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EXHIBIT 4.13
LEASING COMPANY ESCROW ACCOUNT AGREEMENT
[PLD ASSET LEASING LIMITED]
This LEASING COMPANY ESCROW ACCOUNT AGREEMENT (the
"Agreement"), dated as of May 31, 1996, among The Bank of New York, a New York
banking corporation, as escrow agent (in such capacity, the "Escrow Agent"), The
Bank of New York, a New York banking corporation, as trustee (in such capacity,
the "Senior Note Trustee") under the Senior Note Indenture (as defined herein),
The Bank of New York, a New York banking corporation, as trustee (in such
capacity, the "Convertible Note Trustee") under the Convertible Note Indenture
(as defined herein), and PLD Asset Leasing Limited, a Cypriot corporation (the
"Leasing Company").
RECITALS
A. Pursuant to the Indenture, dated as of May 31, 1996 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Senior Note Indenture"), among Petersburg Long Distance Inc., an
Ontario corporation (the "Company"), the corporations acting as guarantors and
named therein (the "Senior Note Guarantors" and each, a "Senior Note Guarantor")
and the Trustee, the Company is issuing $123,000,000 aggregate principal amount
at stated maturity of its 14% Senior Discount Notes due June 1, 2004 (the
"Senior Notes").
B. Pursuant to the Indenture, dated as of May 31, 1996 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Convertible Note Indenture"), among the Company, the corporations
acting as guarantors and named therein (the "Convertible Note Guarantors") and
the Convertible Note Trustee, the Company is issuing $26,500,000 aggregate
principal amount of its 9% Convertible Subordinated Notes due 2006 (the
"Convertible Notes").
C. Pursuant to the Senior Note Indenture and the Convertible
Note Indenture, the Leasing Company has jointly and severally, irrevocably and
unconditionally guaranteed all of the obligations of the Company under the
Senior Notes, the Senior Note Indenture and the Senior Note Collateral Documents
and under the Convertible Notes, the Convertible Note Indenture and the
Convertible Note Collateral Documents and all of the obligations of the Senior
Note Guarantors under the Senior Note Indenture, Senior Note Guarantees and the
other Senior Note Collateral Documents.
D. As security for its obligations, among other things, under
the Senior Notes and the Senior Note Indenture and as security for its
obligations, among other things, under the Convertible Notes and the Convertible
Note Indenture, the Leasing Company is required to enter into a Leasing Company
Security and Pledge Agreement of even date herewith (the "Leasing Company
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Security Agreement") with the Senior Note Trustee, the collateral agent named
therein (the "Senior Note Escrow Agent") and the Convertible Note Trustee, in
which the Company is granting Liens on and a security interest in certain
collateral described therein (the "Senior Note Collateral").
E. Under the terms of the Senior Note Indenture and the
Leasing Company Pledge and Security Agreement, the Leasing Company is required
to deposit (i) all funds which it receives from the Company, whether
representing the proceeds of the Senior Notes or otherwise, (ii) all payments
which it receives from Restricted Subsidiaries or Qualified Joint Ventures
allocable or related to or in connection with Telecommunications Asset Leases,
Investments constituting lease or rental payments or other payments, or from
Persons in which Qualified Investments are made, whether constituting interest
and principal payments, dividends or distributions or other payments and (iii)
all funds which it receives from other Leasing Companies in a special,
segregated and irrevocable account in the name of and beneficially owned by the
Leasing Company which is pledged to, and to be under the sole dominion and
control of, the Senior Note Trustee, acting for its benefit and the equal and
ratable benefit of the Holders of the Senior Notes, and the Convertible Note
Trustee, acting for its benefit and the equal and ratable benefit of the Holders
of the Convertible Notes (the "Leasing Company Escrow Account") pending the
reinvestment of such amounts in accordance with the Senior Note Indenture.
F. The parties have entered into this Agreement in order to
set forth the conditions upon which, and the manner in which, funds will be
disbursed from the Leasing Company Escrow Account and released from the security
interest and Liens described above.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. Terms used herein and not defined herein
shall have the meanings as defined in the Senior Note Indenture. In addition to
any other defined terms used herein, the following terms shall constitute
defined terms for purposes of this Agreement and shall have the meanings set
forth below:
"Affiliates" of any specified person means (i) any other
person which, directly or indirectly, is in control of, is controlled by or is
under common control with such specified person or (ii) any other person who is
a director or officer (A) of such specified person, (B) of any subsidiary of
such specified person or (C) of any person described in clause (i) above or
(iii) any person
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in which such person has, directly or indirectly, a 5% or greater voting or
economic interest or the power to control. For purposes of this definition,
control of a person means the power, directly or indirectly, to direct or cause
the direction of the management or policies of such person whether through the
ownership of voting securities or by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applied" means that disbursed funds have been applied
pursuant to Section 3(a) or pursuant to Section 6(b) (iii).
"Available Funds" means (A) the sum of (i) all amounts
deposited in the Leasing Company Escrow Account from time to time and (ii)
interest earned or dividends paid on the funds in the Escrow Accounts (including
holdings of Eligible Cash Equivalents), less (B) the aggregate disbursements
previously made pursuant to this Agreement.
"Collateral" shall have the meaning given in Section 6(a)
hereof.
"Company Senior Note Escrow Account" means the escrow account
established pursuant to Section 2(b) of the Company Senior Note Escrow Account
Agreement.
"Company Senior Note Escrow Account Agreement" means that
certain Company Senior Note Escrow Account Agreement of even date herewith among
the Escrow Agent, the Trustee and the Company.
