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EXHIBIT 99.6
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ESCROW AGREEMENT
among
KEY ENERGY GROUP, INC.
and
▇▇▇▇▇▇ BROTHERS INC.
and
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
and
THE BANK OF NEW YORK
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dated as of September 14, 1998
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ESCROW AGREEMENT
Escrow Agreement (the "ESCROW AGREEMENT"), dated as of September 14,
1998, among Key Energy Group, Inc., a Maryland corporation (the "COMPANY"),
▇▇▇▇▇▇ Brothers Inc., a New York corporation ("LBI"), ▇▇▇▇▇▇ Commercial Paper
Inc., a New York corporation ("LCPI"), and The Bank of New York, a New York
banking corporation, as escrow agent (the "ESCROW AGENT").
RECITALS
WHEREAS, the Company, the guarantors listed as parties thereto (the
"GUARANTORS"), LCPI, as Administrative Agent (the "ADMINISTRATIVE AGENT"), LBI,
as Arranger (the "ARRANGER"), and the Lenders party thereto (the "LENDERS") have
entered into a Bridge Loan Agreement dated as of September 14, 1998 (the "BRIDGE
LOAN AGREEMENT") pursuant to which the Lenders have agreed, inter alia, to make
loans to the Company, in an aggregate principal amount not to exceed
$150,000,000, such loans to be evidenced by Increasing Rate Notes (the "NOTES"),
subject to the terms and conditions set forth in the Bridge Loan Agreement.
WHEREAS, pursuant to Sections 5.7, 5.8 and 5.9 of the Bridge Loan
Agreement, it is a condition to each Lender's obligation to make Bridge Loans
that, contemporaneously therewith: (i) this Escrow Agreement shall have been
executed and delivered by each of the parties hereto, (ii) the Indenture dated
as of September 14, 1998 (the "EXCHANGE NOTE INDENTURE") among the Company, the
Guarantors and The Bank of New York, as trustee (the "TRUSTEE") shall have been
executed by each of the parties thereto and delivered to the Escrow Agent to be
held pursuant to this Escrow Agreement, (iii) $150,000,000 in aggregate
principal amount of Exchange Notes shall have been authorized pursuant to the
Exchange Note Indenture and delivered to the Escrow Agent to be held pursuant to
this Escrow Agreement, and (iv) the Company shall have executed and delivered to
the Escrow Agent warrants (the "WARRANTS") to purchase 15.0% of the
fully-diluted capital stock (including all series of preferred and common stock
(other than Disqualified Stock (as defined in the Exchange Note Indenture)) and
all other outstanding warrants, options or other convertible securities) of the
Company (calculated after giving effect to the exercise of the Warrants and all
other outstanding warrants, options or other convertible securities), to be held
pursuant to this Escrow Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Delivery of Escrow Securities and Agreements.
(a) At or prior to the date of the making of the
Bridge Loans (the "CLOSING DATE") by the Lenders to the Company, the Company
shall deliver, or cause to be delivered to the Escrow Agent (i) a warrant
agreement dated as of September 14, 1998 (the "WARRANT AGREEMENT") between the
Company and The Bank of New York, as warrant agent (the "WARRANT AGENT"); (ii)
the Exchange Note Indenture, executed by each of the Company, the Guarantors
named therein and the Trustee; (iii) executed Exchange Notes, undated and
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unregistered as to payee or registered in blank, in an aggregate principal
amount equal to $150,000,000; and (iv) duly authorized and executed
certificates, undated and registered in blank (the "WARRANT CERTIFICATES"),
representing the Warrants, as contemplated by the Bridge Loan Agreement and the
Company Warrant Agreement.
(b) The Exchange Notes and the Warrants (collectively, the
"ESCROW SECURITIES") delivered to the Escrow Agent pursuant to this Escrow
Agreement shall be held in escrow and released therefrom on the terms and
conditions set forth herein.
