Common use of The Escrowed Property Clause in Contracts

The Escrowed Property. (a) Pursuant to Section 6 of Amendment No. 5, the Agent shall deposit (or cause to be deposited) with the Escrow Agent in the Escrow Account (as defined below): (i) on the date hereof (the “Restatement Effective Date”), $603,804,900, (ii) within one (1) Business Day (as defined in the Credit Agreement) of the receipt, on any Business Day between, but not including, the Restatement Effective Date and September 10, 2014, of the net proceeds from the Term B-3 Loans and Term B-4 Loans received by the Agent in connection with the initial syndication of such Term B-3 Loans and/or Term B-4 Loans and (iii) on September 10, 2014, an amount equal to the remainder of the net proceeds from the Term B-3 and Term B-4 Loans not deposited pursuant to the previous clauses (i) and (ii), in each case, in cash, clauses (i), (ii) and (iii), collectively representing the net proceeds from the Term B-3 Loans and the Term-B-4 Loans (the “Proceeds”). (b) On or prior to the first day of each month, from and including October 1, 2014 through and including the Escrow End Date or the Escrow Release Date, and on the Escrow End Date or the Escrow Release Date, as applicable, Albertson’s and Merger Sub will deposit (or cause to be deposited) with the Escrow Agent into the Escrow Account an amount of cash equal to the amount of Accrual Fees accrued on the Term B-3 Loans and the Term B-4 Loans from (and including) the first day of the immediately preceding month through (and including) the last day of the immediately preceding month (and, with respect to the Escrow End Date or the Escrow Release Date, from (and including) the first day of such month and through (and including) such Escrow End Date or the Escrow Release Date, as applicable) (such funds, together with the Proceeds and any other property from time to time held by the Escrow Agent in the Escrow Account, including, without limitation, 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, the “Escrowed Property”). The Companies certify that the Escrowed Property shall comply with the applicable provisions of Amendment No. 5 and Credit Agreement, as applicable. (i) Subject to and in accordance with the provisions hereof, the Escrow Agent agrees to hold the Escrowed Property in a “securities account” (as defined in Section 8-501 of the Uniform Commercial Code in effect in the State of New York on the date hereof (the “New York UCC”)) (the “Escrow Account”) established with the Escrow Agent. The Escrow Account shall be maintained with the Escrow Agent, shall be in the name of Albertson’s and shall be known as the “Saturn Acquisition Escrow” Account; wire instructions for deposit of any cash amounts are as follows: Wilmington Trust (a/k/a Manufacturers and Traders Trust Company) ABA #▇▇▇▇▇▇▇▇▇ A/C: Saturn Acquisition Escrow A/C #: 109410-000 Attn: ▇▇▇ ▇▇▇▇ The parties agree that the Escrow Agent is a securities intermediary with respect to the Escrow Account and intend that all securities, cash and other assets held in the Escrow Account shall be treated as financial assets. The Escrow Agent makes no representation or warranties with respect to the creation or enforceability of any security interest in the Escrow Account or the Collateral. The Escrow Account will be established with the Escrow Agent as provided above. The 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 Escrowed Property. (ii) As security for the due and punctual payment of the Escrow Prepayment Amount and the prompt and complete payment and performance by the Companies of their respective obligations under Section 2.3(f) of the Credit Agreement (collectively, the “Secured Obligations”), each Company hereby pledges, assigns and grants to the Agent, for the benefit of Agent and the Term B-3 Lenders and the Term B-4 Lenders, to secure the Secured Obligations (in respect of the Term B-3 Lenders and Term B-4 Lenders only), a security interest in all of its right, title and interest, whether now owned by or owing to, or hereafter acquired by or arising in favor of such Company, in the Escrow Account, the other Escrowed Property, and all “financial assets” (as defined in Section 8-102(a)(9) of the New York UCC) credited to the Escrow Account, “investment property” (as defined Article 9 of the New York UCC) credited to the Escrow Account and proceeds of the foregoing (collectively, the “Collateral”). The security interest of the Agent granted pursuant hereto shall at all times be valid, perfected and enforceable as a first priority security interest subject only to any lien of the Escrow Agent permitted pursuant to clause (v) below. Each Company agrees to take all necessary steps that are reasonably requested by the Agent or the Term B-3 Lenders and the Term B-4 Lenders having more than 50% of the sum of the aggregate outstanding principal amount of all Term B-3 Loans and Term B-4 Loans (the “Escrow Required Lenders”) to maintain the security interest created by this Agreement as a perfected first-priority security interest subject only to any lien of the Escrow Agent permitted pursuant to clause (v) below. Without limiting the generality of the foregoing, each Company hereby authorizes the Agent to file one or more UCC financing statements (including amendments thereto and continuations thereof) in such jurisdictions and filing offices and containing such description of the Collateral as may be reasonably necessary in order to perfect the security interest granted herein, and such Company agrees to file or to cause to be filed all such UCC financing statements in such jurisdictions and filing offices and containing such description of the Collateral as are necessary in order to perfect the security interest granted herein; provided that the Escrow Agent shall have no obligation to file or monitor the filing of such financing statements. Any rights that the Agent may have under this Agreement shall not imply any obligations under this Agreement. Each Company represents and warrants that as of the date hereof its legal name is that set forth on the signature pages hereof and it is duly formed and validly existing under the laws of the State of Delaware and is not organized under the laws of any other jurisdiction, and each Company hereby agrees that, except in connection with the Safeway Acquisition prior to the termination of this Agreement, it will not change its legal name, jurisdiction of organization, organizational identification number, if any, or chief executive office without giving the Agent at least five (5) Business Days’ prior written notice thereof and causing to be filed all such UCC financing statements in such jurisdictions and filing offices and containing such descriptions of the Collateral as is necessary in order to perfect the security interest granted herein. (iii) The Escrow Agent, as securities intermediary, hereby agrees that prior to release from the Escrow Account all Escrowed Property shall either be held as U.S. dollars or be invested in Eligible Escrow Investments specified in writing to the Escrow Agent by an Authorized Person of Albertson’s, credited to the Escrow Account. The Companies and the Escrow Agent hereby agree that all amounts and property credited to the Escrow Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. For purposes of this Agreement, “Eligible Escrow Investments” means: (1) Treasury Securities, (2) investments in time deposit accounts, certificates of deposit and money market deposits, in each case maturing no later than Escrow End Date, entitled to U.S. Federal deposit insurance for the full amount thereof or issued by a bank or trust company (including the Escrow Agent or an affiliate of the Escrow Agent) that is organized under the laws of the United States of America or any state thereof having capital, surplus and undivided profits aggregating in excess of $500.0 million,