Exhibit 10.27
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is made and entered
into as of this 17th day of May, 1999 by and among ATRIUM COMPANIES, INC., a
Delaware corporation ("Buyer"), those individuals listed on Schedule A hereto
(collectively, the "Selling Stockholders") and BANK ONE, TEXAS, N.A., as escrow
agent (the "Escrow Agent").
RECITALS:
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of
May 10, 1999 (the "Stock Purchase Agreement"), by and among Buyer, Champagne
Industries, Inc., a Colorado corporation (the "Company"), and the Selling
Stockholders, a copy of which is attached hereto as Annex A, Buyer has agreed to
purchase from the Selling Stockholders, and the Selling Stockholders have agreed
to sell and transfer to Buyer, all of the shares of capital stock of the Company
owned by the Selling Stockholders (the "Acquisition"), on the terms and
conditions set forth in the Stock Purchase Agreement; and
WHEREAS, as an inducement for Buyer to enter into the Stock
Purchase Agreement and as a condition precedent to the consummation of the
Acquisition, Buyer has required that $250,000 be deposited into escrow account,
subject to the terms and conditions set forth herein; and
WHEREAS, the Selling Stockholders have determined that it is
in their best interests to enter into this Agreement and to establish the escrow
arrangement required by Buyer on the terms and conditions set forth herein; and
WHEREAS, Buyer, the Selling Stockholders and the Escrow Agent
desire to set forth the terms and conditions pursuant to which the Escrow Fund
(defined below) and the Payment Fund (defined below) will be held by the Escrow
Agent and disbursed to Buyer and/or the Selling Stockholders, as the case may
be.
NOW, THEREFORE, in consideration of the mutual premises,
agreements and covenants set forth herein and in the Stock Purchase Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending legally to be
bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
All capitalized terms not otherwise defined herein and defined
in the Stock Purchase Agreement shall have the meanings attributed to them in
the Stock Purchase Agreement.
ARTICLE 2
TERM OF THE AGREEMENT
The term of this Agreement shall commence on the date of this
Agreement and shall continue in effect until the distribution in full of the
Escrow Fund and the Payment Fund pursuant to the terms and conditions set forth
herein (the "Term").
ARTICLE 3
ESTABLISHMENT OF THE ESCROW FUND
AND THE PAYMENT FUND
3.01 DELIVERY OF ESCROW FUND AND PAYMENT FUND; RECEIPT BY
ESCROW AGENT. On the Closing Date, Buyer shall, in accordance with Section 2(a)
of the Stock Purchase Agreement, deliver to the Escrow Agent (i) cash in an
aggregate amount of $250,000 (the "Escrow Fund"), which shall be deposited in a
segregated account (the "Escrow Account"), and (ii) cash in an aggregate amount
equal to $3,382,780 (the "Payment Fund"), which shall be deposited in a
segregated non-interest-bearing account (the "Payment Account"). The Escrow Fund
shall be invested and reinvested as provided in Section 3.02 below. Any interest
that accrues on any portion of the Escrow Fund during the Term shall be
considered part of the Escrow Fund. The Escrow Agent agrees to hold and dispose
of the Escrow Fund and the Payment Fund in accordance with the terms and
conditions of this Agreement. The parties hereto acknowledge and agree that the
Escrow Fund and the Payment Fund may not be insured by the Federal Deposit
Insurance Corporation. The Escrow Account and the Payment Account shall be under
the sole control and dominion of the Escrow Agent and subject to the terms of
this Agreement, and shall require an authorized signature of the Escrow Agent in
order to make withdrawals therefrom.
