ESCROW AGREEMENT (General Indemnity Escrow)
ESCROW
AGREEMENT
(General
Indemnity Escrow)
ESCROW
AGREEMENT (“Agreement”),
dated
as of January 19, 2007, by and among (a) Fortress America Acquisition
Corporation, a Delaware corporation ("FAAC"); (b) VTC, L.L.C., a Maryland
limited liability company (“VTC”); (c) Vortech, LLC, a Maryland limited
liability company (“Vortech”); (d) Xxxxxx X. Xxxxxx (“Xxxxxx”) and Xxxxxx X.
Xxxxxxxxx (“Xxxxxxxxx” who together with Xxxxxx own or control all of the
outstanding membership interests of both VTC and Vortech (each a “Member” and
jointly the “Members”); (e) Xxxxxx X. Xxxxxx in his capacity as the Members’
Representative; and (f) SunTrust Bank, a Georgia banking corporation (the
“Escrow
Agent”).
RECITALS:
WHEREAS,
pursuant to that certain Second Amended and Restated Membership Interest
Purchase Agreement dated as of July 31, 2006, as amended by by an Amendment
To
The Second Amended and Restated Membership Interest Purchase Agreement dated
January 16, 2007 copies of which without schedules or exhibits are attached
hereto as Exhibit
1
(“Membership
Interest Purchase Agreement”),
that
are hereby incorporated by reference, FAAC will acquire all of the outstanding
membership interests of each VTC and Vortech;
WHEREAS,
pursuant to Section 2.6 of the Membership Interest Purchase Agreement, the
Members designated Xxxxxx X. Xxxxxx as their representative, agent and
attorney-in-fact for purposes of this Agreement and other various matters
described therein (the “Members’
Representative”);
WHEREAS,
as partial consideration for their respective membership interests in VTC and
Vortech, each of the Members has received from FAAC pursuant to the terms of
the
Membership Interest Purchase Agreement and Stock Acquistion Agreements, copies
of which (without schedules or exhibits) are attached as Exhibit
2
(jointly
the “Stock
Purchase Agreements”)
in the
aggregate 2,534,988 shares of FAAC common stock of which 2,461,728 shares are
hereby delivered by FAAC and the Members to the Escrow Agent (the “Escrow
Deposit”)
to
hold in escrow pursuant to ther terms of this Agreement;
WHEREAS,
the parties desire to specify and clarify their rights and responsibilities
with
respect to the Escrow Deposit; and
WHEREAS,
the Escrow Agent is willing to serve in such capacity, but only pursuant to
the
terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises contained herein, the parties
hereto agree as follows:
1. Definitions.
1.1. As
used
in this Agreement, the following terms shall have the meanings set forth
below:
1
“Agreed
Share Value”
has
the
meaning set forth in Section 5.3.
“Agreement”
means
this Escrow Agreement.
“Business
Day”
shall
mean any day other than a Saturday, Sunday, or any Federal or Commonwealth
of
Virginia holiday. If any period expires on a day that is not a Business Day
or
any event or condition is required by the terms of this Agreement to occur
or be
fulfilled on a day that is not a Business Day, such period shall expire or
such
event or condition shall occur or be fulfilled, as the case may be, on the
next
succeeding Business Day.
“Escrow
Account”
has
the
meaning set forth in Section 4.1.
“Escrow
Agent”
has
the
meaning set forth in the Preamble.
“Escrow
Property”
has
the
meaning set forth in Section 4.1.
“Escrow
Deposit”
has
the
meaning set forth in the Recitals.
"Final
Determination"
has the
meaning set forth in Section 5.1(b).
“FAAC”
has
the
meaning set forth in the Preamble.
"Indemnity
Claim"
has the
meaning set forth in Section 5.2.
"Indemnity
Claim Notice"
has the
meaning set forth in Section 5.2.
“Members”
has
the
meaning set forth in the Preamble.
“Members’
Representative”
has
the
meaning set forth in the Recitals.
“Membership
Interest Purchase Agreement”
has
the
meaning set forth in the Recitals.
1.2. Capitalized
terms used but not defined in this Agreement have the meanings ascribed to
such
terms in the Membership Interest Purchase Agreement.
2. Appointment
of Escrow Agent.
FAAC,
the Members, and the Members’ Representative hereby appoint the Escrow Agent to
act as an escrow agent as provided herein, and the Escrow Agent hereby accepts
such appointment.
2
3. Members’
Representative.
