Exhibit 10.47
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is made and entered into as of
this 25th day of October, 2000 by and among ATRIUM COMPANIES, INC., a Delaware
corporation ("Buyer"), THE XXXXXXX COMPANY, INC., a North Carolina corporation
("Seller"), and BANK ONE, TEXAS, N.A., as escrow agent (the "Escrow Agent").
RECITALS:
WHEREAS, pursuant to a Second Amended and Restated Purchase Agreement,
dated as of October 17, 2000 (the "Purchase Agreement"), by and among D and W
Holdings, Inc., Buyer and Seller, Buyer has agreed to purchase from Seller and
Seller has agreed to sell and transfer to Buyer (the "Acquisition"), all of the
issued and outstanding shares of capital stock of VES, Inc., a Delaware
corporation doing business in North Carolina as Xxxxxxx Extrusions Systems, Inc.
("EES"), and substantially all of the operating assets of Seller's Windows and
Doors Division, on the terms and subject to the conditions set forth in the
Purchase Agreement; and
WHEREAS, as an inducement for Buyer to enter into the Purchase
Agreement and as a condition precedent to the consummation of the Acquisition,
Buyer has required that certain amounts be deposited into escrow accounts,
subject to the terms and conditions set forth herein; and
WHEREAS, Seller has determined to enter into this Agreement and to
establish the escrow arrangement required by Buyer on the terms and conditions
set forth herein; and
WHEREAS, Buyer, Seller and the Escrow Agent desire to set forth the
terms and conditions pursuant to which the Escrow Fund (defined below) and the
Payment Fund (defined below) will be held by the Escrow Agent and disbursed to
Buyer and/or Seller, as the case may be.
NOW, THEREFORE, in consideration of the mutual premises, agreements and
covenants set forth herein and in the Purchase Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto (the "Parties"), intending legally to be bound,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
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All capitalized terms not otherwise defined herein and defined in the
Purchase Agreement shall have the meanings attributed to them in the Purchase
Agreement.
ARTICLE 2
TERM OF THE AGREEMENT
---------------------
The term of this Agreement shall commence on the date of this Agreement
and shall continue in effect until the distribution in full of the Escrow Fund
and the Payment Fund pursuant to the terms and conditions set forth herein (the
"Term").
ARTICLE 3
ESTABLISHMENT OF THE ESCROW FUND AND
------------------------------------
THE PAYMENT FUND
----------------
3.01 DELIVERY OF THE ESCROW FUND AND THE PAYMENT FUND; RECEIPT BY
ESCROW AGENT.
(a) On the Closing Date, Buyer, on behalf and at the direction
of Seller, shall, in accordance with Section 2.2 of the Purchase Agreement,
deliver to the Escrow Agent (i) cash in the aggregate amount of $7,000,000 (the
"Escrow Fund"), which shall be deposited in a segregated account (the "Escrow
Account"), and (ii) cash in the aggregate amount of $90,999,992 (the "Payment
Fund"), which shall be deposited in a segregated account (the "Payment
Account"). The Escrow Fund shall be invested and reinvested as provided in
Section 3.02 below. Any interest that accrues on and any gains on any portion of
the Escrow Fund from such investments and reinvestments (the "Additional Escrow
Amount") shall not be considered part of the Escrow Fund, and shall be deposited
by the Escrow Agent in a segregated account (the "Additional Escrow Account") in
the name of Seller, which account shall be under the sole control and dominion
of Seller and paid out at the direction of Seller, except as set forth in
Section 6.02 hereof.
(b) The Escrow Agent agrees to hold and dispose of the Escrow
Fund, the Payment Fund and the Additional Escrow Account in accordance with the
terms and conditions of this Agreement. The Parties acknowledge and agree that
the Escrow Fund and the Payment Fund may not be insured by the Federal Deposit
Insurance Corporation. The Escrow Account and the Payment Account shall be under
the sole control and dominion of the Escrow Agent, subject to the terms of this
Agreement, and shall require an authorized signature of the Escrow Agent in
order to make withdrawals therefrom.
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3.02 INVESTMENT OF THE ESCROW FUND.
