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EXHIBIT 1.2
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of _________ __, 1995, by and among
the 1818 Fund L.P. and its affiliates (collectively, the "Covered Noteholder"),
Equitable Securities Corporation (the "Placement Agent") and Citibank, N.A., a
national banking institution incorporated under the laws of the United States
of America (the "Escrow Agent").
WHEREAS, the Covered Noteholder proposes to sell $[30,000,000]
aggregate principal amount (the "Principal Amount") of the Company's 6.0%
Senior Subordinated Convertible Debentures due 2000 (the "Debentures"),
convertible into limited partnership units of the Company (the "Units"), for a
total of $______, all as described in the Company's Registration Statement on
Form S-3 (which, together with all amendments or supplements thereto is
referred to herein as the "Registration Statement").
WHEREAS, the Debentures are being offered to investors by the
Placement Agent on a best efforts, all or none, basis, pursuant to registration
under the Securities Act of 1933, as amended, and pursuant to registration or
exemptions from registration under state securities laws;
WHEREAS, the offering of the Debentures will terminate on
_________ __, 1995 (the "Closing Date") and, if subscriptions for the total
number of Debentures being offered pursuant to the Registration Statement have
not been received by the Covered Noteholder on or before the Closing Date, no
Debentures will be sold and all payments made by subscribers will be refunded
by the Escrow Agent with interest earned thereon, if any; and
WHEREAS, with respect to all subscription payments received
from subscribers, the Covered Noteholder proposes to establish an escrow
account with the Escrow Agent at the office of its Escrow Administration, 120
Wall Street, 13th Floor, New York, New York 10043.
NOW THEREFORE, it is agreed as follows:
1. Establishment of Escrow. The Escrow Agent hereby
agrees to receive and disburse the proceeds from the offering of the Debentures
and any interest earned thereon in accordance herewith.
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2. Deposit of Escrowed Property. The Placement Agent
shall from time to time cause the Subscribers to wire or deposit with the
Escrow Agent funds or checks of the subscribers delivered in payment for
Debentures (the "Escrowed Property"). Such Escrowed Property shall be wired to
or deposited with the Escrow Agent not later than 12:00 noon on the date
following the date on which it is received by the Placement Agent. Any checks
delivered to the Escrow Agent pursuant to the terms hereof shall be made
payable to the order of the Escrow Agent, for the account of the 1818 Fund,
L.P./National HealthCare, L.P. The Escrow Agent upon receipt of such checks
shall present such checks for payment to the drawee-bank under such checks.
Any checks not honored by the drawee-bank thereunder after the first
presentment for payment shall be returned to the Covered Noteholder in the same
manner notices are delivered pursuant to Section 6. Upon receipt of funds or
checks from the Placement Agent, the Escrow Agent shall credit such funds and
the amount of such checks to a non-interest-bearing account (the "Escrow
Account") held by the Escrow Agent. If following the credit of the amount of
any check to the Escrow Account such check is dishonored, the Escrow Agent, if
such dishonored check amount shall have been invested pursuant to Section 3,
shall liquidate to the extent of such dishonored check amount such investments
and debit the Escrow Account for the amount of such dishonored check plus, if
any, the amount of interest and other income earned with respect to any
investment of such dishonored check amount.
3. Investment of Escrowed Property. The Escrow Agent on
the second business day ("business day" defined for purposes of this Escrow
Agreement as any day which is not a Saturday, a Sunday or a day on which banks
or trust companies in the City and State of New York are authorized or
obligated by law, regulation or executive order to remain closed) succeeding
(unless such deposit is made in federal or other immediately available or "same
day" funds, in which case, on the business day next succeeding) the credit of
any subscription proceeds to the Escrow Account pursuant to Section 2 and until
release of such proceeds in accordance with the terms hereof, shall place such
proceeds in a Citibank Money Market Deposit Account, pursuant to Rule 15c2-4
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, in accordance with the terms set forth on
Exhibit I hereto (made a part of this Escrow Agreement as if herein set forth).
