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EXHIBIT 10.7
ACCOUNT CONTROL AGREEMENT
ACCOUNT CONTROL AGREEMENT (this "AGREEMENT") dated as of May
14, 2001 is made by and among BGLS INC., a company duly organized under the laws
of Delaware (the "COMPANY"); United States Trust Company of New York, a New York
banking corporation, acting in its capacity as collateral agent for the
purchasers of the Notes (in such capacity, together with its successors and
permitted assigns, the "COLLATERAL AGENT"); and Bank of America, N.A. (together
with its successors and permitted assigns, the "SECURITIES INTERMEDIARY"). In
addition, all terms used herein and defined in the Uniform Commercial Code of
the State of New York (as amended and in effect from time to time, the "UNIFORM
COMMERCIAL CODE") shall have the respective meanings given to those terms in the
Uniform Commercial Code, except where the context otherwise requires.
SECTION 1. ESTABLISHMENT OF THE ACCOUNT.
(a) The parties hereto hereby confirm that the Company has
caused the Securities Intermediary to establish, and the Securities
Intermediary, acting as a "securities intermediary" (such term as used
herein as defined in Section 8-102(a)(14)(ii) of the Uniform Commercial
Code), has established account number 72-40-400-0000000 in the name of
the Company (such account and any successor account, the "Account").
(b) The Account shall be maintained on the books and records
of the Securities Intermediary as a "securities account" (such term as
used herein as defined in Section 8-501(a) of the Uniform Commercial
Code), and the Securities Intermediary agrees to treat the Company as
the "entitlement holder" (as defined in Section 8-102(a)(7) of the
Uniform Commercial Code) with respect to the Account.
(c) The Securities Intermediary agrees that all cash (which
for purposes of this Agreement is hereby designated as a "financial
asset" pursuant to Section 8-102(9)(iii) of the Uniform Commercial
Code) and all securities described on EXHIBIT D to this Agreement
("PERMITTED SECURITIES") delivered to the Securities Intermediary by
the Company or the Collateral Agent pursuant to the Pledge and Security
Agreement, dated as of May 14, 2001, by and between the Company and the
Collateral Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "PLEDGE AGREEMENT") that are a type
eligible to be held by a Federal Reserve Bank and/or the Depository
Trust Company (each such Permitted Security, an "ELIGIBLE ASSET") will
be promptly credited to the Account.
(d) The Securities Intermediary agrees that each item of
property (whether cash, a security, an instrument or obligation, share,
participation, interest or other property whatsoever) credited to or
held in the Account shall be held and treated as a "financial asset"
(such term as used herein as defined in Section 8-102(a)(9) of the
Uniform Commercial Code).
(e) All securities and other property underlying any financial
assets credited to the Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary or in
blank or credited to another securities account maintained in the name
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of the Securities Intermediary and in no case shall any financial asset
credited to the Account be registered in the name of the Company,
payable to the order of the Company or specially indorsed to the
Company.
SECTION 2. ENTITLEMENT ORDERS. The Company has granted to the
Collateral Agent, pursuant to the Pledge Agreement, a security interest in all
securities entitlements related to the Account, the Account itself and all
financial assets held therein or credited thereto. In furtherance thereof, the
Company hereby agrees that the Securities Intermediary may, and the Securities
Intermediary hereby agrees that it shall, comply with "entitlement orders" (such
term as used herein as defined in Section 8-102(a)(8) of the Uniform Commercial
Code) originated by the Company or the Collateral Agent and relating to the
Account without further consent by the Company or any other Person (as defined
below). In the event that the Securities Intermediary receives contradictory
entitlement orders from the Company and the Collateral Agent and the Securities
Intermediary has not (subject to SECTION 9 of this Agreement) already completely
implemented the entitlement order of the Company, the Company hereby agrees that
the Securities Intermediary may, and the Securities Intermediary hereby agrees
that it shall, follow the entitlement order of the Collateral Agent. As used
herein, "PERSON" means an individual, partnership corporation, limited liability
company, association, trust, unincorporated association or a government agency
or political subdivision thereof.
SECTION 3. SUBORDINATION OF LIEN; WAIVER OF SET-OFF. The
Securities Intermediary agrees that, except for payment of its fees,
commissions, settlement of open orders, and repayment of any amount credited or
paid to the Company and/or the Collateral Agent with respect to interest,
dividends, or other income or proceeds at maturity or otherwise prior to receipt
by the Securities Intermediary of finally collected funds therefor, it shall not
assert any lien, encumbrance, claim or right against the Account or any
financial assets held therein or credited thereto. The Company and the
Collateral Agent agree that any lien, encumbrance, claim or right of the
Securities Intermediary against the Account and/or any financial assets held
therein or credited thereto for the payment of such fees, commissions, and
settlements and repayment of any such amount credited or paid to the Company
and/or the Collateral Agent shall be first and prior to the claims of the
Collateral Agent and the Company to the Account and any financial assets held
therein or credited thereto. Nothing in this Section 3 shall create any
liability on the part of the Collateral Agent in respect of any amounts paid or
credited to the Collateral Agent or otherwise, all of which liabilities shall be
solely the obligation of the Company.
SECTION 4. CHOICE OF LAW. This Agreement shall be governed by
the law of the State of New York without regard to its conflicts of laws
principles. Regardless of any provision in any other agreement, for purposes of
this Agreement, the Securities Intermediary and the other parties agree that the
"securities intermediary's jurisdiction" (as defined in Section 8-110(e) of the
Uniform Commercial Code) with respect to the Account (as well as the securities
entitlements related thereto) shall be the State of New York, and this Agreement
shall be deemed "an agreement between the securities intermediary and its
entitlement holder" as described in Section 8-110(e)(1) of the Uniform
Commercial Code.
SECTION 5. CONFLICT WITH OTHER AGREEMENTS. Other than trading
receipts issued with respect to the crediting of financial assets to the Account
prior to the date hereof, there are no other agreements entered into between the
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Company and the Securities Intermediary with respect to the Account. In the
event of any conflict between this Agreement (or any portion thereof) and any
other agreement between the Company and the Securities Intermediary with respect
to the Account now existing or hereafter entered into, the terms of this
Agreement shall prevail.
SECTION 6. AMENDMENTS. No amendment or modification of this
Agreement or waiver of any right hereunder shall be binding on any party hereto
unless it is in writing and is signed by each of the parties hereto.
SECTION 7. NOTICE OF ADVERSE CLAIMS. Except for the claims and
interest of the Collateral Agent and of the Company in the Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Account or in any financial assets credited thereto or held therein. If the
Securities Intermediary receives written notice that any Person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against the Account or in
any financial assets credited thereto or held therein, the Securities
Intermediary shall promptly notify the Collateral Agent and the Company thereof.
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SECURITIES INTERMEDIARY. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(a) The Securities Intermediary is a "securities intermediary"
(as defined in Section 8-102(a)(14)(ii) of the Uniform Commercial Code)
and is acting in such capacity with respect to the Account.
(b) The Account has been established as set forth in SECTION 1
of this Agreement and shall be maintained in the manner set forth
herein until termination of this Agreement. The Securities Intermediary
shall not change the name or account number of the Account without the
prior written consent of the Collateral Agent, except as a result of
computer system or accounting changes affecting accounts of the
Securities Intermediary generally (in which case the Securities
Intermediary shall provide prompt notice of such change to the
Collateral Agent and the Company).
(c) This Agreement is the legal, valid and binding obligation
of the Securities Intermediary enforceable against the Securities
Intermediary in accordance with its terms subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(d) The Securities Intermediary has not entered into, and
hereby agrees that until the termination of this Agreement, it shall
not enter into, any agreement with any other Person (other than the
Collateral Agent) relating to the Account (and/or any financial assets
credited thereto) pursuant to which the Securities Intermediary has
agreed or would agree, as the case may be, to comply with entitlement
orders made by such Person. The Securities Intermediary has not entered
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into any other agreement with the Company or any other Person
purporting to limit or condition the obligation of or the Securities
Intermediary to comply with entitlement orders as set forth in this
Agreement.
SECTION 9. MAINTENANCE OF ACCOUNT. In addition to, and not in
lieu of, the obligation of the Securities Intermediary to honor entitlement
orders as agreed in SECTION 2 of this Agreement, the Securities Intermediary
agrees to maintain the Account as follows:
(a) NOTICE OF SOLE CONTROL. If at any time the Collateral
Agent delivers to the Securities Intermediary a Notice of Sole Control
(a "NOTICE OF SOLE CONTROL") in substantially the form set forth in
EXHIBIT A to this Agreement, the Securities Intermediary agrees that,
after receipt of such notice and until it receives a Notice of End of
Sole Control (a "NOTICE OF END OF SOLE CONTROL") in substantially the
form set forth in EXHIBIT B to this Agreement, it shall comply only
with entitlement orders and other instructions originated by the
Collateral Agent. To the extent that an entitlement order given by the
Company has not been fully implemented at any time that the Securities
Intermediary receives a Notice of Sole Control, the Securities
Intermediary shall immediately cease implementing such entitlement
order of the Company. Following the receipt by the Securities
Intermediary of a Notice of End of Sole Control and unless and until a
subsequent Notice of Sole Control is received by the Securities
Intermediary, then the Securities Intermediary shall again, subject to
SECTION 2 of this Agreement, follow the entitlement request originated
by the Company.
(b) STATEMENTS AND CONFIRMATIONS. The Securities Intermediary
shall promptly send copies of all statements, confirmations and other
correspondence concerning the Account and/or any financial assets
credited thereto simultaneously to each of the Company and the
Collateral Agent at the address set forth in SECTION 14 of this
Agreement.
(c) TAX REPORTING. All items of income, gain, expense and loss
recognized in the Account shall be reported to the Internal Revenue
Service by the Company and all state and local taxing authorities under
the name and taxpayer identification number of the Company.
SECTION 10. RESPONSIBILITIES OF THE SECURITIES INTERMEDIARY.
The Securities Intermediary undertakes to perform only such duties as are
expressly set forth herein and the Securities Intermediary shall not be bound by
any agreement between the Collateral Agent and the Company or any other parties
to which the Securities Intermediary is not a party, whether or not the
Securities Intermediary has knowledge thereof. Notwithstanding any other
provision of this Agreement, it is agreed by the parties hereto that the
Securities Intermediary shall not be liable for any action taken by it or any of
its directors, officers, agents or employees in accordance with this Agreement,
including without limitation, any action so taken at the request of the
Collateral Agent, except for the Securities Intermediary's or such Person's own
gross negligence or willful misconduct. Accordingly, the Securities Intermediary
shall not incur any such liability with respect to (i) any action taken or
omitted to be taken in good faith upon the advice of its counsel or counsel for
the Collateral Agent given with respect to the duties or responsibilities of the
Collateral Agent hereunder, or (ii) any action taken or omitted to be taken in
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reliance on any document, including any entitlement order, Notice of Sole
Control or Notice of End of Sole Control provided for in this Agreement, not
only as to its due execution and to the validity and effectiveness of its
provisions, but also the truth and accuracy of any information contained
therein, which the Securities Intermediary shall in good faith believe to be
genuine, to have been signed or presented by the proper Person or Persons. The
Securities Intermediary shall have no responsibility or liability for complying
with a Notice of Sole Control or a Notice of End of Sole Control or for
complying with entitlement orders concerning the financial assets originated by
the Collateral Agent.
The Securities Intermediary shall be deemed to have exercised
reasonable care in the custody and preservation of the Account and financial
assets in its possession if the Account and financial assets are accorded
treatment substantially equal to that which the Securities Intermediary accords
to similar property held by it as Securities Intermediary or in a comparable
capacity, it being understood that the Securities Intermediary shall not have
any responsibility for (a) ascertaining or taking any action with respect to
calls, conversions, exchanges, maturities or similar matters relative to any
financial assets held in the Account, whether or not the Securities Intermediary
has or is deemed to have knowledge or notice of such matters or (b) taking any
steps to maintain the value of any property held in the Account or to preserve
rights against any parties with respect thereto. The Securities Intermediary
shall have no duty to see to the payment or discharge of any tax assessment or
other governmental charge, or any other lien or encumbrance of any kind, owing,
asserted or levied against, the Account or any financial assets held therein.
