Exhibit 10.1
ESCROW AGREEMENT
Escrow Agreement, dated as of August 7, 2000 (this "AGREE MENT"), among
Eagle Food Centers, Inc., a Delaware corporation (together with its successors
and assigns, the "COMPANY"), U.S. Bank Trust Na tional Association, a national
banking association, as trustee (the "TRUSTEE") under that certain Indenture
(the "INDENTURE") dated as of August 7, 2000 in respect of the Company's 11%
Senior Notes due April 15, 2005 (the "NOTES") and U.S. Bank Trust National
Association (together with its successors and assigns as escrow agent, the
"ESCROW AGENT").
W I T N E S S E T H
WHEREAS, the Company, pursuant to the terms of that certain Order of the
United States District Court for the District of Delaware and in accordance with
the terms of the Indenture has agreed to provide for 10% the common equity of
the Company to be held for the ratable benefit of holders of the Notes and to be
distributed to such holders upon the terms set forth in the Indenture; and
WHEREAS, upon the terms set forth herein, the Escrow Agent has agreed to
hold such common equity interests for the ratable benefit of holders of the
Notes; and to, in accordance with the terms of the Indenture, provide for the
distribution of such equity securities to holders of record of the Notes upon
the dates and under the circumstances set forth herein and therein;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement
have the meanings ascribed to them in the Indenture. The terms set forth below
have the following respective meanings:
"ESCROW SECURITIES" initially means 1,286,947 shares of common stock of the
Company.
"INDENTURE" has the meaning set forth in the preamble hereto.
"NOTES" has the meaning set forth in the preamble hereto.
"ORDER" has the meaning set forth in Section 2(a) hereof.
"TERMINATION CERTIFICATE" has the meaning set forth in Section 3(a) hereof.
2. DELIVERY OF ESCROW SECURITIES. (a) At or prior to the date of original
issuance of the Notes, the Company , or the Company's stock transfer agent, as
applicable, shall deliver to the Escrow Agent (i) the Indenture, duly executed
by each of the Company and the Trustee, (ii) two global securities representing
the Escrow Securities, (iii) a written order of the Company, signed by two
officers of the Company (the "FIRST ORDER"), dated the date of execution,
directing the Trustee to issue 643,473 Shares of the Escrow Securities on
October 16, 2001 to holders of record of the Notes as of the close of business
October 15, 2001, and (iv) a written order of the Company, signed by two
officers of the Company, dated the date of execution, directing the Trustee to
issue 643,474 Shares of the Escrow Securities on October 16, 2002 to holders of
record of the Notes as of the close of business October 15, 2002 (the "SECOND
ORDER" and together with the FIRST ORDER, the "ORDERS"). The Indenture, such
securi ties and the Orders delivered to the Escrow Agent pursuant to this Escrow
Agreement shall be held in escrow upon the terms and conditions set forth
herein.
(b) When Escrow Securities are to be released pursuant to the Orders, the
Company shall, upon delivery to the Company or its stock transfer agent of a
global security therefor, cause to be delivered to the holders of record of the
Notes upon the relevant record date, certificates of stock representing 7.57027
shares per $1000 principal amount of Notes rounded, in respect of each holder,
to the nearest number of whole shares.
3. RELEASE OF ESCROW SECURITIES.
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(a) The Company may, in accordance with the terms of the Indenture, offer
to redeem all of the Notes outstanding. If the Com pany elects, or is required,
to make an Offer to Purchase to all holders of outstanding Notes, the Company
shall, in connection therewith, deliver notice of such Offer to Purchase (a
"TERMINATION CERTIFICATE") to the Escrow Agent. The Termination Certificate
shall be executed by a duly authorized officer of the Company and shall set
forth either (i) that the Notes are to be retired, repaid or refinanced in their
entirety, (ii) or the Company has agreed to an event of a Change of Control, and
in connec tion therewith and in accordance with the terms of the Indenture, the
Company has mailed an Offer to Purchase all outstanding Notes to the holders
thereof.
(b) Promptly upon the Escrow Agent's receipt of the Termination
Certificate, the Escrow Agent shall return the remaining Escrow Securities and
any remaining Orders then held by it to the Company.
(c) The Company will provide, or cause to be provided, to the Escrow Agent
all information as the Escrow Agent may from time to time reasonably request.
4. RESPONSIBILITY OF THE ESCROW AGENT. The Company hereby appoints and
designates 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 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 Agree ment, and no implied
covenants, duties or obligations 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
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any other agreements between the other parties hereto or any other Person;
PROVIDED, HOWEVER, that it shall be responsible to holders of the Notes in
accordance with the terms hereof.
(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 rely and shall be autho rized and protected in
acting or refraining from acting in good faith in reliance upon any written
instruction, communication, notice, request, resolution, direction, certificate,
statement, approval, or other paper or document, not only as to its due
execution and the validity and effective ness 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, auditors and other experts
of its own choice and any opinion or advice of counsel or opinion or advice 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 opinion or advice of such auditors or other experts within the area
of their respective expertise.
(e) Except as otherwise specifically provided herein, the Escrow Agent may
deal with the Company, and its affiliates, in the same manner and to the same
extent and with like effect as if it were not the Escrow Agent hereunder.
5. QUALIFICATIONS. The Escrow Agent shall at all times be 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 twenty-five million dollars
($25,000,000). If the Escrow Agent shall at any time cease to have the foregoing
qualifications, the Escrow Agent shall
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resign within 30 days thereafter, such resignation to become effective as
provided in Section 6 hereof.
6. REMOVAL AND RESIGNATION. The Escrow Agent and any successor Escrow Agent
may at any time be removed at the written direc tion of 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
Trustee, 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 60
days after the giving of the notice of removal or resignation unless previously
a successor Escrow Agent shall have been appointed pursuant to Section 7 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 Company agrees to take prompt steps to have a successor Escrow
Agent appointed in the manner hereinafter provided.
7. APPOINTMENT OF SUCCESSOR ESCROW AGENT. If at any time the Escrow Agent
shall resign or be removed or otherwise become incapa ble of acting or if at any
time a vacancy shall occur in the office of the Escrow Agent for any other
cause, a successor Escrow Agent (duly quali fied as provided in Section 5 above)
shall be appointed by the Company with the consent of the Trustee (or if the
Trustee shall also be resigning or being removed as Trustee, by the Company
acting alone) 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, the Escrow Agent or any other party hereto may
petition a court of competent jurisdiction for the appointment of a successor.
8. COMPENSATION; SEPARATE REIMBURSEMENT. The Escrow Agent shall not be
entitled to separate compensation from the Company,
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services rendered by it hereunder, but shall be compensated as Trustee, pursuant
to the terms of its engagement therefor. The Escrow Agent, shall, however, be
entitled to reimbursement from the Company for all reasonable expenses,
disbursements, advances and liabilities incurred or made by the Escrow Agent
hereunder (including the reasonable compensation, ex penses and disbursements of
the Escrow Agent's agents and counsel).
9. TERMINATION. This Escrow Agreement shall terminate on the earlier of (a)
the distribution of all Escrow Securities to the holders of the Notes as
provided for herein and (b) the date the Escrow Agent shall have received a
Termination Certificate from the Company to such effect.
10. 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 telecopier (with a copy sent by first class mail promptly thereafter),
addressed as follows:
if to the Escrow Agent:
U.S. Bank Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
if to the Company:
Eagle Food Centers, Inc.
X.X. Xxx 0000
Xxxx Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
with a copy to:
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Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Any party may change its address by specifying in writing a new address for
such notices to each of the other parties hereto.
11. SUCCESSORS AND ASSIGNS; AMENDMENTS AND MODIFICA TIONS. 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 holders of the Note. 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 Trustee.
12. SEVERABILITY. In case any one or more provisions contained in this
Escrow Agreement shall be invalid, illegal or unenforce able in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be in any way affected or impaired thereby.
13. 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 PUR POSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELAT ING TO THIS ESCROW AGREEMENT OR
THE TRANSACTIONS CON TEMPLATED 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
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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.
14. COUNTERPARTS. This Escrow Agreement may be exe cuted in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instru ment.
15. 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.
16. 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.
[Signature Page Follows]
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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.
EAGLE FOOD CENTERS, INC.
By:
---------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee under the Indenture
By:
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Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Escrow Agent
By:
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Name:
Title:
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