3.02 INVESTMENT OF THE ESCROW FUND.
(a) The Escrow Fund shall be invested, at the written
direction of the Selling Stockholders, in any of the following (collectively,
the "Permitted Investments"): (i) United States Treasury Bills maturing within
ninety-one (91) days of the date of purchase; (ii) demand deposit accounts,
money market deposit accounts and certificates of deposit with a term not
greater than ninety (90) days with a depository having a reported capital and
surplus of not less than $50,000,000; (iii) commercial paper which is rated on
the date of purchase in one of the two highest rating categories by both
Standard & Poor's Ratings Group and Moody's Investors Service, Inc. (together,
the "Rating Agencies") and matures not more than ninety (90) days from the date
of purchase; and (iv) investment agreements, guaranteed investment contracts,
repurchase agreements and similar investment instruments, the issuer or
guarantor of which is rated in one of the two highest rating categories by both
of the Rating Agencies or which investment instruments are collateralized by
Permitted Investments rated on the date of purchase in one of the two highest
rating categories by both of the Rating Agencies, which instruments have a term
not greater than ninety (90) days. In the absence of any direction for investing
the Escrow Fund, the Escrow Agent shall invest the Escrow Fund in One Group
Treasury Only Money Market Fund.
(b) The Escrow Agent shall have no liability for any loss
incurred as a result of investments made or liquidated by it in accordance with
the provisions of this Agreement.
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ARTICLE 4
DISTRIBUTION OF THE ESCROW FUND
AND THE PAYMENT FUND
4.01 DISTRIBUTION OF THE ESCROW FUND AND THE PAYMENT FUND.
(a) Unless otherwise set forth herein and subject to the terms
and conditions of this Agreement, the Escrow Fund minus (i) any Pending Claims
Amount (defined below) and (ii) any amounts previously distributed to Buyer
pursuant to the terms of this Agreement shall, if such amount is positive, be
distributed to the Selling Stockholders on May 17, 2001 (the "Distribution
Date") in the manner set forth in a notice given to the Escrow Agent by the
Selling Stockholders prior to the Distribution Date. The Distribution Date may
be extended in accordance with Section 4.02(b) hereof.
(b) Subject to the terms and conditions hereof, the Payment
Fund shall be distributed on the Closing Date in the manner set forth on
Schedule B hereto, unless otherwise indicated on Schedule B.
4.02 INDEMNIFICATION CLAIMS MADE AGAINST THE ESCROW FUND.
(a) Subject to the terms and conditions set forth in the Stock
Purchase Agreement, at any time following the Closing Date and prior to the
Distribution Date, Buyer may deliver written notice (a "Notice of Claim") to the
Escrow Agent and to the Selling Stockholders to the effect that Buyer is
entitled to indemnification by the Selling Stockholders pursuant to the Stock
Purchase Agreement and is entitled to receive payment therefor out of the Escrow
Fund, and such Notice of Claim shall constitute the assertion of a claim by
Buyer against the Escrow Fund. Each Notice of Claim shall be given in good faith
and shall set forth in reasonable detail the nature and estimated amount of the
claims, damages, losses, liabilities, Taxes, costs and expenses (including,
without limitation, settlement costs, any reasonable legal, accounting or other
expenses incurred in connection with investigating or defending any actions or
Threatened actions and court costs) and causes of action (collectively,
"Losses") giving rise to a right of indemnification. Upon receipt by the Escrow
Agent of any Notice of Claim, the Escrow Agent shall retain in the Escrow Fund
an amount equal to the Losses claimed by Buyer until such time as there has been
a determination of such Losses in accordance with the terms and provisions of
the Stock Purchase Agreement (a "Pending Claims Amount").
(b) The Selling Stockholders and Buyer shall follow the
procedures and be subject to the limitations set forth in Section 14 of the
Stock Purchase Agreement, in connection with any claim for indemnification. Any
actions taken by Buyer or the Selling Stockholders, as the case may be, pursuant
to the provisions of Section 14 of the Stock Purchase Agreement, shall extend
the Distribution Date solely with respect to the Pending Claims Amount until
such time as there has been a determination of such Losses in accordance with
the terms and provisions of the Stock Purchase Agreement. The parties hereto
shall promptly notify the Escrow Agent in writing of any event that would extend
the Distribution Date.
