EXHIBIT C TO SENIOR NOTE AGREEMENT
ESCROW AGREEMENT
ESCROW AGREEMENT (this "Agreement"), dated as of September 18, 1996, by and
among (i) The Prudential Insurance Company of America, a New Jersey mutual
insurance company ("Prudential"), Principal Mutual Life Insurance Company, an
Iowa corporation ("Principal"), Pruco Life Insurance Company, an Arizona
corporation ("Pruco"), Contrarian Capital Advisors, L.L.C., a Delaware limited
liability company, as agent ("Contrarian") (together with any subsequent holders
of the series of Notes to which this Agreement applies at the time amounts are
deposited pursuant to Section 3, the "Noteholders"), (ii) The ▇▇▇. ▇▇▇▇▇▇'
Brand, Inc., a Delaware corporation (the "Borrower"), and (iii) The Bank of New
York, a New York banking corporation (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, pursuant to a Licensing Assets Purchase Agreement,
dated as of August 7, 1996 (the "Asset Purchase Agreement"), among the Borrower,
▇▇▇. ▇▇▇▇▇▇ Development Corporation, a Delaware corporation ("MFD"), and
Capricorn, the Borrower is as of the date of this Agreement purchasing certain
assets specified therein;
WHEREAS, the Noteholders have entered into a Senior Note
Agreement dated as of September 18, 1996 (the "Note Agreement") by and among the
Noteholders and the Borrower pursuant to which the Borrower is as of the date of
this Agreement issuing two series of Notes as partial consideration for the
assets to be acquired pursuant to the Asset Purchase Agreement; and
WHEREAS, the Series 1 Notes will be subject to set-off rights
for general indemnification claims under the Asset Purchase Agreement and the
escrow arrangements provided herein in the event any such Notes shall be
prepaid.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein but not otherwise defined
shall have the meanings ascribed thereto in the Note Agreement.
3. Appointment of Escrow Agent. Each Noteholder and the Borrower hereby
appoint the Escrow Agent to act as escrow agent hereunder, and the Escrow Agent
hereby accepts such appointment for the purpose of receiving and disbursing the
escrow funds and accrued interest thereon in accordance with the terms and
conditions set forth herein.
5. Deposit of Funds; Designation of Escrow Amounts. In the event the
Borrower makes mandatory or voluntary prepayments (each, a "Prepayment") of
principal (pursuant to Section 5.2 or Section 5.3 of the Note Agreement) on the
Series 1 Notes during a period of time when the Borrower's set-off rights with
respect to such Series 1 Notes remain in effect pursuant to Section 5.5 of the
Note Agreement, the amount of principal being so prepaid on such Series 1 Notes
(the "Prepayment Amount"), shall be deposited by the Borrower with the Escrow
Agent in Escrow Accounts as described in Section 4 below. The Prepayment Amount
shall be maintained by the Escrow Agent in accordance with the provisions of
Section 6 hereof, and will be disbursed by the Escrow Agent pursuant to the
provisions of Section 8 hereof.
7. Segregation and Maintenance of Escrow Account. The Escrow Agent shall
establish and maintain a separate account (the "Escrow Account") for the Series
1 Notes. In the event the Borrower makes a Prepayment, the Borrower shall
provide the Escrow Agent with a certificate identifying (i) the identity of the
Noteholders to which such Prepayment Amount relates and (ii) the percentage of
the aggregate amount of Series 1 Notes held by each such Noteholder (the
"Percentage Interest") of record as of the date of such Prepayment. Once
established, the Escrow Account shall thereafter be (i) credited with (A) any
additional Prepayment Amount, (B) the Escrow Account's interest income, and (ii)
debited with (A) any disbursements of Escrow Funds (as defined below) in
accordance with Section 8(a) and (B) any disbursements of Escrow Funds in
accordance with Section 8(b). The Escrow Agent shall maintain a ledger
containing the Percentage Interest of each Noteholder in each Prepayment Amount
and the aggregate Percentage Interest of each Noteholder in the Escrow Account.
9. Note Series Representatives. Prudential or a successor designated by
Prudential shall have the authority to act on behalf of the holders of the
Series 1 Notes (the "Note Series Representative").