2. Release of Escrow Securities.
(a) If the Notes remain outstanding on the first
anniversary of the Closing Date (the "MATURITY DATE"), and the Escrow Agent
receives a notice in the form of Exhibit A hereto from the Administrative Agent,
the Escrow Agent shall deliver to the Trustee, for authentication and delivery
to the holders of Notes who have elected to exchange Notes for Exchange Notes,
an executed authentication order and an Exchange Note or Exchange Notes,
registered in the name of such person or persons designated by the
Administrative Agent and dated the date of the delivery thereof, in an aggregate
principal amount equal to the aggregate principal amount of Notes so exchanged,
together with a copy of the executed Exchange Note Indenture. Concurrently with
the delivery of the Exchange Notes to the Trustee pursuant to this Escrow
Agreement, the Escrow Agent shall deliver, or cause to be delivered to the
Company, all outstanding Notes so exchanged.
(b) If Notes remain outstanding on the Maturity Date,
and the Escrow Agent shall have received written notice in the form of Exhibit B
hereto from the Arranger, the Escrow Agent shall deliver to the Warrant Agent
for countersignature and delivery to the Arranger, on any one or more occasions,
an executed countersignature order and Warrants, registered in the name of such
person or persons designated by the Arranger and dated the date of the release
thereof, as shall be specified in the notice to the Escrow Agent. Upon the
payment in full of the Notes prior to the Maturity Date, and the receipt by the
Escrow Agent of written notice in the form of Exhibit C hereto from the
Arranger, the Escrow Agent shall release Warrants remaining in escrow to the
Company.
(c) If on any date after the Closing Date the Arranger
determines (after consultation with the Company) that in connection with
issuance of any indebtedness, convertible debt or equity securities incurred or
issued by the Company or any affiliate thereof, the proceeds of which will be
applied in full or in part to refinance, directly or indirectly, the Bridge
Loans (as converted, extended or exchanged) (the "PERMANENT SECURITIES"), it is
necessary to deliver to the Warrant Agent for countersignature and delivery to
the purchasers of the Permanent Securities an executed countersignature order
and any or all of the Warrants then held in escrow pursuant to this Escrow
Agreement, and the Escrow Agent shall have received written notice in the form
of Exhibit D hereto from the Arranger, the Escrow Agent shall release to the
Arranger the aggregate amount of Warrants, registered in the name of such person
or persons designated by the Administrative Agent and dated the date of the
delivery thereof, as shall be specified in the notice to the Escrow Agent.
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(d) If any Bridge Loans are outstanding on the Maturity
Date, and the Escrow Agent shall have received written notice in the form of
Exhibit E hereto from the Arranger, the Escrow Agent shall release to the
Arranger, on any one or more occasions, the aggregate amount of Warrants,
registered in the name of such person or persons designated by the
Administrative Agent and dated the date of the delivery thereof, as shall be
specified in the notice to the Escrow Agent.
(e) On the date (the "TERMINATION DATE") on which the
Escrow Agent receives a certificate signed on behalf of the Administrative Agent
and the Company to the effect that all outstanding obligations with respect to
the Notes have been repaid in cash in their entirety on or prior to the Maturity
Date, the Escrow Agent shall return any Escrow Securities then held by it marked
"cancelled" as shall be specified in writing by the Administrative Agent and the
Company.
(f) The Company will provide, or cause to be provided, to
the Escrow Agent all such information as the Escrow Agent may from time to time
reasonably request.
(g) The Arranger will provide, or cause to be provided, to
the Escrow Agent all information required to fill in the blanks on the Notes and
Warrants.
3. Responsibility of the Escrow Agent. The Company, the
Administrative Agent and each of the Lenders appoint and designate the Escrow
Agent as escrow agent for the purposes set forth herein, and the Escrow Agent
owes no duty to any other person or entity by reason of this Escrow Agreement.
