FIRST ESCROW AGREEMENT
FIRST ESCROW AGREEMENT (this"Agreement"), dated this 18th day of
June, 1998, by and among BMCA Key Acquisition Corp., a Delaware corporation (the
"Buyer"), on its own behalf and on behalf of the other Buyer Related Parties (as
defined in the Asset Purchase Agreement referred to below) and ▇▇▇▇▇▇-▇▇▇▇▇,
Inc., a Delaware corporation (the "Seller") and The Chase Manhattan Bank (the
"Escrow Agent" and together with the Buyer and the Seller, the "Parties").
W I T N E S S E T H:
WHEREAS, the Buyer and the Seller have entered into an Asset
Purchase Agreement, dated May 26, 1998 (the "Asset Purchase Agreement";
capitalized terms used herein without definition having the respective meanings
ascribed to them in the Asset Purchase Agreement), providing for the sale by the
Seller to the Buyer of substantially all of the assets of the Seller;
WHEREAS, pursuant to the terms of the Asset Purchase Agreement, the
Seller is obligated to deposit an aggregate of $4,000,000 of the Cash Purchase
Price (less withdrawals or charges under sections 2 and 4 hereof, and plus any
earnings from investment of the Escrow Deposit remaining in the escrow account
in accordance with section 3, the "Escrow Deposit") with the Escrow Agent;
WHEREAS, the Seller is willing to deposit the $4,000,000 and the
Escrow Agent is willing to hold the Escrow Deposit upon the terms and conditions
specified herein; and
WHEREAS, it is a condition precedent to the closing of the Asset
Purchase Agreement that the Buyer and the Seller enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be
derived herefrom and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Deposit into Escrow. On the date hereof, the Seller shall deposit $4,000,000
with the Escrow Agent by transferring funds to: The Chase Manhattan Bank, Escrow
Exigency Account No. 967006242, Attention: Escrow Administration, ABA No.
▇▇▇▇▇▇▇▇▇, Reference: ▇▇▇▇▇▇-▇▇▇▇▇.
2. Release of Escrow Deposit.
2.1 Release in Absence of Notification. On the date that is two
years from the date of this Escrow Agreement (the "Escrow Release Date"), the
Escrow Agent shall release the Escrow Deposit and deliver to the Seller such
funds as remain of the Escrow Deposit unless the Buyer shall have delivered to
the Escrow Agent a Notice of Claim under section 2.2 which has not been resolved
as of the Escrow Release Date pursuant to this section 2.
2.2 Release Upon Undisputed Claim. If the Buyer, in good faith,
prepares and delivers to the Escrow Agent and to the Seller prior to the Escrow
Release Date one or more notices (each a "Notice of Claim") (i) stating that the
Buyer has determined that at the date thereof, it or another Buyer Related Party
is, or is more likely than not to be, entitled to indemnification under Section
9.1 of the Asset Purchase Agreement in accordance with the terms and conditions
of Article IX of the Asset Purchase Agreement (collectively, the
"Indemnification Provisions") and (ii) including a detailed description of the
basis for, and the method of calculating, either (x) the amount to which the
Buyer is entitled in respect thereof (the "Claim Amount"), or (y) the amount to
which the Buyer in good faith determines it is more likely than not thereafter
to be entitled, which amount cannot in good faith be definitively determined at
the time of the notice (the "Contingent Claim Amount"), in either case under the
Indemnification Provisions, the Escrow Agent shall in any such case retain the
Claim Amount or Contingent Claim Amount, and shall pay such amount as provided
in this section 2. If the Seller shall not, within 20 days after its receipt of
a Notice of Claim specifying a Claim Amount (the expiration of such 20 day
period being herein called the "Return Date"), have notified the Escrow Agent
and the Buyer of Seller's intent to contest the merits or amount of such Notice
of Claim (a "Notice of Objection"), the Escrow Agent shall, within five days
after the Return Date, deliver to the Buyer from the Escrow Deposit the lesser
of the Escrow Deposit and the Claim Amount. Any failure of the Seller to
dispute, object or otherwise respond to any Notice of Claim specifying a
Contingent Claim Amount shall not limit or affect the Seller's right to dispute
or object to any Determination Notice (as defined in Section 2.4) with respect
thereto. Notices of Claim specifying a Contingent Claim Amount shall be subject
to Section 2.4 hereof.
