control
. Until the Deposit Account Bank
shall have received from the Collateral Agent a Notice of Exclusive
Control (as defined below), the Assignor shall be entitled to
present items drawn on and otherwise to withdraw or direct the
disposition of funds from the Deposit Accounts and give
instructions in respect of the Deposit Accounts; provided ,
however , that the Assignor may not, and the Deposit Account
Bank agrees that it shall not permit the Assignor to, without the
Collateral Agent’s prior written consent, close any Deposit
Account. If upon the occurrence and during the continuance of
an Event of Default (as defined in the Pledge and Security
Agreement)
the Collateral Agent shall give to
the Deposit Account Bank a notice of the Collateral Agent’s
exclusive control of the Deposit Accounts, which notice states that
it is a “Notice of Exclusive Control” (a “
Notice of Exclusive Control ”), only the Collateral
Agent shall be entitled to withdraw funds from the Deposit
Accounts, to give any instructions in respect of the Deposit
Accounts and any funds held therein or credited thereto or
otherwise to deal with the Deposit Accounts.
2.
Collateral Agent’s Right to
Give Instructions as to Deposit Accounts . (a) Notwithstanding the
foregoing or any separate agreement that the Assignor may have with
the Deposit Account Bank, the Collateral Agent shall be entitled,
following the occurrence and during the continuance of an Event of
Default for purposes of this Agreement, at any time to give the
Deposit Account Bank instructions as to the withdrawal or
disposition of any funds from time to time credited to any Deposit
Account, or as to any other matters relating to any Deposit Account
or any other Collateral, without further consent from the
Assignor. The Assignor hereby irrevocably authorizes and
instructs the Deposit Account Bank, and the Deposit Account Bank
hereby agrees, to comply with any such instructions from the
Collateral Agent without any further consent from the
Assignor. Such instructions may include the giving of stop
payment orders for any items being presented to any Deposit Account
for payment. The Deposit Account Bank shall be fully entitled
to rely on, and shall comply with, such instructions from the
Collateral Agent even if such instructions are contrary to any
instructions or demands that the Assignor may give to the Deposit
Account Bank. In case of any conflict between instructions
received by the Deposit Account Bank from the Collateral Agent and
the Assignor, the instructions from the Collateral Agent shall
prevail.
(b)
It is understood and agreed that the
Deposit Account Bank’s duty to comply with instructions from
the Collateral Agent regarding the Deposit Accounts is absolute,
and the Deposit Account Bank shall be under no duty or obligation,
nor shall it have the authority, to inquire or determine whether or
not such instructions are in accordance with the First Priority
Pledge and Security Agreement or any other Credit Document (as
defined in the First Priority Pledge and Security Agreement), nor
seek confirmation thereof from the Assignor or any other
Person.
3.
Assignor’s Exculpation and
Indemnification of Depository Bank . The Assignor hereby irrevocably
authorizes and instructs the Deposit Account Bank to follow
instructions from the Collateral Agent regarding the Deposit
Accounts even if the result of following such instructions from the
Collateral Agent is that the Deposit Account Bank dishonors items
presented for payment from any Deposit Account. The Assignor
further confirms that the Deposit Account Bank shall have no
liability to the Assignor for wrongful dishonor of such items in
following such instructions from the Collateral Agent. The
Deposit Account Bank shall have no duty to inquire or determine
whether the Assignor’s obligations to the Collateral Agent
are in default or whether the Collateral Agent is entitled, under
any separate agreement between the Assignor and the Collateral
Agent, to give any such instructions. The Assignor further
agrees to be responsible for the Deposit Account Bank’s
customary charges and to indemnify the Deposit Account Bank from
and to hold the Deposit Account Bank harmless against any loss,
cost or expense that the Deposit Account Bank may sustain or incur
in acting upon instructions which the Deposit Account Bank believes
in good faith to be instructions from
the Collateral Agent excluding any
loss, cost or expense to the extent incurred as a direct result of
the gross negligence or willful misconduct of the Deposit Account
Bank.
4.
Subordination of Security
Interests; Deposit Account Bank’s Recourse to Deposit
Accounts . The
Deposit Account Bank hereby subordinates any claims and security
interests it may have against, or with respect to, any Deposit
Account at any time established or maintained with it by the
Assignor (including any amounts, investments, instruments or other
Collateral from time to time on deposit therein) to th
