EXHIBIT 4.4
INTEREST ESCROW AGREEMENT
This INTEREST ESCROW AGREEMENT, dated as of June 30, 2003 (the
"Agreement"), is entered into by and among ▇▇▇▇ & ▇▇▇▇▇▇▇ Holdings Corp., a
Delaware corporation ("Holdings"), and The Bank of New York, as escrow agent
(the "Interest Escrow Agent").
This Agreement is being entered into in connection with, and
as a condition for, the release of Escrow Funds, as defined in Section 1(d) of
an escrow agreement, dated as of June 5, 2003, among Holdings, ▇▇▇▇ & ▇▇▇▇▇▇▇
Funding Corp., a Delaware Corporation ("Funding"), The Bank of New York, as
Trustee, and Wilmington Trust Company, as escrow agent (the "Initial Escrow
Agreement").
The parties hereto have entered into this Agreement in order
to set forth the conditions upon which, and the manner in which, funds will be
disbursed from or deposited into, as the case may be, the Interest Escrow
Account.
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties hereto agree as
follows:
1. Delivery and Acceptance of Interest Escrow Funds.
(a) Certain Definitions. All capitalized terms used but
not defined herein shall have the meaning ascribed to them in the Initial Escrow
Agreement. In addition to any other defined terms used herein, the following
terms shall constitute defined terms for the purposes of this Agreement and
shall have the meanings set forth below:
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions in the City of New York or at a place of
payment are authorized by law, regulation or executive order to remain closed.
If a payment date is not a Business Day at a place of payment, payment may be
made at that place on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.
"Cash Equivalents" means:
(1) United States dollars;
(2) direct obligations of the United States of America;
(3) obligations guaranteed by the United States of
America; and
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(4) repurchase obligations in respect of any such
security that are collateralized by such underlying
security.
"Interest Escrow Account" means an account held by the
Interest Escrow Agent, as escrow agent, for the benefit of the Holders,
established in the name of "Interest Escrow Account by ▇▇▇▇ & ▇▇▇▇▇▇▇ to The
Bank of New York, as Trustee".
"Interest Escrow Funds" has the meaning set forth in Section
1(e).
"Revised UCC" means the Uniform Commercial Code as in effect
in the State of New York.
"Securities Account Control Agreement" has the meaning set
forth in Section 1(b).
"Supplemental Indenture" has the meaning given such term by
the Initial Escrow Agreement.
(b) Initial Deposit; Security Interest. Prior to the
closing of the Assumption, the Interest Escrow Agent shall have established the
Interest Escrow Account, and the Initial Escrow Agent (as defined in the Initial
Escrow Agreement) shall, pursuant to the Initial Escrow Agreement, deposit the
Interest Escrow Amount (as defined in the Initial Escrow Agreement) into the
Interest Escrow Account. If the Supplemental Indenture does not become effective
within two (2) Business Days of the date of deposit of the Interest Escrow
Amount into the Interest Escrow Account, then notwithstanding any other
provision of this Agreement, the Interest Escrow Agent shall notify the Initial
Escrow Agent of such fact and shall request transfer instructions (pursuant to
Sections 2(d) and 8 of the Initial Escrow Agreement) for the Initial Escrow
Account and, upon receipt of written instructions from the Initial Escrow Agent,
the Interest Escrow Agent shall transfer all Interest Escrow Funds to the
Initial Escrow Account. The Interest Escrow Account shall be maintained by the
Interest Escrow Agent as a Securities Account. The Interest Escrow Agent, the
Trustee and Holdings shall execute and deliver, concurrently herewith and dated
as of the date hereof, a Securities Account Control Agreement in the form
attached hereto as Exhibit A (the "Securities Account Control Agreement") which,
when so executed and delivered, shall be deemed to have been made a part of this
Agreement. All Interest Escrow Funds accepted by the Interest Escrow Agent
pursuant to this Agreement shall be held by the Interest Escrow Agent for the
exclusive benefit of the Trustee and Holders, as secured parties hereunder
(collectively, the "Beneficiaries") and shall be treated as Financial Assets.
The Trustee will be entitled to all rights and remedies to which a person in
control of Financial Assets is entitled pursuant to Part 5 of Article 8 and
Article 9 of the Revised UCC. All such funds shall be held in the Interest
Escrow Account until disbursed or paid in accordance with the terms hereof.
Without limiting the foregoing, if at any time the Interest Escrow Agent shall
receive an "entitlement order" (as such term is defined in Section 8-102(a)(8)
of the Revised UCC) issued by the Trustee and
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relating to the Interest Escrow Account, the Interest Escrow Agent shall comply
with such entitlement order without further consent of Holdings or any other
person and will accept "entitlement orders" from no other party. The Trustee has
and will have exclusive (and no other person has or will have any) Security
Control over the Interest Escrow Account and all assets, properties and items
from time to time deposited or credited thereto.
(c) Maintenance of Interest Escrow Account. For the
period from and after December 15, 2004 until the date thereafter (the "Rolling
Escrow Termination Date") on which Holdings first meets the Ratio Test (as
defined in the Indenture), Holdings shall deliver, from time to time, additional
cash to the Interest Escrow Agent for deposit into the Interest Escrow Account
sufficient to purchase Cash Equivalents which will, when taken together with all
other Interest Escrow Funds then held in the Interest Escrow Account, provide
sufficient cash to pay the next two interest payments on the Notes as they come
due (the "Rolling Escrow Amount"). From and after the Rolling Escrow Termination
Date, Holdings shall no longer be obligated to maintain the Rolling Escrow
Amount.
(d) Notification; Calculation of Amounts. Holdings shall
deliver to the Interest Escrow Agent, in conjunction with each deposit with the
Interest Escrow Agent under Section 1(c) and as a condition to any release of
the Interest Escrow Funds requested by Holdings under Section 2(b), a written
statement, certified as to its mathematical accuracy by the Chief Financial
Officer of Holdings, setting forth a calculation showing that the amount of cash
and/or Cash Equivalents that would be available to the Interest Escrow Agent,
based on the Interest Escrow Funds that would be held by the Interest Escrow
Agent (after giving effect to any such deposit, investment or release, if
applicable), but taking into account scheduled maturities of, and scheduled
payments of interest on, the Cash Equivalents included in the Interest Escrow
Funds, would:
(1) prior to June 15, 2005, be sufficient on
each of the Interest Payment Dates through and including June
15, 2005 to pay the interest (but not any Additional Interest
under the Registration Rights Agreement) due on such dates in
cash as it comes due; or
(2) on and after December 15, 2004 (so long as
the Rolling Termination Date has not occurred), be sufficient
on each of the next two Interest Payment Dates to pay the
interest due on such dates in cash as it comes due.
The Escrow Agent shall be under no obligation to independently confirm the
calculations contained in, or the conclusions reached by, any such statement.
(e) Interest Escrow Funds. The Escrow Agent shall accept
any amounts deposited pursuant to Sections 1(b) and 1(c) and shall hold such
funds, any Cash Equivalents obtained with such funds and the proceeds thereof
(collectively, the "Interest Escrow Funds").
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The Interest Escrow Agent further agrees to invest any portion of the Interest
Escrow Funds in Cash Equivalents as directed by Holdings in writing from time to
time.
(f) Interest Escrow Agent Obligations. The obligation of
the Interest Escrow Agent to make the payments and transfers required by this
Interest Escrow Agreement shall be limited to the Interest Escrow Funds. The
Interest Escrow Agent shall not be liable for any loss resulting from any
investment made pursuant to this Agreement in compliance with the provisions
hereof or from the sale of any Cash Equivalents required by the terms hereof.
(g) Appointment of Escrow Agent. Holdings and the Trustee
hereby appoint the Interest Escrow Agent, and the Interest Escrow Agent accepts
appointment, as escrow agent, under the terms and conditions of this Agreement.
2. Disbursement of Interest Escrow Funds. (a) On each
Interest Payment Date (as set forth on the Note) the Interest Escrow Agent shall
release to the Paying Agent an amount equal to (i) $51.875 per $1,000 aggregate
principal amount of Notes issued and outstanding on the related Record Date (as
set forth on the Note) for each Interest Payment Date other than December 15,
2003 or (ii) on December 15, 2003 such amount shall equal $54.75694444 per
$1,000 aggregate principal amount of Notes issued and outstanding on the related
Record Date.
