EXHIBIT 10.6
SCHEDULE A
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This SCHEDULE A (this "Schedule") is the Schedule A referenced in that
CITIBANK CUSTODY & ADVISORY SERVICES AGREEMENT (the "Agreement") among Citibank,
N.A. as "Escrow Agent," Robert M. Kaye ("Kaye") and Metropolitan Bank & Trust
Company (the "Bank"), dated October __, 2002. This Schedule, and the terms and
provisions herein, are an integral part of the Agreement, and in the event of
any conflict with Agreement the terms and provisions of this Schedule shall
control. Terms which are capitalized herein but not defined shall have the
meaning given to them in the Agreement.
1. AUTHORIZED PARTIES TO THE ESCROW ACCOUNT
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Party A: Robert M. Kaye
Party B: Metropolitan Bank & Trust Company
Escrow Citibank, N.A.
Agent:
All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile or similar writing) and shall be given
to the individual listed above, or such other address or facsimile number as
such party may hereafter specify in writing for the purpose by written notice to
the other parties hereto. Each such notice, request or other communication shall
be effective (i) if given by facsimile, when such facsimile is transmitted to
the facsimile number specified in this Section 1 of this Schedule and the
appropriate facsimile confirmation is received or (ii) if given by any other
means, when delivered at the address specified in this Section 1.
2. DESCRIPTION OF ESCROW TRANSACTION
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a. Kaye has deposited into escrow $4,800,000 cash, in the account
designated by the Escrow Agent for the purposes of the Agreement (together with
all interest earned, the "Escrow Fund").
b. Escrow Agent acknowledges receipt of the Escrow Fund and hereby
agrees to act as escrow agent and to hold, safeguard and disburse the Escrow
Fund only for the purposes and in the manner set forth in the Agreement and this
Schedule.
c. The Escrow Fund, or any portion thereof, shall be disbursed only
upon, and in accordance with, a joint written instruction from Kaye and the
Bank. Notwithstanding the foregoing, if the Escrow Agent has not received on or
before 5:00 p.m. on December 12, 2002 (the "Final Disbursement Date") joint
written instructions from Kaye and the Bank to disburse the entire Escrow Fund,
the Escrow Agent shall promptly, and in no event later than the close of
business on the business day immediately following the Final Disbursement Date,
disburse $2.4 million of the Escrow Fund to the Bank in accordance with the
written instructions of the Bank and the remaining balance of the Escrow Fund to
Kaye, in accordance with the written instructions of Kaye. For avoidance of
confusion, the parties hereto acknowledge that any
disbursement to Kaye or the Bank in accordance with the preceding sentence shall
not require joint instructions. Kaye shall have no further claim against the
$2.4 million released to the Bank from the Escrow Fund. The Bank shall not
relinquish or waive any rights or claims against Kaye if no joint instruction
from the Bank and Kaye is received by the Escrow Agent with respect to any
remaining amounts released from the Escrow Fund to Kaye, provided, however, that
the Bank acknowledges that if no joint instruction is received and the $2.4
million is therefore released to the Bank, such release shall operate as a
set-off against any claims of the Bank, Metropolitan Financial Corp. ("MFC") or
any of their affiliates arising out of or relating to (i) the matters referred
to in the letter from the Bank and MFC dated October 7, 2002 requesting that
Kaye make a payment of $4,797,863 to the Bank and (ii) the matters referred to
in the report that the Audit Committee of the Bank submitted to the OTS on
September 25, 2002 relating to certain payments to Kaye and his related
interests. The Final Disbursement Date may be extended only upon receipt by the
Escrow Agent of joint written instructions to that effect from Kaye and the
Bank.
3. INVESTMENT INSTRUCTIONS
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In lieu of the investments listed in Paragraph (f) of the Agreement,
the Escrow Fund shall be invested in Citifunds U.S. Treasury Reserve. All
earnings on the Escrow Fund shall be payable to Kaye.
4. TAX INFORMATION
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For purposes of federal and other taxes based on income, Kaye shall be
treated as the owner of the Escrow Fund and shall report all income, if any,
that is earned on, or derived from, the Escrow Fund as its income in the taxable
year or years in which such income is properly includible and pay any taxes
attributable thereto.
5. TERMINATION
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The Escrow Fund shall automatically terminate upon disbursement of the
entire balance of the Escrow Fund pursuant to the terms of the Agreement and
this Schedule, including Section (c) of this Schedule.
6. MISCELLANEOUS
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The first sentence in ARTICLE FIRST, Section (c) of the Agreement is
deleted and the following sentence is provided in lieu thereof: Each of the
parties, jointly and severally, agrees to reimburse the Escrow Agent for, and to
indemnify and hold the Escrow Agent harmless against and with respect to, any
and all loss, liability, damage or reasonable expense (including, without
limitation, reasonable 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
7. FEES
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Any fees or expenses listed on Schedule B to the Agreement shall be
payable by Kaye.
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