EXHIBIT 2
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Agreement") dated as of September 26, 2005
among WLR RECOVERY FUND II, L.P., a Delaware limited partnership ("Fund II"),
WLR RECOVERY FUND III, L.P., a Delaware limited partnership (together with Fund
II, the "Purchaser"), with an address of 000 Xxxxxxxxx Xxxxxx, 00xx xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, XXXXXX CORPORATION, a Nevada corporation (the "Selling
Stockholder"), with an address of 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxx 00000 and Citibank N.A., a national banking association chartered under the
laws of the United States of America, as escrow agent (the "Escrow Agent").
Capitalized terms used but not defined herein have the meanings assigned to them
in the Purchase Agreement;
WHEREAS, Purchaser and the Selling Stockholder have entered into a Stock
Purchase Agreement (the "Purchase Agreement"), dated as of September 23, 2005,
as amended, pursuant to which the Purchaser has agreed to purchase from the
Selling Stockholder and the Selling Stockholder has agreed to sell to the
Purchaser 4,162,394 shares (the "Purchased Shares") of common stock, par value
$.01 per share of Safety Components International, Inc. ("Safety Components") on
the terms and conditions therein; and
WHEREAS, in accordance with the provisions of Section 1(d) of the Purchase
Agreement, (a) Purchaser has agreed to deliver to the Escrow Agent the Purchase
Price payable under the Purchase Agreement, and (b) the Selling Stockholder has
agreed to deliver to the Escrow Agent the certificates representing the
Purchased Shares and a stock power duly endorsed in blank, in each case to be
held by the Escrow Agent in accordance with the terms and provisions of this
Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. ESCROW AGENT. The Purchaser and the Selling Stockholder hereby
appoint and designate Citibank N.A., as escrow agent ("Escrow Agent") for
the purposes set forth in this Agreement. (All references to the Escrow
Agent, as that term is used in this Agreement, shall refer to the Escrow
Agent solely in its capacity as an escrow agent under the terms of this
Agreement, and not to it in any other capacity whatsoever whether as
individual, agent, attorney, fiduciary, trustee or otherwise.) The Escrow
Agent hereby accepts such appointment, and agrees to hold, invest,
disburse and release all assets and property deposited with it hereunder
(the "Escrowed Property") in accordance with the terms hereof.
2. DEPOSITS.
(a) Purchase Price. Within one business day following the
execution of this Agreement (or such later date as the parties may
agree in writing), the Purchaser shall deliver to the Escrow Agent
by wire transfer of immediately available funds an amount of
U.S.$51,197,446 to an escrow account designated by the Escrow Agent
(the "Escrowed Purchase Price").
(b) Shares and Distributions. Within one business day
following the execution of this Agreement, the Selling Stockholder
shall deliver to the Escrow Agent that certain share certificate of
Safety Components number SCI0177 registered in the name of Selling
Stockholder dated November 18, 2003 (the "Certificate") which
represents the Purchased Shares, together with the relating stock
powers duly endorsed in blank (the "Escrowed Shares"). If delivery
of the Escrowed Shares shall be made other than by hand, Selling
Stockholder shall ensure that the Certificate and the relating stock
powers are delivered to Escrow Agent under separate cover. If during
the term of this Escrow Agreement, a dividend or other distribution
shall be made or issued upon or on account of any of the Escrowed
Shares (excluding any payment made under a Tax Sharing and Indemnity
Agreement between Safety Components and the Selling Stockholder, an
"Escrowed Distribution"), Selling Stockholder shall, promptly upon
receipt thereof and in any event with 3 business days deliver and
surrender such Escrowed Distribution to the Escrow Agent to be
retained by the Escrow Agent with the Escrowed Shares and eventually
distributed therewith in accordance with the terms hereof. As long
as the Escrowed Shares are held in escrow in accordance with this
Agreement, the Selling Stockholder shall have the right to vote all
Escrowed Shares and other rights as a stockholder with respect
thereto.
(c) Deposit of the Escrowed Purchase Price and the Escrowed
Shares. The Escrow Agent shall have no duty or responsibility to
solicit deposit of the Escrowed Purchase Price or the Escrowed
Shares to the escrow account as required by this Agreement.
(d) Investment of Purchase Price. The Escrow Agent shall invest
and reinvest all funds received under this Agreement as directed in
a written instruction (an "Investment Direction Letter") from the
Purchaser in one of the following:
(i) the Citibank Institutional Market Deposit Account
("MDA"), an FDIC insured money market deposit account of
Citibank, N.A.,
(ii) United States Treasury Bills with a maturity of 30
days, or
(iii) as otherwise directed jointly in writing by the
Purchaser and the Selling Stockholder provided such investment
can be accommodated by the Escrow Agent.
In the absence of an Investment Direction Letter, the Escrow
Agent shall invest and reinvest all funds in (i) above. In
addition, any residual cash which cannot be invested in (ii)
or (iii) above and any cash awaiting investment in (ii) or
(iii) above shall be invested in (i) above. All interest or
other income received in respect of the Escrowed Purchase
Price or the Escrowed Distributions shall be added thereto and
reinvested by Escrow Agent in accordance herewith until the
Escrowed Property is distributed in accordance with Section 4
hereof.
3. DISTRIBUTION OF INTEREST AND OTHER INCOME, ALLOCATION OF TAXES.
(a) At the time of the distribution in accordance with the terms
of this Agreement, the Escrow Agent shall pay (i) to the party
receiving Escrowed Purchase Price, in accordance with Section 4
hereof, all interest or other income received in respect thereof
since the date of its deposit with the Escrow Agent, and (ii) to the
party receiving Escrowed Distributions, in accordance with Section 4
hereof, all interest or other income received in respect thereof
since the date of its deposit with the Escrow Agent.
(b) All income accrued with respect to any interest or other
income accrued in respect of the Escrowed Purchase Price shall be
allocated by the Escrow Agent to the party receiving such Escrowed
Purchase Price, in accordance with Section 4 hereof.
(c) All income accrued with respect to any interest or other
income accrued in respect of the Escrowed Distributions shall be
allocated by the Escrow Agent to the party receiving such Escrowed
Distributions, in accordance with Section 4 hereof.
(d) In the event there shall exist, at the end of any calendar
year, any undistributed income accrued in respect of any Escrowed
Property, Purchaser and Selling Stockholder shall provide the Escrow
Agent with joint instructions as to how such income should be
attributed for 1099 reporting purposes.
4. DISTRIBUTION OF ESCROW.
(a) General. The Escrow Agent shall hold the Escrowed Property
and shall not deliver any amounts thereof to any party other than
(i) in accordance with Sections 4(b) and 4(c), (ii) pursuant to an
Award (as defined below), or (iii) by depositing the Escrowed
Property with a court of competent jurisdiction as provided in
Section 5(h) below or successor escrow agent in accordance with
Section 8 below. Immediately following the disbursement of the
Escrowed Property in accordance with the terms and conditions of
this Escrow Agreement, the Escrow Agent shall be released from all
of its obligations hereunder.
(b) Closing Conditions Satisfied. If the Purchaser or the Selling
Stockholder delivers to the Escrow Agent a written notice (the
"Closing Notice," a copy of which shall be simultaneously given to
the other party) certifying that the closing conditions under
Sections 6(a)(ii), 6(a)(iii), 6(a)(iv), 6(b)(ii), 6(b)(iii),
6(b)(iv) and 6(b)(v) of the Purchase Agreement have been satisfied,
the Escrow Agent shall, unless it receives a written notice from the
other party objecting thereto or otherwise stating that a closing
condition has not been satisfied ("Closing Objection Notice") within
three (3) business days after receiving the Closing Notice, deliver
on the fourth business day following the Escrow Agent's receipt of
such Closing Notice (i) the Escrowed Purchase Price together with
all interest and other earnings thereon to the Selling Stockholder
by wire transfer of immediately funds in accordance with written
wire transfer instructions provided by the Selling Stockholder, and
(ii) the certificates representing the Purchased Shares, the stock
powers duly endorsed in blank and the Distributions together with
interest and earnings thereon to the Purchaser at the address set
forth in Section 9(b).
(c) Termination of Purchase Agreement. If the Escrow Agent
receives a written notice ("Termination Notice) from either the
Purchaser or the Selling Stockholder (a copy of which shall be
simultaneously given to the other party) that it has terminated the
Purchase Agreement pursuant to and in accordance with Section 7
thereof, and does not within ten (10) calendar days thereafter
receive a written notice from the other party objecting to the
release of the Escrowed Property ("Termination Objection Notice," a
copy of which shall be simultaneously given to the other party), the
Escrow Agent shall deliver on the eleventh calendar day following
the Escrow Agent's receipt of such Termination Notice, the Escrowed
Purchased Price together with the interest and other earnings
thereon to the Purchaser by wire transfer of immediately available
funds in accordance with written wire transfer instructions provided
by the Purchaser and the Escrowed Shares to the Selling Stockholder
at the address set forth in Section 9(b). If within 10 days
following its receipt of a Termination Notice, the Escrow Agent
receives a Termination Objection Notice, the Escrow Agent shall
continue to hold the Escrowed Property until Escrow Agent receives a
Settlement Memorandum or an Award is granted, in each case in
accordance with Section 4(e).
(d) Reliance by Escrow Agent. Subject to Escrow Agent's normal
procedures, including the confirmation procedures contained in
Section 9(a), Escrow Agent shall be entitled to rely conclusively
on: (i) any Closing Notice or Termination Notice received by it in
accordance with Section 4(d), after having given effect to the 3
business day and 10 day notice periods described therein; and (ii)
any Closing Objection Notice or Termination Objection Notice
received by it.
(e) Resolution of Dispute.
(i) In case there is delivered to the Escrow Agent either a
Closing Objection Notice or a Termination Objection Notice,
the Purchaser and the Selling Stockholder shall endeavor to
agree upon the rights of the respective parties with respect
to the Escrowed Property. If the parties should so agree, a
memorandum (a "Settlement Memorandum") setting forth such
agreement and containing instructions to the Escrow Agent
shall be prepared, signed by both parties and furnished to the
Escrow Agent. The Escrow Agent shall be entitled to rely
conclusively on any such Settlement Memorandum. In addition,
notwithstanding any of the provisions herein to the contrary,
the Escrow Agent shall disburse the Escrowed Property from
time to time as the Purchaser and the Selling Stockholder
shall jointly notify the Escrow Agent in writing, promptly
after receipt by the Escrow Agent of a joint written notice
from the Purchaser and the Selling Stockholder.
(ii) If a dispute over the Escrow Agent's duties with respect
to the disposition of the Escrowed Property has not been
finally resolved in accordance with procedure of Section
4(e)(i), any such dispute shall be
settled by filing a demand for arbitration with the American
Arbitration Association ("AAA"). Such dispute shall then be
settled by one (1) arbitrator having reasonable experience in
corporate finance transactions of the type provided for in
this Agreement to be chosen by the AAA. The arbitration will
be conducted on an expedited basis in accordance with the
Commercial Rules of the AAA in effect on the date a demand for
arbitration is filed with the AAA. The Arbitrator shall,
within 10 business days of his designation, deliver a report
to the Selling Stockholder, the Purchaser and the Escrow Agent
containing the Arbitrator's conclusions regarding the final
disbursement of the Escrowed Property (the "Award"), which
Award shall contain detailed instructions to Escrow Agent as
to the disbursement of such Escrowed Property. The Award shall
be final, conclusive and binding on the parties. Judgement on
the Award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. The place of arbitration
shall be in either Rochester, New York or New York, New York.
The prevailing party shall be entitled to an award of
reasonable attorney fees.
5. RIGHTS, OBLIGATIONS AND INDEMNIFICATION OF ESCROW AGENT.
(a) The Escrow Agent shall neither be responsible for or under,
nor chargeable with knowledge of, the terms and conditions of any
other agreement, instrument or document executed between/among the
parties hereto. This Agreement sets forth all of the obligations of
the Escrow Agent, and no additional obligations shall be implied
from the terms of this Agreement or any other agreement, instrument
or document.
(b) The Escrow Agent may act in reliance upon any instructions,
notice, certification, demand, consent, authorization, receipt,
power of attorney or other writing delivered to it by any other
party without being required to determine the authenticity or
validity thereof or the correctness of any fact stated therein, the
propriety or validity of the service thereof, or the jurisdiction of
the court issuing any judgement or order. The Escrow Agent may act
in reliance upon any signature believed by it to be genuine, and may
assume that such person has been properly authorized to do so.
(c) Each of the parties, jointly and severally, agrees to
reimburse the Escrow Agent on demand for, and to indemnify and hold
the Escrow Agent harmless against and with respect to, any and all
loss, liability, damage or expense (including, but without
limitation, attorneys' fees, costs and disbursements) that the
Escrow Agent may suffer or incur in connection with this Agreement
and its performance hereunder or in connection herewith, except to
the extent such loss, liability, damage or expense arises from its
willful misconduct or gross negligence as adjudicated by a court of
competent jurisdiction. The Escrow Agent shall have the further
right at any time and from time to time to charge, and reimburse
itself from, the Escrowed Property hereunder.
