Exhibit 4.3
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "AGREEMENT") is made and entered into as
of February __, 2000 by and among Rural Cellular Corporation (the "Issuer")
and Norwest Bank Minnesota, National Association (the "Escrow Agent"), as
trustee for the benefit of the holders ("Holders") of the Issuer's ___%
Junior Exchangeable Preferred Stock (the "Junior Preferred Stock").
W I T N E S S E T H
WHEREAS, the Issuer has filed with the Minnesota Secretary of State
that certain Certificate of Designation of Voting Power, Preferences and
Relative, Participating, Optional and Other Special Rights and
Qualifications, Limitations and Restrictions of the Junior Preferred Stock
approved and adopted by the Issuer's board of directors as of February __,
2000 (as amended, restated, supplemented or otherwise modified from time to
time, the "Certificate of Designation"), pursuant to which the Issuer is
issuing Junior Preferred Stock on the date hereof;
WHEREAS, pursuant to an Underwriting Agreement dated as of February
__, 2000 (the "Underwriting Agreement"), by and among the Issuer and TD
Securities (USA) Inc. and First Union Securities, Inc. (the "Underwriters")
and the Certificate of Designation, the Issuer is required to direct that at
the Closing Time (as defined in the Underwriting Agreement) 100% of the Net
Proceeds to the Issuer from the issuance of the Junior Preferred Stock (the
"Funds") be deposited with the Escrow Agent for the purposes of funding (in
part) the Triton Acquisition or any obligation of the Issuer to redeem the
Junior Preferred Stock that may arise under Section 5(c) of the Certificate
of Designation (collectively, the "Obligation");
WHEREAS, the Issuer has agreed to execute and deliver this Agreement
in connection with the issuance of the Junior Preferred Stock by the Issuer.
NOW, THEREFORE, in consideration of the promises herein contained, and
in order to induce the Holders of the Junior Preferred Stock to purchase the
Junior Preferred Stock, the Issuer and the Escrow Agent hereby agree, for the
benefit of the Escrow Agent and for the ratable benefit of the Holders, as
follows:
SECTION 1. DEFINITIONS; APPOINTMENT; DEPOSIT AND INVESTMENT.
1.1. DEFINITIONS.
"Acquisition Officer's Certificate" shall mean a certificate signed by
the President or any Vice President of the Issuer stating that the Triton
Acquisition has been consummated prior to the Termination Date.
"Bankruptcy Voting Rights Triggering Event" means a Voting Rights
Triggering Event under Section 7(b)(vi) of the Certificate of Designation.
"Cash Investment" means any of the following:
(a) direct obligations of the United States of America or any
agency thereof or obligations fully and unconditionally guaranteed by the
United States of America or any agency thereof with a maturity of 365 days or
less,
(b) time deposit accounts, certificates of deposit and money market
deposits maturing within one year of the date of acquisition thereof issued
by a bank or trust company which is organized under the laws of the United
States of America, any state thereof or any foreign country recognized by the
United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated
"A" (or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker
dealer or mutual fund distributor,
(c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above,
(d) commercial paper, maturing not more than one year after the
date of acquisition, issued by a corporation (other than an Affiliate of the
Issuer) organized and in existence under the laws of the United States of
America, any state thereof or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to Xxxxx'x Investors Service,
Inc. or "A-1" (or higher) according to Standard & Poor's Ratings Service, and
(e) securities with maturities of six months or less from the date
of acquisition issued or fully and unconditionally guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing
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authority thereof, and rated at least "A" by Standard & Poor's Ratings
Service or Xxxxx'x Investors Service, Inc.
"Certificate of Designation" has the meaning set forth in the
recitals.
"Escrow Agent" shall mean the Person named as the "Escrow Agent" in
Section 1.2 of this Agreement until a successor Escrow Agent shall have
become such, and thereafter "Escrow Agent" shall mean the Person who is then
the Escrow Agent hereunder.
