Distribution of Escrowed Property. Subject to Section 1.03(e), the Escrow Agent is directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner: (a) The Escrow Agent will release the Escrowed Property only as specifically provided for in this Section 1.05. All release and disbursement instructions and Entitlement Orders delivered to Escrow Agent shall specify (i) the amount to be disbursed, (ii) the date of disbursement, (iii) the recipient(s) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth at length, but may instead reference Section 1.07. (b) Upon the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate (such delivery to be in accordance with Section 3.01 hereof), substantially in the form attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereof) of the Grantor, to the Trustee and the Escrow Agent, confirming that all of the following conditions (collectively, the “Escrow Conditions”) have been satisfied or will be satisfied substantially concurrently with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”): (i) the consummation of the Acquisition pursuant to the Acquisition Agreement (as defined in the Indenture); (ii) the consummation of borrowings under the Credit Agreement (as defined in the Indenture) with terms consistent in all material respects with those described in the Offering Memorandum; (iii) the execution and delivery by the Company of a supplemental indenture pursuant to which it shall assume the obligations of the Grantor under the Indenture and the Notes; (iv) the execution and delivery by each Domestic Subsidiary (as defined in the Indenture) of the Company that guarantees Indebtedness (as defined in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party to the Indenture and (B) a joinder agreement under which it will become a party to the Purchase Agreement; and (v) the delivery by or at the request of the Grantor of certain opinions of its counsel to the Initial Purchasers as required under Section 5 of the Purchase Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Account, and the funds shall be released upon certification, as set forth in the Officers’ Certificate, that such steps will occur during the day thereafter. (c) Promptly upon receipt of the Officers’ Certificate from the Grantor, the Escrow Agent will cause the liquidation of all investments, if any, of Escrowed Property then held by it and cause the release of all of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate. (d) If the Escrow Conditions have not been satisfied on or prior to the Outside Date, the Escrow Agent will, upon receipt of written notification from the Grantor that such conditions have not been satisfied, which the Grantor shall be required to provide (or if the Escrow Agent receives written notice pursuant to Section 1.05(e) prior to such time), cause the liquidation of all investments of Escrowed Property then held by it on or before noon on the Business Day immediately prior to September 5, 2018 and cause the release of all of the Escrowed Property as follows: (i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment to the holders of the Notes in accordance with the special mandatory redemption provision contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver, or cause to be delivered, to the Paying Agent, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and (ii) second, to the Grantor, any Escrowed Property remaining after distributions in clause (d) (i) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof. (e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, that the conditions contained in clause (b) of this Section 1.05 will not be satisfied on or prior to the Outside Date, in which case the Grantor shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemption, the Escrow Agent will, on or before noon on the Business Day immediately prior to the date fixed for such special mandatory redemption, cause the liquidation of all investments of Escrowed Property then held by the Financial Institution and release all of the Escrowed Property as follows: (i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (as specified in such instructions from the Trustee) for payment to the holders of the Notes in accordance with the redemption provisions contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and (ii) second, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(d)(i), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof. (f) If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have become immediately due and payable pursuant to Article 6 of the Indenture, then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of all Escrowed Property then held by the Financial Institution and cause the release of all of the Escrowed Property as follows: (i) first, to the Escrow Agent and the Trustee, an amount of Escrowed Property in cash equal to amounts due and owing to the Escrow Agent and Trustee (as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the Indenture, as the case may be; (ii) second, upon the written direction of the Trustee, to the Paying Agent for payment to the holders of the Notes, an amount of Escrowed Property sufficient to pay such accelerated principal amount and interest, if any, thereon; such release of Escrowed Property to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and (iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof. (g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document. (h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the applicable Authorized Person. The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delay.
Appears in 2 contracts
Samples: Escrow and Security Agreement, Escrow and Security Agreement (TopBuild Corp)
Distribution of Escrowed Property. Subject to Section 1.03(e), the The Escrow Agent is and the Intermediary are directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner:
(a) The Escrow Agent will release the Escrowed Property only as specifically provided for in this Section 1.05. All release and disbursement instructions and Entitlement Orders delivered to Escrow Agent shall specify (i) the amount to be disbursed, (ii) the date of disbursement, (iii) the recipient(s) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth if at length, but may instead reference Section 1.07.
(b) Upon the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate (such delivery to be in accordance with Section 3.01 hereof), substantially in the form attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereof) of the Grantor, to the Trustee and the Escrow Agent, confirming that all of the following conditions (collectively, the “Escrow Conditions”) have been satisfied or will be satisfied substantially concurrently with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”):
(i) the consummation of the Acquisition pursuant to the Acquisition Agreement (as defined in the Indenture);
(ii) the consummation of borrowings under the Credit Agreement (as defined in the Indenture) with terms consistent in all material respects with those described in the Offering Memorandum;
(iii) the execution and delivery by the Company of a supplemental indenture pursuant to which it shall assume the obligations of the Grantor under the Indenture and the Notes;
(iv) the execution and delivery by each Domestic Subsidiary (as defined in the Indenture) of the Company that guarantees Indebtedness (as defined in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party to the Indenture and (B) a joinder agreement under which it will become a party to the Purchase Agreement; and
(v) the delivery by or at the request of the Grantor of certain opinions of its counsel to the Initial Purchasers as required under Section 5 of the Purchase Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Account, and the funds shall be released upon certification, as set forth in the Officers’ Certificate, that such steps will occur during the day thereafter.
(c) Promptly upon receipt of the Officers’ Certificate from the Grantor, the Escrow Agent will cause the liquidation of all investments, if any, of Escrowed Property then held by it and cause the release of all of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate.
