EXHIBIT 10.40
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Agreement") is made and entered into as of
August 8, 2003, by and between ACC Escrow Corp., a Delaware corporation ("Escrow
Corp."), Bank of Oklahoma, National Association, as trustee (the "Trustee")
under the Indenture (as hereinafter defined), and Bank of Oklahoma, National
Association, as escrow agent (the "Escrow Agent").
WHEREAS, this Agreement is being entered into in connection with the
Purchase Agreement, dated July 25, 2003 (the "Purchase Agreement"), by and among
Escrow Corp., American Cellular Corporation ("ACC") and the Guarantors named
therein and Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated (each
an "Initial Purchaser" and, collectively, the "Initial Purchasers") and the
Indenture, dated as of August 8, 2003 (the "Indenture"), by and between Escrow
Corp. and the Trustee;
WHEREAS, pursuant to the Purchase Agreement, Escrow Corp. and ACC have
agreed to issue and sell (the "Offering") to the Initial Purchasers for resale
by the Initial Purchasers under Rule 144A and Regulation S of the Securities Act
of 1933, as amended (the "Securities Act"), $900,000,000 in aggregate principal
amount of Escrow Corp.'s 10% Senior Notes due 2011 (the "Notes") as contemplated
by that certain offering memorandum, dated July 25, 2003 (the "Offering
Memorandum");
WHEREAS, Escrow Corp. is expected to merge with and into ACC with ACC
as the surviving entity (the "Escrow Corp. Merger") pursuant to the Agreement
and Plan of Merger, dated as of August 8, 2003 by and between Escrow Corp. and
ACC (the "Merger Agreement");
WHEREAS, upon consummation of the Escrow Corp. Merger, ACC will succeed
to the obligations of Escrow Corp. under the Purchase Agreement and under the
Indenture and the Notes, will execute a supplemental indenture to the Indenture
in connection therewith, and ACC's obligations under the Registration Rights
Agreement will become operative;
WHEREAS, upon consummation of the Escrow Corp. Merger, the Notes will
become fully and unconditionally guaranteed as to payment of principal,
interest, premium and liquidated damages, if any, on an unsecured senior basis,
jointly and severally by all of the Subsidiaries of ACC so designated in the
Purchase Agreement upon consummation of the Escrow Corp. Merger;
WHEREAS, concurrently with the closing of the Offering, Escrow Corp.
will deposit, or cause to be deposited, the Initial Deposit (as hereinafter
defined) with the Escrow Agent; and
WHEREAS, Escrow Corp. and the Trustee, on behalf of the holders of the
Notes, wish to engage the Escrow Agent to act, and the Escrow Agent is willing
to act, as Escrow Corp.'s and the Trustee's escrow agent hereunder and, in that
capacity, to hold, administer and distribute the amounts deposited in escrow
hereunder in accordance with, and subject to, the terms of this Agreement.
NOW THEREFORE, for value consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
"Business Day" means a day other than a Saturday, Sunday or other day
on which banking institutions in the State of New York are authorized or
required by law to close.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality of the United
States government (provided that the full faith and credit of the
United States is pledged in support of those securities) having
maturities of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities of
six months or less from the date of acquisition, bankers' acceptances
with maturities not exceeding six months and overnight bank deposits,
in each case, with any domestic commercial bank having capital and
surplus in excess of $500.0 million and a Thomson Bank Watch Rating of
"B" or better;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings obtainable from
Xxxxx'x Investors Service, Inc. or S&P and in each case maturing within
six months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (5) of this
definition.
"Xxxxxx" means Xxxxxx Communications Corporation, an Oklahoma
corporation. Escrow Corp. is an indirect, wholly-owned subsidiary of Xxxxxx.
"Xxxxxx XX" means Xxxxxx XX Company, an Oklahoma corporation and a
direct, wholly-owned subsidiary of Xxxxxx. Escrow Corp. is a direct,
wholly-owned subsidiary of Xxxxxx XX.
"Escrow Account" has the meaning set forth in Section 2(a) hereof.
