EXECUTION COPY
SECOND SUPPLEMENTAL INDENTURE, dated as of the 16th day of August,
2002, among XXXXXX XXXXXXX LLC, a limited liability company duly organized and
existing under the laws of the State of Delaware (the "COMPANY") and successor
by merger to the obligations of Xxxxxx Xxxxxxx Corporation, a corporation
previously organized and existing under the laws of the State of New York, each
of the entities listed on Schedule I attached hereto (all such entities,
collectively, the "GUARANTORS" and each, a "Guarantor"), and BNY MIDWEST TRUST
COMPANY, an Illinois trust company, as Trustee (the "TRUSTEE") and successor to
the obligations of Xxxxxx Trust and Savings Bank, an Illinois banking
corporation.
WHEREAS, the Company and the Trustee have entered into an Indenture
dated as of November 15, 1995, as amended (the "Indenture") to provide for the
issuance from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness, which may be convertible into shares of Capital Stock
(as such term is defined in the Indenture) of the Company to be issued in one or
more series as provided in the Indenture.
WHEREAS, the Indenture was previously amended by the Amended and
Restated First Supplemental Indenture, dated as of August 10, 2001, among the
Company, Xxxxxx Xxxxxxx USA Corporation, Xxxxxx Xxxxxxx Energy International,
Inc., Xxxxxx Xxxxxxx Energy Corporation, Xxxxxx Xxxxxxx Inc., Xxxxxx Xxxxxxx
International Holdings, Inc., Xxxxxx Xxxxxxx, Ltd., Foreign Holdings Ltd. and
BNY Midwest Trust Company (the "Restated First Supplemental Indenture").
WHEREAS, Section 1004 of the Indenture provides that, except as
expressly permitted therein, the Company will not, and will not permit any
Subsidiary (as such term is defined in the Indenture) to, incur, issue, assume
or guarantee any Debt (as such term is defined in the Indenture) secured after
the date of the Indenture by pledge of, or mortgage or other lien on ("Lien"),
any Principal Property (as such term is defined in the Indenture) of the Company
or any Subsidiary, or any shares of stock or Debt of any Subsidiary (such
Principal Property and shares of stock and Debt are collectively referred to as
the "Restricted Collateral") without effectively providing that the Debt
Securities (as such term is defined in the Indenture) of all series issued
pursuant to the Indenture shall be secured equally and ratably with such secured
Debt, so long as such secured Debt shall be so secured.
WHEREAS, the Company desires to secure its obligations under, and
certain of the Company's Subsidiaries desire to secure their guarantees of the
Company's obligations under, that certain Third Amended and Restated Term Loan
and Revolving Credit Agreement, dated as of August 16, 2002, among the Company,
the Guarantors signatory thereto, Bank of America, N.A., as Administrative Agent
and Collateral Agent, and the lenders party thereto, by the creation of security
interests in certain property of the Company or its Subsidiaries, as the case
may be.
WHEREAS, pursuant to Section 1004 of the Indenture, the Company and
those Guarantors that are Subsidiaries of the Company desire to secure their
respective obligations in respect of the Debt hereunder (including under the New
Guaranty referred to below) by a Lien on the Restricted Collateral as, and to
the extent, required by the Indenture.
WHEREAS, Section 901 of the Indenture provides that the Company may
enter into one or more supplemental indentures without the written consent of
any Holders (as such term is defined in the Indenture), when authorized by Board
Resolutions (as such term is defined in the Indenture) and in form satisfactory
to the Trustee, to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities (as defined in the Indenture) any property or
assets.
WHEREAS, all acts and things prescribed by the Indenture, by law and
by the certificate of incorporation and the by-laws of the Company, the
Guarantors and of the Trustee necessary to make this Second Supplemental
Indenture a valid instrument legally binding on the Company, the Guarantors and
the Trustee, in accordance with its terms, have been duly done and performed.
WHEREAS, the Company on November 15, 1995 issued $200 million in
aggregate principal amount of its 6 3/4% Notes due November 15, 2005 (the
"NOTES") pursuant to the Indenture on behalf of the holders from time to time of
the Notes (the "Noteholders").
