ESCROW AGREEMENT, dated as of May 15, 1997 (the "Agreement"),
between ▇▇▇▇▇▇▇ ESCROW CORP. (the "Issuer") and FIRST TRUST
NATIONAL ASSOCIATION, as Escrow Agent (the "Escrow Agent").
This Agreement is being entered into in connection with the
Purchase Agreement (the "Purchase Agreement"), dated May 15, 1997, among the
Issuer, Bear, ▇▇▇▇▇▇▇ & Co. Inc., Chase Securities Inc. and Credit Suisse First
Boston Corporation (the "Initial Purchasers"), and the Indenture (the
"Indenture"), dated as of May 20, 1997, between the Issuer and First Trust
National Association, as trustee (the "Trustee"). Capitalized terms which are
used but not defined herein have the respective meanings specified in the
Indenture.
Pursuant to the Purchase Agreement, the Issuer is selling
$600,475,000 aggregate principal amount at maturity of its Senior Secured First
Priority Discount Notes due 2001 (the "First Priority Notes") and $131,560,000
aggregate principal amount at maturity of its Senior Secured Second Priority
Discount Notes due 2001 (the "Second Priority Notes" and, together with the
First Priority Notes, the "Notes", which term shall include any notes issued in
exchange for Notes pursuant to the Registration Agreement). Concurrently with
the closing of the sale of the Notes, the Issuer will deposit with the Escrow
Agent, as hereinafter provided, the net proceeds from the sale of the Notes of
$455,256,605.58 (the "Initial Deposit"). The Initial Deposit will be used to
finance (a) the redemption (the "▇▇▇▇▇▇▇ Holdings Notes Redemption") of
$281,281,000 aggregate principal amount at maturity of Senior Secured Discount
Notes due 1998 (the "▇▇▇▇▇▇▇ Holdings Notes") of ▇▇▇▇▇▇▇ Holdings Inc., a wholly
owned subsidiary of the Issuer ("▇▇▇▇▇▇▇ Holdings"), and (b) the retirement (the
"▇▇▇▇▇ Retirement") of $561,553,000 aggregate principal amount at maturity of
Liquid Yield Option(TM) Notes due 2013 (the
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(TM) Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
"▇▇▇▇▇"(TM)) of ▇▇▇▇▇▇▇ Worldwide Corporation, a wholly owned subsidiary of
▇▇▇▇▇▇▇ Holdings ("▇▇▇▇▇▇▇ Worldwide"). The ▇▇▇▇▇ Retirement is expected to
occur through one or more transactions or series of transactions, including (i)
one or more offers to pay cash upon exchange of ▇▇▇▇▇ in excess of the then
market value of the shares of Coleman Common Stock (as defined herein) for which
the ▇▇▇▇▇ may be exchanged and (ii) redemption of the ▇▇▇▇▇ at the option of
▇▇▇▇▇▇▇ Worldwide.
The ▇▇▇▇▇▇▇ Holdings Notes were originally issued pursuant to
the Indenture, dated as of July 15, 1993, between ▇▇▇▇▇▇▇ Holdings and First
Trust National Association, as trustee (the "▇▇▇▇▇▇▇ Holdings Indenture"). The
▇▇▇▇▇ were originally issued pursuant to the Indenture, dated as of May 27,
1993, between ▇▇▇▇▇▇▇ Worldwide and First Trust National Association, as trustee
(the "▇▇▇▇▇ Indenture"). Each LYON ($1,000 principal amount at maturity) is
exchangeable at the option of the holder thereof at any time prior to May 27,
2013 into 15.706 shares of common stock, par value $.01 per share (the "Coleman
Common Stock"), of The ▇▇▇▇▇▇▇ Company, Inc., an 83% owned subsidiary of ▇▇▇▇▇▇▇
Worldwide ("Coleman"). The ▇▇▇▇▇ are secured by a pledge of 16,394,810 shares of
Coleman Common Stock, which pledge is governed by the terms of the Indenture and
the Escrow and Pledge Agreement, dated as of May 27, 1993, between ▇▇▇▇▇▇▇
Worldwide and First Trust National Association, as trustee (the "▇▇▇▇▇▇▇
Worldwide Pledge Agreement").
In the event that none of the Notes remains outstanding, this
Agreement shall automatically terminate and any and all excess Escrowed Funds
shall immediately be released to the Issuer, as hereinafter provided.
Accordingly, the Issuer and the Escrow Agent agree as follows:
-----------
(TM) Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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1. Delivery, Acceptance and Investment of
Escrowed Funds.
(a) Concurrently with the closing of the sale of the Notes,
which is expected to occur on May 20, 1997, the Issuer will deposit the Initial
Deposit with the Escrow Agent. The Initial Deposit shall be made in the form of
cash, Treasury Securities or any combination thereof.
"Treasury Securities" means any investment in obligations
issued or guaranteed by the United States government or any agency thereof, in
each case maturing within 360 days of the date of acquisition thereof.
(b) The Escrow Agent hereby agrees to accept the Initial
Deposit and to hold such funds and the proceeds thereof in one or more separate
identifiable accounts for disbursement in accordance with the provisions hereof.
The Initial Deposit and the proceeds of any such deposit, less any amounts
released pursuant to the terms of this Agreement, shall constitute the "Escrowed
Funds." The Escrow Agent further agrees to invest any portion of the Escrowed
Funds in Permitted Investments as directed in writing from time to time by the
Issuer.
"Permitted Investments" means (i) Treasury Securities, (ii)
investments in time deposit accounts, certificates of deposit and money market
deposits maturing within 180 days of the date of acquisition thereof, entitled
to U.S. federal deposit insurance for the full amount thereof or issued by a
bank or trust company (including the Escrow Agent or an affiliate of the Escrow
Agent) which is organized under the laws of the United States of America or any
state thereof having capital, surplus and undivided profits aggregating in
excess of $500,000,000 and (iii) repurchase obligations with a term of not more
than 30 days entered into with a nationally recognized broker dealer, with
respect to which the purchased securities are obligations issued or guaranteed
by the United States government or any agency thereof, which repurchase
obligations shall be entered into pursuant to agreements substantially in the
form of one or more of the agreements attached as Exhibit D.
(c) The obligation and liability of the Escrow
Agent to make the payments and transfers required by this
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Escrow Agreement shall be limited to the Escrowed Funds. The Escrow Agent shall
not be liable for any loss resulting from any investment made pursuant to this
Escrow Agreement in compliance with the provisions hereof.
2. Release of Escrowed Funds.
(a) The Escrow Agent shall only release the Escrowed Funds
from the escrow created hereby in accordance with this Section 2 and upon
termination of this Agreement in accordance with Section 5.
(b) Subject to Section 2(l) hereof, if the Escrow Agent
receives a notice from the Issuer that the ▇▇▇▇▇▇▇ Holdings Notes Redemption
pursuant to paragraph 5 of the ▇▇▇▇▇▇▇ Holdings Notes and Article III of the
▇▇▇▇▇▇▇ Holdings Indenture is to occur on or after July 15, 1997, the Escrow
Agent shall, on the Business Day prior to the date fixed for the ▇▇▇▇▇▇▇
Holdings Notes Redemption, release to the Issuer the amount of Escrowed Funds
equal to the redemption price payable under the ▇▇▇▇▇▇▇ Holdings Indenture
sufficient to redeem all of the ▇▇▇▇▇▇▇ Holdings Notes outstanding on the date
thereof (the "▇▇▇▇▇▇▇ Holdings Redemption Amount"), as specified in such notice
from the Issuer.
(c) Subject to Section 2(l) hereof, if the Escrow Agent
receives a notice from the Issuer that the maturity of the ▇▇▇▇▇▇▇ Holdings
Notes has been accelerated pursuant to Section 6.02 of the ▇▇▇▇▇▇▇ Holdings
Indenture and such acceleration has not been rescinded (the "▇▇▇▇▇▇▇ Holdings
Notes Acceleration"), the Escrow Agent shall, on the date specified in such
notice, release to the Issuer the amount of Escrowed Funds equal to the accreted
value of the ▇▇▇▇▇▇▇ Holdings Notes and accrued interest thereon as of the date
of such acceleration, as specified in such notice from the Issuer.
(d) Subject to Sections 2(j)and 2(l) hereof, if the Escrow
Agent receives a notice from the Issuer that holders of ▇▇▇▇▇ have surrendered
such ▇▇▇▇▇ for exchange (a "▇▇▇▇▇ Exchange") for Exchange Property (as defined
in the ▇▇▇▇▇ Indenture) and that ▇▇▇▇▇▇▇ Worldwide has exercised its right
pursuant to the ▇▇▇▇▇ Indenture to pay cash (the "▇▇▇▇▇ Cash Payment Option") in
lieu of Exchange Property, in whole or in part, the Escrow Agent shall, on the
date specified in such notice
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from the Issuer, release to the Issuer the amount of Escrowed Funds necessary to
satisfy the ▇▇▇▇▇ Cash Payment Option, as specified in such notice from the
Issuer.
(e) Subject to Sections 2(j) and 2(l) hereof, if the Escrow
Agent receives a notice from the Issuer that the Issuer, ▇▇▇▇▇▇▇ Worldwide or
any other affiliate of the Issuer has offered to pay cash upon exchange of ▇▇▇▇▇
in excess of the amount required to satisfy the ▇▇▇▇▇ Cash Payment Option in a
▇▇▇▇▇ Exchange (an "Optional ▇▇▇▇▇ Exchange Offer"), the Escrow Agent shall, on
the first Business Day following the expiration date for such Optional ▇▇▇▇▇
Exchange Offer, release to the Issuer the amount of Escrowed Funds equal to the
amount required to pay the exchange consideration for all ▇▇▇▇▇ delivered for
exchange in such Optional ▇▇▇▇▇ Exchange Offer, as specified in such notice from
the Issuer.
(f) Subject to Sections 2(j) and 2(l) hereof, if the Escrow
Agent receives a notice from the Issuer that ▇▇▇▇▇▇▇ Worldwide has agreed to
purchase any ▇▇▇▇▇ pursuant to paragraph 6 of the ▇▇▇▇▇ and Section 3.08 of the
▇▇▇▇▇ Indenture (a "▇▇▇▇▇ Purchase") and that ▇▇▇▇▇▇▇ Worldwide has exercised
the ▇▇▇▇▇ Cash Payment Option, the Escrow Agent shall on the first Business Day
following the Purchase Date (as defined in the ▇▇▇▇▇ Indenture) for the ▇▇▇▇▇
Purchase, release to the Issuer the amount of Escrowed Funds equal to the
Purchase Price (as defined in the ▇▇▇▇▇ Indenture), as specified in such notice
from the Issuer.
(g) Subject to Sections 2(j) and 2(l) hereof, if the Escrow
Agent receives a notice from the Issuer that ▇▇▇▇▇▇▇ Worldwide has agreed to
purchase any ▇▇▇▇▇ pursuant to paragraph 6 of the ▇▇▇▇▇ and Section 3.09 of the
▇▇▇▇▇ Indenture (an "Additional ▇▇▇▇▇ Purchase"), the Escrow Agent shall, on the
first Business Day following the Additional Purchase Right Purchase Date (as
defined in the ▇▇▇▇▇ Indenture) for the Additional ▇▇▇▇▇ Purchase, release to
the Issuer the amount of Escrowed Funds equal to the Additional Purchase Right
Purchase Price (as defined in the ▇▇▇▇▇ Indenture), as specified in such notice
from the Issuer.
(h) Subject to Section 2(l) hereof, if the Escrow Agent
receives a notice from the Issuer that an optional redemption of the ▇▇▇▇▇
pursuant to paragraph 5
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of the ▇▇▇▇▇ and Section 3.01 of the ▇▇▇▇▇ Indenture (the "▇▇▇▇▇ Optional
Redemption") is to occur, the Escrow Agent shall, on the Business Day prior to
the date fixed for the ▇▇▇▇▇ Optional Redemption, release to the Issuer the
amount of Escrowed Funds equal to the redemption price under the ▇▇▇▇▇ Indenture
sufficient to redeem all of the ▇▇▇▇▇ outstanding on the date thereof, as
specified in such notice from the Issuer.
(i) Subject to Section 2(l) hereof, if the Escrow Agent
receives a notice from the Issuer that the maturity of the ▇▇▇▇▇ has been
accelerated pursuant to Section 6.02 of the ▇▇▇▇▇ Indenture and such
acceleration has not been rescinded (the "▇▇▇▇▇ Acceleration"), the Escrow Agent
shall, on the date specified in such notice, release to Issuer the amount of
Escrowed Funds equal to the Issue Price plus accrued Original Issue Discount (as
such terms are defined in the ▇▇▇▇▇ Indenture) of the ▇▇▇▇▇ then outstanding
through the date of such acceleration, as specified in such notice from the
Issuer.
