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EXHIBIT 4.8
LEASING COMPANY ESCROW ACCOUNT AGREEMENT
[PLD Capital Asset (U.S.) Inc.]
This LEASING COMPANY ESCROW ACCOUNT AGREEMENT (the "Agreement"), dated
as of June 15, 1998, 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 Capital Asset (U.S.) Inc., a Delaware 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
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into a Leasing Company Security and Pledge Agreement of even date herewith (the
"Leasing Company 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 Agreements, 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 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
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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 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 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
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$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.
"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.
"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
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designated "Leasing Company Escrow Account pledged by PLD Capital Asset (U.S.)
Inc. 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 Escrow Agent for the
benefit of the Senior Note Trustee acting for its benefit and the equal and
ratable benefit of the Holders of the Senior Notes, and for the benefit of 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 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.
(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:
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(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(d)(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 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 Convertible Note
Trustee and the Senior Note Trustee will have a first priority
perfected Lien and security interest for the benefit of the
Convertible Note Trustee and the equal and ratable benefit of the
Holders of the Convertible Notes and for the benefit of the Senior
Note Trustee and the equal and ratable benefit of the Holders of the
Senior 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
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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 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
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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, 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 Leasing
Company has disbursed and the Senior Note Trustee or the Convertible Note
Trustee, as the case may be, has received funds from 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
4 of this Agreement as representing funds or Eligible Cash Equivalents
designated to satisfy the requirements of Section 11.4 of the Senior Note
Indenture and Section 11.8 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 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
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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 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 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
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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, 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.
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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 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
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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 for 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 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
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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 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
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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.
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 the other parties. Notwithstanding the foregoing,
this Agreement shall inure to and be
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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
To each Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Floor ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ or 5917
To the Leasing Company:
PLD Capital Asset (U.S.) Inc.
c/o PLD Telekom Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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 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
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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, 4 Carlton Gardens, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇ ▇. Benz, 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 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 Vice President
SENIOR NOTE TRUSTEE: THE BANK OF NEW YORK,
as Senior Note Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
CONVERTIBLE NOTE TRUSTEE: THE BANK OF NEW YORK,
as Convertible Note Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
LEASING COMPANY: PLD CAPITAL ASSET (U.S.) INC.
By: /s/ E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: /s/ Vice President
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EXHIBIT A
Form of Disbursement Request
[Letterhead of the Leasing Company]
[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
June 15, 1998 (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 Capital Asset (U.S.) Inc. a Delaware
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 Capital Asset (U.S.) Inc. 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.
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2. An Opinion of Counsel as required by the Senior Note
Indenture is delivered herewith.
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 CAPITAL ASSET (U.S.) INC.
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:
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