WHEREAS, Xxxxxx Xxxxxxx USA Corporation ("USA CORP."), Xxxxxx Xxxxxxx
Power Group Inc. ("POWER GROUP") and Xxxxxx Xxxxxxx Energy Corporation ("ENERGY
CORP.") issued a Guaranty dated as of February 12, 1999 (the "Existing
Guaranty") and each of Xxxxxx Xxxxxxx Inc., Xxxxxx Xxxxxxx International
Holdings, Inc., Xxxxxx Xxxxxxx Ltd. and Foreign Holdings, Ltd. subsequently
agreed to be bound by such Existing Guaranty, to guaranty as primary obligor the
full and prompt payment when due (whether at the stated maturity, by
acceleration of otherwise) of the principal of, premium, if any, and interest
on, the Notes, together with all the other obligations and liabilities of the
Company to the Noteholders in respect of the Notes and to the Trustee in its
capacity as such under the Indenture (including, in each case, without
limitation, indemnities, fees and interest thereon), whether now existing or
hereafter incurred, and the due performance and compliance by the Company with
all of the terms, conditions and agreements contained in the Notes and the
Indenture to the Trustee and the Noteholders.
WHEREAS, USA Corp., Power Group and Energy Corp., to secure their
obligations under the Existing Guaranty, entered into a Pledge Agreement, dated
as of February 12, 1999 (the "Existing Pledge Agreement").
WHEREAS, the Company and the Guarantors desire to terminate the
Existing Guaranty and the Existing Pledge Agreement and replace them with a new
Guaranty (the "New Guaranty") and Security Agreement (the "New Security
Agreement").
WHEREAS, all conditions precedent to supplement the Indenture have
been met.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Guarantors and the Trustee agree as follows for
the benefit of each other and for the equal and proportionate benefit of the
Noteholders or of series thereof.
1. DEFINITIONS.
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1.1 For purposes of this Second Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Section have the meanings assigned to them in this Section. All
capitalized terms not otherwise defined in this Second Supplemental Indenture
have the meanings given to such terms in the Indenture.
"COLLATERAL AGENT" means Bank of America, N.A. in its capacity as
collateral agent pursuant to the terms of the New Security Agreement, together
with any successor collateral agent thereunder.
"NEW SECURITY AGREEMENT" means the Security Agreement, dated as of
August 16, 2002, among the Company, the Guarantors and Bank of America, N.A., as
Collateral Agent, as in effect from time to time.
"TEMPORARY CASH INVESTMENT" means any investment in (a) securities
issued or directly and fully guaranteed or insured by the United States of
America government or any agency or instrumentality thereof having maturities of
not more than one year from the date of acquisition, (b) marketable direct
obligations issued by any State of the United States or any political
subdivision of any such State or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's Rating Group, a division of XxXxxx-Xxxx, Inc. (together with
its successors, "S&P") or Xxxxx'x Investors Service, Inc. (together with its
successors, "MOODY'S"), (c) demand deposits, time deposits and certificates of
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year from the date of
acquisition and overnight bank deposits, in each case with any bank or trust
company organized or licensed under the laws of the United States of America or
any State thereof having capital, surplus and undivided profits in excess of
$250 million, (d) repurchase obligations with a term of not more than seven days
for underlying securities of the type described in clauses (a), (b) and (c)
above entered into with any financial institution meeting the qualifications
specified in clause (c) above, (e) commercial paper rated at least P-1 by
Moody's and A-1 by S&P at the time of acquisition thereof or, if such commercial
paper is rated by only one such agency, at least such rating from such agency,
and (f) investments in any Dollar denominated money market fund as defined by
Rule 2a-7 of the General Rules and Regulations promulgated under the Investment
Company Act of 1940.
1.2 The definitions of "CO-OBLIGOR", "CO-OBLIGOR REQUEST", "NEW
GUARANTOR" and "NEW GUARANTOR REQUEST" set forth in the Restated First
Supplemental Indenture are removed in their entirety and all references to such
terms are deleted and given no effect.
1.3 The amendments to the definition of "PAYING AGENT" set forth in
the Restated First Supplemental Indenture are hereby rescinded and the
definition of "PAYING AGENT" is hereby amended to read in its entirety as
follows:
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
2. GRANTING OF SECURITY INTEREST.
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2.1 The Company confirms that in order to secure the due and punctual
payment by the Company and certain of the Guarantors of certain Secured Debt,
including the Securities and all other sums payable by the Company and certain
of the Guarantors under the Indenture and the New Guaranty, the Company and the
Guarantors pursuant to the New Security Agreement are granting to Bank of
America, N.A., as Collateral Agent for the benefit of the Secured Parties (as
such term is defined in the New Security Agreement), a security interest, among
other assets, in such of the Restricted Collateral (as such term is defined in
the New Security Agreement) as is required pursuant to the terms of the
Indenture. The Company warrants and represents that pursuant to the New Security
Agreement, the Securities are secured, as to such Restricted Collateral, at
least equally and ratably with all other obligations and indebtedness of the
Company and certain of the Guarantors secured thereby as, and to the extent,
required by the Indenture.
3. APPLICATION OF AMOUNTS RECEIVED BY TRUSTEE WITH RESPECT TO COLLATERAL
3.1 The Trustee shall hold in trust for the benefit of the
Noteholders from time to time, in accordance with Section 3.4 below:
(a) any cash, securities or other property received by the
Trustee from the Collateral Agent pursuant to the provisions of the
Security Agreement or from the Company in respect of the sale or
other disposition of any Restricted Collateral; and
(b) any investments made by the Trustee pursuant to Section
3.2 hereof and any cash received by the Trustee by way of income or
other gain from the sale, conversion, maturity or redemption of or
payment by the Company with respect to such investments.
If the principal of all of the Securities shall have been declared (or shall
have become) immediately due and payable pursuant to Section 502 of the
Indenture, and such acceleration shall not otherwise have been rescinded or
annulled as provided by Section 502 of the Indenture, then all such amounts held
by the Trustee (including amounts held by an escrow agent on behalf of the
Trustee) shall be applied by the Trustee in accordance with the provisions of
the Securities and this Indenture, and subject to the last paragraph of Section
1003 of the Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) or Depositary as
the Trustee may determine, to the Holders of the particular Securities of such
series for the payment of which such money has been deposited with the Trustee,
of all sums due and to become due thereon at maturity for principal and any
premium and interest.
3.2 So long as no Event of Default shall have occurred and be
continuing, the Trustee shall invest and reinvest any cash held by it pursuant
to Section 3.1 hereof at the direction of the Company in Temporary Cash
Investments as may be specified in a written request or requests by the Company
signed by its President, Treasurer or any Vice President and delivered to the
Trustee. Any loss realized as a result of any such investment shall be for the
account of, and shall upon demand by the Trustee be immediately paid in cash to
the Trustee by, the Company. If and when cash is required for application in
accordance with Section 3.3 hereof, the Trustee is authorized to cause a
sufficient amount of such investments to be sold or otherwise converted into
cash, PROVIDED that the Trustee shall be under no obligation to sell or
otherwise convert any
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such investment if such sale or other conversion would result in the receipt by
the Trustee of an amount less than the aggregate purchase price of such
investment (inclusive of commissions and other purchase costs) unless the
Company shall, simultaneously with such sale or other conversion, make available
to the Trustee in cash the amount of any such deficit.
3.3 So long as no Event of Default shall have occurred and be
continuing, the Trustee shall apply all amounts received as interest on
investments pursuant to Section 3.2 hereof to the payment of interest on the
Securities when due in accordance with the provisions of the Securities and the
Indenture.
3.4 The Trustee shall hold all funds received by it pursuant to the
New Security Agreement in an account governed by an escrow agreement
substantially in the form attached hereto as Exhibit A.
3.5 Notwithstanding any provision of Section 3.1, 3.2 or 3.3 hereof,
if at any time all obligations of the Company under the Securities have been
discharged, then the Trustee shall cause any and all funds received by it
pursuant to the New Security Agreement to be paid to the Company.
4. MISCELLANEOUS
4.1 The Existing Pledge Agreement has terminated pursuant to the
terms thereof and been replaced in its entirety by the New Security Agreement
and all originals of the Existing Pledge Agreement held by the Trustee will be
returned to the Company.
4.2 The Existing Guaranty has terminated pursuant to the terms
thereof and been replaced in its entirety by the New Guaranty and all originals
of the Existing Guaranty held by the Trustee will be returned to the Company.