(d) If the Escrow Conditions have not been satisfied any time on or prior to the Outside Escrow End Date, the Escrow Agent will, upon receipt of written notification receives an officer’s certificate no later than 3:00 p.m. (New York City time) from the Grantor that such conditions have not been satisfiedCompany substantially in the form of Exhibit B, which and dated the Grantor shall be required date of delivery thereof, executed by an Authorized Person and certifying to provide (or if the Escrow Agent receives as to the matters set forth therein (an “Officer’s Certificate”) (the date of delivery of such Officer’s Certificate to the Escrow Agent is hereinafter called the “Escrow Release Date”), and a written notice pursuant to Section 1.05(e) prior to such timesubstantially in the form of Exhibit C, executed by an Authorized Person of the Company (a “Release Notice”), cause the liquidation of all investments of Escrowed Property then held by it on or before noon Escrow Agent and the Intermediary shall, not later than 11:00 a.m. (New York City time) on the Business Day immediately prior to September 5next succeeding the Escrow Release Date, 2018 release and cause the release of all of deliver the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment to the holders of the Notes in accordance with the special mandatory redemption provision contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in the case of cash) as directed and in the manner set forth in the Release Notice from the Company;
(b) if (A) the Escrow Agent shall not have received pursuant to subsection (a) of this Section 5 an Officer’s Certificate from the Company substantially in the form of Exhibit B hereto on or prior to the Escrow End Date, (B) the Company shall have notified the Escrow Agent in writing pursuant to a Release Notice that the Company will not pursue the consummation of the Acquisition or (C) the Company fails to timely deposit (or cause to be timely deposited) any Additional Amounts required under Section 3(b) hereof (provided that any deposit of an Additional Amount shall be considered timely if made within three Business Days of the applicable deposit date as provided in Section 3(b) hereof) (each of the events described in the foregoing clauses (A), (B) and (C) of this subsection, a “Special Mandatory Redemption Event”), the Escrow Agent and the Intermediary shall, without the requirement of notice to or action by the Company, the Trustee or any other Person, release and deliver (by wire transfer of immediately available funds or via internal transfer) the Escrowed Property to the Trustee pursuant to the wire and delivery instructions provided on Schedule II hereto, as such Schedule II may be amended by the Trustee from time to time in accordance with the wire provisions of Section 9(g) hereof, not later than 11:00 a.m. (New York City time) on the third Business Day succeeding (x) the Escrow End Date (in the case of clause (A) of this subsection), (y) the date of such Release Notice (in the case of clause (B) of this subsection) (the date of such release, the “Escrow Termination Date”) or (z) the date the Additional Amounts were required to be deposited under Section 3(b) hereof (in the case of Clause (C) of this subsection) and the Trustee agrees to apply, or cause a Paying Agent to apply, such funds to redeem all of the Notes at the Special Mandatory Redemption Price on the Special Mandatory Redemption Date in accordance with the provisions of the Indenture and the Notes. None of the Escrow Agent, Trustee, Paying Agent or Intermediary shall be responsible for calculating amounts to be disbursed hereunder, and each shall be entitled to rely on written instructions set forth from the Company delivered in Section 1.07 hereof; accordance with this Agreement, which instructions shall include wiring instructions, if not provided that if for herein or in certificates delivered pursuant to this Agreement;
(c) following the amount release of the Escrowed Property is less than the amount required to be paid for the in connection with a Special Mandatory Redemption PriceEvent, the Grantor Trustee will deliver, or cause to be delivered, transfer to the Paying Agent, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in clause (d) (i) aboveCompany, by wire transfer of immediately available funds prior to 2:00 p.m. (New York City time) on the Special Mandatory Redemption Date, any Escrow Proceeds in accordance with excess of the amount necessary to effect the Special Mandatory Redemption;
(d) if (x) the Company has not delivered a Release Notice pursuant to Section 5(a) hereof or (y) a Special Mandatory Redemption Event has not occurred, in each case, prior to 5:00 p.m. (New York City time) on March 14, 2013, the Escrow Agent shall by no later than 10:00 a.m. (New York City time) on March 15, 2013, without any action of the Company, transfer to the Trustee, in immediately available funds, Escrowed Property in an amount in cash equal to $4,278,958.33 (representing the interest payment due on Notes on such date) pursuant to the wire and delivery instructions set forth in Section 1.07 hereof.(or via internal transfer) provided on Schedule II hereto; and
(e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, Company agrees that the conditions contained in clause (b) of this Section 1.05 will not be satisfied on any time it delivers an Officer’s Certificate or prior to the Outside Date, in which case the Grantor shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemption, the Escrow Agent will, on or before noon on the Business Day immediately prior to the date fixed for such special mandatory redemption, cause the liquidation of all investments of Escrowed Property then held by the Financial Institution and release all of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (as specified in such instructions from the Trustee) for payment to the holders of the Notes in accordance with the redemption provisions contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(d)(i), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(f) If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have become immediately due and payable pursuant to Article 6 of the Indenture, then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of all Escrowed Property then held by the Financial Institution and cause the release of all of the Escrowed Property as follows:
(i) first, Release Notice to the Escrow Agent and Intermediary under this Section 5, it shall simultaneously deliver a copy of such Officer’s Certificate or Release Notice to the Trustee, an amount of Escrowed Property in cash equal to amounts due and owing to the Escrow Agent and Trustee (as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the Indenture, as the case may be;
(ii) second, upon the written direction of the Trustee, to the Paying Agent for payment to the holders of the Notes, an amount of Escrowed Property sufficient to pay such accelerated principal amount and interest, if any, thereon; such release of Escrowed Property to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and
(iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document.
(h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the applicable Authorized Person. The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delay.
Appears in 1 contract
Samples: Escrow Agreement (Gencorp Inc)
Distribution of Escrowed Property. Subject to Section 1.03(e), the The Escrow Agent is directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner:
(a) The Escrow Agent will release if at or prior to 2:00 p.m. (New York City time) on the Escrowed Property only as specifically provided for in this Section 1.05. All release and disbursement instructions and Entitlement Orders delivered to Escrow Agent shall specify (i) the amount to be disbursed, (ii) the date of disbursement, (iii) the recipient(s) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth at length, but may instead reference Section 1.07.
(b) Upon the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate (such delivery to be in accordance with Section 3.01 hereof), substantially in the form attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereof) of the Grantor, to the Trustee and the Escrow Agent, confirming that all of the following conditions (collectively, the “Escrow Conditions”) have been satisfied or will be satisfied substantially concurrently with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”):
(i) the consummation of the Acquisition pursuant to the Acquisition Agreement (as defined in the Indenture);
(ii) the consummation of borrowings under the Credit Agreement (as defined in the Indenture) with terms consistent in all material respects with those described in the Offering Memorandum;
(iii) the execution and delivery by the Company of a supplemental indenture pursuant to which it shall assume the obligations of the Grantor under the Indenture and the Notes;
(iv) the execution and delivery by each Domestic Subsidiary (as defined in the Indenture) of the Company that guarantees Indebtedness (as defined in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party to the Indenture and (B) a joinder agreement under which it will become a party to the Purchase Agreement; and
(v) the delivery by or at the request of the Grantor of certain opinions of its counsel to the Initial Purchasers as required under Section 5 of the Purchase Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Account, and the funds shall be released upon certification, as set forth in the Officers’ Certificate, that such steps will occur during the day thereafter.
(c) Promptly upon receipt of the Officers’ Certificate from the Grantor, the Escrow Agent will cause the liquidation of all investments, if any, of Escrowed Property then held by it and cause the release of all of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate.
(d) If the Escrow Conditions have not been satisfied on or Business Day prior to the Outside Date, the Escrow Agent will, upon receipt of written notification receives an officers’ certificate from the Grantor that such conditions have not been satisfiedCompany substantially in the form of Exhibit B, which dated as of the Grantor shall date the Escrowed Property is to be required released (the “Escrow Release Date”) pursuant to provide the Release Notice (or if as defined below), executed by Authorized Officers of the Company and certifying to the Escrow Agent receives as to the matters set forth therein (an “Officers’ Certificate”), and a written notice pursuant to Section 1.05(e) prior to such timesubstantially in the form of Exhibit C, executed by Authorized Officers of the Company (a “Release Notice”), cause the liquidation of all investments of Escrowed Property then held by it on or before noon on Escrow Agent shall, provided that the Business Day immediately prior to September 5Release Notice has been received, 2018 and cause the release of all of the Escrowed Property as follows:
(i) first, to directed and in the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment to the holders of the Notes in accordance with the special mandatory redemption provision contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions manner set forth in Section 1.07 hereofthe Release Notice and the Officers’ Certificate from the Company; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver, or cause to be delivered, to the Paying Agent, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; andor
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in clause (d) (i) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, that the conditions contained in clause (b) of this if (A) the Escrow Agent shall not have received an Officers’ Certificate pursuant to Section 1.05 will not be satisfied 5(a) on or prior to the Outside Date, in which case (B) the Grantor Company shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemption, the Escrow Agent will, on or before noon on the Business Day immediately prior to the date fixed for such special mandatory redemption, cause the liquidation of all investments of Escrowed Property then held by the Financial Institution and release all of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (as specified in such instructions from the Trustee) for payment to the holders of the Notes in accordance with the redemption provisions contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(d)(i), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(f) If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have become immediately due and payable pursuant to Article 6 of the Indenture, then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of all Escrowed Property then held by the Financial Institution and cause the release of all of the Escrowed Property as follows:
(i) first, to notified the Escrow Agent and the Trustee, Trustee in writing in the form of an Officers’ Certificate (which may be a Release Notice) stating that (x) the Company will not pursue the consummation of the Acquisition (as defined in the Unsecured Notes Indenture) or (y) the Merger Agreement has been or will be terminated or (C) the Trustee has received a request of the holders of a majority in principal amount of Escrowed Property in cash equal to amounts due the Unsecured Notes then outstanding following any declaration of the acceleration of the Unsecured Notes under Section 6.02 of the Unsecured Notes Indenture that has not been rescinded, and owing the Trustee shall have delivered to the Escrow Agent a notice in the form of Exhibit D hereto (upon which the Escrow Agent shall rely conclusively and without further inquiry) (each of the events described in the foregoing clauses (A), (B) and (C), a “Special Mandatory Redemption Event”), the Escrow Agent shall, as provided in this section, release the Escrowed Property (including any investment earnings) to the Trustee on such date pursuant to the wire and delivery instructions provided on Schedule II hereto (the date of such release, the “Escrow Termination Date”).
(c) The Company shall deliver the Officers’ Certificate (or the Release Notice, as applicable) pursuant to Section 5(b)(B) no later than the Business Day immediately following the date of the Company’s determination referenced therein.
(d) Following the release of the Escrowed Property in connection with a Special Mandatory Redemption Event, any Excess Escrowed Property in excess of any fees, expenses or other amounts payable under the Unsecured Notes Indenture or hereunder in connection therewith or as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the Indenture, as the case may be;
(ii) second, upon the written direction of the Trustee, to the Paying Agent for payment to the holders of the Notes, an amount of Escrowed Property sufficient to pay such accelerated principal amount and interest, if any, thereon; such release of Escrowed Property to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and
(iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii8(d), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document.
(h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained returned by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the applicable Authorized Person. The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delayCompany.
Appears in 1 contract
Distribution of Escrowed Property. Subject to Section 1.03(e), the The Escrow Agent is directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner:
(a) The Escrow Agent will only release the Escrowed Property only as in the cases specifically provided for in this Section 1.05. All release and disbursement instructions and Entitlement Orders delivered to Escrow Agent shall specify (i) the amount to be disbursed, (ii) the date of disbursement, (iii) the recipient(s) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth at length, but may instead reference Section 1.074.
(b) Upon The Escrow Agent will promptly arrange for the release (the “Escrow Release”) of the Escrowed Property (the “Release Amount”) to the Grantor upon receipt of an Officer’s Certificate evidencing the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate conditions (such delivery to be in accordance with Section 3.01 hereof), substantially in the form of which is attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereofhereto) of from the Grantor, Grantor to the Trustee and the Escrow Agent, confirming which certificate shall confirm that all of the following conditions have been met:
(collectively, i) all conditions precedent to the “Escrow Conditions”) Mergers have been satisfied or will be satisfied substantially concurrently waived in accordance with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”):
(i) the consummation of the Acquisition pursuant to the Acquisition Merger Agreement (defined below) on substantially the same terms as defined described in the Indenture)Offering Circular;
(ii) substantially concurrently with the consummation of borrowings under Escrow Release, the Credit additional entities listed on Schedule IV to the Purchase Agreement (as defined in the Indenture“Additional Guarantors”) with terms consistent in all material respects with those described in the Offering Memorandum;
(iii) the execution and delivery by the Company of will have executed a supplemental indenture to the Indenture (the “Supplemental Indenture”) pursuant to which it shall assume the Additional Guarantors will fully and unconditionally guarantee, as to the payment of principal, premium, if any, and interest, on a senior secured basis, jointly and severally, all of the obligations of the Grantor under the Indenture effective as of and from the Notesconsummation of the Mergers;
(iii) substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a joinder to the Purchase Agreement and will have delivered such joinder to the Initial Purchasers;
(iv) substantially concurrently with the execution Escrow Release, the Grantor and delivery by each Domestic Subsidiary (as defined in the Indenture) Additional Guarantors will have delivered any Opinion of Counsel and Officer’s Certificate that are required to be delivered pursuant to the terms of the Company that guarantees Indebtedness Indenture in connection with the Supplemental Indenture;
(as defined v) substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered Opinions of Counsel in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party form and substance reasonably satisfactory to the Indenture and (B) a joinder agreement under which it will become a party Initial Purchasers, addressed to the Purchase AgreementInitial Purchasers;
(vi) substantially concurrently with the Escrow Release, the Initial Purchasers will have received customary secretary’s certificates from the Grantor and the Additional Guarantors in form and substance reasonably satisfactory to the Initial Purchasers; and
(vvii) the delivery by or at the request stating that all of the Grantor of certain opinions of its counsel conditions precedent to the Initial Purchasers as required under Section 5 of Escrow Release have been satisfied. In addition, the Purchase wire instructions for the Release Amount are stated in Exhibit B to this Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Account, and the funds shall be released upon certification, as set forth in the Officers’ Certificate, that such steps will occur during the day thereafter.
(c) Promptly upon receipt of the Officers’ Certificate from the Grantor, the Escrow Agent will cause the liquidation of all investments, if any, of Escrowed Property then held by it and cause the release of all of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate.