11. Investment of Prepayment Amount. The Prepayment Amount in the Escrow
Account during the term of this Agreement and the interest thereon
(collectively, the "Escrow Funds") shall be continuously invested and reinvested
by the Escrow Agent in such investments as the Note Series Representative shall
from time to time direct in writing, in its complete discretion, provided,
however, that the Escrow Funds shall be invested only in Permitted Investments
(as hereinafter defined). "Permitted Investments" shall mean any of the
following investments with a maturity of not more than one month: (i) direct
obligations of or obligations guaranteed by the United States of America; (ii)
commercial paper rated A-1 by Standard & Poor's Corporation or Prime-1 by
▇▇▇▇▇'▇ Investors Service, Inc., or better; (iii) certificates of deposit issued
by United States commercial banks having capital and surplus of at least
$500,000,000; and (iv) investments in institutional money market funds investing
principally in obligations permitted by clauses (i) through (iii) of this
definition. The registered owner, if any, of any securities or other investments
in which the Escrow Funds are from time to time invested shall be the Escrow
Agent or its nominee. The Escrow Agent shall not be responsible for any loss
incurred as a result of any investments made in accordance with the terms
hereof. Temporarily uninvested funds held hereunder shall not earn or accrue
interest.
13. Income Taxes. The parties hereto agree that the Escrow Account
established by this Agreement shall be treated for income tax purposes as a
"grantor trust" under subpart E of part I of subchapter J of the Internal
Revenue Code of 1986, as amended (the "Code"), and that each Noteholder (or the
tax group of which such Noteholder is a member) shall report for Federal, state
and local income tax purposes its Percentage Interest of all income or other tax
items derived from the investment of the Escrow Funds. The Escrow Agent shall
provide to each Noteholder as and when requested in writing by such Noteholder
the information necessary for such Noteholder to determine such liability. Prior
to the filing by such Noteholder (or the tax group of which such Noteholder is a
member) of any income tax return that includes income reportable pursuant to the
preceding sentence, such Noteholder shall deliver a written request and
instructions for payment to the Escrow Agent, and the Escrow Agent shall
promptly pay to such Noteholder from the relevant Escrow Account an amount equal
to the aggregate Federal, state and local income tax that the Escrow Account
would have paid if it were a corporation subject to the tax imposed on
corporations at the maximum effective Federal, state and local income tax rate
then in effect for such fiscal year (which rate shall be determined taking into
account the deductibility of state and local income taxes for Federal income tax
purposes).
15. Escrow Payment. The Escrow Agent shall release funds from the Escrow
Account on the next business day, or as soon thereafter as the investments have
matured and funds are available for distribution:
16. (a) To the applicable Noteholders upon the termination of the set-off
rights provided in Section 5.5 of the Note Agreement and Section 10(a) and 10(b)
of the Asset Purchase Agreement on the date which is 18 months following the
date of the Closing; provided, however, that the Escrow Agent shall not release
to the Noteholders funds in an amount equal to the amount claimed by the
Borrower pursuant to such provisions in a notice (a "Claim Notice") delivered to
the Escrow Agent before such time, which notice shall specify the amount claimed
and the basis for such claim.
(b) To the applicable Noteholders or the Borrower, as
the case may be, upon the Note Series Representative
and the Borrower duly executing and delivering to the
Escrow Agent a Certificate Authorizing Release in the
form attached hereto as Exhibit A authorizing release
of funds to the Noteholders of record and/or to the
Borrower, as the case may be, at such times and in
such amounts as appropriate to reflect the resolution
of a claim for which the Escrow Agent had received a
Claim Notice.
(c) To the applicable Noteholders within 20 business
days following March 31, June 30, September 30 or
December 31 in any year in which an Escrow Account
holds funds in an amount equal to the net investment
income earned by such Escrow Account during the
fiscal quarter then ended and not previously
disbursed.
Each Noteholder shall be entitled to receive its Percentage Interest in the
Escrow Funds contained in the Escrow Account upon any disbursement of funds to
Noteholders from the Escrow Account under this Section 8.
1. Termination. This Agreement shall terminate and be of no further
force and effect upon the date that the Borrower's set-off rights with respect
to the Series 1 Notes shall no longer be in effect pursuant to Section 5.5 of
the Note Agreement and there shall be no disputed amount related to a Claim
Notice issued as described above in Section 8(a).
3. Compensation of Escrow Agent. The Escrow Agent shall also be
entitled to reimbursement from the Borrower for all expenses paid or incurred by
it in the administration of its duties hereunder, including, but not limited to,
all of its counsel's, advisor's and agent's fees and disbursements. Compensation
and expenses of the Escrow Agent shall be paid by the Borrower upon demand
thereto by the Escrow Agent.
