EXHIBIT 10.63
EXECUTION COPY
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ESCROW AGREEMENT
among
CROWN CASTLE INTERNATIONAL CORP.,
as Borrower,
XXXXXXX XXXXX CREDIT PARTNERS X.X.
XXXXXXX BROTHERS HOLDING COMPANY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
as Arrangers
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Escrow Agent
Dated as of March 15, 1999
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THIS ESCROW AGREEMENT (this "Agreement"), dated as of March 15, 1999
(the "Closing Date"), is by and among Crown Castle International Corp., a
Delaware corporation (the "Borrower"), Xxxxxxx Xxxxx Credit Partners L.P.,
Salomon Brothers Holding Company Inc. and Credit Suisse First Boston
Corporation, as the Arrangers under the Term Loan Agreement referred to below
(the "Arrangers"), and United States Trust Company of New York, (in its capacity
as escrow agent, the "Escrow Agent"). Capitalized terms used herein and not
otherwise defined have the meanings assigned to them in the Term Loan Agreement
referred to below.
RECITALS
WHEREAS, the Borrower and the Arrangers have entered into a Term Loan
Agreement dated as of March 15, 1999 (as amended, restated or otherwise modified
from time to time, the "Term Loan Agreement") providing for certain Term Loans
to be made by the Lenders thereunder to the Borrower (the "Term Loans"), which
Term Loans will be evidenced by certain promissory notes of the Borrower (the
"Term Notes");
WHEREAS, the Borrower has agreed to place in escrow various Senior
Exchange Notes due 2007 (the "Exchange Notes") in the form of Exhibit A1 and
Exhibit A2 to the Exchange Note Indenture dated as of the date hereof (the
"Exchange Note Indenture") duly executed by the Borrower and United States Trust
Company of New York, as trustee (the "Exchange Note Indenture Trustee"); and
WHEREAS, it is a condition to the making of Term Loans under the Term
Loan Agreement that the Exchange Notes be delivered into escrow pursuant to this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Deposit of Escrowed Notes by the Borrower.
On the Closing Date, concurrently with the execution and delivery of
this Agreement, the Borrower is delivering to the Escrow Agent 25 undated
Exchange Notes, duly executed by the Borrower and authenticated by the Exchange
Note Indenture Trustee, with the payee, interest rate and aggregate principal
amount in blank (the "Escrowed Notes").
2. Release of Escrowed Notes.
The Escrow Agent shall hold the Escrowed Notes in escrow pursuant to
this Agreement, until authorized hereunder to deliver them as follows:
(a) Release to Holder or its Designees. If, on any Business Day on
or after the Anniversary Date, the Escrow Agent receives one or more Term
Notes from the Administrative Agents accompanied by a properly completed
and executed written notice from the Administrative Agents in the form of
Annex A hereto (each, an "Exchange Notice"), the Escrow Agent shall on or
within five Business Days after the Escrow Agent's receipt of such Exchange
Notice, (i) date, complete and deliver one or more Exchange Notes in
accordance with such Exchange Notice, and (ii) return the Term Note(s) so
surrendered to the Borrower for cancellation upon receipt of evidence that
all cash interest thereon required to be paid pursuant to
Escrow Agreement Page 1
this Section 2(a) and in accordance with the Term Loan Agreement has been
paid. If less than all of the surrendered Term Note(s) are to be exchanged
for Exchange Notes, the Borrower shall deliver to the Person specified in
the Exchange Notice on or within three Business Days after the Escrow
Agent's receipt of the Exchange Notice, a replacement Term Note dated the
date specified in the Exchange Notice as the Exchange Date, equal to the
amount of any principal not so exchanged, all as specified in Section 6 of
the Exchange Notice and in accordance with the Term Loan Agreement. Upon
delivery of any Exchange Notes pursuant to this clause (a), the Borrower
shall within five Business Days after the Escrow Agent's receipt of the
Exchange Notice make payment in cash in accordance with Section 2.3(f) of
the Term Loan Agreement of all accrued and unpaid interest up to but not
including the date specified in the Exchange Notice as the Exchange Date.
(b) Release to the Borrower. On or within one Business Day after
receipt by the Escrow Agent of certificates from the Administrative Agents
certifying that all Obligations with respect to the Term Loans have been
paid in full, the Escrow Agent shall deliver to the Borrower all Escrowed
Notes then remaining in escrow.