The Escrow Agent accepts the duties expressly set forth in this Escrow Agreement
and undertakes to perform only such duties relating thereto as are specifically
set forth herein. The Escrow Agent shall have no duty to calculate or verify the
calculation of any amounts, percentages or ratios to be determined hereunder and
shall be entitled to conclusively rely on the amounts set forth in notices
delivered to it hereunder. The parties hereto agree that the following terms and
conditions shall govern and control with respect to the rights, duties,
liabilities and immunities of the Escrow Agent hereunder.
(a) The duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of this Escrow Agreement, and no
implied covenants, duties or obligations (including, without limitation, any
duty to solicit the delivery of any Escrow Securities) shall be read into this
Escrow Agreement against the Escrow Agent, nor shall it have, or be deemed to
have, any duties or responsibilities under the provisions of any other
agreements (including without limitation the Bridge Loan Agreement) between the
other parties hereto or any other Person.
(b) The Escrow Agent shall not be liable for any error of
judgment, or any action taken, suffered or omitted by it in good faith, or
mistake of fact or law, or for anything it may do or refrain from doing in
connection herewith or therewith, except its own gross negligence or willful
misconduct.
(c) The Escrow Agent may conclusively rely and shall be
fully authorized and protected in acting or refraining from acting in good faith
in reliance upon any
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written instruction, communication, notice, request, resolution, direction,
certificate, statement, approval, appraisal, promissory note, share or warrant
certificate or other paper or document (whether in its original or facsimile
form), not only as to its due execution and the validity and effectiveness of
its provision, but also as to the truth of any information therein contained,
which it in good faith believes to be genuine and to have been presented by the
proper party.
(d) The Escrow Agent may consult with counsel of its own
selection, auditors and other experts of its own choice and any opinion or
advice of counsel or of such auditors or other experts shall be full and
complete authorization and protection with respect to any action taken or
suffered or omitted by the Escrow Agent hereunder in good faith and in
accordance with such opinion or advice of counsel or of such auditors or other
experts within the area of their respective expertise.
(e) The Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either directly or
by or through its agents or attorneys.
(f) The Escrow Agent shall not be responsible for and shall
not be under a duty to examine or pass upon, the validity, binding effect,
execution or sufficiency of this Escrow Agreement, the Escrow Securities or of
any agreement amendatory or supplemental hereto or thereto or the absence or
presence of any liens or encumbrances on the property held in escrow hereunder.
(g) The Escrow Agent shall be under no duty to prepare,
conduct or monitor any filing, recording or registration, re-filing,
re-recording or re-registration of this Escrow Agreement or of any agreement
amendatory hereof or of any instrument or assignment, conveyance or further
assurance, or to pay any taxes, fees or charges in connection therewith, or to
give any notice with respect thereto or to pay, inquire into or prepare, conduct
or monitor the payment of, or be under any duty in respect of or arising out of,
any tax or assessment or other governmental charge which may be levied or
assessed on the property held in escrow hereunder or any part thereof or any
confiscation of such property. No property held in escrow by the Escrow Agent
hereunder shall be subject to any set-off, counterclaim, recoupment or other
right which the Escrow Agent may have against any of the parties hereto (except
with respect to any payments to be made to the Escrow Agent hereunder) or
against any other Person for any reason whatsoever.
(h) If any controversy arises between the parties hereto or
with any third person with respect to the subject matter of the escrow described
herein, the Escrow Agent shall not be required to determine the outcome of same
or take any action in the premises, but may await the settlement of any such
controversy by final appropriate legal proceedings or otherwise as the Escrow
Agent may require, notwithstanding instructions to the contrary, and in such
event the Escrow Agent shall not be liable for interest or damages, except that
the Escrow Agent shall not deliver the Escrow Securities held in escrow
hereunder in any manner other than in accordance with Section 2 hereof, except
in accordance with a final unappealable order of a court of competent
jurisdiction.
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(i) If the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions, claims or demands from any
party hereto which, in its opinion, conflict with any of the provisions of this
Escrow Agreement, it shall be entitled to seek advice from outside counsel and
may conclusively rely on such advice and may refrain from taking any action and
its sole obligation shall be to keep safely all property held in escrow until it
shall be directed otherwise in writing by all of the other parties hereto or by
a final order or judgment of a court of competent jurisdiction.
