ESCROW AND PLEDGE AGREEMENT
This ESCROW AGREEMENT (this "Agreement"), dated as of June 6, 1997,
among The Chase Manhattan Bank, a banking corporation, as escrow agent (in such
capacity, the "Escrow Agent"), The Chase Manhattan Bank, a banking corporation,
as Trustee (in such capacity, the "Trustee") under the Indenture (as defined
herein), and Paging Network do Brasil, S.A., a sociedade anonima organized under
the laws of the Federative Republic of Brazil (the "Company").
R E C I T A L S :
A. Pursuant to the Indenture, dated as of June 1, 1997 (the
"Indenture"), between the Company and the Trustee, the Company is issuing
US$125,000,000 aggregate principal amount of its 13 1/2% Senior Notes due 2005,
Series A (the "Series A Securities") and authorizing the issuance of 13 1/2%
Senior Notes due 2005, Series B (the "Series B" Securities," and together with
the Series A Securities, the "Securities").
B. As security for its obligations under the Securities and the
Indenture, the Company hereby grants to the Trustee, for the benefit of the
Trustee, any predecessor Trustee under the Indenture and the holders of the
Securities, a security interest in and lien upon the Escrow Account (as defined
herein).
C. 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 Escrow Account and released from the security interest and
lien described above.
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A G R E E M E N T :
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. All capitalized terms used but not defined herein
shall have the meanings ascribed to them in the 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:
"Affiliate" of any specified person means any other person which,
directly or indirectly, controls, is controlled by or is under common control
with such specified person. For the purposes of this definition, "control" when
used with respect to any person means the power to direct the management and
policies of such person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise and the terms "affiliated,"
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applied" means that disbursed funds have been applied (i) to the
payment of interest on the Securities, (ii) pursuant to Section 3(c) or (iii)
pursuant to Section 6(b)(iii).
"Available Funds" means (A) the sum of (i) the Initial Escrow Amount
and (ii) interest earned or dividends paid on the funds in the Escrow Account
(including holdings of U.S. Government Securities), less (B) the aggregate
disbursements previously made pursuant to this Agreement.
"Collateral" shall have the meaning given in Section 6(a) hereof.
"Escrow Account" shall mean the escrow account established pursuant
to Section 2.
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"Escrow Account Statement" shall have the meaning given in Section
2(f).
"Initial Escrow Amount" shall mean US$45,555,756.25.
"Interest Payment Date" means December 6 and June 6 of each year,
commencing on December 6, 1997 until the Securities are paid in full.
"Issue Date" has the meaning set forth in the Indenture.
"Payment Notice and Disbursement Request" means a notice sent by the
Trustee to the Escrow Agent requesting a disbursement of funds from the Escrow
Account, in substantially the form of Exhibit A hereto. Each Payment Notice and
Disbursement Request shall be signed by an officer of the Trustee.
"U.S. Government Securities" means securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged.
2. Escrow Account; Escrow Agent.
(a) Appointment of Escrow Agent. The Company and the Trustee 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 Escrow Account. On the Issue Date, the Escrow
Agent shall establish an escrow account entitled the "Escrow Account pledged by
Paging Network do Brasil S.A. to The Chase Manhattan Bank, a banking
corporation, as Trustee" (the "Escrow Account") at its office located at 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. All funds accepted
by the Escrow Agent pursuant to this Agreement shall be held for the exclusive
benefit of the Trustee, any predecessor Trustee under the Indenture and holders
of the Securities, as secured parties hereunder (collectively, the
"Beneficiaries"). All such funds shall be held in the Escrow Account until
disbursed or paid in accordance with the terms hereof. The Escrow Account, the
funds held therein and any
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U.S. Government Securities held by the Escrow Agent shall be under the sole
dominion and control of the Escrow Agent for the benefit of the Beneficiaries.
On the Issue Date, the Company shall deliver the Initial Escrow Amount to the
Escrow Agent for deposit into the Escrow Account against the Escrow Agent's
written acknowledgment and receipt of the Initial Escrow Amount.