2.3 Distribution; Undetermined Claim. If, on the later of the Escrow
Release Date and any Return Date, there is outstanding (a) a Notice of Claim
(which was delivered prior to the Escrow Release Date) and a Notice of Objection
responding to such Notice of Claim, or (b) a Notice of Claim (which was
delivered prior to the Escrow Release Date) specifying a Contingent Claim
Amount, the Escrow Agent shall retain that portion of the Escrow Deposit equal
to the Claim Amount or the Contingent Claim Amount or both, as the case may be,
subject (in each case to the extent applicable) to Sections 2.4 and 2.5 hereof,
and shall distribute to the Seller the remaining portion, if any, of the Escrow
Deposit. In the case of a Notice of Claim specifying a Claim Amount, any amount
retained in accordance with the preceding sentence shall be distributed when the
Notice of Claim has been resolved as provided in Section 2.5 hereof, unless the
Buyer and the Seller acting jointly shall otherwise direct the Escrow Agent to
distribute such amount. Any termination will not affect the Buyer's right to
receive any amount from the Escrow Deposit to which the Buyer has become
entitled on or prior to the Escrow Release Date.
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2.4 Subsequent Determination. If the Buyer shall have submitted a
Notice of Claim specifying a Contingent Claim Amount prior to the Escrow Release
Date, the Buyer shall promptly determine the actual amount of the
indemnification payment to which it claims to be entitled in respect of such
claim (the "Deferred Claim Amount") and deliver to the Escrow Agent and the
Seller a notice setting forth the Deferred Claim Amount, including a detailed
description of the method of calculating such Deferred Claim Amount (the
"Determination Notice"). Unless, within 15 days after the receipt of such
Determination Notice (the expiration of such 15 day period being herein referred
to as the "Deferred Return Date"), the Seller shall have delivered to the Escrow
Agent and the Buyer a Notice of Objection contesting the merits or amount of
such Determination Notice, the Escrow Agent shall, within 10 days after the
Deferred Return Date, deliver to the Buyer from the Escrow Deposit the lesser of
the Escrow Deposit and the Deferred Claim Amount. If the Buyer shall not deliver
a Determination Notice with respect to any Contingent Claim Amount by the later
of the Escrow Release Date and 180 days after the date Buyer delivers a Payment
Notice with respect to such Contingent Claim Amount, the Buyer and the Seller
shall promptly thereafter refer such matter to the AAA pursuant to Section 2.5
for a determination of, and the Seller and the Buyer shall expressly instruct
the arbitrator or arbitrators to determine, the appropriate portion of the
Escrow Deposit to be retained in escrow, including, where applicable, on and
after the Escrow Release Date, with respect to such Contingent Claim Amount (the
"Estimate", it being understood that the determination of such Estimate shall be
without prejudice to the Buyer's right to assert a claim under the Asset
Purchase Agreement or the Guaranty for the actual amount of the Seller's
liability under the Indemnification Provisions in respect of such Contingent
Claim Amount in excess of such Estimate, or to the Seller's right to the
distribution in accordance herewith of the amount by which such Estimate exceeds
the actual amount of the Seller's liability under the Indemnification Provisions
in respect of such Contingent Claim Amount, and that in making such
determination, the arbitrator or arbitrators shall not be bound or limited by,
or precluded from applying, the "more likely than not" standard set forth in
Section 2.2 hereof, but shall instead apply whatever standard such arbitrator or
arbitrators deem appropriate in determining the appropriate portion of the
Escrow Deposit to be retained).