The Escrow Agent shall in no event be liable for any loss resulting from any
change in interest rates applicable to proceeds invested pursuant to this
Section. Interest on proceeds invested pursuant to this Section shall accrue
from the date of investment of such proceeds until the termination of such
investment pursuant to the terms hereof and shall be paid as set forth in
Section 5.
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4. List of Subscribers. The Placement Agent shall
furnish or cause to be furnished to the Escrow Agent, at the time of each
deposit of funds or checks pursuant to Section 2, a list, substantially in the
form of Exhibit B hereto, containing the name of, the address of, the number of
Debentures subscribed for by, the subscription amount delivered to the Escrow
Agent on behalf of, and the social security or taxpayer identification number,
if applicable, of, each subscriber whose funds are being deposited, and to
which is attached a completed W-9 form (or, in the case of any subscriber who
is not a United States citizen or resident, a W-8 form) for each listed
subscriber. The Escrow Agent shall notify the Placement Agent and the Covered
Noteholder of any discrepancy between the subscription amounts set forth on any
list delivered pursuant to this Section 4 and the subscription amounts received
by the Escrow Agent. The Escrow Agent is authorized to revise such list to
reflect the actual subscription amounts received and the release of any
subscription amounts pursuant to Section 5.
5. Withdrawal of Subscription Amounts. (a) If the
Escrow Agent shall receive a notice, substantially in the form of Exhibit C
hereto (an "Offering Termination Notice"), from the Covered Noteholder, the
Escrow Agent shall (i) promptly after receipt of such Offering Termination
Notice and the clearance of all checks received by the Escrow Agent as Escrowed
Property, liquidate any investments that shall have been made pursuant to
Section 3 and send to each subscriber listed on the list held by the Escrow
Agent pursuant to Section 4 whose total subscription amount shall not have been
released pursuant to paragraph (b) or (c) of this Section 5, in the manner set
forth in paragraph (d) of this Section 5, a check to the order of such
subscriber in the amount of the remaining subscription amount held by the
Escrow Agent as set forth on such list held by the Escrow Agent, and (ii)
promptly after the fourth business day of the month immediately following the
month in which the investments made pursuant to Section 3 were terminated
pursuant to this paragraph, send, in the manner set forth in paragraph (d) of
this Section 5, a check to the order of each such subscriber in the amount of
interest and other income earned and not yet paid with respect to any
investment of such subscriber's funds. The Escrow Agent shall notify the
Covered Noteholder and the Placement Agent of the distribution of such funds to
the subscribers.
(b) In the event that (i) the Debentures have
been subscribed for and funds in respect thereof shall have been deposited with
the Escrow Agent on or before the Final Closing Date and (ii) no Offering
Termination Notice shall have been delivered to the Escrow Agent, the and the
Placement Agent, from time to time may deliver to the Escrow Agent a joint
notice, substantially in the form of Exhibit D hereto (a "Closing Notice"),
designating the date on which Debentures are to be
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sold and delivered to the subscribers thereof (the "Closing Date"), which date
shall not be earlier than the clearance of any checks received by the Escrow
Agent as Escrowed Property, the proceeds of which are to be distributed on such
Closing Date, and identifying the subscribers and the number of Debentures to
be sold to each thereof on such Closing Date, not less than two (2) nor more
than seven (7) business days prior to such Closing Date. The Escrow Agent,
after receipt of such Closing Notice and the clearance of such checks:
(i) on or prior to the Closing Date
identified in such Closing Notice, shall liquidate any investments
that shall have been made pursuant to Section 3 to the extent of the
subscription amount to be distributed pursuant to the immediately
succeeding clause (ii);
(ii) on such Closing Date, pay to the Covered
Noteholder and the Placement Agent, in federal or other immediately
available funds and otherwise in the manner specified by the Covered
Noteholder in such Closing Notice, an amount equal to the aggregate of
the subscription amounts paid by the subscribers identified in such
Closing Notice for the Debentures to be sold on such Closing Date as
set forth on the list held by the Escrow Agent pursuant to Section 4;
and
(iii) promptly after the fourth business day of
the month immediately following the month in which the investments
made pursuant to Section 3 were terminated pursuant to such Closing
Notice, shall send, in the manner set forth in paragraph (d) of this
Section 5, a check to the order of each subscriber identified in such
Closing Notice in the amount of interest and other income earned and
not yet paid with respect to any investment of such subscriber's funds
distributed on such Closing Date. At the time of such transfer, the
Escrow Agent shall identify in writing to the Placement Agents the
amount of the interest earned for the account of each subscriber and
the date such subscription was received.