"Default" means a "Default" as defined in Section 1.1 of the
Senior Note Indenture until the Senior Notes are no longer outstanding and the
Senior Note Indenture has been satisfied and discharged in which case a
"Default" means a "Default" as defined in Section 1.1 of the Convertible Note
Indenture if not then satisfied and discharged.
"Disbursement Request" means a notice sent by the Leasing
Company to the Escrow Agent requesting a disbursement of funds from the Leasing
Company Escrow Account, in substantially the form of Exhibit A hereto. Each
Disbursement Request shall be signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company.
"Eligible Cash Equivalents" means (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof), (ii) time deposits,
certificates of deposit, or Eurodollar deposits of any commercial bank organized
in the United States having capital and surplus in excess of $500,000,000, (iii)
repurchase obligations with a term of not more than seven days for
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underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing, or subject to tender at the option of the holder thereof within ninety
days after the date of acquisition thereof and, at the time of acquisition
having a rating of A or better from Standard & Poor's or A-2 or better from
Moody's, (v) commercial paper issued by the parent corporation of any commercial
bank organized in the United States having capital and surplus in excess of
$500,000,000 and commercial paper issued by non-bank issuers rated A-1 by
Standard & Poor's or P-1 by Moody's and in each case maturing within 270 days
after the date of acquisition, (vi) overnight bank deposits and bankers'
acceptances at any commercial bank organized in the United States having capital
and surplus in excess of $500,000,000, (vii) deposits available for withdrawal
on demand with a commercial bank organized in the United States having capital
and surplus in excess of $500,000,000 and (viii) investments in money market
funds substantially all of whose assets comprise securities of the types
described in clauses (i) through (vi).
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500,000,000 its
equivalent in foreign currency, whose debt is rated "A" (or higher) or the
equivalent rating according to Standard & Poor's or Moody's at the time as of
which any investment or rollover therein is made.
"Escrow Account Statement" shall have the meaning given
in Section 2(g).
"Escrow Agent" shall have the meaning set forth in the
preamble to this Agreement.
"Event of Default" means an "Event of Default" as defined in
Section 6.1 of the Senior Note Indenture until the Senior Notes are no longer
outstanding and the Senior Note Indenture has been satisfied and discharged, in
which case "Event of Default" means an "Event of Default" as defined in Section
1.1 of the Convertible Note Indenture if not then satisfied and discharged.
"Initial Escrow Amount" shall mean $46,000,000 of the net
proceeds received by the Company from the sale of the Senior Notes pursuant to
the Purchase Agreement.
"Interest Payment Date" means June 1 and December 1 of each
year, commencing on December 1, 1996, until the Senior Notes and the Convertible
Notes are paid in full.
"Issue Date" means June 12, 1996.
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"Leasing Company Escrow Account" shall have the meaning given
in Section 2(b).
"Senior Note Discharge Date" shall mean such time as the
Senior Notes are no longer outstanding and the Senior Note Indenture and the
Senior Note Collateral Documents have been satisfied and discharged.
"Trustees" means, collectively, the Convertible Note
Trustee and the Senior Note Trustee.
2. Leasing Company Escrow Account; Escrow Agent.
(a) Appointment of Escrow Agent. The Leasing Company and the
Trustees hereby appoint the Escrow Agent, and the Escrow Agent hereby accepts
appointment, as escrow agent, under the terms and conditions of this Agreement.
(b) Establishment of Leasing Company Escrow Account.
Concurrent with the execution and delivery hereof, the Escrow Agent shall
establish and maintain in the name of the Leasing Company at The Bank of New
York, a special, segregated and irrevocable escrow account designated "Leasing
Company Escrow Account pledged by PLD Asset Leasing Limited to The Bank of New
York, as Trustee" (the "Leasing Company Escrow Account"). All funds accepted by
the Escrow Agent pursuant to this Agreement shall be deposited in the name of
and beneficially owned by the Leasing Company and pledged to, and under the sole
dominion and control of, the Senior Note Trustee, acting for its benefit and the
equal and ratable benefit of the Holders of the Senior Notes, and the
Convertible Note Trustee, acting for its benefit and the equal and ratable
benefit of the Holders of the Convertible Notes. All such funds shall be held in
the Leasing Company Escrow Account until disbursed in accordance with the terms
hereof. The Leasing Company Escrow Account, the funds held therein and any
Eligible Cash Equivalents held by the Escrow Agent in which such funds are
invested shall be beneficially owned by the Leasing Company and pledged to and
under the sole dominion and control of the Senior Note Trustee, acting for its
benefit and the equal and ratable benefit of the Holders of the Senior Notes,
and the Convertible Note Trustee, acting for its benefit and the equal and
ratable benefit of the Holders of the Convertible Notes.
(c) The Company shall provide notice to the Collateral Agent
and the Trustee of the source of any money deposited to the Leasing Company
Escrow Account by reference to the applicable provisions of the Senior Note
Indenture, and shall keep an ongoing record of the amounts so deposited and
disbursed in accordance with this Escrow Agreement. It shall be the Company's
responsibility to satisfy the Collateral Agent as to the accounting for the
Escrow Account with a view to ensuring that the amounts required to be
calculated for any disbursement are ascertainable.
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(d) Escrow Agent Compensation. The Leasing Company shall pay
to the Escrow Agent such compensation for services to be performed by it under
this Agreement as the Leasing Company and the Escrow Agent may agree in writing
from time to time. The Escrow Agent shall be paid any compensation owed to it
directly by the Leasing Company and shall not disburse from the Leasing Company
Escrow Account any such amounts.
