The Escrowed Property. (a) On the date hereof (the “Closing Date”), pursuant to Section 2 of the Purchase Agreement, the Initial Purchasers, at the direction and on behalf of the Company, are obligated to deposit in cash with the Escrow Agent $1,875,000,000, representing the gross proceeds from the offering of the Secured Notes (the “Proceeds”). The deposit made pursuant to subsection (a), together with any additional amounts deposited with the Escrow Agent by or on behalf of the Company, is referred to collectively herein as the “Escrowed Property.” (b) The “Outside Date” shall be October 21, 2016; provided that to the extent the Termination Date (as defined in the Merger Agreement) has been extended as provided in Section 8.1(b)(i) of the Merger Agreement and the Company delivers written notice in the form attached as Exhibit A hereto to the Trustee and the Escrow Agent that the Termination Date under the Merger Agreement has been extended in accordance with the terms of the Merger Agreement, the Outside Date shall be January 21, 2017. References herein to “Special Mandatory Redemption Price” shall mean 100% of the initial issue price of the Secured Notes, plus accrued and unpaid interest on the Secured Notes from the Closing Date through, but not including, the Special Mandatory Redemption Date (as defined in the Secured Notes Indenture). References herein to “Excess Escrowed Property” shall mean the excess, if any, of the Escrowed Property over the Special Mandatory Redemption Price. The Escrow Agent shall have no duty to solicit the Escrowed Property. The Company certifies that the Escrowed Property shall be satisfactory for such purposes pursuant to the Secured Notes Indenture, and shall notify the Escrow Agent in writing at or prior to the transfer of the Escrowed Property to the Escrow Account. The Escrow Agent shall have no liability for any Escrowed Property, or for interest thereon, that remains unclaimed and/or is returned if such written notification is not given.
Appears in 1 contract
The Escrowed Property. (a) On the date hereof (the “Closing Date”), pursuant to Section 2 of the Purchase Agreement, the Initial Purchasers, at the direction and on behalf of the CompanyEscrow Issuer, are obligated to deposit in cash with the Escrow Agent $1,875,000,000750,000,000, representing the gross proceeds from the offering of the Secured Notes (the “Proceeds”).
(b) The Company shall deposit in cash or Eligible Escrow Investments with the Escrow Agent on the Closing Date, $12,500,000.00 (the “Initial Deposit” and together with any Extended Deposit and any Final Deposit, each as hereinafter defined, the “Interest Deposit”), representing, when taken together with the amount of the Proceeds, an amount sufficient to pay 100% of the issue price of the Notes, plus the amount of all regularly scheduled interest and accreted discount, if any, on the Notes from the Closing Date to but not including the Business Day following March 2, 2015 (the “Initial Outside Date”).
(c) If, at any time on or prior to 2:00 p.m. (New York City time) of the second Business Day prior to the Initial Outside Date, the Escrow Issuer and the Company deliver a notice (the “Initial Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the Initial Outside Date to a date that is not later than April 1, 2015 (the “Extended Outside Date”), and concurrently with such notice the Company deposits an amount in cash or Eligible Escrow Investments sufficient (the “Extended Deposit”), when taken together with the amount of other Escrowed Property (as hereinafter defined), to pay 100% of the issue price of the Notes, plus all regularly scheduled interest and original issue discount, if any, that would accrue on the Notes from the Closing Date to but not including the Business Day following such Extended Outside Date, the Initial Outside Date shall be extended to the Extended Outside Date. In the event Escrow Issuer and the Company deliver an Initial Extension Election, the Company agrees to report the extension on a Form 8-K promptly following such delivery and to specify therein the Extended Outside Date.