"Escrowed Property" means (a) the Net Proceeds, (b) the Escrowed
Property Account, all funds held therein and all certificates and
instruments, if any, from time to time representing or evidencing the
Escrowed Property Account, (c) the Escrowed Property Account and all Escrowed
Property Investments and all certificates and instruments, if any,
representing or evidencing the Escrowed Property Investments, and any and all
security entitlements to the Escrowed Property Investments, and any and all
related securities accounts in which security entitlements to the Escrowed
Property Investments are carried, (d) all cash, certificates of deposit,
deposit accounts, checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Escrow Agent pursuant to this
Agreement in substitution for or in addition to any or all the then existing
Escrowed Property, and (e) all proceeds of and other distributions on or with
respect to any of the foregoing (and any other proceeds or distributions),
including, without limitation, all dividends, interest, principal payments,
cash, options, warrants, rights, instruments, subscriptions and other
property or proceeds from time to time received, receivable or otherwise
distributed or distributable in respect of or in exchange for any of the
foregoing or any security entitlement thereto.
"Escrowed Property Cash Account" means a trust account established and
maintained by the Escrow Agent at its office at X0000-000 Xxxxx Xxxxxx and
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, in the name of the Escrow
Agent, which account shall at all times be segregated from all custodial or
collateral accounts of the Escrow Agent and be under the sole dominion and
control of the Escrow Agent and subject to the terms and conditions of this
Agreement.
"Escrowed Property Investment Account" means a trust account
established and maintained by the Escrow Agent at its office at X0000-000
Xxxxx Xxxxxx and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, in the name
of the Escrow Agent, which account shall at all times be segregated from all
custodial or collateral accounts of the Escrow Agent and be under the sole
dominion and control of the Escrow Agent and subject to the terms and
conditions of this Agreement.
"Escrowed Property Investments" has the meaning set forth in Section 4.
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"Extension Officer's Certificate" means a certificate signed by the
President or any Vice President of the Issuer stating that the Triton
Acquisition will not be consummated by June 30, 2000 solely as a result of
the failure of a Person to receive the consent, approval, order or
authorization of a governmental authority necessary therefor.
"Funds" has the meaning set forth in the recitals.
"Government Book-Entry Security" means U.S. Government Obligations
maintained in book-entry form through the United States Federal Reserve Banks
pursuant to (a) the United States Treasury Department regulations codified at
31 C.F.R. Part 357, as modified by the amendments promulgated at 61 Fed. Reg.
43, 626-43, 638 (Aug. 23, 1996), or (b) substantially identical regulations
promulgated by any other agency or instrumentality of the United States whose
securities qualify as "U.S. Government Obligations" hereunder.
"Holder" means a Person in whose name a share of Junior Preferred
Stock is registered.
"Junior Preferred Stock" has the meaning set forth in the Introduction.
"Net Proceeds" means the total net proceeds to the Issuer from the
issuance of the Junior Preferred Stock (after deducting underwriting
discounts and commissions, but before deducting expenses), as shown on the
cover page of the Prospectus.
"Redemption Direction Certificate" shall mean a certificate signed by
the President or any Vice President of the Issuer directing the Escrow Agent
on how to disburse the Escrowed Property for the purpose of satisfying the
Obligation.
"Termination Date" means June 30, 2000; provided that in the event the
Triton Acquisition is not consummated by June 30, 2000 solely as a result of
the failure of any Person to receive any necessary consent, approval, order
or authorization of any governmental authority, the "Termination Date" shall
mean September 30, 2000 or such later date to which the holders of Junior
preferred stock have consented under Section 7(f) of the Certificate of
Designation.
"Triton Acquisition" means the acquisition by the Issuer of certain
assets of Triton Cellular Partners, L.P. and its affiliates and the
acquisition of one of its subsidiaries, pursuant to the Triton Acquisition
Agreement.
"Triton Acquisition Agreement" means the Asset Purchase
Agreement dated November 6, 1999 by and among Triton Cellular Partners, L.P.,
Triton Communications,
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L.L.C., Triton Cellular Alabama 5 License Company, L.L.C. and certain of
their affiliates and the Issuer.
"Underwriters" has the meaning set forth in the recitals.