The Leasing Company shall reimburse the Escrow Agent upon
request for all reasonable expenses, disbursements, and advances incurred or
made by the Escrow Agent in implementing any of the provisions of this
Agreement, including compensation and the reasonable expenses and disbursements
of its counsel. The Escrow Agent shall be paid any such expenses owed to it
directly by the Leasing Company and shall not disburse from the Leasing Company
Escrow Account any such amounts.
The provisions of this Section 2(d) shall survive termination
of this Agreement.
(e) Investment of Funds in the Leasing Company Escrow Account.
Pending investment thereof in accordance with the Senior Note Indenture (and the
Convertible Note Indenture, if the Senior Notes are no longer outstanding and
the Senior Note Indenture and the Senior Note Collateral Documents have been
satisfied and discharged), funds deposited in the Leasing Company Escrow Account
shall be invested and reinvested only upon the following terms and conditions:
(i) Acceptable Investments. All funds deposited or
held in the Leasing Company Escrow Account at any time shall be
invested, at the direction of the Leasing Company except during the
continuance of a Default or an Event of Default, and at the direction
of the Senior Note Trustee, if any of the Senior Notes are outstanding,
or the Convertible Note Trustee, if the Senior Notes are no longer
outstanding and the Senior Note Indenture and the Senior Note
Collateral Documents have been satisfied and discharged, during the
continuance of a Default or an Event of Default, by the Escrow Agent in
Eligible Cash Equivalents for the Company in accordance with the
Company's or the applicable Trustee's written instructions, as
applicable, from time to time to the Escrow Agent; provided, however,
that any such written instruction shall specify the particular
Investment to be made, shall contain the certification referred to in
Section 2(e)(ii), if required, and shall be executed by any officer of
the Company. All Eligible Cash Equivalents shall be assigned to and
held in the possession of, or, in the case of Eligible Cash Equivalents
maintained in book entry form with the Federal Reserve Bank,
transferred to a book entry account in the name of, the Escrow Agent,
as pledgee, with such guarantees as are customary, except that Eligible
Cash Equivalents maintained in
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book entry form with the Federal Reserve Bank shall be transferred to a
book entry account in the name of the Escrow Agent at the Federal
Reserve Bank that includes only Eligible Cash Equivalents held by the
Escrow Agent for its customers and segregated by separate recordation
in the books and records of the Escrow Agent.
(ii) Security Interest in and Lien on Investments. No
investment of funds in the Leasing Company Escrow Account shall be made
unless the Leasing Company has certified to the Escrow Agent and the
Trustees that, upon such investment, each of the Senior Note Trustee
and the Convertible Note Trustee will have a first priority perfected
Lien and security interest for the benefit of the Senior Note Trustee
and the equal and ratable benefit of the Holders of the Senior Notes
and for the benefit of the Convertible Note Trustee and the equal and
ratable benefit of the Holders of the Convertible Notes in the
applicable Investment. A certificate as to a class of investments need
not be issued with respect to individual investments in securities in
that class if the certificate applicable to the class remains accurate
with respect to such individual investments, which continued accuracy
the Escrow Agent may conclusively assume. Promptly after the Issue
Date, and within 3 months after the anniversary of the Issue Date,
until the payment in full of the Senior Notes in accordance with the
terms thereof and of the Senior Note Indenture, and all other
Obligations then due and owing under the Senior Notes, the Senior Note
Indenture, this Agreement and the other Senior Note Collateral
Documents, each of the Trustees and the Escrow Agent shall receive an
Opinion of Counsel, dated each such date as applicable, which opinion
shall meet the requirements of Section 314(b) of the Trust Indenture
Act of 1939, as amended (the "TIA").
(iii) Interest and Dividends. All interest earned and
dividends paid on funds invested in Eligible Cash Equivalents shall be
deposited in the Leasing Company Escrow Account as additional
Collateral beneficially owned by the Leasing Company and pledged to the
Senior Note Trustee, acting for its benefit and the equal and ratable
benefit of the Holders of the Senior Notes, and to the Convertible Note
Trustee, acting for its benefit and the equal and ratable benefit of
the Holders of the Convertible Notes, and shall be reinvested in
accordance with the terms hereof.
(iv) Limitation on Escrow Agent's Responsibilities.
The Escrow Agent's sole responsibilities under this Section 2 shall be
(A) to retain, or cause its agent in the State of New York to retain,
possession of certificated Eligible Cash Equivalents (except, however,
that the Escrow Agent may surrender possession to the issuer of any
such Eligible Cash Equivalent for the purpose of effecting assignment,
crediting
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interest, or reinvesting such security or reducing such security to
cash) and to be the registered or designated owner of Eligible Cash
Equivalents which are not certificated, (B) to follow the Leasing
Company's or the applicable Trustee's written instructions, as
applicable, given in accordance with Section 2(e)(i), (C) to invest and
reinvest funds pursuant to this Section 2(e) and (D) to use reasonable
efforts to reduce to cash such Eligible Cash Equivalents as may be
required to fund any disbursement or payment in accordance with Section
3. In connection with clause (i) above, the Escrow Agent will maintain,
or cause its agent in the State of New York to maintain, continuous
possession in the State of New York of certificated Eligible Cash
Equivalents and cash included in the Collateral and will cause
uncertificated Eligible Cash Equivalents to be registered in the
book-entry system of, and transferred to an account of the Escrow Agent
or a sub-agent of the Escrow Agent at, the Federal Reserve Bank of New
York. Except as provided in Section 6, the Escrow Agent shall have no
other responsibilities with respect to perfecting or maintaining the
perfection of both Trustees' Liens and security interest in the
Collateral and shall not be required to file any instrument, document
or notice in any public office at any time or times. In connection with
clause (D) above, the Escrow Agent shall not be required to reduce to
cash any Eligible Cash Equivalents to fund any disbursement or payment
in accordance with Section 3 in the absence of written instructions
signed by an officer of the Leasing Company specifying the particular
investment to liquidate unless a Default or Event of Default has
occurred and is continuing, in which case such written instructions
shall be signed by a Trust Officer of the Senior Note Trustee or, after
the Senior Note Discharge Date, of the Convertible Note Trustee. If no
such written instructions are received, the Escrow Agent shall
liquidate those Eligible Cash Equivalents having the lowest interest
rate per annum, regardless of maturity, or if none such exist, those
having the nearest maturity. The Escrow Agent shall have no duty to
determine whether or not to file or record any document or instrument
in connection with this Agreement, but will follow the instructions of
the applicable Trustee.
