EXHIBIT 10.34
CONSTRUCTION ESCROW AGREEMENT
THIS CONSTRUCTION ESCROW AGREEMENT (this "Escrow Agreement") is made
and entered into as of this ____ day of ______, 1996, by and among ARMOR
HOLDINGS, INC. and ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation,
whose address is 000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx 00000 and GB
INVESTMENT & COMPANY, INC. ("GB"), whose address is 0000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, and KENT, RIDGE & XXXXXXXX ("Escrow
Agent"), whose address is 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
00000.
W I T N E S S E T H : That,
WHEREAS, Armor Holdings Properties, Inc., is the owner and holder of
the real property described on Exhibit "A" hereto (the "Property");
WHEREAS, Armor Holdings Properties, Inc., and its parent corporation,
Armor Holdings, Inc. (hereinafter referred to jointly and severally as
"Armor") and GB have entered into that certain Agreement Between Owner and
Construction Manager dated October ___, 1996, (the "Construction Management
Agreement"), wherein GB has agreed to act as Construction Manager for the
construction by Armor of an office and manufacturing facility consisting of
approximately 72,086 sq. ft. of manufacturing, distribution and office space
to be located on the Property at 00000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, as more particularly described in the Construction Management
Agreement (the "Project");
WHEREAS, GB, in its capacity as Construction Manager and on owner's
behalf, has entered into that certain Standard Form of Agreement Between
Owner/Construction Manager and Contractor, dated October ___, 1996 (the
"Construction Contract"), with Mastec Design Build, Inc., as contractor (the
"Contractor"), for construction of the Project;
WHEREAS, to provide a source of funds for payment of the cost of
construction of the Project as set forth in the Construction Management
Agreement and the Construction Contract and to induce the issuance on behalf
of Contractor of a payment and performance bond with respect to the Project,
Armor has agreed to escrow the funds required for payment of the guaranteed
maximum price for construction of the Project pursuant to the Construction
Contract and any other costs or fees required by the Construction Management
Agreement;
NOW, THEREFORE, in consideration of the foregoing and $10.00 and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Armor, GB and Escrow Agent do hereby agree as
follows:
I. Armor has this day deposited with Escrow Agent the sum of
$1,000,000.00 (the "Escrow Amount") for construction of the Project pursuant
to the Construction Contract and payment of the fees due under the
Construction Management Agreement. Escrow Agent hereby
acknowledges receipt of the Escrow Amount and of a true and correct copy of the
Construction Management Agreement and the Construction Contract. Escrow Agent
shall deposit the Escrow Amount into an interest bearing escrow account at
Xxxxxxx Bank of Jacksonville, N. A. All interest or income earned on the Escrow
Amount shall be the property of Armor, but shall be retained in escrow for the
term of this Escrow Agreement. All interest earned on such deposit shall be
attributed for tax purposes as income to Armor whose Tax Identification Number
is ___________________. From time to time, as requested by Construction Manager
and upon satisfaction of the Draw Procedures as set forth in paragraphs 4 and 5
hereof, and all other terms and conditions of this Agreement, Escrow Agent
shall pay to Construction Manager for disbursement in accordance with the terms
of Construction Management Agreement and the Construction Contract, the costs
and expenses due to Mastec Design Build, its subcontractor's agents and
materialmen, and all other fees or costs payable under the Construction
Management Agreement or the Construction Contract.
II. Return of Balance of Escrow Amount. After completion of the
Project and payment to GB of all sums due under the Construction Management
Agreement and the Construction Contract, to the extent there remains any
portion of the Escrow Amount or accrued interest thereon which has not
previously been disbursed pursuant to this Agreement, such remaining portion
shall be paid to Armor.
III. Disbursement Procedures. Whenever GB shall request any
disbursement from Escrow Agent for payment of an amount due under the
Construction Management Agreement or the Construction Contract, GB shall send
copies of such request, and of all supporting documentation required by the
Draw Procedures (as hereafter defined) to Armor at the address set forth
below. Unless Armor shall notify Escrow Agent in writing that it objects to
the payment of the draw request within seven (7) business days after receipt
of such request, or unless Armor pays the draw request directly to GB from
Armor's separate funds and provides evidence of such direct payment to Escrow
Agent, Escrow Agent shall make such disbursement to GB for application by GB
in accordance with the terms of the Construction Management Agreement and the
Construction Contract within eight (8) business days after the draw request.
Armor agrees that it shall not unreasonably object to the payment of a draw
request for which GB has complied with all the Draw Procedures as set forth
herein.
IV. Draw Procedures. Upon the satisfaction of the following conditions
and requirements (which, together with the requirements set forth in paragraph
5 shall be referred to herein as the "Draw Procedures"), as of the time of any
draw request from GB, Escrow Agent shall disburse to GB from the Escrow Amount
the sum requested by the draw request, V.for application by GB in the manner
required by the Construction Management Agreement and the Construction
Contract:
(a) Each draw request shall be submitted to GB by Contractor
on AIA forms, together with such supporting evidence as is required
by the Construction Contract. GB
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shall deliver to Escrow Agent (with a copy to Armor), a copy of
such draw request, together with the supporting documentation
required herein or by the Construction Contract with a letter from GB
stating that GB has reviewed and approved the draw request as
required by the terms of the Construction Management Agreement. The
draw request shall be executed by the Architect to certify: (i) that
the construction of the Project theretofore completed has been
performed in accordance with the applicable plans and specifications;
(ii) the amount of work that has been theretofore completed for each
item for which a draw request has been submitted; and (iii) the
remaining amount estimated to be incurred to complete each item of
the improvements as set forth in the Construction Contract.
(b) GB shall deliver to Escrow Agent (with a copy to Armor)
a waiver of lien rights through the date of the draw request from the
Contractor and from all subcontractors in connection with the portion
of Project which theretofore has been constructed.
(c) GB shall deliver to Escrow Agent (with a copy to Armor)
a title check down from Commonwealth Land Title Insurance Company
showing that no liens have been filed against the Property pursuant
to the Notice of Commencement to be recorded with respect to the
Project.
(d) Escrow Agent shall make disbursements no more frequently
than once a month and each draw request shall be submitted to Escrow
Agent at least eight (8) business days prior to the date of the
requested advance.
V. Draw Procedures for Final Advance. In addition to the matters set
forth in paragraph 4, the final advance of the sum required under the
Construction Contract for payment of completion of construction of the Project
shall be subject to GB submitting to Escrow Agent (with a copy to Armor) all
the documents or information required for the final advance as set forth in
the Construction Contract including the following:
(a) A certificate from the Architect that the improvements
have been substantially completed in accordance with the plans and
specifications;
(b) A certificate from GB setting forth the total construction
costs;
(c) Evidence that the Project has passed its final inspection
by the governmental authority having jurisdiction;
(d) Contractor's Final Affidavit evidencing amount required
for payment of all remaining sums due to Contractor, release by
Contractor of all liens, and releases of lien
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by each subcontractor who has given Armor statutory Notice to
Owner under Chapter 713 of Florida Statutes; and
(e) A final check down from Commonwealth Land Title
Insurance Company, evidencing that no liens have been recorded
against the Property as a result of construction of the Project.
VI. Exculpation of Escrow Agent. In performing its duties hereunder,
Escrow Agent, except for its wilful default or breach of trust, shall not incur
any liability to anyone for any loss or damage resulting from any good faith
act or forbearance of Escrow Agent, any default, error, action, or omission of
any party other than Escrow Agent, the lack of authenticity of any writing
delivered to Escrow Agent or of any signature thereto, or the lack of authority
of the signatory to such writing. Escrow Agent's compliance with all
attachments, writs, orders, judgments, or other legal process issued out of any
court, Escrow Agent's assertion or failure to assert any cause of action or
defense in any judicial or administrative proceeding, or any loss or damage
which arises after the Escrow Amount has been disbursed in accordance with the
terms of this Escrow Agreement.
VII. Disputes. In the event of a dispute between GB and Armor,
sufficient in the sole discretion of Escrow Agent to justify it doing so,
Escrow Agent shall be entitled to tender the Escrow Amount into the registry
of any court of competent jurisdiction, together with such legal pleadings as
it may deem appropriate and thereon be discharged from all further duties and
responsibilities under this Escrow Agreement. Any such legal action shall be
brought in a court of competent jurisdiction in Xxxxx County, Florida. GB
acknowledges that Escrow Agent also represents Armor and agrees that Escrow
Agent shall not be disqualified from continuing to represent Armor in any
dispute arising hereunder or in connection with construction of the Project,
by virtue of having acted as Escrow Agent hereunder. Provided, however, that
if Escrow Agent becomes aware of any dispute, Escrow Agent shall notify both
GB and Armor in writing of the dispute. Escrow Agent shall agree not to
interplead funds into the Registry of the Court until the earlier of sixty
(60) days from the date of Escrow Agent's notice to the parties involved in
the dispute or until such time as either of the parties so notified files
suit. It is agreed that the nonprevailing party in any such suit shall pay the
costs and reasonable attorney's fees incurred by the prevailing party and the
Escrow Agent.
VIII. Indemnity of Escrow Agent. GB and Armor hereby indemnify and hold
harmless Escrow Agent against and all losses, claims, damages, liabilities,
and expenses, including, without limitation, reasonable costs of investigation
and legal counsel fees which may be imposed upon Escrow Agent or incurred by
Escrow Agent in connection with the performance of its duties hereunder,
including without limitation, any litigation arising from this Escrow
Agreement or involving the subject matter hereof.
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IX. Notices. Whenever any notice is required or permitted
hereunder, such notice shall be in writing and shall be (1) sent via Federal
Express or other overnight courier delivery service which requires signature of
the receiving party upon delivery; or (2) sent by telephone facsimile, with the
originals sent the same day by overnight courier as set forth above. A notice
sent pursuant to this paragraph in the manner set forth above shall be deemed
to be received by the party to whom it is addressed on the next business day
after deposit with an overnight courier for next day delivery, or on the date
sent by telephone facsimile for which the sending party has a confirmation of
completion of the facsimile transmission.
X. Binding Agreement. This Escrow Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs and
their respective successors and assigns.
XI. Governing Law. This Escrow Agreement shall be governed by and
shall be construed in accordance with the laws of the State of Florida.
XII. Attorney's Fees. In the event of any litigation with respect to
this Agreement, the prevailing party shall be entitled to collect its
reasonable attorneys' fees and costs from the non-prevailing party.
XIII. Rights of Third Parties. All conditions of this Agreement are
imposed solely and exclusively for the benefit of the parties and their
successors and assigns, and no other person shall have standing to require
satisfaction of such conditions or be entitled to assume that Escrow Agent will
make disbursements in the absence of strict compliance with any or all thereof,
and no other person shall, under any circumstances, be deemed to be a
beneficiary of this Agreement.
XIV. Minimum Escrow Amount. The guaranteed maximum amount payable by
Armor for construction of the Project is $2,841,510.00, subject to any change
orders hereafter approved by Armor. When draw requests are made by GB, the sum
requested may be paid by Armor directly to GB from Armor's separate funds, but
if payment has not been made directly to GB by Armor from separate funds within
five (5) business days after delivery of the draw request to Escrow Agent (with
a copy to Armor), such draw request shall be paid to GB from the Escrow Amount
by Escrow Agent, provided all other conditions of payment hereunder have been
satisfied. Armor agrees that it shall at all times during the term of this
Escrow Agreement maintain on deposit with Escrow Agent an Escrow Amount which
is not less than the Minimum Escrow Amount. The "Minimum Escrow Amount" shall
be the lesser of (i) $1,000,000.00 or (ii) the remaining cost necessary to
complete the construction of the Project. In the event the amount held by
Escrow Agent under this Agreement is reduced below the Minimum Escrow Amount by
payment of draw requests for any other reason, Armor shall promptly make such
additional escrow deposits with Escrow Agent to be held and disbursed under the
terms of the Agreement as are necessary to restore the amount held by Escrow
Agent at least to the Minimum Escrow Amount. Escrow Agent shall certify to
Armor and to GB on request by either party from time
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to time the amount then held in escrow pursuant to this Agreement. In the event
Armor shall fail to maintain the Minimum Escrow Amount in escrow, and such
failure continues for more than three (3) business days after written notice to
Armor, such failure shall constitute a default by Armor hereunder and under the
Construction Management Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Escrow
Agreement on the day and year first above written.
ARMOR HOLDINGS, INC.
By: ______________________________
Print: _______________________
Its: _________________________
ARMOR HOLDINGS PROPERTIES, INC.
By: _______________________________
Print: _______________________
Its: _________________________
"ARMOR"
GB INVESTMENT & COMPANY, INC.
By: ________________________________
Xxxxx X. Xxxxxxx
Vice President
"GB"
KENT, RIDGE & XXXXXXXX
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By:_________________________________
Print: ________________________
"ESCROW AGENT"
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