"Escrow Property" means (i) the Initial Deposit and the proceeds
therefrom, including without limitation, any income, earnings or proceeds
received by the Escrow Agent from the investment thereof from time to time
pursuant to Section 2 hereof, (ii) the Escrow Account and all property now or
hereafter credited thereto including, without limitation, all Cash Equivalents
and earnings thereon and (iii) all rights of Escrow Corp. under this Agreement.
"Escrow Security Interest" has the meaning set forth in Section 2(b)
hereof.
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"Initial Deposit" means cash in an aggregate amount equal to
$922,500,000.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to the
rating agency business thereof.
"Reorganization" means the series of transactions to restructure the
outstanding indebtedness and capital structure of ACC, including, but not
limited to the Offering, the Escrow Corp. Merger, the cancellation of
indebtedness represented by ACC's outstanding 9 1/2 Senior Subordinated Notes
due 2009 and the cancellation of indebtedness under ACC's existing credit
facility.
"S&P" means Standard & Poor's Ratings Service or any successor to the
rating agency business thereof.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
Other capitalized terms used but not defined herein have the meanings
given to such terms in the Indenture.
SECTION 2. DEPOSIT OF ESCROW FUNDS OR PROPERTY
(a) Concurrently with the execution and delivery hereof or promptly
thereafter, Escrow Corp. shall deposit or cause to be deposited the Initial
Deposit with the Escrow Agent. The Escrow Agent agrees to hold the Escrow
Property in a segregated trust account established with the Escrow Agent, which
shall at all times be under the sole dominion and control, and the "control"
within the meaning of Sections 8-106 and 9-104 of the UCC, of the Trustee (the
"Escrow Account"). The Escrow Agent agrees to administer the Escrow Property in
accordance with the terms of this Agreement. Upon receipt of the Initial
Deposit, the Escrow Agent shall, upon the written request of Escrow Corp.,
invest all or a portion of the Escrow Property in specific Cash Equivalents, as
specifically directed in writing by Escrow Corp. and the Escrow Agent agrees to
credit all Cash Equivalents to the Escrow Account and agrees to treat all Cash
Equivalents and other assets now or hereafter credited to the Escrow Account as
"financial assets" within the meaning of Section 8-102(a)(9) of the UCC. It is
understood and agreed that the Escrow Account shall be maintained in the name
"Bank of Oklahoma, National Association, as trustee" and the Escrow Agent shall
treat the Trustee as its customer and entitlement holder of the Escrow Account.
Escrow Agent agrees to comply with all entitlement orders and instructions
issued by the Trustee with respect to the Escrow Account and the funds,
financial assets and other property now or hereafter credited thereto without
further consent of Escrow Corp. or any other person.
(b) The Trustee, for the ratable benefit of the holders of the Notes,
is hereby granted a first priority security interest in the Escrow Property (the
"Escrow Security Interest"), and Escrow Corp. shall at its expense prepare,
execute and file all financing statements and take all other steps necessary or
as may be reasonably requested by the Trustee or Initial Purchasers in
connection with the perfection, preservation and protection of the Escrow
Security Interest and to enable the Trustee to exercise and enforce its rights
and remedies hereunder. The Escrow Agent acknowledges that it will hold the
Escrow Property for the benefit of the Trustee, and Escrow
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Corp. shall have no right to remove or withdraw any Escrow Property from the
Escrow Account without the prior written consent of the Trustee. For so long as
the Escrow Security Interest remains in effect, the Escrow Agent hereby waives
any right of setoff or banker's lien that it, in its individual capacity or in
its capacity as an agent for Persons other than the Trustee and the holders of
the Notes, may have with respect to any or all of the Escrow Property. The
Escrow Security Interest of the Trustee will terminate upon the termination of
this Agreement pursuant to Section 10 hereof.