(d) The Escrow Agent may consult with legal counsel of its
selection in the event of any dispute or question as to the meaning
or construction of any of the
provisions hereof or its duties hereunder, and it shall incur no
liability and shall be fully protected in acting in accordance with
the opinion and instructions of such counsel. Each of the parties,
jointly and severally, agrees to reimburse the Escrow Agent on
demand for such legal fees, disbursements and expenses and in
addition, the Escrow Agent shall have the right to reimburse itself
for such fees, disbursements and expenses from the Escrowed Property
hereunder.
(e) The Escrow Agent shall be under no duty to give the Escrowed
Property by it hereunder any greater degree of care than it gives
its own similar property.
(f) The Escrow Agent shall invest the property held in escrow in
such a manner as directed herein, which may include deposits in
Escrow Agent and mutual funds advised, serviced or made available by
Escrow Agent or its affiliates even though Escrow Agent or its
affiliates may receive a benefit or profit therefrom. THE PARTIES TO
THIS AGREEMENT ACKNOWLEDGE THAT NON-DEPOSIT INVESTMENT PRODUCTS ARE
NOT OBLIGATIONS OF, OR GUARANTEED, BY ESCROW AGENT NOR ANY OF ITS
AFFILIATES; ARE NOT FDIC INSURED; AND ARE SUBJECT TO INVESTMENT
RISKS, INCLUDING THE POSSIBLE LOSS OF PRINCIPAL AMOUNT INVESTED.
ONLY DEPOSITS IN THE UNITED STATES ARE SUBJECT TO FDIC INSURANCE.
(g) The Escrow Agent shall have no obligation to invest or
reinvest the Escrowed Property if all or a portion of such property
is deposited with the Escrow Agent after 11:00 AM Eastern Time on
the day of deposit. Instructions to invest or reinvest that are
received after 11:00 AM Eastern Time will be treated as if received
on the following business day in New York. The Escrow Agent shall
have the power to sell or liquidate the foregoing investments
whenever the Escrow Agent shall be required to distribute amounts
from the escrow property pursuant to the terms of this Agreement.
Requests or instructions received after 11:00 AM Eastern Time by the
Escrow Agent to liquidate all or any portion of the escrowed
property will be treated as if received on the following business
day in New York. The Escrow Agent shall have no responsibility for
any investment losses resulting from the investment, reinvestment or
liquidation of the escrowed property, as applicable, provided that
the Escrow Agent has made such investment, reinvestment or
liquidation of the escrowed property in accordance with the terms,
and subject to the conditions of this Agreement.
(h) In the event of any disagreement between/among any of the
parties to this agreement, or between/among them or either or any of
them and any other person, resulting in adverse claims or demands
being made in connection with the subject matter of the Escrowed
Property, or in the event that the Escrow Agent, in good faith, be
in doubt as to what action it should take hereunder, the Escrow
Agent may, at its option, refuse to comply with any claims or
demands on it, or refuse to take any other action hereunder, so long
as such disagreement continues or such doubt exists, and in any such
event, the Escrow Agent shall not become liable in any way or to any
person for its failure or refusal to act, and the Escrow Agent shall
be entitled to continue so to refrain from acting until (i) the
rights of all parties shall have been fully and finally adjudicated
by a court of competent jurisdiction, or (ii) all differences shall
have been adjusted and all doubt resolved by agreement among all of
the interested persons, and the Escrow Agent shall
have been notified thereof in writing signed by all such persons.
The Escrow Agent shall have the option, after 30 calendar days'
notice to the other parties of its intention to do so, to file an
action in interpleader requiring the parties to answer and litigate
any claims and rights among themselves. The rights of the Escrow
Agent under this paragraph are cumulative of all other rights which
it may have by law or otherwise.
6. TAX REPORTING. The Escrow Agent shall make payments of income earned
on the Escrowed Property as provided herein. Each such payee shall provide
to the Escrow Agent an appropriate W-9 form for tax identification number
certification or a W-8 form for non-resident alien certification. The
Escrow Agent shall be responsible only for income reporting to the
Internal Revenue Service with respect to income earned on the escrowed
property.
7. FEES, EXPENSES AND CHARGES. The Purchaser and the Selling
Stockholder shall be jointly and severally liable for the fees, expenses
and charges of the Escrow Agent in accordance Schedule A attached hereto,
including reasonable fees, expenses and charges of counsel engaged by it
in connection with the execution of this Agreement and its services under
this Agreement, which fees, expenses and charges shall be payable on
demand. The Purchaser and the Selling Stockholder agree between themselves
to bear equally all those fees, expenses and charges.
8. RESIGNATION OF ESCROW AGENT, SUCCESSOR. The Escrow Agent may, in its
sole discretion, resign and terminate its position hereunder at any time
following 30 calendar days' written notice to the parties to the Escrow
Agreement herein. Any such resignation shall terminate all obligations and
duties of the Escrow Agent hereunder. On the effective date of such
resignation, the Escrow Agent shall deliver this Escrow Agreement together
with any and all related instruments or documents to any successor Escrow
Agent agreeable to the parties, subject to this Escrow Agreement herein.
If a successor Escrow Agent has not been appointed prior to the expiration
of 30 calendar days following the date of the notice of such resignation,
the then acting Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor Escrow Agent, or other
appropriate relief. Any such resulting appointment shall be binding upon
all of the parties to this Agreement.
9. MISCELLANEOUS.
(a) Escrow Agent's Right to Confirm Instructions. In the event
funds transfer instructions are given (other than in writing at the
time of execution of this Agreement), whether in writing, by
telecopier or otherwise, the Escrow Agent is authorized to seek
confirmation of such instructions by telephone call back to the
person or persons designated in incumbency certificates for each
party delivered by the parties concurrently herewith, and the Escrow
Agent may rely upon the confirmations of anyone purporting to be the
person or persons so designated. To assure accuracy of the
instructions it receives, the Escrow Agent may record such call
backs. If the Escrow Agent is unable to verify the instructions, or
is not satisfied with the verification it receives, it will not
execute the instruction until all issues have been resolved. The
persons and telephone numbers for call backs may be changed only in
writing actually received and acknowledged by the
Escrow Agent. The parties agree to notify the Escrow Agent of any
errors, delays or other problems within 30 calendar days after
receiving notification that a transaction has been executed. If it
is determined that the transaction was delayed or erroneously
executed as a result of the Escrow Agent's error, the Escrow Agent's
sole obligation is to pay or refund such amounts as may be required
by applicable law. In no event shall the Escrow Agent be responsible
for any incidental or consequential damages or expenses in
connection with the instruction. Any claim for interest payable will
be at the Escrow Agent's published savings account rate in effect in
New York, New York.
(b) Notices. All notices, requests, claims, demands and other
communications hereunder shall be communicated in writing, mailed by
first class mail, delivered by hand at the address (or such other
address for a party as such party may specify by written notice
given pursuant hereto) set forth below:
ESCROW AGENT: Citibank, N.A.
The Citigroup Private Bank
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000.000.0000
Facsimile: 212.804.5401
Attention: Xxxx X. Xxxxxx, Vice President
PURCHASER: WLR Recovery Fund II, L.P.
WLR Recovery Fund III, L.P.
c/o XX Xxxx & Co. LLC
000 Xxxxxxxxx Xxxxxx
00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxx, Chairman
With copies (which shall not constitute notice) to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
THE SELLING Xxxxxx Corporation
STOCKHOLDER : 000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx XxXxxxx, VP- Finance and Chief
Financial Officer
With a copy (which shall not constitute notice) to:
Xxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telephone: 000.000.0000
Facsimile: 585.987.2901
Attention: Xxxxxx X. Forth, Esq.
The Escrow Agent shall provide monthly account statements and transaction
advices to all parties identified in this Section 9(b) unless instructed
otherwise in writing by the party in question.
Notwithstanding any of the foregoing, any computation of a time period which is
to begin after receipt of a notice by the Escrow Agent shall run from the date
of receipt by it.
(c) No Waivers; Remedies. No failure or delay by the any party in
exercising any right, power or privilege under this Agreement shall
operate as a waiver of the right, power or privilege. A single or
partial exercise of any right, power or privilege shall not preclude
any other or further exercise of the right, power or privilege or
the exercise of any other right, power or privilege. The rights and
remedies provided in this Agreement shall be cumulative and not
exclusive of any rights or remedies provided by law.
(d) Amendments, Etc. No amendment, modification, termination, or
waiver of any provision of this Agreement and no consent to any
departure by a party from any provision of this Agreement, shall be
effective unless it shall be in writing and signed and delivered by
the other parties, and then it shall be effective only in the
specific instance and for the specific purpose for which it is
given.
(e) Successors and Assigns; No Third Party Beneficiaries, Etc. All
provisions hereof shall inure to the benefit of and be binding upon,
the parties hereto and their successors and assigns. No other
parties shall have any rights under or be entitled to enforce this
Agreement.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York without reference to conflicts of law principles. Any
litigation between the parties involving this Agreement shall be
adjudicated in a court located in either Monroe County or New York
County, New York. The parties hereby irrevocably consent to the
jurisdiction and venue of such courts, including with respect to any
interpleader proceeding or proceeding for the appointment of a
successor escrow agent the Escrow Agent may commence pursuant to
this Agreement.
(g) Counterparts and Facsimile Signatures. This Agreement may be
signed in any number of counterparts, each of which shall be an
original, with the same
effect as if all signatures were on the same instrument. This
Agreement may be executed by facsimile signature transmitted to any
other party by electronic transmission. The parties shall be bound
by a facsimile signature once transmitted to another party. The
latter transmission of an originally executed copy of any such
document shall not invalidate any signature previously given by
electronic transmission.
(h) Severability of Provisions. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of the prohibition
or unenforceability without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of the
provision in any other jurisdiction.
(i) Entire Agreement. This Agreement contains the entire agreement
between the Purchaser, the Selling Stockholder and the Escrow Agent
as to the subject matter hereof. There are no other agreements,
arrangements or undertakings, oral or written, between the parties
hereto relating to the subject matter hereof or to the Purchase
Agreement.
(j) Force Majeure. The Escrow Agent shall not incur any liability
for not performing any act or fulfilling any obligation hereunder by
reason of any occurrence beyond its control (including, but not
limited to, any provision of any present or future law or regulation
or any act of any governmental authority, any act of God or war or
terrorism, or the unavailability of the Federal Reserve Bank wire
services or any electronic communication facility).
(k) Use of Name. No printed or other material in any language,
including prospectuses, notices, reports, and promotional material
which mentions "Citibank" by name or the rights, powers, or duties
of the Escrow Agent under this Agreement shall be issued by any
other parties hereto, or on such party's behalf, without the prior
written consent of the Escrow Agent, except as may be required of
Selling Stockholder under the federal securities laws to report the
transactions contemplated by the Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
WLR RECOVERY FUND II, L.P.
By: WLR Recovery Associates, II
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
Principal Member
WLR RECOVERY FUND III, L.P.
By: WLR Recovery Associates, III
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
Principal Member
XXXXXX CORPORATION
By: /s/ Xxxxxxx XxXxxxx
------------------------------
Name: Xxxxxxx XxXxxxx
Title: VP-Finance and Chief Financial Officer
CITIBANK N.A.
By: /s/ Xxxxx X. XxXxxxxxx
-----------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
SCHEDULE A
ESCROW AGENT FEE SCHEDULE
ESCROW AGREEMENT BY AND AMONG WLR RECOVERY FUND III, L.P., XXXXXX CORPORATION
AND
CITIBANK, N.A. AS ESCROW AGENT
ACCEPTANCE FEE
To cover the acceptance of the Escrow Agency appointment, the study of the
Escrow Agreement, and supporting documents submitted in connection with the
execution and delivery thereof, and communication with other members of the
working group:
$1,500.00 ONE TIME FEE, PAYABLE UPON ACCOUNT FUNDING
ADMINISTRATION FEE
To cover maintenance of the Escrow Account including safekeeping of assets,
normal administrative functions of the Escrow Agent, including maintenance of
the Escrow Agent's records, follow-up of the Escrow Agreement's provisions, and
any other duties required by the Escrow Agent under the terms of the Escrow
Agreement:
$15,000.00 per annum or any portion of a year thereof, payable in full
upon escrow account funding and annually on the anniversary date of the
Agreement thereafter
1099 TAX PREPARATION FEE
To cover preparation of Form 1099 for each calendar year:
WAIVED
TRANSACTION FEES
To cover all checks, wire transfers, postage and overnight delivery charges
incurred by the Escrow Agent as required under the terms and conditions of the
Escrow Agreement:
WAIVED
LEGAL FEES
AT COST, IF APPLICABLE.
OTHER FEES
$2,500 per amendment, when necessary
DATE SUBMITTED: 23 September 2005