4.3 The amendments to Section 1001 of the Indenture set forth in the
Restated First Supplemental Indenture are hereby rescinded and Section 1001 is
hereby amended to read in its entirety as follows:
"The Company and each Guarantor, jointly and severally, covenant and
agree for the benefit of each series of Securities that they will duly and
punctually pay or cause to be paid the principal of, and any premium and
interest on, the Securities of that series and all amounts due to the Trustee in
accordance with the terms of the Securities and this Indenture."
4.4 The amendments to Section 1006 of the Indenture set forth in the
Restated First Supplemental Indenture are hereby rescinded and Section 1006 is
hereby amended to read in its entirety as follows:
"The Company and each Guarantor shall deliver a certificate of its
compliance to the Trustee on or before April 30 of each year pursuant to Section
314(a)(4) of the Trust Indenture Act."
5. FINAL PROVISIONS
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Except as amended and supplemented hereby, the Indenture is hereby
ratified and confirmed in all respects and shall remain in full force and
effect.
This Second Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required thereby.
The parties may sign any number of copies of this Second Supplemental
Indenture and may sign such in counterparts. Each signed counterpart copy shall
be an original, but all of them together represent the signed agreement. One
signed copy is enough to prove this Second Supplemental Indenture.
The recitals contained in this Second Supplemental Indenture shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Second Supplemental Indenture.
* * *
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IN WITNESS WHEREOF, the parties have caused this Second
Supplemental Indenture to be duly executed as of the
date first above written.
XXXXXX XXXXXXX LLC
By ____________________________________
Name:
Title:
EQUIPMENT CONSULTANTS, INC.
By ____________________________________
Name:
Title:
FOREIGN HOLDINGS LTD.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX ASIA LIMITED
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX CAPITAL
& FINANCE CORPORATION
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX CONSTRUCTORS,
INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX DEVELOPMENT CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX ENERGY CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX ENERGY MANUFACTURING, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX ENERGY SERVICES, INC.
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX ENVIRESPONSE, INC.
By_____________________________________
Name:
Title:
XXXXXX XXXXXXX ENVIRONMENTAL CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX FACILITIES MANAGEMENT, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX INTERNATIONAL CORPORATION
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX INTERNATIONAL HOLDINGS, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX LTD.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX POWER GROUP, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX POWER SYSTEMS, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX PYROPOWER, INC.
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX REAL ESTATE
DEVELOPMENT CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX REALTY SERVICES, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX USA CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX VIRGIN ISLANDS, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX XXXX, INC.
By ____________________________________
Name:
Title:
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FW MORTSHAL, INC.
By ____________________________________
Name:
Title:
FW TECHNOLOGIES HOLDING LLC
By ____________________________________
Name:
Title:
HFM INTERNATIONAL, INC.
By_____________________________________
Name:
Title:
PROCESS CONSULTANTS, INC.
By ____________________________________
Name:
Title:
PYROPOWER OPERATING SERVICES COMPANY, INC.
By ____________________________________
Name:
Title:
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PERRYVILLE III TRUST
By: THE BANK OF NEW YORK, not in its
individual capacity but solely
in its capacity as the Owner Trustee
of the Perryville III Trust
By ________________________________
Name:
Title:
-00-
XXX XXXXXXX TRUST COMPANY, as Trustee
By _____________________________________
Name:
Title:
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SCHEDULE I
GUARANTORS
Equipment Consultants, Inc. Delaware
Foreign Holdings Ltd. Bermuda
Xxxxxx Xxxxxxx Asia Limited Delaware
Xxxxxx Xxxxxxx Capital & Finance Corporation Delaware
Xxxxxx Xxxxxxx Constructors, Inc. Delaware
Xxxxxx Xxxxxxx Development Corporation Delaware
Xxxxxx Xxxxxxx Energy Corporation Delaware