The Securities Intermediary makes no representation as to the legality or
validity of any document or agreement to which it is not a party or this
Agreement (other than as to itself), the validity sufficiency of any financial
assets held in the Account or the value of the Account or any financial asset
held therein or credited thereto.
SECTION 11. INDEMNIFICATION.
(a) The Company agrees to pay, indemnify and hold the
Securities Intermediary and each director, officer, employee, agent,
bailee or other person acting on behalf of the Securities Intermediary,
and each stockholder of any thereof, harmless from and against any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, the
reasonable fees and disbursements of counsel and other advisers) or
disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of
this Agreement, including, without limitation, any amendment hereto; or
in connection with the transactions contemplated by (i) this Agreement;
or (ii) any other agreements to which the Company is a party and which
are related to the financing of the Company that is closing in
connection with the execution and delivery of this Agreement (including
arising from the ordinary negligence of the person seeking
indemnification), except to the extent caused by the gross negligence
or willful misconduct of the person seeking indemnification.
(b) The obligations of the Company under this SECTION 11 shall
survive the termination or modification of the other provisions of this
Agreement and shall survive the commencement of a case under any
applicable bankruptcy law on behalf of or against the Company or any
other proceeding for the reorganization, management, adjustment of
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debt, dissolution or liquidation on behalf of or against any such
Person and shall survive any dissolution of any such Person and shall
survive the resignation or removal of the Securities Intermediary.
(c) The Collateral Agent shall have no liability (other than
for its own gross negligence or willful misconduct) or duty to the
Securities Intermediary, including without limitation under clauses (a)
and (b) of this SECTION 11.
SECTION 12. SUCCESSORS AND ASSIGNS. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
SECTION 13. TERMINATION. The rights and powers granted herein
to the Collateral Agent have been granted in order to perfect its security
interests in the Account, are powers coupled with an interest and, except as
otherwise provided by mandatory provisions of applicable law, shall neither be
affected by the bankruptcy of the Company nor the lapse of time. The obligations
of the Securities Intermediary hereunder shall continue in effect until the
security interests of the Collateral Agent in the Account have been terminated
and the Collateral Agent has notified the Securities Intermediary of such
termination in writing, substantially in the form of EXHIBIT C to this
Agreement. Upon receipt of such notice, the Collateral Agent shall have no
further right to originate entitlement orders concerning the Account.
Notwithstanding the foregoing, the Securities Intermediary may cease to act as
Securities Intermediary hereunder and terminate this Agreement by giving the
Company and the Collateral Agent not less than thirty (30) days notice thereof.
SECTION 14. NOTICES. All notices, requests and other
communications provided for herein shall be given or made in writing (including,
without limitation, by telex or telecopy) delivered to the intended recipient at
the "Address for Notices" as specified under its name on the signature page
hereto or, as to any party, at such other address as shall be designated by such
party in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telex or telecopier (with a confirming copy sent the same day by
recognized overnight delivery service, charges prepaid) or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
SECTION 15. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts. Delivery of an executed counterpart of a
signature page of this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 16. TITLES AND HEADINGS. Titles and headings to
Sections and subsections herein are inserted for convenience of reference only
and are not intended to be a part of or to affect the meaning or interpretation
of this Agreement.
SECTION 17. ENTIRE AGREEMENT. This Agreement is the entire
agreement among the parties hereto regarding the subject matter hereof and
supersedes any prior agreements and contemporaneous oral agreements regarding
its subject matter.
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IN WITNESS WHEREOF, the Company, the Securities Intermediary
and the Collateral Agent have caused this Agreement to be duly executed by their
duly authorized officers all as of the date first above written.
BGLS INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ADDRESS FOR NOTICES:
000 X.X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Executive Vice President
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UNITED STATES TRUST COMPANY OF NEW YORK,
as Collateral Agent
By: /s/ XXXXXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Assistant Vice President
Address for Notices:
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxx
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BANK OF AMERICA, N.A.
as Securities Intermediary
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: SVP
Address for Notices
Bank of America, N.A.