(d) If, at any time on or prior to 2:00 p.m. (New York City time) of the second Business Day prior to the Extended Outside Date, the Escrow Issuer and the Company deliver a notice (the “Final Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the Extended Outside Date to a date that is not later than May 1, 2015 (the “Final Outside Date”), and concurrently with such notice the Company deposits an amount in cash or Eligible Escrow Investments sufficient (the “Final Deposit”), when taken together with the amount of other Escrowed Property (as hereinafter defined), to pay 100% of the issue price of the Notes, plus all regularly scheduled interest and original issue discount, if any, that would accrue on the Notes from the Closing Date to but not including May 4, 2015, the Business Day following such Final Outside Date, the Extended Outside Date shall be extended to the Final Outside Date. In the event the Escrow Issuer delivers a Final Extension Election, the Company agrees to report the extension on a Form 8-K promptly following such delivery and to specify therein the Final Outside Date.
(e) The deposit deposits made pursuant to subsection subsections (a), together with any additional amounts deposited with the Escrow Agent by or on behalf of the Company(b), is (c) and (d) are collectively referred to collectively herein as the “Escrowed Property.”
(b) ” The “last to occur of the Initial Outside Date” , Extended Outside Date or Final Outside Date, as applicable, shall be October 21, 2016; provided that referred to herein as the extent the Termination Date (as defined in the Merger Agreement) has been extended as provided in Section 8.1(b)(i) of the Merger Agreement and the Company delivers written notice in the form attached as Exhibit A hereto to the Trustee and the “Escrow Agent that the Termination Date under the Merger Agreement has been extended in accordance with the terms of the Merger Agreement, the Outside Date shall be January 21, 2017. End Date.” References herein to “Special Mandatory Redemption Price” shall mean 100% of the initial issue price of the Secured Notes, plus accrued all regularly scheduled interest and unpaid interest original issue discount, if any, that would accrue on the Secured Notes from the Closing Date through, but not including, the Special Mandatory Redemption Date (as defined in Business Day following the Secured Notes Indenture)Escrow End Date. References herein to “Excess Escrowed Property” shall mean the excess, if any, of the Escrowed Property over the Special Mandatory Redemption Price. The Escrow Agent shall have no duty to solicit the Escrowed Property. The Escrow Issuer and the Company certifies certify that the Escrowed Property shall be satisfactory for such purposes pursuant to the Secured Notes Indenture, and shall notify the Escrow Agent in writing at or prior to the transfer of the Escrowed Property to the Escrow Account. The Escrow Agent shall have no liability for any Escrowed Property, or for interest thereon, that remains unclaimed and/or is returned if such written notification is not given.
Appears in 1 contract
The Escrowed Property. (a) On the date hereof (the “Closing Date”), pursuant to Section 2 of the Purchase Agreement, the Initial Purchasers, at the direction and on behalf of the CompanyEscrow Issuer, are obligated to deposit in cash with the Escrow Agent $1,875,000,000600,000,000, representing the gross proceeds from the offering of the Secured Notes (the “Proceeds”).
(b) The Company shall deposit in cash or Eligible Escrow Investments with the Escrow Agent on the Closing Date, $10,937,500.00 (the “Initial Deposit” and together with any Extended Deposit and any Final Deposit, each as hereinafter defined, the “Interest Deposit”), representing, when taken together with the amount of the Proceeds, an amount sufficient to pay 100% of the issue price of the Notes, plus the amount of all regularly scheduled interest and accreted discount, if any, on the Notes from the Closing Date to but not including the Business Day following March 2, 2015 (the “Initial Outside Date”).
(c) If, at any time on or prior to 2:00 p.m. (New York City time) of the second Business Day prior to the Initial Outside Date, the Escrow Issuer and the Company deliver a notice (the “Initial Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the Initial Outside Date to a date that is not later than April 1, 2015 (the “Extended Outside Date”), and concurrently with such notice the Company deposits an amount in cash or Eligible Escrow Investments sufficient (the “Extended Deposit”), when taken together with the amount of other Escrowed Property (as hereinafter defined), to pay 100% of the issue price of the Notes, plus all regularly scheduled interest and original issue discount, if any, that would accrue on the Notes from the Closing Date to but not including the Business Day following such Extended Outside Date, the Initial Outside Date shall be extended to the Extended Outside Date. In the event Escrow Issuer and the Company deliver an Initial Extension Election, the Company agrees to report the extension on a Form 8-K promptly following such delivery and to specify therein the Extended Outside Date.