(a) The Escrow Fund shall be invested, at the written
direction of Seller in any of the following (collectively, the "Permitted
Investments"): (i) United States Treasury Bills maturing within ninety-one (91)
days of the date of purchase; (ii) demand deposit accounts, money market deposit
accounts and certificates of deposit with a term not greater than ninety (90)
days with a United States depository having a reported capital and surplus of
not less than $50 million; (iii) commercial paper which is rated on the date of
purchase in one of the two highest rating categories by both Standard & Poor's
Ratings Group and Xxxxx'x Investors Service, Inc. (together, the "Rating
Agencies") and matures not more than ninety (90) days from the date of purchase;
and (iv) investment agreements, guaranteed investment contracts, repurchase
agreements and similar investment instruments, the issuer or guarantor of which
is rated in one of the two highest rating categories by both of the Rating
Agencies, which instruments have a term not greater than ninety (90) days. In
the absence of any direction for investing the Escrow Fund, the Escrow Agent
shall invest the Escrow Fund in One Group Treasury Only Money Market Fund.
(b) The Escrow Agent shall have no liability for any loss
incurred as a result of investments made or liquidated by it in accordance with
the provisions of this Agreement.
ARTICLE 4
DISTRIBUTION OF THE ESCROW FUND
-------------------------------
AND THE PAYMENT FUND
--------------------
4.01 DISTRIBUTION OF THE ESCROW FUND AND THE PAYMENT FUND.
(a) Unless otherwise set forth herein and subject to the terms
and conditions of this Agreement, the Escrow Fund minus (i) any Pending Claims
Amount (defined below), (ii) any amounts previously distributed to Buyer
pursuant to the terms of this Agreement, and (iii) any amounts that the Escrow
Agent is required to withhold pursuant to applicable law for Taxes, with respect
to income earned on, or derived from, the Escrow Fund shall, if such amount is
positive, be distributed to Seller on February 25, 2002 (the "Distribution
Date") in the manner set forth in a written notice given to the Escrow Agent by
Seller prior to the Distribution Date. The Distribution Date may be extended in
accordance with Section 4.02(b) hereof.
(b) The Payment Fund shall be distributed on the Closing Date
in the manner set forth on Schedule A hereto.
4.02 INDEMNIFICATION CLAIMS MADE AGAINST THE ESCROW FUND.
(a) Subject to the terms and conditions set forth in the
Purchase Agreement, at any time following the Closing Date and prior to the
Distribution Date, Buyer may deliver written notice (a "Notice of Claim") to the
Escrow Agent and to Seller, to the effect that Buyer is entitled to
indemnification by Seller pursuant to the
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Purchase Agreement and is entitled to receive payment therefor out of the Escrow
Fund, and such Notice of Claim shall constitute the assertion of a claim by
Buyer against the Escrow Fund. Each Notice of Claim shall be given in good faith
and shall set forth in reasonable detail the nature and estimated amount of the
losses, damages, demands, claims, assessments, actions, Taxes, penalties,
interest, reasonable attorneys' and accountants' fees, settlement costs and
other costs and expenses incurred by Buyer (collectively, "Losses") giving rise
to a right of indemnification. Upon receipt by the Escrow Agent of any Notice of
Claim, the Escrow Agent shall retain in the Escrow Fund an amount equal to the
Losses claimed by Buyer (a "Pending Claims Amount") until such time as there has
been a determination of such Losses in accordance with the terms and provisions
of the Purchase Agreement.
(b) Seller and Buyer shall follow the procedures and be
subject to the limitations set forth in Article 11 and Article 12 of the
Purchase Agreement, in connection with any claim for indemnification. Delivery
of a Notice of Claim pursuant to Section 4.02(a) shall extend the Distribution
Date solely with respect to the Pending Claims Amount until such time as there
has been a final determination of such Losses in accordance with the terms and
provisions of the Purchase Agreement.
(c) For purposes hereof, the term "final determination" means
any decision, order, judgment, decree or award from which no appeal or petition
for certiorari or application to vacate is available. Except as hereinafter
provided, within ten (10) business days after the receipt by Seller and the
Escrow Agent of any notice of final determination in favor of Buyer with respect
to Seller's indemnification obligations (which notice shall be accompanied by a
copy of any document, agreement, award or order, judgment or decree evidencing
such final determination) or upon written instructions from Seller, the Escrow
Agent shall deliver to Buyer from the Escrow Fund, free and clear of any
interest of Seller, an amount equal to the amount of such Losses as finally
determined in accordance with Article 11 of the Purchase Agreement or as set
forth in any written instructions from Seller, as the case may be.