(c) Within two (2) business days after the receipt of any
notice of final determination in favor of Buyer with respect to the Selling
Stockholders' indemnification
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obligations (which notice shall be accompanied by a copy of any document,
agreement, award or order, judgment or decree evidencing such final
determination) or upon written instructions from the Selling Stockholders, the
Escrow Agent shall deliver to Buyer from the Escrow Fund, free and clear of any
interest of the Selling Stockholders, an amount equal to the amount of such
Losses as finally determined in accordance with Section 14 of the Stock Purchase
Agreement or as set forth in any written instructions from the Selling
Stockholders, as the case may be. In the event that such final determination is
in favor of the Selling Stockholders and the Distribution Date has occurred, the
Escrow Agent shall deliver to the Selling Stockholders, in the manner set forth
in a notice given to the Escrow Agent by the Selling Stockholders prior to such
delivery, that amount of the Pending Claims Amount relating to such final
determination, if any, in excess of any other remaining Pending Claims Amounts.
4.03 PROVISIONS OF THE STOCK PURCHASE AGREEMENT. Nothing in
this Agreement shall derogate from, or modify in any respect any of the terms
and provisions of the Stock Purchase Agreement, including, without limitation,
Section 14 thereof with respect to indemnification. Nothing in this Agreement
shall prevent Buyer from exercising its rights to receive indemnification from
the Selling Stockholders pursuant to the Stock Purchase Agreement for amounts in
excess of the Escrow Fund.
ARTICLE 5
SETTLEMENT OF DISPUTES
5.01 SETTLEMENT OF DISPUTES. Other than with respect to
matters governed by the Stock Purchase Agreement, which shall be governed by the
terms and provisions thereof, any dispute that may arise under this Agreement
with respect to (a) the facts upon which the Escrow Agent's determinations are
based, (b) the duties of the Escrow Agent hereunder, and (c) any other questions
arising under this Agreement, including, without limitation, the basis of a
claim for reimbursement or payment from the Escrow Fund, shall be finally
determined by (i) mutual agreement of Buyer and the Selling Stockholders
(evidenced by appropriate instructions in writing to the Escrow Agent signed by
Buyer and the Selling Stockholders) within thirty (30) days after such dispute
arises, or (ii) a court of competent jurisdiction in Denver, Colorado; provided,
however, that the foregoing shall not be construed to preclude Buyer and the
Selling Stockholders from resolving any dispute arising hereunder by mutual
agreement in accordance with clause (i) above at any time; provided further,
that if the Escrow Agent has deposited the amount remaining in the Escrow Fund
with a court pursuant to Section 6.08 hereof, the dispute shall be determined by
such court. The Escrow Agent shall be under no duty to institute or defend any
proceeding relating to any such dispute and none of the costs and expenses of
any such proceeding shall be borne by the Escrow Agent. Pending the resolution
of any dispute as provided in this Article V, the Escrow Agent is authorized and
directed to retain in its possession the portion of the Escrow Fund that is the
subject of or involved in the dispute.
5.02 ATTORNEYS' FEES AND EXPENSES. In the event action is
brought to enforce the provisions of this Agreement pursuant to this Article V,
the non-prevailing parties shall be required to pay the reasonable attorneys'
fees and expenses of the prevailing parties, except that if in the opinion of
the court deciding such action there is no prevailing party, each party shall
pay its own attorneys' fees and expenses.
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ARTICLE 6
PROVISIONS CONCERNING THE ESCROW AGENT
6.01 AMENDMENTS AND MODIFICATIONS. Subject to the provisions
of Section 7.06 hereof, the Escrow Agent shall not in any way be bound or
affected by any amendment, modification or cancellation of this Agreement which
increases or alters the obligations of the Escrow Agent under or pursuant to
this Agreement, unless the same shall have been agreed to in writing by the
Escrow Agent.
6.02 COMPENSATION. The Escrow Agent shall be entitled to the
fees set forth on Schedule C attached hereto and to reimbursement for all
reasonable out-of-pocket expenses (including the reasonable fees and expenses of
counsel) incurred in connection with the performance of its services hereunder.
Each of Buyer, on the one hand, and the Selling Stockholders, on the other hand,
shall bear one-half of any liability for fees owed to and reimbursement of
expenses incurred by the Escrow Agent pursuant to this Section 6.02; provided,
that Buyer shall bear the cost of the initial set up fee of the Escrow Fund.
Upon receipt by Buyer and the Selling Stockholders of the Escrow Agent's written
notice itemizing such fees and out-of-pocket expenses, the Escrow Agent shall be
entitled to the payment thereof within thirty (30) days after such written
notice is given. Notwithstanding anything to the contrary contained herein, the
Escrow Agent shall be entitled to retain from any disbursements requested
hereunder any outstanding fees and/or expenses due from the party to whom such
funds are to be disbursed. The Escrow Agent is hereby granted a first lien on
the portion of the Escrow Fund otherwise payable to a party for all indebtedness
that may become owing to the Escrow Agent by such party pursuant to this Escrow
Agreement. In the event that such fees or expenses are not paid to the Escrow
Agent within thirty (30) days of written notice, the Escrow Agent may charge
such fee against that portion of the Escrow Fund, if any, determined to be due
to the party from whom such fees and expenses are owed.
6.03 DUTIES OF THE ESCROW AGENT. This Agreement sets forth the
duties and obligations of the Escrow Agent with respect to any and all matters
pertinent to its acting as such hereunder. The Escrow Agent shall not have
duties or responsibilities under this Agreement other than those specifically
set forth herein and shall act only in accordance with the provisions hereof.
Without limiting the generality of the foregoing, the Escrow Agent shall not
have any duty or responsibility (i) to enforce or cause to be enforced any of
the terms and conditions contained in the Stock Purchase Agreement, or (ii) to
verify the accuracy or sufficiency of any notice or other document received by
it in connection with this Agreement. The Escrow Agent shall be entitled to rely
upon any instructions or directions to it in writing under this Agreement signed
by the proper party or parties and shall be entitled to treat as genuine any
instruction or document delivered to the Escrow Agent hereunder and reasonably
believed by the Escrow Agent to be genuine and to have been presented by the
proper party or parties, without being required to determine the authenticity or
correctness of any fact stated therein, or the authority or authorization of the
person or persons making and/or delivering the same.
6.04 LIABILITY OF THE ESCROW AGENT. Neither the Escrow Agent
nor any of its officers, directors, employees, shareholders, representatives or
agents shall be liable to Buyer, the Selling Stockholders or any other person or
entity for or in respect of any Losses resulting from or arising out of any act
or failure to act by it in connection with this
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Agreement, other than for any Loss which shall be finally adjudicated to be the
result of gross negligence or willful misconduct on the part of the Escrow Agent
or any such officers, directors, employees, shareholders, representatives or
agents. The Escrow Agent shall not be liable or responsible because of the loss
of any monies arising as a result of investments made in accordance with this
Agreement or through the insolvency or the act of default or omission of any
depository in which such monies shall have been deposited.
6.05 INDEMNITY OF THE ESCROW AGENT. The Buyer and the Selling
Stockholders hereby agree, severally but not jointly, to protect, defend,
indemnify and hold harmless the Escrow Agent against any and all costs, losses,
damages, liabilities, claims, expenses (including the reasonable fees and
expenses of counsel) and claims incurred by it without gross negligence or
willful misconduct on the indemnified party's part arising out of or in
connection with its entering into this Escrow Agreement and the carrying out of
its duties hereunder, including the reasonable costs and expenses of defending
itself against any claim of liability relating to this Escrow Agreement.
6.06 RESIGNATION OF THE ESCROW AGENT. At any time that the
Escrow Agent so chooses, the Escrow Agent may resign from its duties hereunder
by giving not less than thirty (30) days' prior written notice to Buyer and the
Selling Stockholders and shall designate, by mutual consent, a successor escrow
agent; provided, that notwithstanding any resignation date set forth in the
Escrow Agent's notice, such resignation shall not take effect until receipt by
the Escrow Agent of an instrument duly executed by a successor escrow agent
evidencing its appointment as Escrow Agent hereunder and acceptance of this
Agreement. If no successor escrow agent is appointed within such thirty (30) day
period, the Escrow Agent may deposit the amount remaining in the Escrow Fund
with a court of competent jurisdiction as provided in Section 6.08 hereof,
whereupon the Escrow Agent shall be discharged of all duties and obligations
hereunder.
6.07 REMOVAL OF ESCROW AGENT. The Escrow Agent may be removed
at any time by mutual agreement of Buyer and the Selling Stockholders by giving
not less than thirty (30) days' prior written notice to the Escrow Agent. Prior
to the expiration of such thirty (30) day period, Buyer and the Selling
Stockholders shall designate, by mutual consent, a successor escrow agent. If no
successor escrow agent is appointed within such thirty (30) day period, the
Escrow Agent may deposit the amount remaining in the Escrow Fund with a court of
competent jurisdiction as provided in Section 6.08 hereof, whereupon the Escrow
Agent shall be discharged of all duties and obligations hereunder.
6.08 DEPOSIT WITH COURT. Notwithstanding anything herein to
the contrary, in the event of any disagreement between any of the parties to
this Agreement, or between them and any other person, resulting in adverse
claims or demands being made against the Escrow Fund, or in the event the Escrow
Agent in good faith is in doubt as to what action it should take hereunder, the
Escrow Agent may be discharged of its duties and obligations hereunder upon its
deposit, at any time after ten (10) days' written notice to Buyer and the
Selling Stockholders, of the amount remaining in the Escrow Fund with a court of
competent jurisdiction in Denver, Colorado. The parties hereto hereby submit to
the personal jurisdiction of any such court, waive any and all right to contest
the jurisdiction of such court, and consent to service of process by hand
delivery or mail delivery thereof to their respective addresses set forth in
Section 7.01 hereof.
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6.09 ABILITY TO CONSULT COUNSEL. The Escrow Agent may confer
with legal counsel in the event of any dispute or question as to the
construction of any of the provisions hereof, or its duties hereunder, and it
shall incur no liability and it shall be fully protected in acting in accordance
with the opinions of such counsel.
ARTICLE 7
MISCELLANEOUS
7.01 NOTICES. All notices, requests and other communications
which are required or permitted hereunder shall be sufficient if given in
writing and shall be deemed effective when delivered personally, delivered by
registered or certified mail, postage prepaid, five (5) business days after
being sent by regular mail with postage prepaid or sent by facsimile
transmission (with a copy simultaneously sent by registered or certified mail,
postage prepaid), as follows (or to such other address as shall be set forth in
a notice given in the same manner):
If to Buyer to: Atrium Companies, Inc.
1341 W. Mockingbird Lane
Suite 1200W
Dallas, Texas 75247
Facsimile: (214) 630-5058
Attn: Jeff L. Hull
and
Atrium Companies, Inc.
c/o Ardshiel, Inc.
230 Park Avenue
Suite 2527
New York, New York 10169
Facsimile: (212) 972-1809
Attn: Daniel T. Morley
James G. Turner
Copies to: Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue, 31st Floor
New York, New York 10022
Facsimile: (212) 319-4090
Attn: Joel M. Simon
Marie Censoplano
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If to the Selling
Stockholders
to: Donald Sloane
5380 East Sanford Circle
Englewood, Colorado 80110
David Hillard
17555 East Prentice Circle
Aurora, Colorado 80015-2460
Copies to: Minor & Brown PC
650 South Cherry Street
Suite 1100
Denver, Colorado 80246-1813
Facsimile: (303) 320-6330
Attn: Laura Breaker
If to the Escrow
Agent to: Bank One, Texas, N.A.
8111 Preston Road
2nd Floor
Dallas, Texas 75225
Facsimile: (214) 360-3980
Attn: Corporate Trust Department
A copy of any notice or other communication given or made to or by the Escrow
Agent pursuant to this Agreement shall in addition be given or made to each of
the other parties hereto.
7.02 COUNTERPARTS. This Agreement may be executed in several
counterparts each of which is an original and all of which, taken together,
shall constitute a single instrument.