2.5 Release Upon Resolution of Claim. If a Notice of Objection shall
have been filed in respect of a Notice of Claim or Determination Notice, the
Buyer and the Seller shall have 20 days from the date of receipt by the Buyer of
such Notice of Objection, or such longer period as the Buyer and the Seller may
agree upon, within which to resolve privately such Notice of Claim or
Determination Notice. If the Parties are unable to reach a resolution within
such time period, the Notice of Claim or Determination Notice shall, at the
request of the Seller or the Buyer, be referred to three arbitrators selected
from the panel of arbitrators of the American Arbitration Association ("AAA"),
one of whom shall be chosen by the Buyer, one of whom shall be chosen by the
Seller and the third of whom shall be chosen by the two arbitrators so chosen.
If either the Buyer or the Seller shall not have designated such an arbitrator
within 20 days after submission by the AAA of the list of names of arbitrators
selected from its panel, the resolution of the contested Notice shall be made by
the arbitrator chosen by the other Party. Any such arbitration shall take place
in the State, City and County of New York. Such arbitrator or arbitrators shall
determine the amount of indemnification, if any, to which the Buyer is entitled
in accordance with the Commercial Arbitration Rules of the AAA. Upon a "Final"
(as hereinafter
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defined) resolution of a Notice of Claim or Determination Notice pursuant to
this section 2.5, the Buyer and the Seller shall promptly (and in any case
within five Business Days) notify the Escrow Agent in writing of such award and,
if any amount is awarded to Buyer, the Escrow Agent shall deliver to the Buyer
the lesser of the Escrow Deposit and the amount so awarded. If the Buyer or the
Seller shall fail or refuse promptly so to notify the Escrow Agent, the Seller
or the Buyer, as the case may be, may so notify the Escrow Agent. All costs and
expenses of arbitration under this section 2.5 shall be borne (a) if the final
resolution is in favor of the Buyer, by the Seller or (b) if the final
resolution is in favor of the Seller, by the Buyer or (c) if otherwise, as
determined by the arbitrator. For purposes hereof, an arbitor's award shall be
"Final" upon the expiration of the 90-day period following the delivery of such
award provided under New York Civil Practice Law and Rules Section 7511 (or the
time period under any applicable successor provision) for the making of an
application to vacate or modify the award.
2.6 Exclusivity. The Escrow Deposit shall constitute the sole and
exclusive source for the satisfaction of claims of the Buyer Related Parties in
respect of the Indemnification Provisions, other than in respect of (a) Excluded
Liabilities, (b) Claims of Environmental Liability, (c) Off-Site Claims of
Environmental Liability and (d) Former Site Claims of Environmental Liability,
in each case as and to the extent provided in Article IX of the Asset Purchase
Agreement. The Buyer Related Parties shall in no event be entitled to
duplicative payments for any claim under any of this Agreement, the Parent
Guaranty and the Asset Purchase Agreement. Buyer, on behalf of itself and the
other Buyer Related Parties, acknowledges and agrees that the Escrow Deposit
shall only be available to satisfy claims of the Buyer Related Parties in
respect of the Indemnification Provisions, and shall not be available to
satisfy, any other obligation now or hereafter owed by the Seller or any other
person or entity to the Buyer or any other Buyer Related Party, and the Buyer,
on behalf of itself and the other Buyer Related Parties, hereby waives and
agrees not to assert any other right with respect to, the Escrow Deposit except
as expressly provided herein.
2.7 Notices to Escrow Agent. Any notice or other communication given
by the Buyer, on the one hand, and the Seller, on the other, to the Escrow Agent
shall be concurrently given to the Seller, on the one hand, and the Buyer, on
the other. Any notice to the Escrow Agent shall indicate by what means such
notice has been sent to the Buyer or the Seller, as the case may be. If
applicable, such notice shall also indicate the Return Date.
3. Investment of the Escrow Deposit.
(a) The Escrow Agent shall invest the Escrow Deposit and
reinvest any interest thereon or proceeds therefrom in any of the following, as
directed by the Seller: (i) any evidence of indebtedness with a maturity of 180
days or less issued directly or fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof, provided that the full
faith and credit of the United States is pledged in support thereof, (ii)
certificates of deposit and bankers' acceptances with a maturity of 180 days or
less of any commercial bank organized under the laws of the United States of
America or any State thereof which has combined capital and surplus and
undivided profits of not less than $100,000,000; (iii) commercial paper and loan
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participations with a maturity of 180 days or less issued by a corporation that
is not an Affiliate (including, for the purpose of this provision, the
Non-Affiliates) of Seller organized under the laws of any state of the United
States or the District of Columbia and rated at least A-1 by Standard & Poors
Corporation or at least P-1 by ▇▇▇▇▇'▇ Investors Services, Inc. or at least an
equivalent rating category of another nationally recognized securities rating
agency; and (iv) fully collateralized repurchase agreements, having terms of 180
days or less, for government obligations of the type specified in (i) above with
a commercial bank or trust company meeting the requirements of (ii) above; (v)
Chase Vista U.S. Government Money Market Fund or (vi) in the absence of
investment instructions, Chase Vista U.S. Government Money Market Fund.
(b) The Escrow Agent shall have the right to liquidate any
investments held, in order to provide funds necessary to make required payments
under this Escrow Agreement. The Escrow Agent in its capacity as escrow agent
hereunder shall not have any liability for any loss sustained as a result of any
investment made pursuant to the instructions of the parties hereto or as a
result of any liquidation of any investment prior to its maturity or for the
failure of the parties to give the Escrow Agent instructions to invest or
reinvest the Escrow Fund or any earnings thereon.
4. General Instructions. To induce the Escrow Agent to act
hereunder, it is further agreed by the undersigned that:
(a) The Escrow Agent shall not be under any duty to give the
Escrow Deposit (which term for purposes of this section 4 includes any earnings
on and investments of the initial amount deposited pursuant to section 1 hereof)
held by it hereunder any greater degree of care than it gives its own similar
property and shall not be required to invest any funds held hereunder except as
directed in this Agreement. Funds held hereunder shall be invested in accordance
with section 3.
(b) This Agreement expressly sets forth all the duties of the
Escrow Agent with respect to any and all matters pertinent hereto. No implied
duties or obligations shall be read into this Agreement against the Escrow
Agent. The Escrow Agent shall not be bound by the provisions of any agreement
among the other Parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own
bad faith, gross negligence or willful misconduct, as determined by a court of
competent jurisdiction, and, except with respect to claims based upon such bad
faith, gross negligence or willful misconduct that are successfully asserted
against the Escrow Agent, the other Parties hereto shall jointly and severally
indemnify and hold harmless the Escrow Agent (and any successor to the Escrow
Agent) from and against any and all losses, liabilities, claims, actions,
damages and expenses, including reasonable attorneys' fees and disbursements,
arising out of and in connection with this Agreement. Anything in this agreement
to the contrary notwithstanding, in no event shall the Escrow Agent be liable
for special, 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. Without limiting
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the foregoing, the Escrow Agent shall in no event be liable in connection with
its investment or reinvestment of any cash held by it hereunder in good faith,
in accordance with the terms hereof, including without limitation any liability
for any delays (not resulting from its own bad faith, gross negligence or
willful misconduct) in the investment or reinvestment of the Escrow Deposit, or
any loss of interest incident to any such delays. In the event that the Buyer or
the Seller is required to indemnify and hold harmless the Escrow Agent pursuant
to this section 5(c) or section 5(f), the Buyer or the Seller, as the case may
be, shall have the right to seek contribution from the other Parties hereto
(other than the Escrow Agent) for amounts paid or payable in respect of such
indemnity to the extent permitted by law.
(d) The Escrow Agent shall be entitled to rely upon any order,
judgment, award, certification, demand, notice, instrument or other writing
delivered to it hereunder without being required to determine the authenticity
or the correctness of any fact stated therein or the propriety or validity of
the service thereof. The Escrow Agent may act or refrain from acting in reliance
upon any instrument or signature believed by it to be genuine and may assume
that any person purporting to give notice or receipt or advice or make any
statement or execute any document in connection with the provisions hereof has
been duly authorized to do so. The Escrow Agent shall have no duty to verify the
propriety of any conditions imposed by this Agreement upon the Buyer, the Seller
or the Buyer Related Parties.
(e) The Escrow Agent may act pursuant to the advice of counsel
with respect to any matter relating to this Agreement and shall not be liable
for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrow
Deposit but is serving as escrow holder only and having only possession thereof.
The Buyer and the Seller shall, jointly and severally, pay or reimburse the
Escrow Agent upon request for any transfer taxes or other taxes (other than
income taxes) relating to the Escrow Deposit incurred in connection herewith and
shall, jointly and severally, indemnify and hold harmless the Escrow Agent from
any amounts that it is obligated to pay in the way of such taxes. As between the
Buyer and the Seller, the Buyer, on the one hand, and the Seller, on the other
hand, shall be responsible for any transfer taxes or other taxes (other than
income taxes) incurred in connection herewith in proportion to the amount of
earnings received by such Party. The Escrow Agent shall be entitled to charge
against the Escrow Deposit any transfer taxes incurred in connection herewith.
(g) The Escrow Agent shall make periodic distributions of
earnings from the Escrow Deposit to the Seller upon written request of the
Seller in such amounts certified by the Seller as being necessary for the Seller
to pay all applicable income taxes, at the maximum applicable rate imposed on
such earnings. The Escrow Agent shall file annually or otherwise as required by
applicable law all required tax information reports or forms (or other tax
returns that may be required by applicable law) reporting such earnings as being
for the Seller's tax account. Any payments of income from the Escrow Deposit
shall be subject to withholding regulations then in force with respect to United
States taxes. The Parties hereto will provide the Escrow Agent with appropriate
W-9 forms for tax identification number certification. Each party hereto, except
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the Escrow Agent shall, in the notice section of this agreement provide the
Escrow Agent with their Tax Identification Number (TIN) as assigned by the
Internal Revenue Service. All interest or other income earned under the Escrow
Agreement shall be allocated and paid as provided herein and reported by the
recipient to the Internal Revenue Service as having been so allocated and paid.
It is understood that the Escrow Agent shall be responsible for income reporting
only with respect to income earned on investment of funds which are a part of
the Escrow Deposit and is not responsible for any other reporting. This
paragraph and paragraphs (c) and (f) of this section 4 shall survive
notwithstanding termination of this Agreement or the resignation of the Escrow
Agent. Notwithstanding anything in this Agreement to the contrary, it is the
intention of the Buyer and the Seller hereto that this First Escrow Agreement
shall be treated as a "true escrow" for purposes of applicable state and federal
law and the case law thereunder.
(h) The Escrow Agent makes no representation as to the
validity, value, genuineness or the collectibility of any security or other
documents or instrument held by or delivered to it.
(i) The Escrow Agent shall not be called upon to advise any
Party as to the wisdom of selling or retaining or taking or refraining from any
action with respect to any securities or other property deposited hereunder.
(j) The Escrow Agent (and any successor to the Escrow Agent)
may at any time resign as such by delivering the Escrow Deposit and all earnings
thereon to any successor to the Escrow Agent jointly designated by the other
Parties hereto in writing, or to any court of competent jurisdiction, whereupon
the Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Agreement. The Escrow Agent shall promptly
deliver written notice of its resignation to the other Parties hereto. The
resignation of the Escrow Agent will take effect on the earlier of (i) the
appointment of a successor (including a court of competent jurisdiction) or (ii)
the day which is 30 days after the date of delivery of its written notice of
resignation to the other Parties hereto. If at that time the Escrow Agent has
not received a designation of a successor to the Escrow Agent, the Escrow
Agent's sole responsibility after that time shall be to safe-keep the Escrow
Deposit until receipt of a designation of successor to the Escrow Agent or a
joint written disposition instruction by the other parties hereto or a final
order of a court of competent jurisdiction.
(k) The Escrow Agent shall have no responsibility for the
contents of any writing of any arbitrator or third party contemplated herein as
a means to resolve disputes and may rely without any liability upon the contents
thereof.
(l) In the event of any disagreement between the Buyer and the
Seller resulting in adverse claims or demands being made in connection with the
Escrow Deposit, or in the event that the Escrow Agent in good faith is in doubt
as to what action it should take hereunder, the Escrow Agent shall be entitled
to retain the Escrow Deposit (or such part thereof as is the subject of such
disagreement) until the Escrow Agent shall have received (i) a written, Final
decision of the arbitrator or arbitrators appointed pursuant to section 2.5 (the
"Arbitrator")
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directing the delivery of all or such part of the Escrow Deposit; or (ii) a
written agreement executed by the Buyer and the Seller acting jointly directing
delivery of the Escrow Deposit or such part thereof. Any written decision
referred to in (i) above shall be accompanied by a certificate of a duly
authorized representative of the presenting Party reasonably satisfactory to the
Escrow Agent to the effect that said written decision is the decision of the
Arbitrator and is Final. The Escrow Agent shall act on such written decision of
the Arbitrator without further question.
(m) The Buyer and the Seller hereby agree to (i) pay the
Escrow Agent reasonable compensation (as payment in full) for the services to be
rendered hereunder, as described in Schedule 2 attached hereto, and (ii) pay or
reimburse the Escrow Agent upon request for all expenses, disbursements and
advances, including reasonable attorney's fees, incurred or made by it in
connection with the preparation, execution, performance, delivery modification
and termination of this Agreement. The fees, costs and expenses of the Escrow
Agent and its counsel shall be borne equally by the Buyer and the Seller. Any
fees or expenses of the Escrow Agent or its counsel which are not paid as
provided for herein may be taken from any property held by the Escrow Agent
hereunder.
(n) In the event funds transfer instructions are given (other
than in writing at the time of execution of the 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
on Schedule 2 hereto, and the Escrow Agent may rely upon the confirmations of
anyone purporting to be the person or person 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 parties to this Agreement
acknowledge that such security procedure is commercially reasonable.
(o) It is understood that the Escrow Agent and the
beneficiary's bank in any funds transfer may rely solely upon any account number
or similar identifying number provided by either of Seller or Buyer with respect
to funds to be delivered pursuant to this Agreement to the party providing such
information to identify (i) the beneficiary, (ii) the beneficiary's bank, or
(iii) 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 where
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.
5. Choice of Law; Consent to Jurisdiction; Compliance with Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York without regard to the conflicts of law rules of such
state. The Buyer and the Seller hereby irrevocably submit to the jurisdiction of
any New York State or Federal court sitting in the State, City and County of New
York in any action or proceeding arising out of or relating to this Agreement,
and the Parties hereto irrevocably agree that all claims with respect to such
action or proceeding shall be heard and determined in such a New York State or
Federal court. The Buyer, the Seller and the Escrow Agent hereby consent to and
grant any such court jurisdiction over the persons of such Parties and over the
subject matter of any such dispute and agree that delivery or
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mailing of process or other papers in connection with any such action or
proceeding in the manner provided herein below shall be valid and sufficient
service thereof, provided service so made shall be deemed completed only upon
actual receipt. Nothing contained in this Section 5 shall be deemed to affect
the right of any party to serve process in any other manner that may be
permitted under applicable law.
6. Successors and Assigns.
(a) This Agreement shall be binding upon and inure solely to
the benefit of the Parties hereto and their respective successors and permitted
assigns, and shall not be enforceable by or inure to the benefit of any third
party. No Party may assign any of its rights or obligations under this Agreement
without the written consent of the other Parties; provided, however, that the
Seller and Parent shall be free to merge with or into one another at any time,
provided that the surviving corporation of such merger shall thereafter succeed
to and be responsible for all obligations and rights of the Seller hereunder.
(b) Any corporation into which the Escrow Agent in its
individual capacity may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Escrow Agent in its individual capacity shall be a
party, or any corporation to which substantially all the corporate trust
business of the Escrow Agent in its individual capacity may be transferred,
shall be the Escrow Agent under this Escrow Agreement without further act.
7. Amendments; Entire Agreement. This Agreement may only be modified
by a writing signed by all of the Parties hereto, and no waiver hereunder shall
be effective unless in a writing signed by the party to be charged. This
Agreement constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements or representations by or among the Parties
related to the subject matter hereof.
8. Notices. All notices, deliveries or other communications required
or permitted hereunder shall be in writing and shall be deemed received (a) upon
delivery when sent by courier, (b) one Business Day after being sent by
facsimile transmission if such transmission is concurrently confirmed by
first-class registered or certified mail, return receipt requested, postage
prepaid, and (c) three days after being mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, and in any case,
addressed as follows:
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if to the Buyer, to:
BMCA Key Acquisition Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy:
Attention: President
and to:
BMCA Key Acquisition Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy:
Attention: General Counsel
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
if to the Seller to:
▇▇▇▇▇▇-▇▇▇▇▇, Inc.
c/o ▇▇▇▇▇▇ Building Products, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy:
Attention: President
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
and, if to the Escrow Agent, to:
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Escrow Administration, 15th Floor
provided, however, notice to the Escrow Agent shall not be deemed given until
such notice is actually received by the Escrow Agent at the Escrow Agent's
address given above.
9. Authorization to use a Central Securities Depository. The other
Parties hereto authorize the Escrow Agent, for any securities held hereunder, to
use the services of any United States central securities depository it deems
appropriate, including but not limited to the Depository Trust Company and the
Federal Reserve Bank Entry System. 10. Execution. Execution of this Agreement by
the Escrow Agent will constitute its acceptance of the terms hereof and will
acknowledge its receipt of the Escrow Deposit.
10. Execution. Execution of this Agreement by the Escrow Agent will
constitute its acceptance of the terms hereof and will acknowledge its receipt
of the Escrow Deposit.
11. Counterparts. This Agreement may be in one or more counterparts,
each of which shall be an original, and all of which, when taken together,
constitute one and the same instrument.
11
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the date first above written.
BMCA KEY ACQUISITION CORP., on its Own
Behalf and on Behalf of the Other Buyer Related
Parties
By:
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Name:
Title:
▇▇▇▇▇▇-▇▇▇▇▇, INC.
By:
---------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------------------------
Name:
Title:
12
SCHEDULE 1
Six and one-quarter (6.25) basis points of the highest value of collateral held
on deposit per annum or any part thereof subject to a minimum of $5,000 per
annum or any part thereof without proration for partial years, (includes
investment in a Chase Manhattan Bank Money Market Account or The Chase Manhattan
Bank Mutual Fund known as the Chase Vista Fund).
SCHEDULE 2
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to the Seller:
Name Telephone Number
---- ----------------
1. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, CFO (▇▇▇) ▇▇▇-▇▇▇▇
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2.
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3.
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If to the Buyer:
1. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, V.P. (▇▇▇) ▇▇▇-▇▇▇▇
------------------------- ------------------------------
2.
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3.
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Telephone call-backs shall be made to each of the Seller and the Buyer if joint
instructions are required pursuant to the Agreement.