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Exhibit 10.58
ESCROW AGREEMENT
THIS AGREEMENT is made as of the 7th day of March 1997, by and among
XXXXXXX EQUITY FUND I, L.L.C., a Georgia limited liability company
("PURCHASER"), AMSOUTH BANK OF ALABAMA, an Alabama banking corporation ("ESCROW
AGENT"), and CROWN NORTHCORP, INC., a Delaware Corporation ("SELLER").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller have entered into that certain Stock
Purchase Agreement of even date herewith providing for the purchase by
Purchaser of certain shares of common stock of Seller and other related
transactions (the "PURCHASE AGREEMENT"); and
WHEREAS, SECTION 2.1 of the Purchase Agreement requires that this
Escrow Agreement be executed and delivered by Purchaser, Seller and Escrow
Agent in order to facilitate the consummation of certain Third-Party
Acquisitions; and
WHEREAS, Seller and Purchaser desire Escrow Agent to invest, manage
and disburse the funds deposited with it as provided herein;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The parties hereby appoint and
designate Escrow Agent as the "Escrow Agent" for purposes of the Purchase
Agreement and for the purposes set forth herein, and Escrow Agent hereby
accepts such appointment.
2. DEPOSITS OF ESCROW FUND. From time to time, Purchaser may deposit
funds with Escrow Agent in accordance with Section 2.1(a) of the Purchase
Agreement (the aggregate funds so deposited and held by Escrow Agent from time
to time being referred to herein as the "Escrow Fund"). Escrow Agent agrees to
hold and distribute the Escrow Fund as provided herein.
3. INVESTMENT OF THE ESCROW FUND. Escrow Agent shall manage the Escrow
Fund under the terms of this Agreement and shall from time to time invest and
reinvest the funds held in the Escrow Fund, as and when instructed by Purchaser
in writing, in any one or more of the following:
(a) obligations of the United States of America;
(b) general obligations of any State of the United States of
America;
(c) general obligations of any political subdivision of a State of
the United
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States of America, if such obligations are rated by at least
two recognized rating services as at least "AA";
(d) certificates of deposit of Escrow Agent and any national bank
or banks insured by the Federal Deposit Insurance Corporation
with a net worth in excess of $100,000,000;
(e) obligations of state or municipal public housing authorities
chartered by the United States of America and guaranteed by the
United States of America;
(f) demand interest bearing accounts of Escrow Agent; and
(g) money market funds of Escrow Agent which invest in any of the
preceding (a) through (f).
If no instructions are received from Purchaser as provided above, Escrow Agent
shall invest the Escrow Fund in money market funds of the type described in the
preceding CLAUSE (G). Subject to PARAGRAPH 6 below, any and all income and
interest realized from the investments of the Escrow Fund made by Escrow Agent
pursuant hereto shall be added to and become part of the Escrow Fund.
4. RELEASES FROM ESCROW FUND.
(a) Upon receipt by Escrow Agent of a written certificate expressly
issued by Seller in accordance with SECTION 2.1(B) of the Purchase Agreement
(and executed by an authorized officer of Seller), Escrow Agent shall release
and pay to Seller the portion of the Escrow Fund specified therein on the date
and in the manner specified therein. Simultaneously with the delivery of such
certificate to Escrow Agent by Seller, Seller shall deliver a copy of such
certificate to Purchaser.
(b) Upon receipt by Escrow Agent of a written certificate expressly
issued by Purchaser in accordance with SECTION 2.1(c) or SECTION 2.5(c) of the
Purchase Agreement (and executed by an authorized officer of the Manager of
Purchaser), Escrow Agent shall release and pay to Purchaser any and all amounts
(if any) then remaining in the Escrow Fund, or such lesser portion of the
Escrow Fund specified in such certificate, including all accrued interest
applicable thereto, on the date and manner specified therein. Simultaneously
with the delivery of such certificate to Escrow Agent by Purchaser, Purchaser
shall deliver a copy of such certificate to Seller.
(c) Each certificate issued to Escrow Agent by Seller or Purchaser
under this PARAGRAPH 4 shall contain an express representation to the effect
that Seller or Purchaser (as applicable) has the right to issue such
certificate under the terms of the Purchase Agreement.
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5. ESCROW AGENT.
(a) Escrow Agent shall not be liable to any Person (as defined below)
for any damages, losses, or expenses incurred as a result of any act or
omission of Escrow Agent, unless such damages, losses, or expenses are caused
by Escrow Agent's willful misconduct or gross negligence. Without limiting the
foregoing, Escrow Agent shall not incur any such liability with respect to (i)
any action taken or omitted in good faith upon the advice of counsel for Escrow
Agent given with respect to any question relating to the duties and
responsibilities of Escrow Agent under this Agreement, or (ii) any action taken
or omitted in reliance upon any instrument, including any certificate, written
notice or instruction provided for herein, not only as to its due execution by
an authorized person and as to the validity and effectiveness of such
instrument, but also as to the truth and accuracy of any information contained
therein that Escrow Agent shall in good faith believe to be genuine, to have
been signed by a proper person or persons and to conform to the provisions of
this Agreement. For purposes of this Agreement, "Person" means any individual,
partnership, joint venture, corporation, limited liability company, trust,
unincorporated organization, joint-stock company, bank, association or other
entity.
(b) In the event of a dispute between or among any of the parties
hereto sufficient in the discretion of Escrow Agent to justify its doing so,
Escrow Agent shall be entitled to tender the Escrow Fund into the registry or
custody of the United States District Court for the Northern District of
Georgia, Atlanta Division, to initiate such legal proceedings as it deems
appropriate, and thereupon to be discharged from all further duties and
liabilities under this Agreement. Any such legal action may be brought in any
such court as Escrow Agent shall determine to have jurisdiction over the Escrow
Fund. The filing of any such legal proceedings shall not deprive Escrow Agent
of its compensation hereunder earned prior to such actions.
(c) If all or any part of the Escrow Fund is attached, garnished or
levied upon, or the delivery thereof shall be stayed or enjoined by the order
of a court of competent jurisdiction, or any other order, judgment or decree
affecting the Escrow Fund is made or entered by a court of competent
jurisdiction, Escrow Agent is hereby expressly authorized to obey and comply
with all final writs, orders, judgments or decrees so entered or issued by any
such court, and if Escrow Agent obeys or complies with any such writ, order,
judgment or decree, it shall not be liable to any of the parties hereto or to
any other person by reason of such compliance.
(d) If at any time any attempt should be made to modify this Agreement
in a manner that would increase the duties and responsibilities of Escrow
Agent, or in any manner that Escrow Agent shall reasonably deem undesirable, or
at any other time, Escrow Agent may resign by notifying the other parties
hereto. From the date upon which such notice is received by Purchaser and
Seller until the earlier of (i) the acceptance by a successor escrow agent as
shall be appointed (A) by mutual agreement of such parties, or (B) in the event
the parties are unable to agree within 20 days following their receipt of such
notice, by the senior active Judge of the United States District Court for the
Northern District of Georgia, Atlanta Division, upon application by either
Purchaser or Seller, or (ii) 60 days following the date upon which notice was
mailed, Escrow
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Agent's sole obligation hereunder shall be to perform its duties hereunder in
accordance with the terms of this Agreement prior to any attempted modification
hereof.
6. ESCROW AGENT'S FEES. The total fee payable to Escrow Agent for its
services and obligations hereunder shall be $1,000.00, and shall be paid to
Escrow Agent in equal proportions by Seller and Purchaser. Escrow Agent agrees
that no fee shall be due and payable hereunder unless and until the Escrow Fund
has been deposited by Purchaser as provided in PARAGRAPH 2.
7. NOTICES.
(a) All notices, demands, certificates or other communications
required or permitted to be given or made hereunder shall be in writing and
delivered personally or sent by pre-paid, first class, certified or registered
mail, return receipt requested, or by facsimile transmission to the intended
recipient thereof at its address, or facsimile number set out below. Any such
notice, demand or communication shall be deemed to have been duly given
immediately (if given or made by personal delivery or confirmed facsimile), or
three days after mailing (if given or made by letter addressed to a location
within the country in which it is posted) or seven days after mailing (if made
or given by letter addressed to a location outside the country in which it is
posted), and in proving same it shall be sufficient to show that the envelope
containing the same was duly addressed, stamped and posted, or that receipt of
a facsimile or hand delivery was confirmed by the recipient. The addresses and
facsimile numbers of the parties for purposes of this Agreement are:
i) If to Purchaser: Harbert Equity Fund I, L.L.C.
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No. (000)000-0000
Attention: Xx. Xxxxxxx Xxxx
With a copy to: Xxxxxxxxxx Xxxxxxxx LLP
Suite 2800
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
ii) If to Seller: Crown NorthCorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Facsimile No. (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Esq.
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With a copy to: Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
iii) If to Escrow Agent: AmSouth Bank of Alabama
0000 0xx Xxx. Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxx
(b) Any party may change the address to which notices, requests,
demands or other communications to such parties shall be delivered or mailed by
giving notice thereof to the other parties hereto in the manner provided
herein.
8. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, executors, administrators, beneficiaries, transferees,
successors and assigns.
9. AMENDMENTS. This Agreement may be amended at any time or from time
to time in a writing executed by the party to be charged.
10. EFFECT ON AGREEMENT. The provisions of this Agreement are not
amended to alter, modify, negate or replace any provisions of the Purchase
Agreement that may be in conflict with the provisions hereof.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument.
12. GOVERNING LAW. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Georgia, without regard to principles of conflicts of laws.
13. PARTIAL INVALIDITY AND SEVERABILITY. All rights and restrictions
contained herein may be exercised and shall be applicable and binding only to
the extent that they do not violate any applicable laws and are intended to be
limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any term of this Agreement, or part thereof, not essential to
the commercial purpose of this Agreement shall be held to be illegal, invalid
or unenforceable by a court of competent jurisdiction, it is the intention of
the parties that the remaining terms hereof, or part thereof, shall constitute
their agreement with respect to the subject matter hereof and all
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such remaining terms, or parts thereof, shall remain in full force and effect.
To the extent legally permissible, any illegal, invalid or unenforceable
provision of this Agreement shall be replaced by a valid provision which will
implement the commercial purpose of the illegal, invalid or unenforceable
provision.
14. WAIVER. Any term or condition of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, but only if
such waiver is evidenced by a writing signed by such party. No failure on the
part of any party hereto to exercise, and no delay in exercising any right,
power or remedy created hereunder, shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or remedy by any such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. No waiver by any party hereto to any breach of or
default in any term or condition of this Agreement shall constitute a waiver of
or assent to any succeeding breach of or default in the same or any other term
or condition hereof.
15. HEADINGS. The headings of particular provisions of this Agreement
are inserted for convenience only and shall not be construed as a part of this
Agreement or serve as a limitation or expansion on the scope of any term or
provision of this Agreement.
16. NUMBER AND GENDER. Where the context requires, the use of the
singular form herein shall include the plural, the use of the plural shall
include the singular, and the use of any gender shall include any and all
genders.
17. TIME OF PERFORMANCE. Time is of the essence.
18. ENTIRE AGREEMENT. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject matter hereof,
and this Agreement contains the sole and entire agreement among the parties
with respect to the matters covered hereby.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement as of the date first hereinabove set forth.
PURCHASER:
HARBERT EQUITY FUND I, L.L.C.
By Xxxxxxx Management Corporation, its Manager
By: /s/
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Xxxxx X. Xxxxxxxx
Vice President
(CORPORATE SEAL)
ESCROW AGENT:
AMSOUTH BANK OF ALABAMA
By: /s/
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Name: Xxxxx Xxxxxxx
Title: Corporate Trust Officer
(CORPORATE SEAL)
SELLER:
CROWN NORTHCORP, INC.
By: /s/
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
(CORPORATE SEAL)
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