(f) Substitution of Escrow Agent. The Escrow Agent may resign
by giving not less than 30 days' prior written notice to the Leasing Company and
the Senior Note Trustee or, after the Senior Note Discharge Date, to the
Convertible Note Trustee. Such resignation shall take effect upon the later to
occur of (i) delivery of all funds and Eligible Cash Equivalents 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 funds or Eligible
Cash Equivalents or this Agreement to a successor Escrow Agent mutually approved
by the Leasing Company and the Senior Note Trustee or, after the Senior Note
Discharge Date,
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to the Convertible Note Trustee (which approvals shall not be unreasonably
withheld or delayed) and (ii) the Leasing Company, the Senior Note Trustee or,
after the Senior Note Discharge Date, to the Convertible Note 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 Convertible
Notes, the Holders of the Senior Notes and the Trustees than this Agreement; 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, except as set forth in Section 4. If a successor Escrow
Agent has not been appointed or has not accepted such appointment within 30 days
after notice of resignation is given to the Leasing Company, the Escrow Agent
may apply to a court of competent jurisdiction for the appointment of a
successor Escrow Agent.
(g) Escrow Account Statement. At least 30 days prior to each
Interest Payment Date, the Escrow Agent shall deliver to the Leasing Company,
the Trustees and the escrow agent for the Company Senior Note Escrow Account a
statement setting forth with reasonable particularity the balance of funds then
in the Leasing Company Escrow Account and the manner in which such funds are
invested (the "Escrow Account Statement").
3. Disbursements.
(a) Disbursement Request; Disbursements. (i) At least two
Business Days prior to an Interest Payment Date, the Leasing Company and the
Senior Note Trustee, until the Senior Note Discharge Date, and thereafter, the
Convertible Note Trustee, shall submit to the Escrow Agent a completed
Disbursement Request substantially in the form of Exhibit A hereto requesting
funds from the Leasing Company Escrow Account in an amount equal to the interest
owed on the Senior Notes under the Senior Note Indenture until the Senior Note
Discharge Date, and thereafter, the Convertible Notes under the Convertible Note
Indenture, for payment of such interest on such Interest Payment Date, unless
the Company or the Leasing Company has disbursed and the Senior Note Trustee or
the Convertible Note Trustee, as the case may be, has received funds from the
Company or the Leasing Company in such amount on or before such date for such
interest payment. Nevertheless, any funds or Eligible Cash Equivalents (or the
proceeds or reinvestments thereof) previously designated in an Officer's
Certificate delivered pursuant to Section 2(c) of this Agreement as representing
funds or Eligible Cash Equivalents designated to satisfy the requirements of
Section 11.4(m) of the Senior Note Indenture and Section 11.8(l) of the
Convertible Note Indenture requiring the Company and/or the Leasing Companies to
retain in the Company Senior Note Escrow Account and the Leasing Company Escrow
Accounts the Senior Note Interest Payment Escrow Amount at all times after
November 30, 1998 shall not be disbursed to the Leasing Company except as
contemplated in such Section 11.4 and Section
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11.8. Provided that any such Disbursement Request is not rejected by it, the
Escrow Agent, at least on (or if the Senior Note Trustee and the Escrow Agent
are the same entity, two Business Days after) receipt of such Disbursement
Request, shall disburse the funds requested in such Disbursement Request by wire
or book-entry transfer of immediately available funds to the Senior Note
Trustee, and shall promptly notify the Convertible Note Trustee of such
disbursement. The Escrow Agent shall notify the Trustees as soon as reasonably
possible if any such Disbursement Request is rejected and the reason(s)
therefor.
(ii) In addition, the Leasing Company may submit a completed
Disbursement Request for a release of funds to the Leasing Company or the
Company, as applicable, from the Leasing Company Escrow Account, provided that
(i) the applicable conditions set forth in Section 11.4 of the Senior Note
Indenture and Section 11.8 of the Convertible Note Indenture until such time as
the Convertible Notes are no longer outstanding and the Convertible Note
Indenture has been satisfied and discharged have been satisfied for such release
to the Leasing Company or the Company, as applicable, (ii) the Leasing Company
shall have delivered to the Senior Note Trustee or the Convertible note Trustee,
as applicable, the applicable Officer's Certificate required by such Section
11.4 of the Senior note Indenture or Section 11.8 of the Convertible Note
Indenture, as applicable, on or before such disbursement date and (iii) the
Senior Note Trustee or Convertible Note Trustee, as applicable, has executed the
certification contained in the Disbursement Request. Provided that any such
Disbursement Request is not rejected by it, the Escrow Agent at least two (2)
Business Days after the receipt of such Disbursement Request shall disburse the
funds requested in such Disbursement Request by wire or book-entry transfer of
immediately available funds to the Company or the Leasing Company, as
applicable. The Escrow Agent shall notify the Trustees and the Leasing Company
as soon as reasonably possible if any such Disbursement Request is rejected and
the reason(s) therefor.
