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EXHIBIT 10-2
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is made and entered
into as of this 5th day of October, 2001 among Genesee Corporation ("Seller"),
Associated Brands, Inc. ("Buyer"), and HSBC Bank USA, a New York State banking
association, as Escrow Agent (the "Escrow Agent").
RECITALS
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A. Seller and Buyer have entered into a certain Stock Purchase
Agreement dated as of this same date (the "Agreement"). Capitalized terms
defined in the Agreement and not otherwise defined herein shall have the meaning
given thereto in the Agreement; and
B. Section 6.8 of the Agreement provides for an Escrow
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which hereby is acknowledged, the
parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Escrow Agent hereby is
appointed to act as Escrow Agent hereunder and agrees to accept and to hold the
Escrow Deposit (as hereinafter defined) in accordance with the terms hereof. The
Escrow Agent will hold and distribute the Escrow Deposit, including all income
earned thereon, in accordance with and subject to the express provisions of this
Escrow Agreement.
2. ESTABLISHMENT AND INVESTMENT OF THE ESCROW DEPOSIT.
2.1 ESTABLISHMENT OF THE ESCROW DEPOSIT. Buyer has
delivered to the Escrow Agent cash in an aggregate amount equal to One Hundred
Seventy-Eight Thousand One Hundred Ninety-Eight Dollars ($178,198) and a $2.25
million promissory note made by Buyer in favor of Seller (the Mortgage Note"),
which, together with the income earned on the cash portion, is referred to
herein as the Escrow Deposit. All interest payments under any note forming part
of the Escrow Deposit are payable by Buyer directly to Seller and not the Escrow
Agent.
2.2 INVESTMENT OF THE ESCROW DEPOSIT. Investment and
reinvestment of the cash portion of the Escrow Deposit shall be directed by the
Escrow Agent and shall be permitted only in (i) the Escrow Agent's approved
money market fund with the highest yield, and (ii) any other form of investment
jointly agreed upon in writing from time to time by Buyer,
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Seller and the Escrow Agent. Seller will provide the Escrow Agent with a W-9 IRS
tax form within 30 days from the date hereof. All liability for taxes
attributable to the investment income earned on the cash portion of the Escrow
Deposit shall belong to Seller. Unless prohibited by law, the Escrow Agent shall
report to the IRS all such investment income as being taxable to Seller,
regardless of whether any Escrow Deposit funds are distributed to Buyer. If the
Escrow Agent is required by law to report any of the investment income as being
taxable to Buyer, the Escrow Agent shall distribute Escrow Deposit funds to
Buyer in an amount equal to Buyer's tax liability arising from such income
within thirty (30) days of Buyer notifying the Escrow Agent of the amount of
such tax liability, including any gross-up amount in order to put Buyer in the
same after-tax position as if the distribution of such amounts were not taxable
to Buyer, all as calculated by Buyer and agreed to by Seller.
3. DISTRIBUTIONS FROM ESCROW DEPOSIT; CASH REPLACEMENT; NOTE
REPLACEMENT.
3.1 DISTRIBUTIONS. Escrow Agent shall disburse the Escrow
Deposit only (i) as directed in writing jointly by Seller and Buyer, (ii) to
offset Buyer's tax liability as expressly provided in Section 2.2, or (iii) in
accordance with the terms of a final, nonappealable order of a court of
competent jurisdiction. The cash portion of the Escrow Deposit shall be
distributed first.
3.2 CASH REPLACEMENT. If Buyer is current on interest
payments and all other charges under the Restated Mortgage Note as confirmed by
Seller in writing, Buyer may replace any portion of the outstanding principal
under the Mortgage Note with additional cash. Upon receipt of additional cash
from Buyer, the Escrow Agent shall return the Mortgage Note to Buyer; provided
that it receives a replacement promissory note in the amount of the outstanding
principal minus the amount of the additional cash.
3.3 NOTE REPLACEMENT. The Escrow Agent will return the
Restated Mortgage Note to Buyer and accept a replacement note as part of the
Escrow Deposit, upon written direction from Seller and Buyer.
4. SETTLEMENT OF DISPUTES. Any dispute that may arise under
this Escrow Agreement with respect to disbursement of the Escrow Deposit, the
duties of the Escrow Agent hereunder or any other questions arising under this
Escrow Agreement, shall be settled either (A) by mutual written agreement of the
Seller and Buyer within sixty (60) days after the giving of notice of such
dispute to the Escrow Agent (evidenced by appropriate instructions in writing to
the Escrow Agent signed by Seller and Buyer), or (B) by a binding and final
judgment, order or decree of a court of competent jurisdiction in the United
States of America (the time for appeal therefore having expired and no appeal
having been perfected). The Escrow Agent shall be under no duty to institute or
defend any proceeding relating to any such dispute and none of the costs and
expenses of any such proceedings shall be borne by the Escrow Agent. Prior to
the settlement of any dispute as provided in this Section 4, the Escrow Agent
shall retain in its possession, without liability to anyone, the portion of the
Escrow Deposit that is the subject of or involved in the dispute.