5. Exculpation and Indemnification of Escrow Agent. It is understood and
agreed that
the Escrow Agent shall:
(a) be under no duty to accept information from any person
other than the Borrower or the Note Series Representatives and then only to the
extent and in the manner provided in this Agreement;
(c) be protected in acting upon any written notice, opinion,
request, certificate, approval, consent or other document believed by it to be
genuine and to be signed by the proper party or parties;
(e) be deemed conclusively to have given and delivered any
notice required to be given or delivered hereunder if the same is in writing,
signed by any one of its authorized officers and (i) mailed, by registered or
certified mail, postage prepaid, or (ii) hand delivered, in a sealed wrapper,
addressed as follows,
If to the Borrower:
The ▇▇▇. ▇▇▇▇▇▇' Brand, Inc.
c/o Capricorn Investors II, L.P.
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Prudential:
The Prudential Insurance Company of America
c/o Prudential Financial Restructuring Group
Four Gateway Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Principal:
Investment Securities Department
The Principal Financial Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Pruco:
Pruco Life Insurance Company
c/o Prudential Financial Restructuring Group
Four Gateway Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Contrarian:
Contrarian Capital Advisors, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(a) be indemnified and held harmless jointly and severally by
the parties hereto (other than itself) against any claim made against it by
reason of its acting or failing to act in connection with any of the
transactions contemplated hereby and against any loss, liability or expense,
including the expense of defending itself against any claim of liability it may
sustain in carrying out the terms of this Agreement, except such claims which
are occasioned by its bad faith, gross negligence, willful misconduct or fraud;
provided, however, that promptly after the receipt by the Escrow Agent of notice
of any demand or claim or the commencement of any action, suit or proceeding,
the Escrow Agent shall, if an indemnification claim in respect thereof is to be
made by the Escrow Agent against any of the parties hereto (other than itself),
notify such other party thereof in writing, but failure to so notify shall not
affect the Escrow Agent's rights hereunder, and provided, further, that the
indemnitors hereunder shall be entitled, jointly or severally and at their own
expense, to participate in and/or assume the defense of any such action, suit or
proceeding and, 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
Escrow Funds 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.
(c) have no liability or duty to inquire into the terms and
conditions of any agreements to which the Escrow Agent is not a party, its
duties under this Agreement being understood to be purely ministerial and not
fiduciary in nature;
(e) be permitted to consult with counsel of its choice,
including in-house counsel, and shall not be liable for any action taken,
suffered or omitted by it in good faith in accordance with the written advice of
such counsel, provided, however, that nothing contained in this Section 11(f),
nor any action taken by the Escrow Agent, or of any counsel, shall relieve the
Escrow Agent from liability for any claims which are occasioned by its bad
faith, gross negligence, willful misconduct or fraud, all as provided in Section
11(d) above;
(g) not be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Agreement, unless the same
shall be in writing and signed by all of the parties hereto;
(i) have no liability for any act or omission done pursuant to
the instructions contained or expressly provided for herein, or written
instructions given by the Note Series Representative and/or the Borrower, as the
case may be, pursuant hereto;
(k) not have any interest in the Escrow Funds deposited
hereunder but is serving as escrow holder only and has only possession thereof;
(m) in the event of ambiguity in the provisions governing the
Escrow Funds 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, be entitled to refrain from taking any
action other than to retain custody of the Escrow Funds deposited hereunder
until it shall have received joint written instructions signed by the Note
Series Representative and the Borrower, or to deposit the Escrow Funds with a
court of competent jurisdiction and thereunder to have no further duties or
responsibilities in connection therewith.
(n) be deemed to make no representation as to the validity,
value, genuineness or collectability of any security or other document or
instrument held by or delivered to it;
(p) 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;
(r) have the right, at any time, to resign hereunder by giving
written notice of its resignation to the Noteholders and the Borrower, at their
addresses set forth above, in which case:
(i) all property in the Escrow Account shall
be delivered by it to such person as may be
designated in writing by the Note Series
Representative and the Borrower, whereupon the Escrow
Agent's obligations hereunder shall cease and
terminate;
(i) if after 30 days from the date of its
written notice of intent to resign no such person has
been designated by such date the Escrow Agent's sole
responsibility thereafter shall be to keep all
property then held by it in the Escrow Account and to
deliver the same to a person designated in writing by
the Note Series Representative and the Borrower, or,
if no such person shall have been so designated, in
accordance with the directions of a final order or
judgment of a court of competent jurisdiction, and
the provisions of Sections 11(f), 11(j) and 11(k)
hereof shall remain in effect; and
(a) be reimbursed, as provided in Section 10 hereof, upon its
request for all reasonable expenses, disbursements and advances incurred or made
by it, its counsel or its agents in accordance with any provisions of this
Agreement, except any such expenses, disbursements or advances as may be
attributable to its bad faith, gross negligence, willful misconduct or fraud.