(d) If the Escrow Conditions conditions contained in clause (b) have not been satisfied on or prior to before the Outside DateDeadline (as defined below), the Escrow Agent will, upon receipt of written notification from the Grantor that such conditions have not been satisfied, which the Grantor shall be required to provide (or if the Escrow Agent receives written notice pursuant to Section 1.05(e) prior to such time), cause the liquidation of all investments of Escrowed Property then held by it on or before noon on the Business Day immediately prior to September 5, 2018 and cause will arrange for the release of all or a portion of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment Price, as determined by the Grantor and provided to the holders Escrow Agent in an Officer’s Certificate, to the Trustee under the Indenture and the Escrow Agent for payment, on behalf of the Grantor, to Holders of the Notes to redeem the designated principal amount of the Notes in accordance with the special mandatory escrow redemption provision contained in Section 3.09 of the Indenture; such . After the Deadline, upon the written request of the Grantor, the Escrow Agent will promptly arrange for the release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the any amount of the Escrowed Property is less than the amount in excess of, or not otherwise required to be paid for applied to, the Special Mandatory Redemption Price, the Grantor will deliver, or cause to be delivered, to the Paying Agent, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) secondif any, to the Grantor, any Escrowed Property remaining after distributions as directed in clause (d) (i) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, that the conditions contained in clause (b) of this Section 1.05 will not be satisfied on or prior to the Outside Date, in which case the Grantor shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemption, the Escrow Agent will, on or before noon on the Business Day immediately prior to the date fixed for such special mandatory redemption, cause the liquidation of all investments of Escrowed Property then held by the Financial Institution and release all of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (as specified in such instructions from the Trustee) for payment to the holders of the Notes in accordance with the redemption provisions contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(d)(i), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(f) If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have become immediately due and payable pursuant to Article 6 of the Indenture, then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of all Escrowed Property then held by the Financial Institution and cause the release of all of the Escrowed Property as follows:
(i) first, to the Escrow Agent and the Trustee, an amount of Escrowed Property in cash equal to amounts due and owing to the Escrow Agent and Trustee (as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the Indenture, as the case may be;
(ii) second, upon the written direction of the Trustee, to the Paying Agent for payment to the holders of the Notes, an amount of Escrowed Property sufficient to pay such accelerated principal amount and interest, if any, thereon; such release of Escrowed Property to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and
(iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document.
(h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the applicable Authorized Person. The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delay.
Appears in 1 contract
Samples: Escrow and Security Agreement (Ritchie Bros Auctioneers Inc)
Distribution of Escrowed Property. Subject to Section 1.03(e), the Escrow Agent is directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner:
(a) The Escrow Agent will release the Escrowed Property only as specifically provided for the date of such proposed release being the “Release Date”) in this Section 1.05. All release the manner set forth below:
A. To ACCO (or its designee), upon the directions of the Trustee in a written statement (substantially in the form of Exhibit B hereto) (and disbursement instructions and Entitlement Orders delivered to the Escrow Agent shall specify will, as soon as practicable and except as contemplated in Paragraph 4.C below, comply with any such direction by the Trustee), as soon as practicable upon receipt on or prior to the Special Mandatory Redemption Date in connection with the Escrow Merger (the date of such being the “Assumption Date”) of a direction to do so from the Trustee, following the Trustee’s receipt of:
(1) an Officers’ Certificate of ACCO, dated the Release Date, substantially in the form of Exhibit C hereto;
(2) a certificate of the Secretary of each of GBC and each subsidiary of GBC that will become a Guarantor dated the Release Date and substantially in the form of Exhibit D hereto;
(3) legal opinions, dated the Release Date and addressed to the Trustee, from (i) Skadden, Arps, Slate Xxxxxxx & Xxxx LLP substantially in the form attached hereto as Exhibit E-1 and (ii) Xxxxx Xxxxxx, Nevada counsel, substantially in the form attached hereto as Exhibit E-2; and
(4) copies of the filed documents or executed counterparts of assumption documentation, including (i) the amount to be disbursedCertificate of Merger, substantially in the form of Exhibit F hereto, previously filed with the Delaware Secretary of State, (ii) a supplemental indenture (the date “Supplemental Indenture”), substantially in the form of disbursement, Exhibit G hereto and (iii) a joinder to the recipient(sRegistration Rights Agreement (the “Joinder”) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth at length, but may instead reference Section 1.07.
(b) Upon the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate (such delivery to be in accordance with Section 3.01 hereof), substantially in the form attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereof) of the Grantor, to the Trustee and the Escrow Agent, confirming that all Registration Rights Agreement (each of the following conditions (collectivelyi) through (iii), the “Escrow ConditionsAssumption Documentation”) have been satisfied or will be satisfied substantially concurrently with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”):
(i) ), evidencing the consummation of the Acquisition pursuant to Escrow Merger and the Acquisition Agreement (as defined in assumption of the Indenture);
(ii) the consummation of borrowings obligations under the Credit Agreement (Notes or the guarantees, as defined in the Indenture) with terms consistent in all material respects with those described in the Offering Memorandum;
(iii) the execution and delivery by the Company of a supplemental indenture pursuant to which it shall assume the obligations of the Grantor under the Indenture and the Notes;
(iv) the execution and delivery by each Domestic Subsidiary (as defined in the Indenture) of the Company that guarantees Indebtedness (as defined in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party to the Indenture and (B) a joinder agreement under which it will become a party to the Purchase Agreement; and
(v) the delivery by or at the request of the Grantor of certain opinions of its counsel to the Initial Purchasers as required under Section 5 of the Purchase Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Accountapplicable, and the funds shall be released upon certification, as set forth in Indenture by ACCO and the Officers’ Certificate, that such steps will occur during Guarantors (the day thereafter“ACCO Assumption”).
(c) Promptly upon receipt of the Officers’ Certificate from the Grantor, B. If the Escrow Agent will cause receives a written notice from the liquidation of all investments, if any, of Escrowed Property then held by it and cause Depositor or the release of all Trustee that ACCO Finance is required to redeem the notes pursuant to Section 3.07 of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds Indenture (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate.
(d) If the Escrow Conditions have not been satisfied on or prior to the Outside Datea “Special Mandatory Redemption”), the Escrow Agent will, upon receipt of written notification from the Grantor provided that such conditions have not been satisfied, which the Grantor shall be required to provide (or if notice is received by the Escrow Agent receives written notice pursuant to Section 1.05(eat least one (1) Business Day prior to such time), cause the liquidation of all investments of Escrowed Property then held by it on or before noon on the Business Day immediately prior to September 5, 2018 and cause the desired release of all date of the Escrowed Property and except as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment to the holders of the Notes contemplated in accordance with the special mandatory redemption provision contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver, or cause to be delivered, to the Paying AgentParagraph 4.C below, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in clause (d) (i) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, that the conditions contained in clause (b) of this Section 1.05 will not be satisfied on or prior to the Outside Date, in which case the Grantor shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemptionSpecial Mandatory Redemption, the Escrow Agent will, on or before noon on the Business Day immediately prior release to the date fixed for such special mandatory redemption, cause the liquidation of all investments of Escrowed Property then held paying agent designated by the Financial Institution and release all of Trustee (the Escrowed Property as follows:
(i“Paying Agent”) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (as specified in such instructions notice from the Depositor and the Trustee) for payment to . Upon receipt of such notice, the holders of the Notes in accordance with the redemption provisions contained in Section 3.09 of the Indenture; such release of Escrow Agent will liquidate all Escrowed Property to the Paying Agent under the Indenture will be made held by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less it no later than the amount required Business Day prior to be paid for the Special Mandatory Redemption Price, the Grantor will deliver Date. Concurrently with such release to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiencyEscrow Agent will, in accordance with Section 3.07 such written instructions from the Depositor and the Trustee, release any excess of Escrowed Property over the Special Mandatory Redemption Price to ACCO (or its designee). The Depositor, ACCO and the Trustee recognize that (i) to the extent any Permitted Investments need to be sold to make the payment contemplated herein, the ability of the Indenture; and
Escrow Agent to make such payment may be delayed until such sale is settled, and (ii) second, the Escrow Agent will expect to receive instructions as to the Grantorsale of the Permitted Investments.
C. Notwithstanding Paragraphs 4.A and 4.B above, if the Escrow Agent receives timely written notice from the Trustee or the Depositor that a Default or Event of Default has occurred and is continuing, the Escrow Agent will not release any Escrowed Property remaining after distributions in Section 1.05(d)(i)to the Depositor unless and until the Escrow Agent receives a written notice from the Trustee that such Default or Event of Default is not continuing. The Escrow Agent does not, by wire transfer and will not be deemed to, assume any obligation or responsibility to investigate or monitor the occurrence or continued existence of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereofa Default or an Event of Default.
(f) D. If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have (the “Default Amount”) has become immediately due and payable pursuant to Article 6 Section 6.02 of the IndentureIndenture (an “Acceleration Event”) and either (i) a court of competent jurisdiction determines that the acceleration of the Notes was appropriate as a result of a bona fide Event of Default under the Indenture or (ii) such acceleration is not rescinded on or prior to the Special Mandatory Redemption Date (either such event, then a “Remedies Trigger Event”), the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of will liquidate all Escrowed Property then held by it within one (1) Business Day after it receives notice of such court determination or on the Financial Institution and cause Business Day after the release of all of the Escrowed Property as follows:
(i) first, to the Escrow Agent and the Trustee, an amount of Escrowed Property in cash equal to amounts due and owing to the Escrow Agent and Trustee (as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the IndentureSpecial Mandatory Redemption Date, as the case may be;
(ii) second, upon the written direction of the Trustee, and will release to the Paying Agent for payment to the holders of the Notes, Notes an amount of Escrowed Property sufficient to pay such accelerated principal amount the greater of the Default Amount and interest, if any, thereon; such the Special Mandatory Redemption Price (the “Payment Amount”). The Escrow Agent will contemporaneously release of all remaining Escrowed Property in excess of such Payment Amount to ACCO (or its designee). If the Escrow Agent receives a written notice that a Special Mandatory Redemption is to occur, this Paragraph 4.D and Paragraph 4.C will be of no further effect and all Escrowed Property then held by the Escrow Agent will be released in accordance with Paragraph 4.B.
E. In the event of (i) an Acceleration Event or (ii) a Change of Control (as defined in the Indenture), in either case occurring prior to a Remedies Trigger Event, (a) ACCO Finance (with the consent of ACCO) may, as its sole option, direct the Escrow Agent in a written instruction to liquidate the Escrowed Property and release to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and
(iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii), by wire transfer of immediately available funds in accordance with an amount sufficient for the wire instructions set forth in Section 1.07 hereof.
(g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document.
(h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct payment of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to Payment Amount and (b) if ACCO Finance so directs the Escrow Agent pursuant to clause (a) above and pays to the terms Paying Agent any additional amounts necessary to pay the full Payment Amount to the extent amounts released pursuant to clause (a) are insufficient to pay such full amount, or if ACCO Finance otherwise pays all of this Agreement such Payment Amount pursuant to such Acceleration Event or Change of Control and, in either case, delivers an Officer’s Certificate to the Escrow Agent to such effect, ACCO Finance may (other than x) in the case of an Acceleration Event, request the Escrow Agent to release to ACCO Finance and the Escrow Agent will as soon as practicable release to ACCO Finance all remaining Escrowed Property or (y) in the case of a Change of Control, request the Escrow Agent to release to ACCO and the Escrow Agent will as soon as practicable release to ACCO the excess of the remaining Escrowed Property over the amount necessary to pay the Special Mandatory Redemption Price with respect to fund transfers any Notes that remain outstanding following the consummation of the purchase of Notes in accordance with Section 4.08 of the Indenture in respect of such Change of Control.
F. Notwithstanding anything herein to the contrary, all notices to be made contemporaneously with the execution of this Agreement), regardless of the method used delivered to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back hereunder relating to the release of any amounts from the Escrow Account to any person will set forth the exact amount to be released to any such person (except that a notice in the form of Exhibit B hereto will be acceptable) and contain the applicable Authorized Personpayment instruction to such person. The Escrow Agent may require does not, and will not be deemed to, assume any party hereto which is entitled obligation or responsibility to direct independently confirm or verify (i) any amount set forth in any such notice or the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation accuracy of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability calculation set forth herein or (ii) the content or for such delayverification of any of the Exhibits attached hereto.
Appears in 1 contract
Samples: Escrow Agreement (Acco World Corp)
Distribution of Escrowed Property. Subject to Section 1.03(e), the The Escrow Agent is directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner:
(a) The Escrow Agent will release if at or prior to 2:00 p.m. (New York City time) on the Escrowed Property only as specifically provided for in this Section 1.05. All release and disbursement instructions and Entitlement Orders delivered to Escrow Agent shall specify (i) the amount to be disbursed, (ii) the date of disbursement, (iii) the recipient(s) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth at length, but may instead reference Section 1.07.
(b) Upon the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate (such delivery to be in accordance with Section 3.01 hereof), substantially in the form attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereof) of the Grantor, to the Trustee and the Escrow Agent, confirming that all of the following conditions (collectively, the “Escrow Conditions”) have been satisfied or will be satisfied substantially concurrently with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”):
(i) the consummation of the Acquisition pursuant to the Acquisition Agreement (as defined in the Indenture);
(ii) the consummation of borrowings under the Credit Agreement (as defined in the Indenture) with terms consistent in all material respects with those described in the Offering Memorandum;
(iii) the execution and delivery by the Company of a supplemental indenture pursuant to which it shall assume the obligations of the Grantor under the Indenture and the Notes;
(iv) the execution and delivery by each Domestic Subsidiary (as defined in the Indenture) of the Company that guarantees Indebtedness (as defined in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party to the Indenture and (B) a joinder agreement under which it will become a party to the Purchase Agreement; and
(v) the delivery by or at the request of the Grantor of certain opinions of its counsel to the Initial Purchasers as required under Section 5 of the Purchase Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Account, and the funds shall be released upon certification, as set forth in the Officers’ Certificate, that such steps will occur during the day thereafter.
(c) Promptly upon receipt of the Officers’ Certificate from the Grantor, the Escrow Agent will cause the liquidation of all investments, if any, of Escrowed Property then held by it and cause the release of all of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate.
(d) If the Escrow Conditions have not been satisfied on or Business Day prior to the Outside Date, the Escrow Agent will, upon receipt of written notification receives an officers’ certificate from the Grantor that such conditions have not been satisfiedCompany substantially in the form of Exhibit B, which dated as of the Grantor shall date the Escrowed Property is to be required released (the “Escrow Release Date”) pursuant to provide the Release Notice (or if as defined below), executed by Authorized Officers of the Company and certifying to the Escrow Agent receives as to the matters set forth therein (an “Officers’ Certificate”), and a written notice pursuant to Section 1.05(e) prior to such timesubstantially in the form of Exhibit C, executed by Authorized Officers of the Company (a “Release Notice”), cause the liquidation of all investments of Escrowed Property then held by it on or before noon on Escrow Agent shall, provided that the Business Day immediately prior to September 5Release Notice has been received, 2018 and cause the release of all of the Escrowed Property as follows:
(i) first, to directed and in the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment to the holders of the Notes in accordance with the special mandatory redemption provision contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions manner set forth in Section 1.07 hereofthe Release Notice and the Officers’ Certificate from the Company; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver, or cause to be delivered, to the Paying Agent, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; andor
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in clause (d) (i) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, that the conditions contained in clause (b) of this if (A) the Escrow Agent shall not have received an Officers’ Certificate pursuant to Section 1.05 will not be satisfied 5(a) on or prior to the Outside Date, in which case (B) the Grantor Company shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemption, the Escrow Agent will, on or before noon on the Business Day immediately prior to the date fixed for such special mandatory redemption, cause the liquidation of all investments of Escrowed Property then held by the Financial Institution and release all of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (as specified in such instructions from the Trustee) for payment to the holders of the Notes in accordance with the redemption provisions contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(d)(i), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(f) If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have become immediately due and payable pursuant to Article 6 of the Indenture, then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of all Escrowed Property then held by the Financial Institution and cause the release of all of the Escrowed Property as follows:
(i) first, to notified the Escrow Agent and the Trustee, Trustee in writing in the form of an Officers’ Certificate (which may be a Release Notice) stating that (x) the Company will not pursue the consummation of the Acquisition (as defined in the Secured Notes Indenture) or (y) the Merger Agreement has been or will be terminated or (C) the Trustee has received a request of the holders of a majority in principal amount of Escrowed Property in cash equal to amounts due the Secured Notes then outstanding following any declaration of the acceleration of the Secured Notes under Section 6.02 of the Secured Notes Indenture that has not been rescinded, and owing the Trustee shall have delivered to the Escrow Agent a notice in the form of Exhibit D hereto (upon which the Escrow Agent shall rely conclusively and without further inquiry) (each of the events described in the foregoing clauses (A), (B) and (C), a “Special Mandatory Redemption Event”), the Escrow Agent shall, as provided in this section, release the Escrowed Property (including any investment earnings) to the Trustee on such date pursuant to the wire and delivery instructions provided on Schedule II hereto (the date of such release, the “Escrow Termination Date”).
(c) The Company shall deliver the Officers’ Certificate (or the Release Notice, as applicable) pursuant to Section 5(b)(B) no later than the Business Day immediately following the date of the Company’s determination referenced therein.
(d) Following the release of the Escrowed Property in connection with a Special Mandatory Redemption Event, any Excess Escrowed Property in excess of any fees, expenses or other amounts payable under the Secured Notes Indenture or hereunder in connection therewith or as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the Indenture, as the case may be;
(ii) second, upon the written direction of the Trustee, to the Paying Agent for payment to the holders of the Notes, an amount of Escrowed Property sufficient to pay such accelerated principal amount and interest, if any, thereon; such release of Escrowed Property to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and
(iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii8(d), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document.
(h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained returned by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the applicable Authorized Person. The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delayCompany.
Appears in 1 contract
Distribution of Escrowed Property. Subject to Section 1.03(e), the The Escrow Agent is directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner:
(a) The Escrow Agent will only release the Escrowed Property only as in the cases specifically provided for in this Section 1.05. All release and disbursement instructions and Entitlement Orders delivered to Escrow Agent shall specify (i) the amount to be disbursed, (ii) the date of disbursement, (iii) the recipient(s) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth at length, but may instead reference Section 1.074.
(b) Upon The Escrow Agent will promptly arrange for the release (the “Escrow Release”) of the Escrowed Property (the “Release Amount”) to the Grantor upon receipt of an Officers’ Certificate evidencing the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate conditions (such delivery to be in accordance with Section 3.01 hereof), substantially in the form of which is attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereofhereto) of from the Grantor, Grantor to the Trustee and the Escrow Agent, confirming which certificate shall confirm that all of the following conditions have been met:
(collectively, i) all conditions precedent to the “Escrow Conditions”) Acquisition have been satisfied or will be satisfied substantially concurrently waived in accordance with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”):
(i) the consummation of the Acquisition pursuant to the Acquisition Agreement (defined below) on substantially the same terms as defined described in the Indenture)Offering Circular;
(ii) substantially concurrently with the consummation of borrowings under Escrow Release, the Credit additional entities listed on Schedule IV to the Purchase Agreement (as defined in the Indenture“Additional Guarantors”) with terms consistent in all material respects with those described in the Offering Memorandum;
(iii) the execution and delivery by the Company of will have executed a supplemental indenture to the Indenture (the “Supplemental Indenture”) pursuant to which it shall assume the Additional Guarantors will fully and unconditionally guarantee, as to the payment of principal, premium, if any, and interest, on a senior basis, jointly and severally, all of the obligations of the Grantor under the Indenture effective as of and from the Notesconsummation of the Acquisition;
(iii) substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a joinder to the Purchase Agreement and will have delivered such joinder to the Representative;
(iv) substantially concurrently with the execution Escrow Release, the Grantor and delivery by each Domestic Subsidiary (as defined in the Indenture) Additional Guarantors will have delivered any Opinion of Counsel and Officers’ Certificate that are required to be delivered pursuant to the terms of the Company that guarantees Indebtedness Indenture in connection with the Supplemental Indenture;
(as defined v) substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered Opinions of Counsel in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party form and substance reasonably satisfactory to the Indenture and (B) a joinder agreement under which it will become a party Initial Purchasers, addressed to the Purchase AgreementInitial Purchasers;
(vi) substantially concurrently with the Escrow Release, the Initial Purchasers will have received customary secretary’s certificates from the Grantor and the Additional Guarantors in form and substance reasonably satisfactory to the Initial Purchasers; and
(vvii) the delivery by or at the request stating that all of the Grantor of certain opinions of its counsel conditions precedent to the Initial Purchasers as required under Section 5 of the Purchase Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Account, and the funds shall be released upon certification, as set forth in the Officers’ Certificate, that such steps will occur during the day thereafterRelease have been satisfied.