(c) Escrow Agent Compensation. The Company shall pay to the Escrow
Agent such compensation for services to be performed by it under this Agreement
as the Company and the Escrow Agent may agree in writing from time to time. The
Escrow Agent shall be paid any compensation owed to it, in its capacity as such,
directly by the Company and shall not disburse from the Escrow Account any such
amounts. The 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 Company
and shall not disburse from the Escrow Account any such amounts.
(d) Investment of Funds in Escrow Account. Funds deposited in the
Escrow Account shall be invested and reinvested only upon the following terms
and conditions:
(i) Acceptable Investments. All funds deposited or held in the
Escrow Account at any time shall be invested by the Escrow Agent in U.S.
Government Securities in accordance with the Initial Instructions annexed
hereto as Schedule A and thereafter, if necessary, the Company's written
instructions from time to time to the Escrow Agent; provided, however,
that the Company shall only designate investment of funds in U.S.
Government Securities maturing in an amount at least sufficient to and/or
generating interest income at least sufficient to, when added to the
balance of funds held in the Escrow Account, provide for the payment of
interest on the outstanding Secu-
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rities on each Interest Payment Date beginning on and including December
6, 1997 and through and including the Interest Payment Date on June 6,
2000; provided, further, however, that any such written instruction shall
specify the particular investment to be made, shall state that such
investment is authorized to be made hereby and in particular satisfies the
requirements of the preceding proviso and Section 2(d)(v), shall contain
the certification referred to in Section 2(d)(ii), if required, and shall
be executed by an Officer of the Company. All U.S. Government Securities
shall be assigned to and held in the possession of, or, in the case of
U.S. Government Securities maintained in book entry form with the Federal
Reserve Bank (i.e., TRADES), transferred to a book entry account in the
name of, the Escrow Agent, for the benefit of the Trustee, with such
guarantees as are customary, except that U.S. Government Securities
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 U.S. Government Securities held by
the Escrow Agent for its customers and segregated by separate recordation
in the books and records of the Escrow Agent of the security interest in
favor of the Trustee and confirmed in writing to the Trustee. The Company
shall execute and deliver to the Trustee a UCC-1 Financing Statement
covering all its rights in the Collateral and the proceeds thereof, and
the Escrow Agent shall cause such Financing Statement to be filed with the
Department of State of the State of New York as required by the Uniform
Commercial Code of the State of New York. The Escrow Agent shall not be
liable for losses on any investments made by it pursuant to and in
compliance with such instructions. In the absence of qualifying
instructions from the Company that meet the requirements of this Section
2(d)(i), the Escrow Agent shall have no obligation to invest funds held in
the Escrow Account.
(ii) Security Interest in Investments. No investment of funds in the
Escrow Account shall be made unless the Company has certified to the
Escrow Agent and the
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Trustee that, upon such investment, the Trustee will have a first priority
perfected security interest in the applicable investment. If a certificate
as to a class of investments has been provided to the Escrow Agent, a
certificate 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. On the Issue
Date, and on each thereafter until the date upon which the balance of the
Available Funds shall have been reduced to zero, each of the Trustee and
the Escrow Agent shall receive an Opinion of Counsel to the Company, 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")
and shall comply with Section 12.02 of the Indenture.
(iii) Interest and Dividends. All interest earned and dividends paid
on funds invested in U.S. Government Securities shall be deposited in the
Escrow Account as additional Collateral for the exclusive benefit of the
Beneficiaries and, if not required to be disbursed in accordance with the
terms hereof, shall be reinvested in accordance with the terms hereof at
the Company's written instruction.
(iv) Limitation on Escrow Agent's Responsibilities. The Escrow
Agent's sole responsibilities under this Section 2 shall be (A) to retain
possession of certificated U.S. Government Securities (except, however,
that the Escrow Agent may surrender possession to the issuer of any such
U.S. Government Security in New York for the purposes of effecting
assignment, crediting interest, or reinvesting such security or reducing
such security to cash) and to be the registered or designated owner of
U.S. Government Securities which are not certificated, (B) to follow the
Company's written instructions given in accordance with Section 2(d)(i),
(C) to invest and reinvest funds pursuant to this Section 2(d) and (D) to
use reasonable efforts to reduce to cash such U.S. Government Securities
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as may be required to fund any disbursement or payment in accordance with
Section 3. In connection with clause (A) above, the Escrow Agent will
maintain continuous possession in the State of New York of certificated
U.S. Government Securities and cash included in the Collateral and will
cause uncertificated U.S. Government Securities 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 the Trustee's 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 and subject to
the following sentence, the Escrow Agent shall not be required to reduce
to cash any U.S. Government Securities to fund any disbursement or payment
in accordance with Section 3 in the absence of written instructions signed
by an Officer of the Company specifying the particular investment to
liquidate. If no such written instructions are received, the Escrow Agent
may liquidate those U.S. Government Securities having the lowest interest
rate per annum or if none such exist, those having the nearest maturity.
(v) Manner of Investment. Funds deposited in the Escrow Account
shall initially be invested in accordance with the Initial Instructions
(attached hereto as Schedule A), which is in a manner such that there will
be sufficient funds available without any further investment by the
Company to cover all interest due on the outstanding Securities, as such
interest becomes due, for each Interest Payment Date occurring from the
Issue Date and ending on (and including) June 6, 2000, provided that such
investments shall have such maturities and/or interest payment dates such
that funds will be available with respect to each such Interest Payment
Date no later than the time the Escrow Agent is required to disburse such
funds to the Trustee pursuant to Section 3(a). The Escrow Agent shall
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have no responsibility for determining whether funds held in the Escrow
Account shall have been invested in such a manner so as to comply with the
requirements of this clause (v).
(e) Substitution of Escrow Agent. The Escrow Agent may resign by
giving no less than 20 Business Days prior written notice to the Company and the
Trustee. Such resignation shall take effect upon the later to occur of (i)
delivery of all funds and U.S. Government Securities maintained by the Escrow
Agent hereunder and copies of all books, records, plans and other documents in
the Escrow Agent's possession relating to such funds or U.S. Government
Securities or this Agreement to a successor escrow agent acceptable to the
Trustee (which approvals shall not be unreasonably withheld or delayed) and (ii)
the Company, the Trustee and such successor escrow agent entering into this
Agreement or any written successor agreement no less favorable to the interests
of the holders of the Securities and the Trustee 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 20
Business Days after notice of resignation is given to the Company, the Escrow
Agent may apply to a court of competent jurisdiction for the appointment of a
successor escrow agent.
(f) Escrow Account Statement. At least 30 days prior to each
Interest Payment Date, the Escrow Agent shall deliver to the Company and the
Trustee a statement setting forth with reasonable particularity the balance of
funds then in the Escrow Account and the manner in which such funds are invested
("Escrow Account Statement"). The parties hereto irrevocably instruct the Escrow
Agent that on the first date upon which the balance in the Escrow Account
(including the holdings of all U.S. Government Securities) is reduced to zero,
the Escrow Agent shall deliver to the Company and to the Trustee a notice that
the balance in the Escrow Account has been reduced to zero.
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3. Disbursements.
(a) Payment Notice and Disbursement Request; Disbursements. The
Trustee shall, at least five business days prior to an Interest Payment Date,
submit to the Escrow Agent a completed Payment Notice and Disbursement Request
substantially in the form of Exhibit A hereto.