(c) If at any time and from time to time prior to
the release of any subscriber's total subscription amount pursuant to paragraph
(a) or (b) of this Section 5 from escrow, the Company shall deliver to the
Escrow Agent a notice, substantially in the form of Exhibit E hereto (a
"Subscription Termination Notice"), to the effect that any or all of the
subscriptions of such subscriber have been rejected by the Company (a "Rejected
Subscription"), the Escrow Agent (i) promptly after receipt of such
Subscription Termination Notice and, if such subscriber delivered a check in
payment of its Rejected Subscription, after the clearance of such check, shall
liquidate, to the extent of the sum of such subscriber's
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Rejected Subscription amount as set forth in the Subscription Termination
Notice, any investments that shall have been made pursuant to Section 3 and
send to such subscriber, in the manner set forth in paragraph (d) of this
Section 5, a check to the order of such subscriber in the amount of such
Rejected Subscription amount, and (ii) promptly after the fourth business day
of the month immediately following the month in which the investments made
pursuant to Section 3 were terminated pursuant to this paragraph, shall send to
such subscriber, in the manner set forth in paragraph (d) of this Section 5, a
check to the order of such subscriber in the amount of interest and other
income earned and not yet paid with respect to any investment of such
subscriber's Rejected Subscription amount. At the time of such transfer, the
Escrow Agent shall identify in writing to the Covered Noteholder and the
Placement Agent the amount of the interest earned for the account of each
subscriber and the date such subscription was received.
(d) On a date following the transfer of any
interest earned for the account of each subscriber pursuant to Section 5(a),
(b) or (c), but not later than January 1, 1996 the Escrow Agent shall provide
each subscriber with tax form 1099 setting forth the amount of such interest.
(e) For the purposes of this Section 5, any check
that the Escrow Agent shall be required to send to any subscriber shall be sent
to such subscriber by first class mail, postage prepaid, at such subscriber's
address furnished to the Escrow Agent pursuant to Section 4.
6. Notices. Any notice or other communication required
or permitted to be given hereunder shall be in writing and shall be (a)
delivered by hand or (b) sent by mail, registered or certified, with proper
postage prepaid, and addressed as follows:
if to the Placement Agent, to:
Equitable Securities Corporation
Nashville City Center
Suite 800
511 Union Street
Nashville, Tennessee 37219
Attention: Mr. R. Riley Sweat
with a copy to:
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004-2696
Attention: James R. Tanenbaum, Esq.
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if to the Escrow Agent, to:
Citibank, N.A.
Corporate Trust
Escrow Administration
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Mr. Bryan Gartenberg
if to the Covered Noteholder, to:
The 1818 Fund, L.P.
c/o Brown Brothers Harriman & Co.
59 Wall Street
New York, New York 10005
Attention: Mr. Walter Grist
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Mitchell Fishman, Esq.
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in the above-referenced manner. All such
notices and communications, if mailed, shall be effective when deposited in the
mails, except that notices and communications to the Escrow Agent and notices
of changes of address shall not be effective until received.
