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EXHIBIT D
ESCROW AGREEMENT
This Escrow Agreement, dated as of __________ __, 2001 (this
"Escrow Agreement"), is made by and among Xxxxxxx Education, Inc., a Maryland
corporation (the "Company"), New Mountain Partners, L.P. ("NMC") and DB Capital
Investors, L.P. ("DB," collectively with NMC, the "Purchasers") and [ , ] (the
"Escrow Agent"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in that certain Preferred Stock Purchase
Agreement, dated as of November 28, 2000, by and among the Company and the
Purchasers (the "PSPA").
WHEREAS, the PSPA provides that, on the terms and subject to the
conditions thereof and in reliance on the representations set forth therein, at
the Closing Date the Company shall issue and sell to the Purchasers the Series A
Preferred Stock;
WHEREAS, Section 2.3 of the PSPA contemplates that prior to the
Closing and on the Escrow Date (such term and all other capitalized terms used
herein without definition having the meanings ascribed to them in the PSPA), the
Company will deliver $62.5 million (the "Company Funds") and the Purchaser will
deliver $150.0 million (the "Purchase Price" and together with the Company
Funds, the entire $212.5 million being referred to herein as the "Escrow
Amount") to the Escrow Agent; and
WHEREAS, the parties hereto desire that the Escrow Agent serve as
escrow agent to hold the Escrow Amount on the terms herein set forth;
NOW THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, and intending to be
legally bound, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The Company and the
Purchasers hereby appoint the Escrow Agent to act as escrow agent hereunder and
the Escrow Agent hereby accepts such appointment for purposes of receiving and
disbursing the Escrow Amount in accordance with the terms and conditions set
forth herein.
2. Deposit and Receipt of Escrow Amount. On the date of this
Agreement, which is the Escrow Date under the PSPA, (A) the Purchasers are
delivering to the Escrow Agent by wire transfer in immediately available funds
to [an escrow account or accounts designated in writing by the Escrow Agent to
the Purchasers at least two Business Days prior to the Escrow Date] [SPECIFY
ACCOUNT IF KNOWN], funds in an amount equal to the Purchase Price, and (B) the
Company is delivering and causing its Subsidiaries to deliver to the Escrow
Agent the Company Funds. The Escrow Agent shall establish and maintain, with
such adjustments as provided for herein, a sub-account with respect to each of
the Purchase Price and the Company Funds, for record keeping and accounting
convenience only. The Escrow Agent agrees to hold the Purchase Price and Company
Funds respectively, together with interest accumulated thereon and any
securities in which such funds have been invested, in an escrow account
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(the "Escrow Account") in accordance with the terms and conditions set forth in
this Escrow Agreement. Upon receipt of these amounts, the Escrow Agent shall
confirm such receipt by written notice to all of the parties hereto in
accordance with Section 9 of this Escrow Agreement.
3. Investment. (a) Promptly after the deposit of the Escrow
Amount pursuant to Section 2 hereof, the Escrow Amount shall be invested by the
Escrow Agent in Qualified Investments (as defined below) in accordance with the
signed, written instructions of the Company and the Purchasers. The following
shall constitute "Qualified Investments": (i) U.S. Treasury Bills; (ii)
certificates of deposit issued by any bank having a net worth in excess of $500
million; (iii) marketable direct obligations unconditionally guaranteed by the
United States or issued by an agency thereof maturing no more than two years
after the date on which they are purchased by the Escrow Agent; (iv) commercial
paper maturing no more than one year from the date issued and, at the time
acquired, having a rating of at least A-1 from Standard & Poor's Corporation or
at least P-1 from Xxxxx'x Investment Service, Inc.; (v) money market funds that
invest solely in obligations detailed above; or (vi) such other investments as
the Company and the Purchasers shall mutually select in a written notice to the
Escrow Agent.
(b) Pending receipt of such written instructions or its
ability to purchase Qualified Investments, the Escrow Agent shall:
(i) keep the Escrow Amount in demand deposit form; or
(ii) invest the Escrow Amount in the money market(s)
customarily utilized by the Escrow Agent's corporate trust department in the
ordinary course of its corporate trust business and in the usual performance of
its escrow agent duties.