The Escrow Agent's disbursement pursuant to any Payment Notice and
Disbursement Request shall be subject to the satisfaction of the applicable
conditions set forth in Section 3(b). Provided such Payment Notice and
Disbursement Request is not rejected by it, the Escrow Agent, as soon as
reasonably practicable on the Interest Payment Date, but in no event later than
12:00 Noon (New York City time) on the Interest Payment Date, shall disburse the
funds requested in such Payment Notice and Disbursement Request by wire or
book-entry transfer of immediately available funds to the account of the Trustee
for the benefit of the Beneficiaries. The Escrow Agent shall notify the Trustee
as soon as reasonably possible (but not later than two (2) business days from
the date of receipt of the Payment Notice and Disbursement Request) if any
Payment Notice and Disbursement Request is rejected and the reason(s) therefor.
In the event such rejection is based upon nonsatisfaction of the condition in
Section 3(b)(I) below, the Trustee shall thereupon resubmit the Payment Notice
and Disbursement Request with appropriate changes.
(b) Conditions Precedent to Disbursement. The Escrow Agent's payment
of any disbursement shall be made only if: (I) the Trustee shall have submitted,
in accordance with the provisions of Section 3(a) herein, a completed Payment
Notice and Disbursement Request to the Escrow Agent substantially in the form of
Exhibit A with blanks appropriately filled in and (II) the Escrow Agent shall
not have received any notice from the Trustee that as a result of an Event of
Default the indebtedness represented by the Securities has been accelerated and
has become due and payable (in which event the Escrow Agent shall apply all
Available Funds as required by Section 6(b)(iii)).
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(c) Retired Securities. In the event a portion of the Securities has
been retired by the Company and submitted to the Trustee for cancellation and
there is no Default or Event of Default under the Indenture, funds representing
the lesser of (A) any funds remaining in the Escrow Account that are in excess
of the amount sufficient to pay interest through and including June 6, 2000 on
the Securities not so retired and (B) the interest payments which have not
previously been made on such retired Securities for each Interest Payment Date
through the Interest Payment Date to occur on June 6, 2000 shall, upon the
written request of the Company to the Escrow Agent and the Trustee, be paid to
the Company upon compliance with the release of collateral provisions of the TIA
and upon receipt by the Escrow Agent of a notice relating thereto from the
Trustee.
4. Escrow Agent.
(a) 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 Securities from time to time the
performance of the Company; (ii) the Escrow Agent shall have no responsibility
to the Company or the holders of the Securities or the Trustee from time to time
as a consequence of performance or non-performance by the Escrow Agent
hereunder, except for any gross negligence or willful misconduct of the Escrow
Agent; (iii) the Company shall remain solely responsible for all aspects of the
Company's business and conduct; and (iv) the Escrow Agent is not obligated to
supervise, inspect or inform the 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 U.S.
Government Securities held by it
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hereunder, including without limitation any liability for any delay not
resulting from gross negligence or willful misconduct in such investment,
reinvestment or liquidation, or for any loss of principal or income incident to
any such delay.
The Escrow Agent shall be entitled to rely upon any judicial order
or judgment, upon any written opinion of counsel or upon any certification,
instruction, notice, or other writing delivered to it by the Trustee in
compliance with the provisions of this Agreement or by the Company, to the
extent not inconsistent with any instruction of the Trustee, in either case,
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.
At any time the Escrow Agent may request in writing an instruction
in writing from the Company, and may at its own option include in such request
the course of action it proposes to take and the date on which it proposes to
act, regarding any matter arising in connection with its duties and obligations
hereunder; provided, however, that the Escrow Agent shall state in such request
that it believes in good faith that such proposed course of action is consistent
with another identified provision of this Agreement. The Escrow Agent shall not
be liable to the Company for acting without the Company's consent in accordance
with such a proposal on or after the date specified therein if (i) the specified
date is at least two business days after the Company receives the Escrow Agent's
request for instructions and its proposed course of action, and (ii) prior to so
acting, the Escrow Agent has not received the written instructions requested
from the Company.
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
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paragraph of this Section 4(a)) 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 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 or
non-performance, or in connection with its acceptance or appointment as Escrow
Agent, under this
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Agreement, except to the extent that such liability, expense or claim is solely
and directly attributable to the gross negligence or willful misconduct of any
of the foregoing persons. The provisions of this Section 5 shall survive any
termination, satisfaction or discharge of this Agreement as well as the
resignation or removal of the Escrow Agent.
