Common use of Escrowed Property Clause in Contracts

Escrowed Property. (a) The Grantor shall deposit with the Escrow Agent funds for the Escrow Account (as defined below) as follows: (i) $500,000,000, representing the original offering price of the Notes, which amount the Grantor shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; (ii) $7,539,930.56, representing interest that shall accrue on the Notes from December 21, 2016 (the “Issue Date”) up to and including March 31, 2017, which amount the Grantor shall have, or shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; and (iii) $2,239,583.33, representing interest that shall accrue on the Notes for each month following March 31, 2017, which amount the Grantor shall deposit, or shall cause to be, deposited with the Escrow Agent in cash by wire transfer in immediately available funds on the date that is five (5) Business Days prior to the last day of each month beginning on March 31, 2017, and ending on September 30, 2017 (in each case, unless the Escrow Release has occurred) (any deposits made pursuant to this clause (iii), “Additional Deposits”). As a result of the simultaneous deposits made pursuant to clauses (i) and (ii) above, the aggregate amount deposited with the Escrow Agent on the date hereof will be $507,539,930.56 (the “Initial Deposit” and, together with any Additional Deposits, the “Deposits”), which amount the Grantor has determined is sufficient to redeem in cash the Notes, in whole but not in part, in an amount equal to 100% of the original offering price of the Notes plus accrued and unpaid interest from the Issue Date to, but excluding, March 31, 2017. (i) The Escrow Agent shall accept the Deposits and shall deposit such funds and the proceeds thereof in a separate identifiable account bearing the account number with account name R▇▇▇▇▇▇ Bros Acquisition Escrow with U.S. Bank National Association, as Trustee established at the Escrow Agent (the “Escrow Account”) for disbursement in accordance with the provisions hereof. The Escrow Account shall be under the control (within the meaning of Section 8-106, 9-106 and 9-104 of the UCC) of the Trustee and, notwithstanding any other provisions of this Agreement, the Escrow Agent shall comply with all entitlement orders and instructions given by the Trustee with respect to the Escrow Account or other Escrowed Property, including, without limitation, instructions directing disposition of the funds in the Escrow Account, without further consent of the Grantor or any other person. The Trustee shall only be obligated to give instructions at the written direction of Holders of a majority of the aggregate principal amount of the Notes outstanding. The Trustee agrees not to deliver any entitlement orders or instructions except as permitted by Section 3 hereof and in no event shall it be required to give any instruction unless it is directed by Holders of a majority of the aggregate principal amount of the Notes outstanding; provided, however, that this sentence is solely the agreement between the Trustee and the Grantor and in no way limits or modifies the Escrow Agent’s obligation to comply with all entitlement orders and instructions given by the Trustee or imposes any duty or obligation on the Escrow Agent to investigate or inquire of any party whether the Trustee is entitled to deliver any entitlement orders or instructions. Notwithstanding anything to the contrary contained herein, if at any time the Escrow Agent receives conflicting orders or instructions from the Trustee or the Grantor, the Escrow Agent shall comply with such entitlement order or instruction of the Trustee without further consent by the Grantor or any other person. (ii) Each party hereto hereby confirms that the arrangements established under this Section 1(b) constitute “control” of the Escrow Account. The Escrow Agent and the Grantor have not and will not enter into any other agreement with respect to control of the Escrow Account or purporting to limit or condition the obligation of the Escrow Agent to comply with any orders or instructions with respect to any Escrow Account as set forth in this Section 1(b). (iii) The Escrow Agent hereby agrees that any security interest in, lien on, encumbrance, claim or right of setoff against, the Escrow Account or any funds therein it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrow Account and the funds therein or credited thereto. The Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein, except to the extent that any fees, expenses or costs incurred by, or any obligations owed to, Escrow Agent hereunder are not promptly paid when due, Escrow Agent may reimburse itself therefor from the Escrowed Property and may sell, convey or otherwise dispose of any Escrowed Property for such purpose. (iv) It is the intention of the parties hereto that this Agreement create a true escrow, and the Grantor has no ownership of, or rights in, the Escrow Account or the Escrowed Property other than the limited contractual right to receive the Escrowed Property under the circumstances specified in Section 4 hereof. If, notwithstanding the intention of the parties set forth in the foregoing sentence, this Agreement shall be characterized as an arrangement for security (and not a true