(iii) If an Event of Default under the Senior Note Indenture or under
the Convertible Note Indenture has occurred and is continuing, the Senior Note
Trustee, in the case of an Event of Default under the Senior Note Indenture, or
the Convertible Note Trustee, in the case of an Event of Default under the
Convertible Note Indenture, shall be entitled unilaterally to initiate
withdrawals by executing a Disbursement Request which will be substantially
similar to the form of Exhibit A but which need only to be executed by the
Senior Note Trustee, in the case of an Event of Default under the Senior Note
Indenture, or the Convertible Note Trustee, in the case of an Event of Default
under the Convertible Note Indenture.
(b) Conditions Precedent to Disbursement. Subject to Section 4
and any mandatory provisions of applicable law, the Escrow Agent shall make the
payments to be made pursuant to a
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completed Disbursement Request if (i) the Company shall have submitted, in
accordance with the provisions of Section 3(a) herein, such Disbursement Request
to the Escrow Agent substantially in the form of Exhibit A with blanks
appropriately filled in containing the signed certification of the Senior Note
Trustee prior to the Senior Note Payment Date and thereafter of the Convertible
Note Trustee included in such form and (ii) the Escrow Agent shall not have
received any notice from the Senior Note Trustee that as a result of an Event of
Default the Indebtedness represented by the Senior Notes has been accelerated
and has become due and payable (in which event the Escrow Agent shall apply all
Available Funds as required by Section 6(b)(iii)).
(c) No Distributions. Provided that no Event of Default has
occurred and is continuing, the Leasing Company shall initiate all requests for
withdrawals of funds from the Escrow Account by executing a Disbursement Request
and submitting such request to the Senior Note Trustee, if prior to the Senior
Note Discharge Date and to the Convertible Note Trustee if subsequent to the
Senior Note Discharge Date. However, the Leasing Company shall not be entitled
to make withdrawals or distributions or to direct the Escrow Agent to make
withdrawals or distributions from the Escrow Accounts except upon certification
by the Senior Note Trustee, if prior to the Senior Note Discharge Date and by
the Convertible Note Trustee if subsequent to the Senior Note Discharge Date, on
a Disbursement Request that the applicable conditions of the Senior Note
Indenture or Convertible Note Indenture, as the case may be, have been
satisfied, as provided in Section 3(a). The Senior Note Trustee shall, prior to
the Senior Note Discharge Date, be entitled unilaterally to initiate withdrawals
or any other act.
(d) Deposits Irrevocable. Any deposits made into the Leasing
Company Escrow Account hereunder shall be irrevocable and the amount of such
deposits and any instrument or security held in the Leasing Company Escrow
Account hereunder and all interest thereon shall be held in trust by the Escrow
Agent and applied solely as provided herein.
4. Limitation of the Escrow Agent's Liability;
Responsibilities of the Escrow Agent. The Escrow Agent's responsibility and
liability under this Agreement shall be limited as follows: (i) the Escrow Agent
does not represent, warrant or guaranty to the Holders of the Senior Notes from
time to time or the Holders of the Convertible Notes the performance of the
Leasing Company; (ii) the Escrow Agent shall have no responsibility to the
Leasing Company or the Holders of the Senior Notes, the Holders of the
Convertible Notes or the Trustees from time to time as a consequence of
performance or non-performance by the Escrow Agent hereunder, except for any
negligence or willful misconduct of the Escrow Agent; (iii) the Leasing Company
shall remain solely responsible for all aspects of the Leasing Company's
business and conduct; and (iv) the Escrow Agent is not obligated to supervise,
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inspect or inform the Leasing Company or any third party of any matter referred
to above.
No implied covenants or obligations shall be inferred from
this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by
the provisions of any agreement beyond the specific terms hereof. Specifically
and without limiting the foregoing, the Escrow Agent shall in no event have any
liability in connection with its investment, reinvestment or liquidation, in
good faith and in accordance with the terms hereof, of any funds or Eligible
Cash Equivalents held by it hereunder, including without limitation any
liability for any delay not resulting from negligence or willful misconduct in
such investment, reinvestment or liquidation, or for any loss of principal or
income incident to any such delay.
The Escrow Agent shall be entitled to rely upon any judicial
order or judgment, upon any written opinion of counsel or upon any
certification, instruction, notice, or other writing delivered to it by the
Leasing Company or the Trustees in compliance with the provisions of this
Agreement without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of service
thereof. The Escrow Agent may act in reliance upon any instrument comporting
with the provisions of this Agreement or signature believed by it to be genuine
and may assume that any person purporting to give notice or receipt or advice or
make any statement or execute any document in connection with the provisions
hereof has been duly authorized to do so.
The Escrow Agent may act pursuant to the written advice of
counsel chosen by it with respect to any matter relating to this Agreement and
(subject to clause (ii) of the first paragraph of this Section 4) shall not be
liable for any action taken or omitted in accordance with such advice.
