Escrow Proceeds. If the Escrow Release Date has not occurred by the Outside Date or if, before such date, the Acquisition Agreement is terminated or the Issuer determines in its sole discretion that any of the conditions to the Escrow Release Date are not capable of being satisfied (the earliest of such dates, the “Special Mandatory Redemption Determination Date”) and the Issuer notifies the Trustee and the Escrow Agent in writing of such determination or the Trustee so notifies the Escrow Agent in accordance with the Escrow Agreement, the Issuer shall redeem in accordance with the Escrow Agreement the Notes, in whole, at the Escrow Redemption Price as of the date of redemption. The term “Outside Date” means October 31, 2022, as the same may be extended pursuant to the immediately succeeding sentence. Notwithstanding the foregoing, if the Escrow Release Date has not occurred on or before the Outside Date, the Issuer shall be permitted to extend the Outside Date to December 1, 2022 by depositing into the Escrow Account on or before October 31, 2022 an additional amount of cash which, together with the cash in the Escrow Account at such time, will be sufficient to yield the Escrow Redemption Price on a redemption date of December 1, 2022 for all of the Notes. From and after any such extension, all references in this clause (b) to the Outside Date shall be to the Outside Date, as so extended. Following the redemption of the Notes pursuant to this clause (b) and the payment in full of all other Indenture Obligations, if there remains a deposit in the Escrow Account of any cash and/or cash equivalents, such excess cash and/or cash equivalents may be released to the Issuer and used by the Issuer for any purpose not prohibited by this Indenture. Notwithstanding anything in this Indenture to the contrary, no notice shall be required to redeem Notes pursuant to this Section 3.09(b) other than notices required by the Escrow Agreement.
Appears in 2 contracts
Escrow Proceeds. If (a) On the date hereof (the “Closing Date”), pursuant to Section 4.20 of the Indenture, (i) the Initial Purchasers will deposit an amount in cash equal to $350,000,000 (the “Proceeds”), representing the gross proceeds of the offering of the Notes sold on the Issue Date, into the Escrow Release Date has Deposit Account (as defined below) and (ii) Escrow Issuer will deposit (or cause to be deposited) into the Escrow Deposit Account an amount in cash not occurred by less than $28,233,333.33 (the Outside Date or if“Initial Interest Deposit”), before such daterepresenting an additional amount of cash, which together with the Acquisition Agreement is terminated or the Issuer determines in its sole discretion that any amount of the conditions Proceeds, will be sufficient to fund in full the Escrow Release Date are not capable of being satisfied (the earliest of such dates, the “Special Mandatory Redemption Determination (as defined below) of the Notes and to pay all interest that would accrue on the Notes to, but not including, October 9, 2018 (the “Initial Outside Date”) ), assuming such date was the Special Mandatory Redemption Date (as defined below). Escrow Agent shall acknowledge receipt of the Proceeds and the Issuer notifies Initial Interest Deposit, promptly and as soon as reasonably practicable on the Trustee and Closing Date, after the Escrow Agent in writing of such determination or Notes have been issued.
(b) In the Trustee so notifies event the Escrow Agent in accordance with the Escrow Agreement, the Issuer shall redeem in accordance with the Escrow Agreement the Notes, in whole, at the Escrow Redemption Price as of the date of redemption. The term “Outside Date” means October 31, 2022, as the same may be extended pursuant to the immediately succeeding sentence. Notwithstanding the foregoing, if the Escrow Release Date HCOM Acquisition has not occurred on or before the Outside Date, the Issuer shall be permitted to extend the Initial Outside Date and the End Date (as defined in the HCOM Merger Agreement) has been automatically extended to January 9, 2019 pursuant to the HCOM Merger Agreement, and unless Escrow Issuer has directed Escrow Agent to release the Escrow Proceeds (as defined below) in accordance with Section 5 of this Agreement, on the date that is two (2) business days prior to the ninth (9th) day of each month beginning on the Initial Outside Date and ending on December 19, 2022 by depositing 2018, and with notice to Trustee and Escrow Agent, Escrow Issuer will deposit (or cause to be deposited) cash (any such amounts, “Additional Amounts”) into the Escrow Deposit Account equal to thirty (30) days of interest that would accrue on the Notes, in each case, as calculated by Escrow Issuer in accordance with the Indenture. The most recent ninth (9th) day of each month after the Initial Outside Date for which Additional Amounts are deposited in accordance with this Section 3(b) is referred to herein as an “Extended Outside Date.” The Additional Amounts shall be determined solely by Escrow Issuer acting in good faith and Escrow Agent shall not be responsible for calculating the amounts required to be deposited as Additional Amounts. If, on the Escrow Termination Notice Date (as defined below), the Escrow Proceeds are insufficient to pay the Special Mandatory Redemption Amount (as defined below) on the Special Mandatory Redemption Date and accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date, Escrow Issuer shall deposit or before October 31cause to be deposited into the Escrow Deposit Account, 2022 on the business day prior to the Special Mandatory Redemption Date, an additional amount in cash that will cause the amount in the Escrow Account to be sufficient to pay the Special Mandatory Redemption Amount and accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date.