(d) If, at any time on or prior to 2:00 p.m. (New York City time) of the second Business Day prior to the Extended Outside Date, the Escrow Issuer and the Company deliver a notice (the “Final Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the Extended Outside Date to a date that is not later than May 1, 2015 (the “Final Outside Date”), and concurrently with such notice the Company deposits an amount in cash or Eligible Escrow Investments sufficient (the “Final Deposit”), when taken together with the amount of other Escrowed Property (as hereinafter defined), to pay 100% of the issue price of the Notes, plus all regularly scheduled interest and original issue discount, if any, that would accrue on the Notes from the Closing Date to but not including May 4, 2015, the Business Day following such Final Outside Date, the Extended Outside Date shall be extended to the Final Outside Date. In the event the Escrow Issuer delivers a Final Extension Election, the Company agrees to report the extension on a Form 8-K promptly following such delivery and to specify therein the Final Outside Date.
(e) The deposit deposits made pursuant to subsection subsections (a), together with any additional amounts deposited with the Escrow Agent by or on behalf of the Company(b), is (c) and (d) are collectively referred to collectively herein as the “Escrowed Property.”
(b) ” The “last to occur of the Initial Outside Date” , Extended Outside Date or Final Outside Date, as applicable, shall be October 21, 2016; provided that referred to herein as the extent the Termination Date (as defined in the Merger Agreement) has been extended as provided in Section 8.1(b)(i) of the Merger Agreement and the Company delivers written notice in the form attached as Exhibit A hereto to the Trustee and the “Escrow Agent that the Termination Date under the Merger Agreement has been extended in accordance with the terms of the Merger Agreement, the Outside Date shall be January 21, 2017. End Date.” References herein to “Special Mandatory Redemption Price” shall mean 100% of the initial issue price of the Secured Notes, plus accrued all regularly scheduled interest and unpaid interest original issue discount, if any, that would accrue on the Secured Notes from the Closing Date through, but not including, the Special Mandatory Redemption Date (as defined in Business Day following the Secured Notes Indenture)Escrow End Date. References herein to “Excess Escrowed Property” shall mean the excess, if any, of the Escrowed Property over the Special Mandatory Redemption Price. The Escrow Agent shall have no duty to solicit the Escrowed Property. The Escrow Issuer and the Company certifies certify that the Escrowed Property shall be satisfactory for such purposes pursuant to the Secured Notes Indenture, and shall notify the Escrow Agent in writing at or prior to the transfer of the Escrowed Property to the Escrow Account. The Escrow Agent shall have no liability for any Escrowed Property, or for interest thereon, that remains unclaimed and/or is returned if such written notification is not given.
Appears in 1 contract
The Escrowed Property. (a) On the date hereof (the “Closing Date”), pursuant to Section 2 4.20 of the Purchase AgreementIndenture, the Initial Purchasers, at the direction and on behalf of the Company, are Company is obligated to deposit in cash with the Escrow Agent (x) $1,875,000,0001,231,250,000 in cash, representing the gross net proceeds (after deducting the underwriting discount) from the offering of the Secured Notes (the “Proceeds”) and (y) cash in the amount of $37,517,361.11 and the Eligible Escrow Investments, if any, listed on Schedule II hereto (collectively, the “Initial Deposit” and, together with all Extension Deposits (as defined below), if any, the “Supplemental Deposit”), representing, when taken together with the amount of the Proceeds, an amount sufficient (as reasonably determined by the Company taking into account investment income therefrom and proceeds thereof) to redeem the Notes for cash at a redemption price equal to 100% of the aggregate principal amount of the Notes sold on the Closing Date, together with accrued and unpaid interest on such Notes from the Closing Date up to, but not including, the Business Day following November 30, 2012, and the Escrow Agent acknowledges receipt of the Initial Deposit. As used herein, the “Initial Outside Date” means November 30, 2012.