7.03 CONTENTS OF AGREEMENT: PARTIES IN INTEREST, ETC. This
Agreement and the Stock Purchase Agreement set forth the entire understanding of
the parties. Any previous agreements or understandings between the parties
regarding the subject matter hereof are merged into and superseded by this
Agreement. All representations, warranties, covenants, terms, conditions and
provisions of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective heirs, legal representatives, successors
and permitted assigns of the parties hereto. Neither this Agreement nor any
rights, interest or obligations hereunder may be assigned by any party without
the prior written consent of all other parties hereto.
7.04 NEW YORK LAW TO GOVERN; VENUE. This Agreement shall be
construed and enforced in accordance with the laws of the State of New York
without regard to the principles of conflict of laws. The parties hereto agree
to submit to the personal and exclusive jurisdiction of the state and federal
courts serving Denver, Colorado with respect to the enforcement or
interpretation of this Agreement or the parties' obligations hereunder. Each
party hereto irrevocably consents to the service of any and all process in any
action or proceeding by the mailing of copies of such process by registered or
certified mail to such party at the address specified in Section 7.01 hereof.
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Nothing in this section shall affect the right of any party hereto to serve
legal process in any other manner permitted by law. Each party hereto
irrevocably waives, to the full extent permitted by law, any objection which it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
7.05 SECTION HEADINGS. The section headings herein have been
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
7.06 MODIFICATION AND WAIVER. Any of the terms or conditions
of this Agreement may be waived in writing at any time by the party which is
entitled to the benefits thereof, and this Agreement may be modified or amended
at any time by Buyer, the Selling Stockholders and the Escrow Agent. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by Buyer and the Selling Stockholder and, in the case of
Article VI only, the Escrow Agent. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof nor shall such waiver constitute a continuing waiver.
7.07 INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
7.08 THIRD PARTY BENEFICIARIES. Except as otherwise expressly
set forth herein, no individual or entity shall be a third-party beneficiary of
the representations, warranties, covenants and agreements made by any party
hereto.
7.09 TERMINATION.
(a) This Agreement may, by written notice given prior to or at
the Closing, be terminated:
(1) By any of the parties hereto if the Stock
Purchase Agreement is terminated pursuant to
its terms; or
(2) By mutual written consent of Buyer and the
Selling Stockholders.
(b) The Escrow Agent's rights to indemnity and to receive
payment of its fees and expenses shall survive any termination of this Escrow
Agreement.
7.10 SECURITIES STATEMENTS. Pursuant to the regulations of the
Office of the Comptroller of the Currency, 12 C.F.R. 12.5(a), Buyer and the
Selling Stockholders have the right to receive, at no additional cost and within
five (5) business days of the transaction, a written notification disclosing
certain information relating to securities purchase and sale transactions in the
Escrow Account. The Escrow Agent has the option
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of furnishing to Buyer and the Selling Stockholders either (i) a copy of the
broker-dealer confirmation relating to the transaction, or (ii) a written
notification disclosing the Escrow Agent's name, the account name, the Escrow
Agent's capacity in the transaction, the date of execution (and, upon the
Buyer's and the Selling Stockholders' written request, the time of execution) of
the transaction, the identity, price and number of shares involved, the
remuneration to the broker-dealer and its identity, the total remuneration to be
received by the Escrow Agent, and, if no broker-dealer was involved, the
identity of the person from whom the security was purchased or to whom it was
sold.
In lieu of the foregoing time and form of notification, Buyer
and the Selling Stockholders agree that the Escrow Agent's periodic statements,
transmitted pursuant to the terms of this Escrow Agreement, will suffice.
7.11 FORM 1099. The Escrow Agent shall provide any Form 1099
required to be provided in respect of each of the Escrow Fund to the Selling
Stockholders.
7.12 AUTHORIZED SIGNATORIES. The following persons are
authorized to direct the Escrow Agent regarding any transactions to this Escrow
Agreement including, but not limited to, investment and/or disbursement of the
funds and securities held hereunder. In the case of the Selling Stockholders,
authorization of both individuals is required.
/s/ Jeff L. Hull /s/ Donald Sloane
--------------------------- ------------------------------
Jeff L. Hull, on Donald Sloane
behalf of Buyer
/s/ James G. Turner /s/ David Hilliard
--------------------------- ------------------------------
James G. Turner, on David Hilliard
behalf of Buyer
7.13 TAX LIABILITIES. Buyer and the Selling Stockholders,
severally and not jointly, warrant to the Escrow Agent that there are no
federal, state or local tax liabilities or, except as set forth in Section 7.11,
filing requirements whatsoever concerning the Escrow Agent's actions
contemplated hereunder and, severally and not jointly, warrant and represent to
the Escrow Agent that the Escrow Agent has no duty to withhold or file any
report or any tax liability under any federal or state income tax, local or
state property tax, local or state sales or use taxes, or any other tax by any
taxing authority. Buyer and the Selling Stockholders, severally and not jointly,
hereto agree to indemnify the Escrow Agent fully from any tax liability,
penalties or interest incurred by the Escrow Agent arising hereunder and agree
to pay in full any such tax liability together with penalty and interest, if
any, that is ultimately assessed against the Escrow Agent for any reason as a
result of its action or inaction (other than for its gross negligence or willful
misconduct) hereunder (except for the Escrow Agent's individual income tax
liability).
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and the year first above written.
ATRIUM COMPANIES, INC.
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
DONALD SLOANE
/s/ Donald Sloane
------------------------------------------
DAVID HILLIARD
/s/ David Hilliard
------------------------------------------
BANK ONE, TEXAS, N.A.,
as Escrow Agent
By: /s/ Amy Perkins
--------------------------------------
Name:
Title:
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SCHEDULE A
SELLING STOCKHOLDERS
Name Percentage of the Company Stock Sold
---- ------------------------------------
Donald Sloane 86.67%
David Hilliard 13.33%
SCHEDULE B
PAYMENTS TO BE MADE ON THE CLOSING DATE
S.S.#/Tax Payment Payment Amount as
Payee I.D.# Purpose Method Instructions of 5/17/99
Atrium Companies Income Tax Estimate Wire Transfer Bank Boston $169,916
Bonus $10,000 Steve Dobler ABA-011000390
Apply to: Atrium Companies, Inc.
Acct. No. 26980085
Donald Sloane ###-##-#### Purchase Price for Stock Wire Transfer Citywide Bank $2,231,051.93
ABA-107001070
Apply to: Donald A. Sloane
Hyla R. Sloane
Acct. No. 300343548
David Hilliard ###-##-#### Purchase Price for Stock Wire Transfer Citywide Bank $343,139.75
ABA-107001070
Apply to: David Hilliard
Acct. No. 317324
AT&T Leasing Hyster Lease Payoff Wire Transfer AT&T Leasing Services $7,238.02
Services US Bank ABA 123000220
Account # 153600103169
Attn: Rebecca Mock
Apply to: Champagne Industries, Inc.
Acct. No. 402-0006067-003
Citywide Bank Loan Payoff Wire Transfer Citywide Banks $507,455.47
ABA-107001070
Attn: Kathy Stanek
Apply to: Champagne Industries, Inc.
Loan No. 10101075
Loan No. 10101067
Graybar Financial Lease Payoff Certified Funds Graybar Financial $21,301.38
P.O. Box 73258 (no per
Chicago, IL 60673-7258 diem)
Apply to: Champagne Industries, Inc.
Lease No. 5000429
US Bancorp Mikron Lease Payoff Wire Transfer U.S. Bank $73,344.15
ABA Routing No. 123-000-220 (This amount
Attn: 10613 does not
Apply to: U.S. Bancorp Leasing include
& Financial $11,291.44
Acct. No. 153600018292 which
Atrium will
pay.)
Minor & Brown, P.C. Attorney Fees Payoff Wire Transfer Bank One $29,333.30
Routing No. 102001017
Acct. Name: Minor & Brown, P.C.
Operating Account
Acct. No. 1200386298 -------------
Total $3,382,780.00
SCHEDULE C
ESCROW AGENT FEES
ANNEX A
STOCK PURCHASE AGREEMENT