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EXHIBIT 10.3
SENIOR SECURED NOTE ESCROW AGREEMENT
This SENIOR SECURED NOTE ESCROW AGREEMENT (the "Agreement"), dated as
of Xxxxx 00, 0000, xxxxx Xxxxxx Xxxxxx Trust Company of New York, a corporation
duly organized and existing under the laws of the State of New York and validly
existing as a banking organization under the banking laws of the State of New
York, as escrow agent (in such capacity, the "Escrow Agent"), United States
Trust Company of New York, a corporation duly organized and existing under the
laws of the State of New York and validly existing as a banking organization
under the banking laws of the State of New York, as trustee (in such capacity,
the "Trustee") under the Indenture (as defined herein), and RBF Finance Co., a
Delaware corporation (the "Issuer").
RECITALS
A. Pursuant to the Indenture, dated as of March 26, 1999 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Indenture"), among the Issuer, R&B Falcon Corporation, a Delaware corporation
(the "Company"), as Guarantor and the Trustee, the Issuer is issuing
$400,000,000 aggregate principal amount of its 11% Senior Secured Notes due 2006
and $400,000,000 aggregate principal amount of its 11 3/8% Senior Secured Notes
due 2009 (collectively, the "Secured Notes").
B. The Issuer will enter into loan agreements with the Company (each
an "Issuer Loan Agreement") and will use the proceeds of the Secured Notes to
make loans pursuant to such Issuer Loan Agreements to the Company (each an
"Issuer Loan") to finance all or a portion of certain costs of acquiring,
constructing, altering, improving or repairing drilling rigs or drillships
(individually, a "Mortgaged Rig") or improvements to be used in connection with
the Mortgaged Rig, each such Issuer Loan to be secured by a Mortgage and/or an
Issuer Security Agreement.
C. As security for its obligations, among other things, under the
Secured Notes and the Indenture, the Issuer is required to enter into a Senior
Secured Note Security and Pledge Agreement of even date herewith (the "Secured
Note Security Agreement") with United States Trust Company of New York, as
Collateral Agent (the "Collateral Agent") and the Trustee in which the Issuer is
granting Liens on the Issuer Loans, Issuer Loan Agreements and the Liens
securing such Issuer Loans (the "Secured Note Collateral").
D. As security for its obligations, among other things, under the
Secured Notes and the Indenture, the Issuer is required to deposit the Initial
Escrow Amount (as defined herein) in a special, segregated and irrevocable
account in the name of and beneficially owned by the Issuer which is pledged to,
and to be under the sole dominion and control of, the Trustee, acting for its
benefit and the equal and ratable benefit of the Holders of the Secured Notes,
(the "Issuer Escrow Account") pending the investment of such amounts in the
Issuer Loans in accordance with the Indenture and the Issuer Loan Agreements.
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E. Under the terms of the Indenture and the Secured Note Security
Agreement, the Issuer is required to pay all payments of principal, interest,
commitment fees and other obligations on such Issuer Loans and Issuer Loan
Agreements, whether proceeds of the Secured Note Collateral or otherwise,
consisting of cash or cash equivalents to the Trustee for deposit in the Escrow
Account.
F. The parties have entered into this Agreement in order to set forth
the conditions upon which, and the manner in which, funds will be disbursed from
the Escrow Account and released from the security interest and Liens created
hereby.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. Terms used herein and not defined herein shall have
the meanings as defined in the Indenture. In addition to any other defined terms
used herein, the following terms shall constitute defined terms for purposes of
this Agreement and shall have the meanings set forth below:
"Affiliates" of any specified person means (i) any other person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such specified person or (ii) any other person who is a director or
officer (A) of such specified person, (B) of any subsidiary of such specified
person or (C) of any person described in clause (i) above or (iii) any person in
which such person has, directly or indirectly, a 5% or greater voting or
economic interest or the power to control. For purposes of this definition,
control of a person means the power, directly or indirectly, to direct or cause
the direction of the management or policies of such person whether through the
ownership of voting securities or by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applied" means that disbursed funds have been applied pursuant to
Section 3(a) or pursuant to Section 6(b)(iii).
"Available Funds" means (A) the sum of (i) all amounts deposited in the
Escrow Account from time to time and (ii) interest earned or dividends paid on
the funds in the Escrow Account (including holdings of Eligible Cash
Equivalents), less (B) the aggregate disbursements previously made pursuant to
this Agreement.
"Cash Equivalents" means (i) U.S. Governmental Obligations with a
maturity of four years or less; (ii) commercial paper issued by any corporation
if such commercial paper has credit ratings of at least "A-1" from S&P or at
least "P-1" by Xxxxx'x; (iii) certificates of deposit, bankers' acceptances,
time deposits, Eurocurrency Deposits and similar types of Investments routinely
offered by commercial banks with final maturities of one year or less issued by
commercial banks having combined capital and surplus in excess of $100,000,000;
and (iv) shares in money market mutual or similar funds having assets in excess
of $100,000,000
"Collateral" shall have the meaning given in Section 6(a) hereof.
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"Disbursement Request" means a notice sent by the Issuer and certified
by the Trustee to the Escrow Agent requesting a disbursement of funds from the
Escrow Account, in substantially the form of Exhibit A hereto. Each Disbursement
Request shall be signed by the Chairman of the Board, a Vice Chairman of the
Board, the Chief Executive Officer, the Chief Operating Officer, the Chief
Financial Officer or any Vice President of the Issuer and a Responsible Officer
of the Trustee.
"Eligible Cash Equivalents" means (i) U.S. Governmental Obligations
with a maturity of four years of less; (ii) commercial paper issued by any
corporation if such commercial paper has credit ratings of at least "A-1" from
S&P at least "P-1" by Xxxxx'x; (iii) certificates of deposit, bankers'
acceptances, time deposits, Eurocurrency Deposits and similar types of
Investments routinely offered by commercial banks with final maturities of one
year or less issued by commercial banks having combined capital and surplus in
excess of $100,000,000; and (iv) shares in money market mutual or similar funds
having assets in excess of $100,000,000.
"Escrow Account" shall have the meaning given in Section 2(b).
"Escrow Account Statement" shall have the meaning given in Section
2(g).
"Escrow Agent" shall have the meaning set forth in the preamble to this
Agreement.
"Event of Default" means an "Event of Default" as defined in Section
6.1 of the Indenture.
"Initial Escrow Amount" shall mean $800,000,000 of the proceeds
received by the Issuer from the sale of the Secured Notes pursuant to the
Purchase Agreement.
"Interest Payment Date" means March 15 and September 15 of each year,
commencing on September 15, 1999, until the Secured Notes are paid in full.
"Issue Date" means March 26, 1999.
"Trustee" shall include any successor Trustee appointed pursuant to the
Indenture.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
2. Escrow Account; Escrow Agent.
(a) Appointment of Escrow Agent. The Issuer and the Trustee hereby
appoint the Escrow Agent, and the Escrow Agent hereby accepts appointment, as
escrow agent, under the terms and conditions of this Agreement.
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(b) Establishment of the Escrow Account. Concurrent with the execution
and delivery hereof, the Escrow Agent shall establish and maintain in the name
of the Issuer at Untied States Trust Company of New York, a special, segregated
and irrevocable escrow account designated "Senior Secured Note Escrow Account
pledged by RBF Finance Co. to United States Trust Company of New York, as
Trustee" (the "Escrow Account"). All funds accepted by the Escrow Agent pursuant
to this Agreement shall be deposited in the name of and beneficially owned by
the Issuer and pledged to, and under the sole dominion and control of, the
Trustee, acting for its benefit and the equal and ratable benefit of the Holders
of the Secured Notes. All such funds shall be held in the Escrow Account until
disbursed in accordance with the terms hereof. The Escrow Account, the funds
held therein and any Eligible Cash Equivalents held by the Escrow Agent in which
such funds are invested shall be beneficially owned by the Issuer and pledged to
and under the sole dominion and control of the Trustee, acting for its benefit
and the equal and ratable benefit of the Holders of the Secured Notes.
Concurrently with the execution and delivery hereof, the Issuer shall deliver
the Initial Escrow Amount to the Escrow Agent for deposit into the Escrow
Account against the Escrow Agent's written acknowledgement and receipt of the
Initial Escrow Amount.
c) The Issuer shall provide notice to the Collateral Agent and the
Trustee of the source of any moneys deposited to the Escrow Account other than
the Initial Escrow Amount by reference to the applicable provisions of the
Indenture and Issuer Loan Agreements and shall keep an ongoing record of the
amounts so deposited and disbursed in accordance with this Escrow Agreement. It
shall be the Issuer's responsibility to satisfy the Trustee as to the accounting
for the Escrow Account, with a view to ensuring that the amounts required to be
calculated for any disbursement are ascertainable.
(d) Escrow Agent Compensation. The Issuer shall pay to the Escrow Agent
such compensation for services to be performed by it under this Agreement as the
Issuer and the Escrow Agent may agree in writing from time to time. The Escrow
Agent shall be paid any compensation owed to it directly by the Issuer and shall
not disburse from the Escrow Account any such amounts. The Issuer shall
reimburse the Escrow Agent upon request for all reasonable expenses,
disbursements, and advances incurred or made by the Escrow Agent in implementing
any of the provisions of this Agreement, including compensation and the
reasonable expenses and disbursements of its counsel. The Escrow Agent shall be
paid any such expenses owed to it directly by the Issuer and shall not disburse
from the Escrow Account any such amounts.
The provisions of this Section 2(d) shall survive termination of this
Agreement.
(e) Investment of Funds in the Escrow Account. Pending investment
thereof in accordance with the Indenture, funds deposited in the Escrow Account
shall be invested and reinvested only upon the following terms and conditions:
(i) Acceptable Investments. All funds deposited or held in the
Escrow Account at any time shall be invested, at the direction of the
Issuer except during the continuance of a Default or an Event of
Default, and then only at the direction of the Trustee, by the Escrow
Agent in Eligible Cash Equivalents which constitute
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Permitted Investments for the Issuer in accordance with the Issuer's or
the Trustee's written instructions, as applicable, from time to time to
the Escrow Agent; provided, however, that any such written instruction
shall specify the particular Investment to be made, shall contain the
certification referred to in Section 2(e)(ii), if required, and shall
be executed by any officer of the Issuer. All Eligible Cash Equivalents
shall be assigned to and held in the possession of, or, in the case of
Eligible Cash Equivalents maintained in book entry form with the
Federal Reserve Bank, transferred to a book entry account in the name
of, the Escrow Agent, as pledgee, with such guarantees as are
customary, except that Eligible Cash Equivalents maintained in book
entry form with the Federal Reserve Bank shall be transferred to a book
entry account in the name of the Escrow Agent at the Federal Reserve
Bank that includes only Eligible Cash Equivalents held by the Escrow
Agent for its customers and segregated by separate recordation in the
books and records of the Escrow Agent.
(ii) Security Interest in and Lien on Investments. No investment
of funds in the Escrow Account shall be made unless the Issuer has
certified to the Escrow Agent and the Trustee that, upon such
investment, the Trustee will have a first priority perfected Lien and
security interest for the benefit of the Trustee and the equal and
ratable benefit of the Holders of the Secured Notes in the applicable
Investment. A certificate as to a class of investments need not be
issued with respect to individual investments in securities in that
class if the certificate applicable to the class remains accurate with
respect to such individual investments, which continued accuracy the
Escrow Agent may conclusively assume. Promptly after the Issue Date,
and within 3 months after the anniversary of the Issue Date, until the
payment in full of the Secured Notes in accordance with the terms
thereof and of the Indenture, and all other Obligations then due and
owing under the Secured Notes, the Indenture, this Agreement and the
Security Agreements (as defined in the Indenture), the Issuer shall
provide to the Trustee and the Escrow Agent, an Opinion of Counsel,
dated each such date as applicable, which opinion shall meet the
requirements of Section 314(b) of the Trust Indenture Act of 1939, as
amended (the "TIA").
(iii) Interest and Dividends. All interest earned and dividends
paid on funds invested in Eligible Cash Equivalents shall be deposited
in the Escrow Account as additional Collateral beneficially owned by
the Issuer and pledged to the Trustee, acting for its benefit and the
equal and ratable benefit of the Holders of the Secured Notes, and
shall be reinvested in accordance with the terms hereof.
(iv) Limitation on Escrow Agent's Responsibilities. The Escrow
Agent's sole responsibilities under this Section 2 shall be (A) to
retain, or cause its agent in the State of New York to retain,
possession of certificated Eligible Cash Equivalents (except, however,
that the Escrow Agent may surrender possession of any such Eligible
Cash Equivalent to the issuer thereof for the purpose of effecting
assignment, crediting interest, or reinvesting such security or
reducing such security to cash) and to be the registered or designated
owner of Eligible Cash Equivalents which are not certificated, (B) to
follow the Issuer's or
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the Trustee's written instructions, as applicable, given in accordance
with Section 2(e)(i), (C) to invest and reinvest funds pursuant to this
Section 2(e) and (D) to use reasonable efforts to reduce to cash such
Eligible Cash Equivalents as may be required to fund any disbursement
or payment in accordance with Section 3. In connection with clause (i)
above, the Escrow Agent will maintain, or cause its agent in the State
of New York to maintain, continuous possession in the State of New York
of certificated Eligible Cash Equivalents and cash included in the
Collateral and will cause uncertificated Eligible Cash Equivalents to
be registered in the book-entry system of, and transferred to an
account of the Escrow Agent or a sub-agent of the Escrow Agent at, the
Federal Reserve Bank of New York. Except as provided in Section 6, the
Escrow Agent shall have no other responsibilities with respect to
perfecting or maintaining the perfection of the Trustee's Liens and
security interest in the Secured Note Collateral and shall not be
required to file any instrument, document or notice in any public
office at any time or times. In connection with clause (D) above,
except as set forth below, the Escrow Agent shall not be required to
reduce to cash any Eligible Cash Equivalents to fund any disbursement
or payment in accordance with Section 3 in the absence of written
instructions signed by an officer of the Issuer specifying the
particular investment to liquidate unless a Default or Event of Default
has occurred and is continuing, in which case such written instructions
shall be signed by a Trust Officer of the Trustee. If no such written
instructions are received, the Escrow Agent shall liquidate those
Eligible Cash Equivalents having the lowest interest rate per annum,
regardless of maturity, or if none such exist, those having the nearest
maturity. The Escrow Agent shall have no duty to determine whether or
not to file or record any document or instrument in connection with
this Agreement, but will follow the instructions of the Trustee.
(f) Substitution of Escrow Agent. The Escrow Agent may resign by giving
not less than 30 days' prior written notice to the Issuer and the Trustee. Such
resignation shall take effect upon the later to occur of (i) delivery of all
funds and Eligible Cash Equivalents maintained by the Escrow Agent hereunder and
copies of all books, records and other documents in the Escrow Agent's
possession relating to such funds or Eligible Cash Equivalents or this Agreement
to a successor Escrow Agent mutually approved by the Issuer and the Trustee
(which approvals shall not be unreasonably withheld or delayed) and (ii) the
Issuer, the Trustee and such successor Escrow Agent entering into this Agreement
or any written successor agreement no less favorable to the interests of the
Holders of the Secured Notes and the Trustee than this Agreement; and the Escrow
Agent shall thereupon be discharged of all obligations under this Agreement and
shall have no further duties, obligations or responsibilities in connection
herewith, except as set forth in Section 4. If a successor Escrow Agent has not
been appointed or has not accepted such appointment within 30 days after notice
of resignation is given to the Issuer, the Escrow Agent may apply to a court of
competent jurisdiction for the appointment of a successor Escrow Agent.
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3. Disbursements.
(a) Disbursement Request; Disbursements.
(i) On or before the Closing Date for an Issuer Loan, as determined
by the applicable Issuer Loan Agreement, the Issuer and the Trustee
shall submit to the Escrow Agent a completed Disbursement Request
substantially in the form of Exhibit A hereto requesting funds from the
Escrow Account in the amount of the aggregate principal amount of the
advances to be made on such Issuer Loan on such Closing Date. In such
Disbursement Request, the Company shall certify that it has satisfied
the conditions set forth in Section 3.1 of the applicable Issuer Loan
Agreement which it is required to satisfy prior to the Issuer's being
requested to make such advances. The Trustee is not required to execute
the Disbursement Request unless it has determined in its sole and
absolute discretion that such preconditions have been satisfied.
Provided that any such Disbursement Request is not rejected by it, the
Escrow Agent, at least on (or if the Trustee and the Escrow Agent are
not the same entity, two Business Days after) receipt of such
Disbursement Request, shall disburse the funds requested in such
Disbursement Request by wire or book-entry transfer of immediately
available funds to the Trustee. The Escrow Agent shall notify the
Trustee as soon as reasonably possible if any such Disbursement Request
is rejected and the reason(s) therefor.
(ii) At least two Business Days prior to any date on which a
disbursement from the Escrow Account is required for a payment on the
Secured Notes, including an Interest Payment Date, a Redemption Date or
a Change of Control Payment Date, the Issuer and the Trustee shall
submit to the Escrow Agent a completed Disbursement Request
substantially in the form of Exhibit A hereto requesting funds from the
Escrow Account in an amount equal to the aggregate amount of principal,
premium, if any, and the interest (including Special Interest, if any,
and Additional Amounts, if any) owed on the Secured Notes under the
Indenture on such Interest Payment Date, Redemption Date or Change of
Control Payment Date, as the case may be, unless the Issuer has
disbursed and the Trustee has received funds from the Issuer in such
amount on or before such Interest Payment Date, Redemption Date or
Change of Control Payment Date.
(iii) If an Event of Default under the Indenture has occurred and
is continuing, the Trustee shall be entitled unilaterally to initiate
withdrawals by executing a Disbursement Request which will be
substantially similar to the form of Exhibit A but which need only to
be executed by the Trustee.
(b) Conditions Precedent to Disbursement. Subject to Section 4 and any
mandatory provisions of applicable law, the Escrow Agent shall make the payments
to be made pursuant to a completed Disbursement Request if (i) the Issuer shall
have submitted, in accordance with the provisions of Section 3(a) herein, such
Disbursement Request to the Escrow Agent substantially in the form of Exhibit A
with blanks appropriately filled in containing the signed certification of the
Trustee included in such form and (ii) the Escrow Agent shall not have received
any notice from the Trustee that as a result of an Event of Default the
Indebtedness represented by the Secured Notes has been accelerated and has
become due and payable (in which event the Escrow Agent shall apply all
Available Funds as required by Section 6(b)(iii)).
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(c) No Distributions. Provided that no Event of Default has occurred
and is continuing, the Issuer shall initiate all requests for withdrawal of
funds from the Escrow Account by executing a Disbursement Request and submitting
such request to the Trustee. However, the Issuer shall not be entitled to direct
the Escrow Agent to make distributions from the Escrow Account except upon
certification by the Trustee on a Disbursement Request that the applicable
conditions of the Indenture and the applicable Issuer Loan Agreement have been
satisfied, as provided in Section 3(a). The Trustee shall not, except following
an Event of Default, be entitled unilaterally to initiate withdrawals.
(d) Deposits Irrevocable. Any deposits made into the Escrow Account
hereunder shall be irrevocable and the amount of such deposits and any
instrument or security held in the Escrow Account hereunder and all interest
thereon shall be held in trust by the Escrow Agent and applied solely as
provided herein.
4. Limitation of the Escrow Agent's Liability: Responsibilities of the
Escrow Agent. The Escrow Agent's responsibility and liability under this
Agreement shall be limited as follows: (i) the Escrow Agent does not represent,
warrant or guaranty to the Holders of the Secured Notes from time to time the
performance of the Issuer; (ii) the Escrow Agent shall have no responsibility to
the Issuer or the Holders of the Secured Notes or the Trustee from time to time
as a consequence of performance or non-performance by the Escrow Agent
hereunder, except for any negligence or willful misconduct of the Escrow Agent;
(iii) the Issuer shall remain solely responsible for all aspects of the Issuer's
business and conduct; and (iv) the Escrow Agent is not obligated to supervise,
inspect or inform the Issuer or any third party of any matter referred to above.
No implied covenants or obligations shall be inferred from this
Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the
provisions of any agreement beyond the specific terms hereof. Specifically and
without limiting the foregoing, the Escrow Agent shall in no event have any
liability in connection with its investment, reinvestment or liquidation, in
good faith and in accordance with the terms hereof, of any funds or Eligible
Cash Equivalents held by it hereunder, including without limitation any
liability for any delay not resulting from negligence or willful misconduct in
such investment, reinvestment or liquidation, or for any loss of principal or
income incident to any such delay.
The Escrow Agent shall be entitled to rely upon any judicial order or
judgment, upon any written opinion of counsel or upon any certification,
instruction, notice, or other writing delivered to it by the Issuer or the
Trustee in compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity of service thereof. The Escrow Agent may
act in reliance upon any instrument comporting with the provisions of this
Agreement or signature believed by it to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
The Escrow Agent may act pursuant to the oral or written advice of
counsel chosen by it with respect to any matter relating to this Agreement and
(subject to clause (ii) of
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the first paragraph of this Section 4) shall not be liable for any action taken
or omitted in accordance with such advice.
The Escrow Agent shall not be called upon to advise any party as to
selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this Agreement with
respect to any funds or property deposited hereunder, the Escrow Agent shall be
entitled to refuse to comply with any and all claims, demands or instructions
with respect to such funds or property, and the Escrow Agent shall not be or
become liable for its failure or refusal to comply with conflicting claims,
demands or instructions. The Escrow Agent shall be entitled to refuse to act
until either any conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting claimants as evidenced in a writing, satisfactory to the
Escrow Agent, or the Escrow Agent shall have received security or an indemnity
satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless
from and against any and all loss, liability or expense which the Escrow Agent
may incur by reason of its acting. The Escrow Agent may in addition elect in its
sole option to commence an interpleader action or seek other judicial relief or
orders as the Escrow Agent may deem necessary.
No provision of this Agreement shall require the Escrow Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
5. Indemnity. The Issuer shall indemnify, hold harmless and defend the
Escrow Agent and its directors, officers, agents, employees and controlling
persons, from and against any and all claims, actions, obligations, liabilities
and expenses, including defense costs, investigative fees and costs, legal fees,
and claims for damages, arising from the Escrow Agent's performance under this
Agreement, except to the extent that such liability, expense or claim is
directly attributable to the negligence or willful misconduct of any of the
foregoing persons. The provisions of this Section shall survive any termination,
satisfaction or discharge of this Agreement as well as the resignation or
removal of the Escrow Agent. The provisions of this paragraph 5 shall survive
the termination of this Agreement.
6. Grant of Liens and Security Interest: Instructions to Escrow Agent.
(a) The Issuer hereby irrevocably grants a first priority security
interest in and Lien on, and pledges, assigns and sets over to the Trustee,
acting for its benefit and the equal and ratable benefit of the Holders of the
Secured Notes, all of the Issuer's right, title and interest in the Escrow
Account, and all property now or hereafter placed or deposited in, or delivered
to the Escrow Agent for placement or deposit in, the Escrow Account, including,
without limitation, all funds held therein, all Eligible Cash Equivalents held
by (or otherwise maintained in the name of) the Escrow Agent pursuant to Section
2, and all proceeds thereof as well as all rights of the Issuer under this
Agreement (collectively, the "Collateral"), in order to secure all obligations
and indebtedness of the Issuer under the Secured Notes and any other obligation,
now or hereafter arising, of every kind and nature, owed by the Issuer, the
Company as Guarantor or the
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Subsidiary Guarantors, if any, under the Indenture, the Guarantee, the
Subsidiary Guarantees or the Security Agreements to the Holders of the Secured
Notes or to the Trustee. The Escrow Agent hereby acknowledges the Trustee's
security interest and Lien as set forth above. The Issuer shall take all actions
necessary on its part to insure the continuance of a first priority security
interest in and Lien on the Collateral in favor of the Trustee in order to
secure all such obligations and indebtedness.
(b) The Issuer and the Trustee hereby irrevocably instruct the Escrow
Agent to, and the Escrow Agent shall, (i) (A) at all times maintain sole
dominion and control over funds and Eligible Cash Equivalents in the Escrow
Account, acting for the benefit of the Trustee to the extent specifically
required herein, (B) maintain, or cause its agent within the State of New York
to maintain, possession of all certificated Eligible Cash Equivalents purchased
hereunder that are physically possessed by the Escrow Agent in order for the
Trustee to enjoy a continuous perfected first priority security interest therein
under the law of the State of New York (the Issuer hereby agreeing that in the
event any certificated Eligible Cash Equivalents are in the possession of the
Issuer or a third party, the Issuer shall use its best efforts to deliver all
such certificates to the Escrow Agent), (C) take all steps specified by the
Issuer pursuant to paragraph (a) above to cause the Trustee to enjoy a
continuous perfected first priority security interest and Liens under the New
York Uniform Commercial Code and any applicable law of the State of New York in
all Eligible Cash Equivalents purchased hereunder that are not certificated and
(D) maintain the Collateral free and clear of all Liens, security interests,
safekeeping or other charges, demands and claims against the Escrow Agent of any
nature now or hereafter existing in favor of anyone other than the Trustee; (ii)
promptly notify the Trustee if the Escrow Agent receives written notice that any
Person other than the Trustee has or claims to have a Lien on or security
interest in any portion of the Collateral and (iii) upon receipt of written
notice from the Trustee of the acceleration of the maturity of the Secured
Notes, and direction from the Trustee to disburse all Available Funds to the
Trustee, as promptly as practicable disburse all funds held in the Escrow
Account to the Trustee and transfer title to all Eligible Cash Equivalents held
by the Escrow Agent hereunder to the Trustee. The Escrow Agent shall not have
any right to receive compensation from the Trustee and is without any authority
to obligate the Trustee or to compromise or pledge its security interest and
Lien hereunder. Accordingly, the Escrow Agent is hereby directed to cooperate
with the Trustee in the exercise of its respective rights in the Collateral
provided for herein.
(c) Any money and Eligible Cash Equivalents collected by the Trustee
pursuant to Section 6(b)(iii) shall be applied as provided in Section 6.2 of the
Indenture.
(d) Upon demand, the Issuer will execute and deliver to the Trustee
such instruments and documents as the Trustee may reasonably deem necessary or
advisable to confirm or perfect the rights of the Trustee under this Agreement
and the Trustee's interest in the Collateral. The Trustee shall be entitled to
take all necessary action to preserve and protect the security interest created
hereby as a Lien and encumbrance upon the Collateral.
(e) The Issuer hereby appoints the Trustee as its attorney-in-fact with
full power of substitution, exercisable upon the occurrence and during the
continuance of a Default or Event of Default, to do any act which the Issuer is
obligated hereto to do, and the Trustee may, but shall not be obligated to,
exercise such rights as the Issuer might exercise with respect to the
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Collateral and take any action in the Issuer's name to protect the Trustee'
Liens and security interest hereunder. In addition to the rights provided under
Section 6(b)(iii) hereof, upon an Event of Default as defined in the Indenture
and for so long as such Event of Default continues, the Trustee may exercise in
respect of the Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party under the New York Uniform Commercial Code or other applicable law, and
the Trustee may also upon obtaining possession of the Collateral as set forth
herein, without notice to the Issuer except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange, broker's board or at any of the Trustee's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as the
Trustee may deem commercially reasonable. The Issuer acknowledges and agrees
that any such private sale may result in prices and other terms less favorable
to the seller than if such sale were a public sale. The Issuer agrees that, to
the extent notice of sale shall be required by law, at least ten (10) days'
notice to the Issuer of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable notification.
The Trustee shall not be obligated to make any sale regardless of notice of sale
having been given. The Trustee may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
7. Termination. This Agreement shall terminate automatically ten (10)
days following disbursement of all funds remaining in the Escrow Account
(including Eligible Cash Equivalents) and the payment in full of the Secured
Notes and all other Obligations then due and owing under the Indenture, the
guarantees thereunder and the Secured Note Collateral Documents, unless sooner
terminated by agreement of the parties hereto (in accordance with the terms
hereof, not in violation of the Indenture; the Trustee may not agree to
terminate this Agreement unless it has received the consent of 100% of the
Holders of all of the Secured Notes outstanding); provided, however, that the
obligations of the Issuer under Section 2(d) and Section 5 (and any existing
claims thereunder) shall survive termination of this Agreement or the
resignation of the Escrow Agent; provided, further, however, that until such
tenth day, the Issuer will cause this Agreement (or any permitted successor
agreement) to remain in effect and will cause there to be an Escrow Agent
(including any permitted successor thereto) acting hereunder (or under any such
permitted successor agreement).
8. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach of this
Agreement by any other party, but no such waiver shall be deemed to have been
given unless such waiver is in writing, signed by the waiving party and
specifically designating the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
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(c) Assignment. This Agreement is personal to the parties hereto, and
the rights and duties of any party hereunder shall not be assignable except with
the prior written consent of the other parties. Notwithstanding the foregoing,
this Agreement shall inure to and be binding upon the parties and their
successors and permitted assigns. Nothing herein shall restrict the Escrow Agent
from performing its duties through a sub-agent.
(d) Benefit. The parties hereto and their successors and permitted
assigns, but no others, shall be bound hereby and entitled to the benefits
hereof; provided, however, that the Holders of the Secured Notes and their
permitted assigns shall be entitled to the benefits hereof and to enforce this
Agreement.
(e) Time. Time is of the essence with respect to each provision of this
Agreement.
(f) Entire Agreement; Amendments. This Agreement, the Indenture and the
[Secured Note Collateral Documents] contain the entire agreement among the
parties with respect to the subject matter hereof and supersede any and all
prior agreements, understandings and commitments, whether oral or written. This
Agreement may be amended only in accordance with Article X of the Indenture and
further by a writing signed by a duly authorized representative of each party
hereto.
(g) Notices. All notices and other communications required or permitted
to be given or made under this Agreement shall be in writing and shall be deemed
to have been duly given and received, regardless of when and whether received,
either: (a) on the day of hand delivery; (b) three Business Days following the
day sent, when sent by United States certified mail, postage and certification
fee prepaid, return receipt requested, addressed asset forth below; (c) when
transmitted by telecopy with verbal confirmation of receipt by the telecopy
operator to the telecopy number set forth below; or (d) one business day
following the day timely delivered to a next-day air courier addressed as set
forth below:
To Escrow Agent:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
telecopy: 000-000-0000
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To the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
telecopy: 000-000-0000
To the Issuer:
RBF Finance Co.
000 Xxxxxxxxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for convenience only and
shall not be considered or referred to in resolving questions of interpretation
of this Agreement.
(j) Choice of Law: Waiver of Jury Trial. The existence, validity,
construction, operation and effect of any and all terms and provisions of this
Agreement shall be determined in accordance with and governed by the laws of the
State of New York, without regard to principles of conflicts of law. The parties
to this Agreement hereby agree that jurisdiction over such parties and over the
subject matter of any action or proceeding arising under this Agreement may be
exercised by a competent Court of the State of New York, or by a United States
Federal Court, sitting in The City of New York. The Issuer hereby submits to the
personal jurisdiction of such courts, hereby waives personal service of process
upon it and hereby waives, to the extent permitted by applicable law, the right
to a trial by jury in any action or proceeding with the Escrow Agent. All
actions and proceedings brought by the Issuer against the Escrow Agent relating
to or arising from, directly or indirectly, this Agreement shall be litigated
only in courts within the State of New York. The Issuer waives any objection
that it may have to the location of the court in which the Escrow Agent has
commenced a proceeding described in this paragraph including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens.
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(k) Authority of the Issuer; Valid and Binding Agreement. The Issuer
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered on its behalf and constitutes the legal, valid and
binding obligation of the Issuer. The execution, delivery and performance of
this Agreement by the Issuer does not violate any applicable law or regulation
to which the Issuer is subject and does not require the consent of any
governmental or other regulatory body to which the Issuer is subject, except for
such consents and approvals as have been obtained and are in full force and
effect.
(l) Authority of the Escrow Agent and the Trustee: Valid and Binding
Agreement. Each of the Escrow Agent and the Trustee hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered on
its behalf and constitutes its legal, valid and binding obligation.
(m) Agent for Service: Submission to Jurisdiction: Waiver of
Immunities. By the execution and delivery of this Agreement, the Issuer (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or
any successor), as its authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to this Agreement that may be
instituted in any federal or state court in the State of New York, or brought
under federal or state securities laws, and acknowledges that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding, and (iii) agrees that service of
process upon CT Corporation System (or any successor) and written notice of said
service to the Issuer shall be deemed in every respect effective service of
process upon the Issuer in any such suit or proceeding. The Issuer further
agrees to take any and all action, including the execution and filing of any and
all such documents and instrument, as may be necessary to continue such
destination and appointment of CT Corporation System (or any successor) in full
force and effect so long as any of the Secured Notes shall be outstanding.
To the extent that the Issuer has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement, to the extent permitted by law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Account Agreement as of the day first above written.
ESCROW AGENT: UNITED STATES TRUST COMPANY
OF NEW YORK
as Escrow Agent
By: /S/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TRUSTEE: UNITED STATES TRUST COMPANY
OF NEW YORK
as Trustee
By: /S/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ISSUER: RBF FINANCE CO.
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
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EXHIBIT A
Form of Disbursement Request
[Letterhead of the Issuer]
[Date]
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No.
[indicate whether revised]
Ladies and Gentlemen:
We refer to the Senior Secured Note Escrow Agreement (the "Escrow
Agreement"), dated as of March 26, 1999 among you (the "Escrow Agent"), United
States Trust Company of New York as Trustee, and RBF Finance Co., a Delaware
corporation (the "Issuer"). Capitalized terms used herein shall have the meaning
given in the Escrow Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement.
The undersigned hereby notifies you that the Issuer has requested, and
has satisfied the conditions contained in Section 3.1(a) of the Indenture for,
the release of $___________ , from the Escrow Account which was deposited
therein as a result of [specify source of deposit, i.e., payment made on Issuer
Loan,] of $____________ , which amount will be invested or used as follows:
[funding of an Issuer Loan pursuant to a specified Issuer Loan
Agreement]
[e.g., payment of principal of, premium, if any, on or interest on the
Secured Notes]
In connection with the requested disbursement, the undersigned hereby
certifies to you that:
1. The Secured Notes have [not], as a result of an Event of Default
(as defined in the Indenture), been accelerated and become due and payable.
2. The conditions to funding the Issuer Loan referred to above, as set
forth in the specified Issuer Loan Agreement have been satisfied.
3. [add wire instructions].
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The Escrow Agent is entitled to rely on the foregoing in disbursing
funds relating to this Disbursement Request.
RBF FINANCE CO.
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
The Trustee hereby certifies to the Escrow Agent that it has received
the applicable Officers' Certificate described in Section 11.5 of the Indenture
for the release of the funds to be disbursed pursuant to the foregoing
Disbursement Request.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
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