escrow), then this Agreement shall be deemed to constitute a security agreement under the UCC and other applicable law. In furtherance of the foregoing, as security for the due and punctual payment of the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, the Grantor hereby pledges, assigns and grants to the Trustee, for the benefit of the Holders of the Notes, a continuing first-priority security interest in, and a lien on, the Escrow Account and the Escrowed Property credited thereto and all the proceeds thereof, whether now owned or existing or hereafter acquired or arising (collectively, the “Collateral”). (v) The Grantor agrees to take all steps necessary in connection with the perfection of the Trustee’s security interest in the Escrowed Property and, without limiting the generality of the foregoing, the Grantor shall prepare and file one or more UCC financing statements and Personal Property Security Act financing statements in such filing offices and containing such descriptions of collateral as are reasonably necessary or advisable in order to perfect the security interest granted herein. Without limiting the Grantor's obligations in the preceding sentence, Grantor also authorizes Trustee to prepare and file such financing statements. In no event whatsoever, shall either the Trustee or the Escrow Agent have any responsibility for preparing or filing any financing or continuation statements, nor shall either have any responsibility for recording any documents or instruments in any public office at any time or times, or for otherwise perfecting or maintaining the perfection of any security interest referred to herein, nor for the validity, perfection, priority or enforceability of the Liens referred to herein. (vi) The Grantor represents and warrants that it was duly incorporated and is validly existing as a Canadian corporation and is not incorporated under the laws of any other jurisdiction, and during the term of this Agreement, the Grantor will not change its legal name or jurisdiction of organization without giving the Trustee 30 days’ prior written notice. (vii) Upon the release of any Escrowed Property pursuant to Section 4 hereof, the security interest of the Trustee for the benefit of the Holders of the Notes in such released Escrowed Property shall automatically terminate without any further action and such released Escrowed Property shall be delivered to the recipient free and clear of any and all liens, claims or encumbrances of any person, including, without limitation, the Escrow Agent, the Trustee and the Holders of the Notes, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent. At such time, the Trustee and the Escrow Agent shall execute such documents without recourse, representation or warranty of any kind as the Grantor shall reasonably request and provide to evidence or confirm the termination of such security interest. The Initial Deposit, any Additional Deposits (following such deposit(s)), the Escrow Account and all funds, securities or other property now or hereafter credited to the Escrow Account, plus all interest, dividends and other distributions and payments on any of the foregoing (collectively, the “Distributions”) received by the Escrow Agent, less any property and/or funds distributed or paid in accordance with this Agreement, are collectively referred to herein as “Escrowed Property.”

Escrowed Property. (a) The Grantor shall deposit with the Escrow Agent funds for the Escrow Account (as defined below) as follows: (i) $500,000,000550,000,000.00, representing the original offering price of the Notes, which amount the Grantor shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; (ii) $7,539,930.5610,828,125.00, representing interest that shall accrue on the Notes from December 21March 15, 2016 2023 (the “Issue Date”) up to and including March 31June 30, 20172023, which amount the Grantor shall have, or shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; and (iii) $2,239,583.333,093,750.00, representing interest that shall accrue on the Notes for each month following March 31June 30, 20172023, which amount the Grantor shall deposit, or shall cause to be, deposited with the Escrow Agent in cash by wire transfer in immediately available funds on the date that is five (5) Business Days prior to the last day of each month beginning on March 31June 30, 20172023, and ending on September 30August 31, 2017 2023 (in each case, unless the Escrow Release has occurred) (any deposits made pursuant to this clause (iii), “Additional Deposits”). As a result of the simultaneous deposits made pursuant to clauses (i) and (ii) above, the aggregate amount deposited with the Escrow Agent on the date hereof will be $507,539,930.56 560,828,125.00 (the “Initial Deposit” and, together with any Additional Deposits, the “Deposits”), which amount the Grantor has determined is sufficient to redeem in cash the Notes, in whole but not in part, in an amount equal to 100% of the original offering price of the Notes plus accrued and unpaid interest from the Issue Date to, but excluding, March 31June 30, 20172023. (i) The Escrow Agent shall accept the Deposits and shall deposit such funds and the proceeds thereof in a separate identifiable account bearing the account number 254696000 with