(b) If, the Interest Escrow Agent receives a written
request from Holdings to release a portion of the Interest Escrow Funds to
Holdings, the Interest Escrow Agent shall release such funds, provided that the
request complies with the requirements of Section 1 (d) hereof. Further,
Holdings may only request (i) if a portion of the Notes are retired by Holdings,
the release of Interest Escrow Funds representing the amount of interest
payments that would have been required to be held in the Interest Escrow Account
on such retired Notes promptly after such Notes are retired and (ii) at any time
following December 15, 2004, (but no more than once per fiscal quarter) in an
amount equal to the amount in excess of the amount required to be held in the
Interest Escrow Account pursuant to Section 1(d).
(c) Notwithstanding paragraph 2(b) above, if the Interest
Escrow Agent receives a written notice from the Trustee that a Default has
occurred and is continuing, the Interest Escrow Agent will not release any
Interest Escrow Funds to Holdings unless and until the Interest Escrow Agent
receives a notice from the Trustee that such Default is not continuing.
(d) If the Interest Escrow Agent receives a written
notice from the Trustee that the principal of and accrued interest on the Notes
(the "Default Amount") has become immediately due and payable pursuant to
Section 6.2 of the Indenture (an "Acceleration Event") together with a Notice of
Sole Control, the Interest Escrow Agent shall liquidate all Interest Escrow
Funds then held by it within one Business Day after it receives such notice,
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and shall release to the Paying Agent for payment to the Holders an amount of
Interest Escrow Funds sufficient to pay the Default Amount. The Interest Escrow
Agent shall release all remaining Interest Escrow Funds in excess of such
Default Amount to Holdings or to any other person legally entitled thereto.
If an Event of Default specified in Section 6.1(a) of the
Indenture shall occur, the Interest Escrow Agent shall promptly liquidate an
amount of Interest Escrow Funds sufficient to cure the Event of Default and
Holdings shall promptly deposit into the Interest Escrow Account such amount.
3. Termination. Upon the release of any Interest Escrow
Funds to Holdings in accordance with Section 2, such Interest Escrow Funds shall
be delivered to Holdings free and clear of any and all interests and liens of
any Person, including, without limitation, the Interest Escrow Agent, the
Trustee and the Holders. This Agreement shall terminate upon the release of all
Interest Escrow Funds in accordance with Section 2 hereof; provided, however,
that it is expressly agreed that the provisions of Sections 4 and 7(a) hereof
shall survive any such termination.
4. Indemnity. Holdings agrees to indemnify the Interest
Escrow Agent, and its officers, directors, employees and agents, for, and to
hold it and each of them harmless against, any and all loss, liability, damage,
claim or expense including taxes (other than those based upon, measured by or
determined by the income of the Interest Escrow Agent) arising out of or in
connection with this Agreement and carrying out its duties hereunder, including
the reasonable costs and expenses of defending itself against any claim of
liability (whether asserted by Holdings or any other person); provided, however,
that Holdings will not be liable for indemnification or otherwise for any loss,
liability or expense to the extent arising out of the gross negligence, willful
misconduct or bad faith of the Interest Escrow Agent. The Initial Escrow Agent
hereby agrees that it will not make any claims of any nature against the Escrow
Funds.
5. Modifications, Waivers and Amendments. No party shall
be bound by any modification, amendment, termination (except as provided in
Section 3), cancellation, rescission or supersession of this Agreement unless
the same shall be in writing and signed by the parties hereto, and, if its
rights, duties, immunities or indemnities as are affected thereby, unless it
shall have given its prior written consent thereto. This Agreement may not be
modified in any way that would conflict with the Indenture.
6. Grant of Security Interests; Instructions to Interest
Escrow Agent. As security for the full and timely payment and performance of the
Secured Obligations, Holdings hereby irrevocably grants a perfected first
priority security interest in and pledges, assigns and sets over to the Trustee
for its benefit and the benefit of the Holders of all of Holdings' right, title
and interest in, to and under the following whether now or hereafter existing or
acquired (collectively, the "Collateral"): (i) the Interest Escrow Account, and
all Financial
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Assets and other property from time to time placed or deposited in, or delivered
to the Interest Escrow Agent for placement or deposit in, the Interest Escrow
Account, including, without limitation, all funds held therein, and all Cash
Equivalents held by (or otherwise maintained in the name of) the Interest Escrow
Agent pursuant to Section 1; (ii) all security entitlements (as such term is
defined in Section 8-102(a) of the Revised UCC) from time to time credited to
the Interest Escrow Account; (iii) all claims and rights of whatever nature
which Holdings may now have or hereafter acquire against any third party(ies) in
respect of any of the Collateral described in this Section 6(a) (including any
claims or rights in respect of any security entitlements credited to an account
of the Interest Escrow Agent maintained at The Depository Trust Company or any
other clearing corporation) or any other securities intermediary (as such terms
are defined in Section 8-102(a) of the Revised UCC); (iv) all rights which
Funding may now have or hereafter acquire against the Interest Escrow Agent in
respect of its holding and managing all or any part of the Collateral; and (v)
all proceeds (as such term is defined in Section 9-102(a) of the Revised UCC) of
any of the foregoing. The Interest Escrow Agent hereby acknowledges the
Trustee's security interest as set forth in this Section 6. Holdings shall take
all actions and shall direct the Trustee in writing to take all actions
reasonably necessary on its part to ensure (i) the continuance of a security
interest in the Collateral in favor of the Trustee for its benefit and for the
benefit of the Holders in order to secure all the Secured Obligations and (ii)
that such security interest is at all times a perfected first priority security
interest. Holdings shall not grant or cause or permit any other person to obtain
a security interest, encumbrance, lien or other claim, direct or indirect, in
Holdings' right, title or interest in the Interest Escrow Account or any
Collateral.
Holdings and the Trustee hereby irrevocably instruct the
Interest Escrow Agent to, and the Interest Escrow Agent shall, (i) (A) maintain
the Interest Escrow Account for the sole and exclusive benefit of the Trustee on
its behalf and on behalf of the Holders in accordance with the terms of this
Agreement and the Securities Account Control Agreements (B) take all steps
reasonably specified in writing by Holdings pursuant this Section 6(a) to cause
the Trustee to enjoy continuous perfected first priority security interest under
the UCC, any other applicable statutory or case law or regulation of the State
of New York and any applicable law or regulation of the United States in the
Collateral and (C) except as otherwise required by law, maintain the Collateral
free and clear of all liens, security interests, safekeeping or other charges,
demands and claims of any nature now or hereafter existing in favor of anyone
other than the Trustee or Holders; (ii) promptly notify the Trustee if the
Interest Escrow Agent receives written notice that any person other than the
Trustee has a lien, security interest, charge, demand or claim of any nature
upon any portion of the Collateral; and (iii) in addition to disbursing the
Interest Escrow Funds and all other Collateral held in the Interest Escrow
Account pursuant to Section 2, upon receipt of a Notice of Sole Control
(substantially in the form of Exhibit A attached to the Interest Escrow
Agreement), the Interest Escrow Agent shall, as promptly as practicable,
disburse all Interest Escrow Funds and other Collateral held in the Interest
Escrow Account to or as directed by the Trustee and, to the extent
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permissible by applicable law, transfer title to all Cash Equivalents held by
the Interest Escrow Agent hereunder to or as directed by the Trustee.
The security interest provided for by this Section 6(a) shall
automatically terminate and cease as to, and shall not extend or apply to, and
the Trustee shall have no security interest in, any property constituting
Collateral disbursed by the Interest Escrow Agent pursuant in accordance with
the provisions of this Agreement.
The Interest Escrow Agent shall act solely as the Trustee's
agent in connection with its duties under this Section 6(a), notwithstanding any
other provision contained in this Agreement, without any right to receive
compensation from the Trustee and without any authority to obligate the Trustee
or to compromise or pledge its security interest hereunder. Accordingly, the
Interest Escrow Agent is hereby directed to cooperate with the Trustee in the
exercise of its rights in the Collateral provided for herein.
Upon demand, Holdings will execute and deliver to the Trustee
such instruments and documents as are necessary or advisable to confirm or
perfect the rights of the Trustee under this Agreement and Trustee's interests
in the Collateral. The Trustee shall be entitled but not obligated to take all
necessary action to preserve and protect the lien and security interest created
hereby upon the Collateral. Holdings will pay all costs and expenses incurred in
connection with any of the foregoing.
