EXHIBIT 10.2
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Agreement") dated as of September 26, 2005
among WLR RECOVERY FUND II, L.P., a Delaware limited partnership ("Fund II"),
WLR RECOVERY FUND III, L.P., a Delaware limited partnership (together with Fund
II, the "Purchaser"), with an address of 000 Xxxxxxxxx Xxxxxx, 00xx xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, XXXXXX CORPORATION, a Nevada corporation (the "Selling
Stockholder"), with an address of 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxx 00000 and Citibank N.A., a national banking association chartered under the
laws of the United States of America, as escrow agent (the "Escrow Agent").
Capitalized terms used but not defined herein have the meanings assigned to them
in the Purchase Agreement;
WHEREAS, Purchaser and the Selling Stockholder have entered into a Stock
Purchase Agreement (the "Purchase Agreement"), dated as of September 23, 2005,
as amended, pursuant to which the Purchaser has agreed to purchase from the
Selling Stockholder and the Selling Stockholder has agreed to sell to the
Purchaser 4,162,394 shares (the "Purchased Shares") of common stock, par value
$.01 per share of Safety Components International, Inc. ("Safety Components") on
the terms and conditions therein; and
WHEREAS, in accordance with the provisions of Section 1(d) of the Purchase
Agreement, (a) Purchaser has agreed to deliver to the Escrow Agent the Purchase
Price payable under the Purchase Agreement, and (b) the Selling Stockholder has
agreed to deliver to the Escrow Agent the certificates representing the
Purchased Shares and a stock power duly endorsed in blank, in each case to be
held by the Escrow Agent in accordance with the terms and provisions of this
Agreement;
NOW THEREFORE, the parties hereto agree as follows:
15. ESCROW AGENT. The Purchaser and the Selling Stockholder hereby appoint and
designate Citibank N.A., as escrow agent ("Escrow Agent") for the purposes
set forth in this Agreement. (All references to the Escrow Agent, as that
term is used in this Agreement, shall refer to the Escrow Agent solely in
its capacity as an escrow agent under the terms of this Agreement, and not
to it in any other capacity whatsoever whether as individual, agent,
attorney, fiduciary, trustee or otherwise.) The Escrow Agent hereby
accepts such appointment, and agrees to hold, invest, disburse and release
all assets and property deposited with it hereunder (the "Escrowed
Property") in accordance with the terms hereof.
16. DEPOSITS.
(a) Purchase Price. Within one business day following the execution of
this Agreement (or such later date as the parties may agree in
writing), the Purchaser shall deliver to the Escrow Agent by wire
transfer of immediately available funds an amount of U.S.$51,197,446
to an escrow account designated by the Escrow Agent (the "Escrowed
Purchase Price").
(b) Shares and Distributions. Within one business day following the
execution of this Agreement, the Selling Stockholder shall deliver
to the Escrow Agent that certain share certificate of Safety
Components number SCI0177 registered in the name of Selling
Stockholder dated November 18, 2003 (the "Certificate") which
represents the Purchased Shares, together with the relating stock
powers duly endorsed in blank (the "Escrowed Shares"). If delivery
of the Escrowed Shares shall be made other than by hand, Selling
Stockholder shall ensure that the Certificate and the relating stock
powers are delivered to Escrow Agent under separate cover. If during
the term of this Escrow Agreement, a dividend or other distribution
shall be made or issued upon or on account of
any of the Escrowed Shares (excluding any payment made under a Tax
Sharing and Indemnity Agreement between Safety Components and the
Selling Stockholder, an "Escrowed Distribution"), Selling
Stockholder shall, promptly upon receipt thereof and in any event
with 3 business days deliver and surrender such Escrowed
Distribution to the Escrow Agent to be retained by the Escrow Agent
with the Escrowed Shares and eventually distributed therewith in
accordance with the terms hereof. As long as the Escrowed Shares are
held in escrow in accordance with this Agreement, the Selling
Stockholder shall have the right to vote all Escrowed Shares and
other rights as a stockholder with respect thereto.