3.1. The
parties acknowledge that, pursuant to the Membership Interest Purchase
Agreement, the Members’ Representative is authorized to act as the agent and
attorney-in-fact on behalf of all of the Members in all matters necessary to
carry out the terms and conditions of this Agreement.
3.2. The
Members’ Representative represents and warrants to the Escrow Agent that he has
the irrevocable right, power and authority with respect to all of the Members
(a) to give and receive directions and notices hereunder, (b) to make all
determinations that may be required or that he deems appropriate under this
Agreement, and (c) to execute and deliver all documents that may be required
or
that he deems appropriate under this Agreement. The Escrow Agent may act upon
the directions, instructions and notices of the Members’ Representative named
above and thereafter upon the directions and instructions of the successor
Members’ Representative named in a writing executed by a majority-in-interest of
the Members (pursuant to the provisions of Section 2.6 of the Membership
Interest Purchase Agreement) filed with the Escrow Agent.
4. Delivery
of Escrow Deposit.
4.1. FAAC
acknowledges that it deposited the Escrow Deposit in an account (the
“Escrow
Account”)
with
the Escrow Agent. The FAAC common stock in the Escrow Account, together with
any
dividends (and any interest or other net income received from or earned thereon)
is hereinafter collectively referred to as the “Escrow
Property.”
4.2. If,
during the term of this Agreement, there is Escrow Property other than the
FAAC
common shares, the Escrow Agent will invest the Escrow Property (other than
the
FAAC common stock) as provided in Section 11.
5. Disbursement
of the Escrow Property.
The
Escrow Agent will hold the Escrow Property and, subject to the Escrow Agent’s
right in Section 9 to withhold disbursements when the Escrow Agent is uncertain
as to what action to take, make disbursements therefrom as follows.
5.1. Escrow
Agent shall disburse all or a portion of the Escrow Property on deposit in
the
Escrow Account to FAAC, the Members or both, as the case may be, upon receipt
of:
(a) one
or
more fully executed Payment Request Forms in substantially the form attached
hereto as Exhibit
3,
executed by FAAC and the Members' Representative on behalf of the Members,
and
otherwise pursuant to the terms hereof. Upon receipt of a Payment Request Form,
the shares and amounts specified therein shall be promptly delivered or paid
directly to the party or parties entitled to payment as specified in the Payment
Request Form; or
3
(b) a
copy of
a Final Determination (as defined below) establishing a party's right to the
Escrow Property. A "Final
Determination"
shall
mean (i) with respect to an Indemnity Claim (or any other dispute between the
Members’ Representative and FAAC with respect to whether either party is
entitled to some portion, or all of the Escrow Property), a final determination
stating that it is being provided under the procedures of Section 11.11 of
the
Membership Interest Purchase Agreement; or (ii) otherwise a final judgment
of an
arbitrator, arbitration panel or court of competent jurisdiction and shall
in
all cases be accompanied by a certificate of the presenting party to the effect
that such judgment is a final judgment of an arbitrator, arbitration panel
or
court of competent jurisdiction, as applicable, and indicating the party,
address, accounts or other information as necessary to process
payments.
5.2. If
FAAC
asserts in good faith a claim (an “Indemnity
Claim”)
against the Members pursuant to the Membership Interest Purchase Agreement,
FAAC
shall send written notice of such Indemnity Claim (an “Indemnity
Claim Notice”)
to the
Escrow Agent and to the Members’ Representative. Such Indemnity Claim Notice
shall set forth in reasonable detail the basis for such Indemnity Claim and
a
good faith, non-binding estimate of the amount of such Indemnity Claim. In
submitting such Indemnity Claim to the Escrow Agent, FAAC shall account for
any
applicable threshold, exclusion or cap provided for in the Membership Interest
Purchase Agreement. Whenever FAAC sends such an Indemnity Claim Notice, the
parties shall comply with the procedures set forth herein.
(a) If
the
Members’ Representative decides, in his sole and absolute discretion, to dispute
the Indemnity Claim described in the Indemnity Claim Notice, the Members’
Representative shall, on or before the twentieth (20th)
Business Day following the Escrow Agent’s receipt of such notice, send to the
Escrow Agent and FAAC a written objection to such Indemnity Claim.
(b) If
the
Escrow Agent receives from the Members’ Representative a written objection to
such Indemnity Claim on or before the twentieth (20th)
Business Day following the Escrow Agent’s receipt of the Indemnity Claim Notice
describing such Indemnity Claim, and if that Indemnity Claim cannot be settled
through negotiation within twenty (20) days of receipt of the written objection,
then the dispute shall be resolved in accordance with Section 11.11 of the
Membership Interest Purchase Agreement and Escrow Agent shall hold the funds
subject to such dispute until a Final Determination is delivered with respect
thereto.