(b) If, at any time on or prior to 2:00 p.m. (New York City time) on the second Business Day prior to the Initial Outside Date, the Company delivers a notice (an “First Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the Initial Outside Date to a date that is thirty (30) calendar days following the Initial Outside Date (the “First Extended Outside Date”), and concurrently with such notice the Company deposits an amount in cash and/or Eligible Escrow Investments (an “Extension Deposit”) sufficient, when taken together with the amount of other Escrowed Property (as hereinafter defined) as of such date, to pay 100% of the aggregate principal amount of the Notes sold on the Closing Date, together with accrued and unpaid interest on such Notes from the Closing Date or the most recent date to which interest has been paid or duly provided for on the Notes, as the case may be, up to, but not including, the Business Day following such First Extended Outside Date, the Initial Outside Date shall be extended to the First Extended Outside Date. In the event the Company delivers a First Extension Election, the Company agrees to issue a customary press release on or prior to the second Business Day prior to the Initial Outside Date publicly announcing that a First Extension Election has been provided, which notice shall also specify the First Extended Outside Date.
(c) If, at any time on or prior to 2:00 p.m. (New York City time) on the second Business Day prior to the First Extended Outside Date, the Company delivers a notice (the “Second Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the First Extended Outside Date to a date that is thirty (30) calendar days following the First Extended Outside Date (the “Second Extended Outside Date”), and concurrently with such notice the Company deposits an Extension Deposit, sufficient, when taken together with the amount of other Escrowed Property as of such date, to pay 100% of the aggregate principal amount of the Notes sold on the Closing Date, together with accrued and unpaid interest on such Notes from the Closing Date or the most recent date to which interest has been paid or duly provided for on the Notes, as the case may be, up to, but not including, the Business Day following such Second Extended Outside Date, the First Extended Outside Date shall be extended to the Second Extended Outside Date. In the event the Company delivers a Second Extension Election, the Company agrees to issue a customary press release on or prior to the second Business Day prior to the First Extended Outside Date publicly announcing that a Second Extension Election has been provided hereunder, which notice shall also specify the Second Extended Outside Date.
(d) If, at any time on or prior to 2:00 p.m. (New York City time) on the second Business Day prior to the Second Extended Outside Date, the Company delivers a notice (the “Final Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the Second Extended Outside Date to a date that is thirty (30) calendar days following the Second Extended Outside Date (the “Final Outside Date”), and concurrently with such notice the Company deposits an Extension Deposit, sufficient, when taken together with the amount of other Escrowed Property as of such date, to pay 100% of the aggregate principal amount of the Notes sold on the Closing Date, together with accrued and unpaid interest on such Notes from the Closing Date or the most recent date to which interest has been paid or duly provided for on the Notes, as the case may be, up to, but not including, the Business Day following such Final Outside Date, the Second Extended Outside Date shall be extended to the Final Outside Date. In the event Company delivers a Final Extension Election, the Company agrees to issue a customary press release on or prior to the second Business Day prior to the Second Extended Outside Date publicly announcing that a Final Extension Election has been provided hereunder, which notice shall also specify the Final Outside Date.
(e) The deposit deposits made pursuant to subsection subsections (a), (b), (c) and (d) above, together with any additional amounts deposited with the Escrow Agent by or on behalf of the Companyincome therefrom and proceeds thereof, is are collectively referred to collectively herein as the “Escrowed Property.”