(j) In the case of any release of Escrowed Funds pursuant to
Section 2(d), 2(e), 2(f) or 2(g) of this Agreement (a "▇▇▇▇▇ Release Event"),
the amount of Escrowed Funds to be released to the Issuer will be equal to the
lesser of (i) the amount specified by the Issuer in such notice and (ii) the
product of (A) the total amount of Escrowed Funds immediately prior to such
▇▇▇▇▇ Release Event (less the ▇▇▇▇▇▇▇ Holdings Redemption Amount, if prior to a
release of Escrowed Funds pursuant to Section 2(b)), and (B) the quotient
obtained when (x) the aggregate principal amount at maturity of the ▇▇▇▇▇ to be
so exchanged, purchased or redeemed in connection with such ▇▇▇▇▇ Release Event
is divided by (y) the aggregate principal amount at maturity of all ▇▇▇▇▇
outstanding immediately prior to such ▇▇▇▇▇ Release Event. The product
calculated by the Issuer pursuant to clause (ii) of the preceding sentence is
referred to herein as the "Pro Rata Release Amount."
(k) The notice to be provided by the Issuer to the Escrow
Agent upon the occurrence of the events specified in Sections 2(b) through 2(i)
hereof shall be contained in an officer's certificate (an "Officer's
Certificate"), substantially in the form of Exhibit A hereto, signed by the
Issuer through any one of the Chief Executive Officer, President, Chief
Financial Officer, Con-
6
troller or Vice President of the Issuer (each an "Authorized Officer"), pursuant
to which the Issuer certifies to the Escrow Agent the matters specified in
Exhibit A hereto, including a statement that the amount of Escrowed Funds to be
released will be contributed to ▇▇▇▇▇▇▇ Holdings or ▇▇▇▇▇▇▇ Worldwide, as the
case may be (each, a "Capital Contribution"), and disbursed to pay for one of
the events described in Sections 2(b) through 2(i) of this Agreement.
Notwithstanding the foregoing or any other provision in this Agreement to the
contrary, upon any release of Escrowed Funds to the Issuer, if ▇▇▇▇▇▇▇ Worldwide
has cash available (the "Available ▇▇▇▇▇▇▇ Worldwide Cash") to pay for a portion
of the ▇▇▇▇▇ Exchange, Optional ▇▇▇▇▇ Exchange Offer, ▇▇▇▇▇ Purchase, Additional
▇▇▇▇▇ Purchase, ▇▇▇▇▇ Optional Redemption or the ▇▇▇▇▇ Acceleration, other than
as a result of ▇▇▇▇▇▇▇ Worldwide's receipt of a Capital Contribution from the
Escrowed Funds released to the Issuer, then the Issuer may reduce the amount of
the Capital Contribution to be made to ▇▇▇▇▇▇▇ Worldwide by the amount of such
Available ▇▇▇▇▇▇▇ Worldwide Cash. The Issuer shall be entitled to retain and use
for any purpose that portion of Escrowed Funds released to the Issuer equal to
the amount of Available ▇▇▇▇▇▇▇ Worldwide Cash. No representation or reference
as to whether Available ▇▇▇▇▇▇▇ Worldwide Cash exists shall be required to be
made by the Issuer in the Officer's Certificate or otherwise under this
Agreement.
(l) If the Escrow Agent receives a notice from the Trustee or
otherwise becomes aware that a Triggering Event has occurred and as a result,
that a Mandatory Redemption pursuant to paragraph 6 of each of the Notes and
Article III of the Indenture is to occur, the Escrow Agent shall in no event
release any of the Escrowed Funds to the Issuer pursuant to Sections 2(b)-2(j)
hereof. The Escrow Agent will liquidate all Escrowed Funds then held by it not
later than the third Business Day prior to the date fixed for such Mandatory
Redemption specified in the notice from the Trustee (the "Mandatory Redemption
Date"). The Escrow Agent will on the Business Day prior to the Mandatory
Redemption Date release to the Paying Agent an amount of Escrowed Funds in cash
equal to the redemption price set forth in paragraph 6 of the Notes (the
"Mandatory Redemption Price") payable to the holders of the Notes, as specified
in such notice from the Trustee. Concurrently with such release to the Paying
Agent,
7
the Escrow Agent shall release any excess of Escrowed Funds over the Mandatory
Redemption Price to the Issuer.