(c) If
the
Escrow Agent does not receive from the Members’ Representative a written
objection to such Indemnity Claim Notice on or before the twentieth
(20th)
Business Day following the Escrow Agent’s receipt of the Indemnity Claim Notice
describing such Indemnity Claim, then the Escrow Agent shall make a disbursement
to FAAC from the Escrow Property in the amount of the Indemnity Claim described
in such Indemnity Claim Notice.
5.3. To
the
extent that a Payment Request Form, Final Determination, or Indemnity Claim
(made and not timely answered pursuant to Section 5.2(c) above) specifies a
dollar amount (rather than a share amount) payable thereunder or in satisfaction
thereof, the amount specified or claimed shall be satisfied by the delivery
from
the Escrow Property to FAAC or the Members’ Representative, as the case may be,
of certificates for FAAC common stock equal in value to the amount specified
or
claimed (with the FAAC common stock valued at Five and 46/100 Dollars ($5.46)
per share (the “Agreed
Share Value”)
4
6. Payments
from the Escrow Property.
6.1. The
Escrow Agent shall make no payments from the Escrow Property unless permitted
pursuant to Sections 5, 7, 9, 10 and 13.
6.2. Any
cash
amounts payable by the Escrow Agent under this Agreement shall be paid by bank
check or by wire transfer, as specified in the Payment Request Form or Final
Determination received by the Escrow Agent.
6.3. Any
amounts payable in FAAC common stock under this Agreement shall be payable
by
the delivery of stock certificates for FAAC common stock valued at the Agreed
Share Value. To the extent that the number of shares deliverable by the Escrow
Agent does not correspond with stock certificates then held by the Escrow Agent,
the Escrow Agent shall deliver to FAAC one or more share certificates evidencing
shares in excess of the number of FAAC common shares then deliverable with
instructions to FAAC (i) to retain and cancel a specified number of shares
(if
shares are deliverable to FAAC hereunder) or issue to the Members’
Representative, or to whomever the Members’ Representative directs FAAC (if
shares are deliverable to the Members’ Representative hereunder), a certificate
or certificates for FAAC common shares in the amount deliverable by the Escrow
Agent to FAAC or the Members’ Representative as applicable and (ii) to issue to
the Escrow Agent a certificate for the residual balance, if any, of those FAAC
common shares evidenced the share certificate(s) delivered by the Escrow Agent
to FAAC.
6.4. All
interest and other income, if any, received from or earned on the Escrow
Property net of distributions paid or to be paid pursuant to Section 7.3
(“Earnings”) shall be applied first to pay any Escrow Fees then due under
Section 13, with any remaining Earnings to become a part of the Escrow Property
and be paid in accordance with the other terms of this Agreement.
6.5. The
parties hereto (other than the Escrow Agent) each warrant to and agree with
the
Escrow Agent that, unless otherwise expressly set forth in this Agreement,
there
is no security interest in the Escrow Property or any part of the Escrow
Property; no financing statement under the Uniform Commercial Code of any
jurisdiction is on file in any jurisdiction claiming a security interest in
or
describing, whether specifically or generally, the Escrow Property or any part
of the Escrow Property. Notwithstanding anything to the contrary herein
provided, the Escrow Agent shall in no event be deemed to be a collateral agent
or agent for any pledge or purported pledge of property held under this
Agreement. The Escrow Agent makes no representation concerning whether or not
any security interest exists with respect to any property held under the terms
of this Agreement and the Escrow Agent shall have no duty or obligation with
respect to the creation, perfection or continuation of any such security
interest, it being understood that the duties of the Escrow Agent with respect
to any property held pursuant to this Agreement are limited and confined
exclusively to the duties and responsibilities expressly set forth herein.
This
Agreement shall not be deemed or construed to be a security agreement or to
grant a security interest in any property held in escrow hereunder.
5
7. Tax
Matters.
7.1. The
parties agree that the Escrow Property is intended to consist only of FAAC
common shares and that no taxable income is anticipated. Notwithstanding the
previous sentence, for tax reporting purposes in each calendar year (other
than
the calendar year in which this Agreement is terminated pursuant to Section
14
below), all interest or other income earned from the investment of the Escrow
Property together with all fees and expenses pursuant to Section 13 below (or
that may otherwise be taken into consideration for purposes of calculating
and
reporting taxes due on earnings with respect to the Escrow Account and Funds)
shall be allocable to FAAC and so reported to the Internal Revenue Service
and
any other applicable taxing authority, except to the extent that any law or
regulation should otherwise require, as provided in a written notice from FAAC
to the Escrow Agent. Notwithstanding anything to the contrary contained herein,
for the calendar year during which this Agreement is terminated pursuant to
Section 14 below, all income, fees and expenses shall be allocated pro rata
to
the persons receiving payments of the Escrow Property during that
year.
7.2. Each
of
the parties agrees to provide the Escrow Agent with a certified tax
identification number by signing and returning a Form W-9 (or Form W-8, in
the
case of non-U.S. persons) to the Escrow Agent within 30 days from the date
hereof. The parties understand that, in the event their tax identification
numbers are not certified to the Escrow Agent, the Internal Revenue Code may
require withholding of a portion of any interest or other income earned on
the
investment of the Escrow Property, in accordance with the Internal Revenue
Code,
as amended from time to time.
7.3. The
Escrow Agent shall distribute quarterly to FAAC amounts when and in the amounts
requested in writing in good faith by FAAC to cover the potential federal,
state
or local tax obligations of FAAC on account of the cumulative allocation to
FAAC
of taxable income attributable to the interest and other income earned on the
Escrow Property. Such distributions shall be requested and made with respect
to
each quarter as early as fifteen (15) days prior to the date that United States
taxpayers are required to make estimated federal tax payments with respect
to
such quarter. For purposes of the foregoing, such federal, state and local
tax
obligations of FAAC initially shall be assumed to equal an effective combined
federal and state income tax rate equal to forty-two percent (42%) (but in
no
event lower than the highest Federal marginal income tax rate plus seven percent
(7%)).
7.4. The
Escrow Agent shall report to the Internal Revenue Service, as of each calendar
year-end, all income earned from the Escrow Property, whether or not such income
has been distributed during such year, as and to the extent required by law;
and, the Escrow Agent shall prepare and file any tax returns required to be
filed with respect to the Escrow Account.
7.5. The
persons to whom income is allocable for each year shall pay all taxes payable
on
income earned from the investment of the Escrow Property, whether or not the
Escrow Agent distributed the income during any particular year.
6
8. Escrow
Agent’s Duties.
8.1. The
Escrow Agent’s duties are entirely ministerial and not discretionary, and the
Escrow Agent will be under no duty or obligation to give any notice, or to
do or
to omit the doing of any action with respect to the Escrow Property, except
to
give notice, make disbursements and invest the Escrow Property in accordance
with the terms of this Agreement.
8.2. The
Escrow Agent will neither be responsible for, nor chargeable with, knowledge
of
the terms and conditions of any other agreement, instrument or document among
the other parties hereto, in connection herewith, including the Membership
Interest Purchase Agreement, and will be required to act only pursuant to the
terms and provisions of this Agreement. This Agreement sets forth all matters
pertinent to the escrow contemplated hereunder, and no additional obligations
of
the Escrow Agent will be inferred from the terms of this Agreement, the
Membership Interest Purchase Agreement or any other agreement.
8.3. The
Escrow Agent will not be liable for any error in judgment or any act or steps
taken or permitted to be taken in good faith, or for any mistake of law or
fact,
or for anything it may do or refrain from doing in connection with this
Agreement, except for its own willful misconduct or gross negligence. As to
any
legal questions arising in connection with the administration of this Agreement,
the Escrow Agent may consult with and rely absolutely upon the opinions given
to
it by counsel (including internal counsel) and shall be free of liability for
acting in reliance on such opinions. In no event shall the Escrow Agent be
liable for incidental, indirect, special, consequential or punitive damages.
8.4. The
Escrow Agent will not be required in any way to determine the validity,
genuineness, authenticity or sufficiency, whether in form or substance, of
any
instrument, document, certificate, statement or notice referred to in this
Agreement or contemplated by this Agreement, or the identity or authority of
the
persons executing it, and it will be sufficient if any writing purporting to
be
such instrument, document, certificate, statement or notice is delivered to
the
Escrow Agent and purports to be correct in form and signed or otherwise executed
by the party or parties required to sign or execute it under this Agreement.
The
Escrow Agent reserves the right, but shall in no way be obligated, to call
upon
the parties, or any of them, for written instructions before taking any actions
hereunder.
8.5. During
the term of this Agreement, the Escrow Agent shall not exercise on its own
behalf any right of set-off against, or enforce any lien on, the Escrow
Property, except such right or lien as may arise in connection with this
Agreement.
8.6. The
parties to this Agreement agree to make modifications to this Section upon
the
reasonable request of the Escrow Agent.
8.7. In
the
event of a shareholder vote, the Escrow Agent shall have the right to exercise
all voting rights with respect to the FAAC common stock held by the Escrow
Agent
as part of the Escrow Property; provided, however, that the Escrow Agent shall
have no discretion as to voting the shares of FAAC common stock except in a
fashion that is in all respects proportional to the manner in which the FAAC
common stock not held as part of the Escrowed Property is voted (as certified
by
FAAC’s Secretary). FAAC, Xxxxxx, Xxxxxxxxx and the Members’ Representative each
hereby (i) instruct the Escrow Agent to vote all of the FAAC common shares
held
as Escrow Property in the manner described in this Section 8.7 and (ii) agree
that the Escrow Agent shall have no liability with respect to voting the FAAC
common stock held as Escrow Property in the manner described in this Section
8.7. This Section 8.7 shall constitute an irrevocable proxy, coupled with an
interest, with respect to any shares of FAAC common stock (or other FAAC
securities) that Escrow Agent holds pursuant to this Agreement.
7
9. Disputes.
9.1. It
is
understood and agreed that should any dispute arise with respect to the payment
and/or ownership or right of possession of the Escrow Property, or should the
Escrow Agent be uncertain as to what action to take with respect to the Escrow
Property, the Escrow Agent is authorized and directed to retain in its
possession, without liability to anyone, all or any part of the Escrow Property
until such dispute or uncertainty shall have been settled either by mutual
agreement by the parties concerned (as evidenced by a written agreement among
them) or by a Final Determination.
9.2. If
the
Escrow Agent becomes involved in litigation by reason of this Agreement, or
if
the Escrow Agent reasonably believes, in its sole discretion, that it may become
involved in litigation, the Escrow Agent is authorized to institute a xxxx
of
interpleader in a court in the Commonwealth of Virginia to determine the rights
of the parties and to deposit the Escrow Property with the court in accordance
with the Commonwealth of Virginia law. Upon deposit of the Escrow Property
with
the court, the Escrow Agent shall stand fully relieved and discharged of any
further duties as Escrow Agent. The filing of any such legal proceedings shall
not deprive the Escrow Agent of its compensation hereunder earned prior to
such
filing and discharge of the Escrow Agent of its duties hereunder.
9.3. If
a xxxx
of interpleader is instituted, or if the Escrow Agent is threatened with
litigation or becomes involved in litigation in any manner whichever on account
of this Agreement or the Escrow Property, FAAC and the Members, jointly and
severally, shall pay the Escrow Agent its reasonable attorneys’ fees and any
other disbursements, expenses, losses, costs and damages incurred by the Escrow
Agent in connection with or resulting from such threatened or actual litigation.
All costs and expenses of such dispute will be charged to the non-prevailing
party in such dispute, unless such non-prevailing party is a third party, in
which case the Escrow Agent’s costs and expenses will be charged to and paid out
of the Escrow Property, and to the extent the Escrow Property are insufficient,
will be charged equally to FAAC and the Members.
9.4. In
the
event that the Escrow Agent proposes to disburse to the Members any portion
of
the Escrow Property, the disbursement of which the Escrow Agent had previously
withheld pursuant to this Section, the Escrow Agent shall disburse such amount
to the Member’s Representative.
8
10. Indemnity.
FAAC
and the Members jointly and severally agree to hold the Escrow Agent harmless
and to indemnify the Escrow Agent against any loss, liability, expenses
(including reasonable attorney’s fees and expenses), claim, or demand arising
out of or in connection with the performance of its obligations in accordance
with the provisions of this Agreement, except for willful misconduct or gross
negligence of the Escrow Agent. Notwithstanding anything in this Agreement
to
the contrary, the Escrow Agent shall be entitled to set-off against the Escrow
Property and apply such set-off to payment of such fees and disbursements and
other liabilities and obligations hereunder. Upon the written request of the
Escrow Agent, FAAC and the Members jointly and severally agree to assume the
investigation and defense of any such claim, including the employment of counsel
acceptable to the Escrow Agent and the payment of all expenses related thereto
and, notwithstanding any such assumption, the Escrow Agent shall have the right,
and FAAC and the Members jointly and severally agree to pay the cost and expense
thereof, to employ separate counsel with respect to any such claim and
participate in the investigation and defense thereof in the event that the
Escrow Agent shall have been advised by counsel that there may be one or more
legal defenses available to the Escrow Agent which are different from or in
addition to those available to FAAC or the Members. FAAC and the Members agree
that all references in this Section to the Escrow Agent shall be deemed to
include references to its directors, officers, employees and agents. The
foregoing indemnities in this paragraph shall survive the resignation or removal
of the Escrow Agent or the termination of this Agreement.
11. Investment.
11.1. As
used
in this Section, “Eligible
Investments”
include
one or more of the following obligations or securities, but only to the extent
that such obligations or securities mature within thirty (30) calendar days
or
such longer time as the Members’ Representative and FAAC shall determine, such
longer maturities not to exceed eighteen (18) months from the Closing Date:
(a)
direct obligations of, or obligations fully guaranteed by, the United States
of
America or any agency thereof, and (b) money market funds investing primarily
in
the obligations or securities listed in clause (a) above or repurchase
agreements fully collateralized by direct obligations of the United States
of
America.
11.2. The
Escrow Agent will invest the Escrow Property in such Eligible Investments as
the
Members’ Representative and FAAC, from time to time, shall jointly instruct the
Escrow Agent in writing. Notwithstanding the foregoing, in no event shall the
FAAC common stock held as part of the Escrow Property be invested. Earnings
upon
Eligible Investments shall be deemed part of the Escrow Property, shall be
deposited in the Escrow Account and shall be disbursed in accordance with the
terms of this Agreement. Any loss or expense incurred from an Eligible
Investment shall be borne by the Escrow Property. The Escrow Agent shall have
no
responsibility or liability for any diminution which may result from any
investments or reinvestments made in accordance with this
Agreement.
11.3. The
parties acknowledge and agree that the Escrow Agent will not provide
supervision, recommendations or advice relative to either the investment of
the
Escrow Property or the purchase, sale, retention or other disposition of any
Eligible Investment.
11.4. The
Escrow Agent is hereby authorized to execute purchases and sales of Eligible
Investments through its own trading or capital markets operations. The Escrow
Agent shall send statements to FAAC and the Members’ Representative reflecting
activity for the Escrow Account for the preceding quarter within fifteen (15)
days after the last day of each calendar quarter. Although the parties
acknowledge that they may obtain a broker confirmation or written statement
containing comparable information at no additional cost, each party hereby
agrees that confirmations of Eligible Investments are not required to be issued
by the Escrow Agent for each period in which a statement is
provided.
9
12. Resignation.
12.1. The
Escrow Agent may resign upon thirty (30) calendar days’ prior written notice to
the Members’ Representative and FAAC, and, upon joint instructions from the
Members’ Representative and FAAC, will deliver the Escrow Property to any
designated substitute Escrow Agent selected by the Members’ Representative and
FAAC. If the Members’ Representative and FAAC fail to designate a substitute
Escrow Agent within 15 calendar days after receipt of such notice, the Escrow
Agent may, at its sole discretion, institute a xxxx of interpleader as
contemplated by Section 9 above for the purpose of having an appropriate court
designate a substitute Escrow Agent. The Escrow Agent shall have no
responsibility for the appointment of a successor Escrow Agent hereunder.
12.2. Any
company into which the Escrow Agent may be merged or converted or with which
it
may be consolidated, or any company resulting from any merger, conversion or
consolidation to which it shall be a party, or any company to which the Escrow
Agent may sell or transfer all or substantially all of its corporate trust
business shall be the successor to the Escrow Agent without the execution or
filing of any paper or the performance of any further act, notwithstanding
anything herein to the contrary.
13. Compensation.
FAAC
and Members agree that the fees and expenses of the Escrow Agent, including
any
investment fees and other investment-related charges, for services rendered,
including the basic fees set forth in Exhibit
4
attached
hereto, shall be paid out of the Earnings; provided,
however,
that if
the Earnings are less than the fees then due, then the balance of the fees
due
to the Escrow Agent shall be paid equally by the Members and FAAC. Upon any
withdrawal from the Escrow Property to pay such fees and expenses, the Escrow
Agent shall provide written notification of such withdrawal to FAAC and the
Members' Representative, detailing such fees and expenses. The Escrow Agent
shall have, and is hereby granted, a prior lien upon any property, cash, or
assets hereunder, with respect to its unpaid fees and nonreimbursed expenses,
superior to the interests of any other person.
14. Termination.
Upon
delivery of all amounts constituting the Escrow Property as provided in Sections
5 and 7 and the resolution of all disputes, if any, covered by Section 9, this
Agreement shall terminate except for the provisions of Section 9 (with respect
to payment of the Escrow Agent’s expenses), Section 10 and Section
13.