(c) Promptly upon receipt of the Officers’ Certificate from the Grantor, the Escrow Agent will cause the liquidation of all investments, if any, of Escrowed Property then held by it and cause the release of all of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate.
(d) If the Escrow Conditions have not been satisfied on or prior to the Outside Date, the Escrow Agent will, upon receipt of written notification from the Grantor that such conditions have not been satisfied, which the Grantor shall be required to provide (or if the Escrow Agent receives written notice pursuant to Section 1.05(e) prior to such time), cause the liquidation of all investments of Escrowed Property then held by it on or before noon on the Business Day immediately prior to September 5, 2018 and cause the release of all of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment to the holders of the Notes in accordance with the special mandatory redemption provision contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver, or cause to be delivered, to the Paying Agent, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in clause (d) (i) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, that the conditions contained in clause (b) of this Section 1.05 will have not be been satisfied on or prior to before the Outside Date, in which case the Grantor shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent Deadline (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”defined below)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemption, the Escrow Agent will, on or before noon on will arrange for the Business Day immediately prior to the date fixed for such special mandatory redemption, cause the liquidation release of all investments of Escrowed Property then held by the Financial Institution and release all or a portion of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (Price, as specified in such instructions from determined by the Trustee) for payment Grantor and provided to the holders Escrow Agent in an Officers’ Certificate, to the Trustee under the Indenture and the Escrow Agent for payment, on behalf of the Grantor, to Holders of the Notes to redeem the designated principal amount of the Notes in accordance with the escrow redemption provisions provision contained in Section 3.09 3.10 of the Indenture; such . After the Deadline, upon the written request of the Grantor, the Escrow Agent will promptly arrange for the release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the any amount of the Escrowed Property is less than the amount in excess of, or not otherwise required to be paid for applied to, the Special Mandatory Redemption Price, the Grantor will deliver to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) secondif any, to the Grantor, any Escrowed Property remaining after distributions as directed in Section 1.05(d)(i), by wire transfer of immediately available funds in accordance with the wire written instructions set forth in Section 1.07 hereof.
(f) If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have become immediately due and payable pursuant to Article 6 of the Indenture, then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of all Escrowed Property then held by the Financial Institution and cause the release of all of the Escrowed Property as follows:
(i) first, to the Escrow Agent and the Trustee, an amount of Escrowed Property in cash equal to amounts due and owing to the Escrow Agent and Trustee (as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the Indenture, as the case may be;
(ii) second, upon the written direction of the Trustee, to the Paying Agent for payment to the holders of the Notes, an amount of Escrowed Property sufficient to pay such accelerated principal amount and interest, if any, thereon; such release of Escrowed Property to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and
(iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document.
(h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the applicable Authorized Person. The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delay.
Appears in 1 contract
Samples: Escrow and Security Agreement (Ritchie Bros Auctioneers Inc)
Distribution of Escrowed Property. Subject to Section 1.03(e), the The Escrow Agent is directed to cause the Financial Institution to hold and distribute the Escrowed Property in the following manner:
(a) The Escrow Agent will only release the Escrowed Property only as in the cases specifically provided for in this Section 1.05. All release and disbursement instructions and Entitlement Orders delivered to Escrow Agent shall specify (i) the amount to be disbursed, (ii) the date of disbursement, (iii) the recipient(s) of the disbursement, and (iv) the manner of disbursement and delivery instructions except that in the case of parties having wire transfer instructions specified in Section 1.07, the wire transfer instruction need not be set forth at length, but may instead reference Section 1.074.
(b) Upon The Escrow Agent will promptly arrange for the release (the “Escrow Release”) of the Escrowed Property (the “Release Amount”) to the Grantor upon receipt of an Officer’s Certificate evidencing the satisfaction of the following conditions, the Grantor will promptly deliver an Officers’ Certificate conditions (such delivery to be in accordance with Section 3.01 hereof), substantially in the form of which is attached as Exhibit A hereto and signed by two Authorized Persons (as defined in Section 3.01 hereofhereto) of from the Grantor, Grantor to the Trustee and the Escrow Agent, confirming which certificate shall confirm that all of the following conditions have been met:
(collectively, i) all conditions precedent to the “Escrow Conditions”) Mergers have been satisfied or will be satisfied substantially concurrently waived in accordance with the release of the Escrowed Property and instructing the Escrow Agent to release the Escrowed Property (the “Officers’ Certificate”):
(i) the consummation of the Acquisition pursuant to the Acquisition Merger Agreement (defined below) on substantially the same terms as defined described in the Indenture)Offering Circular;
(ii) substantially concurrently with the consummation of borrowings under Escrow Release, the Credit additional entities listed on Schedule IV to the Purchase Agreement (as defined in the Indenture“Additional Guarantors”) with terms consistent in all material respects with those described in the Offering Memorandum;
(iii) the execution and delivery by the Company of will have executed a supplemental indenture to the Indenture (the “Supplemental Indenture”) pursuant to which it shall assume the Additional Guarantors will fully and unconditionally guarantee, as to the payment of principal, premium, if any, and interest, on a senior basis, jointly and severally, all of the obligations of the Grantor under the Indenture effective as of and from the Notesconsummation of the Mergers;
(iii) substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a joinder to the Purchase Agreement and will have delivered such joinder to the Initial Purchasers;
(iv) substantially concurrently with the execution Escrow Release, the Grantor and delivery by each Domestic Subsidiary (as defined in the Indenture) Additional Guarantors will have delivered any Opinion of Counsel and Officer’s Certificate that are required to be delivered pursuant to the terms of the Company that guarantees Indebtedness Indenture in connection with the Supplemental Indenture;
(as defined v) substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered Opinions of Counsel in the Indenture) or is a borrower, in each case, under the Credit Agreement, of (A) a supplemental indenture pursuant to which such Domestic Subsidiary will become a guarantor party form and substance reasonably satisfactory to the Indenture and (B) a joinder agreement under which it will become a party Initial Purchasers, addressed to the Purchase AgreementInitial Purchasers;
(vi) substantially concurrently with the Escrow Release, the Initial Purchasers will have received customary secretary’s certificates from the Grantor and the Additional Guarantors in form and substance reasonably satisfactory to the Initial Purchasers; and
(vvii) the delivery by or at the request stating that all of the Grantor of certain opinions of its counsel conditions precedent to the Initial Purchasers as required under Section 5 of Escrow Release have been satisfied. In addition, the Purchase wire instructions for the Release Amount are stated in Exhibit B to this Agreement; provided that, it is understood that certain steps set forth above may occur during the day after the release of funds from the Escrow Account, and the funds shall be released upon certification, as set forth in the Officers’ Certificate, that such steps will occur during the day thereafter.