(c) Deposit of the Escrowed Purchase Price and the Escrowed Shares. The
Escrow Agent shall have no duty or responsibility to solicit deposit
of the Escrowed Purchase Price or the Escrowed Shares to the escrow
account as required by this Agreement.
(d) Investment of Purchase Price. The Escrow Agent shall invest and
reinvest all funds received under this Agreement as directed in a
written instruction (an "Investment Direction Letter") from the
Purchaser in one of the following:
(i) the Citibank Institutional Market Deposit Account ("MDA"), an
FDIC insured money market deposit account of Citibank, N.A.,
(ii) United States Treasury Bills with a maturity of 30 days, or
(iii) as otherwise directed jointly in writing by the Purchaser and
the Selling Stockholder provided such investment can be
accommodated by the Escrow Agent.
In the absence of an Investment Direction Letter, the Escrow
Agent shall invest and reinvest all funds in (i) above. In
addition, any residual cash which cannot be invested in (ii)
or (iii) above and any cash awaiting investment in (ii) or
(iii) above shall be invested in (i) above. All interest or
other income received in respect of the Escrowed Purchase
Price or the Escrowed Distributions shall be added thereto and
reinvested by Escrow Agent in accordance herewith until the
Escrowed Property is distributed in accordance with Section 4
hereof.
17. DISTRIBUTION OF INTEREST AND OTHER INCOME, ALLOCATION OF TAXES.
(a) At the time of the distribution in accordance with the terms of this
Agreement, the Escrow Agent shall pay (i) to the party receiving
Escrowed Purchase Price, in accordance with Section 4 hereof, all
interest or other income received in respect thereof since the date
of its deposit with the Escrow Agent, and (ii) to the party
receiving Escrowed Distributions, in accordance with Section 4
hereof, all interest or other income received in respect thereof
since the date of its deposit with the Escrow Agent.
(b) All income accrued with respect to any interest or other income
accrued in respect of the Escrowed Purchase Price shall be allocated
by the Escrow Agent to the party receiving such Escrowed Purchase
Price, in accordance with Section 4 hereof.
(c) All income accrued with respect to any interest or other income
accrued in respect of the Escrowed Distributions shall be allocated
by the Escrow Agent to the party receiving such Escrowed
Distributions, in accordance with Section 4 hereof.
(d) In the event there shall exist, at the end of any calendar year, any
undistributed income accrued in respect of any Escrowed Property,
Purchaser and Selling Stockholder
shall provide the Escrow Agent with joint instructions as to how
such income should be attributed for 1099 reporting purposes.
18. DISTRIBUTION OF ESCROW.
(a) General. The Escrow Agent shall hold the Escrowed Property and shall
not deliver any amounts thereof to any party other than (i) in
accordance with Sections 4(b) and 4(c), (ii) pursuant to an Award
(as defined below), or (iii) by depositing the Escrowed Property
with a court of competent jurisdiction as provided in Section 5(h)
below or successor escrow agent in accordance with Section 8 below.
Immediately following the disbursement of the Escrowed Property in
accordance with the terms and conditions of this Escrow Agreement,
the Escrow Agent shall be released from all of its obligations
hereunder.
(b) Closing Conditions Satisfied. If the Purchaser or the Selling
Stockholder delivers to the Escrow Agent a written notice (the
"Closing Notice," a copy of which shall be simultaneously given to
the other party) certifying that the closing conditions under
Sections 6(a)(ii), 6(a)(iii), 6(a)(iv), 6(b)(ii), 6(b)(iii),
6(b)(iv) and 6(b)(v) of the Purchase Agreement have been satisfied,
the Escrow Agent shall, unless it receives a written notice from the
other party objecting thereto or otherwise stating that a closing
condition has not been satisfied ("Closing Objection Notice") within
three (3) business days after receiving the Closing Notice, deliver
on the fourth business day following the Escrow Agent's receipt of
such Closing Notice (i) the Escrowed Purchase Price together with
all interest and other earnings thereon to the Selling Stockholder
by wire transfer of immediately funds in accordance with written
wire transfer instructions provided by the Selling Stockholder, and
(ii) the certificates representing the Purchased Shares, the stock
powers duly endorsed in blank and the Distributions together with
interest and earnings thereon to the Purchaser at the address set
forth in Section 9(b).