15. Notices.
15.1. All
necessary notices, demands and requests required or permitted to be given
hereunder shall be in writing and addressed as follows:
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If
to the Members:
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c/o
Xxxxxx X. Xxxxxx
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|
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Members’
Representative
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||
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00000
Xxxxxxx Xxxxxx
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||
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Xxxxxx,
Xxxxxxxx 00000
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Fax:
________________
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10
|
With
a copy to:
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Xxxxxxx
X. Xxxxxxx, Esquire
|
|
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Xxxxxxxxx
Xxxxxx & Xxxxxxx L.L.P.
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|
0
Xx. Xxxx Xxxxxx
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||
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Xxxxxxxxx,
Xxxxxxxx 00000-0000
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Fax:
(000) 000-0000
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If
to FAAC:
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||
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0000
Xxxxx Xxxxxxx Xxxxx
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||
|
Xxxxx
0000
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxxx X. Xxxxx, Chairman of the Board
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and
|
||
|
Xxxxx
X. Xxxxxxx
|
||
|
Squire,
Xxxxxxx & Xxxxxxx L.L.P.
|
||
|
0000
Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
|
||
|
Xxxxxx
Xxxxxx, XX 00000-0000
|
||
|
Fax:
(000) 000-0000
|
||
|
If
to the Escrow Agent:
|
SunTrust
Bank
|
|
|
000
Xxxx Xxxx Xxxxxx, 00xx
Xxxxx
|
||
|
Xxxxxxxx,
Xxxxxxxx 00000
|
||
|
Attn:
E. Xxxx Xxxxxxxx, Jr.
|
||
|
Fax:
(000) 000-0000
|
15.2. Notices
shall be delivered by a recognized courier service or by facsimile transmission
and shall be effective upon receipt, provided that notices shall be presumed
to
have been received:
(a) if
given
by courier service, on the second Business Day following delivery of the notice
to a recognized courier service for delivery on or before the second Business
Day following delivery to such service, delivery costs prepaid, addressed as
aforesaid; and
(b) if
given
by facsimile transmission, on the next Business Day, provided that the facsimile
transmission is confirmed by answer back, written evidence of electronic
confirmation of delivery, or oral or written acknowledgment of receipt thereof
by the addressee.
15.3. From
time
to time either party may designate a new address or facsimile number for the
purpose of notice hereunder by notice to the other party in accordance with
the
provisions of this Section 15.
11
15.4. Notwithstanding
anything to the contrary herein provided, the Escrow Agent shall not be deemed
to have received any notice prior to the Escrow Agent’s actual receipt thereof.
16. Choice
of Laws; Cumulative Rights.
This
Agreement shall be construed in accordance with and governed by the laws of
the
Commonwealth of Virginia without regard to the choice of law provisions thereof.
The rights and remedies provided to each party hereunder are cumulative and
will
be in addition to the rights and remedies otherwise available to such party
under this Agreement, any other agreement or applicable law.
17. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered will be deemed an original, and such counterparts
together will constitute an original.
18. Successors
and Assigns.
This
Agreement will bind and inure to the benefit of the parties and their respective
successors and permitted assigns. Except as provided in Section 12.2, this
Agreement may not be assigned by operation of law or otherwise without the
prior
written consent of each of the parties hereto.
19. Severability.
The
provisions of this Agreement will be deemed severable, and if any provision
or
part of this Agreement is held illegal, void or invalid under applicable law,
such provision or part may be changed to the extent reasonably necessary to
make
the provision or part, as so changed, legal, valid and binding. If any provision
of this Agreement is held illegal, void or invalid in its entirety, the
remaining provisions of this Agreement will not in any way be affected or
impaired but will remain binding in accordance with their terms.
20. Headings.
The
Section headings in this Agreement are for convenience of reference only and
will not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
21. Waiver.
No
failure on the part of any party to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any party in exercising
any power, right, privilege or remedy under this Agreement, shall operate as
a
waiver of such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude any other
or further exercise thereof or any other power, right, privilege or remedy.
No
party shall be deemed to have waived any claim arising out of this Agreement,
or
any power, right, privilege or remedy under this Agreement, unless the waiver
of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of such party; and
any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
22. Amendments.
This
Agreement may not be amended, modified, altered or supplemented other than
by
means of a written instrument duly executed and delivered on behalf of each
of
the parties hereto.