000 XxXxxxx Xxxxxx
Mail Code: IL-231-04-02
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 (Xxxxxxxx)
Telephone: (000) 000-0000 (Xxxxxxx)
Telephone: (000) 000-0000 (Hemeter)
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XXXXXXX X
[Xxxxxxxxxx xx Xxxxxx Xxxxxx Trust Company of New York]
[Date]
Bank of America, N.A.
000 XxXxxxx Xxxxxx
Mail Code: IL-231-04-02
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Re: NOTICE OF SOLE CONTROL
Ladies and Gentlemen:
As referenced in the Account Control Agreement, dated May 14,
2001, among BGLS Inc., us and you (a copy of which is attached) we hereby give
you notice of our sole control over account number ________________ (the
"ACCOUNT") and all financial assets credited thereto. You are hereby instructed
not to accept, and to cease implementing immediately, any entitlement orders or
other instructions with respect to the Account or the financial assets credited
thereto from any person other than the undersigned, unless otherwise ordered by
a court of competent jurisdiction.
Very truly yours,
United States Trust Company of New York
By:
-------------------------------------
Name:
Title:
cc: BGLS Inc.
00
XXXXXXX X
[Xxxxxxxxxx xx Xxxxxx Xxxxxx Trust Company of New York]
[Date]
Bank of America, N.A.
000 XxXxxxx Xxxxxx
Mail Code: IL-231-04-02
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Re: NOTICE OF END OF SOLE CONTROL
Ladies and Gentlemen:
As referenced in the Account Control Agreement, dated May 14,
2001 (the "AGREEMENT"), among BGLS Inc., us and you (a copy of which is
attached) we hereby give you notice of the end of our sole control over account
number ________________ (the "ACCOUNT") and all financial assets credited
thereto. Accordingly, subject to the delivery of a Notice of Sole Control in the
future, the limitations of SECTION 8(A) of this Agreement as to your following
entitlement orders of the Company shall no longer apply.
Very truly yours,
United States Trust Company of New York
By:
------------------------------------
Name:
Title:
cc: BGLS Inc.
00
XXXXXXX X
[Xxxxxxxxxx xx Xxxxxx Xxxxxx Trust Company of New York]
[Date]
Bank of America, N.A.
000 XxXxxxx Xxxxxx
Mail Code: IL-231-04-02
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Re: NOTICE OF TERMINATION
Ladies and Gentlemen:
As referenced in the Account Control Agreement, dated May 14,
2001 among BGLS Inc., us and you (a copy of which is attached) we hereby give
you notice that the security interests of the Collateral Agent in account number
________________ (the "ACCOUNT") have been terminated and the Collateral Agent
has no further right to originate entitlement orders concerning the Account.
Very truly yours,
United States Trust Company of New York
By:
-----------------------------------
Name:
Title:
cc: BGLS Inc.
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Exhibit D
PERMITTED SECURITIES
1. Direct noncallable obligations of, or noncallable obligations
guaranteed by, the United States of America or agencies thereof for
timely payment of which obligation or guarantee the full faith and
credit of the United States of America or such agency is pledged.
2. Investments in commercial paper or master notes maturing within 270
days from the date of acquisition thereof and having (or the issuer
thereof having), at such date of acquisition, the highest credit rating
obtainable from Standard & Poor's Rating Group or from Xxxxx'x Investor
Services, Inc.
3. Investments in certificates of deposit, banker's acceptances, time
deposits or "late cash" deposits/funding agreements maturing or
puttable to the issuer thereof within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of, or licensed to conduct
a banking or trust business in, the United States of America or any
State thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000 whose long-term debt is rated at
least "A" or the equivalent thereof by both Standard & Poor's Rating
Group and Xxxxx'x Investors Service, Inc.
4. Fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (1) above and entered into
with a financial institution satisfying the criteria described in
clause (3) above.
5. Investments in the Nations Funds Cash Reserves Money Market Mutual
Fund.