Notwithstanding the foregoing, no payment shall be made by the Escrow Agent to
Buyer if, within the aforesaid ten-business day period, the Escrow Agent and
Buyer receive an opinion of counsel for Seller, addressed to the Escrow Agent
and Buyer, stating that in such counsel's opinion the determination relied upon
by Buyer is not a final determination (as defined above) and outlining the
action to be taken by Seller to have that determination reviewed or vacated. In
the event of a final determination in favor of Seller after the initial
Distribution Date has occurred, the Escrow Agent shall deliver to Seller, in the
manner set forth in a notice given to the Escrow Agent by Seller prior to such
delivery, that amount of the Pending Claims Amount relating to such final
determination, if any, in excess of any other remaining Pending Claims Amounts.
4.03 PROVISIONS OF THE PURCHASE AGREEMENT. Nothing in this Agreement
shall derogate from, or modify in any respect any of the terms and provisions of
the Purchase Agreement, including, without limitation, Article 11 thereof with
respect to indemnification. Nothing in this Agreement shall prevent Buyer from
exercising its rights to receive indemnification from Seller, subject to any
applicable limitations, pursuant to the Purchase Agreement for amounts in excess
of the Escrow Fund.
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ARTICLE 5
SETTLEMENT OF DISPUTES
----------------------
5.01 SETTLEMENT OF DISPUTES. Any dispute that may arise under this
Agreement with respect to (a) the facts upon which the Escrow Agent's
determinations are based, (b) the duties of the Escrow Agent hereunder, and (c)
any other questions arising under this Agreement, shall be finally determined
(i) by mutual agreement of Buyer and Seller (evidenced by appropriate
instructions in writing to the Escrow Agent signed by Buyer and Seller), within
thirty (30) days after such dispute arises, or (ii) as described in Article 12
of the Purchase Agreement; provided, however, that the foregoing shall not be
construed to preclude Buyer and Seller from resolving any dispute arising
hereunder by mutual agreement in accordance with clause (i) above at any time;
provided further, that if the Escrow Agent has deposited the amount remaining in
the Escrow Fund with a court pursuant to Section 6.08 hereof, the dispute shall
be determined by such court. The Escrow Agent shall be under no duty to
institute or defend any proceeding relating to any such dispute and none of the
costs and expenses of any such proceeding shall be borne by the Escrow Agent.
Pending the resolution of any dispute as provided in this Article 5, the Escrow
Agent is authorized and directed to retain in its possession the portion of the
Escrow Fund that is the subject of or involved in the dispute.
5.02 ATTORNEYS' FEES AND EXPENSES. In the event action is brought to
enforce the provisions of this Agreement pursuant to this Article 5, the
non-prevailing Party shall be required to pay the reasonable attorneys' fees and
expenses of the prevailing Party, except that if in the opinion of the court
deciding such action there is no prevailing Party, each Party shall pay its own
attorneys' fees and expenses.
ARTICLE 6
PROVISIONS CONCERNING THE ESCROW AGENT
--------------------------------------
6.01 AMENDMENTS AND MODIFICATIONS. Subject to the provisions of Section
7.06 hereof, the Escrow Agent shall not in any way be bound or affected by any
amendment, modification or cancellation of this Agreement which increases or
alters the obligations of the Escrow Agent under or pursuant to this Agreement,
unless the same shall have been agreed to in writing by the Escrow Agent.
6.02 COMPENSATION. The Escrow Agent shall be entitled to the fees set
forth on Schedule B attached hereto and to reimbursement for all reasonable
out-of-pocket expenses (including the reasonable fees and expenses of counsel)
incurred in connection with the performance of its services hereunder. Each of
Buyer, on the one hand, and Seller, on the other hand, shall bear one-half of
any liability for fees owed to and reimbursement of expenses incurred by the
Escrow Agent pursuant to this Section 6.02. Upon receipt by Buyer and Seller of
the Escrow Agent's written notice itemizing such fees and out-of-pocket
expenses, the Escrow Agent shall be entitled to the payment thereof within
thirty (30) days after such written notice is given. Notwithstanding anything to
the contrary contained herein, the Escrow Agent shall be entitled to retain
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from any disbursements requested hereunder any outstanding fees and/or expenses
due from the Party to whom such funds are to be disbursed. The Escrow Agent is
hereby granted a first lien on the portion of the Escrow Fund and the Additional
Escrow Amount otherwise payable to a Party for all indebtedness that may become
owing to the Escrow Agent by such Party pursuant to this Escrow Agreement. In
the event that such fees or expenses are not paid to the Escrow Agent within
thirty (30) days of written notice, the Escrow Agent may charge such fee against
that portion of the Escrow Fund and the Additional Escrow Amount, if any,
determined to be due to the Party from whom such fees and expenses are owed;
provided that any amounts owing by Buyer hereunder shall only be charged against
the Escrow Account and any amounts owing by Seller hereunder shall first be
charged against the Additional Escrow Account.
6.03 DUTIES OF THE ESCROW AGENT. This Agreement sets forth the duties
and obligations of the Escrow Agent with respect to any and all matters
pertinent to its acting as such hereunder. The Escrow Agent shall not have
duties or responsibilities under this Agreement other than those specifically
set forth herein and shall act only in accordance with the provisions hereof.
Without limiting the generality of the foregoing, the Escrow Agent shall not
have any duty or responsibility (i) to enforce or cause to be enforced any of
the terms and conditions contained in the Purchase Agreement, or (ii) to verify
the accuracy or sufficiency of any notice or other document received by it in
connection with this Agreement. The Escrow Agent shall be entitled to rely upon
any instructions or directions to it in writing under this Agreement signed by
the proper Party or Parties and shall be entitled to treat as genuine any
instruction or document delivered to the Escrow Agent hereunder and reasonably
believed by the Escrow Agent to be genuine and to have been presented by the
proper Party or Parties, without being required to determine the authenticity or
correctness of any fact stated therein, or the authority or authorization of the
person or persons making and/or delivering the same.
6.04 LIABILITY OF THE ESCROW AGENT. Neither the Escrow Agent nor any of
its officers, directors, employees, shareholders, representatives or agents
shall be liable to Buyer or Seller, or any other person or entity for or in
respect of any Losses resulting from or arising out of any act or failure to act
by it in connection with this Agreement, other than for any Loss which shall be
finally adjudicated to be the result of gross negligence or willful misconduct
on the part of the Escrow Agent or any such officers, directors, employees,
shareholders, representatives or agents. The Escrow Agent shall not be liable or
responsible because of the loss of any monies arising as a result of investments
made in accordance with this Agreement or through the insolvency or the act of
default or omission of any depository in which such monies shall have been
deposited. Any payments of income from (i) the Escrow Fund, or the Additional
Escrow Account, as the case may be, and (ii) the Payment Fund, or the Payment
Account, as the case may be, shall be subject to withholding regulations then in
force with respect to United States Taxes. If applicable, the Parties will
provide the Escrow Agent with appropriate Internal Revenue Service Forms W-9 for
tax identification number certification, or non-resident alien certifications.
This Section 6.03 shall survive notwithstanding any termination of this
Agreement or the resignation of the Escrow Agent. The Escrow Agent shall provide
all appropriate forms and documentation to Seller (with copies thereof to Buyer)
so as to permit Seller to file Tax Returns, and pay all Taxes with respect to
income earned on (i)
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the Escrow Fund, or the Additional Escrow Account, as the case may be, and (ii)
the Payment Fund, or the Payment Account, as the case may be.
6.05 INDEMNITY OF THE ESCROW AGENT. Buyer, other than with respect to
the matters described in Section 7.13 hereof, and Seller hereby agree, severally
but not jointly, to protect, defend, indemnify and hold harmless the Escrow
Agent against any and all costs, losses, damages, liabilities, claims, expenses
(including the reasonable fees and expenses of counsel) and claims incurred by
it without gross negligence or willful misconduct on the indemnified Party's
part arising out of or in connection with its entering into this Escrow
Agreement and the carrying out of its duties hereunder, including the reasonable
costs and expenses of defending itself against any claim of liability relating
to this Escrow Agreement. Buyer and Seller agree that any amounts due to the
Escrow Agent pursuant to the preceding sentence shall be borne equally by them.