(b) ” The “latest of the Initial Outside Date” , First Extended Outside Date, Second Extended Outside Date or the Final Outside Date, as applicable, shall be October 21, 2016; provided that referred to herein as the extent the Termination Date (as defined in the Merger Agreement) has been extended as provided in Section 8.1(b)(i) of the Merger Agreement and the Company delivers written notice in the form attached as Exhibit A hereto to the Trustee and the “Escrow Agent that the Termination Date under the Merger Agreement has been extended in accordance with the terms of the Merger Agreement, the Outside Date shall be January 21, 2017. References herein to “Special Mandatory Redemption PriceEnd Date.” shall mean 100% of the initial issue price of the Secured Notes, plus accrued and unpaid interest on the Secured Notes from the Closing Date through, but not including, the Special Mandatory Redemption Date (as defined in the Secured Notes Indenture). References herein to “Excess Escrowed Property” shall mean the excess, if any, of the Escrowed Property over the Special Mandatory Redemption Price. The Escrow Agent shall have no duty to solicit the Escrowed Property. The Company certifies that the Escrowed Property shall be satisfactory for such purposes pursuant to comply with the Secured Notes applicable provisions of the Indenture, and shall notify the Escrow Agent in writing at or prior to the transfer of the any Escrowed Property to the Escrow AccountAccounts subsequent to the date of this Agreement. The Escrow Agent shall have no liability for any Escrowed Property, or for interest thereon, that remains unclaimed and/or is returned if such written notification is not givengiven subsequent to the date of this Agreement.
(i) Subject to and in accordance with the provisions hereof, the Escrow Agent and the Intermediary agree to hold the Escrowed Property in either (A) a “securities account” (as defined in Section 8-501 of the Uniform Commercial Code in effect in the State of New York on the date hereof (the “New York UCC”) established with the Intermediary to the extent that the account is only holding securities or (B) a “deposit account” (as defined in Section 9-102(a)(29) of the New York UCC) established with the Escrow Agent to the extent that the account is only holding cash (including, without limitation, cash held in accounts at the Escrow Agent), as applicable. Escrowed Property shall be held in the following account: DaVita Inc. 5.75% Sr. Notes Escrow Account No. 161903 (together with any successor account or accounts, the “Escrow Accounts”); and wire instructions are as follows: Wire Instructions: The Bank of New York Mellon ABA #:000000000 GLA #: 111-565 TAS#: 161903 Ref: DaVita Inc. 5.75% Sr. Notes Escrow The Escrow Agent and the Intermediary agree that all securities included in the Escrowed Property will be held in one or more “securities accounts” (as defined in Section 8-501 of the New York UCC) established with the Intermediary and all cash included in the Escrowed Property will be held in one or more deposit accounts (as defined in Section 9-102(a)(29) of the New York UCC) established with the Escrow Agent. The Escrow Accounts will be established with the Escrow Agent and the Intermediary as provided above. The Escrow Agent and the Intermediary shall administer the Escrow Accounts in accordance with the provisions of this Agreement, including, without limitation, holding in escrow, investing and reinvesting, and releasing or distributing the Escrowed Property.
(ii) As security for the due and punctual payment of the Special Mandatory Redemption Price of the Notes, the Company hereby pledges, assigns and grants to the Trustee, for the benefit of the Trustee and the Holders of the Notes to secure the payment of the Special Mandatory Redemption Price, a security interest in all of its right, title and interest in, whether now owned by or owing to, or hereafter acquired by or arising in favor of the Company, in the Escrow Accounts, the Escrowed Property credited thereto, and all “financial assets” (as defined in Section 8-102(a)(9) of the New York UCC) credited thereto, “investment property” (as defined Article 9 of the New York UCC) credited thereto and proceeds of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any “general intangibles” (as defined in Article 9 of the New York UCC) at any time evidencing or relating to any of the foregoing, to secure the prompt and complete payment and performance by the Company of the Special Mandatory Redemption.
(iii) The Escrow Agent and the Intermediary hereby agree that prior to release from the Escrow Accounts all Escrowed Property shall either be held as U.S. dollars (which shall be deposited in interest-bearing or non-interest-bearing accounts at the Escrow Agent) or invested in Eligible Escrow Investments specified in writing to the Escrow Agent by an Authorized Person (as defined below) of the Company, and in each case, shall be credited to the Escrow Accounts. The Company, the Escrow Agent and the Intermediary hereby agree that the Eligible Escrow Investments and any investment property, financial asset, security, instrument or cash or cash balances (irrespective of the currency in which such cash or cash balances are denominated) credited to the Escrow Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. For purposes of this Agreement, “Eligible Escrow Investments” means (i) U.S. Government Obligations maturing no later than the Business Day preceding the Escrow End Date and (ii) securities representing an interest or interests in money market funds registered under the Investment Company Act of 1940 whose shares are registered under the Securities Act as investing exclusively in direct obligations of the United States. For purposes of this Agreement, “U.S. Government Obligations” means securities that are (a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt. If at any time the Escrow Agent or the Intermediary receives (A) any entitlement order (as such term is defined in Section 8-102(a)(8) of the New York UCC) with respect to any financial asset credited to an Escrow Account or (B) any instruction (within the meaning of Section 9-104(a)(2) of the New York UCC) concerning the disposition of funds held in any Escrow Account from the Trustee acting on the written directions of the Holders of a majority in aggregate principal amount of the Notes then outstanding (determined as provided in Section 2.08 of the Indenture), the Escrow Agent or the Intermediary, as the case may be, shall comply with such entitlement order or instruction, as applicable, without further consent of the Company or any other Person. The Trustee hereby agrees with the Company that the Trustee shall not give any entitlement orders or instructions, as applicable, unless (i) the conditions in the Indenture requiring that the Company effect a Special Mandatory Redemption of the Notes shall have occurred and (ii) the Special Mandatory Redemption Price of the Notes shall not have been paid or duly provided for as provided in the Indenture on the Special Mandatory Redemption Date.
Appears in 1 contract
Samples: Escrow Agreement (Davita Inc)
The Escrowed Property. (a) On the date hereof (the “Closing Date”), pursuant to Section 2 4.25 of the Purchase AgreementIndenture, the Initial Purchasers, at the direction and on behalf of the Company, are Company is obligated to deposit in cash with the Escrow Agent (x) $1,875,000,000449,144,584.68 in cash, representing the gross net proceeds (after deducting the underwriting discount and certain fees and expenses) from the offering of the Secured Notes (the “Proceeds”) and (y) cash in the amount of $14,132,915.32 (collectively, the “Initial Deposit”), representing, when taken together with the amount of the Proceeds, an amount sufficient (as reasonably determined by the Company taking into account investment income therefrom and proceeds thereof) to fund a Special Mandatory Redemption of the Notes on February 28, 2013, if a Special Mandatory Redemption were to occur on such date, plus an amount equal to three days of interest, and the Escrow Agent acknowledges receipt of the Proceeds and the Initial Deposit.
(b) If, at any time on or prior to 2:00 p.m. (New York City time) on the third Business Day prior to July 21, 2013 (the “Initial Outside Date”), the Company delivers a notice (an “Extension Election”) substantially in the form of Exhibit A to the Trustee and the Escrow Agent to extend the Initial Outside Date to a date that is thirty (30) calendar days following the Initial Outside Date (the “Extended Outside Date”), and concurrently with such notice the Company deposits an amount in cash (an “Extension Deposit”) sufficient, when taken together with the amount of other Escrowed Property (as hereinafter defined) as of such date, to fund a Special Mandatory Redemption of the Notes on the Extended Outside Date, if a Special Mandatory Redemption were to occur on such date. The Extension Election shall be executed by an Authorized Person and shall certify that (i) the outside date under the Acquisition Agreement has been extended to the Extended Outside Date and (ii) there is no Default or Event of Default under the Indenture, each as defined therein. In the event the Company delivers an Extension Election, the Company agrees to issue a customary press release on or prior to the third Business Day prior to the Initial Outside Date publicly announcing that an Extension Election has been provided, which notice shall also specify the Extended Outside Date.