(c) Promptly upon receipt of the Officers’ Certificate from the Grantor, the Escrow Agent will cause the liquidation of all investments, if any, of Escrowed Property then held by it and cause the release of all of the Escrowed Property to the Company or to such other persons as specified in the Officers’ Certificate, at the Grantor’s written direction by wire transfer of immediately available funds (i) in accordance with the wire transfer instructions set forth in Section 1.07 hereof or to the Trustee, as directed by the Grantor or (ii) in accordance with the wire transfer instructions set forth in the Officers’ Certificate.
(d) If the Escrow Conditions conditions contained in clause (b) have not been satisfied on or prior to before the Outside DateDeadline (as defined below), the Escrow Agent will, upon receipt of written notification from the Grantor that such conditions have not been satisfied, which the Grantor shall be required to provide (or if the Escrow Agent receives written notice pursuant to Section 1.05(e) prior to such time), cause the liquidation of all investments of Escrowed Property then held by it on or before noon on the Business Day immediately prior to September 5, 2018 and cause will arrange for the release of all or a portion of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property certified by the Grantor as equal to the Special Mandatory Redemption Price for payment Price, as determined by the Grantor and provided to the holders Escrow Agent in an Officer’s Certificate, to the Trustee under the Indenture and the Escrow Agent for payment, on behalf of the Grantor, to Holders of the Notes to redeem the designated principal amount of the Notes in accordance with the special mandatory escrow redemption provision contained in Section 3.09 of the Indenture; such . After the Deadline, upon the written request of the Grantor, the Escrow Agent will promptly arrange for the release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the any amount of the Escrowed Property is less than the amount in excess of, or not otherwise required to be paid for applied to, the Special Mandatory Redemption Price, the Grantor will deliver, or cause to be delivered, to the Paying Agent, on or prior to September 5, 2018, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) secondif any, to the Grantor, any Escrowed Property remaining after distributions as directed in clause (d) (i) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(e) The Grantor may determine, in the good faith judgment of the Board of Directors of the Grantor, that the conditions contained in clause (b) of this Section 1.05 will not be satisfied on or prior to the Outside Date, in which case the Grantor shall be required to cause a special mandatory redemption of the Notes under Section 3.09 of the Indenture. Upon written notice and instruction from the Trustee to the Escrow Agent (which will only be given after the Grantor has given the corresponding written notice to the Trustee, which notice specifies the special mandatory redemption price as required by Section 3.09 of the Indenture (the “Special Mandatory Redemption Price”)) that the Grantor is required to cause the special mandatory redemption of the Notes and certification of the date fixed for such special mandatory redemption, the Escrow Agent will, on or before noon on the Business Day immediately prior to the date fixed for such special mandatory redemption, cause the liquidation of all investments of Escrowed Property then held by the Financial Institution and release all of the Escrowed Property as follows:
(i) first, to the Paying Agent under the Indenture, an amount of Escrowed Property in cash equal to the Special Mandatory Redemption Price (as specified in such instructions from the Trustee) for payment to the holders of the Notes in accordance with the redemption provisions contained in Section 3.09 of the Indenture; such release of Escrowed Property to the Paying Agent under the Indenture will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; provided that if the amount of the Escrowed Property is less than the amount required to be paid for the Special Mandatory Redemption Price, the Grantor will deliver to the Paying Agent, on or prior to the date fixed for such special mandatory redemption, an amount equal to the deficiency, in accordance with Section 3.07 of the Indenture; and
(ii) second, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(d)(i), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(f) If the Escrow Agent receives a written notice and instruction from the Trustee that the principal amount of and accrued and unpaid interest on the Notes have become immediately due and payable pursuant to Article 6 of the Indenture, then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Trustee, cause the liquidation of all Escrowed Property then held by the Financial Institution and cause the release of all of the Escrowed Property as follows:
(i) first, to the Escrow Agent and the Trustee, an amount of Escrowed Property in cash equal to amounts due and owing to the Escrow Agent and Trustee (as set forth in the notice provided pursuant to this Section 1.05(f)) in respect of fees, expenses and liabilities of the Escrow Agent under this Agreement and the Trustee under the Indenture, as the case may be;
(ii) second, upon the written direction of the Trustee, to the Paying Agent for payment to the holders of the Notes, an amount of Escrowed Property sufficient to pay such accelerated principal amount and interest, if any, thereon; such release of Escrowed Property to the Paying Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof; and
(iii) third, to the Grantor, any Escrowed Property remaining after distributions in Section 1.05(f)(i) and Section 1.05(f)(ii), by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 1.07 hereof.
(g) In any case hereunder in which the Escrow Agent is to receive written instructions to release the Escrowed Property, the Escrow Agent shall be entitled to conclusively rely on such written instructions with no responsibility to calculate or confirm amounts or percentages to release or compliance with any other document.
(h) The Trustee and the Grantor shall provide the Escrow Agent with a list of Authorized Persons (as defined in Section 3.01), initially authorized hereunder as set forth on Schedule 3.01; as such Schedule 3.01 may be amended or supplemented from time to time by delivery of a revised and re-executed Schedule 3.01 to the Escrow Agent. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications reasonably believed by it in good faith to have been sent or given by the Trustee or the Grantor, as the case may be, or by a person or persons authorized by the Trustee or the Grantor. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an Authorized Person with the following caveat, the Grantor agrees to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and reasonable expenses (including reasonable and documented attorneys’ fees of one legal counsel) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission by them respectively; provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an Authorized Person shall not be deemed to constitute gross negligence or willful misconduct. In the event funds transfer instructions are given to the Escrow Agent pursuant to the terms of this Agreement (other than with respect to fund transfers to be made contemporaneously with the execution of this Agreement), regardless of the method used to transmit such instructions, such instructions must be given by an Authorized Person. Further, the Escrow Agent is authorized to obtain and rely upon confirmation of such instructions by telephone call-back to the applicable Authorized Person. The Escrow Agent may require any party hereto which is entitled to direct the delivery of fund transfers to designate a phone number or numbers for purposes of confirming the requested transfer. The Trustee and the Grantor agree that the Escrow Agent may delay the initiation of any fund transfer until all security measures it deems to be necessary and appropriate have been completed and shall incur no liability for such delay.
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Samples: Escrow and Security Agreement (Ritchie Bros Auctioneers Inc)
