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ATTRITION ESCROW AGREEMENT
This Escrow Agreement made this 2nd day of November, 1995, by and among
The 593 Corporation, d/b/a Classic Alarms, a Louisiana corporation ("Seller"),
Masada Security, Inc., a Delaware corporation ("Buyer"), and SouthTrust Bank of
Alabama, N.A. (the "Escrow Agent").
STATEMENT OF FACTS
1. Buyer and Seller are parties to that certain Asset Purchase Agreement
dated as of the date hereof (the "Purchase Agreement"). All capitalized terms
used herein, but not otherwise defined herein, shall have the meanings given
them in the Purchase Agreement.
2. Pursuant to the Purchase Agreement, Buyer agreed to purchase all of the
Assets to be Acquired.
3. Pursuant to the Purchase Agreement, Buyer and Seller agreed that Buyer
would deposit a portion of the Purchase Price with the Escrow Agent to provide
a source to fund any Chip Change Credit, any Purchase Price Deduct and any
indemnification obligation of Seller pursuant to Section 8.1 of the Purchase
Agreement.
NOW, THEREFORE, in consideration of the Statement of Facts and the mutual
covenants and agreements contained herein, the parties, intending to be legally
bound, covenant and agree as follows:
1. Establishment of Escrow Fund.
1.1 Simultaneously with the execution and delivery of this Escrow
Agreement, Buyer shall deposit the sum of Two Hundred Eight Thousand Fifty-Five
Dollars and Twelve Cents ($208,055.12) (which deposit, together with interest
accrued thereon, shall be referred to as the "Escrow Fund") with the Escrow
Agent.
2. Appointment of Escrow Agent.
2.1 Buyer and Seller hereby appoint the Escrow Agent to serve as
escrow agent under the terms of this Escrow Agreement, and the Escrow Agent
hereby accepts such appointment.
2.2 The Escrow Agent agrees to place the Escrow Fund in an interest
bearing account, to bear interest at the highest rate offered on accounts
available for immediate withdrawal.
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2.3 The Escrow Agent further agrees to carry out the provisions of
this Escrow Agreement on its part to be performed.
3. Purpose of the Escrow Fund.
3.1 The purpose of the Escrow Fund is to deposit a designated
portion of the Purchase Price to provide a source to fund any Chip Change
Credit, any Purchase Price Deduct, and any indemnification obligation of Seller
pursuant to Section 8.1 of the Purchase Agreement.
4. Distribution of the Escrow Fund.
4.1 The Escrow Agent shall disburse the Escrow Fund, in whole or in
part, only upon receipt of joint written instructions executed on behalf of
Buyer and Seller, or at the direction of the arbitrators to be selected
pursuant to Section 11.3 of the Purchase Agreement or at the direction of a
court of competent jurisdiction.
The Escrow Agent may, at any time, deposit the Escrow Fund with such
arbitrators or court, and upon such deposit, the Escrow Agent shall be relieved
of any further liability or responsibility with respect thereto.
4.2 As to any sum due Seller, the distribution shall be made to:
Crescent Bank & Trust
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx, III, President
For the Account of THE 593 CORPORATION
5. Escrow Agent.
5.1 The Escrow Agent shall not in any way be bound or affected by a
notice of modification or cancellation of this Escrow Agreement unless notice
thereof is given to the Escrow Agent by both Seller and Buyer, nor shall the
Escrow Agent be bound by any modification of its obligations hereunder unless
the same shall be consented to by the Escrow Agent in writing. The Escrow
Agent shall be entitled to rely upon any judgment, certification, demand or
other writing delivered to it hereunder without being required to determine the
authenticity or the correctness of any facts stated therein, the propriety or
validity of the service thereof, or the jurisdiction issuing any judgment.
5.2 The Escrow Agent shall not be under any duty to give the
property held by it hereunder any greater care than it gives its own similar
property.
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5.3 The Escrow Agent may act in reliance upon any instrument or
signature believed by it to be genuine, and it may assume that any person
purporting to give any notice or make any statement in connection with the
provisions hereof has been duly authorized to do so.
5.4 The Escrow Agent may act in reliance upon advice of counsel in
reference to any matter connected herewith, and shall not be liable for any
mistake of fact or error of judgment, or for any act or omission of any kind
except to the extent that such act or omission constitutes willful misconduct,
gross negligence or fraud.
5.5 The Escrow Agent shall not have any responsibility for the
payment of taxes except with funds furnished to the Escrow Agent for that
purpose.
5.6 This Escrow Agreement sets forth exclusively the duties of the
Escrow Agent with respect to any and all matters pertinent hereto. Except as
otherwise expressly provided herein, the Escrow Agent shall not refer to, and
shall not be bound by, the provisions of any other agreement.
5.7 Except with respect to claims based upon the Escrow Agent's
willful misconduct, gross negligence or fraud, Buyer shall indemnify and hold
harmless the Escrow Agent from any claims made against the Escrow Agent by
Seller arising out of or relating to this Escrow Agreement, and Seller shall
indemnify and hold the Escrow Agent harmless from any claims made against the
Escrow Agent by Buyer arising out of or relating to this Escrow Agreement.
Buyer and Seller jointly and severally shall indemnify and hold the Escrow
Agent harmless from any claim made by any third party arising out of or
relating to this Escrow Agreement, such indemnification to include all costs
and expenses incurred by the Escrow Agent, including reasonable attorneys' fees.
5.8 The Escrow Agent shall not be required to institute or defend
any action involving any matters referred to herein or which affect it or its
duties or liability hereunder, unless or until requested to do so by any party
to this Escrow Agreement and then only upon receiving full indemnity, in
character satisfactory to the Escrow Agent, against any and all claims,
liabilities and expenses, including reasonable attorneys' fees, in relation
thereto.
5.9 Upon termination of this Escrow Agreement, the Escrow Agent may
request from Buyer and Seller such additional assurances, certificates,
satisfactions, releases and/or other documents as it may deem appropriate to
evidence the termination of this Escrow Agreement.
5.10 The Escrow Agent shall be entitled to receive a fee for serving
as the Escrow Agent hereunder equal to $500 per year and $25.00 per
transaction, to be shared equally by Buyer and Seller.
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5.11 Buyer and Seller acknowledge that it may be necessary, for
federal income tax or other purposes, for the Escrow Agent to know the employer
identification numbers ("EIN") of Buyer and Seller. Buyer represents that its
EIN is 00-0000000. Seller represents that its EIN is 00-000-0000.
6. Notices.
6.1 All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered when
delivered (i) personally, (ii) by registered or certified mail, (iii) by
legible facsimile transmission or (iv) by overnight courier (fare prepaid), in
all cases addressed as follows:
If to Buyer, to: with a copy to:
Masada Security, Inc. Xxxxxxxx Xxxxxxxxx Professional
Attention: Xxxxxxx X. Xxxxxxxxx Corporation
000 00xx Xxxxxx Xxxxx, Xxx. 000 Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxx, XX 00000 00xx Xxxxx, 000 Xxxxx Xxxxxx
Telecopy: 000-000-0000 Xxxxxxxxxx, XX 00000
Telecopy: 000-000-0000
If to Seller, to: with a copy to:
Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
President Suite 2960, Energy Centre
The 593 Corporation 0000 Xxxxxxx Xxxxxx
0000 Xxxxx X-00 Xxxxxxx Xxxx Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Xxxxxxxx, Xxxxxxxxx 00000
Telecopy: 000-000-0000 Telecopy: 000-000-0000
If to the Escrow Agent, to:
SouthTrust Bank of Alabama, N.A.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopy: 000-000-0000
or to such address as such party may indicate by a notice delivered to the
other parties. Notice shall be deemed received the same day (when delivered
personally), five (5) days after mailing
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(when sent by registered or certified mail), or the next business day (when
sent by facsimile transmission or when delivered by overnight courier). Any
party to this Escrow Agreement may change its address to which all
communications and notices may be sent hereunder by addressing notices of such
change in the manner provided.
7. Miscellaneous.
7.1 This Escrow Agreement and the rights and the obligations of the
parties shall be governed by and construed and enforced in accordance with the
laws of the State of Alabama without regard to its conflicts of law provisions.
7.2 The parties: (i) agree that any legal action concerning any
and all claims, disputes, or controversies arising out of or relating to this
Escrow Agreement shall only be commenced in New Orleans, Louisiana; (ii)
consent to the jurisdiction of the arbitrators selected pursuant to the Purchase
Agreement; and (iii) agree to accept service of any pleadings (and such service
shall be valid), if made by certified or registered mail, return receipt
requested, to the respective parties at the addresses set forth in Section 6 of
this Escrow Agreement. IN THE EVENT OF ANY COURT PROCEEDING HEREUNDER, THE
PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY.
7.3 The parties agree to execute and deliver any and all documents
and to take such further action as shall be reasonably required to effectuate
the provisions of this Escrow Agreement.
7.4 This Escrow Agreement contains the entire understandings of the
parties with respect to the subject matter herein contained and shall not be
modified except by a writing signed by all the parties.
7.5 This Escrow Agreement shall inure to the benefit of and be
binding upon the parties and their respective successors and assigns. Seller
and the Escrow Agent cannot assign this Escrow Agreement, but Buyer shall be
permitted to assign this Escrow Agreement and its rights and obligations
hereunder to its affiliates, successors and assigns.
7.6 There shall be no presumption against any party on the ground
that such party was responsible for preparing this Escrow Agreement or any
part hereof. The word "including" means "including without limitation."
7.7 This Escrow Agreement may be executed in one or more counter-
parts, each of which when taken together shall comprise one instrument.
Delivery of executed signature pages by facsimile transmission shall constitute
effective and binding execution and delivery.
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IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be
executed and delivered as of the day and year first above written.
THE 593 CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
MASADA SECURITY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
SOUTHTRUST BANK OF ALABAMA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Xx. Vice President
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