the
Sellers and (iii) the Escrow Account is a "securities account" within the
meaning of Section 8-501 of the UCC.
2.3
In the event that the Escrow Agent has or subsequently obtains by
agreement, by operation of law or otherwise a security interest in the Escrow
Account or any security entitlement credited thereto, the Escrow Agent hereby
agrees that such security interest shall be subordinate to the security interest
of the Security Agent.
The financial assets and other items deposited to the
Escrow Account will not be subject to deduction, set-off, banker's lien, or any
other right in favor of any person other than the Security Agent (except as
provided for the benefit of the Buyer or the Escrow Agent under this Agreement).
2.4
THE ESCROW AGENT HEREBY REPRESENTS AND WARRANTS TO THE BUYER, THE
SECURITY AGENT AND THE SELLERS, THAT EXCEPT FOR THE CLAIMS AND INTEREST OF THE
SECURITY AGENT, BUYER AND THE SELLERS IN THE ESCROW ACCOUNT, THE ESCROW AGENT
DOES NOT KNOW OF ANY CLAIM TO, OR INTEREST IN, THE ESCROW ACCOUNT OR IN ANY
"FINANCIAL ASSET" (AS DEFINED IN SECTION 8.102(A) OF THE UCC) CREDITED THERETO.
IF ANY PERSON ASSERTS ANY LIEN, ENCUMBRANCE OR ADVERSE CLAIM (INCLUDING ANY
WRIT, GARNISHMENT, JUDGMENT, WARRANT OF ATTACHMENT, EXECUTION OR SIMILAR
PROCESS) AGAINST THE ESCROW ACCOUNT OR IN ANY FINANCIAL ASSET CARRIED THEREIN,
THE ESCROW AGENT WILL PROMPTLY NOTIFY THE BUYER, SECURITY AGENT AND THE SELLERS
THEREOF.
THE ESCROW AGENT HEREBY COVENANTS AND AGREES THAT IT WILL NOT (I)
ENTER INTO ANY AGREEMENT WITH THE SELLERS OR THE BUYER PURPORTING TO LIMIT OR
CONDITION THE OBLIGATION OF THE ESCROW AGENT TO COMPLY WITH ENTITLEMENT ORDERS
AS SET FORTH IN SECTION 2.2 HEREOF OR (II) ENTER INTO, ANY AGREEMENT WITH ANY
OTHER PERSON RELATING TO THE ESCROW ACCOUNT AND/OR ANY FINANCIAL ASSETS CREDITED
THERETO PURSUANT TO
4
WHICH IT HAS AGREED TO COMPLY WITH ENTITLEMENT ORDERS (AS DEFINED IN
SECTION 8-102(A)(8) OF THE UCC) OF SUCH OTHER PERSON.
2.5
SELLER AND SECURITY AGENT HEREBY AGREE THAT THIS IS A SECURITY
DOCUMENT (AS DEFINED IN THE INTERCREDITOR DEED, DATED DECEMBER 20, 2000, AMONG
PEEK HOLDING, THE OTHER COMPANIES NAMED THEREIN, THE OTHER FINANCIAL AND OTHER
INSTITUTIONS NAMED THEREIN AND THERMO POWER CORPORATION).
ARTICLE III
INVESTMENT OF ESCROW FUND
3.1
Any funds which become part of the Escrow Account shall be
invested as soon as reasonably practicable, including income earned on said
investment, in the Federal Treasury Obligations Fund ("Trust Shares").
3.2
The Escrow Agent shall not be responsible to Buyer, Sellers or
Security Agent or any other person or entity for any loss or liability arising
in respect of any directed investment in Section 3.1 except to the extent that
such loss or liability arose from the Escrow Agent's gross negligence or willful
misconduct.
ARTICLE IV
DISBURSEMENTS FROM THE ESCROW ACCOUNT
4.1
The Escrow Account shall secure the indemnification obligations of
the Sellers to Buyer, as set forth in Article VI of the Asset Purchase
Agreement.
In the event that Buyer