(c) The Escrow Agent shall be and hereby is relieved of all
liability with respect to the purchasing, holding or selling of Qualified
Investments in accordance with the written instructions of the parties hereto,
or otherwise pursuant to Section 3(a) hereof. In the absence of the written
investment instructions contemplated herein, the Escrow Agent shall be and
hereby is relieved of all liability with respect to its purchasing, holding,
redeeming or selling investments in accordance with Section 3(b) hereof. The
Escrow Agent is and shall be under no duty to enforce the obligation of any
party to furnish written investment instructions nor shall the Escrow Agent be
liable to any party hereto or to any other person, firm or corporation, for the
investments purchased, held, redeemed or sold in accordance with Section 3(a) or
Section 3(b) hereof in the event that written investment instructions are not
furnished to the Escrow Agent, unless any damages are incurred due to the gross
negligence or willful misconduct of the Escrow Agent.
4. Delivery of Escrow Amounts by Escrow Agent. The Escrow
Agent shall hold the Escrow Amount in escrow until authorized hereunder to
deliver the same or any portion thereof, as set forth below.
(a) At the Closing, the Escrow Agent shall (i) release from
escrow and deliver to the Company by wire transfer of immediately available
funds to an account or accounts designated in writing by the Company to the
Escrow Agent at least two Business Days before the Closing, funds in an
aggregate amount equal to the sum of the Escrow Amount, plus any interest
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accrued on the Company Funds from the Escrow Date and (ii) release from escrow
and deliver to the Purchasers by wire transfer of immediately available funds to
an account or accounts designated in writing by the Purchasers to the Escrow
Agent at least two Business Days before the Closing, any interest accrued on the
Purchase Price from the Escrow Date, in each case (i) and (ii), in accordance
with the terms of this Escrow Agreement.
(b) If (i) the PSPA is terminated for any reason whatsoever
without the Closing having occurred, or (ii) the Closing does not occur by
December 31, 2001, then the Escrow Agent shall, on the first Business Day
following such termination or such date, release from escrow and deliver (i) to
the Company, by wire transfer in immediately available funds to an account or
accounts designated in writing by the Company to the Escrow Agent at least one
Business Days prior to such delivery the Company Funds, plus any interest
accrued thereon from the Escrow Date and (ii) to the Purchasers, by wire
transfer in immediately available funds to an account or accounts designated in
writing by the Purchasers to the Escrow Agent at least one Business Days prior
to such delivery, funds in an amount equal to the Purchase Price, plus any
interest accrued thereon from the Escrow Date, in each such case (i) and (ii),
in accordance with the terms of this Escrow Agreement.
5. Compensation of the Escrow Agent. The Escrow Agent shall
be entitled to receive a fee as set forth on Schedule A hereto as compensation
for its services hereunder and shall be reimbursed for all reasonable expenses,
disbursements and advances (including reasonable attorneys' fees and expenses)
incurred or made by it in performance of its duties hereunder. Such
reimbursements for services, disbursements, expenses and advances shall be paid
or caused to be paid in equal shares by the Purchasers, on the one hand, and the
Company, on the other hand, upon request by the Escrow Agent and upon submission
by the Escrow Agent to the Purchasers and the Company of a reasonably detailed
itemized statement setting forth the amount to be reimbursed. The Purchasers
shall be responsible for any amounts reimbursed by the Purchasers in proportion
to the percentages set forth opposite their names in Schedule A hereto.
6. Duties and Liability of the Escrow Agent. (a) The Escrow
Agent shall have no duties or responsibilities except those expressly set forth
herein. The Escrow Agent may consult with counsel and shall have no liability
hereunder except for its own bad faith, gross negligence or willful misconduct.
It may rely on any notice, instruction, certificate, statement, request,
consent, confirmation, agreement or other instrument which it reasonably
believes to be genuine and to have been signed or presented by a proper person
or persons.
(b) The Escrow Agent shall have no duties with respect to any
agreement or agreements with respect to any portion of the Escrow Account other
than this Escrow Agreement. In the event that any of the terms and provisions of
any other agreement (excluding those provisions of the PSPA referred to herein
and any amendment to this Escrow Agreement) between any of the parties hereto
conflict or are inconsistent with any of the terms and provisions of this Escrow
Agreement, the terms and provisions of this Agreement shall govern and control
in all respects. Notwithstanding any provision to the contrary contained in any
other agreement (excluding any amendment to this Escrow Agreement), the Escrow
Agent shall have no interest in the Escrow Account except as provided in this
Agreement.