7. Concerning the Escrow Agent. To induce the Escrow
Agent to act hereunder, it is further agreed by the Placement Agents that:
(a) The Escrow Agent shall not be under any duty
to give the Escrowed Property held by it hereunder any greater degree of care
than it gives its own similar property and shall not be required to invest any
funds held hereunder except as directed in this Escrow Agreement. Uninvested
funds held hereunder shall not earn or accrue interest.
(b) This Escrow Agreement expressly sets forth
all the duties of the Escrow Agent with respect to any and all matters
pertinent hereto. No implied duties or obligations shall be read into this
Escrow Agreement against the Escrow Agent. The Escrow Agent shall not be bound
by the provisions of any agreement among the other parties hereto except this
Escrow Agreement.
(c) The Escrow Agent shall not be liable, except
for its own negligence or willful misconduct, and, except with
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respect to claims based upon such negligence or willful misconduct that are
successfully asserted against the Escrow Agent, the other parties hereto shall
jointly and severally indemnify and hold harmless the Escrow Agent (and any
successor Escrow Agent) from and against any and all losses, liabilities,
claims, actions, damages and expenses, including reasonable attorneys' fees and
disbursements, arising out of and in connection with this Escrow Agreement.
Without limiting the foregoing, the Escrow Agent shall in no event be liable in
connection with its investment or reinvestment of any cash held by it hereunder
in good faith, in accordance with the terms hereof, including without
limitation any liability for any delays (not resulting from gross negligence or
willful misconduct) in the investment or reinvestment of the Escrowed Property,
or any loss of interest incident to any such delays.
(d) The Escrow Agent shall be entitled to rely
upon any order, judgment, certification, demand, notice, instrument or other
writing delivered to it hereunder without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety or
validity of the service thereof. The Escrow Agent may act in reliance upon any
instrument or signature believed by it in good faith to be genuine and may
assume, if in good faith, 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.
(e) The Escrow Agent may act pursuant to the
advice of counsel with respect to any matter relating to this Escrow Agreement
and shall not be liable for any action taken or omitted in good faith and in
accordance with such advice.
(f) The Escrow Agent does not have any interest
in the Escrowed Property deposited hereunder but is serving as escrow holder
only. Any payments of income from the Escrow Account shall be subject to
withholding regulations then in force with respect to United States taxes. The
parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax
I.D., number certification, or non-resident alien certifications.
This paragraph (f) and paragraph (c) of this Section 7 shall
survive notwithstanding any termination of this Escrow Agreement or the
resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as
to the validity, value, genuineness or the collectibility of any security or
other documents or instrument held by or delivered to it.
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(h) The Escrow Agent shall not be called upon to
advise any party as to the wisdom in selling or retaining or taking or
refraining from any action with respect to any securities or other property
deposited hereunder.
(i) The Escrow Agent (and any successor escrow
agent) at any time may be discharged from its duties and obligations hereunder
by the delivery to it of notice of termination signed by the Placement Agent or
at any time may resign by giving written notice to such effect to the Placement
Agent. Upon any such termination or resignation, the Escrow Agent shall
deliver the Escrowed Property to any successor escrow agent jointly designated
by the other parties hereto in writing, or to any court of competent
jurisdiction if no such successor escrow agent is agreed upon, whereupon the
Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Escrow Agreement. The termination or
resignation of the Escrow Agent shall take effect on the earlier of (i) the
appointment of a successor (including a court of competent jurisdiction) or
(ii) the day that is 30 days after the date of delivery: (A) to the Escrow
Agent of the other parties' notice of termination or (B) to the other parties
hereto of the Escrow Agent's written notice of resignation. If at that time
the Escrow Agent has not received a designation of a successor escrow agent,
the Escrow Agent's sole responsibility after that time shall be to keep the
Escrowed Property safe until receipt of a designation of successor escrow agent
or a joint written disposition instruction by the other parties hereto or any
enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility
for the contents of any writing of any third party contemplated herein as a
means to resolve disputes and may rely without any liability upon the contents
thereof.
