Exhibit 10.7


 


ESCROW AGREEMENT


 


This ESCROW AGREEMENT (this
“Agreement”) is made and entered
into as of May 14, 2004, by and among those persons and entities listed on Exhibit A attached hereto (each
individually a “Seller” and
collectively, the “Sellers”),
Oakridge Consulting, Inc., acting hereunder through Michael Salvati, not
individually, but solely as agent for the Sellers (the “Sellers’ Representative”), RV Acquisition
Inc., a Delaware corporation (the “Buyer”),
and  Wells Fargo Bank, National
Association, as escrow agent (the “Escrow
Agent”). Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Purchase Agreement (as defined
below).


 


RECITALS


 


WHEREAS, on
April 27, 2004, LD Holdings, Inc., a Delaware corporation (“LDH”), Lazy Days’ R.V. Center, Inc., a
Florida corporation (“Lazy Days”,
and together with LDH, collectively referred to herein as the “Companies”),  the Employee Stock Ownership Plan and Trust for Employees of
Lazy Days (the “ESOP”), the Sellers’
Representative, the Sellers and the Buyer entered into that certain Stock
Purchase Agreement (the “Purchase Agreement”),
pursuant to which the Buyer has agreed to purchase all of the issued and
outstanding shares of capital stock of LDH from the Sellers and the ESOP (other
than the Contributed Shares (as defined below));  and


 


WHEREAS, on May 14,
2004, the Sellers and the Buyer entered into that certain Contribution
Agreement pursuant to which each of the Sellers contributed a certain number of
its shares of capital stock of LDH in exchange for a certain number of shares
(the “Escrow Shares”) of Series A
Preferred Stock, $0.01 par value per share, of the Buyer (the “Buyer Preferred Stock”); and


 


WHEREAS, on the date
hereof, pursuant to Section 2.2(a) of the Purchase Agreement, the Buyer is
required to deliver to the Escrow Agent for deposit into escrow (1) an amount
in cash equal to Twenty Million Dollars ($20,000,000.00) (the “Escrow Cash” and together with the Escrow
Shares, the “Escrow Funds”), and
(2) the stock certificate representing all of the Escrow Shares; and


 


WHEREAS, the
Purchase Agreement provides that the Escrow Funds are intended to provide
security in respect of the indemnification obligations of the Sellers to the
Buyer upon the terms and conditions set forth in the Purchase Agreement; and


 


WHEREAS, the parties
to this Agreement desire to establish the terms and conditions pursuant to
which the Escrow Funds will be deposited into, held in, and disbursed from, the
escrow, and to set forth the procedure for satisfaction of any Covered Claims
(as defined below); and


 


WHEREAS, it is a
condition precedent to the Closing that the parties hereto shall have executed
and delivered this Agreement.


 


1

















 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:


 


1.                                       Appointment
and Acceptance.  The Buyer and the
Sellers hereby appoint the Escrow Agent as escrow agent for the purposes and
upon the terms and conditions hereinafter set forth.  The Escrow Agent hereby accepts such appointment and agrees to
act as escrow agent hereunder, to hold, invest and dispose of any Escrow Cash
and to hold the Escrow Shares, in each case received by it hereunder in
accordance with the terms and conditions hereinafter set forth.


 


2.                                       Sellers’
Representative. The Sellers’ Representative shall act as agent and
representative on the behalf of each of the Sellers with respect to all matters
in connection with this Agreement.  Each
of the Sellers authorizes the Sellers’ Representative to take any and all
actions as required hereunder or in connection herewith, whether or not
specifically described herein.  Any
action taken or communication given or received by the Sellers’ Representative
shall be deemed to be taken, given or received by each of the Sellers.


 


3.                                       Purchase
Agreement Not Limited by this Agreement. This Agreement and the deposit of
the Escrow Funds are without prejudice to, and are not in limitation of, any
obligations of the Sellers or the Buyer in respect of any of their respective
covenants, representations or warranties contained in the Purchase Agreement or
the respective rights of the Sellers or the Buyer thereunder. The amount of the
Escrow Funds to be disbursed hereunder for Covered Claims (as defined below) is
subject to the limitations of the Purchase Agreement, including, without
limitation, those contained in Article XI thereof.


 


4.                                       Deposit
of Escrow Cash.  On the date hereof,
the Buyer delivered, or caused to be delivered, to the Escrow Agent the Escrow
Cash via wire transfer of immediately available funds to an account designated
in writing by the Escrow Agent. All interest or income earned on the Escrow
Cash shall not be part of the Escrow Cash and shall be distributed in
accordance with Section 12(a)
of this Agreement.  Receipt of the
Escrow Cash is hereby acknowledged by the Escrow Agent.


 


5.                                       Deposit
of Escrow Shares; Dividends. On the date hereof, the Buyer delivered, or
caused to be delivered, to the Escrow Agent a stock certificate representing
the Escrow Shares with a stock transfer power in blank, undated and signed by
Sellers’ Representative for such certificate. Receipt of the Escrow Shares is
hereby acknowledged by the Escrow Agent. 
If and when cash dividends or proceeds of any sale are paid in respect
of any Escrow Share, the Escrow Agent shall deposit such dividends or proceeds
into a non-interest bearing account designated in writing by the Escrow Agent.  Cash dividends or proceeds of any sale that
are paid in respect of any Escrow Shares shall not be part of the Escrow Cash
and shall be distributed in accordance with the Sections 9 and 12(b)
of this Agreement.


 


6.                                       Indemnification
Schedule; Value of Escrow Shares. 
On the date hereof, the Sellers’ Representative delivered to the Escrow
Agent and the Buyer, a listing attached hereto as Exhibit B (the “Indemnification
Schedule”) of the names, current addresses and Tax Identification
Numbers of each Seller and setting forth the pro rata portion (expressed as a
percentage carried out to the fourth number past the decimal point) (as updated
in accordance 


 


2

















 


with the terms
hereof, the “Escrow Amount Pro Rata Portion”)
of the indemnification obligations under the Purchase Agreement as of the
Closing Date (without regard to any adjustment pursuant to Article III or
IV of the Agreement Among Sellers, dated April 27, 2004, by and among the
Companies, the ESOP, the Sellers’ Representative and the Sellers (the “Agreement Among Sellers”)).  On each Reallocation Date (as defined in the
Agreement Among Sellers), the Sellers’ Representative shall deliver to the
Escrow Agent and the Buyer, an updated Exhibit
B showing the reallocated Escrow Amount Pro Rata Portion for each
Seller.  The Sellers hereby agree that
the sum of the Escrow Amount Pro Rata Portions of each Seller as listed on Exhibit B shall at all times equal
100.0000%.  For purposes hereunder,
including for the purpose of compensating the Buyer for its Losses pursuant Section 9(c) of this Agreement, the
value of each Escrow Share (or proceeds of any sale of such Escrow Share) shall
be equal to $1,000, subject to adjustment to reflect the effect of any stock
split, reverse split, exchange or readjustment of shares, reclassification,
reorganization, recapitalization or other like change with respect to the Buyer
Preferred Stock occurring after the date of this Agreement.


 


7.                                       Purpose
of Agreement.  The Sellers and the
Buyer represent that this Agreement has been executed and the deposit of the
Escrow Funds hereunder have been made pursuant to Section 2.2(a)  of the Purchase Agreement for the purpose
of paying any liabilities of the Sellers (a) to the Buyer pursuant to the
indemnification obligations of the Sellers under (i) Section 11.3(a)
(other than breaches of the ERISA Representations and the Tax Representations),
(ii) Section 11.3(b) (other than breaches of ESOP related covenants),
(iii) Section 11.3(d), (iv) Section 11.3(e), and (v)
Section 11.4 of the Purchase Agreement for which the Buyer has asserted a
Notice of Claim (as defined below) during the time period prescribed in Section 9(a) below (a “General Indemnity Claim”), and  (b) to the Buyer pursuant to the
indemnification obligations of the Sellers under (i) Section 11.3(a)
solely with respect to breaches of the ERISA Representations and the Tax
Representations, (ii) Section 11.3(b) solely with respect to breaches of
ESOP related covenants, and (iii) Section 11.3(c) for which the Buyer has
asserted a Notice of Claim during the time period prescribed in Section 9(b) below (an “ESOP Indemnity Claim”, and together with
the General Indemnity Claims, collectively, the “Covered Claims”).


 


8.                                       Notice
of Claims Below Threshold. The Buyer hereby agrees to deliver a written
notice to the Sellers’ Representative and the Escrow Agent regarding each claim
which but for the $1,000,000 (the “Threshold
Amount”) limit set forth in Section of 11.8(a) of the Purchase
Agreement would be payable from the escrow pursuant to the terms hereof.  Such notice shall contain (a) a reasonably
detailed description of the event or circumstances giving rise to the claim,
(b) a specification of the estimated dollar amount attributable to such claim,
and (c) a certification that the information contained in the notice is being
submitted in good faith; provided that the failure to provide any such notice
shall not in and of itself affect the Buyer’s right to indemnification under
the Purchase Agreement, unless as a result of such failure to deliver notice,
the Sellers were directly and materially prejudiced or damaged.  To the extent that the Sellers’
Representative disagrees that such claim should be attributable to the
Threshold Amount, such disagreement shall be resolved pursuant to procedures
set forth in Section 9(e) as
if such amounts were payable from the escrow.


 


3

















 


9.                                       Distribution
of Escrow Funds.


 


(a)                                  If,
at any time prior to August 14, 2005, the Buyer shall claim that it is entitled
to indemnification as a result of any General Indemnity Claim(s), the Buyer
shall, prior to such date, give written notice (the “Notice of Claim”) to the Sellers’ Representative and the
Escrow Agent, which shall provide (i) a reasonably detailed description, to the
extent then known, of the event or circumstances giving rise to the General
Indemnity Claim, and (ii) a specification of the dollar amount of any potential
Losses for which indemnification may be claimed.  In no event shall greater than Twelve Million Dollars
($12,000,000.00) in Escrow Cash be distributed to the Buyer for General
Indemnity Claims (the “General Indemnity Cap”).  No Escrow Shares (or proceeds of any sale
thereof) shall be distributed to the Buyer for General Indemnity Claims.


 


(b)                                 If,
at any time prior to the expiration of the twenty-four month period following
the date of the filing of the final Form 5500 Annual Report relating to the
termination of the ESOP, the Buyer shall claim that it is entitled to
indemnification as a result of any ESOP Indemnity Claim(s), the Buyer shall,
prior to such date, give Notice of Claim to the Sellers’ Representative and the
Escrow Agent which shall provide (i) a reasonably detailed description, to the
extent then known, of the event or circumstances giving rise to the ESOP
Indemnity Claim, and (ii) a specification of the dollar amount of any potential
Losses for which indemnification may be claimed.


 


(c)                                  Notwithstanding
anything to the contrary contained herein, (i) no Buyer claim shall run against
the Escrow Shares (or proceeds of any sale thereof) until the date of the first
to occur of (A) the balance of the Escrow Cash is equal to zero as a result of
the payment of Covered Claims pursuant to Section 9(a)
and Section 9(b), or (B) all
of Escrow Cash has been released in accordance with Section 12(a), (ii) the aggregate amount of cash required
to be paid by the Sellers pursuant to Section 9(a)
and Section 9(b) for any
Covered Claim(s) shall not exceed the Escrow Cash held in escrow hereunder at the
time of any required payment, and (iii) the aggregate amount required to be
paid by the Sellers pursuant to Section 9(a)
and Section 9(b) for any
Covered Claims shall not exceed the Escrow Funds held in escrow hereunder at
the time of any required payment.


 


(d)                                 If
the Escrow Agent shall have (i) received a Notice of Claim from the Buyer
pursuant to Section 9(a) or Section 9(b) hereof, within the
applicable timeframes provided in such sections, the Escrow Agent shall
promptly deliver a copy thereof to the Sellers’ Representative.  Within 15 business days after delivery by
the Escrow Agent of a copy of such Notice of Claim to the Sellers’
Representative (the “Notice Period”),
the Sellers’ Representative may deliver to the Escrow Agent a written notice
(the “Protest Notice”) objecting
to the request for payment of the Escrow Funds stated in the Notice of
Claim.  The Protest Notice shall provide
the amount to which the objection is being made, and shall describe in
reasonable detail the reasons for such objection.  If the Escrow Agent has not received a Protest Notice prior to
the expiration of the Notice Period, then upon expiration of the Notice Period,
the Escrow Agent shall immediately pay to the Buyer the Escrow Funds requested
in the Notice of Claim.  Payment of the
entire amount set forth in the Notice of Claim, either in cash or by or
surrender of the requested number of Escrow Shares or proceeds of any sale
thereof (or, if applicable, some combination of cash and Escrow Shares (or
proceeds of any sale thereof)), as 


 


4

















 


applicable, shall be deemed a full discharge of the Covered Claims
specifically set forth in the applicable Notice of Claim.  If the Escrow Agent has received a Protest
Notice which objects, in part, to the distribution of the Escrow Funds stated
in the Notice of Claim, then the Escrow Agent shall immediately distribute to
the Buyer the Escrow Funds requested in the Notice of Claim for which no
objection has been raised in the Protest Notice.  Upon the surrender of any of the Escrow Shares, the Buyer shall
execute and deliver to the Escrow Agent a replacement certificate of Buyer
Preferred Stock for the remaining number of Escrow Shares, and the Sellers’
Representative shall execute and deliver a stock transfer power in blank,
undated and signed by Sellers’ Representative for such replacement certificate.


 


(e)                                  If
the Escrow Agent receives a Protest Notice from the Sellers’ Representative,
the Escrow Agent shall promptly deliver a copy of the Protest Notice to the
Buyer, and shall not deliver the disputed amount of the Escrow Funds set forth
in the Notice of Claim to the Buyer until the Escrow Agent shall have received
one of the following:


 


(i)  A certified copy of a final
and unappealable order, decree or judgment issued or rendered by a court of
competent jurisdiction (a “Final Decision”),
with respect to the Notice of Claim which is the subject of the Protest Notice;
or


 


(ii)  A joint written direction
executed by the Buyer and the Sellers’ Representative directing the
distribution of the Escrow Funds.


 


Upon receipt of either (i) or (ii) above, the Escrow Agent shall
immediately deliver the Escrow Funds in accordance with the terms of such Final
Decision or joint direction or affidavit, as the case may be.


 


10.                                 Investment
of Escrow Cash. The Escrow Agent shall invest the Escrow Cash, from time to
time, in the Wells Fargo Government Money Market Fund #743, or such similar or
successor fund offered by the Escrow Agent, or such other investments designated
in writing jointly by the Buyer and the Sellers’ Representative. Such
investments of the Escrow Cash may be executed by the Escrow Agent’s own bond
department.  The proceeds of all
investments made hereunder (the “Escrow
Proceeds”) shall be distributed in accordance with this
Agreement.  The Escrow Agent shall
deliver monthly statements to the Buyer and the Sellers’ Representative in
accordance with the Escrow Agent’s regular practice.  The parties hereby agree that, except for the foregoing, the Escrow
Agent shall have no obligations to monitor, or advise the parties with respect
to, such investments.


 


11.                                 General
Indemnity Claim Amount. On August 14, 2005, the Escrow Agent shall
deliver a written statement setting forth the aggregate amount of the Escrow
Cash and/or Escrow Shares, as applicable, paid in connection with, or subject
to, any General Indemnity Claims or ESOP Indemnity Claims; provided, that to
the extent any claims involve both General Indemnity Claims and ESOP Indemnity
Claims, the Parties agree to estimate in good faith the amounts attributable to
each type of claim.


 


5

















 


12.                                 Release
Dates and Termination of Escrow.


 


(a)                                  On
May 14, 2006 (the “Initial Release Date”),
the Escrow Agent shall ascertain the amount of the balance of the Escrow Cash
(the “Initial Escrow Balance”) and
disburse from the Escrow Cash to the Sellers an amount (the “Initial Disbursement Amount”) equal to the
(i) Initial Escrow Balance minus (ii) the amount of the Escrow Cash, if
any, then covered by (A) a Notice of Claim which is subject to a Protest Notice
as provided in Section 9, (B)
a Notice of Claim which is not subject to a Protest Notice but which was
delivered to the Sellers’ Representative by the Escrow Agent prior to the
Initial Release Date, and/or (C) a Notice of Claim determined to be valid and
no longer subject to a Protest Notice, but not yet paid to the Buyer.  The Escrow Agent shall promptly distribute,
at the direction of the Sellers’ Representative, the Initial Disbursement
Amount to each of the Sellers in an amount equal to such Seller’s Escrow Amount
Pro Rata Portion of the Initial Disbursement Amount.  Any Escrow Cash not distributed on the Initial Release Date shall
be distributed by the Escrow Agent upon receipt by the Escrow Agent of the
documentation described in clauses (i) or (ii) of Section 9(e) above. 
Upon final distribution of the Escrow Cash, the Escrow Agent shall
promptly distribute to each Seller the Escrow Proceeds multiplied by the
quotient of (1) the amount of Escrow Cash distributed to such Seller divided
by (2) $20,000,000, and shall distribute the remainder of the Escrow Proceeds
to the Buyer.  If on the Initial Release
Date, there is an amount of Escrow Cash covered by a Notice of Claim that is
subject to a Protest Notice, and such dispute cannot be resolved by the Buyer
and the Sellers within 90 days after the Initial Release Date, the Escrow Agent
shall petition any state or federal court sitting in Chicago, Illinois with
respect to such dispute.


 


(b)                                 On
the date that is twenty-four months following the date of the filing of the
final Form 5500 Annual Report relating to the termination of the ESOP (as
notified in writing to the Escrow Agent by the Buyer and the Sellers’ Representative)
(the “Final Release Date”), the
Escrow Agent shall ascertain the final balance of the Escrow Shares and
disburse from the Escrow Shares to the Sellers all of the Escrow Shares
(including all dividends, whether paid or unpaid, on such Escrow Shares) and
proceeds of any sale thereof then in escrow minus the Escrow Shares
(including all dividends, whether paid or unpaid, on such Escrow Shares) and
proceeds of any sale thereof, if any, then covered by (i) a Notice of Claim
which is subject to a Protest Notice as provided in Section 9, (ii) a Notice of Claim which is not subject to
a Protest Notice but which was delivered to the Sellers’ Representative by the
Escrow Agent prior to the Final Release Date, or (iii) a Notice of Claim
determined to be valid and no longer subject to a Protest Notice, but not yet
paid to the Buyer.  If no Notice of
Claim shall have been delivered to the Sellers’ Representative and the Escrow
Agent prior to the Final Release Date, no Escrow Shares shall thereafter be
retained by the Escrow Agent.  The
Escrow Agent shall promptly distribute, at the direction of the Sellers’
Representative, to each of the Sellers an amount equal to such Seller’s Escrow
Amount Pro Rata Portion of the balance of the Escrow Shares (including all
dividends, whether paid or unpaid, on such Escrow Shares) and any proceeds of
any sale thereof, and any cash dividends remaining after such distribution
shall be promptly distributed to the Buyer. 
The Buyer shall execute and deliver replacement certificates of Buyer
Preferred Stock as requested by the Sellers’


 


6

















 


Representative to make such disbursements hereunder, and such
certificates will not contain a legend about this Agreement but will contain
such other restrictive legends as set forth on the certificate delivered on the
date hereof pursuant to Section 5.  If, on the Final Release Date, a Notice of
Claim is subject to a Protest Notice or if, after the Final Release Date, a
Notice of Claim is under objection pursuant to a Protest Notice in accordance
with Section 9, then this
Agreement shall continue in full force and effect with respect to the aggregate
amount under objection until the Escrow Agent shall have been instructed as to
the disposition thereof in accordance with the terms of Section 9.  If on the Final Release Date, there are any Escrow Shares covered
by a Notice of Claim that is subject to a Protest Notice, and such dispute
cannot be resolved by the Buyer and the Sellers within 90 days after the Final
Release Date, the Escrow Agent shall petition any state or federal court
sitting in Chicago, Illinois with respect to such dispute.


 


(c)                                  Notwithstanding
the foregoing, this Agreement may be terminated at any time by and upon the
receipt by the Escrow Agent of written notice of termination executed by both
the Buyer and the Sellers’ Representative directing the distribution of all
property then held by the Escrow Agent under and pursuant to this Agreement,
and this Agreement shall automatically terminate if and when all the Escrow
Funds (and all the securities in which any of the Escrow Cash shall have been
invested, all Escrow Proceeds and all dividends and proceeds in respect of the
Escrow Shares) shall have been distributed by the Escrow Agent in accordance
with the terms of this Agreement.


 


(d)                                 The
Escrow Agent is authorized to liquidate the securities held hereunder (other
than the Escrow Shares) (unless directed in writing by either the Sellers’
Representative or the Buyer pursuant to Section 9(e)(ii)
to distribute such securities in some other specified manner) to the
extent necessary to distribute to the Sellers or the Buyer the Escrow Funds as
provided in Section 9 and Section 12 and shall have no
liability for any loss arising out of any such liquidation.


 


13.                                 Notices.  Any notices or other communication required
to be sent or given hereunder by any of the parties shall in every case be in
writing and shall be deemed to have been duly given upon (a) the date such
notice is delivered personally to the recipient, (b) three days after the date
mailed to the recipient by registered or certified mail, return receipt
requested and postage prepaid, (c) one day after delivery to the recipient by a
recognized overnight courier service (charges prepaid), (d) the next business
day after the date of transmission if sent by electronic mail to the recipient
with a confirmation copy to follow the next day to be delivered by overnight
carrier or certified mail, or (e) the next business day after the date of
transmission if sent by telecopy to the recipient (with written confirmation of
receipt) with a confirmation copy to follow the next day to be delivered by
overnight carrier or certified mail. 
Such notices, demands and other communications shall be sent to the addresses
as set forth below or at such other addresses as may be furnished in writing.


 


7

















 


	
  (a)

  	
   

  	
  If to the Escrow Agent:

  
	
   

  	
   

  	
  Wells Fargo Bank, National Association

  230 W. Monroe Street, 29th Floor 

  Chicago, IL 60606 

  Attention: Timothy P. Martin 

  Tel: (312) 726-2137 

  Fax: (312) 726-2158 

  Email:  timothy.martin@wellsfargo.com

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  If to the Sellers’ Representative:

  
	
   

  	
   

  	
  Oakridge Consulting, Inc. 

  318 S. Elmwood 
 Oak Park, IL 60302 

  Attention:  Michael Salvati 

  Tel: (708) 383-5426 

  Fax:  (708) 383-7597 

  Email:  mike.salvati@comcast.net

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Katten Muchin Zavis Rosenman 

  525 West Monroe Street, Suite 1600 

  Chicago, Illinois 60661 

  Attention: Howard S. Lanznar, Esq. 

  Tel: (312) 902-5696 

  Fax: (312) 902-1061 

  E-mail: howard.lanznar@kmzr.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Holland & Knight LLP 

  701 Brickell Avenue, Suite 3000 

  Miami, FL 33131 

  Attention:  Ronald Albert, Jr., Esq. 

  Tel: (305) 789-7762 

  Fax:  (305) 789-7799 

  Email:  ralbert@hklaw.com

  



 


8

















 


	
  (c)

  	
   

  	
  If to Alliance:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Alliance Holdings, Inc. 

  711 York Road, 2nd Floor 

  Willow Grove, PA 19090 

  Attention: David B. Fenkell 

  Tel: (215) 706-0873 

  Fax: (215) 706-0877 

  E-mail: fenkell@allianceholdings.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Squires, Sanders & Dempsey L.L.P. 

  1300 Huntington Center 

  41 South High Street 

  Columbus, Ohio 43215-6150 

  Attention: Paul F. Sefcovic 

  Tel: (614) 365-2738 

  Fax:  (614) 365-2499 

  E-mail:  psefcovic@ssd.com

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  If to PPM America Special Investment Fund, L.P. 

  or 

  PPM America Special Investments CBO II, L.P.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PPM America, Inc. 

  225 West Wacker Drive, Suite 975 

  Chicago, IL 60606 

  Attention: Lori Seegers, Senior Vice President and 

  General Counsel and Bob O’Rourke, Senior 

  Managing Director 

  Tel: (312) 634-2501 and (312) 634-1220 

  Fax: (312) 634-0053 and (312) 634-0045 

  E-mail: lori.seegers@ppmamerica.com and

  bob.orourke@ppmamerica.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Latham & Watkins 

  Sears Tower, Suite 5800 

  233 South Wacker Drive 

  Chicago, IL 60606 

  Attention: James W. Doran, Esq. 

  Tel: (312) 876-7664 

  Fax: (312) 993-9767 

  E-mail: james.doran@lw.com

  



 


9

















 


	
  (e)

  	
   

  	
  If to Wallace:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Donald W. Wallace 

  6130 Lazy Days Boulevard 

  Seffner, FL 33584 

  Tel: (813) 246-4999 

  Fax: (813) 246-4744

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Holland & Knight LLP

  701 Brickell Avenue, Suite 3000 

  Miami, FL 33131 

  Attention: Ronald Albert, Jr., Esq. 

  Tel: (305) 789-7762 

  Fax: (305) 789-7799 

  E-mail: ralbert@hklaw.com

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  If to Provident Bank:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Provident Bank 

  309 Vine Street 

  250D 

  Cincinnati, OH  45202 

  Attention:  Christopher B. Gribble 

  Vice President 

  Tel:  (513) 579-2750 

  Fax:  (513) 579-2858 

  Email:  cgribble@providentbank.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Keating, Muething & Klekamp, P.L.L. 

  1400 Provident Tower 

  One East Fourth Street 

  Cincinnati, OH  45202 

  Attention:  Gehl P. Babinec, Esq. 

  Tel: (513) 579-6400 

  Fax: (513) 579-6457 

  Email: gbabinec@kmklaw.com

  



 


10

















 


	
  (g)

  	
   

  	
  If to Lion Connecticut Holdings, Inc., as

  successor by merger to ReliaStar Financial Corp:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ING Investment Management LLC 

  Agent for Lion Connecticut Holdings, Inc.. 

  100 Washington Avenue South 

  Suite 1635 

  Minneapolis, MN  55401-2121 

  Attention:  Chris Kenealy 

  Tel: (612) 342-7245 

  Fax: (612) 342-3561 

  Email: 
  chris.kenealy@inginvestment.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ING Investment Management LLC 

  5780 Powers Ferry Road NW 

  Suite 300 

  Atlanta, GA  30327 

  Attention:  Michael B. Lisenby, Esq. 

  Tel: (770) 690-4751 

  Fax: (770) 690-4899 

  Email:  mike.lisenby@inginvestment.com

  
	
   

  	
   

  	
   

  
	
  (h)

  	
   

  	
  If to PB Capital Corporation:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PB Capital Corporation 

  (f/k/a (USA) Capital Corp.) 

  590 Madison Avenue 

  New York, NY  10022-2540 

  Attention:  Chris Ruzzi 

  Tel: (212) 756-5584

  Fax:  (212) 756-5536 

  Email:  cruzzi@pb-us.com

  
	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  If to the Buyer:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o Bruckmann, Rosser, Sherrill & Co., Inc. 

  126 East 56th Street 

  New York, NY  10022 

  Attention:  Thomas J. Baldwin 

  Tel: 212-521-3700 

  Fax:  212-521-3703 

  Email:  baldwin@brs.com

  



 


11

















 


	
   

  	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Kirkland & Ellis LLP 

  153 East 53rd Street 

  New York, NY  10022 

  Attention:  Kimberly P. Taylor, Esq. 

  Tel: 212-446-4800 

  Fax: 212-446-4900 

  Email:  ktaylor@kirkland.com

  



 


14.                                 Escrow
Agent’s Liability.  The Escrow Agent
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Escrow Agent. 
In the absence of bad faith, gross negligence or willful misconduct on
its part, the Escrow Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Escrow Agent.  The Escrow Agent may act upon any
instrument, certificate, opinion or other writing believed by it in good faith
and without gross negligence to be genuine, and shall not be liable in
connection with the performance by it of its duties pursuant to the provisions
of this Agreement, except for its own bad faith, gross negligence or willful
misconduct.  The Escrow Agent may
consult with counsel of its own choice and shall have full and complete
authorization and protection for any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such counsel. The
Escrow Agent may execute powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys.


 


15.                                 Indemnification
of Escrow Agent.  The Buyer and the
Sellers hereby agree severally and not jointly (one-half to be borne by the
Buyer and one-half to be borne by the Sellers out of the Escrow Funds,
allocated among each of the Sellers in accordance with such Seller’s Escrow
Amount Pro Rata Portion) to indemnify the Escrow Agent for, and to hold it
harmless against, any loss, liability or expense incurred without gross negligence,
willful misconduct or bad faith on the part of the Escrow Agent, arising out of
or in connection with its entering into this Agreement, carrying out its duties
hereunder and accepting the Escrow Funds, including the costs and expenses of
defending itself against any claim of liability in connection with the exercise
or performance of any of its powers or duties hereunder (including reasonable
fees, expenses and disbursements of its counsel).


 


16.                                 Escrow
Agent to Follow Instructions of the Buyer and the Sellers’ Representative.  Notwithstanding any provision contained
herein to the contrary, the Escrow Agent shall at any time and from time to
time take such action hereunder with respect to the Escrow Funds (and the
securities in which any of the Escrow Cash shall have been invested), as shall
be directed in writing by both the Buyer and the Sellers’ Representative,
provided that the Escrow Agent shall first be indemnified to its satisfaction
with respect to any of its costs or expenses which might be involved.


 


17.                                 Resignation
of the Escrow Agent.  The Escrow
Agent, or any successor, may resign at any time upon giving written notice,
thirty (30) calendar days before such resignation shall take effect, to the
Buyer and the Sellers’ Representative. 
In the event the Escrow Agent shall resign or be unable to serve, it
shall be succeeded by such bank or trust company as the 


 


12

















 


Buyer and the
Sellers’ Representative shall appoint, or if no appointment is made, by a bank
or trust company appointed by a court of competent jurisdiction.  In the absence of a successor so appointed
by the Buyer and the Sellers’ Representative, the Escrow Agent may petition
such a court to appoint a successor escrow agent.  The resigning escrow agent shall transfer to its successor all
monies, securities and investments then held subject to this escrow and all
pending notices, instructions and directions then in its possession, and shall
thereupon be discharged, and the successor shall thereupon succeed to all the
rights, powers and duties and shall assume all of the obligations of the
resigning escrow agent.


 


18.                                 Escrow
Agent’s Fee and Expenses, Etc.


 


(a)                                  The
Escrow Agent shall be entitled to a reasonable fee for its services rendered under
this Agreement, and for reimbursement of extraordinary expenses incurred in
performance of its duties which expenses are not included in said fee.  Unless agreed to otherwise in a writing
signed by the Buyer and the Sellers’ Representative, said fees and expenses
shall be borne one-half by the Buyer and one-half by the Sellers (out of the
Escrow Funds, allocated among each of the Sellers in accordance with such
Seller’s Escrow Amount Pro Rata Portion) in accordance with the fee
schedule set forth as Exhibit C
attached hereto.


 


(b)                                 In
the event that any property deposited under this Agreement shall be attached,
garnished, or levied upon any court order, or the delivery thereof shall be
stayed or enjoined by an order of court, or any order, judgment or decree shall
be made or entered by any court order affecting the property deposited under
this Agreement, or any part thereof, the Escrow Agent shall deliver written
notice to the parties with respect to such order, and the Escrow Agent is
hereby expressly authorized in its sole direction, to obey and comply with all
writs, orders or decrees so entered or issued, which it is advised by legal
counsel of its own choosing is binding upon it, whether with or without
jurisdiction, and in case the Escrow Agent obeys or complies with any such
writ, order or decree it shall not be liable to any of the parties hereto or to
any other person, firm or corporation, by reason of such compliance
notwithstanding such writ, order or decree is subsequently reversed, modified, annulled,
set aside or vacated.


 


(c)                                  In
the event that the Escrow Agent becomes involved in litigation on account of
the property deposited hereunder or this Agreement, the Escrow Agent shall
deliver written notice to the parties with respect to such litigation, and it
shall have the right to retain counsel and shall have a lien on the property
deposited hereunder for any and all costs, attorneys’ and solicitors’ fees,
charges, disbursements, and expenses in connection with such litigation.  The parties hereto agree to pay to the
Escrow Agent on demand, its reasonable charges, counsel and attorneys’ fees,
disbursements, and expenses in connection with such litigation, and such fees
and expenses shall be borne one-half by the Buyer and one-half by the Sellers, allocated
among each of the Sellers in accordance with such Seller’s Escrow Amount Pro
Rata Portion.  If the parties hereto
fail to pay the Escrow Agent on demand for such fees and expenses, the Escrow
Agent shall be entitled to reimburse itself therefor out of the property
deposited hereunder.  The Buyer hereby
agrees that if the Buyer fails to pay to the Escrow Agent its portion of such
fees and 


 


13

















 


expenses, the Buyer shall reimburse the Sellers for that amount owed by
the Buyer for which the Escrow Fund has been reduced.


 


(d)                                 In
the event that conflicting demands are made upon it for any situation not
addressed in this Agreement, the Escrow Agent may withhold performance of this
escrow until such time as said conflicting demands shall have been withdrawn or
the rights of the respective parties shall have been settled by court
adjudication, arbitration, joint order or otherwise.


 


(e)                                  The
parties acknowledge that the Escrow Agent will have no obligations or
responsibilities with respect to tax reporting of the parties, other than
filing of Forms 1099 with the Internal Revenue Service.


 


19.                                 Assignment.  The obligations imposed and the rights
conferred by this Agreement shall be binding upon and inure to the benefit of
the respective heirs (including estates), successors and permitted assigns of
the parties hereto, but will not be assignable or delegable by any party
without the prior written consent of the other parties; provided, that
notwithstanding the foregoing, any Seller may assign this Agreement and any or
all of its rights, interest and obligations hereunder to any affiliate of such
Seller without the prior written consent of any other party, so long as such
assignment does not release such Seller from liability hereunder.


 


20.                                 Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law.


 


21.                                 SUBMISSION
TO JURISDICTION.  EACH OF THE
PARTIES SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN CHICAGO, ILLINOIS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND AGREES NOT TO
BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN
ANY OTHER COURT.  EACH OF THE PARTIES
WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF ANY ACTION OR
PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY OR OTHER SECURITY THAT MIGHT
BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO.  EACH PARTY AGREES THAT SERVICE OF SUMMONS AND COMPLAINT OR ANY
OTHER PROCESS THAT MIGHT BE SERVED IN ANY ACTION OR PROCEEDING MAY BE MADE ON SUCH
PARTY BY SENDING OR DELIVERING A COPY OF THE PROCESS TO THE PARTY TO BE SERVED
AT THE ADDRESS OF THE PARTY AND IN THE MANNER PROVIDED FOR THE GIVING OF
NOTICES IN SECTION 13.  THE SELLERS HEREBY CONSTITUTE AND APPOINT
THE SELLERS’ REPRESENTATIVE AS THE AGENT OF THE SELLERS TO ACCEPT ALL SERVICE
OF LEGAL PROCESS.  NOTHING IN THIS SECTION 13, HOWEVER, SHALL AFFECT THE
RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.  EACH PARTY AGREES THAT A FINAL
JUDGMENT IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE 


 


14

















 


CONCLUSIVE AND MAY BE ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.


 


22.                                 Entire
Agreement.  This Agreement contains
the entire agreement between the parties hereto with respect to the
transactions contemplated herein.


 


23.                                 Amendment.  This Agreement cannot be terminated, altered
or amended except pursuant to an instrument in writing signed by the Buyer, the
Sellers’ Representative and the Escrow Agent.


 


24.                                 Merger,
Conversion, Consolidation or Succession to Business.  Any corporation into which the Escrow Agent
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 shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Escrow Agent, shall be
the successor of the Escrow Agent hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto.


 


25.                                 Enforceability.  If any provision of the Agreement shall be
held invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render invalid or
unenforceable any other provision of this Agreement, and the Agreement shall be
carried out as if any such invalid or unenforceable provision were not
contained herein.


 


26.                                 Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.


 


27.                                 Business
Days.  If any notice under this
Agreement is to be given on a day that is a Saturday, a Sunday or a day on which
the Escrow Agent is closed, then such notice shall be given on the next
succeeding day that is neither a Saturday, Sunday nor a day on which the Escrow
Agent is closed.


 


[Signature Pages to follow]


 


15

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be signed as of the date first
above written.


 


	
   

  	
  SELLERS:

  
	
   

  
	
   

  
	
   

  	
  PPM AMERICA SPECIAL INVESTMENTS
  FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PPM America, Inc., as Attorney-in-Fact

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stuart J. Lissner

  	
   

  
	
   

  	
  Name:

  	
  Stuart J. Lissner

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LION CONNECTICUT HOLDINGS, INC.,
  as successor by merger to RELIASTAR
  FINANCIAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David S. Pendergrass

  	
   

  
	
   

  	
  Name:

  	
  David S. Pendergrass

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PPM AMERICA SPECIAL INVESTMENTS
  CBO II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PPM America, Inc., as Attorney-in-Fact

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stuart J. Lissner

  	
   

  
	
   

  	
  Name:

  	
  Stuart J. Lissner

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PB CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher J. Ruzzi

  	
   

  
	
   

  	
  Name:

  	
  Christopher J. Ruzzi

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PB CAPITAL
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lisa Moraglia

  	
   

  
	
   

  	
  Name:

  	
  Lisa Moraglia

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice President

  	
   

  



 

















 


	
   

  	
  THE PROVIDENT BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher B. Gribble

  	
   

  
	
   

  	
  Name:

  	
  Christopher B. Gribble

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALLIANCE HOLDINGS, INC.,
  a 

  Pennsylvania corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David B. Fenkell

  	
   

  
	
   

  	
  Name:

  	
  David B. Fenkell

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Donald W. Wallace

  	
   

  
	
   

  	
  DONALD W. WALLACE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SELLERS’ REPRESENTATIVE:
  

  
	
   

  	
   

  
	
   

  	
  OAKRIDGE CONSULTING,
  INC.  

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Salavati

  	
   

  
	
   

  	
  Name:

  	
  Michael Salvati

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  RV ACQUISITION INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas Sheppard

  	
   

  
	
   

  	
  Name:

  	
  Nicholas Sheppard

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  



 

















 


	
   

  	
  ESCROW AGENT:

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL 

  ASSOCIATION, as Escrow Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy P. Martin

  	
   

  
	
   

  	
  Name:

  	
  Timothy P. Martin

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  



 

















 


EXHIBIT A


 


SELLERS


 


PPM
AMERICA SPECIAL INVESTMENTS FUND, L.P.


 


PPM
AMERICA SPECIAL INVESTMENTS CBO II, L.P.


 


LION
CONNECTICUT HOLDINGS, INC., as successor by merger to RELIASTAR FINANCIAL
CORPORATION


 


THE
PROVIDENT BANK


 


PB
CAPITAL CORPORATION


 


ALLIANCE
HOLDINGS, INC.


 


DONALD
W. WALLACE


 

















 


EXHIBIT B


 


INDEMNIFICATION SCHEDULE


 


	
  Seller

  	
   

  	
  Tax ID

  	
   

  	
  Address

  	
   

  	
  Escrow

  Amount Pro

  Rata Portion

  
	
  PPM
  America Special

  Investments Fund, L.P.

  	
   

  	
  36-4086849

  	
   

  	
  225 West Wacker Drive, Suite 975

  Chicago, IL 60606

  	
   

  	
  28.0960%

  
	
  PPM
  America special

  Investments CBO II, L.P.

  	
   

  	
  98-0179401

  	
   

  	
  225 West Wacker Drive, Suite 975 

  Chicago, IL 60606

  	
   

  	
  33.0185%

  
	
  Lion
  Connecticut

  Holdings, Inc., as

  successor by merger to 

  Reliastar Financial 

  Corporation

  	
   

  	
  020488491

  	
   

  	
  c/o ING Investment Management LLC

  100 Washington Avenue So.

  Suite 1635 

  Minneapolis, MN 55401

  	
   

  	
  8.0216%

  
	
  The
  Provident Bank

  	
   

  	
  31-041-2725

  	
   

  	
  309 Vine Street, 250D

  Cincinnati, OH 45202

  	
   

  	
  5.0135%

  
	
  PB
  Capital Corporation

  	
   

  	
  13-404-7091

  	
   

  	
  590 Madison Avenue

  New York, NY 10022-2540

  	
   

  	
  5.0135%

  
	
  Alliance
  Holdings, Inc.

  	
   

  	
  23-2795681

  	
   

  	
  711 York Road, 2nd Floor

  Willow Grove, PA 19090

  	
   

  	
  7.8098%

  
	
  Donald
  W. Wallace

  	
   

  	
  ###-##-####

  	
   

  	
  6130 Lazy Days Boulevard

  Seffner, FL 33584

  	
   

  	
  13.0270%

  



 

















 


EXHIBIT C


 


FEE SCHEDULE


 


	
  Annual Charge

  	
   

  	
  $

  	
  5,000.00

  	
   

  



 


Any out-of-pocket expenses, or extraordinary fees or expenses such as
attorney’s fees or messenger cost’s, are additional and are not included in the
above schedule.


 


These fees cover a full year, or any part thereof, and thus are not
prorated in the year of termination. 
The annual fee is billed in advance and payable prior to that year’s
service.