(c) So long as this Agreement is in full force and effect:
(i) Escrow Corp. shall establish and maintain the Escrow
Account with the Escrow Agent in accordance with the terms of this
Agreement, and the Escrow Account shall at all times remain under the
exclusive dominion and control, and the "control" within the meaning of
Sections 8-106 and 9-104 of the UCC, of the Trustee;
(ii) notwithstanding any term or condition to the contrary in
any other agreement relating to the Escrow Account, except as otherwise
provided by this Agreement, no amount shall be paid or released to or
for the account of, or withdrawn by or for the account of, Escrow Corp.
or any other Person other than the Trustee or its designee from the
Escrow Account; and
(iii) Escrow Corp. agrees that it will not (i) sell, assign
(by operation of law or otherwise) or otherwise dispose of, or grant
any option with respect to, any of the Escrow Property or (ii) create
or permit to exist any Lien upon or with respect to any of the Escrow
Property, except for the security interest under this Agreement.
SECTION 3. INVESTMENT OF FUNDS.
(a) Absent its timely receipt of specific written investment
instructions from Escrow Corp., the Escrow Agent shall have no obligation or
duty to invest (or otherwise pay interest on) the Escrow Property; provided,
however, that in the event the Escrow Agent shall not have received such written
investment instructions, the Escrow Agent shall be authorized to invest all of
the Escrow Property in Cash Equivalents until such written investment
instructions, as set forth and described in Section 2, is received. All earnings
received from the investment of the Escrow Property shall be credited to, and
shall become a part of, the Escrow Property and any losses on such investments
shall be debited to the Escrow Property. The Escrow Agent shall have no
liability for any investment losses, including without limitation any market
loss on any investment liquidated prior to maturity in order to make a payment
required hereunder.
(b) Escrow Corp. agrees that, for tax reporting purposes, all interest
or other income earned from the investment of the Escrow Property in any tax
year shall to the extent such interest or other income is distributed by the
Escrow Agent to Escrow Corp. or any other Person or entity pursuant to the terms
of this Agreement during such tax year, be reported as allocated to Escrow Corp.
or such Person.
(c) Escrow Corp. agrees to provide the Escrow Agent with a certified
tax identification number by signing and returning a Form W-9 to the Escrow
Agent as soon as possible following the execution and delivery of this
Agreement. Escrow Corp. understands that,
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in the event its tax identification number is not certified to the Escrow Agent,
the Internal Revenue Code, as amended from time to time, may require withholding
of a portion of any interest or other income earned on the investment of the
Escrow Property.
SECTION 4. RELEASE FROM ESCROW.
(a) The Escrow Agent shall only release the Escrow Property from the
Escrow Account created hereby to a person other than the Trustee or its designee
in accordance with this Section 4 and upon termination of this Agreement in
accordance with Section 10.
(b) Upon the earlier to occur of (i) the date on which the Merger
Agreement is terminated or (ii) the date on which Xxxxxx determines that the
Escrow Corp. Merger will not be consummated within 90 days of the date of this
Agreement, Escrow Corp. shall deliver an Officer's Certificate to the Escrow
Agent in the form of Exhibit B attached hereto. If the Escrow Agent receives an
Officers' Certificate from Escrow Corp. in the form of Exhibit B attached
hereto, then the Escrow Agent shall, on the Special Mandatory Redemption Date
specified therein, (i) release to the Paying Agent for payment to the Holders of
the Notes, the amount of Escrow Property equal to the redemption price payable
under the Indenture sufficient to redeem all of the Notes outstanding on such
Special Mandatory Redemption Date and (ii) release the balance, if any, of the
Escrow Property to Xxxxxx XX. The Special Mandatory Redemption Date shall be no
later than two Business Days after the date of such Officer's Certificate (in
the form of Exhibit B). Receipt of such Officers' Certificate specified in this
paragraph (b) shall be a condition to release of the Escrow Property pursuant to
this paragraph (b) of Section 4.
(c) In the event that the Escrow Corp. Merger is consummated, Escrow
Corp. shall deliver to the Escrow Agent an Officer's Certificate in the form of
Exhibit C attached hereto no later than (i) one Business Day prior to the
closing date of the Escrow Corp. Merger (such closing date referred to herein as
the "Merger Closing Date") or (ii) such later time as Escrow Corp. and the
Escrow Agent mutually agree. If the Escrow Agent receives an Officers'
Certificate from Escrow Corp. in the form of Exhibit C attached hereto, then the
Escrow Agent shall, on the Merger Closing Date, (i) release the Initial Deposit
to Escrow Corp. or as Escrow Corp. may have previously directed in writing and
(ii) release the balance, if any, of the Escrow Property to Xxxxxx XX. Receipt
of such Officers' Certificate specified in this paragraph (c) shall be a
condition to release of the Escrow Property pursuant to this paragraph (c) of
Section 4.