(c) The Company shall, in each case unless the Escrow Release Date (as defined below) has occurred, deposit, or shall cause to be deposited, with the Escrow Agent on the date that is five Business Days prior to the last day of each month, beginning with February 28, 2013 and ending with June 30, 2013, an amount of cash equal to one month of interest accrued on the Notes (or with respect to the deposit five Business Days prior to June 30, 2013, equal to interest from July 1, 2013 to July 21, 2013) (in each case, as calculated in accordance with the terms of the Indenture) (each such amount is referred to herein as an “Additional Amount”). The deposit Escrow Agent shall not be responsible for calculating the amounts required to be deposited as Additional Amounts, which calculations shall be the responsibility of the Company.
(d) The deposits made pursuant to subsection subsections (a), (b) and (c) above, together with any additional amounts deposited with the Escrow Agent by or on behalf of the Companyincome therefrom and proceeds thereof, is are collectively referred to collectively herein as the “Escrowed Property.”
(b) ” The “latest of the Initial Outside Date or the Extended Outside Date” , as applicable, shall be October 21, 2016; provided that referred to herein as the extent the Termination Date (as defined in the Merger Agreement) has been extended as provided in Section 8.1(b)(i) of the Merger Agreement and the Company delivers written notice in the form attached as Exhibit A hereto to the Trustee and the “Escrow Agent that the Termination Date under the Merger Agreement has been extended in accordance with the terms of the Merger Agreement, the Outside Date shall be January 21, 2017. References herein to “Special Mandatory Redemption Price” shall mean 100% of the initial issue price of the Secured Notes, plus accrued and unpaid interest on the Secured Notes from the Closing Date through, but not including, the Special Mandatory Redemption Date (as defined in the Secured Notes Indenture). References herein to “Excess Escrowed Property” shall mean the excess, if any, of the Escrowed Property over the Special Mandatory Redemption PriceEnd Date”. The Escrow Agent shall have no duty to solicit the Escrowed Property. The Company certifies that the Escrowed Property shall be satisfactory for such purposes pursuant to comply with the Secured Notes applicable provisions of the Indenture, and shall notify the Escrow Agent in writing at or least one Business Day prior to the transfer date of the Escrowed Property deposit of any Additional Amounts to the Escrow AccountAccounts subsequent to the date of this Agreement. The Escrow Agent shall have no liability for any Escrowed Property, or for interest thereon, that remains unclaimed and/or is returned if such written notification is not givengiven subsequent to the date of this Agreement.
(i) Subject to and in accordance with the provisions hereof, the Escrow Agent and the Intermediary agree to hold the Escrowed Property in either (A) a “securities account” (as defined in Section 8-501 of the Uniform Commercial Code in effect in the State of New York on the date hereof (the “New York UCC”) established with the Intermediary or (B) a “deposit account” (as defined in Section 9-102(a)(29) of the New York UCC) established with the Escrow Agent. Escrowed Property shall be held in the following account: GenCorp Inc. 7.125% Notes due 2021 Escrow Account No. 202475000 (together with any successor account(s) or sub-account(s), the “Escrow Accounts”); and wire instructions are as follows: Wire Instructions: U.S. Bank National Association The Escrow Agent and the Intermediary agree that all securities included in the Escrowed Property will be held in one or more Escrow Accounts which are “securities accounts” (as defined in Section 8-501 of the New York UCC) established with the Intermediary and all cash included in the Escrowed Property will be held in one or more Escrow Accounts which are deposit accounts (as defined in Section 9-102(a)(29) of the New York UCC) established with the Escrow Agent. The Escrow Accounts will be established with the Escrow Agent or the Intermediary as provided above. The Escrow Agent and the Intermediary shall administer the Escrow Accounts in accordance with the provisions of this Agreement, including, without limitation, holding in escrow, investing and reinvesting and releasing or distributing the Escrowed Property.