"Underwriting Agreement" has the meaning set forth in the
recitals.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America.
All capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Certificate of Designation.
1.2. APPOINTMENT OF ESCROW AGENT. The Issuer and (by their
acceptance of the benefits of the Certificate of Designation and this
Agreement) the Holders each hereby appoints Norwest Bank Minnesota, National
Association, as Escrow Agent in accordance with the terms and conditions set
forth herein, and Norwest Bank Minnesota, National Association hereby
accepts such appointment. The Issuer has delivered to the Escrow Agent
the Funds, and the Escrow Agent shall deposit such Funds into the Escrowed
Property Cash Account and invest such monies in accordance with the
instructions of the Issuer.
SECTION 2. DELIVERY OF FUNDS. All certificates or instruments
representing or evidencing the Escrowed Property, including, without
limitation, amounts invested as provided in Section 4, shall be delivered to
and held by the Escrow Agent pursuant hereto. Such certificates or
instruments shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance sufficient to establish and maintain in favor of
the Escrow Agent legal title in such Escrowed Property, and shall be credited
to the Escrowed Property Investments Account. All monies and other assets
held in the Escrowed Property Cash Account and the Escrowed Property
Investments Account are property of the Escrow Agent subject to the rights
and interests of the parties hereto and the obligations created hereby.
SECTION 3. MAINTAINING THE ESCROWED PROPERTY CASH ACCOUNT. (a)
Until the Obligation is satisfied or otherwise terminates, the Escrowed
Property Cash Account shall be maintained with the Escrow Agent.
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(b) It shall be a term and condition of the Escrowed Property Cash
Account, notwithstanding any term or condition to the contrary in any other
agreement relating to the Escrowed Property Cash Account, and except as
otherwise provided by the provisions of Section 6, that no amount (including
interest on Escrowed Property Investments) shall be paid or released to or
for the account of, or withdrawn by or for the account of, the Issuer or any
other Person from the Escrowed Property Cash Account.
SECTION 4. INVESTING OF AMOUNTS IN THE ESCROWED PROPERTY CASH
ACCOUNT. If requested by the Issuer, the Escrow Agent will, subject to the
provisions of Section 6, from time to time (a) invest amounts on deposit in
the Escrowed Property Cash Account in such Cash Investments, each in the name
of or for the account of the Escrow Agent, as the Issuer may designate in
writing and (b) invest interest paid on the Cash Investments referred to in
clause (a) above, and reinvest other proceeds of any such Cash Investments
that may mature or be sold, in each case in such Cash Investments each in the
name of or for the account of the Escrow Agent, as the Issuer may designate
in writing (the Cash Investments referred to in clauses (a) and (b) above
being collectively "Escrowed Property Investments"). Interest and proceeds
that are not invested or reinvested in Escrowed Property Investments as
provided above shall be deposited and held in the Escrow Property Cash
Account. The Escrow Agent shall in no event be liable for any loss in the
investment or reinvestment of amounts held in the Escrowed Property Cash
Account in accordance with the written instructions of the Issuer. In the
event the Escrow Agent does not receive any information as to how to invest
funds in the Escrowed Property Cash Account it shall invest such funds in
Cash Investments described in clause (a) of the definition thereof.
SECTION 5. DELIVERY OF ESCROWED PROPERTY INVESTMENTS. (a) The
Escrow Agent shall become the holder of the Escrowed Property Investments (or
applicable security entitlements thereto) through the following delivery
procedures: (i) in the case of Escrowed Property Investments which are
certificated securities in registered form, delivery of the applicable
certificate(s), specially endorsed to the Escrow Agent or registered in the
name of the Escrow Agent, to the possession of (A) the Escrow Agent, (B) a
securities intermediary or financial intermediary acting on behalf of the
Escrow Agent, or (C) another Person, other than a securities intermediary or
financial intermediary, which Person acknowledges that it holds for the
Escrow Agent; (ii) in the case of Escrowed Property Investments which are
uncertificated securities, registration of one of the following as owner of
such uncertificated securities: the Escrow Agent or a Person designated by
the Escrow Agent, or a Person other than a securities intermediary or
financial intermediary, that becomes the registered owner of such
uncertificated securities and acknowledges that it holds the same for the
Escrow Agent; and (iii) in the case of all other Escrowed Property
Investments including, without limitation, any Escrowed Property Investments
in commercial paper not constituting securities, interests in money market
funds and Government Book-Entry Securities, such Escrowed Property
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Investments will be held by the Escrow Agent, a Person designated by the
Escrow Agent or another Person that acknowledges that it holds the same for
the Escrow Agent.
(b) All Escrowed Property, including Escrowed Property Investments,
shall be retained in the Escrowed Property Cash Account and the Escrowed
Property Investments Account pending disbursement pursuant to the terms
hereof; PROVIDED that the Escrowed Property Cash Account and the Escrowed
Property Investment Account may be a single trust account established and
maintained by the Escrow Agent at its office at X0000-000 Xxxxx Xxxxxx and
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, in the name of the Escrow
Agent, which account shall at all times be segregated from all custodial or
collateral accounts of the Escrow Agent and be under the sole dominion and
control of the Escrow Agent and subject to the terms and conditions of this
Agreement.
SECTION 6. DISBURSEMENTS. The Escrow Agent shall hold the Escrowed
Property and release the same, or a portion thereof, only as follows:
(a) (i) If the Escrow Agent receives, prior to 11:59 p.m.
Minneapolis, Minnesota time on June 30, 2000, an Extension Officer's
Certificate, the Escrow Agent shall continue to hold the Escrowed Property.
(ii) If the Escrow Agent (A) received, prior to 11:59 p.m.
Minneapolis, Minnesota time on June 30, 2000, an Extension Officer's
Certificate from the Issuer and (B) receives, prior to 11:59 p.m.
Minneapolis, Minnesota time on September 30, 2000 (or such later date to
which the Holders have consented in accordance with Section 7(f) of the
Certificate of Designation), an Acquisition Officer's Certificate from the
Issuer, the Escrow Agent shall disburse the Escrowed Property to, or at the
written direction of, the Issuer by wire transfer or other method agreed to
by the Issuer and the Escrow Agent. If such Acquisition Officer's
Certificate is received prior to 9:00 a.m. Minneapolis, Minnesota time on a
Business Day then such disbursement shall be made by the close of business
on the date the Escrow Agent receives such Acquisition Officer's
Certificate; provided, however, that if the Acquisition Officer's
Certificate is received by the Escrow Agent (i) on a day other than a
Business Day or (ii) after 9:00 a.m. Minneapolis, Minnesota time on such
date, then, in either instance, the Escrow Agent shall disburse the Escrowed
Property by the close of business on the next Business Day.
(b) If the Escrow Agent receives, prior to 11:59 p.m. Minneapolis,
Minnesota time on June 30, 2000, an Acquisition Officer's Certificate from
the Issuer, the Escrow Agent shall disburse the Escrowed Property to, or at
the written direction of, the Issuer by wire transfer or other method agreed
to by the Issuer and the Escrow Agent. If such Acquisition Officer's
Certificate is received prior to 9:00 a.m. Minneapolis, Minnesota time on a
Business Day then such disbursement shall
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be made by the close of business on the date the Escrow Agent receives such
Acquisition Officer's Certificate; provided, however, that if the Acquisition
Officer's Certificate is received by the Escrow Agent (i) on a day other than
a Business Day or (ii) after 9:00 a.m. Minneapolis, Minnesota time on such
date, then, in either instance, the Escrow Agent shall disburse the Escrowed
Property by the close of business on the next Business Day.