(d) If the Escrow Agent does not receive an Officers' Certificate
pursuant to paragraph (b) or (c) of this Section 4 on or prior to November 6,
2003, then the Escrow Agent shall, no later than 9:00 a.m. eastern time on
November 8, 2003, (i) release to the Paying Agent for payment to the Holders of
the Notes, the amount of Escrow Property equal to the redemption price payable
under the Indenture sufficient to redeem all of the Notes outstanding as of a
November 6, 2003 Special Mandatory Redemption Date and (ii) release the balance,
if any, of the Escrow Property to Xxxxxx XX.
(e) The Escrow Agent shall be authorized to take any and all action to
convert the non-cash portion of the Escrow Property into cash on or prior to
9:00 a.m. eastern time on:
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(i) November 8, 2003, in the case of a release of the Escrow Property
pursuant to paragraph 4(d);
(ii) the Special Mandatory Redemption Date, in the case of a release of
the Escrow Property pursuant to paragraph 4(b), provided that the
Escrow Agent shall be authorized to commence such actions upon receipt
of an Officers' Certificate under paragraph 4(b); and
(iii) the Merger Closing Date, in the case of a release of the Escrow
Property pursuant to paragraph 4(c), provided that Escrow Agent shall
be authorized to commence such actions upon receipt of an Officers'
Certificate under paragraph 4(c).
SECTION 5. ESCROW AGENT.
(a) Escrow Corp. acknowledges and agrees that the Escrow Agent (i)
shall not be responsible for any of the agreements referred to or described
herein (including without limitation the Purchase Agreement, the Indenture or
the Merger Agreement) or for determining or compelling compliance therewith, and
shall not otherwise be bound thereby, (ii) shall be obligated only for the
performance of such duties as are expressly and specifically set forth in this
Agreement on its part to be performed, and no implied duties or obligations of
any kind shall be read into this Agreement against or on the part of the Escrow
Agent, (iii) may rely on and shall be protected in acting or refraining from
acting upon any written notice, instruction (including, without limitation, wire
transfer instructions, whether incorporated herein or provided in a separate
written instruction), instrument, statement, certificate, request or other
document (whether in original or facsimile form) furnished to it hereunder and
believed by it in good faith to be genuine and to have been signed or presented
by the proper person, and shall have no responsibility or duty to conclusively
make inquiry as to or to determine the genuineness, accuracy or validity thereof
(or any signature appearing thereon), or of the authority of the person signing
or presenting the same, and (iv) may consult counsel satisfactory to it,
including, but not limited to, in-house counsel, and the opinion or advice of
such counsel in any instance shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or advice of such counsel.
(b) The Escrow Agent shall not be liable to anyone for any action taken
or omitted to be taken by it hereunder except in the case of the Escrow Agent's
gross negligence or willful misconduct. The Escrow Agent in no event shall be
liable for punitive, consequential or special damages.
(c) The Escrow Agent shall have no more or less responsibility or
liability on account of any action or omission of any book-entry depository,
securities intermediary or other subescrow agent employed by the Escrow Agent
than any such book-entry depository, securities intermediary or other subescrow
agent has to the Escrow Agent, except to the extent that such action or omission
of any book-entry depository, securities intermediary or other subescrow agent
was caused by the Escrow Agent's own gross negligence or willful misconduct in
breach of this Agreement.
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(d) The Escrow Agent is hereby authorized, in making or disposing of
any investment permitted by this Agreement, to deal with itself (in its
individual capacity) or with any one or more of its affiliates, whether it or
such affiliate is acting as a subagent of the Escrow Agent or for any third
person or dealing as principal for its own account.
(e) 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 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 8 hereof.
SECTION 6. COMPENSATION, EXPENSE REIMBURSEMENT AND INDEMNIFICATION.
(a) Escrow Corp. agrees (i) to pay or reimburse the Escrow Agent for
its reasonable attorney's fees and expenses incurred in connection with the
preparation of this Agreement and (ii) to pay the Escrow Agent's compensation
for its normal services hereunder in accordance with the fee schedule attached
hereto as Exhibit A and made a part hereof which may be subject to change
hereafter by the Escrow Agent on an annual basis and which change must be
acceptable to Escrow Corp.
(b) Escrow Corp. agrees to reimburse the Escrow Agent for all
reasonable costs and expenses incurred in connection with the administration of
this Agreement or the escrow created hereby or the performance or observance of
its duties hereunder which are in excess of its compensation for normal services
hereunder, including without limitation, payment of any reasonable legal fees
and expenses incurred by the Escrow Agent, except to the extent the Escrow Agent
shall have been found to have been grossly negligent, or engaged in willful
misconduct.
(c) Escrow Corp. covenants and agrees to indemnify the Escrow Agent
(and its directors, officers and employees) and hold it (and such directors,
officers and employees) harmless from and against any loss, liability, claim,
damage, reasonable cost and expense of any nature incurred by the Escrow Agent
arising out of or in connection with this Agreement or with the administration
of its duties hereunder, including but not limited to reasonable attorney's fees
and other costs and expenses of defending or preparing to defend against any
claim of liability unless and except to the extent such loss, liability, damage,
cost and expense shall be caused by the Escrow Agent's gross negligence or
willful misconduct of the terms of this Agreement. The foregoing indemnification
and agreement to hold harmless shall survive the termination of this Agreement
or substitution of the Escrow Agent.
(d) Notwithstanding anything herein to the contrary, the Escrow Agent
shall have and is hereby granted a possessory lien on and security interest in
the Escrow Property, and all proceeds thereof, to secure payment of all amounts
owing to it from time to time hereunder, whether now existing or hereafter
arising. The Escrow Agent shall have the right to deduct from the Escrow
Property, and proceeds thereof, any such sums, upon five Business Day's notice
to Escrow Corp. of its intent to do so.
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(e) Unless and except to the extent otherwise expressly set forth
herein, all deposits and payments hereunder, or pursuant to the terms hereof
shall be in U.S. dollars.
SECTION 7. TAX INDEMNIFICATION.
Escrow Corp. agrees (i) to assume any and all obligations imposed now
or hereafter by any applicable tax law with respect to any payment or
distribution of the Escrow Property or performance of other activities under
this Agreement (other than income or revenue of the Escrow Agent), (ii) to
instruct the Escrow Agent in writing with respect to the Escrow Agent's
responsibility for withholding and other taxes, assessments or other
governmental charges, and to instruct the Escrow Agent with respect to any
certifications and governmental reporting that may be required by it under any
laws or regulations that may be applicable in connection with its acting as
Escrow Agent under this Agreement, and (iii) to indemnify and hold the Escrow
Agent harmless from any liability or obligation on account of taxes,
assessments, additions for late payment, interest, penalties, expenses and other
governmental charges that may be assessed or asserted against the Escrow Agent
in connection with, on account of or relating to the Escrow Property, the
management established hereby, any payment or distribution of or from the Escrow
Property pursuant to the terms hereof or other activities performed under the
terms of this Agreement, including without limitation any liability for the
withholding or deduction of (or the failure to withhold or deduct) the same, and
any liability for failure to obtain proper certifications or to report properly
to governmental authorities in connection with this Agreement, including
reasonable costs and expenses (including reasonable legal fees and expenses),
interest and penalties. The foregoing indemnification and agreement to hold
harmless shall survive the termination of this Agreement.
SECTION 8. SUBSTITUTION OF THE ESCROW AGENT.