(ii) As security for the due and punctual payment of the Special Mandatory Redemption Price of the Notes and the prompt and complete payment and performance by the Company of the Special Mandatory Redemption, the Company hereby pledges, assigns and grants to the Trustee, for the benefit of the Trustee and the Holders of the Notes to secure the payment of the Special Mandatory Redemption Price, a security interest in all of its right, title and interest in, whether now owned by or owing to, or hereafter acquired by or arising in favor of the Company, in the Escrow Accounts, the Escrowed Property credited thereto, and all “financial assets” (as defined in Section 8-102(a)(9) of the New York UCC) credited thereto, “investment property” (as defined Article 9 of the New York UCC) credited thereto and proceeds of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any “general intangibles” (as defined in Article 9 of the New York UCC) at any time evidencing or relating to any of the foregoing (collectively, the “Collateral”), to secure the due and punctual payment of the Special Mandatory Redemption Price of the Notes and the prompt and complete payment and performance by the Company of the Special Mandatory Redemption. The security interest of the Trustee granted pursuant hereto shall at all times be valid, perfected and enforceable as a first priority security interest. The Company agrees to take all steps reasonably necessary to maintain the security interest created by this Agreement as a perfected first-priority security interest as reasonably requested by the Trustee or the Initial Purchasers. Without limiting the foregoing, the Company agrees to take all steps reasonably requested by the Trustee in connection with the perfection of the Trustee’s security interest in the Collateral pursuant to this Agreement and, without limiting the generality of the foregoing, the Company hereby authorizes the Trustee and the Initial Purchasers on behalf of the Trustee to file one or more UCC financing statements that reasonably describe the collateral in such jurisdictions and filing offices and containing such description of collateral as the Trustee, or the Initial Purchasers on behalf of the Trustee, may determine is reasonably necessary in order to perfect the security interest granted herein. Any rights that the Trustee may have under this Agreement shall not imply any obligations under this Agreement. The Company represents and warrants that as of the date hereof it is duly formed and validly existing as a corporation under the laws of the State of Ohio and is not organized under the laws of any other jurisdiction, and the Company hereby agrees that, prior to the termination of this Agreement, it will not change its name, jurisdiction of organization, organizational identification number, if any, or chief executive office without giving the Trustee and the Initial Purchasers not less than 5 days’ prior written notice thereof.
(iii) The Escrow Agent and the Intermediary hereby agree that prior to release from the Escrow Accounts all Escrowed Property shall either be held as U.S. dollars (which shall be deposited in interest-bearing or non-interest-bearing accounts at the Escrow Agent) or invested in Eligible Escrow Investments (as defined below) specified in writing to the Escrow Agent by an Authorized Person (as defined below) of the Company, and in each case, shall be credited to the Escrow Accounts. The Company, the Escrow Agent and the Intermediary hereby agree that the Eligible Escrow Investments and any investment property, financial asset, security, instrument or cash or cash balances (irrespective of the currency in which such cash or cash balances are denominated) credited to the Escrow Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. For purposes of this Agreement, “Eligible Escrow Investments” means (i) U.S. Government Obligations maturing no later than the Business Day preceding the Escrow End Date and (ii) securities representing an interest or interests in money market funds registered under the Investment Company Act of 1940 whose shares are registered under the Securities Act as investing exclusively in direct obligations of the United States. For purposes of this Agreement, “U.S. Government Obligations” means securities that are (a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt. The Escrow Agent and Intermediary agree to comply with (A) any instructions originated by the Trustee directing disposition of funds held in any Escrow Account and (B) any entitlement order (as such term is defined in Section 8-102(a)(8) of the New York UCC) originated by the Trustee with respect to any financial asset credited to any Escrow Account, in each case, without further consent by the Company or any other person. The Trustee hereby agrees with the Company that the Trustee shall not give any entitlement orders or instructions, as applicable, unless the conditions in the Indenture requiring that the Company effect a Special Mandatory Redemption of the Notes shall have occurred or as otherwise permitted pursuant to Section 5 hereof.
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Samples: Escrow Agreement (Gencorp Inc)