(c) (i) If the conditions in Section 6(a) or 6(b) are not satisfied by
11:59 p.m. Minneapolis, Minnesota time on the Termination Date (or, in the
event the Escrow Agent receives certificates signed by the President or any
Vice President of the Issuer stating that the Extension Officer's
Certificate or that the Acquisition Officer's Certificate, as applicable,
will not be delivered to the Escrow Agent by the relevant dates thereof), the
Issuer shall within fifteen (15) days of either such event redeem the Junior
Preferred Stock as provided by, and in accordance with, Section 5(c) of the
Certificate of Designation and, shall deliver to the Escrow Agent a
Redemption Direction Certificate. After receipt of a Redemption Direction
Certificate, the Escrow Agent shall use 100% of the Escrowed Property held
in the Escrowed Property Cash Account and Escrowed Property Investments
Account, together with any other funds provided to the Escrow Agent by the
Issuer specifically for such purpose, to satisfy the Issuer's repurchase
obligations under Section 5(c) of the Certificate of Designation, in
accordance with the Redemption Direction Certificate. If any Escrowed
Property remains after the payment for all Junior Preferred Stock redeemed,
such Escrowed Property shall be disbursed to the Issuer. Except as provided
in the succeeding clause (d), the exclusive remedy at law or equity of any
Holder (or any representative or agent on its behalf) with respect to any
failure of the Issuer to deliver to the Escrow Agent a Redemption Direction
Certificate and any resulting failure of the Issuer to satisfy any
repurchase obligation under Section 5(c) of the Certificate of Designation
shall be the occurrence of a Voting Rights Triggering Event under the
Certificate of Designation.
(d) Unless the Holders of a majority of the Junior Preferred Stock
direct the Escrow Agent otherwise, in the event (i) the Issuer fails to
deliver to the Escrow Agent a Redemption Direction Certificate pursuant to
the preceding clause (c), (ii) the Obligation has not been satisfied or
otherwise terminated and (iii) a Bankruptcy Voting Rights Triggering Event
has occurred and is continuing, then as soon as is reasonably practicable
the Escrow Agent shall apply 100% of the Escrowed Property held in the
Escrowed Property Cash Account and the Escrowed Property Investments Account
to satisfy the Obligation in accordance with Section 5 of the Certificate of
Designation.
(e) Nothing contained in Section 1, Section 4, Section 5, this Section
6 or any other provision of this Agreement shall (i) afford the Issuer any
right to issue
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entitlement orders with respect to any security entitlement to any of the
Escrowed Property Investments or any securities account in which any such
security entitlement may be carried, or otherwise afford the Issuer control
of any such security entitlement or (ii) otherwise give rise to any rights of
the Issuer with respect to any of the Escrowed Property Investments, any
security entitlement thereto or any securities account in which any such
security entitlement may be carried, other than the Issuer's beneficial
interest under this Agreement in the Escrowed Property subject to the
exclusive dominion and control (consistent with this Agreement) of the
Escrow Agent in its capacity as such (and not as a securities intermediary).
Notwithstanding anything to the contrary in the preceding sentence, the
Issuer will have the right to direct the Escrow Agent as to how to invest
the Escrowed Property pursuant to Section 4 and the last sentence of
Section 1.2.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Issuer hereby
represents and warrants that:
(a) The representations and warranties of the Issuer contained in the
Underwriting Agreement are true and correct in all material respects as of
the date hereof and were true and correct in all material respects when made
and are hereby incorporated into this Agreement by this reference.
(b) The Issuer is the beneficial owner of the Net Proceeds, free and
clear of any lien or claims of any Person or entity. No security interest
covering the Issuer's interest in the Net Proceeds currently exists which
has not been released.
(c) This Agreement has been duly authorized, validly executed
and delivered by the Issuer and constitutes a valid and binding agreement of
the Issuer, enforceable against it in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(d) No Voting Rights Triggering Event (as defined in the Certificate
of Designation) exists.