account name “R▇▇▇▇▇▇ Bros Acquisition Escrow with U.S. Bank National Association, as Trustee Hldg 6.75% Nts due 2028,” established at the Escrow Agent (the “Escrow Account”) for disbursement in accordance with the provisions hereof. The Escrow Account shall be under the control (within the meaning of Section 8-106, 9-106 and 9-104 of the UCC) of the Trustee and, notwithstanding any other provisions of this Agreement, the Escrow Agent shall comply with all entitlement orders and instructions given by the Trustee with respect to the Escrow Account or other Escrowed Property, including, without limitation, instructions directing disposition of the funds in the Escrow Account, without further consent of the Grantor or any other person. The Trustee shall only be obligated to give instructions at the written direction of Holders of a majority of the aggregate principal amount of the Notes outstanding. The Trustee agrees not to deliver any entitlement orders or instructions except as permitted by Section 3 hereof and in no event shall it be required to give any instruction unless it is directed by Holders of a majority of the aggregate principal amount of the Notes outstanding; provided, however, that this sentence is solely the agreement between the Trustee and the Grantor and in no way limits or modifies the Escrow Agent’s obligation to comply with all entitlement orders and instructions given by the Trustee or imposes any duty or obligation on the Escrow Agent to investigate or inquire of any party whether the Trustee is entitled to deliver any entitlement orders or instructions. Notwithstanding anything to the contrary contained herein, if at any time the Escrow Agent receives conflicting orders or instructions from the Trustee or the Grantor, the Escrow Agent shall comply with such entitlement order or instruction of the Trustee without further consent by the Grantor or any other person. (ii) Each party hereto hereby confirms that the arrangements established under this Section 1(b) constitute “control” of the Escrow Account. The Escrow Agent and the Grantor have not and will not enter into any other agreement with respect to control of the Escrow Account or purporting to limit or condition the obligation of the Escrow Agent to comply with any orders or instructions with respect to any Escrow Account as set forth in this Section 1(b). (iii) The Escrow Agent hereby h▇▇▇▇▇ agrees that any security interest in, lien on, encumbrance, claim or right of setoff against, the Escrow Account or any funds therein it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrow Account and the funds therein or credited thereto. The Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein, except to the extent that any fees, expenses or costs incurred by, or any obligations owed to, Escrow Agent hereunder are not promptly paid when due, Escrow Agent may reimburse itself therefor from the Escrowed Property and may sell, convey or otherwise dispose of any Escrowed Property for such purpose. (iv) It is the intention of the parties hereto that this Agreement create a true escrow, and the Grantor has no ownership of, or rights in, the Escrow Account or the Escrowed Property other than the limited contractual right to receive the Escrowed Property under the circumstances specified in Section 4 hereof. If, notwithstanding the intention of the parties set forth in the foregoing sentence, this Agreement shall be characterized as an arrangement for security (and not a true escrow), then this Agreement shall be deemed to constitute a security agreement under the UCC and other applicable law. In furtherance of the foregoing, as security for the due and punctual payment of the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, the Grantor hereby pledges, assigns and grants to the Trustee, for the benefit of the Holders of the Notes, a continuing first-priority security interest in, and a lien on, all of the Grantor’s right, title and interest in and to the Escrow Account and the Escrowed Property credited thereto and all the proceeds thereof, whether now owned or existing or hereafter acquired or arising (collectively, the “Collateral”). (v) The Grantor agrees to take all steps necessary in connection with the perfection of the Trustee’s security interest in the Escrowed Property and, without limiting the generality of the foregoing, the Grantor shall prepare and file one or more UCC financing statements and Personal Property Security Act financing statements in such filing offices and containing such descriptions of collateral as are reasonably necessary or advisable in order to perfect the security interest granted herein. Without limiting the Grantor's ’s obligations in the preceding sentence, the Grantor also authorizes Trustee to prepare and file such financing statements. In no event whatsoever, shall either the Trustee or the Escrow Agent have any responsibility for preparing or filing any financing or continuation statements, nor shall either have any responsibility for recording any documents or instruments in any public office at any time or times, or for otherwise perfecting or maintaining the perfection of any security interest referred to herein, nor for the validity, perfection, priority or enforceability of the Liens