5. DUTIES AND LIABILITIES OF ESCROW AGENT.
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5.1 DUTIES OF THE ESCROW AGENT. The Escrow Agent shall not
have any duties or responsibilities under this Escrow Agent other than those
specifically set forth herein and shall act only in accordance with the
provisions hereof. The permissive right or power to take any action shall not be
construed as a duty to take action under any circumstances. Without limiting the
generality of the foregoing, the Escrow Agent shall not have any duty or
responsibility (i) to enforce or cause to be enforced any of the terms and
conditions of any other agreements of Buyer and Seller other than this Escrow
Agreement, (ii) to verify the accuracy or sufficiency of any notice or other
document received by it in connection with this Escrow Agreement, or (iii) to
risk its own funds in the administration of the Escrow Deposit. The Escrow Agent
may rely upon, and shall be protected in acting or refraining from acting upon,
any written notice, instruction or request furnished to it hereunder and
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Escrow Agent shall not be required to take
notice of any default or other fact or event unless specifically notified
thereof in the manner provided in this Escrow Agreement.
5.2 LIABILITIES OF THE ESCROW AGENT. The Escrow Agent shall
not be liable to Seller or Buyer or any other person or entity for any loss,
liability or expense resulting from or arising out of any act or failure to act
of the Escrow Agent in connection with this Escrow Agreement, other than a loss,
liability or expense due to the gross negligence or willful misconduct on the
part of the Escrow Agent. Without limiting the foregoing, the Escrow Agent shall
not be liable for any error of judgment by it in good faith and reasonably
believed by it to be authorized or within the rights or powers conferred upon it
by this Escrow Agreement. The Escrow Agent may consult with counsel of its own
choice, who may be counsel for any other party to this Agreement, whenever the
Escrow Agent deems appropriate, and shall have full and complete authorization
and protection for any action reasonably taken or suffered by it hereunder in
good faith in accordance with the opinion of such counsel.
5.3 INDEMNIFICATION OF THE ESCROW AGENT. Seller and Buyer
hereby agrees to indemnify the Escrow Agent and hold it harmless from and
against any and all claims, liabilities, damages, costs, penalties, losses,
actions, suits or proceedings at law or in equity, or any other expenses, fees
or charges of any character or nature, which the Escrow Agent may incur or with
which it may be threatened, directly or indirectly, arising from or in any way
connected with this Agreement or which may result from the Escrow Agent's
following of instructions from Seller or Buyer in accordance with this
Agreement, and in connection therewith, to indemnify the Escrow Agent against
any and all expenses, including attorneys' fees and the cost of defending any
action, suit or proceeding or resisting any claim, whether or not litigation is
instituted, but nothing herein shall be construed to so indemnify the Escrow
Agent to the extent that it is determined that the Escrow Agent has acted in a
grossly negligent manner or with willful misconduct. The provisions of this
Section shall survive the termination of this Agreement.
5.4 DEPOSIT OF ESCROW DEPOSIT WITH COURT. In the event of
any disagreement between the parties to this Escrow Agreement, or between any of
them and any other person, resulting in adverse claims or demands being made in
connection with the Escrow Deposit, or in the event that the Escrow Agent in
good faith is in doubt as to what action it should take hereunder, the Escrow
Agent may, at its option, be discharged of its duties and obligations hereunder
upon its deposit, at any time after written notice to each of Seller and
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Buyer, of the Escrow Deposit with a court of competent jurisdiction. Seller and
Buyer shall have 30 days from receipt of written notice from the Escrow Agent to
jointly appoint a successor Escrow Agent. During the 30 day period, the Escrow
Agent shall not take any action unless Seller and Buyer have jointly appointed a
successor Escrow Agent. After the 30 day period, the Escrow Agent may commence
an action with respect to the Escrow Deposit.
5.5 RESIGNATION OF ESCROW AGENT. The Escrow Agent may
resign at any time by giving not less than thirty (30) days written notice of
such resignation to each of Buyer and Seller. Thereafter, the Escrow Agent shall
have no further obligation hereunder except to hold the Escrow Deposit as
depositary and to continue to pay the interest or other income thereon as
provided herein. In such event the Escrow Agent shall not take any action until
Buyer and Seller have jointly appointed a successor Escrow Agent. Upon receipt
of written instructions to such effect, the resigning Escrow Agent shall
promptly deliver the Escrow Deposit to such successor Escrow Agent and shall
thereafter have no further obligations hereunder.
5.6 APPOINTMENT OF SUCCESSOR ESCROW AGENT. Seller and Buyer
together may terminate the appointment of the Escrow Agent hereunder upon
written notice specifying the date upon which such termination shall take
effect. In the event of such termination, Sellers and Buyer shall within thirty
(30) days of such notice jointly appoint a successor Escrow Agent, and the
Escrow Agent shall deliver the Escrow Deposit to such successor Escrow Agent.
5.7 FEES AND EXPENSES OF THE ESCROW AGENT. The fees as set
forth on Exhibit A to this Escrow Agreement and the reasonable out-of-pocket
expenses of the Escrow Agent, including reasonable attorneys' fees and expenses,
for the services to be rendered by the Escrow Agent hereunder shall be borne by
Seller and Buyer equally and Seller's portion may be paid by the Escrow Agent
out of the Escrow Deposit.
5.8 ADDITIONAL AGREEMENTS RELATING TO THE ESCROW AGENT.
(a) Any recitals contained in this Escrow Agreement
shall be deemed to be those of the principals and not those of the Escrow Agent.
(b) Unless otherwise specifically set forth herein, the
Escrow Agent shall not be required to give any bond or surety or report to any
court despite any statute, custom or rule to the contrary.
(c) The Escrow Agent may execute any of the duties
under this Escrow Agreement by or through agents or receivers.
(d) The Escrow Agent shall not be required to institute
legal proceedings of any kind.
(e) The Escrow Agent makes no representation beyond its
due authorization and execution of this Escrow Agreement.
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(f) The Escrow Agent is under no obligation to disburse
the Escrow Deposit upon the instructions of any governmental agency or authority
(other than a court of competent jurisdiction).
(g) The Escrow Agent's obligations with respect to the
Escrow Deposit are governed solely by this Escrow Agreement.
(h) The Escrow Agent is under no obligation to collect
principal, interest or any other charge under the Mortgage Note.
6. TERMINATION OF THIS ESCROW AGREEMENT. Eighteen (18) months
subsequent to the date of this Escrow Agreement, without notice from Seller or
Buyer to Escrow Agent, this Escrow Agreement shall terminate and Escrow Agent
shall deliver or pay the balance of the Escrow Deposit (less any distributions
previously made pursuant to Section 3 and including delivery of the Mortgage
Note) to Seller, except to the extent that Buyer has given notice to the parties
of a claim or claims against the Escrow Deposit. Such notice shall describe the
claim(s) in reasonable detail and shall include the amount which is claimed.
7. MISCELLANEOUS.
7.1 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by messenger, transmitted by telex or telecopied (with
receipt confirmed), or mailed, certified or registered mail, with postage
prepaid and addressed to the parties at their respective addresses shown below
or at such other address as any party may specify by written notice to the other
parties:
(a) If to Seller:
Genesee Corporation
600 Powers Building
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
copy to:
Xxxxx Peabody LLP
Clinton Square
X.X. Xxx 00000
Xxxxxxxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
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(b) If to Buyer:
Associated Brands, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
copy to:
Xxxxxxx Xxxx XXX
Xxx X&X Xxxxx, Xxxxx 0000
Xxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxx X. Xxxx, Esq.
(c) If to the Escrow Agent:
HSBC Bank USA
X.X. Xxx 000
Xxxxxxx, Xxx Xxxx 00000
or
0 XXXX Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Any party may change the name and/or address to which notice
are to be addressed by giving the other parties notice in the manner herein set
forth.
7.2 ENTIRE AGREEMENT. This Escrow Agreement contains the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect hereof.
7.3 AMENDMENTS. This Escrow Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by written instrument signed by each of
Seller, Buyer (or any successor thereto) and the Escrow Agent, or, in the case
of a waiver, by the party or parties waiving compliance. No delay on the part of
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder,
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preclude any other or further exercise hereof or the exercise of any other
rights, power or privilege hereunder.
7.4 GOVERNING LAW. This Escrow Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect o the choice of law principles thereof. The parties consent to the
exclusive jurisdiction of and venue in the courts of the State of New York, Erie
County and the Federal Court located in Erie County, New York.
7.5 SUCCESSORS AND ASSIGNS. This Escrow Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that the Escrow Agent may not assign any of its
rights or delegation of any of its obligations hereunder without the express
written consent of each of Seller and Buyer.
7.6 FURTHER ASSURANCES. Each of the parties shall execute
such other documents and papers and take such further actions as may be
reasonably required or desirable to carry out the provisions hereof and the
transactions contemplated hereby.
7.7 HEADINGS. The Article and Section headings contained in
this Escrow Agreement are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Escrow Agreement.
7.8 COUNTERPARTS. This Escrow Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement as of the date first above written.
BUYER SELLER
ASSOCIATED BRANDS, INC. GENESEE CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxx X. Xxxxxx Xxxxxx X. Xxxxx
Its: Chairman and CEO Its: Vice President and
Treasurer
ESCROW AGENT
HSBC BANK USA
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Its:
