"SELLERS" ESCROW AGREEMENT
"SELLERS" ESCROW AGREEMENT dated as of June 11, 1997, among
each of the Sellers identified under the caption "Sellers" on the signature
pages hereto (individually, a "Seller" and collectively, "Sellers"), FMCC
Acquisition Corp., a Delaware corporation ("Buyer"), and The Bank of New York,
as escrow agent (the "Escrow Agent").
WHEREAS, pursuant to the Securities Purchase Agreement dated
as of June 11, 1997 (the "Purchase Agreement"), between Sellers and Buyer, Buyer
has agreed to acquire from each of the Sellers the number of shares of Common
Stock, par value $0.10 per share (the "Common Stock"), of First of Michigan
Capital Corporation, a Delaware corporation (the "Company"), set forth opposite
its name on Schedule A to the Purchase Agreement (the foregoing securities of
all the Sellers, together with all non-cash dividends and distributions
declared, set aside or paid with respect thereto on or after the date hereof,
are collectively referred to herein as the "Securities");
WHEREAS, pursuant to the terms of this Agreement, Sellers
shall deposit share certificates representing the Securities into escrow; and
WHEREAS, pursuant to the terms of this Agreement, Buyer shall
deposit cash in the amount of $21,275,265 into escrow; and
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, agreements and understandings contained herein and of other
good and valuable consideration, the receipt and adequacy of which hereby are
acknowledged, the parties hereto agree as follows:
Section 1. Deposits. (a) At or prior to 5:00 p.m. (New York
City time) on June 13, 1997, Sellers will deposit with the Escrow Agent (and
thereafter the Escrow Agent will acknowledge, in writing, receipt of) all the
Securities. Such portion of the Securities that are represented by certificates
are listed on Schedule A hereto and such certificated Securities will be in
negotiable form duly endorsed in blank by Sellers on the reverse side of such
certificates or on transfer powers attached to such certificates as may be
necessary for transfer upon the transfer books and records of the Company into
the name of Buyer or its designee, with signature guarantees and otherwise in
form for good delivery. Such portion of the Securities that are in book-entry
form are described on Schedule A hereto and such book-entry Securities will be
transferred using procedures customary for the transfer of securities held in
book-entry form (it being understood that Seller shall, to the extent
practicable, use procedures so as to be equivalent to the certificated
Securities deposited with the Escrow Agent in providing for the use of
unrestricted negotiability and for good delivery). All the Securities, together
with all additional or different shares of capital stock of the Company issued
in respect of the Securities as a result of any recapitalization, exchange,
merger, consolidation, stock split, stock dividend or stock distribution on or
after the date hereof, and all non-cash dividends or distributions declared, set
aside or paid on or after the date hereof in respect of the Securities, are
hereinafter sometimes referred to as the "Shares".
(b) At or prior to 5:00 p.m. (New York City time) on June 13,
1997, Buyer will deposit with the Escrow Agent (and thereafter the Escrow Agent
will acknowledge, in writing, receipt of) cash in the amount of $21,275,265
(together with all interest earned thereon and any additions, substitutions or
other property in which the same may be invested or for which the same may be
exchanged, the "Deposit").
(c) The Shares and the Deposit to be so deposited with the
Escrow Agent pursuant to this Section 1 are sometimes collectively referred to
in this Agreement as the "Escrowed Property".
(d) The Escrow Agent shall hold the Escrowed Property solely
for the purposes and upon the terms and conditions set forth in this Agreement
and it shall not be released and delivered from escrow except in accordance with
Section 2.
(e) Each of the Sellers represents and warrants to the Escrow
Agent that such Seller owns its Shares beneficially and of record free and clear
of any liens (other than any lien that may be created by this Agreement), and
that such Seller has full legal right, power and authority to enter into this
Agreement and to deposit its Shares in the manner provided in this Agreement.
(f) Buyer represents and warrants to the Escrow Agent that
Buyer has full legal, right, power and authority to enter into this Agreement
and to deposit the Deposit in the manner provided in this Agreement.