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(c) So long as the Escrow Agent shall have any obligation to
pay any amount to the Purchasers or the Company from the Escrow Account
hereunder, the Escrow Agent shall keep proper books of record and account, in
which full and correct entries shall be made of all financial transactions of
which the Escrow Agent shall have notice.
(d) The Escrow Agent shall not be bound by any modification of
this Escrow Agreement affecting the rights, duties and obligations of the Escrow
Agent, unless such modification shall be in writing and signed by the other
parties hereto, and the Escrow Agent shall have given its prior written consent
thereto.
(e) The Escrow Agent may resign at any time by giving written
notice thereof to the other parties, but such resignation shall not become
effective until a successor escrow agent shall have been appointed and shall
have accepted such appointment in writing. If any instrument of acceptance by a
successor escrow agent shall not have been delivered to the Escrow Agent within
30 days after the giving of such notice of resignation, the resigning Escrow
Agent may at the expense of the Company and the Purchasers petition any court of
competent jurisdiction for the appointment of a successor escrow agent.
(f) The Escrow Agent may be removed at any time by the
unanimous agreement of the Company and the Purchasers as escrow agent hereunder,
and substitute another therefor. In such event the Escrow Agent shall, upon
receipt of written notice of such removal, account for and deliver to such
substituted escrow agent the Escrow Amounts, and the Escrow Agent shall
thereafter be discharged of all liability hereunder.
(g) If at any time hereafter the Escrow Agent shall resign, be
removed, be dissolved or otherwise become incapable of acting, or the bank or
trust company acting as the Escrow Agent shall be taken over by any governmental
official, agency, department or board, or the position of the Escrow Agent shall
become vacant for any of the foregoing reasons or for any other reason, the
Company and the Purchasers shall as soon as reasonably possible appoint an
alternate agent acceptable to the Purchasers and the Company, acting together,
to serve as successor escrow agent.
(h) Every successor escrow agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor, and also to the Company,
and the Purchasers, an instrument in writing accepting such appointment
hereunder, and thereupon such successor escrow agent, without any further act,
shall become fully vested with all the rights, immunities and powers and shall
be subject to all of the duties and obligations of its predecessor; and every
predecessor escrow agent shall deliver all property and moneys held by it
hereunder to its successor.
(i) The Escrow Agent represents and warrants that, to its
knowledge, neither the Company, nor any of the Purchasers, is an officer or
director or, directly or indirectly owns any interest in, controls, is
controlled by, or is under common control with, has any contractual arrangement
or other relationship or affiliation (other than deposit or investment accounts
not greater than $1,000,000 in aggregate amount) with the Escrow Agent.
7. Indemnification. The Purchasers and the Company shall
indemnify and hold the Escrow Agent harmless from and against any and all
expenses (including reasonable
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attorneys' fees), liabilities, claims, losses, actions, suits or other charges
("Agent Claims") incurred by or assessed against the Escrow Agent for anything
done or omitted to be done by the Escrow Agent in the performance of the Escrow
Agent's duties hereunder, except any such Agent Claims to the extent resulting
from the Escrow Agent's bad faith, gross negligence or willful misconduct. Any
Agent Claims payable hereunder shall be paid in equal shares by the Purchasers,
on the one hand, and the Company, on the other hand. The right to indemnity
shall survive the resignation of the Escrow Agent or the termination of this
Agreement.
8. Termination of Escrow Account. This Agreement shall
terminate upon the first to occur of the following: (i) the date of the
distribution of the entire balance of the Escrow Account pursuant to Section
4(a) hereof or (ii) on the date of distribution of the entire balance of the
Escrow Account pursuant to Section 4(b) hereof.
9. Notices. All notices under this Agreement shall be in
writing and shall be deemed to have been delivered, given and received, (i) if
personally sent or sent by telegram, when received at the addresses for the
parties set forth below, (ii) on the date of acknowledgment or receipt if sent
by telex, facsimile or other wire transmission, (iii) if sent by an express
courier service, on the first business day following the date on which the
notice is deposited with such courier service for next business day delivery or
(iv) three days after being deposited in the U.S. mail, certified or registered
mail, postage prepaid, as follows:
if to the Company:
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Xx.
