ESCROW AGREEMENT
THIS
ESCROW AGREEMENT (as the same may be amended or modified from time to time
pursuant hereto, this "Escrow Agreement") is
made and entered into as of October 2, 2008, by and among GAMCO Investors Inc.,
a New York corporation ("GAMCO"), Cascade
Investment, L.L.C., a Washington limited liability company ("Cascade", and
together with GAMCO, sometimes referred to individually as "Party" or
collectively as the "Parties"), and
JPMorgan Chase Bank, National Association (the "Escrow
Agent"). Capitalized terms used but not defined in this Escrow
Agreement that are defined in the Purchase Agreement (defined below) shall have
the meanings assigned to such terms in the Purchase Agreement.
WHEREAS, GAMCO and
Cascade have entered into a Note Purchase Agreement, dated as of the
date hereof (the "Purchase Agreement");
and
WHEREAS, the Parties have
agreed to deposit in escrow certain funds and wish such deposit to be subject to
the terms and conditions set forth herein.
NOW THEREFORE, in
consideration of the foregoing and of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Appointment. The
Parties hereby appoint the Escrow Agent as their escrow agent for the purposes
set forth herein, and the Escrow Agent hereby accepts such appointment under the
terms and conditions set forth herein.
2. Escrow
Account. GAMCO agrees to deposit with the Escrow Agent the
initial sum of US$61,950,000 in cash (the "Escrow
Deposit"). The Escrow Agent shall hold the Escrow Deposit and
any investment proceeds thereof or interest thereon (collectively, the “Escrowed Funds”) in
its name or the name of its nominee in a separate segregated and earmarked
escrow account (the “Escrow Account”)
until this Escrow Agreement has terminated and all of the Escrowed Funds have
been released to the Parties, in each case in accordance with the terms and
conditions of this Escrow Agreement. The Escrow Agent shall invest and reinvest
the Escrow Deposit and the investment proceeds thereof and interest thereon as
directed in Section 3. The Escrow Agent shall hold and safeguard the Escrowed
Funds and any other property deposited or held from time to time in the Escrow
Account during the term of this Escrow Agreement. The Escrowed Funds shall not
be subject to any lien, attachment, claim, trustee process or any other judicial
process of any creditor of any party hereto.
3. Investment of Escrowed
Funds. During the term of this Escrow Agreement, the Escrowed
Funds shall be invested as instructed in writing by GAMCO in United States
Treasury Bills ("Permitted
Investments") as available under then-current market conditions and
prices, and any income from such investments will become part of the Escrowed
Funds. In the event that United States Treasury Bills are unavailable
or circumstances prevent GAMCO from providing written instructions to the Escrow
Agent, the Escrow Agent shall invest the Escrowed Funds in a cash deposit
account at JPMorgan Chase Bank, N.A. (“Cash Deposit Account”) selected by the
Escrow Agent, which shall initially be the JPMorgan Cash Compensation
Account. Cash Deposit Accounts have rates of compensation that may
vary from time to time based upon market conditions. Written investment
instructions, if any, shall specify the type and identity of the investments to
be purchased and/or sold. The Escrow Agent is hereby authorized to
execute purchases and sales of investments through the facilities of its own
trading or capital markets operations or those of any affiliated
entity. The Escrow Agent or any of its affiliates may receive
compensation with respect to any investment directed hereunder including without
limitation charging an agency fee in connection with each transaction. The
Escrowed Funds shall not be invested in any investment other than the Permitted
Investments or the Cash Deposit Account without the prior written consent of
both Parties. Promptly after the end of each calendar month during the term of
this Escrow Agreement, the Escrow Agent shall provide to the Parties a statement
setting forth in reasonable detail a breakdown of the cash and Permitted
Investments comprising the Escrowed Funds (the "Monthly Statement").
If at any time during the term of this Escrow Agreement, the fair market value
of the Escrowed Funds (with any cash in US dollars being valued at the face
amount thereof and any United States Treasury Bills valued as quoted by
Xxxxxxxxx.xxx, or any successor thereto, at 4:00 p.m. on the Business Day prior
to the valuation date) is less than the sum of (i) the Unpaid Principal Amount
and (ii) six months of interest on the Unpaid Amount at the rate of 6.5% per
annum (the "Floor
Amount"), then GAMCO shall deposit or cause to be deposited in the Escrow
Account cash in an amount equal to such shortfall. The Parties recognize and
agree that the Escrow Agent will not provide supervision, recommendations or
advice relating to either the investment of moneys held in the Escrow Account or
the purchase, sale, retention or other disposition of any investment described
herein. The Escrow Agent shall not have any liability for any loss sustained as
a result of any investment in an investment made pursuant to the terms of this
Escrow Agreement or as a result of any liquidation of any investment prior to
its maturity or for any failure of the Parties to give the Escrow Agent
instructions to invest or reinvest the Escrowed Funds; provided, however, that the
foregoing shall not relieve the Escrow Agent for any liability arising out of or
resulting from its gross negligence, or willful misconduct.