6.06 RESIGNATION OF THE ESCROW AGENT. At any time that the Escrow Agent
so chooses, the Escrow Agent may resign from its duties hereunder by giving not
less than thirty (30) days' prior written notice to Buyer and Seller and shall
designate, by mutual consent, a successor escrow agent; provided, that
notwithstanding any resignation date set forth in the Escrow Agent's notice,
such resignation shall not take effect until receipt by the Escrow Agent of an
instrument duly executed by a successor escrow agent evidencing its appointment
as Escrow Agent hereunder and acceptance of this Agreement. If no successor
escrow agent is appointed within such thirty (30) day period, the Escrow Agent
may deposit the amount remaining in the Escrow Fund with a court of competent
jurisdiction as provided in Section 6.08 hereof, whereupon the Escrow Agent
shall be discharged of all duties and obligations hereunder.
6.07 REMOVAL OF ESCROW AGENT. The Escrow Agent may be removed at any
time by mutual agreement of Buyer and Seller by giving not less than thirty (30)
days' prior written notice to the Escrow Agent. Prior to the expiration of such
thirty (30) day period, Buyer and Seller shall designate, by mutual consent, a
successor escrow agent. If no successor escrow agent is appointed within such
thirty (30) day period, the Escrow Agent may deposit the amount remaining in the
Escrow Fund with a court of competent jurisdiction as provided in Section 6.08
hereof, whereupon the Escrow Agent shall be discharged of all duties and
obligations hereunder.
6.08 DEPOSIT WITH COURT. Notwithstanding anything herein to the
contrary, in the event of any disagreement between any of the Parties to this
Agreement, or between them and any other person, resulting in adverse claims or
demands being made against the Escrow Fund, or in the event the Escrow Agent in
good faith is in doubt as to what action it should take hereunder, the Escrow
Agent may be discharged of its duties and obligations hereunder upon its
deposit, at any time after ten (10) days' written notice to Buyer and Seller of
the amount remaining in the Escrow Fund with a court of competent jurisdiction
in Wilmington, Delaware. The Parties hereby submit to the personal jurisdiction
of any such court, waive any and all right to contest the jurisdiction of such
court, and consent to service of process by hand delivery or mail delivery
thereof to their respective addresses set forth in Section 7.01 hereof.
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6.09 ABILITY TO CONSULT COUNSEL. The Escrow Agent may confer with legal
counsel in the event of any dispute or question as to the construction of any of
the provisions hereof, or its duties hereunder, and it shall incur no liability
and it shall be fully protected in acting in accordance with the opinions of
such counsel.
ARTICLE 7
MISCELLANEOUS
-------------
7.01 NOTICES. All notices, requests and other communications which are
required or permitted hereunder shall be sufficient if given in writing and
shall be deemed effective (i) when delivered personally, (ii) when delivered by
registered or certified mail, postage prepaid,, or (iii) when delivered by an
overnight carrier, as follows (or to such other address as shall be set forth in
a notice given in the same manner):
NOTICES TO BUYER:
Atrium Companies, Inc.
0000 X. Xxxxxxxxxxx Xxxx
Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Xxxx X. Xxxx
- and -
Atrium Companies, Inc.
c/o Ardshiel, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxx Xxxxxxxxxx, Esq.
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NOTICES TO SELLER:
The Xxxxxxx Company, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Xxxx Xxxxxxx, Jr.
with a copy to:
Xxxxxx Xxxx Xxxxxx Xxxx & Xxxxxxxxxx P.L.L.C.
000 Xxxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
NOTICES TO THE ESCROW AGENT:
Bank One, Texas, N.A.
0000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile 000-000-0000
Attention: Corporate Trust Department
A copy of any notice or other communication given or made to or by the
Escrow Agent pursuant to this Agreement shall in addition be given or made to
each of the other Parties.
7.02 COUNTERPARTS. This Agreement may be executed in several
counterparts each of which is an original and all of which, taken together,
shall constitute a single instrument.
7.03 CONTENTS OF AGREEMENT: PARTIES IN INTEREST, ETC. This Agreement
and the Purchase Agreement and the documents referred to therein set forth the
entire understanding of the Parties. Any previous agreements or understandings
between the Parties regarding the subject matter hereof are merged into and
superseded by this Agreement. All representations, warranties, covenants, terms,
conditions and provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective heirs, legal
representatives, successors and permitted assigns of the Parties. Neither this
Agreement nor any rights, interest or obligations hereunder may be assigned by
any Party without the prior written consent of all other Parties.
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7.04 GOVERNING LAW; VENUE. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York without regard to
the principles of conflict of laws.
7.05 SECTION HEADINGS. The section headings herein have been inserted
for convenience of reference only and shall in no way modify or restrict any of
the terms or provisions hereof.
7.06 MODIFICATION AND WAIVER. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the Party which is entitled to
the benefits thereof, and this Agreement may be modified or amended at any time
by Buyer, Seller and the Escrow Agent. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by Buyer and
Seller and, in the case of Article 6 hereof only, the Escrow Agent. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof nor shall such waiver constitute a
continuing waiver.
7.07 INVALID PROVISIONS. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
7.08 THIRD PARTY BENEFICIARIES. Except as otherwise expressly set forth
herein, no individual or entity shall be a third-Party beneficiary of the
representations, warranties, covenants and agreements made by any Party.
7.09 TERMINATION.
(a) This Agreement may, by written notice given prior to or at
the Closing, be terminated:
(1) By any of the Parties if the Purchase Agreement is
terminated pursuant to its terms; or
(2) By mutual written consent of Buyer and Seller.
(b) The Escrow Agent's rights to indemnity and to receive
payment of its fees and expenses shall survive any termination of this Escrow
Agreement.
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7.10 SECURITIES STATEMENTS. Pursuant to the regulations of the Office
of the Comptroller of the Currency, 12 C.F.R. 12.5(a), Buyer and Seller have the
right to receive, at no additional cost and within five (5) business days of the
transaction, a written notification disclosing certain information relating to
securities purchase and sale transactions in the Escrow Account. The Escrow
Agent has the option of furnishing to Buyer and Seller either (i) a copy of the
broker-dealer confirmation relating to the transaction, or (ii) a written
notification disclosing the Escrow Agent's name, the account name, the Escrow
Agent's capacity in the transaction, the date of execution (and, upon the
Buyer's and Seller's written request, the time of execution) of the transaction,
the identity, price and number of shares involved, the remuneration to the
broker-dealer and its identity, the total remuneration to be received by the
Escrow Agent and, if no broker-dealer was involved, the identity of the person
from whom the security was purchased or to whom it was sold.
In lieu of the foregoing time and form of notification, Buyer and
Seller agree that the Escrow Agent's periodic statements, transmitted pursuant
to the terms of this Escrow Agreement, will suffice.
7.11 FORM 1099. The Escrow Agent shall provide any Form 1099 required
to be provided in respect of the Escrow Account, Payment Account and Additional
Escrow Account to Seller.
7.12 AUTHORIZED SIGNATORIES. The following persons are authorized to
direct the Escrow Agent regarding any transactions to this Escrow Agreement
including, but not limited to, investment and/or disbursement of the funds and
securities held hereunder.
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx, Xxxx Xxxxxxx, Jr.,
on behalf of Buyer on behalf of Seller
------------------------------
Xxxx X. Xxxx,
on behalf of Buyer
7.13 TAX LIABILITIES. Seller hereby agrees to indemnify the Escrow
Agent and the Buyer and its affiliates fully from any Tax liability, penalties
or interest incurred by the Escrow Agent arising as a result of or with respect
to any or all of the Escrow Fund, the Payment Fund and the Additional Escrow
Account and agrees to pay in full any such Tax liability together with penalty
and interest, if any, that is ultimately assessed against the Escrow Agent
and/or the Buyer or its affiliate for any reason as a result of or with respect
to any or all of the Escrow Fund, the Payment Fund and the Additional Escrow
Account. Seller agrees that, for purposes of federal and other Taxes, Seller
will be treated as the owner of one hundred percent (100%) of the Escrow Fund,
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Payment Fund and Additional Escrow Account and that Seller will report all
income, if any, that is earned on, or derived from, the Escrow Fund, Payment
Fund and Additional Escrow Account as Seller's income, in the taxable year or
years in which such income is properly includible and pay any and all Taxes
attributable thereto, regardless of whether any distributions are made to such
Seller. The Parties agree that this provision will be consistently applied by
the Parties and is intended to satisfy Proposed Treasury Regulation
ss.1.468B-8(h)(2).
[Signature pages to follow]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date and the year first above written.
ATRIUM COMPANIES, INC.
By:
------------------------------
Name: Xxxx X. Xxxx
Title: President
THE XXXXXXX COMPANY, INC.
By:
------------------------------
Name: Xxxx Xxxxxxx, Jr.
Title: President
BANK ONE, TEXAS, N.A.
By:
------------------------------
Name:
Title:
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SCHEDULE A
PAYMENTS TO BE MADE ON THE CLOSING DATE FROM THE PAYMENT FUND
1. Bank of America $653,345.28
Charlotte, NC
ABA 000000000
Beneficiary: Commercial Loan Services
GL Account #13662109198000
Obligor #176403
Obligation #513
2. First Union National Bank $1,198,177
Charlotte, NC
Attn: Xxxxxx XxXxxx
Account Name: First Union Securities, Inc.
Market Access Account
Account Number: 2070498150299
Routing Number: 000000000
Reference: Xxxxxxx Window & Doors
3. Bank of America $10,000,000
Charlotte, NC
ABA 000000000
Account Name: The Xxxxxxx Company, Inc.
Greensboro NC
Account Number: 000021239322
4. Chase Manhattan Bank, N.A. $79,148,469.72
ABA 000000000
For the account of United States Trust Company of New York
A/C #000-0-000000
For further credit to A/C #60736500
In the name of Xxxxxxx Company, Inc.
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SCHEDULE B
ESCROW AGENT FEES
BANK ONE, TEXAS, NA
ESCROW FEE SCHEDULE
RE: PROPOSED ESCROW AGREEMENT AMONG D AND W HOLDINGS, INC., THE XXXXXXX
COMPANY, INC.,
AND BANK ONE, TEXAS, NA
ANNUAL ADMINISTRATION FEE..............................................$2,000.00
EXTRAORDINARY TIME CHARGES.............................$200 PER HOUR (SEE BELOW)
ADDITIONAL TERMS AND CONDITIONS:
ACCEPTANCE OF THE APPOINTMENT IS SUBJECT TO DOCUMENT PROVISIONS BEING
SATISFACTORY TO BANK ONE.
AFTER INITIAL REVIEW AND COMMENT ON THE ESCROW DOCUMENT, ANY ADDITIONAL
REVIEW, COMMENT AND NEGOTIATION ON MATERIAL CHANGES TO THE DOCUMENT
WILL BE BILLED AS EXTRAORDINARY TIME CHARGES.
THE FEES QUOTED IN THIS LETTER APPLY TO SERVICES ORDINARILY RENDERED IN
THE ADMINISTRATION OF AN AGENCY ACCOUNT. THEY ARE SUBJECT TO REASONABLE
ADJUSTMENT BASED ON FINAL REVIEW OF DOCUMENTS. FEES CAN ALSO BE
ADJUSTED WHEN THE AGENT IS CALLED UPON TO UNDERTAKE UNUSUAL DUTIES OR
RESPONSIBILITIES, OR AS CHANGES IN LAW, PROCEDURES, OR THE COST OF
DOING BUSINESS DEMAND. SERVICES IN ADDITION TO AND NOT CONTEMPLATED IN
THE AGREEMENT, INCLUDING BUT NOT LIMITED TO DOCUMENT AMENDMENTS AND
REVISIONS, NONSTANDARD CASH AND/OR INVESTMENT TRANSACTIONS,
CALCULATIONS, NOTICES, REPORTS, AND DEFAULT ADMINISTRATION MAY BE
BILLED AS EXTRAORDINARY TIME CHARGES.
UNLESS OTHERWISE INDICATED, THE ABOVE FEES PROVIDE FOR THE
ESTABLISHMENT OF ONE ACCOUNT. ADDITIONAL SUB-ACCOUNTS GOVERNED BY THE
SAME ESCROW AGREEMENT MAY BE ESTABLISHED AT AN ADDITIONAL CHARGE OF
$250 PER ACCOUNT.
THE ACCEPTANCE FEE AND THE FIRST YEAR ANNUAL ADMINISTRATION FEE ARE
PAYABLE UPON EXECUTION OF THE ESCROW DOCUMENTS. IN THE EVENT THE ESCROW
IS NOT FUNDED, THE ACCEPTANCE FEE AND ALL RELATED EXPENSES WILL NOT BE
REFUNDED. ANNUAL ADMINISTRATION FEES COVER A FULL YEAR IN ADVANCE, OR
ANY PART THEREOF, AND THUS ARE NOT PRO-RATED IN THE YEAR OF
TERMINATION.
UPON A CLIENT'S DIRECTION, CASH BALANCES WILL BE INVESTED IN ANY ONE OF
THE FOLLOWING:
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CASH BALANCES MAY BE INVESTED IN THE ONE GROUP(R) MONEY MARKET
FUNDS IN WHICH EVENT BANK ONE WILL CHARGE A 50 BASIS POINT
(.005) CASH MANAGEMENT FEE. THE ONE GROUP(R) WILL PAY BANC ONE
INVESTMENT ADVISORS CORPORATION, AN AFFILIATE OF BANK ONE, AN
INVESTMENT ADVISORY FEE AS DESCRIBED IN THE PROSPECTUSES.
CASH BALANCES MAY BE INVESTED IN AN ALTERNATIVE SHORT-TERM
INVESTMENT FUND IN WHICH EVENT BANK ONE WILL CHARGE A 00 XXXXX
XXXXX (.005) CASH MANAGEMENT FEE.
IN DETERMINING THE GENERAL SCHEDULE OF FEES, BANK ONE TAKES INTO
CONSIDERATION THE VARIOUS INCIDENTAL BENEFITS ACCRUING TO IT FROM THE
OPERATION OF THE ACCOUNTS. COLLECTED FUNDS MUST BE ON DEPOSIT PRIOR TO
DISBURSEMENT OF PAYMENTS. IN ADDITION, BANK ONE HAS THE USE OF FUNDS
DEPOSITED TO PAY CHECKS THAT HAVE NOT YET BEEN PRESENTED FOR PAYMENT.
NO INTEREST SHALL BE PAID TO THE CLIENT ON THESE FUNDS, IT BEING
UNDERSTOOD THAT THE FLOAT ON THESE FUNDS IS CONSIDERED IN THE
CALCULATION OF OUR FEES.
SHOULD YOU ELECT TO APPOINT BANK ONE AS YOUR ESCROW AGENT, WE REQUEST THAT YOU
SIGN AND RETURN THE ENCLOSED COPY OF THIS ATTACHMENT ACKNOWLEDGING YOUR
AGREEMENT TO THESE FEES, TERMS, AND CONDITIONS.
ACKNOWLEDGMENT AND ACCEPTANCE:
------------------------------
THE UNDERSIGNED AGREES TO THE ABOVE-QUOTED FEES, TERMS, AND CONDITIONS.
BY: ___________________________________________
DATE: _________________________________________
NOT FDIC INSURED * NO BANK GUARANTEE * MAY LOSE VALUE
ONE GROUP MUTUAL FUNDS DISTRIBUTED BY THE ONE GROUP SERVICES COMPANY, 0000
XXXXXXX XXXX, XXXXXXXX, XXXX 00000 WHICH IS NOT AFFILIATED WITH BANK ONE
CORPORATION. BANC ONE INVESTMENT ADVISORS CORPORATION SERVES AS AN INVESTMENT
ADVISOR TO THE ONE GROUP FOR WHICH IT RECEIVES ADVISORY FEES. CALL INVESTOR
SERVICES AT THE ONE GROUP SERVICES COMPANY AT 0-000-000-0000 FOR A PROSPECTUS
CONTAINING COMPLETE INFORMATION ABOUT CHARGES AND EXPENSES. READ CAREFULLY
BEFORE INVESTING.
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