"Triggering Event" means the occurrence of any
of the following:
(i) any of ▇▇▇▇▇▇▇ Holdings, ▇▇▇▇▇▇▇
Worldwide or Coleman pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for
relief against it in an involuntary case;
(C) consents to the appointment of a
Custodian of it or for any substantial part of its property; or
(D) makes a general assignment for the
benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency; or
(ii) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against any of ▇▇▇▇▇▇▇
Holdings, ▇▇▇▇▇▇▇ Worldwide or Coleman;
(B) appoints a Custodian of any of ▇▇▇▇▇▇▇
Holdings, ▇▇▇▇▇▇▇ Worldwide or Coleman or for any substantial part of
its property; or
(C) orders the winding up or liquidation of
any of ▇▇▇▇▇▇▇ Holdings, ▇▇▇▇▇▇▇ Worldwide or Coleman;
or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days.
(m) Upon the termination of this Agreement in accordance with
Section 5 hereof, the Escrow Agent shall release all Escrowed Funds to the
Issuer.
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3. Exercise of ▇▇▇▇▇ Cash Payment Option.
(a) In connection with any ▇▇▇▇▇ Exchange or ▇▇▇▇▇ Purchase
(except if there has been a release of Escrowed Funds pursuant to Section 2(i)
hereof, in which case Section 3(b) shall govern), the Issuer shall cause ▇▇▇▇▇▇▇
Worldwide to (i) exercise the ▇▇▇▇▇ Cash Payment Option in an amount up to the
Pro Rata Release Amount and (ii) except as provided in Section 2(k), apply such
amount to such exchange or purchase to the maximum extent possible.
(b) Except as provided in Section 2(k), to the extent that any
holder of ▇▇▇▇▇ seeks to exchange ▇▇▇▇▇ within the 30 days following a ▇▇▇▇▇
Acceleration, the Issuer shall cause ▇▇▇▇▇▇▇ Worldwide to (i) exercise the ▇▇▇▇▇
Cash Payment Option in an amount equal to the product of (A) the total amount of
Escrowed Funds released pursuant to Section 2(i) hereof in connection with such
▇▇▇▇▇ Acceleration and (B) the quotient obtained when (x) the aggregate
principal amount at maturity of the ▇▇▇▇▇ to be so exchanged, is divided by (y)
the aggregate principal amount at maturity of the ▇▇▇▇▇ outstanding as of the
date of such ▇▇▇▇▇ Acceleration, and (ii) apply such amount to such exchange to
the maximum extent possible.
4. Reliance on Information Supplied.
The Escrow Agent may rely on the contents of any Officer's
Certificate furnished hereunder without making any independent verification.
5. Termination of Agreement.
This Agreement shall terminate upon the earliest to occur of
(i) delivery to the Escrow Agent of an Officer's Certificate substantially in
the form of Exhibit B hereto signed by the Issuer through an Authorized Officer
pursuant to which the Issuer certifies that the ▇▇▇▇▇▇▇ Holdings Notes
Redemption and the ▇▇▇▇▇ Retirement have been consummated or (ii) delivery to
the Escrow Agent of an Officer's Certificate substantially in the form of
Exhibit C hereto signed by the Issuer through an Authorized Officer pursuant to
which the Issuer certifies that none of the Notes remains outstanding. Upon
termination of this Agreement, any Escrowed Funds remaining in
9
the custody of the Escrow Agent shall be delivered to the Issuer in accordance
with Section 2(m) hereof, free and clear of any and all interests of the Escrow
Agent or any other party.
6. Indemnity.
The Issuer agrees to indemnify the Escrow Agent, and its
officers, directors, employees and agents, for and to hold it and each of them
harmless against any loss, liability or expense arising out of or in connection
with this Agreement and carrying out its duties hereunder, including the cost
and expenses of defending itself against any claim of liability; provided,
however, that the Issuer 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 Escrow Agent.
7. Modifications, Waivers and Amendments.
The Escrow Agent shall not be bound by any modification,
amendment, termination (except as provided in Section 6 hereof), cancellation,
rescission or super-session 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 Escrow Agent are affected thereby, unless it shall have given
its prior written consent thereto.
8. Concerning the Escrow Agent.
(a) The Escrow Agent and the Issuer acknowledge and agree that
the Escrowed Funds shall be held by the Escrow Agent for and on behalf of the
Issuer, and that the Escrow Agent is acting exclusively as the agent, custodian
and bailee of the Issuer, and not of any other party.
(b) The fee of the Escrow Agent hereunder is $3,000 per annum,
which fee shall be nonrefundable and paid in advance by the Issuer. The Issuer
also agrees to pay on demand the costs and expenses of the Escrow Agent,
including the fees and expenses of counsel selected by the Escrow Agent, other
than the costs and expenses reimbursed pursuant to Section 6 hereof, incurred in
connection with its duties hereunder.
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(c) The Escrow Agent shall exercise the same degree of care
toward the Escrowed 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 the Issuer.
(d) The 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, and shall not be liable to any party hereto in
connection with the performance of its duties hereunder, except for its own
negligence, willful misconduct or bad faith. The duties of the Escrow Agent
shall be determined only with reference to this Escrow Agreement and applicable
laws and Escrow Agent is not charged with any knowledge of or any duties or
responsibilities in connection with any other document or agreement. If in doubt
as to its duties and responsibilities hereunder, the Escrow Agent may consult
with counsel of its choice and shall be protected in any action taken or omitted
in good faith in connection with the advice or opinion of such counsel.
(e) The 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.
(f) Nothing in this Escrow Agreement shall be deemed to impose
upon the 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.
(g) The 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 Escrow Agreement, any agreement amendatory or
supplemental hereto or of any certificates delivered to it hereunder.
(h) The Escrow Agent makes no representation as to the
validity, value, genuineness or collectibility of any security or other document
or instrument held by or delivered to it.
(i) The Escrow Agent shall not be called upon to advise any
party as to selling or retaining, or taking
11
or refraining from taking any action with respect to, any securities or other
property deposited hereunder.
(j) The Escrow Agent shall have the right at any time to
resign hereunder by giving written notice of its resignation to the Issuer at
the address set forth herein or at such other address as the Issuer 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 Escrow Agent hereunder shall be
delivered by it to a successor escrow agent. If no successor escrow agent is
appointed, Escrow Agent may apply to a court of competent jurisdiction for such
appointment. The Escrow Agent or any successor is not required to be the same
entity as the Trustee under the Indenture.
(k) In the event that Escrow Agent should at any time be
confronted with inconsistent claims or demands to the Escrowed Funds, the 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 Escrowed Funds. In the
event the Escrow Agent no longer holds any Escrowed Funds, it shall be released
from any obligation or liability as a consequence of any such claims or demands.
9. Benefits of Agreement.
Nothing in this Agreement, expressed or implied, shall give or
be construed to give any person, other than the parties hereto, any legal or
equitable right, remedy or claim under any covenant, condition or provision
herein contained, all the covenants, conditions and provisions contained in this
Agreement being for the sole benefit of the parties hereto.
10. Notices.
All notices required to be given hereunder shall be in writing
and shall be deemed given when received at the following addresses until such
time as the parties hereto designate a different or additional address or
addresses:
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To the Issuer:
▇▇▇▇▇▇▇ Escrow Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Escrow Agent:
First Trust National Association
One Illinois Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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11. Miscellaneous.
(a) This Agreement sets forth exclusively the duties of the
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 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.
14
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of this 15th day of May, 1997.
FIRST TRUST NATIONAL
ASSOCIATION,
as Escrow Agent,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ESCROW CORP.
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
EXHIBIT A
Form of Officer's Certificate
of
▇▇▇▇▇▇▇ Escrow Corp.
This Certificate is being delivered pursuant to Section 2 of
the Escrow Agreement, dated as of May 15, 1997 (the "Escrow Agreement"), between
▇▇▇▇▇▇▇ Escrow Corp. (the "Issuer") and First Trust National Association, as
Escrow Agent (the "Escrow Agent"). Capitalized terms which are used but not
defined herein shall have the respective meanings specified in the Escrow
Agreement.