(k) In the event of any disagreement among or
between the other parties hereto and/or the subscribers of the Debentures
resulting in adverse claims or demands being made in connection with the
Escrowed Property, or in the event that the Escrow Agent in good faith is in
doubt as to what action it should take hereunder, the Escrow Agent shall be
entitled to retain the Escrowed Property until the Escrow Agent shall have
received (i) a final and non-appealable order of a court of competent
jurisdiction directing delivery of the Escrowed Property or (ii) a written
agreement executed by the other parties hereto and consented to by the
subscribers directing delivery of the Escrowed Property, in which event the
Escrow Agent shall disburse the Escrowed Property in accordance with such order
or agreement. Any court order referred to in (i) above shall be accompanied by
a legal opinion by counsel for the presenting party satisfactory to the Escrow
Agent to the
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effect that said court order is final and non-appealable. The Escrow Agent
shall act on such court order and legal opinion without further question.
(l) As consideration for its agreement to act as
Escrow Agent as herein described, the other parties hereto, jointly and
severally, agree to pay the Escrow Agent fees determined in accordance with the
terms set forth on Exhibit F hereto (made a part of this Escrow Agreement as if
herein set forth). In addition, the other parties hereto, jointly and
severally, agree to reimburse the Escrow Agent for all reasonable expenses,
disbursements and advances incurred or made by the Escrow Agent in performance
of its duties hereunder (including reasonable fees, expenses and disbursements
of its counsel).
(m) The other parties hereto irrevocably (i)
submit to the jurisdiction of any New York State or federal court sitting in
New York City in any action or proceeding arising out of or relating to this
Escrow Agreement, (ii) agree that all claims with respect to such action or
proceeding shall be heard and determined in such New York State or federal
court and (iii) waive, to the fullest extent possible, the defense of an
inconvenient forum. The other parties hereby consent to and grant any such
court jurisdiction over the persons of such parties and over the subject matter
of any such dispute and agree that delivery or mailing of process or other
papers in connection with any such action or proceeding in the manner provided
hereinabove, or in such other manner as may be permitted by law, shall be valid
and sufficient service thereof.
(n) No printed or other matter in any language
(including, without limitation, the Registration Statement, notices, reports
and promotional material) which mentions the Escrow Agent's name or the rights,
powers, or duties of the Escrow Agent shall be issued by the other parties
hereto or on such parties' behalf unless the Escrow Agent shall first have
given its specific written consent thereto. The Escrow Agent hereby consents
to the use of its name and the reference to the escrow arrangement in the
Registration Statement.
8. Miscellaneous. (a) This Escrow Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
respective successors and assigns, heirs, administrators and representatives,
and the subscribers of the Debentures and shall not be enforceable by or inure
to the benefit of any other third party except as provided in paragraph (i) of
Section 7 with respect to the termination of, or resignation by, the Escrow
Agent. No party may assign any of its rights or obligations under this Escrow
Agreement without the written consent of the other parties.
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(b) This Escrow Agreement shall be construed in
accordance with and governed by the internal law of the State of New York
(without reference to its rules as to conflicts of law).
(c) This Escrow Agreement may only be modified by
a writing signed by all of the parties hereto and consented to by the
subscribers of the Debentures adversely affected by such modifications. No
waiver hereunder shall be effective unless in a writing signed by the party to
be charged.
(d) This Escrow Agreement shall terminate upon
the payment pursuant to Section 5 of all amounts held in the Escrow Account.
(e) The section headings herein are for
convenience only and shall not affect the construction thereof. Unless
otherwise indicated, references to Sections are to Sections contained herein.
(f) This Escrow Agreement may be executed in one
or more counterparts but all such separate counterparts shall constitute but
one and the same instrument; provided that, although executed in counterparts,
the executed signature pages of each such counterpart may be affixed to a
single copy of this Agreement which shall constitute an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the day and year first above written.
EQUITABLE SECURITIES CORPORATION
By:
--------------------------------
Name: R. Riley Sweat
Title: Managing Director
Investment Banking Group
THE 1818 FUND, L.P.
By: BROWN BROTHERS HARRIMAN &
CO., GENERAL PARTNER
By:
--------------------------------
Name:
Title: General Partner
CITIBANK, N.A.
By:
--------------------------------
Name:
Title:
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EXHIBIT A
Citibank Insured Money Market Deposit Accounts
Deposits/Withdrawals may be made to the Citibank Money Market
Deposit Account ("MMDA") established under the Escrow Agreement to which this
Exhibit is attached only through the Escrow Account. All transaction and
balance reporting of the MMDA will be included as part of the Escrow Account
Statement. Activity in the MMDA will be reflected as the equivalent of dollars
on deposit in a Citibank Money Market Deposit Account. Deposits/Withdrawals to
the MMDA will be made only as permitted by the Escrow Agreement to which this
Exhibit is attached. The MMDA has certain regulatory restrictions as well as
some minimum requirements:
1. By regulation, Citibank, N.A. is required to reserve the
right to require seven days' prior notice of any withdrawals of funds from an
account; provided, however, that, if Citibank, N.A. elects to exercise its
right to require seven days' prior notice, it shall exercise such right as to
all such accounts established.
2. A daily balance of $10,000 must be maintained on deposit
in the MMDA. If the MMDA should fall below $10,000 on any day, Citibank, N.A.
will be authorized to transfer the remaining balance to the Escrow Account.
3. Rates will be determined by Citibank, N.A. and can be
determined by calling your custody account officer.
4. Balances up to $100,000 (total on deposit at Citibank,
N.A.) are FDIC-insured.
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EXHIBIT B
SUMMARY OF CASH RECEIVED
NEW PARTICIPANT DEPOSIT
Date:
----------------------
Deposit Date: List Number:
Investment Date: ----------------------
Batch Number: Page of
--- ----------------------
Approved By:
----------------------
JOB#:
-----------------------------
For Bank use only
TITLE:
- -----------------------------------------------
- ----------------------------------------------------------------------------------------------------
AMOUNT OF TAX ID NO./ FOR BANK
NAME DEPOSIT Securities ADDRESS SOC.SEC. NO. USE ONLY
- ----------------------------------------------------------------------------------------------------
TAX CODE
EXEMPT(Y/N)
W-9(YR) NRA
W-8(YR)
1008(87)
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Broker Misc. Misc. II Misc. III TAX CODE
EXEMPT(Y/N)
W-2(YR) NRS
W-8(YR)
1008(87)
- ----------------------------------------------------------------------------------------------------
Broker Misc. Misc. II Misc. III TAX CODE
EXEMPT(Y/N)
W-2(YR) NRS
W-8(YR)
1008(87)
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Broker Misc. Misc. II Misc. III TAX CODE
EXEMPT(Y/N)
W-2(YR) NRS
W-8(YR)
1000(87)
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Broker Misc. Misc. II Misc. III
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EXHIBIT C
[Form of Offering Termination Notice]
_________________ __, 1995
Citibank, N.A.
Corporate Trust
Escrow Administration
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Mr. Bryan Gartenberg
Senior Trust Officer
Dear Mr. Gartenberg:
Pursuant to Section 5(a) of the Escrow Agreement dated as of
_________ __, 1995 (the "Escrow Agreement") among Equitable Securities
Corporation (the "Placement Agent"), the 1818 Fund L.P. and its affiliates
(collectively, the "Covered Noteholder"), and you, the Covered Noteholder
hereby notifies you of the termination of the offering of the Debentures (as
that term is defined in the Escrow Agreement) and directs you to make payments
to subscribers as provided for in Section 5(a) of the Escrow Agreement.
Very truly yours,
THE 1818 FUND L.P.