(j) Without limiting and in furtherance of the foregoing,
the Escrow Agent shall not be liable or responsible for any of the provisions of
the Notes or the Escrow Securities except for those expressly referred to
herein.
(k) This Agreement is for the exclusive benefit of the
parties hereto and their respective successors hereunder, and shall not be
deemed to give, either express or implied, any legal or equitable right, remedy,
or claim to any other entity or person whatsoever.
(l) If at any time Escrow Agent is served with any judicial
or administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects Escrow Property (including but
not limited to orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of Escrow Property), Escrow Agent
is authorized to comply therewith in any manner as it or its legal counsel of
its own choosing deems appropriate; and if Escrow Agent complies with any such
judicial or administrative order, judgment, decree, writ or other form of
judicial or administrative process, Escrow Agent shall not be liable to any of
the parties hereto or to any other person or entity even though such order,
judgment, decree, writ or process may be subsequently modified or vacated or
otherwise determined to have been without legal force or effect.
(m) Escrow Agent shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of Escrow Agent
(including but not limited to any act or provision of any present or future law
or regulation or governmental authority, any act of God or war, or the
unavailability of the Federal Reserve Bank wire or telex or other wire or
communication facility).
(n) In the event of any dispute between or conflicting
claims by or among the Depositors and/or any other person or entity with respect
to any Escrow Property, Escrow Agent shall be entitled, in its sole discretion,
to refuse to comply with any and all claims, demands or instructions with
respect to such Escrow Property so long as such dispute or conflict shall
continue, and Escrow Agent shall not be or become liable in any way to the
Depositors for failure or refusal to comply with such conflicting claims,
demands or instructions. Escrow Agent shall be entitled to refuse to act until,
in its sole discretion, either (i) such conflicting or adverse claims or demands
shall have been determined by a final order, judgment or decree of a court of
competent jurisdiction, which order, judgment or decree is not subject to
appeal, or settled by agreement between the conflicting parties as evidenced in
a writing satisfactory to Escrow Agent or (ii) Escrow Agent shall have received
security or an indemnity satisfactory to it sufficient to hold it harmless from
and against any and all Losses which it may incur by reason of so acting. Escrow
Agent may, in addition, elect, in its sole discretion, to commence an
interpleader action or
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seek other judicial relief or orders as it may deem, in its sole discretion,
necessary. The costs and expenses (including reasonable attorneys' fees and
expenses) incurred in connection with such proceeding shall be paid by, and
shall be deemed a joint and several obligation of, the Depositors.
(o) Each Depositor hereby represents and warrants (a) that
this Escrow Agreement has been duly authorized, executed and delivered on its
behalf and constitutes its legal, valid and binding obligation and (b) that the
execution, delivery and performance of this Escrow Agreement by Depositor do not
and will not violate any applicable law or regulation.
(p) The Escrow Agent does not have any interest in the
Escrowed Property Deposited hereunder but is serving as escrow holder only and
having only possession thereof. The Company shall pay or reimburse the Escrow
Agent upon request for any transfer taxes or other taxes relating to the
Escrowed Property incurred in connection herewith and shall indemnify and hold
harmless the Escrow Agent any amounts that it is obligated to pay in the way of
such taxes. Any payments of income from this Escrow Account shall be subject to
withholding regulations then in force with respect to United States taxes. The
parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax
I.D., number certifications, or W-8 forms for non-resident alien certifications.
It is understood that the Escrow Agent shall be responsible for income reporting
only with respect to income earned on investment of funds which are a part of
the Escrowed Property and is not responsible for any other reporting. This
Section 3(p) and Section 7 shall survive notwithstanding any termination of this
Escrow Agreement or the resignation of the Escrow Agent.
4. Qualifications. The Escrow Agent shall at all times be The
Bank of New York (and its successors and assigns), or a bank, trust company or
corporation in good standing organized and doing business under the laws of the
United States of America or a State of the United States, and having combined
capital and surplus of not less than fifty million dollars ($50,000,000). If the
Escrow Agent shall at any time cease to have the foregoing qualifications, the
Escrow Agent shall resign within 30 days thereafter, such resignation to become
effective as provided in Section 5 hereof.
5. Removal and Resignation. The Escrow Agent and any successor
Escrow Agent may at any time be removed at the written direction of the
Administrative Agent and the Company. The Escrow Agent or any successor Escrow
Agent may at any time resign and be discharged of its obligations hereunder by
giving written notice to the Company and the Administrative Agent specifying the
date upon which it desires that such resignation shall take effect. Such removal
or resignation shall take effect on the date specified in the notice of removal
or resignation, which date shall not be earlier than 30 days after the giving of
the notice of removal or resignation unless previously a successor Escrow Agent
shall have been appointed pursuant to Section 6 hereof and shall have accepted
such appointment, in which event such removal or resignation shall take effect
immediately upon the acceptance by such successor Escrow Agent. The
Administrative Agent and the Company agree to take prompt steps to have a
successor Escrow Agent appointed in the manner hereinafter provided.
6. Appointment of Successor Agent. If at any time the Escrow
Agent shall resign or be removed or otherwise become incapable of acting or if
at any time a vacancy shall
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occur in the office of the Escrow Agent for any other cause, a successor Escrow
Agent (duly qualified as provided in Section 4 above) shall be appointed by the
Administrative Agent and the Company by an instrument in writing delivered to
the Escrow Agent within the time specified below. Upon delivery of said
instrument to and acceptance of said instrument by the successor Escrow Agent,
the resignation or removal of the Escrow Agent shall become effective and such
successor Escrow Agent shall become vested with all the rights, powers, duties
and obligations of its predecessor hereunder. If no successor Escrow Agent shall
have been appointed at the effective date of resignation or within 30 days of a
notice of removal, the Escrow Agent or any other party hereto may petition, at
the expense of the Company, a court of competent jurisdiction for the
appointment of a successor.
7. Compensation, Reimbursement and Indemnification of Escrow
Agent. The Escrow Agent shall be entitled to compensation from the Company as
shall be agreed to in writing from time to time by the Company and the Escrow
Agent for all services rendered by it hereunder, as well as reimbursement from
the Company for all expenses, disbursements, advances and liabilities incurred
or made by the Escrow Agent hereunder (including the reasonable compensation,
expenses and disbursements of the Escrow Agent's agents and counsel).
The Company agrees to indemnify the Escrow Agent (and any
predecessor Escrow Agent) for, and to hold it harmless from and against, any
loss, liability, claims, actions, damages or expenses (including reasonable
expenses and disbursements of its agents and counsel) incurred without gross
negligence or willful misconduct on the part of the Escrow Agent arising out of
or in connection with its entering into this Escrow Agreement and carrying out
its duties hereunder, including the costs and expenses of defending itself
against any claim or liability in the premises.
The provisions of this Section 7 shall survive the termination of
this Escrow Agreement.
8. Termination. This Escrow Agreement shall terminate on the
Termination Date.
9. Notices. Except as otherwise expressly provided herein, all
demands, notices, consents, requests and other documents authorized or required
to be given to any party to this Escrow Agreement shall be given in writing and
either personally served on an officer of such party or mailed by registered or
certified first class mail, postage prepaid, return receipt requested, or sent
by facsimile (with a copy sent by first class mail promptly thereafter),
addressed as follows:
if to the Escrow Agent:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
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if to the Company:
Key Energy Group, Inc.
Two Energy Tower, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇▇▇ Brothers Inc.:
3 World Financial Center
New York, New York 10285
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇▇▇ Commercial Paper Inc.:
c/▇ ▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center
New York, New York 10285
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address by specifying in writing a new
address for such notices to each of the other parties hereto.