Section 2. Delivery by the Escrow Agent. The Escrow Agent
shall hold, deliver and otherwise deal with the Escrowed Property as follows:
(a) Upon receipt of a certificate in the form of Exhibit A
hereto, signed by Buyer and Sellers, the Escrow Agent promptly shall release and
deliver: (i) from the Deposit to an account(s) specified by Sellers, by wire
transfer of immediately available funds, the amount specified in such
certificate; (ii) the balance of the Deposit to an account specified by Buyer,
by wire transfer of immediately available funds; and (iii) the Shares to Buyer.
(b) Upon receipt of a certificate in the form of Exhibit B
hereto, signed by Sellers, the Escrow Agent promptly shall notify Buyer of its
intent to release and deliver the Shares to Sellers and to release and deliver
the Deposit to Buyer. If Buyer does not object in writing to Escrow Agent to
such intent within five days after receiving notice thereof, the Escrow Agent
shall release and deliver (i) the Shares to Sellers, and (ii) the Deposit to an
account specified by Buyer, by wire transfer of immediately available funds.
(c) Upon receipt of a certificate in the form of Exhibit C
hereto, signed by Buyer, the Escrow Agent promptly shall notify Sellers of its
intent to release and deliver the Shares to Sellers and to release and deliver
the Deposit to Buyer. If Sellers do not object in writing to Escrow Agent to
such intent within five days after receiving notice thereof, the
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Escrow Agent shall release and deliver (i) the Shares to Sellers, and (ii) the
Deposit to an account specified by Buyer, by wire transfer of immediately
available funds.
(d) If any party makes a timely objection to the release and
delivery of the Escrowed Property (or portion thereof), the Escrow Agent shall
continue to hold the Escrowed Property in its possession until directed to
disburse the same in accordance with (i) the joint written instructions of Buyer
and Sellers, or (ii) a final unappealable judgment of a court of competent
jurisdiction. In lieu of the foregoing, the Escrow Agent may deposit the
disputed Escrowed Property with a court of competent jurisdiction and commence
an action of interpleader between the parties in dispute.
(e) At the time of release and delivery by the Escrow Agent of
all the Escrowed Property in accordance with this Section 2, the Escrow Agent
shall be released from all further liability under this Agreement with respect
to the Escrowed Property or otherwise.
Section 3. Investments. Moneys from time to time comprising
the Deposit shall be held in a separate account (the "Escrow Account") and
invested and reinvested by the Escrow Agent in accordance with the specific
written directions of the Buyer, but only in Permitted Investments.
As used herein, "Permitted Investments" means the following
kinds of instruments with a maturity not later than the day preceding the
Closing Date: (a) obligations of the United States of America, or fully
guaranteed as to payment of interest and principal by the United States of
America; (b) commercial paper that, at the time of the investment therein
pursuant to this Section, has the highest credit ratings from Xxxxx'x Investors
Service, Inc. ("Moody's") and Standard & Poor's Corporation ("S&P") and the
issuers of which have outstanding long-term unsecured debt obligations (other
than any such obligations whose ratings are based on the credit of a person
other than such issuers), at the time of such investment therein, having the
highest credit ratings from Moody's and S&P; and (c) demand or time deposits in
Permitted Banks (as defined below), or certificates of deposit of, or bankers'
acceptances issued by, Permitted Banks.
As used herein, "Permitted Bank" means a depository
institution or trust company organized under the laws of the United States of
America, any State thereof or the District of Columbia, having a combined
capital and surplus of at least $100,000,000, if the commercial paper (if any)
and the long-term unsecured debt obligations (other than such obligations whose
ratings are based on the credit of a person other than such institution or trust
company) of such depository institution or trust company, at the time of an
investment therein pursuant to this Section, have the highest credit ratings
from Duff & Xxxxxx.
Section 4. Rights With Respect to Securities; Rights of
Action. (a) The Escrow Agent shall not be entitled to any rights of a
shareholder with respect to the Securities deposited in escrow hereunder except
in its capacity as Escrow Agent.
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(b) Each of Buyer, Seller and the Escrow Agent, as the case
may be, without the consent of the other parties, may, in its own behalf and for
its own benefit, institute or maintain any suit, action or proceeding, at law or
in equity, against the other parties in order to enforce or preserve its rights
hereunder.
Section 5. Termination. This Agreement shall automatically
terminate upon the release and delivery by the Escrow Agent to Buyer or
otherwise pursuant to Section 2 (and in compliance with all the provisions of
such Section) of all the Escrowed Property.
Section 6. Concerning the Escrow Agent. (a) The Escrow Agent
hereby accepts the agency established by this Agreement and shall perform the
same upon the terms and conditions herein set forth, by all of which Buyer and
each Seller shall be bound. The duties of the Escrow Agent hereunder shall be
purely ministerial. The Escrow Agent shall not have any duties or
responsibilities except those expressly set forth herein, and no implied
covenants or obligations shall be read into this Agreement against the Escrow
Agent, whose duties and obligations shall be determined solely by the express
provisions hereof.
(b) The Escrow Agent shall not be deemed to make any
representations or warranties as to the Securities.
(c) The Escrow Agent shall not (i) be liable for any action
taken or suffered or omitted to be taken by it in good faith in the belief that
any documents or any signatures are genuine or properly authorized, (ii) be
responsible for any failure on the part of any Seller or Buyer or any
predecessor Escrow Agent to comply with any of its representations, warranties,
covenants or agreements contained in this Agreement or the Purchase Agreement,
or (iii) be liable for any act or omission in connection with this Agreement,
except in each case for its own gross negligence or willful misconduct. The
Escrow Agent is hereby irrevocably authorized to, and shall, (A) act in
accordance with this Agreement, and (B) make the releases and deliveries as
provided in Section 2. Subject to the foregoing, the Escrow Agent hereby is
authorized to accept instructions with respect to the performance of its duties
hereunder from Buyer and Sellers, and the Escrow Agent shall not be liable for
any action taken or suffered or omitted to be taken by it in good faith in
accordance with the instructions of Buyer and Sellers, except for its own gross
negligence or willful misconduct. However, if Escrow Agent incurs reasonable
legal fees and other costs in connection with its successful defense of a claim
of gross negligence or willful misconduct, the Escrow Agent shall be indemnified
for such fees and costs.
(d) The Escrow Agent may execute and exercise any of the
rights and powers hereby vested in it or perform any duty hereunder either
itself or by or through its officers, agents or employees, and the Escrow Agent
shall not be answerable or accountable for any action taken, default, neglect or
misconduct of any such officer, agent or employee, except for the gross
negligence or willful misconduct of the Escrow Agent or any of them. The Escrow
Agent shall not be under any obligation or duty to institute, appear in, or
defend any action, suit or proceeding in respect hereof, unless first
indemnified to its reasonable satisfaction, but this provision shall not affect
the power of the Escrow Agent to take such
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action as the Escrow Agent may consider proper, whether with or without such
indemnity. Notwithstanding anything in this Agreement that may be to the
contrary, the Escrow Agent shall have no liability hereunder to any of the other
parties for complying in good faith with any judgment or order of a court of
competent jurisdiction. The Escrow Agent shall notify Buyer and Sellers of any
claim made or action, suit or proceeding instituted against it arising out of or
in connection with this Agreement.
(e) Buyer and Sellers from time to time shall perform,
execute, acknowledge and deliver, or cause to be performed, executed,
acknowledged and delivered, all such further acts, instruments and assurances as
may be reasonably required by the Escrow Agent in order to enable it to carry
out or perform its duties under this Agreement.
(f) Sellers and Buyer jointly and severally agree to reimburse
the Escrow Agent for its reasonable expenses, including taxes and governmental
charges of any kind and nature, incurred by the Escrow Agent hereunder; and
further jointly and severally agree to indemnify the Escrow Agent and save it
harmless against any and all losses, liabilities, damages and expenses and for
anything done, suffered or omitted by the Escrow Agent in the execution of its
duties and powers hereunder, except as a result of the Escrow Agent's gross
negligence or willful misconduct. As between Sellers and Buyer, any amounts
payable to the Escrow Agent pursuant to the preceding sentence shall be payable
by Buyer.
(g) The Escrow Agent may resign its duties and be discharged
from all further duties and liabilities hereunder (except liabilities arising as
a result of the Escrow Agent's own gross negligence or willful misconduct),
after giving prior notice to Sellers and Buyer, such resignation and discharge
to be effective as hereinafter provided. With the prior consent of Sellers
(which consent shall not be unreasonably withheld or delayed), Buyer may remove
the Escrow Agent upon at least 10 days' prior notice, and the Escrow Agent shall
thereupon in like manner be discharged from all further duties and liabilities
hereunder (except as aforesaid), such removal and discharge to be effective as
hereinafter provided. No such resignation or removal shall take effect until a
new escrow agent which Buyer and Sellers shall have approved in writing (such
approval not to be unreasonably withheld or delayed) shall have been appointed
and shall have agreed to assume the Escrow Agent's duties hereunder, as
hereinafter provided. After such a new escrow agent shall accept such
appointment in writing, such new escrow agent shall be vested with the same
powers, rights, property, duties and responsibilities as if it had been
originally named herein as Escrow Agent, without any further assurance,
conveyance, act or deed; but if for any reason it shall be necessary or
expedient to execute and deliver any further assurance, conveyance, act or deed,
the same shall be done and shall be legally and validly executed and delivered
by the resigning or removed Escrow Agent.
(h) Notwithstanding anything in this Agreement that may be to
the contrary: (i) if the Escrow Agent shall receive notice advising that
litigation in connection with the Escrowed Property, the Purchase Agreement or
this Agreement has been commenced, the Escrow Agent may deposit the Escrowed
Property with the Clerk of the Court in which said litigation is pending; or
(ii) the Escrow Agent may deposit the Escrowed
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Property in a court of competent jurisdiction and commence an action for
interpleader, the costs thereof to be borne jointly and severally by Buyer and
Sellers. Upon the occurrence of any of the foregoing events set forth in the
preceding sentence, the Escrow Agent shall be automatically released of and from
all liability hereunder.
(i) Nothing herein shall preclude the Escrow Agent from acting
in any other capacity for Buyer, the Company or Sellers or any of their
respective affiliates.
(j) Escrow Agent may consult with outside legal counsel at the
reasonable expense of Buyer as to any matter relating to this Agreement.
Section 7. Parties in Interest; Assignment. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
Section 8. Notices. All notices, consents, requests, waivers
or other communications required or permitted under this Agreement (each a
"Notice") shall be in writing and shall be sufficiently given (a) if hand
delivered, (b) if sent by nationally recognized overnight courier, or (c) if
sent by registered or certified mail, postage prepaid, return receipt requested,
and in each case addressed as follows:
If to Buyer:
------------
c/o Fahnestock & Co. Inc.
000 Xxxx Xxxxxx (0xx Xxxxx)
Xxx Xxxx, XX 00000
Att: Xxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Breed Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Att: Richard Crystal, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Sellers:
--------------
1888 Limited Partnership
c/o Day, Xxxxx & Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
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Xxxxxxxx, XX 00000
Att: Xxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
DST Systems, Inc.
0000 Xxxxxxxx
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Att: Xxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Agent:
-------------------
The Bank of New York
000 Xxxxxxx Xxxxxx (Floor 12E)
Xxx Xxxx, XX 00000
Att: Xxxxxx Xxxxxx
Insurance Trust and Escrow
Tel: (000) 000-0000
Fax: (000) 000-0000
or at such other address for a party as shall be specified in a Notice. Any
Notice shall be effective and deemed given upon receipt.