The Escrow Agent may resign by giving no less than 20 Business Days
prior written notice to Escrow Corp. and the Trustee. Such resignation shall
take effect upon the later to occur of (i) delivery of the Escrow Property
maintained by the Escrow Agent hereunder and copies of all books, records, plans
and other documents in the Escrow Agent's possession relating to such Escrow
Property to a successor escrow agent mutually approved by Escrow Corp. and the
Trustee (which approvals shall not be unreasonably withheld or delayed) and (ii)
Escrow Corp., the Trustee and such successor escrow agent entering into this
Agreement or any written successor agreement no less favorable to the interests
of the holders of the Notes and the Trustee than this Agreement and the taking
of such other steps as may be necessary to give the successor escrow agent a
first priority security interest in the Escrow Account, and the Escrow Agent
shall thereupon be discharged of all obligations under this Agreement and shall
have no further duties, obligations or responsibilities in connection herewith.
If a successor escrow agent has not been appointed or has not accepted such
appointment within 30 Business Days after notice of resignation is given to
Escrow Corp., the Escrow Agent may petition at the expense of Escrow Corp. a
court of competent jurisdiction for the appointment of a successor escrow agent.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Escrow Corp. represents, warrants and agrees that:
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(a) The execution, delivery and performance by Escrow Corp. of this
Agreement is within its corporate power, has been duly authorized by all
necessary corporate action, and does not contravene, or constitute a default
under, any provision of applicable law or regulation or of any agreement,
judgment, injunction, order, decree or other instrument binding upon Escrow
Corp. or of the certificate of incorporation or bylaws of Escrow Corp. or result
in the creation or imposition of any Lien on any assets of Escrow Corp. other
than the Lien contemplated hereby.
(b) Escrow Corp. has full power and authority to enter into this
Agreement and has the right to vote, pledge and grant a security interest in the
Escrow Property as provided by this Agreement.
(c) This Agreement has been duly executed and delivered by Escrow Corp.
and constitutes a legal, valid and binding obligation of Escrow Corp.,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(d) No consent of any other Person and no consent, authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the pledge by Escrow Corp. pursuant
to this Agreement or for the execution, delivery or performance of this
Agreement by Escrow Corp.
(e) It is duly organized as a corporation under the laws of the State
of Delaware, is not organized under the law of any other jurisdiction, and will
not change its jurisdiction of organization without giving the Trustee 30 day's
prior written notice thereof.
SECTION 10. TERMINATION.
This Agreement shall terminate upon the distribution of the Escrow
Property pursuant paragraphs (b), (c) or (d), as applicable, of Section 4
hereof, provided that the provisions of Sections 6 and 7 shall survive the
termination of this Agreement. Following such termination, the Trustee shall
execute and deliver to Escrow Corp. and the Escrow Agent a termination of the
Escrow Security Interest effective at the time of the termination of this
Agreement.
SECTION 11. DISPUTE RESOLUTION.
It is understood and agreed that, should any dispute arise with respect
to the delivery, ownership, right of possession, and/or disposition of the
Escrow Property, or should any claim be made upon the Escrow Agent or the Escrow
Property by a third party, the Escrow Agent upon receipt of notice of such
dispute or claim is authorized and shall be entitled (at its sole option and
election) to retain in its possession without liability to anyone, all or any of
said Escrow Property until such dispute shall have been settled either by the
mutual written agreement of the parties involved or by a final non-appealable
order, decree or judgment of a court in the United States of America, the time
for perfection of an appeal of such order, decree or judgment having expired.
The Escrow Agent may, but shall be under no duty whatsoever to, institute or
defend any legal proceedings which relate to the Escrow Property.
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SECTION 12. CONSENT TO JURISDICTION AND SERVICE.
Escrow Corp. hereby absolutely and irrevocably consents and submits to
the jurisdiction of the courts in the State of New York and of any Federal court
located in said State in connection with any actions or proceedings brought
against Escrow Corp. by the Escrow Agent arising out of or relating to this
Escrow Agreement. In any such action or proceeding, Escrow Corp. hereby
absolutely and irrevocably (i) waives any objection to jurisdiction or venue,
(ii) waives personal service of any summons, complaint, declaration or other
process, and (iii) agrees that the service thereof may be made by certified or
registered first-class mail at its address in accordance with Section 15 hereof.
SECTION 13. WAIVER OF JURY TRIAL.
THE ESCROW AGENT, TRUSTEE AND ESCROW CORP. HEREBY WAIVE A TRIAL BY JURY
OF ANY AND ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING BETWEEN THEM OR THEIR
SUCCESSORS OR ASSIGNS, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF ITS
PROVISIONS OR ANY NEGOTIATIONS IN CONNECTION HEREWITH.
SECTION 14. FORCE MAJEURE.
The Escrow Agent shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include but
not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, communication line
failures, computer viruses, power failures, earthquakes or other disasters.
SECTION 15. NOTICES; WIRING INSTRUCTIONS.
(a) Notice Addresses. Any notice permitted or required hereunder shall
be in writing, and shall be sent (i) by personal delivery, overnight delivery by
a nationally recognized courier or delivery service, or (ii) mailed by
registered or certified mail, return receipt requested, postage prepaid, or
(iii) by confirmed facsimile accompanied by mailing of the original on the same
day by first class mail, postage prepaid, in each case the parties at their
address set forth below (or to such other address as any such party may
hereafter designate by written notice to the other parties).
If to Escrow Corp.:
c/o Dobson Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Senior Corporate Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Escrow Agent:
By first class mail, to:
Bank of Oklahoma, National Association
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Group
If to Trustee:
By first class mail, to:
Bank of Oklahoma, National Association
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Group
(b) Wiring Instructions. Any funds to be paid to the Escrow Agent
hereunder shall be sent by wire transfer pursuant to the following instructions
(or by such method of payment and pursuant to such instruction as may have been
given in advance and in writing to or by the Escrow Agent, as the case may be,
in accordance with Section 15(a) above):
Bank of Oklahoma, N.A.
ABA # 000000000
Credit Account # 600024642
Trust Funds
Re: ACC Escrow Corp.
Attn: Xxxxxx Xxxxxxxxx
SECTION 16. MISCELLANEOUS.
(a) Third Party Beneficiary. Nothing in this Agreement, express or
implied, is intended to confer any rights or remedies of any nature whatsoever
to any third party.
(b) Binding Effect; Successors. This Agreement shall be binding upon
the respective parties hereto and their heirs, executors, successors and
assigns. If the Escrow Agent consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Escrow Agent. If the Escrow Corp. Merger is consummated, Escrow Corp.
shall assign its rights and obligations hereunder to the surviving corporation
in such merger, and shall promptly notify the Escrow Agent in writing of such
assignment.
(c) Modifications. This Agreement may not be altered or modified
without the express written consent of the parties hereto. No course of conduct
shall constitute a waiver of
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any of the terms and conditions of this Escrow Agreement, unless such waiver is
specified in writing, and then only to the extent so specified. A waiver of any
of the terms and conditions of this Escrow Agreement on one occasion shall not
constitute a waiver of the other terms of this Escrow Agreement, or of such
terms and conditions on any other occasion. Notwithstanding any other provision
hereof, consent to an alteration or modification of this Agreement may not be
signed by means of an e-mail address.
(d) Governing Law. THIS ESCROW AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF WHICH MIGHT INDICATE THE
APPLICABILITY OF THE LAWS OF ANOTHER JURISDICTION. REGARDLESS OF ANY PROVISION
IN ANY OTHER AGREEMENT, WITH RESPECT TO THE ESCROW ACCOUNT, NEW YORK SHALL BE
DEEMED TO BE THE ESCROW AGENT'S JURISDICTION WITHIN THE MEANING OF SECTION 9-304
AND 8-110 OF THE UCC.
(e) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, and (b) certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(f) Counterparts. This Escrow Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Trustee. The Trustee in entering into this agreement shall have the
benefit of the protective provisions set forth in Article 7 of the Indenture to
the same effect as if set forth herein.
12
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered in its name and on its behalf as of the 8th day of
August, 2003.
ACC ESCROW CORP.
By: /s/ XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
13
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION,
as Escrow Agent
By: /s/ XXX XXXX
Title:
Name: Xxx Xxxx
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION,
as Trustee
By: /s/ XXX XXXX
Title:
Name: Xxx Xxxx
EXHIBIT A
Fee Schedule
Escrow Agent Fee: $2,000.00
EXHIBIT B
FORM OF OFFICERS' CERTIFICATE
OF
ACC ESCROW CORP.
This Officers' Certificate is being delivered pursuant to
Section 4(b) of the Escrow Agreement (the "Escrow Agreement"), dated as of
August 8, 2003, among ACC Escrow Corp. (the "Escrow Corp."), Bank of Oklahoma,
National Association, as trustee, and Bank of Oklahoma, National Association, as
escrow agent (the "Escrow Agent"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Escrow Agreement.
Escrow Corp. hereby certifies through its undersigned officers
that:
1. A Special Mandatory Redemption shall be effected pursuant
to paragraph 6 of the Notes and Section 3.08 of the Indenture on __________ __,
2003 (the "Special Mandatory Redemption Date").
2. Escrow Corp. hereby instructs the Escrow Agent to remit to
the Paying Agent under the Indenture, for payment to the Holders of the Notes on
the Special Mandatory Redemption Date, US$ __________ of Escrow Property, which
amount of Escrow Property equals the full redemption price, including accrued
interest, payable to the Holders of the Notes in accordance with paragraph 6 of
the Notes and Section 3.08 of the Indenture, and is sufficient to redeem all of
the Notes outstanding on such Special Mandatory Redemption Date in accordance
with the terms of the Indenture and the Notes. Such amount of Escrow Property
specified above shall be remitted to the Paying Agent no later than 9:00 a.m.
eastern time on the Special Mandatory Redemption Date [if the Escrow Agent is
not the Paying Agent, insert: by wire transfer of immediately available funds in
accordance with the following wire transfer instructions]:
[insert wire transfer instructions]
3. The balance of Escrow Property, if any, remaining in the
Escrow Account after remitting the amount of Escrow Property to the Paying Agent
specified in paragraph 2 above, is to be remitted to Xxxxxx XX on the Special
Mandatory Redemption Date by wire transfer of immediately available funds in
accordance with the following wire transfer instructions:
[insert wire transfer instructions]
4. All conditions precedent (other than payment) to the
Special Mandatory Redemption contained in Section 3.08 of the Indenture have
been satisfied or waived.
IN WITNESS WHEREOF, Escrow Corp., through its undersigned
officers, has signed this Officers' Certificate this ___ day of _____________
2003.
ACC ESCROW CORP.
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
EXHIBIT C
FORM OF OFFICERS' CERTIFICATE
OF
ACC ESCROW CORP.
_________ __, 2003
This Officers' Certificate is being delivered pursuant to
Section 4(c) of the Escrow Agreement (the "Escrow Agreement"), dated as of
August 8, 2003, among ACC Escrow Corp. (the "Escrow Corp."), Bank of Oklahoma,
National Association, as trustee, under the Indenture and Bank of Oklahoma,
National Association, as escrow agent (the "Escrow Agent"). Capitalized terms
used but not defined herein shall have the meanings given to them in the Escrow
Agreement.
Escrow Corp. hereby certifies through its undersigned officers
that the Escrow Corp. Merger shall close on _________ __, 2003 (the "Merger
Closing Date").
1. Escrow Corp. hereby instructs the Escrow Agent to remit, as
specified below, 100% of the Escrow Property by wire transfer of immediately
available funds in accordance with the following wire transfer instructions:
[insert wire transfer instructions]
2. The Escrow Property being released as specified in
paragraph 1 above is being used for the purpose of funding a portion of the
Reorganization.
3. The balance of Escrow Property, if any, remaining in the
Escrow Account after remitting the amount of Escrow Property specified in
paragraph 1 above as payment for a portion of the Reorganization and for certain
other purposes, is to be remitted to Xxxxxx XX as specified below on the date
hereof by wire transfer of immediately available funds in accordance with the
following wire transfer instructions:
[insert wire transfer instructions, if any]
IN WITNESS WHEREOF, Escrow Corp., through its undersigned
officers, has signed this Officers' Certificate this ___ day of __________ 2003.
ACC ESCROW CORP.
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