By:
----------------
Name:
Title:
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EXHIBIT D
[Form of Closing Notice]
_________ __, 1995
Citibank, N.A.
Corporate Trust
Escrow Administration
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Mr. Bryan Gartenberg
Senior Trust Officer
Ladies and Gentlemen:
Pursuant to Section 5(b) of the Escrow Agreement dated as of _________
__, 1995, (the "Escrow Agreement") among Equitable Securities Corporation (the
"Placement Agent"), the 1818 Fund L.P. and its affiliates (collectively, the
"Covered Noteholder") and you, the Covered Noteholder hereby certifies that it
has received subscriptions for the Debentures (as that term is defined in the
Escrow Agreement) and the Covered Noteholder will sell and the Company will
deliver Debentures to the subscribers thereof at a closing to be held on
_________ __, 1995 (the "Closing Date"). The names of the subscribers
concerned, the number of Debentures subscribed for by each of such subscribers
and the related subscription amounts are set forth on Schedule I annexed
hereto.
Please accept these instructions as standing instructions for the
closing to be held on the Closing Date. The parties hereto certify that they
do not wish to have a call back regarding these instructions.
We hereby request that the aggregate subscription amount be paid to the
Placement Agents and us as follows:
1. To Equitable Securities Corporation, $_________;
2. To the Covered Noteholder, $_________;
and
3. To the Escrow Agent, $_________.
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This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Very truly yours,
EQUITABLE SECURITIES CORPORATION
By:
---------------------------
Name:
Title:
THE 1818 FUND, L.P.
By: BROWN BROTHERS HARRIMAN & CO.,
GENERAL PARTNER
By:
---------------------------
Name:
Title: General Partner
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SCHEDULE I
Name of Subscriber Principal Amount of Debentures Subscription Amount
- ------------------ ------------------------------ -------------------
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EXHIBIT E
[Form of Subscription Termination Notice]
Citibank, N.A.
Corporate Trust
Escrow Administration
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Mr. Bryan Gartenberg
Senior Trust Officer
Dear Mr. Gartenberg:
Pursuant to Section 5(c) of the Escrow Agreement dated as of
_________ __, 1995 (the "Escrow Agreement") among Equitable Securities
Corporation (the "Placement Agent"), the 1818 Fund, L.P. and its affiliates
(collectively, the "Covered Noteholder") and you, the Covered Noteholder hereby
notifies you that the following subscription(s) have been rejected:
Amount of Subscribed Amount of
Name of Subscriber(s) Securities Rejected Rejected Subscription
- --------------------- -------------------- ---------------------
$ $
Very truly yours,
THE 1818 FUND, L.P.
By:________________________________
Name:
Title:
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EXHIBIT F
A. A fee of $5,000 representing a minimum administration fee
shall be paid upon execution of the Escrow Agreement to which this Exhibit is
attached.
B. A fee equal to:
10 Basis Points or the first $5,000,000 of any part
thereof,
6 Basis Points on the next $5,000,000
3 Basis Points on the next $90,000,000
1/2 Basis Points on amount over $100,000,000 or Escrow
Property received by the Escrow Agent prior to the First Closing Date
and succeeding closing dates pursuant to the terms of the offering.
The initial fee paid at the time of execution will be deducted from
the Escrow Administration fee as calculated pursuant to the above
schedule.
C. A fee for record-keeping equal to the following:
(1) $4.00 for each check issued by the Escrow Agent
(2) $9.00 for each participant (Hard Copy input of
subscriber information and
(3) $2.00 for each 1099 form issued
(4) $5.00 for each interest calculation
(5) $20.00 for each cancellation, correction or
withdrawal of Escrowed Property made by the
Escrow Agent pursuant to Section 6(d) of the
Escrow Agreement to which this Exhibit is
attached shall be paid when billed by the
Escrow Agent.
Capitalized terms not otherwise defined shall have the meanings subscribed
thereto in the Escrow Agreement to which this Exhibit is attached.
F-1