6. Grant of Security Interest; Instructions to Escrow Agent.
(a) The Company hereby irrevocably grants a first priority security
interest in and lien on, and pledges, assigns and sets over to the Trustee for
the ratable benefit of the Beneficiaries, all of the Company's right, title and
interest in the Escrow Account, and all property now or hereafter placed or
deposited in, or delivered to the Escrow Agent for placement or deposit in, the
Escrow Account, including, without limitation, all funds held therein, all U.S.
Government Securities 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 Company under this Agreement (collectively, the "Collateral"), in
order to secure all obligations and indebtedness of the Company under the
Indenture, the Securities and any other obligation, now or hereafter arising, of
every kind and nature, owed by the Company under the Indenture to the holders of
the Securities or to the Trustee or any predecessor Trustee. The Escrow Agent
hereby acknowledges the Trustee's security interest and lien as set forth above.
The Company shall take all actions necessary on its part to insure the
continuance of a first priority security interest in the Collateral in favor of
the Trustee in order to secure all such obligations and indebtedness.
(b) The Company and the Trustee hereby irrevocably instruct the
Escrow Agent to, and the Escrow Agent shall: (i) (A) maintain sole dominion and
control over funds and U.S. Government Securities in the Escrow Account for the
benefit of the Trustee to the extent specifically required herein, (B) maintain,
or cause its agent within the State of New York to maintain, possession in New
York of all certificated U.S. Government Securities purchased hereunder that are
physically pos-
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sessed by the Escrow Agent in order for the Trustee to enjoy a continuous
perfected first priority security interest therein under the law of the State of
New York (the Company hereby agreeing that in the event any certificated U.S.
Government Securities are in the possession of the Company or a third party, the
Company shall use its best efforts to deliver all such certificates to the
Escrow Agent), (C) take all steps specified by the Company pursuant to paragraph
(a) of this Section 6 to cause the Trustee to enjoy a continuous perfected first
priority security interest under any applicable Federal and State of New York
law in all U.S. Government Securities purchased hereunder that are not
certificated and (D) maintain the Collateral free and clear of all liens,
security interests, safekeeping or other charges, demands and claims against the
Escrow Agent of any nature now or hereafter existing in favor of anyone other
than the Trustee; (ii) promptly notify the Trustee if a responsible officer of
the Escrow Agent receives written notice that any Person other than the Trustee
has a lien or security interest upon any portion of the Collateral; and (iii) in
addition to disbursing amounts held in escrow pursuant to any Payment Notice and
Disbursement Requests given to it by the Trustee pursuant to Section 3, upon
receipt of written notice from the Trustee of the acceleration of the maturity
of the Securities, and direction from the Trustee to disburse all Available
Funds to the Trustee, as promptly as practicable, after following, if it so
chooses, the procedures set forth in the fourth paragraph of Section 4(a),
disburse all funds held in the Escrow Account to the Trustee and transfer title
to all U.S. Government Securities held by the Escrow Agent hereunder to the
Trustee. The lien and security interest provided for by this Section 6 shall
automatically terminate and cease as to, and shall not extend or apply to, and
the Trustee shall have no security interest in, any funds disbursed by the
Escrow Agent to the Company pursuant to this Agreement to the extent not
inconsistent with the terms hereof. Notwithstanding any other provision
contained in this Agreement, the Escrow Agent shall act solely as the Trustee's
agent for purposes of holding and perfecting the Trustee's security interest in
the Collateral in connection with its duties under this Section 6 or any other
duties herein relating to the Escrow Account or any funds or
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U.S. Government Securities held thereunder. The Escrow Agent shall not have any
right to receive compensation from the Trustee and shall have no authority to
obligate the Trustee or to compromise or pledge its security interest hereunder.
Accordingly, the Escrow Agent is hereby directed to cooperate with the Trustee
in the exercise of its rights in the Collateral provided for herein.