The Escrow Agent shall not be called upon to advise any party
as to selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this
Agreement with respect to any funds or property deposited hereunder, the Escrow
Agent shall be entitled to refuse to comply with any and all claims, demands or
instructions with respect to such funds or property, and the Escrow Agent shall
not be or become liable for its failure or refusal to comply with conflicting
claims, demands or instructions. The Escrow Agent shall be entitled to refuse to
act until either any conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting claimants as evidenced in a writing, satisfactory to
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the Escrow Agent, or the Escrow Agent shall have received security or an
indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent
harmless from and against any and all loss, liability or expense which the
Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition
elect in its sole option to commence an interpleader action or seek other
judicial relief or orders as the Escrow Agent may deem necessary.
No provision of this Agreement shall require the Escrow Agent
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder.
5. Indemnity. The Leasing Company shall indemnify, hold
harmless and defend the Escrow Agent and its directors, officers, agents,
employees and controlling persons, from and against any and all claims, actions,
obligations, liabilities and expenses, including defense costs, investigative
fees and costs, legal fees, and claims for damages, arising from the Escrow
Agent's performance under this Agreement, except to the extent that such
liability, expense or claim is directly attributable to the negligence or
willful misconduct of any of the foregoing persons. The provisions of this
Section shall survive any termination, satisfaction or discharge of this
Agreement as well as the resignation or removal of the Escrow Agent. The
provisions of this paragraph 5 shall survive the termination of this Agreement.
6. Grant of Liens and Security Interest; Instructions
to Escrow Agent.
(a) The Leasing Company hereby irrevocably grants a first
priority security interest in and Lien on, and pledges, assigns and sets over to
the Senior Note Trustee for the equal and ratable benefit of the Holders of the
Senior Notes, and to the Convertible Note Trustee, acting for its benefit and
the equal and ratable benefit of the Holders of the Convertible Notes, all of
the Leasing Company's right, title and interest in the Leasing Company Escrow
Account, and all property now or hereafter placed or deposited in, or delivered
to the Escrow Agent for placement or deposit in, the Leasing Company Escrow
Account, including, without limitation, all funds held therein, all Eligible
Cash Equivalents held by (or otherwise maintained in the name of) the Escrow
Agent pursuant to Section 2, and all proceeds thereof as well as all rights of
the Leasing Company under this Agreement (collectively, the "Collateral"), in
order to secure all obligations and indebtedness of the Leasing Company under
the Senior Notes and any other obligation, now or hereafter arising, of every
kind and nature, owed by the Leasing Company or the Senior Note Guarantors under
the Senior Note Indenture, the related guarantees thereunder or the Senior Note
Collateral Documents to the Holders of the Senior Notes or to the Senior Note
Trustee and all obligations and indebtedness of the Leasing Company under the
Convertible Notes and
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any other obligation, now or hereafter arising, of every kind and nature, owed
by the Leasing Company or the Convertible Note Guarantors under the Convertible
Note Indenture, the related guarantees thereunder or the Convertible Note
Collateral Documents to the Holders of the Convertible Notes or to the
Convertible Note Trustee. The Escrow Agent hereby acknowledges the Trustees'
security interest and Lien as set forth above. The Leasing Company shall take
all actions necessary on its part to insure the continuance of a first priority
security interest in and Lien on the Collateral in favor of the Trustees in
order to secure all such obligations and indebtedness.
(b) The Leasing Company and the Trustees hereby irrevocably
instruct the Escrow Agent to, and the Escrow Agent shall (i) (A) at all times
maintain sole dominion and control over funds and Eligible Cash Equivalents in
the Leasing Company Escrow Account, acting for the benefit of the Trustees to
the extent specifically required herein, (B) maintain, or cause its agent within
the State of New York to maintain, possession of all certificated Eligible Cash
Equivalents purchased hereunder that are physically possessed by the Escrow
Agent in order for the Trustees to enjoy a continuous perfected first priority
security interest therein under the law of the State of New York (the Leasing
Company hereby agreeing that in the event any certificated Eligible Cash
Equivalents are in the possession of the Leasing Company or a third party, the
Leasing Company shall use its best efforts to deliver all such certificates to
the Escrow Agent), (C) take all steps specified by the Leasing Company pursuant
to paragraph (a) above to cause the Trustees to enjoy a continuous perfected
first priority security interest and Liens under the New York Uniform Commercial
Code and any applicable law of the State of New York in all Eligible Cash
Equivalents purchased hereunder that are not certificated and (D) maintain the
Collateral free and clear of all Liens, security interests, safekeeping or other
charges, demands and claims against the Escrow Agent of any nature now or
hereafter existing in favor of anyone other than the Trustees; (ii) promptly
notify the Trustees if the Escrow Agent receives written notice that any Person
other than the Trustees has or claims to have a Lien on or security interest in
any portion of the Collateral and (iii) in addition to disbursing amounts held
in escrow pursuant to any Disbursement Requests given to it by the Senior Note
Trustee pursuant to Section 3(a)(iv), upon receipt of written notice from the
Trustee of the acceleration of the maturity of the Senior Notes, and direction
from the Senior Note Trustee to disburse all Available Funds to the Senior Note
Trustee, as promptly as practicable disburse all funds held in the Leasing
Company Escrow Account to the Senior Note Trustee and transfer title to all
Eligible Cash Equivalents held by the Escrow Agent hereunder to the Senior Note
Trustee. The Escrow Agent shall not have any right to receive compensation from
either Trustee and is without any authority to obligate either Trustee or to
compromise or pledge its security interest and Lien hereunder. Accordingly, the
Escrow
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Agent is hereby directed to cooperate with the Trustees in the exercise of their
respective rights in the Collateral provided for herein.