referred to herein. (vi) The Grantor represents and warrants that it was duly incorporated and is validly existing as a Canadian corporation in its jurisdiction of formation and is not incorporated under the laws of any other jurisdiction, and during the term of this Agreement, the Grantor will not change its legal name or jurisdiction of organization without giving the Trustee 30 days’ prior written notice. (vii) Upon the release of any Escrowed Property pursuant to Section 4 hereof, the security interest of the Trustee for the benefit of the Holders of the Notes in such released Escrowed Property shall automatically terminate without any further action and such released Escrowed Property shall be delivered to the recipient free and clear of any and all liens, claims or encumbrances of any person, including, without limitation, the Escrow Agent, the Trustee and the Holders of the Notes, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent. At such time, the Trustee and the Escrow Agent shall execute such documents without recourse, representation or warranty of any kind as the Grantor shall reasonably request and provide to evidence or confirm the termination of such security interest. The Initial Deposit, any Additional Deposits (following such deposit(s)), the Escrow Account and all funds, securities or other property now or hereafter credited to the Escrow Account, plus all interest, dividends and other distributions and payments on any of the foregoing (collectively, the “Distributions”) received by the Escrow Agent, less any property and/or funds distributed or paid in accordance with this Agreement, are collectively referred to herein as “Escrowed Property.”

Escrowed Property. (a) The Grantor shall deposit with the Escrow Agent funds for the Escrow Account (as defined below) as follows: (i) $500,000,000800,000,000.00, representing the original offering price of the Notes, which amount the Grantor shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; (ii) $7,539,930.5618,083,333.33, representing interest that shall accrue on the Notes from December 21March 15, 2016 2023 (the “Issue Date”) up to and including March 31June 30, 20172023, which amount the Grantor shall have, or shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; and (iii) $2,239,583.335,166,666.67, representing interest that shall accrue on the Notes for each month following March 31June 30, 20172023, which amount the Grantor shall deposit, or shall cause to be, deposited with the Escrow Agent in cash by wire transfer in immediately available funds on the date that is five (5) Business Days prior to the last day of each month beginning on March 31June 30, 20172023, and ending on September 30August 31, 2017 2023 (in each case, unless the Escrow Release has occurred) (any deposits made pursuant to this clause (iii), “Additional Deposits”). As a result of the simultaneous deposits made pursuant to clauses (i) and (ii) above, the aggregate amount deposited with the Escrow Agent on the date hereof will be $507,539,930.56 818,083,333.33 (the “Initial Deposit” and, together with any Additional Deposits, the “Deposits”), which amount the Grantor has determined is sufficient to redeem in cash the Notes, in whole but not in part, in an amount equal to 100% of the original offering price of the Notes plus accrued and unpaid interest from the Issue Date to, but excluding, March 31June 30, 20172023. (i) The Escrow Agent shall accept the Deposits and shall deposit such funds and the proceeds thereof in a separate identifiable account bearing the account number 269108000 with account name “R▇▇▇▇▇▇ Bros Acquisition Escrow with U.S. Bank National Association, as Trustee Hldg 7.75% Nts due 2031,” established at the Escrow Agent (the “Escrow Account”) for disbursement in accordance with the provisions hereof. The Escrow Account shall be under the control (within the meaning of Section 8-106, 9-106 and 9-104 of the UCC) of the Trustee and, notwithstanding any other provisions of this Agreement, the Escrow Agent shall comply with all entitlement orders and instructions given by the Trustee with respect to the Escrow Account or other Escrowed Property, including, without limitation, instructions directing disposition of the funds in the Escrow Account, without further consent of the Grantor or any other person. The Trustee shall only be obligated to give instructions at the written direction of Holders of a majority of the aggregate principal amount of the Notes outstanding. The Trustee agrees not to deliver any entitlement orders or instructions except as permitted by Section 3 hereof and in no event shall it be required to give any instruction unless it is directed by Holders of a majority of the aggregate principal amount of the Notes outstanding; provided, however, that this sentence is solely the agreement between the Trustee and the Grantor and in no way limits or modifies the Escrow Agent’s obligation to comply with all entitlement orders and instructions given by the Trustee or imposes any duty or obligation on the Escrow Agent to investigate or inquire of any party whether the Trustee is entitled to deliver any entitlement orders or instructions. Notwithstanding anything to the contrary contained herein, if at any time the Escrow Agent receives conflicting orders or instructions from the Trustee or the Grantor, the Escrow Agent shall comply with such entitlement order or instruction of the Trustee without further consent by the Grantor or any other person. (ii) Each party hereto hereby confirms that the arrangements established under this Section 1(b) constitute “control” of the Escrow Account. The Escrow Agent and the Grantor have not and will not enter into any other agreement with respect to control of the Escrow Account or purporting to limit or condition the obligation of the Escrow Agent to comply with any orders or instructions with respect to any Escrow Account as set forth in this Section 1(b). (iii) The Escrow Agent hereby h▇▇▇▇▇ agrees that any security interest in, lien on, encumbrance, claim or right of setoff against, the Escrow Account or any funds therein it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrow Account and the funds therein or credited thereto. The Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein, except to the extent that any fees, expenses or costs incurred by, or any obligations owed to, Escrow Agent hereunder are not promptly paid when due, Escrow Agent may reimburse itself therefor from the Escrowed Property and may sell, convey or otherwise dispose of any Escrowed Property for such purpose. (iv) It is the intention of the parties hereto that this Agreement create a true escrow, and the Grantor has no ownership of, or rights in, the Escrow Account or the Escrowed Property other than the limited contractual right to receive the Escrowed Property under the circumstances specified in Section 4 hereof. If, notwithstanding the intention of the parties set forth in the foregoing sentence, this Agreement shall be characterized as an arrangement for security (and not a true escrow), then this Agreement shall be deemed to constitute a security agreement under the UCC and other applicable law. In furtherance of the foregoing, as security for the due and punctual payment of the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, the Grantor hereby pledges, assigns and grants to the Trustee, for the benefit of the Holders of the Notes, a continuing first-priority security interest in, and a lien on, all of the Grantor’s right, title and interest in and to the Escrow Account and the Escrowed Property credited thereto and all the proceeds thereof, whether now owned or existing or hereafter acquired or arising (collectively, the “Collateral”). (v) The Grantor agrees to take all steps necessary in connection with the perfection of the Trustee’s security interest in the Escrowed Property and, without limiting the generality of the foregoing, the Grantor shall prepare and file one or more UCC financing statements and Personal Property Security Act financing statements in such filing offices and containing such descriptions of collateral as are reasonably necessary or advisable in order to perfect the security interest granted herein. Without limiting the Grantor's ’s obligations in the preceding sentence, the Grantor also authorizes Trustee to prepare and file such financing statements. In no event whatsoever, shall either the Trustee or the Escrow Agent have any responsibility for preparing or filing any financing or continuation statements, nor shall either have any responsibility for recording any documents or instruments in any public office at any time or times, or for otherwise perfecting or maintaining the perfection of any security interest referred to herein, nor for the validity, perfection, priority or enforceability of the Liens referred to herein. (vi) The Grantor represents and warrants that it was duly incorporated and is validly existing as a Canadian corporation in its jurisdiction of formation and is not incorporated under the laws of any other jurisdiction, and during the term of this Agreement, the Grantor will not change its legal name or jurisdiction of organization without giving the Trustee 30 days’ prior written notice. (vii) Upon the release of any Escrowed Property pursuant to Section 4 hereof, the security interest of the Trustee for the benefit of the Holders of the Notes in such released Escrowed Property shall automatically terminate without any further action and such released Escrowed Property shall be delivered to the recipient free and clear of any and all liens, claims or encumbrances of any person, including, without limitation, the Escrow Agent, the Trustee and the Holders of the Notes, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent. At such time, the Trustee and the Escrow Agent shall execute such documents without recourse, representation or warranty of any kind as the Grantor shall reasonably request and provide to evidence or confirm the termination of such security interest. The Initial Deposit, any Additional Deposits (following such deposit(s)), the Escrow Account and all funds, securities or other property now or hereafter credited to the Escrow Account, plus all interest, dividends and other distributions and payments on any of the foregoing (collectively, the “Distributions”) received by the Escrow Agent, less any property and/or funds distributed or paid in accordance with this Agreement, are collectively referred to herein as “Escrowed Property.”