(c) The deposits made pursuant to subsections (a) and (b) above, the Escrow Deposit Account and the Escrow Securities Account (each as defined below) and all funds or securities now or hereafter credited to or deposited in the Escrow Account, all investments of any of the foregoing, plus all interest, dividends and other distributions and payments on any of the foregoing received or receivable in respect of any of the foregoing, together with all proceeds of any of the foregoing, are collectively referred to herein as the “Escrow Proceeds.”
(i) Subject to and in accordance with the provisions hereof, Escrow Agent agrees to hold (x) that portion of the Escrow Proceeds consisting of securities and investment property in a trust account which is a “securities account” (as defined in Section 8-501(a) of the Uniform Commercial Code in effect in the State of New York on the date hereof (the “New York UCC”)) (the “Escrow Securities Account”), and (y) that portion of the Escrow Proceeds consisting of cash whichin an account which is a “deposit account” (as defined in Section 9-102(a)(29) of the New York UCC) (the “Escrow Deposit Account” and, together with the Escrow Securities Account and any successor account(s) or subaccount(s), the “Escrow Account”) established with Escrow Agent. The Escrow Account shall be maintained with Escrow Agent and shall be in the name of Regions Bank as Escrow Agent; and wire instructions for the initial deposit of the Proceeds and the Initial Interest Deposit and any subsequent deposit of funds hereunder are as follows: Institution: [ ] ABA#: [ ] DDA #: [ ] Account Name: [ ] Originator to Beneficiary Information: [ ] Call Back Contact: [ ] [ ] [ ] [ ] [ ] [ ] [ ] Account information for the Escrow Account maintained with Escrow Agent (which information, for the avoidance of doubt, shall not be used for any deposit of funds hereunder) is as follows: Institution: [ ] ABA#: [ ] DDA#: [ ] Account Name: [ ] The Parties agree that Escrow Agent is a “securities intermediary” (as defined in Section 8-102(a)(14) of the New York UCC) with respect to the Escrow Securities Account and intend that all securities held in the Escrow Securities Account shall be treated as financial assets. The Parties further agree that Escrow Agent is a “bank” (as defined in Section 9-102(a)(8) of the New York UCC) with respect to the Escrow Deposit Account and that any Escrow Proceeds that consist of cash shall only be held in the Escrow Deposit Account. In no event shall Escrow Agent hold cash in the Escrow Securities Account at such time, will or deem cash to be sufficient to yield the a financial asset. Escrow Redemption Price on a redemption date of December 1, 2022 for all of the Notes. From and after any such extension, all references in this clause (b) Agent makes no representation or warranties with respect to the Outside Date shall be to the Outside Date, as so extended. Following the redemption creation or enforceability of the Notes pursuant to this clause (b) and the payment in full of all other Indenture Obligations, if there remains a deposit any security interest in the Escrow Account or the Collateral (as defined below). The Escrow Account will be established with Escrow Agent as provided above. Escrow Agent shall administer the Escrow Account in accordance with the provisions of this Agreement, including, without limitation, holding in escrow, investing and reinvesting and releasing or distributing the Escrow Proceeds.
(ii) As security for the due and punctual payment of the Special Mandatory Redemption Amount and the prompt and complete payment and performance by Escrow Issuer of the Obligations under the Indenture, Escrow Issuer hereby pledges, assigns and grants to Trustee, for the benefit of the Holders of the Notes, a security interest in all of its right, title and interest in, whether now owned by or owing to, or hereafter acquired by or arising in favor of Escrow Issuer, in the Escrow Account, the other Escrow Proceeds, and all “financial assets” (as defined in Section 8-102(a)(9) of the New York UCC) credited thereto and “investment property” (as defined in Section 9-102(a)(49) of the New York UCC) credited thereto, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any cash and/or cash equivalents, such excess cash and/or cash equivalents may be released to “general intangibles” (as defined in Section 9-102(a)(42) of the Issuer and used by the Issuer for New York UCC) at any purpose not prohibited by this Indenture. Notwithstanding anything in this Indenture to the contrary, no notice shall be required to redeem Notes pursuant time evidencing or relating to this Section 3.09(b) other than notices required by Agreement and to any of the Escrow Agreement.foregoing and all
Appears in 1 contract