10. Successors and Assigns; Amendments and Modifications. This
Escrow Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns and shall not inure to the
benefit of any third party except for any holder of Notes or Exchange Notes who
is not a party to this Escrow Agreement. This Escrow Agreement may not be
amended or modified in any respect without the express written consent of the
Company, the Escrow Agent and the Administrative Agent.
11. Severability. In case any one or more provisions contained in
this Escrow Agreement shall be invalid, illegal or unenforceable in any respect
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions contained herein shall not be in any way affected or impaired thereby
and such provision shall be ineffective in such Jurisdiction only to the extent
of such invalidity, illegality or unenforceability.
12. New York Law; Submission to Jurisdiction; Waiver of Jury
Trial. THIS ESCROW AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS ESCROW
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS ESCROW AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13. Counterparts. This Escrow Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
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14. No Waiver. No course of dealing, nor any delay on the part of
any party hereto in exercising any rights hereunder, or any failure to exercise
the same, shall operate as a waiver of such or any other rights.
15. Descriptive Headings. The descriptive headings of the several
sections of this Escrow Agreement are inserted for convenience only and do not
constitute a part of this Escrow Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
duly executed by their respective authorized officers, as of the date first
above written.
KEY ENERGY GROUP, INC.
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.
By:
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Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Escrow Agent
By:
------------------------------------
Name:
Title:
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Exhibit A to the Escrow Agreement
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Escrow Agreement dated as of September 14, 1998
Ladies and Gentlemen:
Reference is hereby made to the Exchange Note Indenture and to
Section 2(a) of the Escrow Agreement dated as of September 14, 1998 (the "ESCROW
AGREEMENT") among Key Energy Group, Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇
Commercial Paper Inc. and The Bank of New York. Capitalized terms used herein
and not defined shall have the meanings assigned to them in the Escrow
Agreement.
The undersigned hereby notifies you that Loans remained outstanding
on the Maturity Date. You are hereby requested to authenticate the Notes, as
Trustee, pursuant to the escrowed authentication order and to deliver to the
undersigned, for the benefit of each holder of Notes designated on the schedule
attached hereto, an Exchange Note or Exchange Notes, in an amount or amounts,
and registered in the name of such person or persons, as designated in the
schedule attached hereto, together with a copy of the executed Exchange Note
Indenture at the time of such presentation and exchange. All Exchange Notes
delivered by you to the undersigned shall be dated ___________.
Sincerely yours,
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
-------------------------------
Name:
Title:
14
Schedule
--------------------------------------------------------------------------------
Notes Exchange Notes
--------------------------------------------------------------------------------
Holder Principal Registered to Principal
Amount Amount
--------------------------------------------------------------------------------
Name Address Tax
Identification
Number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
15
Exhibit B to the Escrow Agreement
▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Escrow Agreement dated as of September 14, 1998
Ladies and Gentlemen:
Reference is hereby made to the Warrant Agreement and to Section 2(b)
of the Escrow Agreement dated as of September 14, 1998 (the "ESCROW AGREEMENT")
among Key Energy Group, Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ Commercial Paper Inc.
and The Bank of New York. Capitalized terms used herein and not defined shall
have the meanings assigned to them in the Escrow Agreement.
The undersigned hereby notifies you that on the Maturity Date Loans
remained outstanding. You are hereby requested to countersign the Warrants, as
Warrant Agent, pursuant to the escrowed countersigning order and to release to
the undersigned ___% of the Warrants originally placed in escrow pursuant to the
Escrow Agreement, registered in the name of such person or persons designated in
the schedule attached hereto. All Exchange Notes delivered by you to the
undersigned shall be dated ____________.
Sincerely yours,
▇▇▇▇▇▇ BROTHERS INC.