(c) Any money and Eligible Cash Equivalents collected by the
Senior Note Trustee pursuant to Section 6(b)(iii) shall be applied as provided
in Section 6.9 of the Senior Note Indenture.
(d) Upon demand, the Leasing Company will execute and deliver
to either Trustee such instruments and documents as such Trustee may reasonably
deem necessary or advisable to confirm or perfect the rights of the Trustees
under this Agreement and the Trustees' interest in the Collateral. The Trustees
shall be entitled to take all necessary action to preserve and protect the
security interest created hereby as a Lien and encumbrance upon the Collateral.
(e) The Leasing Company hereby appoints each Trustee as its
attorney-in-fact with full power of substitution, exercisable upon the
occurrence and during the continuance of a Default or Event of Default, to do
any act which the Leasing Company is obligated hereto to do, and each Trustee
may, but shall not be obligated to, exercise such rights as the Leasing Company
might exercise with respect to the Collateral and take any action in the Leasing
Company's name to protect the Trustees' Liens and security interest hereunder.
In addition to the rights provided under Section 6(b)(iii) hereof, upon an Event
of Default as defined in the Senior Note Indenture and for so long as such Event
of Default continues, the Senior Note Trustee may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party under
the New York Uniform Commercial Code or other applicable law, and the Senior
Note Trustee may also upon obtaining possession of the Collateral as set forth
herein, without notice to the Leasing Company except as specified below, sell
the Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the Senior Note Trustee's
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Senior Note Trustee may deem commercially reasonable. The
Leasing Company acknowledges and agrees that any such private sale may result in
prices and other terms less favorable to the seller than if such sale were a
public sale. The Leasing Company agrees that, to the extent notice of sale shall
be required by law, at least ten (10) days' notice to the Leasing Company of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The Trustee shall not be
obligated to make any sale regardless of notice of sale having been given. The
Trustee may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. If the Senior Notes
are no longer outstanding
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and the Senior Note Indenture has been satisfied and discharged, the foregoing
rights and remedies may be exercised by the Convertible Note Trustee.
7. Termination. This Agreement shall terminate automatically
ten (10) days following disbursement of all funds remaining in the Leasing
Company Escrow Account (including Eligible Cash Equivalents) and the payment in
full of the Senior Notes and all other Obligations then due and owing under the
Senior Note Indenture, the related guarantees thereunder, the Senior Note
Collateral Documents, the Convertible Note Indenture, Convertible Note
Guarantees and the Convertible Note Collateral Documents, unless sooner
terminated by agreement of the parties hereto (in accordance with the terms
hereof, not in violation of the Senior Note Indenture or the Convertible Note
Indenture; neither the Senior Note Trustee nor the Convertible Note Trustee may
agree to terminate this Agreement unless the Senior Note Trustee has received
the consent of 100% of the Holders of all of the Senior Notes outstanding or the
Convertible Note Trustee has received the consent of 100% of the Holders of all
of the Convertible Notes outstanding); provided, however, that the obligations
of the Leasing Company under Section 2(d) and Section 5 (and any existing claims
thereunder) shall survive termination of this Agreement or the resignation of
the Escrow Agent; provided, further, however, that until such tenth day, the
Leasing Company will cause this Agreement (or any permitted successor agreement)
to remain in effect and will cause there to be an Escrow Agent (including any
permitted successor thereto) acting hereunder (or under any such permitted
successor agreement).
8. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach
of this Agreement by any other party, but no such waiver shall be deemed to have
been given unless such waiver is in writing, signed by the waiving party and
specifically designating the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more
of the provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
(c) Assignment. This Agreement is personal to the parties
hereto, and the rights and duties of any party hereunder shall not be assignable
except with the prior written consent of
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the other parties. Notwithstanding the foregoing, this Agreement shall inure to
and be binding upon the parties and their successors and permitted assigns.
Nothing herein shall restrict the Escrow Agent from performing its duties
through a sub-agent.
(d) Benefit. The parties hereto and their successors and
permitted assigns, but no others, shall be bound hereby and entitled to the
benefits hereof; provided, however, that the holders of the Senior Notes and
their permitted assigns shall be entitled to the benefits hereof and to enforce
this Agreement.
(e) Time. Time is of the essence with respect to each
provision of this Agreement.
(f) Entire Agreement; Amendments. This Agreement and the
Senior Note Indenture and the Convertible Note Indenture contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede any and all prior agreements, understandings and commitments, whether
oral or written. This Agreement may be amended only in accordance with Article
IX of the Senior Note Indenture and Article IX of the Convertible Note Indenture
and further by a writing signed by a duly authorized representative of each
party hereto.
(g) Notices. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed to have been duly given and received, regardless of when and whether
received, either: (a) on the day of hand delivery; (b) three Business Days
following the day sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as set forth
below; (c) when transmitted by telecopy with verbal confirmation of receipt by
the telecopy operator to the telecopy number set forth below; or (d) one
business day following the day timely delivered to a next-day air courier
addressed as set forth below:
To Escrow Agent:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ or 5917
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To each Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ or 5917
To the Leasing Company:
PLD Asset Leasing Limited
c/o Phoebus, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
N. Pirilides & Associates
Stassinos Court
Corner of Stassinos Ave.
& ▇▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: 02-443015
Telephone: ▇▇-▇▇▇▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for convenience
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(j) Choice of Law; Waiver of Jury Trial. The existence,
validity, construction, operation and effect of any and all terms and provisions
of this Agreement shall be determined in accordance with and governed by the
laws of the State of New York, without regard to principles of conflicts of law.
The parties to this Agreement hereby agree that jurisdiction over such parties
and over the subject matter of any action or proceeding arising under this
Agreement may be exercised by a competent Court of the State of New York, or by
a United States Court, sitting in New York City. The Leasing Company hereby
submits to the personal jurisdiction of such courts, hereby waives personal
service of process upon it and hereby waives, to the extent permitted by
applicable law, the right to a trial by jury in any action or proceeding with
the Escrow Agent. All actions and proceedings brought by the Leasing Company
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against the Escrow Agent relating to or arising from, directly or indirectly,
this Agreement shall be litigated only in courts within the State of New York.
The Leasing Company waives any objection that it may have to the location of the
court in which the Escrow Agent has commenced a proceeding described in this
paragraph including, without limitation, any objection to the laying of venue or
based on the grounds of forum non conveniens.
(k) Authority of the Leasing Company; Valid and Binding
Agreement. The Leasing Company hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered on its behalf and
constitutes the legal, valid and binding obligation of the Leasing Company. The
execution, delivery and performance of this Agreement by the Leasing Company
does not violate any applicable law or regulation to which the Leasing Company
is subject and does not require the consent of any governmental or other
regulatory body to which the Leasing Company is subject, except for such
consents and approvals as have been obtained and are in full force and effect.
(l) Authority of the Escrow Agent and the Trustees; Valid and
Binding Agreement. Each of the Escrow Agent and the Trustees hereby represents
and warrants that this Agreement has been duly authorized, executed and
delivered on its behalf and constitutes its legal, valid and binding obligation.
(m) Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the Leasing Company
(i) acknowledges that it has, by separate written instrument, irrevocably
designated and appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (or any successor), as its authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to this Agreement
that may be instituted in any federal or state court in the State of New York,
or brought under federal or state securities laws, and acknowledges that CT
Corporation System has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding, and (iii) agrees
that service of process upon CT Corporation System (or any successor) and
written notice of said service to the Leasing Company (mailed or delivered to
Messrs. ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. shall be deemed in every respect
effective service of process upon the Leasing Company in any such suit or
proceeding. The Leasing Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such destination and appointment of
CT Corporation System (or any successor) in full force and effect so long as any
of the Senior Notes shall be outstanding.
To the extent that the Leasing Company has or hereafter may
acquire any immunity from jurisdiction of any court or from any
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legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under this Agreement, to the extent permitted by law.
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IN WITNESS WHEREOF, the parties have executed and delivered
this Leasing Company Escrow Account Agreement as of the day first above written.
ESCROW AGENT: THE BANK OF NEW YORK,
as Escrow Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
SENIOR NOTE TRUSTEE: THE BANK OF NEW YORK,
as Senior Note Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
CONVERTIBLE NOTE TRUSTEE: THE BANK OF NEW YORK,
as Convertible Note Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Leasing Company: PLD ASSET LEASING LIMITED
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
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EXHIBIT A
Form of Disbursement Request
[Letterhead of PLD Asset Leasing Limited]
[Date]
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Floor ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: Disbursement Request No.
[indicate whether revised]
Ladies and Gentlemen:
We refer to the Leasing Company Escrow Agreement, dated as of
May 31, 1996 (the "Leasing Company Escrow Agreement") among you (the "Escrow
Agent"), The Bank of New York as Senior Note Trustee, The Bank of New York as
Convertible Note Trustee, and PLD Asset Leasing Limited, a Cypriot corporation
(the "Leasing Company"). Capitalized terms used herein shall have the meaning
given in the Leasing Company Escrow Agreement.
This letter constitutes a Payment Notice and Disbursement
Request under the Leasing Company Escrow Agreement.
The undersigned hereby notifies you that the Leasing Company
has requested, and has satisfied the conditions contained in Section 11.4 of the
Senior Note Indenture for, the release of $______, from the Leasing Company
Escrow Account of PLD Asset Leasing Limited which was deposited on ________ as a
result of [specify source of deposit, e.g., asset sale of specified assets]
for Net Cash Proceeds of $______ which amount will be invested or used as
follows: .
In connection with the requested disbursement, the undersigned
hereby notifies you that:
1. The Senior Notes have [not], as a result of an Event of
Default (as defined in the Senior Note Indenture), been accelerated and
become due and payable.
2. An Opinion of Counsel as required by the Senior Note
Indenture is delivered herewith.
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3. The Collateral Documents have been delivered to the
Trustee.
4. [add wire instructions].
The Escrow Agent is entitled to rely on the foregoing in
disbursing funds relating to this Disbursement Request.
PLD ASSET LEASING LIMITED
By:_____________________
Name:
Title:
The Senior Note Trustee hereby certifies to the Escrow Agent
that it has received the applicable Officers' Certificate described in Section
11.4 of the Senior Note Indenture for the release of the funds to be disbursed
pursuant to the foregoing Disbursement Request.
THE BANK OF NEW YORK, as Senior
Note Trustee
By: _______________________
Name:
Title:
If applicable:
The Convertible Note Trustee hereby certifies to the Escrow
Agent that it has received the applicable Officers' Certificate described in
Section 11.8 of the Convertible Note Indenture for the release of the funds to
be disbursed pursuant to the foregoing Disbursement Request.
THE BANK OF NEW YORK, as
Convertible Note Trustee
By: _______________________
Name:
Title:
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