23. Parties
in Interest.
None of
the provisions of this Agreement is intended to provide any rights or remedies
to any Person other than the parties hereto and their respective successors
and
permitted assigns, if any.
12
24. Entire
Agreement.
This
Agreement sets forth the entire understanding of the parties hereto relating
to
the subject matter hereof and supersedes all prior agreements and understandings
among or between any of the parties relating to the subject matter
hereof.
25. Escrow
Agent Documentation.
In order
to maintain compliance with the Patriot Act, prior to the effective date of
this
Agreement, FAAC and the Members’ Representative shall provide to the Escrow
Agent a completed Form W-9, Certificate of Incumbency, and a copy of the
corporate document (i.e., Corporate Resolution, Articles of Incorporation,
Bylaws, Partnership Agreement, etc.) that would show proper authorization for
such parties to enter into this Agreement.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
|
a
Delaware corporation
|
|
|
By:
/s/ Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
|
|
Title:
Chairman
|
|
|
MEMBERS:
|
|
|
/s/
Xxxxxx X. Xxxxxx
|
|
|
Xxxxxx
X. Xxxxxx
|
|
|
/s/
Xxxxxx X. Xxxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
MEMBERS’
REPRESENTATIVE:
|
|
|
/s/
Xxxxxx X. Xxxxxx
|
|
|
Xxxxxx
X. Xxxxxx as the representative for those
|
|
|
Members
pursuant to Section 2.6 of the Membership
|
|
|
Interest
Purchase Agreement.
|
13
|
ESCROW
AGENT:
|
|
|
SUNTRUST
BANK,
|
|
|
a
Georgia banking corporation
|
|
|
By:
/s/ E. Xxxx Xxxxxxxx, Jr.
|
|
|
Name:
E. Xxxx Xxxxxxxx, Jr.
|
|
|
Title:
Trust Officer
|
14
Exhibit
1 to Escrow Agreement
Membership
Interest Purchase Agreement
15
Exhibit
2 to Escrow Agreement
Stock
Acquisition Agreements
16
Exhibit
3 to Escrow Agreement
Payment
Request Form
[Date]
SunTrust
Bank
000
X.
Xxxx Xx.
Xxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxxxx
|
Re:
|
Escrow
No. ____________ (“Escrow”)
|
Ladies
and Gentlemen:
The
undersigned hereby certify that:
(1) Demand
for payment as provided per the terms and conditions of that certain Escrow
Agreement dated _________________, 200_ is hereby made in the amount of
$____________ to _________ [and $_____________ to _______________]. [The demand
is in respect of Section 5.1 of the Escrow Agreement.]
(2) Please
direct payment by wire transfer[s] as follows:
$_____________
to
[Depository
Bank]
[Depository
Bank Address]
ABA
No.
_________________
Acct.
No.
_________________
For
Benefit of :_____________
[and,
$_____________ to
[Depository
Bank]
[Depository
Bank Address]
ABA
No.
_________________
Acct.
No.
_________________
For
Benefit of :_____________]
(3) With
respect to the drawing referred to in this Payment Request Form, the [aggregate]
amount demanded hereby does not exceed one hundred percent (100%) of the Escrow
valued as of the date hereof.
17
FORTRESS
INTERNATIONAL GROUP, INC.
By:_________________________________
Date:_________________
Name:
Title:
MEMBERS,
as represented by the
MEMBERS'
REPRESENTATIVE:
____________________________________
Date:_________________
[______________________]
18
Exhibit
4 to Escrow Agreement
Fee
Schedule
Fees
payable to SunTrust Bank for services rendered with respect to this Escrow
Agreement shall be as follows:
|
Legal
Fee
|
$
|
__________
|
|
Annual
Administration Fee
|
$
|
__________
|
This
fee
is priced with the understanding that the funds will be deposited in the STI
Classic US Treasury Money Market Fund.
The
annual administration fee is payable in advance at the time of closing and
will
be charged to the Escrow Property at such time and on each anniversary date.
The
fees shall be deemed earned in full upon receipt by the Escrow Agent, and no
portion shall be refundable for any reason, including without limitation,
termination of this Agreement.
The
parties agree that, in the event any controversy arises under or in connection
with this Agreement or the Escrow Property or the Escrow Agent is made a party
to or intervenes in any litigation pertaining to this Agreement or the Escrow
Property, to pay to the Escrow Agent reasonable compensation for its
extraordinary services and to reimburse the Escrow Agent for all costs and
expenses directly or indirectly incurred by reason of such controversy or
litigation.
19