1. Escrow Agent's Lien on Escrow Funds.
2. The Noteholders and the Borrower hereby grant to the Escrow
Agent a lien on the Escrow Funds such that, in the event that any and all
charges payable under this Agreement shall not be timely paid to it, the Escrow
Agent shall have the right to pay itself from the Escrow Funds the full amount
owed to it, provided that written notice of the Escrow Agent's intent to proceed
under this Section 12 be given to the Noteholders at least five business days in
advance of such action.
1. Notices. All requests, notices or other communications hereunder
shall be in writing, shall be deemed to have been given (i) upon receipt if
delivered by facsimile transmission (with original hard copy to follow by
overnight courier) or by hand in a sealed wrapper, (ii) one day after having
been delivered to an overnight courier or (iii) three days after having been
deposited in the mail as registered or certified mail, return receipt requested,
postage prepaid (a) to the addresses of the Noteholders and the Borrower set
forth in Section 11(c) and (b) to the address of the Escrow Agent as follows:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
21st Floor
Attn: ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
2. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4. Headings. The section and other headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
6. Assignment. This Agreement shall be binding on and shall inure to
the benefit of the parties hereto and, in the case of the Noteholders, to their
permitted transferees of the Notes pursuant to the provisions of the Note
Agreement.
7. Choice of Law and Jurisdiction.
9. 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.
11. Amendment and Waiver.
13. 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.
15. Use of The Bank of New York Name. No printed or other material in
any language, including prospectuses, notices, reports, and promotional material
which mentions The Bank of New York 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
The Bank of New York; provided, that nothing herein shall prevent the holder of
any Note from delivering copies of any financial statements and other documents
delivered to such holder, and disclosing any other information disclosed to such
holder, by or on behalf of the Borrower or any Subsidiary in connection with or
pursuant to the Asset Purchase Agreement or the Note Agreement to (i) such
holder's directors, officers, employees, agents and professional consultants,
(ii) any other holder of any Note, (iii) any Person to which such holder offers
to sell such Note or any part thereof, (iv) any Person to which such holder
sells or offers to sell a participation in all or any part of such Note, (v) any
federal or state regulatory authority having jurisdiction over such holder, (vi)
the National Association of Insurance Commissioners or any similar organization
or (vii) any other Person to which such delivery or disclosure may be necessary
or appropriate (A) in compliance with any law, rule, regulation or order
applicable to such holder, (B) in response to any subpoena or other legal
process, (C) in connection with any litigation to which such holder is a party,
provided that such holder uses its best efforts to notify the Borrower that such
information has been requested from it, or (D) in order to implement or
facilitate the exercise of remedies by such holder in its capacity as such or to
protect such holder's rights or interests as a holder of such Note.
17. Miscellaneous. Nothing in this Agreement is intended to or shall
confer upon anyone other than the parties hereto any legal or equitable right,
remedy or claim.
19. Severability. If any provision of this Agreement on the application
of any such provision to any person or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:Assistsant Treasurer
THE ▇▇▇ ▇▇▇▇▇▇' BRAND, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. Winkur
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:Vice President
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇
Its:Counsel
PRUCO LIFE INSURANCE COMPANY
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its:Asst. Vice President
CONTRARIAN CAPITAL ADVISORS, L.L.C., AS AGENT FOR THE ENTITIES
LISTED BELOW:
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
OPPENHEIMER HORIZON
PARTNERS, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇ INSTITUTIONAL
HORIZON PARTNERS, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇ INSTITUTIONAL
HORIZON FUND II, LTD.
THE & TRUST
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:Partner
EXHIBIT A
Form of
Certificate Authorizing Release
THE UNDERSIGNED HEREBY CERTIFY THAT:
1. We are duly authorized to execute this Certificate Authorizing Release.
3. You are hereby authorized to release $__________ to the Borrower as
follows:
4. [wire instructions]
1. You are hereby authorized to release the amounts set forth next to each
of the following Noteholders as follows:
3. $___________ [Noteholder]
5. [wire instructions]
$___________ [Noteholder]
[wire instructions]
* * * *
The foregoing certifications are made and delivered as of this
____ day of __________, _____ pursuant to Section 8 of the Escrow Agreement
dated as of September 18, 1996 (the "Escrow Agreement"), by and among the
Borrower, the Noteholders and The Bank of New York, as Escrow Agent. Capitalized
terms used herein shall have the meanings set forth in the Escrow Agreement.
Borrower:
THE ▇▇▇. ▇▇▇▇▇▇' BRAND, INC.
By:______________________
Name:
Title:
Note Series Representative:
[ ]
By:______________________
Name:
Title:]
SCHEDULE I
Escrow Agent Fees
[To be inserted]