Xxxxxx Xxxxxxx Energy Manufacturing, Inc. Delaware
Xxxxxx Xxxxxxx Energy Services, Inc. California
Xxxxxx Xxxxxxx Enviresponse, Inc. Delaware
Xxxxxx Xxxxxxx Environmental Corporation Texas
Xxxxxx Xxxxxxx Facilities Management, Inc. Delaware
Xxxxxx Xxxxxxx Inc. Delaware
Xxxxxx Xxxxxxx International Corporation Delaware
Xxxxxx Xxxxxxx International Holdings, Inc. Delaware
Xxxxxx Xxxxxxx Ltd. Bermuda
Xxxxxx Xxxxxxx Power Group, Inc. Delaware
Xxxxxx Xxxxxxx Power Systems, Inc. Delaware
Xxxxxx Xxxxxxx Pyropower, Inc. New York
Xxxxxx Xxxxxxx Real Estate Development Corporation Delaware
Xxxxxx Xxxxxxx Realty Services, Inc. Delaware
Xxxxxx Xxxxxxx USA Corporation Delaware
Xxxxxx Xxxxxxx Virgin Islands, Inc. Delaware
Xxxxxx Xxxxxxx Xxxx, Inc. Delaware
FW Mortshal, Inc. Delaware
FW Technologies Holding LLC Delaware
HFM International, Inc. Delaware
Process Consultants, Inc. Delaware
Pyropower Operating Services Company, Inc. California
Perryville III Trust New York
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EXHIBIT A
ESCROW AGREEMENT
This ESCROW AGREEMENT is made this ___ day of ________, 20__, by and
among XXXXXX XXXXXXX LLC, a Delaware limited liability company, with its
principal office at Xxxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 - 4000
(the "Company"), BNY MIDWEST TRUST COMPANY, an Illinois trust company with its
principal offices at 0 X. XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
(the "Trustee") and BNY MIDWEST TRUST COMPANY, an Illinois trust company with
its principal corporate trust office at 0 X. XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000 (the "Escrow Agent").
1. DEPOSIT.
Pursuant to the terms of the Indenture, the Trustee or the Company
may be required from time to time to deliver to the Escrow Agent cash to be held
by the Escrow Agent and the Escrow Agent hereby agrees that such cash shall be
applied only in conformity with the purposes of, and upon the terms and
conditions set forth in, this Agreement. All cash delivered to the Escrow Agent
pursuant to this Agreement, together with all investment income thereon, shall
be defined as the "Escrowed Property".
2. ACCRUAL ON ESCROWED PROPERTY.
The Escrow Agent shall collect all dividends, principal, interest and
any other payment or distribution on the Escrowed Property, and shall hold the
same as part of the Escrowed Property.
3. INVESTMENT BY ESCROW AGENT.
Any Escrowed Property in the form of cash shall be invested or
reinvested by the Escrow Agent without unreasonable delay and only in such
obligations which are (a) securities issued or directly and fully guaranteed or
insured by the United States of America government or any agency or
instrumentality thereof having maturities of not more than one year from the
date of acquisition, (b) marketable direct obligations issued by any State of
the United States or any political subdivision of any such State or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Rating Group, a division of
XxXxxx-Xxxx, Inc. (together with its successors, "S&P") or Xxxxx'x Investor
Service, Inc. (together with its successors, "MOODY'S") (c) demand deposits,
time deposits and certificates of deposits with maturities of one year or less
from the date of acquisition, bankers' acceptances with maturities not exceeding
one year from the date of acquisition and overnight bank deposits, in each case
with any bank or trust company organized or licensed under the laws of the
United States of America or any State thereof having capital, surplus and
undivided profits in excess of $250 million, (d) repurchase obligations with a
term of not more than seven days for underlying securities of the type described
in clauses (a), (b) and (c) above entered into with any financial institution
meeting the qualifications specified in clause (c) above, (e) commercial paper
rated at least P-1 by Moody's and A-1 by S&P at the time of acquisition thereof
or, if such commercial paper is rated by only one such agency, at least such
rating from such agency, and (f) investments in any Dollar denominated money
market fund as defined by Rule 2a-7 of the
Exhibit A
Page 2
General Rules and Regulations promulgated under the Investment Company Act of
1940, as shall be designated in writing from time to time by the Company.
Temporarily uninvested funds held hereunder shall not earn or accrue interest.
4. REPORTING BY ESCROW AGENT.
The Escrow Agent shall furnish to the Company and the Trustee (i)
upon the receipt of any Escrowed Property delivered to the Escrow Agent as
provided in Section 1 hereof, an acknowledgement of such receipt, and (ii) from
time to time thereafter, monthly itemized summaries of the property held as
Escrowed Property, including all transactions made pursuant to Sections 2 and 3
hereof.
