Escrow Agreement (2015)Full Document 

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ESCROW AGREEMENT

by and among

WMI HOLDINGS CORP.

and

CITIBANK, N.A., as Escrow Agent

Dated as of January 5, 2015


ESCROW AGREEMENT (this "Agreement"), dated as of January 5, 2015, by and among WMI Holdings Corp., a corporation organized under the laws of Washington (the "Company"), and Citibank, N.A., a national banking association organized and existing under the laws of the United States of America ("Citibank") and acting through its Agency and Trust Division and solely in its capacity as escrow agent under this Agreement, and any successors appointed pursuant to the terms hereof (Citibank in such capacity, the "Escrow Agent").

WHEREAS, pursuant to the Certificate of Designation, dated as of the date hereof (the "Certificate of Designation"), of the Company’s 3.00% Series B Convertible Preferred Stock, par value $0.00001 and liquidation preference $1,000 per share (the "Series B Preferred Stock") and the Purchase Agreement, dated as of December 19, 2014 (the "Purchase Agreement"), by and among the Company, Citigroup Global Markets Inc. and KKR Capital Markets LLC, relating to the purchase and sale of the Series B Preferred Stock, the Company has agreed to establish an escrow arrangement for the purposes set forth therein.

WHEREAS, the Company wishes to appoint Citibank as Escrow Agent and Citibank is willing to accept such appointment and to act as Escrow Agent, in each case upon the terms and conditions of this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby irrevocably acknowledged, the parties hereto agree as follows:

1. Establishment of Escrow Account. On the date hereof, the Company shall cause to be deposited with the Escrow Agent in immediately available funds the amount of $598,500,000, representing the initial net proceeds (before offering expenses) as of the date hereof from the purchase and sale of 600,000 shares of the Series B Preferred Stock pursuant to the Purchase Agreement (the "Escrow Deposit", and together with any investment income or proceeds received from the investment thereof from time to time pursuant to Section 3 below, collectively, the "Escrow Property"), and the Escrow Agent shall hold the Escrow Deposit in a non-interest bearing account established with the Escrow Agent (the "Escrow Account"). The Escrow Agent hereby agrees that, upon receipt of the Escrow Deposit, it will execute in writing a cross receipt acknowledging receipt of the Escrow Deposit.

2. Claims and Payment; Release from Escrow.

(a) Reincorporation. If, at any time the Escrow Agent receives a certificate, substantially in the form attached hereto as Annex A (the "Reincorporation Certificate"), the Escrow Agent shall, on the Escrow Release Date specified therein, disburse from the Escrow Account pursuant to the instructions set forth therein. Notwithstanding the foregoing, in the event that the Escrow Agent receives the Reincorporation Certificate at or after 11:00 a.m. (New York City time) and the Escrow Release Date specified therein is the date the Escrow Agent receives such Reincorporation Certificate, the Escrow Agent shall use commercially reasonable efforts to disburse from the Escrow Account pursuant to the instructions set forth therein on the same Business Day, but shall not be required to disburse from the Escrow Account until the next

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succeeding Business Day (which shall then become the Escrow Release Date); provided, that, if on the day the Escrow Agent receives the Reincorporation Certificate the Escrow Property is invested in United States "government securities" within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended (the "Investment Company Act"), having a maturity of 180 days or less (such securities, for the purposes of this Escrow Agreement, "U.S. Government Securities"), and the Escrow Release Date specified therein is the date the Escrow Agent receives such Reincorporation Certificate, the Escrow Agent shall use commercially reasonable efforts to disburse from the Escrow Account pursuant to the instructions set forth therein, but if the Escrow Agent is unable to so disburse, the Escrow Agent shall use commercially reasonable efforts to disburse from the Escrow Account pursuant to the instructions set forth therein on the next succeeding Business Day (which shall then become the Escrow Release Date). The Escrow Agent shall be fully protected acting in reliance upon such Reincorporation Certificate, and shall have no duty or obligation to determine whether such Reincorporation Certificate complies with the terms of the Purchase Agreement or otherwise.

(b) Acquisition and/or Acquisition Related Fees and Expenses. If, at any time the Escrow Agent receives a certificate, substantially in the form attached hereto as Annex B (the "Acquisition Certificate"), the Escrow Agent shall, on the Escrow Release Date specified therein, disburse from the Escrow Account pursuant to the instructions set forth therein. Notwithstanding the foregoing, in the event that the Escrow Agent receives the Acquisition Certificate at or after 11:00 a.m. (New York City time) and the Escrow Release Date specified therein is the date the Escrow Agent receives such Acquisition Certificate, the Escrow Agent shall use commercially reasonable efforts to disburse from the Escrow Account pursuant to the instructions set forth therein on the same Business Day, but shall not be required to disburse from the Escrow Account until

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