(c) Termination of Purchase Agreement. If the Escrow Agent receives a
written notice ("Termination Notice) from either the Purchaser or
the Selling Stockholder (a copy of which shall be simultaneously
given to the other party) that it has terminated the Purchase
Agreement pursuant to and in accordance with Section 7 thereof, and
does not within ten (10) calendar days thereafter receive a written
notice from the other party objecting to the release of the Escrowed
Property ("Termination Objection Notice," a copy of which shall be
simultaneously given to the other party), the Escrow Agent shall
deliver on the eleventh calendar day following the Escrow Agent's
receipt of such Termination Notice, the Escrowed Purchased Price
together with the interest and other earnings thereon to the
Purchaser by wire transfer of immediately available funds in
accordance with written wire transfer instructions provided by the
Purchaser and the Escrowed Shares to the Selling Stockholder at the
address set forth in Section 9(b). If within 10 days following its
receipt of a Termination Notice, the Escrow Agent receives a
Termination Objection Notice, the Escrow Agent shall continue to
hold the Escrowed Property until Escrow Agent receives a Settlement
Memorandum or an Award is granted, in each case in accordance with
Section 4(e).
(d) Reliance by Escrow Agent. Subject to Escrow Agent's normal
procedures, including the confirmation procedures contained in
Section 9(a), Escrow Agent shall be entitled to rely conclusively
on: (i) any Closing Notice or Termination Notice received by it in
accordance with Section 4(d), after having given effect to the 3
business day and 10 day notice periods described therein; and (ii)
any Closing Objection Notice or Termination Objection Notice
received by it.
(e) Resolution of Dispute.
(i) In case there is delivered to the Escrow Agent either a
Closing Objection Notice or a Termination Objection Notice,
the Purchaser and the Selling Stockholder shall endeavor to
agree upon the rights of the respective parties with respect
to the Escrowed Property. If the parties should so agree, a
memorandum (a "Settlement Memorandum") setting forth such
agreement and containing instructions to the Escrow Agent
shall be prepared, signed by both parties and furnished to the
Escrow Agent. The Escrow Agent shall be entitled to rely
conclusively on any such Settlement Memorandum. In addition,
notwithstanding any of the provisions herein to the contrary,
the Escrow Agent shall disburse the Escrowed Property from
time to time as the Purchaser and the Selling Stockholder
shall jointly notify the Escrow Agent in writing, promptly
after receipt by the Escrow Agent of a joint written notice
from the Purchaser and the Selling Stockholder.
(ii) If a dispute over the Escrow Agent's duties with respect to
the disposition of the Escrowed Property has not been finally
resolved in accordance with procedure of Section 4(e)(i), any
such dispute shall be settled by filing a demand for
arbitration with the American Arbitration Association ("AAA").
Such dispute shall then be settled by one (1) arbitrator
having reasonable experience in corporate finance transactions
of the type provided for in this Agreement to be chosen by the
AAA. The arbitration will be conducted on an expedited basis
in accordance with the Commercial Rules of the AAA in effect
on the date a demand for arbitration is filed with the AAA.
The Arbitrator shall, within 10 business days of his
designation, deliver a report to the Selling Stockholder, the
Purchaser and the Escrow Agent containing the Arbitrator's
conclusions regarding the final disbursement of the Escrowed
Property (the "Award"), which Award shall contain detailed
instructions to Escrow Agent as to the disbursement of such
Escrowed Property. The Award shall be final, conclusive and
binding on the parties. Judgement on the Award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. The place of arbitration shall be in either
Rochester, New York or New York, New York. The prevailing
party shall be entitled to an award of reasonable attorney
fees.
19. RIGHTS, OBLIGATIONS AND INDEMNIFICATION OF ESCROW AGENT.
(a) The Escrow Agent shall neither be responsible for or under, nor
chargeable with knowledge of, the terms and conditions of any other
agreement, instrument or document executed between/among the parties
hereto. This Agreement sets forth all of the obligations of the
Escrow Agent, and no additional obligations shall be implied from
the terms of this Agreement or any other agreement, instrument or
document.
(b) The Escrow Agent may act in reliance upon any instructions, notice,
certification, demand, consent, authorization, receipt, power of
attorney or other writing delivered to it by any other party without
being required to determine the authenticity or validity thereof or
the correctness of any fact stated therein, the propriety or
validity of the service thereof, or the jurisdiction of the court
issuing any judgement or order. The Escrow Agent may act in reliance
upon any signature believed by it to be genuine, and may assume that
such person has been properly authorized to do so.
(c) Each of the parties, jointly and severally, agrees to reimburse the
Escrow Agent on demand for, and to indemnify and hold the Escrow
Agent harmless against and with respect to, any and all loss,
liability, damage or expense (including, but without limitation,
attorneys' fees, costs and disbursements) that the Escrow Agent may
suffer or incur in connection with this Agreement and its
performance hereunder or in connection herewith, except to the
extent such loss, liability, damage or expense arises from its
willful misconduct or gross negligence as adjudicated by a court of
competent jurisdiction. The Escrow Agent shall have the further
right at any time and from time to time to charge, and reimburse
itself from, the Escrowed Property hereunder.
(d) The Escrow Agent may consult with legal counsel of its selection in
the event of any dispute or question as to the meaning or
construction of any of the provisions hereof or its duties
hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions
of such counsel. Each of the parties, jointly and severally, agrees
to reimburse the Escrow Agent on demand for such legal fees,
disbursements and expenses and in addition, the Escrow Agent shall
have the right to reimburse itself for such fees, disbursements and
expenses from the Escrowed Property hereunder.
(e) The Escrow Agent shall be under no duty to give the Escrowed
Property by it hereunder any greater degree of care than it gives
its own similar property.
(f) The Escrow Agent shall invest the property held in escrow in such a
manner as directed herein, which may include deposits in Escrow
Agent and mutual funds advised, serviced or made available by Escrow
Agent or its affiliates even though Escrow Agent or its affiliates
may receive a benefit or profit therefrom. The parties to this
agreement acknowledge that non-deposit investment products are not
obligations of, or guaranteed, by Escrow Agent nor any of its
affiliates; are not FDIC insured; and are subject to investment
risks, including the possible loss of principal amount invested.
Only deposits in the United States are subject to FDIC insurance.
(g) The Escrow Agent shall have no obligation to invest or reinvest the
Escrowed Property if all or a portion of such property is deposited
with the Escrow Agent after 11:00 AM Eastern Time on the day of
deposit. Instructions to invest or reinvest that are received after
11:00 AM Eastern Time will be treated as if received on the
following business day in New York. The Escrow Agent shall have the
power to sell or liquidate the foregoing investments whenever the
Escrow Agent shall be required to distribute amounts from the escrow
property pursuant to the terms of this Agreement. Requests or
instructions received after 11:00 AM Eastern Time by the Escrow
Agent to liquidate all or any portion of the escrowed property will
be treated as if received on the following business day in New York.
The Escrow Agent shall have no responsibility for any investment
losses resulting from the investment, reinvestment or liquidation of
the escrowed property, as applicable, provided that the Escrow Agent
has made such investment, reinvestment or liquidation of the
escrowed property in accordance with the terms, and subject to the
conditions of this Agreement.
(h) In the event of any disagreement between/among any of the parties to
this agreement, or between/among them or either or any of them and
any other person, resulting in adverse claims or demands being made
in connection with the subject matter of the Escrowed Property, or
in the event that the Escrow Agent, in good faith, be in doubt as to
what action it should take hereunder, the Escrow Agent may, at its
option, refuse to comply with any claims or demands on it, or refuse
to take any other action hereunder, so long as such disagreement
continues or such doubt exists, and in any such event, the Escrow
Agent shall not become liable in any way or to any person for its
failure or refusal to act, and the Escrow Agent shall be entitled to
continue so to refrain from acting until (i) the rights of all
parties shall have been fully and finally adjudicated by a court of
competent jurisdiction, or (ii) all differences shall have been
adjusted and all doubt resolved by agreement among all of the
interested persons, and the Escrow Agent shall have been notified
thereof in writing signed by all such persons. The Escrow Agent
shall have the option, after 30 calendar days' notice to the other
parties of its intention to do so, to file an action in interpleader
requiring the parties to answer and litigate any
claims and rights among themselves. The rights of the Escrow Agent
under this paragraph are cumulative of all other rights which it may
have by law or otherwise.
20. TAX REPORTING. The Escrow Agent shall make payments of income earned on
the Escrowed Property as provided herein. Each such payee shall provide to
the Escrow Agent an appropriate W-9 form for tax identification number
certification or a W-8 form for non-resident alien certification. The
Escrow Agent shall be responsible only for income reporting to the
Internal Revenue Service with respect to income earned on the escrowed
property.
21. FEES, EXPENSES AND CHARGES. The Purchaser and the Selling Stockholder
shall be jointly and severally liable for the fees, expenses and charges
of the Escrow Agent in accordance Schedule A attached hereto, including
reasonable fees, expenses and charges of counsel engaged by it in
connection with the execution of this Agreement and its services under
this Agreement, which fees, expenses and charges shall be payable on
demand. The Purchaser and the Selling Stockholder agree between themselves
to bear equally all those fees, expenses and charges.
22. RESIGNATION OF ESCROW AGENT, SUCCESSOR. The Escrow Agent may, in its sole
discretion, resign and terminate its position hereunder at any time
following 30 calendar days' written notice to the parties to the Escrow
Agreement herein. Any such resignation shall terminate all obligations and
duties of the Escrow Agent hereunder. On the effective date of such
resignation, the Escrow Agent shall deliver this Escrow Agreement together
with any and all related instruments or documents to any successor Escrow
Agent agreeable to the parties, subject to this Escrow Agreement herein.
If a successor Escrow Agent has not been appointed prior to the expiration
of 30 calendar days following the date of the notice of such resignation,
the then acting Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor Escrow Agent, or other
appropriate relief. Any such resulting appointment shall be binding upon
all of the parties to this Agreement.
23. MISCELLANEOUS.
(a) Escrow Agent's Right to Confirm Instructions. In the event funds
transfer instructions are given (other than in writing at the time
of execution of this Agreement), whether in writing, by telecopier
or otherwise, the Escrow Agent is authorized to seek confirmation of
such instructions by telephone call back to the person or persons
designated in incumbency certificates for each party delivered by
the parties concurrently herewith, and the Escrow Agent may rely
upon the confirmations of anyone purporting to be the person or
persons so designated. To assure accuracy of the instructions it
receives, the Escrow Agent may record such call backs. If the Escrow
Agent is unable to verify the instructions, or is not satisfied with
the verification it receives, it will not execute the instruction
until all issues have been resolved. The persons and telephone
numbers for call backs may be changed only in writing actually
received and acknowledged by the Escrow Agent. The parties agree to
notify the Escrow Agent of any errors, delays or other problems
within 30 calendar days after receiving notification that a
transaction has been executed. If it is determined that the
transaction was delayed or erroneously executed as a result of the
Escrow Agent's error, the Escrow Agent's sole obligation is to pay
or refund such amounts as may be required by applicable law. In no
event shall the Escrow Agent be responsible for any incidental or
consequential damages or expenses in connection with the
instruction. Any claim for interest payable will be at the Escrow
Agent's published savings account rate in effect in New York, New
York.
(b) Notices. All notices, requests, claims, demands and other
communications hereunder shall be communicated in writing, mailed by
first class mail, delivered by hand at the address (or such other
address for a party as such party may specify by written notice
given pursuant hereto) set forth below:
ESCROW AGENT: Citibank, N.A.
The Citigroup Private Bank
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000.000.0000
Facsimile: 212.804.5401
Attention: Xxxx X. Xxxxxx, Vice President
PURCHASER: WLR Recovery Fund II, L.P.
WLR Recovery Fund III, L.P.
c/o XX Xxxx & Co. LLC
000 Xxxxxxxxx Xxxxxx
00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxx, Chairman
With copies (which shall not constitute notice) to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
THE SELLING Xxxxxx Corporation
STOCKHOLDER : 000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx XxXxxxx, VP- Finance and Chief
Financial Officer
With a copy (which shall not constitute notice) to:
Xxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telephone: 000.000.0000
Facsimile: 585.987.2901
Attention: Xxxxxx X. Forth, Esq.
The Escrow Agent shall provide monthly account statements and transaction
advices to all parties identified in this Section 9(b) unless instructed
otherwise in writing by the party in question.
Notwithstanding any of the foregoing, any computation of a time period which is
to begin after receipt of a notice by the Escrow Agent shall run from the date
of receipt by it.
(c) No Waivers; Remedies. No failure or delay by the any party in
exercising any right, power or privilege under this Agreement shall
operate as a waiver of the right, power or privilege. A single or
partial exercise of any right, power or privilege shall not preclude
any other or further exercise of the right, power or privilege or
the exercise of
any other right, power or privilege. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of
any rights or remedies provided by law.
(d) Amendments, Etc. No amendment, modification, termination, or waiver
of any provision of this Agreement and no consent to any departure
by a party from any provision of this Agreement, shall be effective
unless it shall be in writing and signed and delivered by the other
parties, and then it shall be effective only in the specific
instance and for the specific purpose for which it is given.
(e) Successors and Assigns; No Third Party Beneficiaries, Etc. All
provisions hereof shall inure to the benefit of and be binding upon,
the parties hereto and their successors and assigns. No other
parties shall have any rights under or be entitled to enforce this
Agreement.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without
reference to conflicts of law principles. Any litigation between the
parties involving this Agreement shall be adjudicated in a court
located in either Monroe County or New York County, New York. The
parties hereby irrevocably consent to the jurisdiction and venue of
such courts, including with respect to any interpleader proceeding
or proceeding for the appointment of a successor escrow agent the
Escrow Agent may commence pursuant to this Agreement.
(g) Counterparts and Facsimile Signatures. This Agreement may be signed
in any number of counterparts, each of which shall be an original,
with the same effect as if all signatures were on the same
instrument. This Agreement may be executed by facsimile signature
transmitted to any other party by electronic transmission. The
parties shall be bound by a facsimile signature once transmitted to
another party. The latter transmission of an originally executed
copy of any such document shall not invalidate any signature
previously given by electronic transmission.
(h) Severability of Provisions. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of the
provision in any other jurisdiction.
(i) Entire Agreement. This Agreement contains the entire agreement
between the Purchaser, the Selling Stockholder and the Escrow Agent
as to the subject matter hereof. There are no other agreements,
arrangements or undertakings, oral or written, between the parties
hereto relating to the subject matter hereof or to the Purchase
Agreement.
(j) Force Majeure. The Escrow Agent shall not incur any liability for
not performing any act or fulfilling any obligation hereunder by
reason of any occurrence beyond its control (including, but not
limited to, any provision of any present or future law or regulation
or any act of any governmental authority, any act of God or war or
terrorism, or the unavailability of the Federal Reserve Bank wire
services or any electronic communication facility).
(k) Use of Name. No printed or other material in any language, including
prospectuses, notices, reports, and promotional material which
mentions "Citibank" by name or the rights, powers, or duties of the
Escrow Agent under this Agreement shall be issued by any other
parties hereto, or on such party's behalf, without the prior written
consent of the Escrow Agent, except as may be required of Selling
Stockholder under the
federal securities laws to report the transactions contemplated by
the Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
WLR RECOVERY FUND II, L.P.
By: WLR Recovery Associates, II
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Principal Member
WLR RECOVERY FUND III, L.P.
By: WLR Recovery Associates, III
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Principal Member
XXXXXX CORPORATION
By: /s/ Xxxxxxx XxXxxxx
Name: Xxxxxxx XxXxxxx
Title: VP-Finance and Chief Financial Officer
CITIBANK N.A.
By: /s/ Xxxxx X. XxXxxxxxx
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