5. DISTRIBUTION.
The Escrow Agent shall release from escrow and distribute the
Escrowed Property in accordance with the directions of the Trustee acting
pursuant to the Indenture, dated as of November 15, 1995, between the Company
and the Trustee, as amended (the "Indenture"). Upon distribution of all the
Escrowed Property or upon termination of this Agreement, the Escrow Agent shall
be discharged from all obligations under this Agreement and shall have no
further duties or responsibilities in connection herewith.
6. COMPENSATION AND REIMBURSEMENT OF ESCROW AGENT.
(a) For services rendered hereunder, the Company shall pay the Escrow
Agent compensation in the amount of [$ ] annually, payable upon execution of
this Agreement and within ten business days of each anniversary of such
execution. Upon termination of this Agreement, either because all Escrowed
Property has been distributed or for any other reason, the Escrow Agent shall
return to the Company a proportional fraction of the compensation already paid
for that year, less any fee or reimbursement due at that time.
(b) The Company shall pay monthly an Investment Transaction Fee of
$50.00 for each purchase or sale made by the Escrow Agent pursuant to Section 3
hereof.
(c) The Company shall reimburse the Escrow Agent upon request for all
expenses, disbursements, and advances incurred or made by the Escrow Agent in
implementing any of the provisions of this Agreement, including reasonable
compensation and the reasonable expenses and disbursements of its counsel,
except any such expense, disbursement, or advance as may arise from its gross
negligence or willful misconduct.
(d) The Company shall be liable for all payments due under any
provision of this Section 6.
(e) The provisions of this Section 6 shall survive the termination of
this Agreement or the resignation or removal of the Escrow Agent.
7. ESCROW AGENT'S LIEN ON ESCROWED PROPERTY.
The Company hereby grants to the Escrow Agent a lien on the Escrowed
Property such that, in the event that any and all charges payable under Section
6 and Section 8(c) hereof shall not be timely paid by the Company, the Escrow
Agent shall have the right to pay itself from the Escrowed
Exhibit A
Page 3
Property the full amount owed, provided that written notice of the Escrow
Agent's intent to proceed under this Section 7 be given at least five business
days in advance of such action.
8. RESPONSIBILITIES OF THE ESCROW AGENT.
(a) The Escrow Agent shall exercise the same degree of care toward
the Escrowed Property as it exercises toward its own similar property and shall
not be held to any higher standard of care under this Agreement, nor be deemed
to owe any fiduciary duty to the Company.
(b) The Escrow Agent shall be obligated to perform only such duties
as are expressly set forth in this Agreement. 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 by the
Company beyond the specific terms hereof.
(c) The Escrow Agent shall not be liable hereunder except for its own
gross negligence or willful misconduct and the Company agrees to indemnify the
Escrow Agent for and hold it harmless as to any loss, liability, or expense,
including reasonable attorney fees, incurred without gross negligence or willful
misconduct on the part of the Escrow Agent and arising out of or in connection
with the Escrow Agent's duties under this Agreement. Specifically and without
limiting the foregoing, the Escrow Agent shall in no event have any liability in
connection with its investment or reinvestment, in good faith and in accordance
with the terms hereof, of any Escrowed Property held by it hereunder, including
without limitation any liability for any delay not resulting from gross
negligence or bad faith in such investment or reinvestment, or for any loss of
income incident to any such delay. The provisions of this Section 8 shall
survive the termination of this Agreement or the resignation or removal of the
Escrow Agent.
(d) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, instruction, notice or other writing delivered to it 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 or 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.
At any time the Escrow Agent may request in writing an instruction in
writing from the Company, and may at its own option include in such request the
course of action it proposes to take and the date on which it proposes to act,
regarding any matter arising in connection with its duties and obligations
hereunder. The Escrow Agent shall not be liable for acting without the Company
consent in accordance with such a proposal on or after the date specified
therein, provided that the specified date shall be at least two business days
after the Company receives the Escrow Agent's request for instructions and its
proposed course of action, and provided further that, prior to so acting, the
Escrow Agent has not received the written instructions requested.
(e) The Escrow Agent may act pursuant to the advice of counsel chosen
by it with respect to any matter relating to this Agreement and shall not be
liable for any action taken or omitted in accordance with such advice.
Exhibit A
Page 4
(f) The Escrow Agent does not have any interest in the Escrowed
Property deposited hereunder but is serving as escrow holder only and has only
possession thereof.
(g) In the event of ambiguity in the provisions governing the
Escrowed Property or uncertainty on the part of the Escrow Agent as to how to
proceed, such that the Escrow Agent, in its sole and absolute judgment, deems it
necessary for its protection so to do, the Escrow Agent may refrain from taking
any action other than to retain custody of the Escrowed Property deposited
hereunder until it shall have received written instructions signed by the
Company, or to deposit the Escrowed Property with a court of competent
jurisdiction and thereupon to have no further duties or responsibilities in
connection therewith.
(h) The Escrow Agent makes no representation as to the validity,
value, genuineness or collectability of any security or other document or
instrument held by or delivered to it.
(i) 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.
9. RESIGNATION OR REMOVAL OF ESCROW AGENT.
(a) The Escrow Agent may resign by giving written notice to the
Company and the Trustee. Such resignation shall take effect upon delivery of the
Escrowed Property to a successor Escrow Agent designated in writing by the
Company, and the Escrow Agent shall thereupon be discharged from all obligations
under this Agreement, and shall have no further duties or responsibilities in
connection herewith.
(b) The Company may remove the Escrow Agent upon written notice to
the Escrow Agent signed by the Company. Such removal shall take effect upon
delivery of the Escrowed Property to a successor Escrow Agent designated in
writing by the Company, and the Escrow Agent shall thereupon be discharged from
all obligations under this Agreement and shall have no further duties or
responsibilities in connection herewith. The Escrow Agent shall deliver the
Escrowed Property without unreasonable delay after receiving the Company's
designation of a successor Escrow Agent.
(c) If after 30 days from the date of delivery of its written notice
of intent to resign or of the Company's notice of removal the Escrow Agent has
not received a written designation of a successor Escrow Agent, the Escrow
Agent's sole responsibility shall be in its sole discretion either to retain
custody of the Escrowed Property without any obligation to invest or reinvest
any such Escrowed Property until it receives such designation, or to apply to a
court of competent jurisdiction for appointment of a successor Escrow Agent and
after such appointment to have no further duties or responsibilities in
connection herewith.
10. CHOICE OF LAW AND JURISDICTION.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. 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 Court sitting in New York City.
Exhibit A
Page 5
11. BENEFITS AND ASSIGNMENT.
Nothing in this Agreement, expressed or implied, shall give or be
construed to give any person, firm or corporation, other than the parties hereto
and their successors and assigns, any legal claim under any covenant, condition
or provision hereof, all the covenants, conditions and provisions contained in
this Agreement being for the sole benefit of the parties hereto and their
successors and assigns. No party may assign any of its rights or obligations
under this Agreement without the written consent of all the other parties, which
consent be may withheld in the sole discretion of the party whose consent is
sought.
12. AMENDMENT AND WAIVER.
This Agreement may be modified only by a written amendment signed by
all the parties hereto, and no waiver of any provision hereof shall be effective
unless expressed in a writing signed by the party to be charged.
13. USE OF BNY MIDWEST TRUST COMPANY NAME.
No printed or other material in any language, including prospectuses,
notices, reports, and promotional material which mentions BNY MIDWEST TRUST
COMPANY by name or the rights, powers, or duties of the Escrow Agent under this
Agreement shall be issued by any of the other parties hereto, or on such party's
behalf, without the prior written consent of BNY MIDWEST TRUST COMPANY.
14. HEADINGS.
The headings contained in this Agreement are for convenience of
reference only and shall have no effect on the interpretation or operation
thereof.
15. NOTICES.
All notices, instructions, reports and other written communications
to be given or made under this Agreement shall be sufficiently given or made if,
unless otherwise indicated, sent by first-class mail, postage prepaid:
a) to the ESCROW AGENT at:
------------
BNY Midwest Trust Company
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
b) to THE COMPANY at:
-----------
Xxxxxx Xxxxxxx LLC
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attn: TREASURER'S OFFICE
Exhibit A
Page 6
c) to the TRUSTEE at:
-------
BNY Midwest Trust Company
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Exhibit A
Page 7
IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to
be executed by duly authorized officers as of the day and year first written
above.
XXXXXX XXXXXXX LLC
By:_______________________
Attest:
---------------------------
[Seal]
BNY MIDWEST TRUST
COMPANY,
as Escrow Agent
By:_______________________
BNY MIDWEST TRUST COMPANY,
By:_______________________