By:
----------------------------------
Name:
Title:
16
Schedule
--------------------------------------------------------------------------------
Warrants
--------------------------------------------------------------------------------
Registered to Percent of Warrants
Originally Placed In
Escrow
--------------------------------------------------------------------------------
Name Address Tax
Identification
Number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
17
Exhibit C to the Escrow Agreement
▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Escrow Agreement dated as of September 14, 1998
Ladies and Gentlemen:
Reference is hereby made to Section 2(b) of the Escrow Agreement
dated as of September 14, 1998 (the "ESCROW AGREEMENT") among Key Energy Group,
Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ Commercial Paper Inc. and The Bank of New
York. Capitalized terms used herein and not defined shall have the meanings
assigned to them in the Escrow Agreement.
The undersigned hereby notifies you that the Loans have been paid in
full prior to the Maturity Date. You are hereby requested to release the
Warrants and the Exchange Notes remaining in escrow to the Company, together
with the Warrant Agreement and the Exchange Note Indenture.
Sincerely yours,
▇▇▇▇▇▇ BROTHERS INC.
By:
----------------------------------
Name:
Title:
18
Exhibit D to the Escrow Agreement
▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Escrow Agreement dated as of September 14, 1998
Ladies and Gentlemen:
Reference is hereby made to the Warrant Agreement and to Section 2(c)
of the Escrow Agreement dated as of September 14, 1998 (the "ESCROW AGREEMENT")
among Key Energy Group, Inc., ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇"), ▇▇▇▇▇▇ Commercial
Paper Inc. ("LCPI") and The Bank of New York. Capitalized terms used herein and
not defined shall have the meanings assigned to them in the Escrow Agreement.
In accordance with the release provisions of Section 4 of the fee
letter among ▇▇▇▇▇▇, LCPI and the Company, dated as of September 14, 1998, the
undersigned hereby notifies you that ▇▇▇▇▇▇ has determined that in order to sell
Permanent Securities it is necessary to countersign the Warrants, as Warrant
Agent, pursuant to the escrowed countersigning order and to deliver to the
purchasers thereof all or a portion of the Warrants originally placed in escrow
pursuant to the Escrow Agreement. You are hereby requested to release to the
undersigned ___ % of such Warrants originally placed in escrow pursuant to the
Escrow Agreement, registered in the name of such person or persons designated in
the schedule attached hereto.
Sincerely yours,
▇▇▇▇▇▇ BROTHERS INC.
By:
----------------------------------
Name:
Title:
19
Schedule
--------------------------------------------------------------------------------
Warrants
--------------------------------------------------------------------------------
Registered to Percent of Warrants
Originally Placed In
Escrow
--------------------------------------------------------------------------------
Name Address Tax
Identification
Number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
20
Exhibit E to the Escrow Agreement
▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Escrow Agreement dated as of September 14, 1998
Ladies and Gentlemen:
Reference is hereby made to the Warrant Agreement and to Section 2(d)
of the Escrow Agreement dated as of September 14, 1998 (the "ESCROW AGREEMENT")
among Key Energy Group, Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ Commercial Paper Inc.
and The Bank of New York. Capitalized terms used herein and not defined shall
have the meanings assigned to them in the Escrow Agreement.
The undersigned hereby notifies you that Loans are outstanding as of
the Maturity Date. You are hereby requested to countersign the Warrants, as
Warrant Agent, pursuant to the escrowed countersigning order and to release to
the undersigned ___% of the Warrants originally placed in escrow pursuant to the
Escrow Agreement, registered in the name of such person or persons designated in
the schedule attached hereto. All Exchange Notes delivered by you to the
undersigned shall be dated _____________.
Sincerely yours,
▇▇▇▇▇▇ BROTHERS INC.
By:
----------------------------------
Name:
Title:
21
Schedule
--------------------------------------------------------------------------------
Warrants
--------------------------------------------------------------------------------
Registered to Percent of Warrants
Originally Placed In
Escrow
--------------------------------------------------------------------------------
Name Address Tax
Identification
Number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
22
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be duly executed by their respective authorized officers, as of the
date first above written.
KEY ENERGY GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Escrow Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ASSISTANT VICE PRESIDENT