Telecopy: (000) 000-0000
if to the Purchasers:
New Mountain Partners, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
and
DB Capital Investors, L.P.
c/o DB Capital Partners, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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Attention: Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
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with copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
and
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Bramst
Telecopy: (000) 000-0000
if to the Escrow Agent:
[Name]
[Address]
[Telecopy]
Attention:
or to such other person or address as any party shall designate in writing to
the other parties.
10. Successors and Assigns. The Escrow Agreement shall be
binding upon and inure to the benefit of the parties thereto and their
respective successors, assigns and legal representatives; provided, however,
that the Escrow Agent may not assign this Agreement or delegate any of its
duties hereunder without the prior written approval of the Company and the
Purchasers, which approval shall be granted or denied in their sole discretion,
acting jointly.
11. Integration, etc. This Escrow Agreement, the PSPA and all
other agreements executed in connection herewith and therewith shall supersede
all previous negotiations, commitments and writings with respect to the subject
matter hereof and thereof. This Escrow Agreement may not be released,
discharged, abandoned, changed or modified in any manner, except by an
instrument in writing signed on behalf of each of the parties hereto by their
duly authorized officers or representatives, or if the rights, duties and
obligations of the Escrow Agent are not affected thereby, by an instrument in
writing signed on behalf of the Purchasers and the Company by their duly
authorized officers or representatives. The failure of any party hereto to
enforce at any time any provision hereof shall not in any way affect the
validity of this Agreement or any part thereof or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Escrow Agreement shall be held to be a waiver of any other or subsequent
breach.
12. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original, and all
collectively shall constitute but one instrument.
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13. Governing Law; Exclusive Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF WHICH WOULD
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER STATE. The parties hereby
irrevocably submit to the jurisdiction of the federal courts of the United
States of America located in the City of New York, State of New York (or, if
such federal courts shall not have jurisdiction over such matters, to the
jurisdiction of the state courts of the State of New York located in the City of
New York, State of New York) solely in respect of the interpretation and
enforcement of the provisions of this Escrow Agreement and hereby waive, and
agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof, that it is not subject thereto or that
such action, suit or proceeding may not be brought or is not maintainable in
said courts or that the venue thereof may not be appropriate or that this Escrow
Agreement may not be enforced in or by such courts, and the parties irrevocably
agree that all claims with respect to such action or proceeding shall be heard
and determined in such a federal or state court.
14. Further Assurances. At any time and from time to time
after the date hereof, the parties hereto shall at the request of the other and
at such other party's expense, execute and delivery any further instruments or
documents and take all such further action as such party reasonably may request
in order to consummate and make effective the transactions contemplated hereby.
15. Specific Performance. If any party refuses to comply with,
or at any time violates or attempts to violate, any term, covenant or agreement
contained in this Escrow Agreement, any other party hereto may, by injunctive
action, compel the defaulting party to comply with, or refrain from violating,
such term, covenant or agreement, and may, by injunctive action, compel specific
performance of the obligations of the defaulting party.
16. Escrow Agent to Follow Instructions of the Purchasers and
the Company. Notwithstanding any provision contained herein to the contrary, the
Escrow Agent shall at any time and from time to time take such action hereunder
with respect to the funds in the Escrow Account (and the securities in which any
such funds have been invested) as shall be agreed to in writing by the
Purchasers and the Company, acting together, provided that the Escrow Agent
shall first be indemnified to its reasonable satisfaction with respect to any of
its costs or expenses which might be involved.
17. Dispute Resolution. Any dispute which may arise under this
Escrow Agreement with respect to the delivery and/or ownership or right of
possession of any funds held in the Escrow Account, or the duties of the Escrow
Agent hereunder, shall be settled either by mutual agreement of the parties
concerned (evidenced by appropriate instructions in writing to the Escrow Agent,
signed by the parties), by a final order, decree or judgment of any appropriate
federal or state court located in the State of New York (the time for appeal
having expired and no appeal having been perfected), or by a certified copy of
an arbitration award binding upon the parties other than the Escrow Agent, each
party or parties bearing its own costs and expenses with respect to the dispute.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first above written.
XXXXXXX EDUCATION, INC.
By:
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Name:
Title:
NEW MOUNTAIN PARTNERS, L.P.
By: New Mountain Investments, L.P., its
general partner
By: New Mountain GP, LLC, its
general partner
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Member
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P., its
general partner
By: DB Capital Partners, Inc., its
general partner
By:
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Name: Xxxxxx Xxxxxxxxx
Title: Director
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