Upon the occurrence of an Event of Default under the Indenture
and for so long as such Event of Default continues, Holdings hereby appoints the
Trustee as its attorney-in-fact with full power of substitution to do any act
which Holdings is obligated hereunder to do, and the Trustee may, but shall not
be required to, exercise such rights as Holdings might exercise with respect to
the Collateral and take any action in Holdings' name to protect the Trustee's
security interest and lien granted hereunder. In addition to the rights provided
under this Section 6(a), upon the occurrence of an Event of Default under the
Indenture and for so long as such Event of Default continues, the Trustee may,
but shall not be required to, exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or in the Securities Account
Control Agreement or otherwise available to it, its right to issue an
"entitlement order" (within the meaning of Section 8-102(a)(8) of the UCC) and
all other rights and remedies of secured parties under the UCC or other
applicable law, and the Trustee may also upon obtaining possession of the
Collateral as set forth herein, without notice to Holdings 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 Trustee's
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Trustee may deem commercially reasonable. Holdings agrees
that, to the extent notice of sale shall be required by law, at least ten days'
notice to Holdings 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
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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 at any time the Interest Escrow Agent shall receive an
"entitlement order" (within the meaning of Section 8-102(a)(8) of the UCC)
issued by the Trustee and relating to the Interest Escrow Account, the Interest
Escrow Agent shall comply with such entitlement order without further consent by
Holdings or any other person.
7. Concerning the Interest Escrow Agent. (a) The initial
fee of the Interest Escrow Agent hereunder is $19,000, which fee shall be
nonrefundable and paid in advance by Holdings or as otherwise agreed by Holdings
and the Interest Escrow Agent in writing. Holdings also agrees to pay on demand
the reasonable costs and expenses of the Interest Escrow Agent, including the
reasonable fees and expenses of counsel selected by the Interest Escrow Agent,
incurred in connection with its duties hereunder.
(b) The Interest Escrow Agent shall exercise the same
degree of care toward the Interest Escrow Funds as it exercises toward its own
similar property and shall not be held to any higher standard of care under this
Agreement, nor be deemed to owe any fiduciary duty to Holdings.
(c) The Interest Escrow Agent may act upon any instrument
or other writing believed by it in good faith to be genuine and to have been
signed or presented by the proper person (it being understood that the only
people authorized to act on behalf of Holdings are identified on incumbency
certificates substantially in the form of Exhibit B hereto delivered to the
Interest Escrow Agent and upon which it may conclusively rely), and shall not be
liable to any party hereto in connection with the performance of its duties
hereunder, except for its own gross negligence, willful misconduct or bad faith.
The duties of the Interest Escrow Agent shall be determined only with reference
to this Agreement and applicable laws and the Interest Escrow Agent is not
charged with any knowledge of, or any duties or responsibilities in connection
with, any other document or agreement that has been reviewed by the Interest
Escrow Agreement and its counsel. If in doubt as to its duties and
responsibilities hereunder, the Interest Escrow Agent may consult with counsel
of its choice and shall be protected in any action taken or omitted in good
faith in reliance on the advice or opinion of such counsel.
(d) The Interest Escrow Agent may execute any of its
powers or responsibilities hereunder and exercise any rights hereunder either
directly or by or through its agents or attorneys.
(e) Nothing in this Agreement shall be deemed to impose
upon the Interest Escrow Agent any duty to qualify to do business or to act as
agent or otherwise in any jurisdiction other than the State of New York.
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(f) The Interest Escrow Agent shall not be responsible
for and shall not be under a duty to examine into or pass upon the validity,
binding effect, execution or sufficiency of this Agreement, any agreement
amendatory or supplemental hereto or of any certificates delivered to it
hereunder.
(g) The Interest Escrow Agent makes no representation as
to the validity, value, genuineness or collectability of any security or other
document or instrument held by or delivered to it.
(h) The Interest 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.
(i) The Interest Escrow Agent shall have the right at any
time to resign hereunder by giving written notice of its resignation to Holdings
at the address set forth herein or at such other address as Holdings shall
provide, at least 30 days prior to the date specified for such resignation to
take effect. Upon the effective date of such resignation, all cash and other
payments and all other property then held by the Interest Escrow Agent hereunder
shall be delivered by it to a successor escrow agent, provided that such
successor escrow agent has agreed to the control provisions of the Securities
Account Control Agreement. If no successor escrow agent is appointed, the
Interest Escrow Agent at the expense of Holdings may apply to a court of
competent jurisdiction for such appointment.
(j) If the Interest Escrow Agent should at any time be
confronted with inconsistent claims or demands to the Interest Escrow Funds, the
Interest Escrow Agent shall have the right, but not the duty, to interplead the
parties in any court of competent jurisdiction and request that such court
determine the respective rights of the parties with respect to the Interest
Escrow Funds. In the event the Interest Escrow Agent no longer holds any
Interest Escrow Funds, it shall be released from any obligation or liability as
a consequence of any such claims or demands.
(k) The Interest Escrow Agent shall not be required to
use its own funds in the performance of any of its obligations or duties, or in
the exercise of any rights or powers, and shall not be required to take any
action which, in the Interest Escrow Agent's sole judgment, could involve it in
expense or liability unless furnished with security and indemnity which the
Interest Escrow Agent deems, in its sole discretion, to be satisfactory.
(l) Whenever the Interest Escrow Agent is unable to
decide between alternative courses of action permitted or required by the terms
of this Agreement, is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement or of the action to be taken by it
hereunder, or otherwise determines instruction to be necessary, desirable or
appropriate, the Interest Escrow Agent shall promptly give notice (in such form
as shall be reasonable under the circumstances) to Holdings requesting
instruction as to the
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course of action to be adopted, and, to the extent the Interest Escrow Agent
acts in good faith in accordance with any such instruction received from
Holdings, the Interest Escrow Agent shall not be liable on account of such
action or inaction to any person. If the Interest Escrow Agent shall not have
received appropriate instruction within ten Business Days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement, as it shall in good ▇▇▇▇▇ ▇▇▇▇ appropriate, and shall have no
liability to any person for such action or inaction.
8. Notices. All notices required to be given hereunder
shall be in writing and shall be deemed sufficiently given when received by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested at the following addresses until such time as
the parties hereto designate a different or additional address or addresses:
If to Holdings or Funding:
▇▇▇▇ & ▇▇▇▇▇▇▇ Holdings Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Shearman & Sterling
Commerce Court West, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Interest Escrow Agent:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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9. Miscellaneous. (a) This Agreement sets forth
exclusively the duties of the Interest Escrow Agent with respect to any and all
matters pertinent hereto and no implied duties or obligations shall be read into
this Agreement against the Interest Escrow Agent.
(b) This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which when taken
together shall constitute one agreement.
(c) This Agreement shall be governed by the laws of the
State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
first written above.
THE BANK OF NEW YORK,
as Escrow Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
THE BANK OF NEW YORK,
as Trustee under the Indenture
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇ & ▇▇▇▇▇▇▇ HOLDINGS CORP.
By: /s/ V. ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: V. ▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
EXHIBIT A
[FORM OF SECURITIES ACCOUNT CONTROL AGREEMENT]
EXHIBIT B
FORM OF
CERTIFICATE OF INCUMBENCY
The undersigned, [authorized officer's name], [authorized
officer's title], of ▇▇▇▇ & ▇▇▇▇▇▇▇ Holdings Corp. (the "Company"), hereby
certifies that the following named agent is duly appointed, qualified and acting
in the capacity set forth opposite his name, is authorized to take any action on
behalf of the Company with respect to the Escrow Agreement, dated as of [ ],
2003, among the Company, The Bank of New York, as trustee and escrow agent the
following signature is the true and genuine signature of said agent.
Name Title Signature
[Name] [Title] ________________
IN WITNESS WHEREOF, the Company has caused this Certificate of
Incumbency to be executed by the undersigned duly authorized this _____ day of
_______, 2003.
▇▇▇▇ & ▇▇▇▇▇▇▇ FUNDING CORP.
By: _______________________________________
Name: [authorized officer's name]
Title: [authorized officer's title]