The Issuer hereby certifies through the undersigned officer
that:
1. Promptly following the delivery of this Certificate, the
Issuer proposes to cause to be consummated the [▇▇▇▇▇▇▇ Holdings Notes
Redemption] [▇▇▇▇▇ Exchange] [Optional ▇▇▇▇▇ Exchange Offer] [▇▇▇▇▇ Purchase]
[Additional ▇▇▇▇▇ Purchase] [▇▇▇▇▇ Optional Redemption]. OR A [▇▇▇▇▇▇▇ Holdings
Notes Acceleration] [▇▇▇▇▇ Acceleration] has occurred pursuant to the [▇▇▇▇▇▇▇
Holdings Indenture] [▇▇▇▇▇ Indenture], and such acceleration has not been
rescinded.
2. Promptly following the delivery of this Certificate and the
release of $______ to the Issuer from the Escrowed Funds (such amount being
referred to herein as the "Released Funds") pursuant to the provisions of the
Escrow Agreement, the Issuer expects (subject to Section 2(k) of the Escrow
Agreement) to use the Released Funds to make a Capital Contribution to [▇▇▇▇▇▇▇
Holdings] [▇▇▇▇▇▇▇ Worldwide] to enable it to satisfy its payment obligations
with respect to the [▇▇▇▇▇▇▇ Holdings Notes Redemption] [▇▇▇▇▇▇▇ Holdings Notes
Acceleration] [▇▇▇▇▇ Exchange] [Optional ▇▇▇▇▇ Exchange Offer] [▇▇▇▇▇ Purchase]
[Additional ▇▇▇▇▇ Purchase] [▇▇▇▇▇ Optional Redemption] [▇▇▇▇▇ Acceleration].
3. All conditions (other than payment) to the [▇▇▇▇▇▇▇
Holdings Notes Redemption] [▇▇▇▇▇▇▇ Holdings
A-1
Notes Acceleration] [▇▇▇▇▇ Exchange] [Optional ▇▇▇▇▇ Exchange Offer] [▇▇▇▇▇
Purchase] [Additional ▇▇▇▇▇ Purchase] [▇▇▇▇▇ Optional Redemption] [▇▇▇▇▇
Acceleration] contained in the Indenture, [the ▇▇▇▇▇▇▇ Holdings Indenture] [the
▇▇▇▇▇ Indenture] [the Optional ▇▇▇▇▇ Exchange Offer] have been satisfied or
waived.
4. The amount of the Released Funds to be delivered to the
Issuer pursuant to a ▇▇▇▇▇ Release Event does not exceed the Pro Rata Release
Amount.
5. No Triggering Event has occurred.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ Escrow Corp., through the
undersigned officer, has signed this Certificate this day of , 199_.
▇▇▇▇▇▇▇ ESCROW CORP.
By:
------------------------
Name:
Title:
A-2
EXHIBIT B
Form of Officer's Certificate
of
▇▇▇▇▇▇▇ Escrow Corp.
This Certificate is being delivered pursuant to Section 2 of
the Escrow Agreement, dated as of May 15, 1997 (the "Escrow Agreement"), between
▇▇▇▇▇▇▇ Escrow Corp. (the "Issuer") and First Trust National Association, as
Escrow Agent (the "Escrow Agent"). Capitalized terms which are used but not
defined herein shall have the respective meanings specified in the Escrow
Agreement.
The Issuer hereby certifies through the undersigned officer
that:
1. The ▇▇▇▇▇▇▇ Holdings Notes Redemption was
consummated on ____, 1997.
2. The ▇▇▇▇▇ Retirement was consummated on
__________, 199_.
3. No Triggering Event has occurred.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ Escrow Corp., through the
undersigned officer, has signed this Certificate this day of , 199_.
▇▇▇▇▇▇▇ ESCROW CORP.
By:
--------------------------
Name:
Title:
B-1
EXHIBIT C
Form of Officer's Certificate
of
▇▇▇▇▇▇▇ Escrow Corp.
This Certificate is being delivered pursuant to Section 4 of
the Escrow Agreement, dated as of May 15, 1997 (the "Escrow Agreement"), between
▇▇▇▇▇▇▇ Escrow Corp. (the "Issuer") and First Trust National Association, as
Escrow Agent (the "Escrow Agent"). Capitalized terms which are used but not
defined herein shall have the respective meanings specified in the Escrow
Agreement.
The Issuer hereby certifies through the undersigned officer
that none of the Notes remains outstanding.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ Escrow Corp., through the
undersigned officer, has signed this Certificate this day of , 199_.
▇▇▇▇▇▇▇ ESCROW CORP.
By:
--------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇
▇-▇