3. Certain Additional Agreements. The Borrower and the Administrative
Agents shall, upon request by the Escrow Agent, execute and deliver to the
Escrow Agent such additional written instructions and certificates hereunder as
may be reasonably required by the Escrow Agent to give effect to the provisions
of Sections 1 and 2 hereof.
4. Escrow Agent.
(a) The Escrow Agent shall have no duties or responsibilities,
including, without limitation, a duty to review or interpret the Term Loan
Agreement, except those expressly set forth herein. Except for this
Agreement, the Escrow Agent, in its capacity as such, is not a party to, or
bound by, any agreement that may be required under, evidenced by, or arise
out of the Term Loan Agreement.
(b) If the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions from any of the undersigned with
respect to the Escrowed Notes, which, in its opinion, are in conflict with
any of the provisions of this Agreement, it shall be entitled to refrain
from taking any action until it shall be directed otherwise in writing by
the Borrower or the Administrative Agents or by order of a court of
competent jurisdiction. The Escrow Agent shall be protected in acting upon
any notice, request, waiver, consent, receipt or other document reasonably
believed by the Escrow Agent to be signed by the proper party or parties.
(c) The Escrow Agent shall not be liable for any error or judgment or
for any act done or step taken or omitted by it in good faith or for any
mistake of fact or law, or for anything that it may do or refrain from
doing in connection herewith, except for its own gross negligence or
willful misconduct, and the Escrow Agent shall have no duties to anyone
except the Borrower or the Administrative Agents and their respective
successors and permitted assigns.
(d) The Escrow Agent may consult legal counsel in the event of any
dispute or question as to the construction of this Agreement, or the Escrow
Agent's duties hereunder, and the Escrow Agent shall incur no liability and
shall be fully protected with respect to any action taken or omitted in
good faith in accordance with the opinion and instructions of counsel.
Escrow Agreement Page 2
(e) In the event of any disagreement between the undersigned or any
of them, and/or any other person, resulting in adverse claims and demands
being made in connection with or for the Escrowed Notes, the Escrow Agent
shall be entitled at its option to refuse to comply with any such claim or
demand, so long as such disagreement shall continue, and in so doing the
Escrow Agent shall not be or become liable for damages or interest to the
undersigned or any of them or to any person named herein for its failure or
refusal to comply with such conflicting or adverse demands. The Escrow
Agent shall be entitled to continue to so refrain and refuse to so act
until all differences shall have been resolved by agreement and the Escrow
Agent shall have been notified thereof in writing signed by the Borrower
and the Administrative Agents. In the event of such disagreement which
continues for 90 days or more, the Escrow Agent in its discretion may, but
shall be under no obligation to, file a suit in interpleader for the
purpose of having the respective rights of the claimants adjudicated and
may deposit with the court all documents and property held hereunder. The
Borrower agrees to pay all reasonable out-of-pocket costs and expenses
incurred by the Escrow Agent in such action, including reasonable
attorney's fees and disbursements.
(f) The Escrow Agent is hereby indemnified by the Borrower from all
losses, costs and expenses of any nature incurred by the Escrow Agent
arising out of or in connection with this Agreement or with the
administration of its duties hereunder, unless such losses, costs or
expenses shall have been caused by the Escrow Agent's willful misconduct or
gross negligence. Such indemnification shall survive termination of this
Agreement until extinguished by any applicable statute of limitations.
(g) The Escrow Agent does not have any interest in the Escrowed Notes
deposited hereunder but is serving as escrow holder only and having only
possession thereof. This paragraph shall survive notwithstanding any
termination of this Agreement or the resignation of the Escrow Agent.
(h) The Escrow Agent (and any successor Escrow Agent) may at any time
resign as such by giving written notice of its resignation to the parties
hereto at least 30 days prior to the date specified for such resignation to
take effect. Upon the effective date of such resignation, the Escrowed
Notes shall be delivered by it to such successor escrow agent or as
otherwise shall be instructed in writing by the Borrower and the
Administrative Agents; whereupon the Escrow Agent shall be discharged of
and from any and all further obligations arising in connection with this
Agreement. If at that time the Escrow Agent has not received such
instruction, the Escrow Agent's sole responsibility after that time shall
be to safekeep the Escrowed Notes until receipt of a designation of
successor Escrow Agent, or a joint written instruction as to disposition of
the Escrowed Notes by the Borrower and the Administrative Agents or a final
order of a court of competent jurisdiction mandating disposition of the
Escrowed Notes.
(i) The Escrow Agent hereby accepts its appointment and agrees to act
as escrow agent under the terms and conditions of this Agreement and
acknowledges receipt of the Escrowed Notes. The Borrower agrees to pay to
the Escrow Agent as payment in full for its services hereunder the Escrow
Agent's compensation set forth in Schedule I hereto. The Borrower further
agrees to reimburse the Escrow Agent for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Escrow Agent
in the performance of its duties hereunder (including reasonable fees, and
out-of-pocket expenses and disbursements, of its counsel).
Escrow Agreement Page 3
5. Notices. Any notices or other communications required or permitted
hereunder shall be effective if in writing and delivered personally or sent by
telecopier, overnight courier, Federal Express, United Parcel Service,
registered or certified mail, postage prepaid, addressed as follows:
If to the Administrative Agents or the Arrangers, to:
Xxxxxxx Xxxxx Credit Partners X.X.
Xxxxxxx Brothers Holding Company Inc.
Credit Suisse First Boston Corporation
c/o Goldman Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
If to the Borrower, to:
Crown Castle International Corp.
000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
If to the Escrow Agent, to:
United States Trust Company of New York, N.A.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxxx Xxxxxxxxxxxx
Facsimile No.:(000) 000-0000
Escrow Agreement Page 4
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx-Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Exchange Note Indenture Trustee, to:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxxxxxxx
Facsimile No.:(000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx-Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Unless otherwise specified herein, such notices or other communications shall be
deemed effective (a) on the date delivered, if delivered personally, (b) one
Business Day after being delivered, if delivered by telecopier with confirmation
of good transmission, (c) one Business Day after being sent by overnight
courier, if sent by overnight courier, (d) two Business Days after being sent by
Federal Express or United Parcel Service, if sent by Federal Express or United
Parcel Service, or (e) three Business Days after being sent, if sent by
registered or certified mail. Each of the parties hereto shall be entitled to
specify a different address by giving notice as aforesaid to each of the other
parties hereto.
6. Termination. This Agreement shall automatically terminate upon the
final distribution of the Escrowed Notes in accordance with the terms hereof.
7. Governing Law; Jurisdiction.
7.1. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of law rules thereof.
7.2. Consent to Jurisdiction. Each of the parties agrees that all
actions, suits or proceedings arising out of or based upon this Agreement or the
subject matter hereof may be brought and maintained in the federal district
court in the Southern District of New York and of any New York state court
sitting in New York City (each, a "New York Court"). Each of the parties hereto
by execution hereof (i) hereby irrevocably submits to the jurisdiction of such
court in New York, New York, for the purpose of any action, suit or proceeding
arising out of or based upon this Agreement or the subject
Escrow Agreement Page 5
matter hereof and (ii) hereby waives to the extent not prohibited by applicable
law, and agrees not to assert, by way of motion, as a defense or otherwise, in
any such action, suit or proceeding, any claim that it is not subject personally
to the jurisdiction of one of the above-named courts, that it is immune from
extraterritorial injunctive relief or other injunctive relief, that its property
is exempt or immune from attachment or execution, that any such action, suit or
proceeding may not be brought or maintained in one of the above-named courts
should be dismissed on the grounds of forum non conveniens, should be
transferred to any court other than one of the above-named courts, should be
stayed by virtue of the pendency of any other action, suit or proceeding in any
court other than one of the above-named courts, or that this Agreement or the
subject matter hereof may not be enforced in or by the above-named courts. Each
of the parties hereto hereby consents to service of process in any such suit,
action or proceeding in any manner permitted by the laws of the State of New
York, agrees that service of process by registered or certified mail, return
receipt requested, at the address specified in or pursuant to Section 5 hereof
is reasonably calculated to give actual notice and waives and agrees not to
assert by way of motion, as a defense or otherwise, in any such action, suit or
proceeding any claim that service of process made in accordance with Section 5
hereof does not constitute good and sufficient service of process. The
provisions of this Section 7.2 shall not restrict the ability of any party to
enforce in any court any judgment obtained in the federal district court in the
Southern District of New York or any New York Court.
7.3. Waiver of Jury Trial. To the extent not prohibited by any
applicable law that cannot be waived, each of the parties hereto hereby waives,
and covenants that it will not assert (whether as plaintiff, defendant, or
otherwise), any right to trial by jury in any forum in any respect of any issue,
claim, demand, cause of action, action, suit or proceeding arising out of or
based upon this Agreement or the subject matter hereof, in each case whether now
existing or hereafter arising and whether in contract or tort or otherwise. Any
of the parties hereto may file an original counterpart or a copy of this Section
7.3 with any court as written evidence of the consent of each of the parties
hereto to the waiver of his or its right to trial by jury.
7.4. Reliance. Each of the parties hereto acknowledges that it has
been informed by each other party that the provisions of this Section 7
constitute a material inducement upon which such party is relying and will rely
in entering into this Agreement and the transactions contemplated hereby.
8. Miscellaneous.
8.1. Entire Agreement; Waivers. This Agreement constitutes the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties with
respect to such subject matter. No waiver of any provision of this Agreement
(a) shall be deemed to or shall constitute a waiver of any other provision
hereof (whether or not similar), (b) shall constitute a continuing waiver unless
otherwise expressly provided therein or (c) shall be effective unless in writing
and executed by each party against whom it is to be enforced.
8.2. Amendment or Modification, etc. The parties hereto may not
amend or modify this Agreement except in such manner as may be agreed upon by a
written instrument executed by all of the parties hereto and that is consented
to in writing by the Majority Lenders. Any written amendment, modification or
waiver executed by all of the parties hereto shall be binding upon all such
parties and their respective successors and assigns.
Escrow Agreement Page 6
8.3. Headings, etc. Section and subsection headings are not to be
considered part of this Agreement, are included solely for convenience, are not
intended to be full or accurate descriptions of the content thereof and shall
not affect the construction hereof. This Agreement shall be deemed to express
the mutual intent of the parties, and no rule of strict construction shall be
applied against any party.
8.4. Severability. In the event that any provision hereof would,
under applicable law, be invalid or unenforceable in any respect, such provision
shall (to the extent permitted by applicable law) be construed by modifying or
limiting it so as to be valid and enforceable to the maximum extent compatible
with, and possible under, applicable law. The provisions hereof are severable,
and in the event any provision hereof should be held invalid or unenforceable in
any respect, it shall not invalidate, render unenforceable or otherwise affect
any other provision hereof.
8.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
8.6. Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective permitted transferees, successors and assigns (each
of which shall be deemed to be a party hereto for all purposes hereof). Except
as expressly provided herein, this Agreement shall not confer any right or
remedy upon any person other than the parties and their respective transferees,
successors and assigns.
Escrow Agreement Page 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
Crown Castle International Corp.
By: /s/ Xxxxxxx X. Xxxxx, III
--------------------------------------
Name: Xxxxxxx X. Xxxxx, III
Title: Executive Vice President and
Chief Financial Officer
Escrow Agreement Page 8
The Arrangers:
Xxxxxxx Xxxxx Credit Partners L.P.
By: Xxxxxxx, Sachs & Co.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
(Authorized Signatory)
Salomon Brothers Holding Company Inc.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
(Authorized Signatory)
Credit Suisse First Boston
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
(Authorized Signatory)
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
(Authorized Signatory)
Escrow Agreement Page 9
United States Trust Company of New York,
as Escrow Agent
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title:
Escrow Agreement Page 10
Schedule I to Escrow Agreement
Escrow Agent's Fees
Escrow Agent's Fees
Annual Fee $5,000.00
Schedule I of the Escrow Agreement Page 1
Annex A to Escrow Agreement
Form of Exchange Notice
XXXXXXX SACHS CREDIT PARTNERS X.X.
XXXXXXX BROTHERS HOLDING COMPANY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
C/O GOLDMAN SACHS & CO.
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
EXCHANGE NOTICE
Date: __________
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxxxxxxx
Re: Crown Castle International Corp. Escrow Agreement
-------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Escrow Agreement dated as of March 15,
1999 (the "Escrow Agreement"), by and among Crown Castle International Corp., a
Delaware corporation (the "Borrower"), Xxxxxxx Sachs Credit Partners L.P.,
Salomon Brothers Holding Company Inc. and Credit Suisse First Boston
Corporation, as the Arrangers under the Term Loan Agreement referred to below
(the "Arrangers"), and United States Trust Company of New York, (in its capacity
as escrow agent, the "Escrow Agent"). Capitalized terms used herein and not
otherwise defined in this Exchange Notice have the meanings assigned to them in
the Escrow Agreement.
1. Surrender of Term Note(s). Enclosed herewith [is an/are]
original Term Note[s] issued to the order of the Lender specified in Section 4
below in the aggregate principal amount of $_____________ (the "Surrendered
Note(s)").
2. Accrued and Unpaid Interest. The [aggregate] amount of accrued
and unpaid interest on the Surrendered Note(s) as of the date hereof (the
"Exchange Date") is $______, all of which is required by Section 2.3(f) of the
Term Loan Agreement to be paid in cash.
3. Interest Rate. The undersigned hereby certifies that the
interest rate on the Surrendered Note(s) on the Exchange Date will equal ___%
per annum. Pursuant to Section 2.2(c) of the Term Loan Agreement, the Exchange
Notes to be issued pursuant to this Exchange Notice will bear interest at the
rate of __% per annum [insert the interest rate then in effect on the
Surrendered Note(s) as of the Exchange Date] and shall not thereafter be subject
to adjustment or change.
4. Request for Exchange. _____________ [name of Lender] wishes to
exchange [all/$_______] of the Surrendered Note(s) to be exchanged for ____
[number] Exchange Note(s) each
Annex A of the Escrow Agreement Page 1
dated the Exchange Date, bearing interest at the rate specified in Section 3
above and made payable to the following payees:
Amount(s) Name(s) of Payee(s) Address(es) of Payee(s)
------------ -------------------- ------------------------
$______________ ____________________ ________________________
$______________ ____________________ ________________________
5. Issuance of Exchange Notes; Cancellation of Surrendered Note(s).
Not later than three Business Days after receipt of this Exchange Notice please
(a) issue the Exchange Note(s) dated the Exchange Date, bearing interest at the
rate specified in Section 3 above from and including the Exchange Date, in the
amount(s) and to the payee(s) set forth in Section 4 above, (b) deliver such
Exchange Note(s) by hand or by overnight courier to the [respective] payee(s)
identified in Section 4 above at the address(es) specified therein and (c)
deliver the Surrendered Note(s) to the Borrower for cancellation upon receipt of
evidence that all cash interest has been paid in accordance with Section 7 below
and the terms of the Term Loan Agreement.
6. Issuance of Replacement Term Note. Not later than three Business
Days from the date hereof, the Borrower shall (a) issue replacement Term Note(s)
dated the Exchange Date, bearing interest at the rate then in effect on the
Surrendered Note(s), in the aggregate amount of $_____, representing $____ of
principal on the Surrendered Note(s) not so exchanged, in the respective
amount(s) and to the payee(s) set forth below and (b) deliver such replacement
Term Note(s) by hand or by overnight courier to the [respective] payee(s)
identified in this Section 6 at the address(es) specified below:
Amount(s) Name(s) of Payee(s) Address(es) of Payee(s)
------------ -------------------- ------------------------
$______________ ____________________ ________________________
$______________ ____________________ ________________________
7. Payment of Accrued and Unpaid Interest. Not later than three
Business Days after receipt of this Exchange Notice, and in any event prior to
the cancellation of the Surrendered Notes contemplated by Section 5 above, the
Borrower shall make payment in cash in accordance with Section 2.3(f) of the
Term Loan Agreement of all accrued and unpaid interest specified in Section 2
above.
Annex A of the Escrow Agreement Page 2
Thank you in advance for your prompt attention to this Exchange
Notice.
Very truly yours,
By:
------------------------------------------
Name:
Title:
cc: United States Trust Company of New York,
in its capacity as Exchange Note
Indenture Trustee
Annex A of the Escrow Agreement Page 3