(c) Any money and U.S. Government Securities collected by the
Trustee pursuant to Section 6(b)(iii) shall be applied as provided in Section
5.06 of the Indenture. Any surplus of such cash or cash proceeds held by the
Trustee and remaining after indefeasible payment in full of all the obligations
under the Indenture shall be paid over to the Company or to whomsoever may be
lawfully entitled to receive such surplus or as a court of competent
jurisdiction may direct.
(d) Upon demand, the Company will execute and deliver to the Trustee
such instruments and documents as the Trustee may deem necessary or advisable to
confirm or perfect the rights of the Trustee under this Agreement and the
Trustee's interest in the Collateral. The Trustee 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 Company hereby appoints the Trustee as its attorney-in-fact
with full power of substitution to do any act which the Company is obligated
hereto to do, and the Trustee may exercise such rights as the Company might
exercise with respect to the Collateral and take any action in the Company's
name to protect the Trustee's security interest hereunder. In addition to the
rights provided under Section 6(b)(iii) hereof, upon an Event of Default as
defined in the Indenture and for so long as such Event of Default continues, the
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 UCC or other applicable law, and the
Trustee may also upon obtaining possession of the Collateral as set forth
herein, without notice to the Company except as specified below, sell the
Collat-
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eral 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. The 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 Company agrees that, to
the extent notice of sale shall be required by law, at least ten (10) days'
notice to the 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 Escrow Account
(including U.S. Government Securities), unless sooner terminated by agreement of
the parties hereto (in accordance with the terms hereof and not in violation of
the Indenture; provided, that the Trustee may not agree to terminate unless it
has received the consent of 100% of the holders of all of the Securities
outstanding); provided, however, that the obligations of the Company under
Section 2(c) and Section 5 (and any existing claims thereunder) shall survive
termination of this Agreement and the resignation of the Escrow Agent; provided,
further, however, that until such tenth day, the 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
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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 binding upon the parties and
their successors and permitted assigns.
(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 Beneficiaries (including holders of the
Securities) and their assigns or successors in interest 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 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 Nine of the Indenture and further by a writing signed by
a duly authorized representative of each party hereto.
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(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 when actually received,
including: (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 Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Delivery Instructions:
Chase NYC/CUST/021000021
Customer Account Number: C24586
Customer Account Title: Paging Network do Brasil
To Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To the Company:
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Paging Network do Brasil X.X.
Xxx Xxxxxxxxx Xxxxx, 1.711-1(degrees) andar
04717-910 Birmann
12 Chacara Xxxxx Xxxxxxx
Sao Paulo, Brazil
Attention: Xxxxxx Xxxxxx
Telecopy: 000-00-000-0000
Telephone: 000-00-000-0000
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. 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 laws, except to the extent United
States federal law is applicable to the perfection and priority of security
interests in U.S. Government Securities. 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 Company hereby submits to the personal jurisdiction of
such courts, hereby waives personal service of process upon it and consents that
any such service of process may be made by certified or registered mail,
return-receipt requested, directed to the Company at its address last specified
for notices hereunder, and service so made shall be deemed completed five (5)
days after the same shall have been so mailed, and hereby waives the right to a
trial by jury in any action or proceeding with the Escrow Agent. All
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actions and proceedings brought by the 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.
(k) Representations and Warranties. (i) The 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 Company. The execution, delivery and performance of this
Agreement by the Company does not violate any applicable law or regulation to
which the Company is subject and does not require the consent of any
governmental or other regulatory body to which the Company is subject, except
for such consents and approvals as have been obtained and are in full force and
effect.
(ii) Each of the Escrow Agent and the Trustee 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.
(l) Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreemeent or any amendment or
supplement hereto, the Company, (i) acknowledges that it has, by separate
written instrument, designated and appointed CT Corporation System, currently
located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent upon
which process may be served in any suit, action or proceeding with respect to,
arising out of, or relating to, the Securities, this Agreement or the Indenture
that may be instituted in any Federal or state court in the State of New York,
The City of New York, the Borough of Manhattan, or brought under Federal or
state securities laws or brought by the Trustee (whether in its individual
capacity or in its capacity as Trustee hereunder), and acknowledges that CT
Corporation System has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
agrees that service of process upon CT Corporation System shall be deemed in
every respect effective service of process upon the Company in any such suit,
action or proceeding. The Company further agrees to take any and all ac-
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tion, including the execution and filing of any and all such documents and
instruments as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as this Agreement shall
be in full force and effect; provided that the Company may and shall (to the
extent CT Corporation System ceases to be able to be served on the basis
contemplated herein), by written notice to the Trustee, designate such
additional or alternative agents for service of process under this Section
(8)(l) that (i) maintains an office located in the Borough of Manhattan, The
City of New York in the State of New York, (ii) are either (x) counsel for the
Company or (y) a corporate service company which acts as agent for service of
process for other persons in the ordinary course of its business and (iii)
agrees to act as agent for service of process in accordance with this Section
(8)(l). Such notice shall identify the name of such agent for process and the
address of such agent for process in the Borough of Manhattan, The City of New
York, State of New York. Upon the request of any Holder, the Trustee shall
deliver such information to such Holder. Notwithstanding the foregoing, there
shall, at all times, be at least one agent for service of process for the
Company appointed and acting in accordance with this Section (8)(l).
To the extent that the 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, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Agreement, the Indenture and the Securities, to the extent permitted
by law.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Escrow Agreement as of the day first above written.
ESCROW AGENT: THE CHASE MANHATTAN BANK, A
BANKING CORPORATION,
as Escrow Agent
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
TRUSTEE: THE CHASE MANHATTAN BANK, A
BANKING CORPORATION,
as Trustee
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
COMPANY: PAGING NETWORK DO BRASIL S.A.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
EXHIBIT A
Form of Payment Notice and Disbursement Request
[Letterhead of the Trustee]
[Date]
_______________________
_______________________
_______________________
Attention: Corporate Trust Department
Re: Disbursement Request No. ____
[indicate whether revised]
Ladies and Gentlemen:
We refer to the Escrow Agreement, dated as of June 6, 1997 (the
"Escrow Agreement") among you (the "Escrow Agent"), the undersigned as Trustee,
and PAGING NETWORK DO BRASIL S.A., a sociedade anonima organized under the laws
of the Federative Republic of Brazil (the "Company"). Capitalized terms used
herein shall have the meaning given in the Escrow Agreement.
This letter constitutes a Payment Notice and Disbursement Request
under the Escrow Agreement.
[choose one of the following, as applicable]
[The undersigned hereby notifies you that a scheduled interest
payment in the amount of $__________ is due and pay-
able on ____________, ____ and requests a disbursement of funds contained in the
Escrow Account in such amount to the Trustee.]
[The undersigned hereby notifies you that Securities equalling
$__________ in aggregate principal amount have been retired and authorizes you
to release $__________ of funds in the Escrow Account to the Company (to an
account designated by the Company in writing), which amount represents the
amount permitted to be released in accordance with Section 3(c) of the Escrow
Agreement.]
[The undersigned hereby notifies you that there has been an
acceleration of the maturity of the Securities. Accordingly, you are hereby
requested to disburse all remaining funds contained in the Escrow Account to the
Trustee such that the balance in the Escrow Account is reduced to zero.]
In connection with the requested disbursement, the undersigned
hereby notifies you that:
1. [The Securities have not, as a result of an Event of Default (as
defined in the Indenture), been accelerated and become due and payable.]
2. All prior disbursements from the Escrow Account have been
Applied.
3. [add wire instructions]
The Escrow Agent is entitled to rely on the foregoing in disbursing
funds relating to this Payment Notice and Disbursement Request.
, as Trustee
By: _____________________________________
Name:
Title:
Schedule A
[initial investment instructions]