4. Release and Termination. The
Escrow Agent shall only release Escrowed Funds from the Escrow Account as
provided in this Section 4.
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(a)
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If,
on or prior to the Exercise Date, (i) Cascade exercises any Note Put
Option or an Event of Default occurs, and (ii) GAMCO fails to deliver all
or any portion of the consideration due and payable in respect of such
exercise or Event of Default (in each case, the “Unpaid Amount”)
when it becomes due under the Note (in each case, the “Due Date”),
Cascade, in its sole discretion, may deliver a written notice (each, a
“Payment
Notice”) to the Escrow Agent and GAMCO on or after the Due Date
requesting payment of such Unpaid
Amount.
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(b)
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Cascade
and GAMCO shall, (i) promptly after the occurrence of each Partial Release
Event, (ii) promptly after receipt of each Monthly Statement and (iii) at
such other time as they shall mutually agree, deliver a joint written
notice (each, a “Mutual Release
Notice”) to the Escrow Agent instructing the Escrow Agent to
release all of the Escrowed Funds in excess of the Floor Amount to
GAMCO. "Partial Release
Event" means each partial conversion of the Note into Common Stock
or a partial exercise of any Note Put
Option.
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(c)
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This
Escrow Agreement shall terminate (other than the provisions of Sections 7
and 8 which will survive termination) upon the earlier to occur of (i) the
full conversion of the entire aggregate principal amount of the Note, (ii)
the first Business Day after the entire aggregate principal amount of the
Note has been paid in full, and (iii) the first Business Day after the
Exercise Date on which all outstanding Payment Notices have be fully
discharged and paid in full. The Parties shall give the Escrow Agent joint
written notice of the termination of this Escrow Agreement (the “Termination
Notice”).
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(d)
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Upon
receipt of a Payment Notice, Mutual Release Notice or Termination Notice,
the Escrow Agent shall, promptly and in no event later than one (1)
Business Day after the date on which it receives such notice, to the
extent necessary to make such payment, convert Escrowed Funds into cash in
U.S. dollars, and release to Cascade or GAMCO, as specified in such
notice, from the Escrow Account an amount in cash in U.S. dollars equal to
the amount specified in the notice by wire transfer of immediately
available funds to the account or accounts specified by Cascade or GAMCO,
as applicable, in the notice.
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(e)
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All
Payment Notices, Mutual Release Notices or Termination Notices provided
under this Section 4 shall specify the amount and maturity date of the
United States Treasury Xxxx which is to be liquidated in order to make
such funds transfer and the Escrow Agent shall have no discretion
thereto.
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5. Escrow Agent.
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(a)
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The
Escrow Agent shall have only those duties as are specifically and
expressly provided herein, which shall be deemed purely ministerial in
nature, and no other duties shall be implied. The Escrow Agent
shall neither be responsible for, nor chargeable with, knowledge of, nor
have any requirements to comply with, the terms and conditions of any
other agreement, instrument or document between the Parties, in connection
herewith, if any, including without limitation the Purchase Agreement, nor
shall the Escrow Agent be required to determine if any person or entity
has complied with any such agreements, nor shall any additional
obligations of the Escrow Agent be inferred from the terms of such
agreements, even though reference thereto may be made in this Escrow
Agreement. Solely with respect to the duties of the Escrow
Agent, in the event of any conflict between the terms and provisions of
this Escrow Agreement, those of the Purchase Agreement, any schedule or
exhibit attached to the Escrow Agreement, or any other agreement among the
Parties, the terms and conditions of this Escrow Agreement shall
control. The Escrow Agent may rely upon and shall not be liable
for acting or refraining from acting upon any written notice, document,
instruction or request furnished to it hereunder and believed by it to be
genuine and to have been signed or presented by the proper Party or
Parties without inquiry and without requiring substantiating evidence of
any kind. The Escrow Agent shall be under no duty to inquire
into or investigate the validity, accuracy or content of any such
document, notice, instruction or request. The Escrow Agent
shall have no duty to solicit any payments which may be due it or the
Escrow Account, including, without limitation, the Escrow Deposit nor,
except as expressly set forth herein, shall the Escrow Agent have any duty
or obligation to confirm or verify the accuracy or correctness of any
amounts deposited with it
hereunder.
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(b)
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The
Escrow Agent shall not be liable for any action taken, suffered or omitted
to be taken by it in good faith except to the extent that a final
adjudication of a court of competent jurisdiction determines that the
Escrow Agent's gross negligence, or willful misconduct was the cause of
any loss to either Party. The Escrow Agent may execute any of
its powers and perform any of its duties hereunder directly or through
attorneys, and shall be liable only for its gross negligence, or willful
misconduct (as finally adjudicated in a court of competent jurisdiction)
in the selection of any such attorney. The Escrow Agent may
consult with counsel, accountants and other skilled persons to be selected
and retained by it. The Escrow Agent shall not be liable for
any action taken, suffered or omitted to be taken by it in accordance
with, or in reliance upon, the advice or opinion of any such counsel,
accountants or other skilled persons so long as such persons were selected
with reasonable care. In the event that the Escrow Agent shall
be uncertain or believe there is some ambiguity as to an investment
instruction hereunder or shall receive instructions, claims or demands
from any party hereto regarding the investment of the Escrowed Funds
which, in its opinion, conflict with any of the provisions of this Escrow
Agreement, it shall be entitled to refrain from taking any action and its
sole obligation shall be to keep safely all property held in escrow until
it shall be given a direction in writing by the Parties which
eliminates such ambiguity or uncertainty as to investment of the Escrowed
Funds to the satisfaction of Escrow Agent or by a final and non-appealable
order or judgment of a court of competent jurisdiction. The Parties
agree, to the extent reasonably practicable, to pursue any redress or
recourse in connection with any dispute without making the Escrow Agent a
party to the same. Anything in this Escrow Agreement to the
contrary notwithstanding, in no event shall the Escrow Agent be liable for
special, incidental, punitive, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if
the Escrow Agent has been advised of the likelihood of such loss or damage
and regardless of the form of
action.
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6. Succession.
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(a)
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The
Escrow Agent may resign and be discharged from its duties or obligations
hereunder by giving thirty (30) days advance notice in writing of such
resignation to the Parties specifying a date when such resignation shall
take effect. If the Parties have failed to appoint a successor escrow
agent prior to the expiration of thirty (30) days following receipt of the
notice of resignation (it being agreed that the appointment of a
successor escrow agent shall require the written consent of each of the
Parties), the Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor escrow agent or for other
appropriate relief, and any such resulting appointment shall be binding
upon all of the parties hereto. Escrow Agent's sole
responsibility after such thirty (30) day notice period expires shall be
to hold the Escrowed Funds in the Escrow Account (without any obligation
to reinvest the same) and to deliver the same to a designated substitute
escrow agent, if any, or in accordance with the directions of a final
order or judgment of a court of competent jurisdiction, at which time of
delivery Escrow Agent's obligations hereunder shall cease and terminate,
subject to the provisions of Sections 7 and 8 hereunder and any liability
of the Escrow Agent arising hereunder prior to such
resignation.
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(b)
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Any
entity into which the Escrow Agent may be merged or converted or with
which it may be consolidated, or any entity to which all or substantially
all the escrow business may be transferred, shall be the Escrow Agent
under this Escrow Agreement without further
act.
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7. Compensation and Reimbursement. GAMCO
agrees to (a) pay the Escrow Agent for the services to be rendered hereunder,
which unless otherwise agreed in writing shall be as described in Schedule 2
attached hereto, and (b) pay or reimburse the Escrow Agent upon request for all
expenses, disbursements and advances, including, without limitation reasonable
attorney's fees and expenses, incurred or made by it in connection with the
performance of this Escrow Agreement.
8. Indemnity. The
Parties shall jointly and severally indemnify, defend and hold harmless the
Escrow Agent and its affiliates and their respective successors, permitted
assigns, directors, agents and employees (the "Indemnitees") from
and against any and all losses, damages, claims, liabilities, penalties,
judgments, settlements, litigation, investigations, costs or expenses
(including, without limitation, the fees and expenses of outside counsel)
(collectively "Losses") arising out
of or in connection with (a) the Escrow Agent's execution and performance of
this Escrow Agreement, tax reporting or withholding, the enforcement of any
rights or remedies under or in connection with this Escrow Agreement, or as may
arise by reason of any act, omission or error of the Indemnitee, except in the
case of any Indemnitee to the extent that such Losses are finally adjudicated by
a court of competent jurisdiction to have been primarily caused by the gross
negligence or willful misconduct of such Indemnitee, or (b) its following any
instructions or directions, whether joint or singular, from the Parties, except
to the extent that its following any such instruction or direction is expressly
forbidden by the terms hereof. The Parties hereto acknowledge that
the foregoing indemnities shall survive the resignation, replacement or removal
of the Escrow Agent or the termination of this Escrow
Agreement. GAMCO agrees to pay on behalf of, or reimburse upon
request, Cascade for all expenses, disbursements and other amounts paid by
Cascade pursuant to this Section 8.
9. Patriot Act Disclosure/Taxpayer
Identification Numbers/Tax Reporting.
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(a)
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Patriot Act
Disclosure. Section 326 of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 ("USA PATRIOT
Act") requires the Escrow Agent to implement reasonable procedures
to verify the identity of any person that opens a new account with
it. Accordingly, the Parties acknowledge that Section 326 of
the USA PATRIOT Act and the Escrow Agent's identity verification
procedures require the Escrow Agent to obtain information which may be
used to confirm the Parties’ identities including without limitation
name, address and organizational documents ("identifying
information"). The Parties agree to provide the Escrow Agent with
and consent to the Escrow Agent obtaining from third parties any such
identifying information reasonably required as a condition of opening an
account with or using any service provided by the Escrow
Agent.
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(b)
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Taxpayer
Identification Numbers ("TIN"). The
Parties have provided the Escrow Agent with their respective fully
executed Internal Revenue Service ("IRS") Form W-8,
or W-9 and/or other required documentation. Each Party
represents that its correct TIN assigned by the IRS, or any other taxing
authority, is set forth in the form delivered by such Party, as well as in
the Substitute IRS Form W-9 for such Party set forth on the signature page
of this Escrow Agreement.
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(c)
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Tax
Reporting. All interest or other income earned under the
Escrow Agreement shall be allocated to GAMCO and reported, as and to the
extent required by law, by the Escrow Agent to the IRS, or any other
taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as
income earned from the Escrow Deposit by GAMCO whether or not said income
has been distributed during such year. Any other tax returns
required to be filed will be prepared and filed by GAMCO and/or Cascade
with the IRS and any other taxing authority as required by
law. The Parties acknowledge and agree that Escrow Agent shall
have no responsibility for the preparation and/or filing of any income,
franchise or any other tax return with respect to the Escrowed Funds or
any income earned by the Escrow Deposit. The Parties further
acknowledge and agree that any taxes payable from the income earned on the
investment of any sums held in the Escrow Deposit shall be paid by
GAMCO. In the absence of written direction from the Parties,
all proceeds of the Escrow Deposit and the investment proceeds thereof and
interest thereon shall be retained in the Escrow Account and reinvested
from time to time by the Escrow Agent as provided in this Escrow
Agreement. Escrow Agent shall withhold any taxes it deems
appropriate, including but not limited to required withholding in the
absence of proper tax documentation, and shall remit such taxes to the
appropriate authorities.
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10. Notices. All communications
hereunder shall be in writing and shall be deemed to be duly given and
received:
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(a)
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upon
delivery, if delivered personally, or upon confirmed transmittal, if by
facsimile;
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(b)
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on
the next Business Day (as hereinafter defined) if sent by recognized
overnight courier; or
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(c)
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four
(4) Business Days after mailing if mailed by prepaid registered mail,
return receipt requested, to the appropriate notice address set forth
below or at such other address as any party hereto may have furnished to
the other parties in writing by registered mail, return receipt
requested.
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If
to GAMCO
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GAMCO
Investors, Inc.
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Xxx
Xxxxxxxxx Xxxxxx
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Xxx,
Xxx Xxxx 00000
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Attn: General
Counsel
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Facsimile:
(000) 000-0000
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With
copy to:
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Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
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Xxxx
Xxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxxxxxx Xxxxx, Esq.
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Facsimile:
(000) 000-0000
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If
to Cascade
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Cascade
Investment, L.L.C.
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0000
Xxxxxxxx Xxxxx
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Xxxxxxxx,
XX 00000
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Attn: General
Counsel
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Facsimile:
(000) 000-0000
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With
copy to:
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Xxxxxxxx
& Xxxxxxxx LLP
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxxxxx X. XxXxxxxxx
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Facsimile:
(000) 000-0000
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If
to the Escrow Agent
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JPMorgan
Chase Bank, N.A.
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Clearance
and Agency Services
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0
Xxx Xxxx Xxxxx
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Xxx
Xxxx, XX 00000
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Attention: Xxxxxxx
Xxxxx/Xxxxxx Xxxxxxxx
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Fax
No.:000-000-0000
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Notwithstanding
the above, in the case of communications delivered to the Escrow Agent pursuant
to (a), (b) and (c) of this Section 10, such communications shall be deemed to
have been given on the date received by an officer of the Escrow Agent or any
employee of the Escrow Agent who reports directly to any such officer at the
above-referenced office. In the event that the Escrow Agent, in its
sole discretion, shall determine that an emergency exists, the Escrow Agent may
use such other means of communication as the Escrow Agent deems
appropriate. "Business Day" shall mean any day other than a Saturday,
Sunday or any other day on which the Escrow Agent located at the notice address
set forth above is authorized or required by law or executive order to remain
closed.
11. Security Procedures. If a
Payment Notice is given by Cascade, whether in writing, by facsimile or
otherwise, the Escrow Agent is authorized to seek confirmation of such
instructions by telephone call-back to the person or persons designated by
Cascade for such purposes on schedule 1 hereto ("Schedule 1"), and the
Escrow Agent may rely upon the confirmation of anyone purporting to be the
person or persons so designated. If a Mutual Release Notice or Termination
Notice is given by the Parties, whether in writing, by facsimile or otherwise,
the Escrow Agent is authorized to seek confirmation of such instructions by
telephone call-back to at least one of the persons designated by each Party for
such purposes on schedule 1 hereto ("Schedule 1"), and the
Escrow Agent may rely upon the confirmation of anyone purporting to be the
person or persons so designated The persons and telephone numbers for
call-backs may be changed only in a writing actually received and acknowledged
by the Escrow Agent. The Escrow Agent and the beneficiary's bank in
any funds transfer may rely solely upon any account numbers or similar
identifying numbers provided by GAMCO or Cascade to identify (a) the
beneficiary, (b) the beneficiary's bank, or (c) an intermediary
bank. The Escrow Agent may apply any of the escrowed funds for any
payment order it executes using any such identifying number, even when its use
may result in a person other than the beneficiary being paid, or the transfer of
funds to a bank other than the beneficiary's bank or an intermediary bank
designated. The Parties acknowledge that these security procedures are
commercially reasonable.
12. Miscellaneous. The
provisions of this Escrow Agreement may be waived, altered, amended or
supplemented, in whole or in part, only by a writing signed by the Escrow Agent
and the Parties. Neither this Escrow Agreement nor any right or
interest hereunder may be assigned in whole or in part by the Escrow Agent or
any Party, except as provided in Section 6, without the prior consent of the
Escrow Agent and the other Parties. This Escrow Agreement shall be
governed by and construed under the laws of the State of New
York. Each Party irrevocably waives any objection on the grounds of
venue, forum non-conveniens or any similar grounds and irrevocably consents to
the jurisdiction of the courts located in the State of New York. The Parties
further hereby waive any right to a trial by jury with respect to any lawsuit or
judicial proceeding arising or relating to this Escrow Agreement. No
party to this Escrow Agreement is liable to any other party for losses due to,
or if it is unable to perform its obligations under the terms of this Escrow
Agreement because of, acts of God, fire, war, terrorism, floods, strikes,
electrical outages, equipment or transmission failure, or other causes
reasonably beyond its control. This Escrow Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. All signatures
of the parties to this Escrow Agreement may be transmitted by facsimile, and
such facsimile will, for all purposes, be deemed to be the original signature of
such party whose signature it reproduces, and will be binding upon such
party. If any provision of this Escrow Agreement is determined to be
prohibited or unenforceable by reason of any applicable law of a jurisdiction,
then such provision shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in such
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction. A person who is not a party to this Escrow
Agreement shall have no right to enforce any term of this Escrow Agreement. The
parties represent, warrant and covenant that each document, notice, instruction
or request provided by such Party to Escrow Agent shall comply with applicable
laws and regulations. Where, however, the conflicting provisions of
any such applicable law may be waived, they are hereby irrevocably waived by the
parties hereto to the fullest extent permitted by law, to the end that this
Escrow Agreement shall be enforced as written. Except as expressly
provided in Section 8 above, nothing in this Escrow Agreement, whether express
or implied, shall be construed to give to any person or entity other than the
Escrow Agent and the Parties any legal or equitable right, remedy, interest or
claim under or in respect of this Escrow Agreement or any funds escrowed
hereunder.
IN WITNESS WHEREOF, the
parties hereto have executed this Escrow Agreement as of the date set forth
above.
GAMCO
INVESTORS, INC.,
a New
York corporation
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Name: Xxxxxxx X.
Xxxxxxxx
Title: President and Chief
Operating Officer
CASCADE
INVESTMENT, L.L.C.,
a
Washington limited liability company
By:
/s/ Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Business Manager
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION
as Escrow
Agent
By:
/s/ Xxxxxxx
Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice PResident