SECTION 8. COVENANTS. The Issuer covenants and agrees with the
Escrow Agent and the Holders of the Junior Preferred Stock that from and
after the date of this Agreement until the earlier of (x) the receipt of the
items referred to in Section 6(a) or 6(b) hereof or (y) the completion of the
offer to redeem the Junior Preferred Stock contemplated by Section 5(c) of
the Certificate of Designation:
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(a) that (i) they will not (and will not purport to) sell or otherwise
dispose of, or grant any option or warrant with respect to, any of the
Escrowed Property or their beneficial interest therein, and (ii) they will
not create or permit to exist any lien upon or other adverse interest in or
with respect to the Escrowed Property; and
(b) that they will not (i) enter into any agreement or understanding
that restricts or inhibits or purports to restrict or inhibit the Escrow
Agent's rights or remedies hereunder, including, without limitation, the
Escrow Agent's right to sell or otherwise dispose of the Escrowed Property
or (ii) fail to pay or discharge any tax, assessment or levy of any nature
with respect to its beneficial interest in the Escrowed Property not later
than five days prior to the date of any proposed sale under any judgment,
writ or warrant of attachment with respect to such beneficial interest.
SECTION 9. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The rights
and powers granted to the Escrow Agent hereunder are being granted in order
to establish, preserve and protect the interest of the Escrow Agent in and to
the Escrowed Property shall not be interpreted to and shall not impose any
duties on the Escrow Agent in connection therewith other than those expressly
provided herein or imposed under applicable law. Except as provided by
applicable law or by the Certificate of Designation, the Escrow Agent shall
be deemed to have exercised reasonable care in the custody and preservation
of the Escrowed Property in its possession if the Escrowed Property is
accorded treatment substantially equal to that which the Escrow Agent accords
similar property held by the Escrow Agent for its own account, it being
understood that the Escrow Agent shall not have any responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities or other matters relative to any Escrowed Property, whether or not
the Escrow Agent has or is deemed to have knowledge of such matters, (b)
taking any necessary steps to preserve rights against any parties with
respect to any Escrowed Property or (c) investing or reinvesting any of the
Escrowed Property.
SECTION 10. INDEMNITY. The Issuer shall indemnify, hold harmless
and defend the Escrow Agent and its directors, officers, agents and
employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including reasonable defense costs, reasonable
investigative fees and costs, and reasonable legal fees and damages arising
from the Escrow Agent's performance under this Agreement, except to the
extent that such claim, action, obligation, liability or expense is directly
attributable to the bad faith, gross negligence or wilful misconduct of such
indemnified Person.
SECTION 11. FEES AND EXPENSES. The Issuer will upon demand pay to
the Escrow Agent the reasonable fees of the Escrow Agent for its services
hereunder and the
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amount of any and all reasonable expenses, including, without limitation, the
reasonable fees, expenses and disbursements of its counsel, experts and
agents retained by the Escrow Agent, that the Escrow Agent may incur in
connection with (a) the review, negotiation and administration of this
Agreement (in the amounts which are hereby agreed and set forth in SCHEDULE A
hereto), (b) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Escrowed Property, (c) the exercise or
enforcement of any of the rights of the Escrow Agent and the Holders of the
Junior Preferred Stock hereunder or (d) the failure by the Issuer to perform
or observe any of the provisions hereof.
SECTION 12. MISCELLANEOUS PROVISIONS.
12.1. NOTICES. Any notice or communication shall be sufficiently
given if in writing and delivered in person or mailed by first class mail,
commercial courier service or facsimile communication, addressed as follows:
To the Issuer:
Xxx X. Xxxxxxx
Rural Cellular Corporation
P.O. Box 2000
0000 Xxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
To the Escrow Agent:
Norwest Bank Minnesota, National Association
Attn: Corporate Trust Securities - Xxxx X. Xxxxxxxxx
N 0000-000
Xxxxx Xxxxxx and Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this section to the others.
12.2. SEVERABILITY. The provisions of this Agreement are severable,
and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such
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clause or provision in any other jurisdiction or any other clause or
provision of this Agreement in any jurisdiction.
12.3. HEADINGS. The headings in this Agreement have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
12.4. COUNTERPART ORIGINALS. This Agreement may be signed in two or
more counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same agreement.
12.5. BENEFITS OF AGREEMENT. Nothing in this Agreement, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of the Junior Preferred Stock, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
12.6. AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver of
any provision of this Agreement and any consent to any departure by the
Issuer from any provision of this Agreement shall be effective only if made
or duly given in compliance with all of the terms and provisions of the
Certificate of Designation, and neither the Escrow Agent nor any Holder of
Junior Preferred Stock shall be deemed, by any act, delay, indulgence,
omission or otherwise, to have waived any right or remedy hereunder or to
have acquiesced in any breach of any of the terms and conditions hereof.
Consistent with the foregoing, this Agreement may be amended, its provisions
may be waived and departures from its provisions may be consented to by
action of the Issuer and (if applicable) the Holders of the Junior Preferred
Stock, all as provided in the Certificate of Designation; PROVIDED, HOWEVER,
that no amendment or waiver of any provision of this Agreement, or any
consent to any departure by the Issuer or any of its subsidiaries therefrom,
shall in any event be effective unless the same shall be in writing and
signed by the Escrow Agent, if such amendment, waiver or consent would
adversely affect the rights of the Escrow Agent hereunder. Failure of the
Escrow Agent, or any Holder of Junior Preferred Stock to exercise, or delay
in exercising, any right, power or privilege hereunder shall not preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Escrow Agent or any Holder of Junior Preferred
Stock of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that the Escrow Agent or such
Holder of Junior Preferred Stock would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any rights or remedies
provided by law.
12.7. INTERPRETATION OF AGREEMENT. To the extent a term or provision
of this Agreement conflicts with the Certificate of Designation, the
Certificate of Designation
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shall control with respect to the subject matter of such term or provision.
Acceptance of or acquiescence in a course of performance rendered under this
Agreement shall not be relevant to determine the meaning of this Agreement
even though the accepting or acquiescing party had knowledge of the nature of
the performance and opportunity for objection.
12.8. TERMINATION. (a) This Agreement shall remain in full force and
effect until, and terminate upon, the disbursement of the Escrowed Property
in accordance with the terms of Section 6. This Agreement shall be binding
upon the Issuer, its transferees, successors and assigns, and shall inure,
together with the rights and remedies of the Escrow Agent hereunder, to the
benefit of the Escrow Agent, the Holders of the Junior Preferred Stock and
their respective successors, transferees and assigns.
12.9. SURVIVAL PROVISIONS. All representations, warranties and
covenants of the Issuer contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the termination of
this Agreement. The obligations of the Issuer under Sections 11 and 13
hereof shall survive the termination of this Agreement.
12.10. AUTHORITY OF THE ESCROW AGENT. (a) The Escrow Agent shall have
and be entitled to exercise all powers hereunder that are specifically
granted to the Escrow Agent by the terms hereof, together with such powers as
are reasonably incident thereto. The Escrow Agent may perform any of its
duties hereunder or in connection with the Escrowed Property by or through
agents or employees and shall be entitled to retain counsel and to act in
reliance upon the advice of counsel concerning all such matters. Except as
otherwise expressly provided in this Agreement or the Certificate of
Designation, neither the Escrow Agent nor any director, officer, employee,
attorney or agent of the Escrow Agent shall be liable to the Issuer or any
other Person for any action taken or omitted to be taken by the Escrow Agent,
in its capacity as Escrow Agent, hereunder, except for its own bad faith,
gross negligence or willful misconduct, and the Escrow Agent shall not be
responsible for the validity, effectiveness or sufficiency hereof or of any
document furnished pursuant hereto. The Escrow Agent and its directors,
officers, employees, attorneys and agents shall be entitled to rely on any
communication, instrument or document reasonably believed by it or them to be
genuine and correct and to have been signed or sent by the proper person or
persons.
(b) The Issuer acknowledges that the rights and responsibilities of
the Escrow Agent under this Agreement with respect to any action taken by
the Escrow Agent or the exercise or non-exercise by the Escrow Agent of any
option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Escrow Agent and the Holders of the Junior Preferred Stock, be governed by
the Certificate of Designation and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Escrow
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Agent and the Issuer, the Escrow Agent shall be conclusively presumed to be
acting as agent for the Holders of the Junior Preferred Stock with full
and valid authority so to act or refrain from acting, and the Issuer shall
not be obligated or entitled to make any inquiry respecting such authority.
12.11. FINAL EXPRESSION. This Agreement, together with the
Certificate of Designation and any other agreement executed in connection
herewith, is intended by the parties as a final expression of this Agreement
and is intended as a complete and exclusive statement of the terms and
conditions thereof.
12.12. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
WAIVER OF DAMAGES. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THE ISSUER, THE ESCROW AGENT AND THE HOLDERS OF THE JUNIOR PREFERRED
STOCK IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. NOTWITHSTANDING THE FOREGOING:
(b) THE ISSUER AGREES THAT THE ESCROW AGENT SHALL, IN ITS CAPACITY
AS ESCROW AGENT OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF JUNIOR
PREFERRED STOCK, HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
TO PROCEED AGAINST THE ISSUER OR THE ESCROWED PROPERTY IN A COURT IN ANY
LOCATION REASONABLY SELECTED IN GOOD FAITH (AND HAVING PERSONAL OR IN REM
JURISDICTION OVER THE ISSUER OR THE ESCROWED PROPERTY, AS THE CASE MAY BE) TO
ENABLE THE ESCROW AGENT TO REALIZE ON SUCH ESCROWED PROPERTY, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE ESCROW AGENT. THE
ISSUER AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR
CROSSCLAIMS IN ANY PROCEEDING BROUGHT BY THE ESCROW AGENT TO REALIZE ON SUCH
PROPERTY OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE ESCROW
AGENT, EXCEPT FOR SUCH COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS WHICH, IF NOT
ASSERTED IN ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED.
THE ISSUER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
IN THE CITY OF NEW YORK ONCE THE ESCROW AGENT HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO
THE
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LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(c) THE ISSUER AGREES THAT NEITHER ANY HOLDER OF JUNIOR PREFERRED
STOCK NOR (EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR THE CERTIFICATE
OF DESIGNATION) THE ESCROW AGENT IN ITS CAPACITY AS ESCROW AGENT SHALL HAVE
ANY LIABILITY TO THE ISSUER (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE)
FOR LOSSES SUFFERED BY THE ISSUER IN CONNECTION WITH, ARISING OUT OF, OR IN
ANY WAY RELATED TO, THE TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP
ESTABLISHED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH, UNLESS SUCH LOSSES WERE THE RESULT OF ACTS OR OMISSIONS
ON THE PART OF THE ESCROW AGENT OR SUCH HOLDERS OF JUNIOR PREFERRED STOCK, AS
THE CASE MAY BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
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IN WITNESS WHEREOF, the Issuer and the Escrow Agent have each caused
this Agreement to be duly executed and delivered as of the date first above
written.
RURAL CELLULAR CORPORATION
By: ______________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: ______________________________
Name:
Title:
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SCHEDULE A
ESCROW FEE SCHEDULE
ACCEPTANCE FEE: $1,500.00
For initial services including examination of the Escrow Agreement and all
supporting documents this is a one-time fee payable upon the OPENING of the
account.
ADMINISTRATIVE FEE: $1500.00*
An annual charge OR ANY PORTION of a 12 month period thereof. This fee is
payable upon the OPENING of the account and annually thereafter. This charge
is not prorated for the first year. THERE IS AN ADDITIONAL $250 ANNUAL
CHARGE FOR EACH SUB ACCOUNT OPENED.
* Assumes use of Xxxxx Fargo Funds for funds on deposit.
TRANSACTION FEE:
Wire transfer of funds $25.00
Other transfer of funds (i.e. checks, internal account transfers) $15.00
Asset transactions (purchases/sales/calls/deposit/withdraws, etc.) $20.00
No charge for Xxxxx Fargo Funds transactions other than those disclosed in
the Fund Prospectus.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special
per hour charge will be made commensurate with the character of the service,
time required and responsibility involved. Such services include but are not
limited to excessive administrative time, attendance at closing, specialized
reports and record-keeping, unusual certifications, etc.
1099-Tax reporting $5.00 per report
Other Tax reporting per hour charge
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND ADJUSTMENT.
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