Section 9. Miscellaneous. (a) This Agreement constitutes the
entire agreement between the parties hereto in respect of the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties hereto with respect to such subject matter.
(b) This Agreement is not intended to confer upon any other
person any rights or remedies hereunder.
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(c) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
CONFLICT OF LAW RULES.
(d) This Agreement may be executed by the parties hereto
(including by facsimile transmission) with counterpart signature pages or in
several counterparts, each of which shall be deemed an original but all of which
together shall constitute but one agreement.
(e) The descriptive headings contained herein are for
convenience only and shall not affect in any way the meanings or interpretation
of this Agreement.
Section 10. Agreement to Take Necessary and Desirable Actions.
Buyer and Sellers agree to execute and deliver such other documents,
certifications, agreements and other writings and to take such other actions as
may be necessary and desirable in order to consummate and make effective the
transactions contemplated by this Agreement as promptly as practicable.
Section 11. Partial Invalidity. Any provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
provisions of this Agreement or affecting the validity or enforceability of any
of the provisions of this Agreement in any other jurisdiction. If any provision
of this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
Section 12. Amendments. This Agreement may not be amended or
supplemented except upon the execution and delivery of a written agreement
executed by all the parties hereto.
Section 13. Consent to Jurisdiction. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York or the United
States of America located in the State of New York for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby and agrees not to commence any action, suit or proceeding
relating hereto except in such courts, and further agrees that service of any
process, summons, notice or document by United States registered or certified
mail in accordance with Section 8 shall be effective service of process for any
action, suit or proceeding brought in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to personal
jurisdiction and the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby, in the courts of
the State of New York or the United States of America located in the State of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives, as of the day
and year first above written.
Sellers:
1888 LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
DST SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer
Buyer:
FMCC ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman and CEO
Escrow Agent:
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
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Schedule A
to Sellers
Escrow Agreement
SHARES OF COMMON STOCK OF
FIRST OF MICHIGAN CAPITAL CORPORATION
(CUSIP #320862 10 5)
DEPOSITED INTO ESCROW
I. 1888 Limited Partnership
-----------------------------
A. Stock Certificates
-------------------
Certificate No. No. of Shares
-------------- -------------
DU 12012 657,564
DU 12172 90,365
DU 12701 5,000
DU 12702 5,000
DU 12704 10,000
DU 12706 10,000
B. Book-Entry
1. Financial Institution (Nominee)
Not applicable
-------
Total shares deposited
by 1888 Limited Partnership 777,929
II. DST Systems, Inc.
-----------------
A. Stock Certificates
------------------
Certificate No. No. of Shares
-------------- -------------
DU 9127 6,630
DU 9128 6,630
DU 9129 6,630
DU 9130 6,630
DU 9131 6,630
DU 9132 6,630
DU 9133 6,630
DU 9134 6,630
DU 9153 20,000
DU 11391 2,000
DU 11392 5,304
B. Book-Entry
----------
1. Financial Institution (Nominee)
------------------------------
Xxxxxxxx Xxxxxxxx & Co., Inc. 560,078
(LEWCO Securities)
-------
Total shares deposited
by DST Systems, Inc. 640,422
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Exhibit A to
Escrow Agreement
FORM OF FUNDING CERTIFICATE
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx (Floor 12E)
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Insurance Trust and Escrow
Re: Release of Escrow Deposit
-------------------------
Dear Sir:
Pursuant to Section 2(a) of the Escrow Agreement dated as of June 11,
1997 (the "Escrow Agreement"), among 1888 Limited Partnership, DST Systems, Inc.
(collectively, the "Sellers"), FMCC Acquisition Corp. ("Buyer"), and you, as
escrow agent, you are hereby notified that the Closing Time (as defined in the
Securities Purchase Agreement dated as of June 11, 1997, between the Sellers and
Buyer, the "Purchase Agreement") [is taking place] [has taken place].
Accordingly, you are hereby directed to release and deliver: (i) to the
account of each Seller listed opposite such Seller's name on the attached
Schedule A the amount listed opposite such Seller's name on the attached
Schedule A, by wire transfer of immediately available funds; (ii) to the account
listed opposite Buyer's name on the attached Schedule A, the balance of the
Deposit, by wire transfer of immediately available funds; and (iii) the Shares
to Buyer.
Capitalized terms used herein without definition have the meanings
attributed thereto in the Escrow Agreement.
IN WITNESS WHEREOF, the parties hereto have duly caused this Funding
Certificate to be delivered to you in accordance with the terms of the Escrow
Agreement.
Sellers:
-------
1888 LIMITED PARTNERSHIP
By:_________________________
Name:
Title: General Partner
DST SYSTEMS, INC.
By:_________________________
Name:
Title:
Buyer:
------
FMCC ACQUISITION CORP.
By:_________________________
Name:
Title:
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Exhibit B to
Escrow Agreement
FORM OF TERMINATION NOTICE CERTIFICATE
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx (Floor 12E)
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Insurance Trust and Escrow
Re: Release of Escrow Deposit
-------------------------
Dear Sir:
Pursuant to Section 2(b) of the Escrow Agreement dated as of June 11,
1997 (the "Escrow Agreement"), among 1888 Limited Partnership, DST Systems, Inc.
(collectively, the "Sellers"), FMCC Acquisition Corp. ("Buyer"), and you, as
escrow agent, you are hereby notified that the Securities Purchase Agreement
dated as of June 11, 1997, between the Sellers and Buyer (the "Purchase
Agreement"), has been terminated pursuant to Section 7.1 or 7.2 of the Purchase
Agreement.
Accordingly, you are hereby directed (i) to notify Buyer (the "Notice")
of your intent to release and deliver the Shares to Sellers and to release and
deliver the Deposit to Buyer, and (ii) to release and deliver to each Seller,
the Shares owned by such Seller held by you, and to release and deliver the
Deposit to Buyer, if Buyer does not provide you with a written objection to such
intent within five days after receiving the Notice.
Capitalized terms used herein without definition have the meanings
attributed thereto in the Escrow Agreement.
IN WITNESS WHEREOF, the Sellers hereto have duly caused this
Termination Notice Certificate to be delivered to you in accordance with the
terms of the Escrow Agreement.
Sellers:
--------
1888 LIMITED PARTNERSHIP
By:_________________________
Name:
Title: General Partner
DST SYSTEMS, INC.
By:_________________________
Name:
Title:
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Exhibit C to
Escrow Agreement
FORM OF TERMINATION NOTICE CERTIFICATE
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx (Floor 12E)
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Insurance Trust and Escrow
Re: Release of Escrow Deposit
-------------------------
Dear Sir:
Pursuant to Section 2(c) of the Escrow Agreement dated as of June 11,
1997 (the "Escrow Agreement"), among 1888 Limited Partnership, DST Systems, Inc.
(collectively, the "Sellers"), FMCC Acquisition Corp. ("Buyer"), and you, as
escrow agent, you are hereby notified that the Securities Purchase Agreement
dated as of June 11, 1997, between the Sellers and Buyer (the "Purchase
Agreement"), has been terminated pursuant to Section 7.1 or 7.2 of the Purchase
Agreement.
Accordingly, you are hereby directed (i) to notify Sellers (the
"Notice") of your intent to release and deliver the Deposit to Buyer and to
release and deliver the Shares to Sellers, and (ii) to release and deliver the
Deposit to the account specified by Buyer on the attached Schedule A, by wire
transfer of immediately available funds, and to release and deliver the Shares
to Sellers, if Sellers do not provide you with a written objection to such
intent within five days after receiving the Notice.
Capitalized terms used herein without definition have the meanings
attributed thereto in the Escrow Agreement.
IN WITNESS WHEREOF, the Buyer hereto has duly caused this Termination
Notice Certificate to be delivered to you in accordance with the terms of the
Escrow Agreement.
Buyer:
FMCC ACQUISITION CORP.
By:_________________________
Name:
Title:
