Exhibit 2
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is made and entered into as of
April 22, 2002, by and among _______________ ("Escrow Agent"), XXXXXX XXXXXXX
REAL ESTATE FUND III, L.P., a Delaware limited partnership ("MSREF"), XXXXXX
XXXXXXX REAL ESTATE INVESTORS III, L.P., a Delaware limited partnership
("MSREI"), MSP REAL ESTATE FUND, L.P., a Delaware limited partnership ("MSP"),
and MSREF III SPECIAL FUND, L.P., a Delaware limited partnership ("Special
Fund") (collectively, "Sellers") and XXXXXX COMPANIES, LLC, a Florida limited
liability company ("Purchaser").
RECITALS:
A. Purchaser and Sellers have entered into a Stock Purchase Agreement,
dated April 10, 2002 (the "Purchase Agreement"), pursuant to which Purchaser
will purchase from Sellers 5,882,353 of the issued and outstanding shares (the
"Company Shares") of common stock of Bluegreen Corporation, a Massachusetts
corporation (the "Company").
B. Section 1.03 of the Purchase Agreement provides that contemporaneous
with the execution of this Agreement, Purchaser will deposit with Escrow Agent
$2,337,559.00 (the "Remaining Purchase Price"), and Sellers will deposit with
Escrow Agent certificates representing 333,937 of the Company Shares (the
"Remaining Shares"), with duly executed stock powers endorsed in favor of
Purchaser (such certificates and powers being the "Remaining Share Certificates
and Powers"), in each case to be held and distributed upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Certain Definitions. All capitalized terms used and not otherwise
defined herein have the respective meanings ascribed thereto in the Purchase
Agreement. For purposes of this Agreement, the following terms will have the
following meanings:
1.1 Escrowed Funds. The term "Escrowed Funds" means collectively (i) the
Remaining Purchase Price Escrowed Funds, and (ii) the Remaining Share Escrowed
Funds.
1.2 Escrowed Shares. The term "Escrowed Shares" means the Remaining Shares
and any other non-cash property deposited with the Escrow Agent pursuant to
Section 4.3.
1.3 Remaining Share Escrowed Funds. The term "Remaining Share Escrowed
Funds" means any and all cash dividends on and cash distributions with respect
to Escrowed Shares deposited with and held by Escrow Agent pursuant to Section
4.2, plus all earnings on, and proceeds of investment of, such funds pending
distribution or disbursement thereof in accordance with the provisions of this
Agreement, and less any distributions or disbursements made pursuant to Sections
4.2 and 4.3 to satisfy tax obligations.
1.4 Remaining Purchase Price Escrowed Funds. The term "Remaining Purchase
Price Escrowed Funds" means the amount of the Remaining Purchase Price, being
$2,337,559.00 in cash deposited in escrow as provided in Section 3.1 plus all
earnings on, and proceeds of
investment of, such escrowed funds pending distribution or disbursement thereof
in accordance with the provisions of this Agreement.
2. Appointment of Escrow Agent. Escrow Agent is hereby appointed as escrow
agent to hold and disburse the funds and shares deposited hereunder in
accordance with the terms of this Agreement.
3. Deposits in Escrow.
3.1 Deposit of Remaining Purchase Price Escrowed Funds. Simultaneously with
the execution and delivery of this Agreement, Purchaser has deposited with
Escrow Agent the Remaining Purchase Price in cash pursuant to Section 1.03 of
the Purchase Agreement, and Escrow Agent hereby acknowledges receipt thereof.
3.2 Deposit of Escrowed Shares. Simultaneously with the execution and
delivery of this Agreement, Sellers have deposited with Escrow Agent the
Remaining Share Certificates and Powers pursuant to Section 1.03 of the Purchase
Agreement, and Escrow Agent hereby acknowledges receipt thereof.
4. Certain Matters Relating to Escrowed Shares.
4.1 Voting. All voting rights with respect to the Escrowed Shares may be
exercised by Purchaser. Each Seller hereby grants to and appoints Purchaser as
its proxy and attorney-in-fact (with full power of substitution) to vote or act
by written consent with respect to the Escrowed Shares owned of record by such
Seller. This proxy is coupled with an interest and shall be irrevocable.
4.2 Cash Dividends. All cash dividends and other cash distributions paid or
made with respect to or on Escrowed Shares (less a portion thereof necessary to
enable Sellers to satisfy any federal or state income tax liabilities of Sellers
resulting therefrom) will be deposited by Sellers with Escrow Agent promptly
upon receipt thereof and thereafter will be held and applied by Escrow Agent as
part of the Remaining Share Escrowed Funds.
4.3 Non-Cash Dividends. All non-cash dividends and all other non-cash
distributions paid or made on the Escrowed Shares, including without limitation
all shares or other securities or property paid as a dividend on or distributed
in respect of the Escrowed Shares, and all shares or other securities into which
the Escrowed Shares may be changed or for which they may be exchanged pursuant
to corporate action of the Company affecting its common stock generally (in any
case, less a portion thereof necessary to enable Sellers to satisfy any federal
or state income tax liability of Sellers resulting therefrom) will be deposited
by Sellers with Escrow Agent promptly upon receipt thereof and thereafter will
be held and applied by Escrow Agent as part of the Escrowed Shares.
5. Investment of Escrowed Funds.
5.1 Investment of Remaining Purchase Price Escrowed Funds. Escrow Agent
will invest and reinvest the Remaining Purchase Price Escrowed Funds, as Sellers
direct in writing from time to time, in federally insured interest bearing bank
accounts, certificates of deposit of
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federally insured financial institutions, treasury bills or other direct
federally guaranteed investments or in mutual funds invested primarily in
obligations of the type described above. All earnings on, and proceeds of
investment of, the Remaining Purchase Price Escrowed Funds pending distribution
or disbursement thereof in accordance with the provisions of this Agreement will
be received, held and applied by Escrow Agent as part of the Remaining Purchase
Price Escrowed Funds and for tax reporting purposes will be allocable to Sellers
in the following proportions: 35.45020% to MSREF; 1.64330% to MSREI; 28.38460%
to MSP; and 34.52190% to Special Fund.
5.2 Investment of Remaining Share Escrowed Funds. Escrow Agent will invest
and reinvest the Remaining Share Escrowed Funds, as Purchaser directs in writing
from time to time, in federally insured interest bearing bank accounts,
certificates of deposit of federally insured financial institutions, treasury
bills or other direct federally guaranteed investments or in mutual funds
invested primarily in obligations of the type described above. All earnings on,
and proceeds of investment of, the Remaining Share Escrowed Funds pending
distribution or disbursement thereof in accordance with the provisions of this
Agreement will be received, held and applied by Escrow Agent as part of the
Remaining Share Escrowed Funds and for tax reporting purposes will be allocable
to Purchaser.
6. Payment of Taxes.
6.1 Taxes on Remaining Purchase Price Escrowed Funds. Sellers will be
liable for, and will from time to time when due and payable, pay and discharge
all taxes imposed with respect to the Remaining Purchase Price Escrowed Funds or
any income arising therefrom, including without limitation taxes assessed on
dividends, distributions or other earnings on, or proceeds of investment of, the
Remaining Purchase Price Escrowed Funds, and will, jointly and severally,
indemnify Escrow Agent and hold it harmless from and against such taxes.
6.2 Taxes on Remaining Share Escrowed Funds or Escrowed Shares. Purchaser
will be liable for, and will from time to time when due and payable, pay and
discharge all taxes imposed with respect to the Escrowed Shares or the Remaining
Share Escrowed Funds or any income arising therefrom, including without
limitation taxes assessed on dividends, distributions or other earnings on, or
proceeds of investment of, the Escrowed Shares or the Remaining Share Escrowed
Funds, and will indemnify Escrow Agent and hold it harmless from and against
such taxes. Purchaser will be deemed to have satisfied any federal or state
income tax liabilities with respect to dividends or distributions deposited
pursuant to Section 4.2 or 4.3 to the extent Sellers deducted a portion of such
dividends or distributions from such deposit to satisfy any federal or state
income tax liability resulting therefrom.
7. No Liens or Encumbrances on Escrowed Shares or Escrowed Funds. Neither
Sellers nor Purchaser will grant or otherwise permit to exist any lien with
respect to the Escrowed Funds or Escrowed Shares, or its claims thereto.
8. Distributions. Promptly following the earlier of (a) Escrow Agent's
receipt of a certificate from Sellers to the effect that the condition in
Exhibit C to the Purchase Agreement has been satisfied, and (b) 10:00 a.m.
Dallas, Texas time on June 14, 2002, Escrow Agent will distribute to (i) Sellers
the Remaining Purchase Price Escrowed Funds then held in escrow by
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wire transfer of immediately available funds to the accounts specified on
Exhibit A in the following proportions: 35.45020% to MSREF; 1.64330% to MSREI;
28.38460% to MSP; and 34.52190% to Special Fund, and (ii) Purchaser the Escrowed
Shares, including without limitation the Remaining Share Certificates and
Powers, and the Remaining Share Escrowed Funds by wire transfer of immediately
available funds to the account specified on Exhibit X. Xxxxxxx will deliver a
copy of the certificate contemplated by this Section 8 to Purchaser at the same
time and in the same manner that it is delivered to Escrow Agent.
9. Escrow Agent.
9.1 General. Purchaser and Sellers acknowledge and agree that Escrow Agent
(i) will not be responsible for any of the agreements referred to herein but
will be obligated only for the performance of such duties as are specifically
set forth in this Agreement; (ii) will not be obligated to take any legal or
other action hereunder which might in its judgment involve expense or liability
unless it shall have been furnished with indemnity acceptable to it; (iii) may
rely on and will be protected in acting or refraining from acting upon any
written notice, instruction, instrument, statement, request or document
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper person, and will have no responsibility for
determining the accuracy thereof; and (iv) may consult counsel satisfactory to
it, including house counsel, and the advice or opinion of such counsel will be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
9.2 Liability. Neither Escrow Agent nor any of its directors, officers or
employees will be liable to anyone for any action taken or omitted to be taken
by it or any of its directors, officers or employees hereunder except in the
case of gross negligence, bad faith or willful misconduct. Purchaser and Sellers
will, jointly and severally, indemnify Escrow Agent and hold it harmless without
limitation from and against any loss, liability or expense of any nature
incurred by Escrow Agent arising out of or in connection with this Agreement or
with the administration of its duties hereunder, including, but not limited to,
legal fees and expenses and other costs and expenses of defending or preparing
to defend against any claim of liability in the premises, unless such loss,
liability or expense is caused by Escrow Agent's gross negligence, bad faith or
willful misconduct. In no event will Escrow Agent be liable for indirect,
punitive, special or consequential damages.
9.3 Compensation. Purchaser and Sellers hereby have each paid one-half of
Escrow Agent's compensation for its services hereunder in the amount of
$_____________. Escrow Agent will be entitled to reimbursement on demand for all
expenses incurred in connection with the administration of the escrow created
hereby which are in excess of its compensation for normal services hereunder,
including without limitation payment of any legal fees and expenses incurred by
Escrow Agent in connection with the resolution of any claim by any party
hereunder.
9.4 Resignation. Escrow Agent may at any time resign as Escrow Agent
hereunder by giving 30 days' prior written notice of resignation to the other
parties hereto. Prior to the effective date of the resignation as specified in
such notice, Sellers will issue to Escrow Agent a written instruction
authorizing redelivery of the Escrow Funds to a successor escrow agent that it
selects subject to the reasonable consent of Purchaser. Such successor escrow
agent will be a
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bank or trust company, organized and existing under the laws of the United
States or any state thereof, subject to examination by state or federal
authorities, and have capital and surplus in excess of $100,000,000. If,
however, Sellers fail to name a successor escrow agent within 20 days after the
notice of resignation from Escrow Agent, Purchaser will be entitled to name such
successor escrow agent. If no successor escrow agent is named by Purchaser or by
Sellers, Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent. The provisions of Section 9.2 will
survive the resignation or removal of Escrow Agent or the termination of this
Agreement.
9.5 Additional Escrowed Funds. Escrow Agent need not inquire into or verify
whether additional cash, shares or other securities or property are required to
be delivered to Escrow Agent pursuant to Sections 4.2 and 4.3 or inquire into or
verify the tax calculations of any party hereto contemplated by such Section and
may assume, instead, that its duties are only to hold the Remaining Shares and
Remaining Purchase Price deposited on the date hereof and such additional
property as is delivered to it in accordance with this Agreement.
10. Miscellaneous Provisions.
10.1 Notice. Any notice, consent, waiver or demand pursuant to or in
connection with this Agreement must be in writing and will be deemed to be
delivered when personally delivered or when actually received by facsimile
transmission, overnight courier of national reputation or United States mail, at
the address or facsimile number stated below (or at such other address or
facsimile number as such party may designate by written notice to all other
parties), with copies sent to the persons indicated:
SELLERS:
x/x Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxx XXX, L.P.
37th Floor
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
PURCHASER:
Xxxxxx Companies, LLC
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx, President
Facsimile No.: (000) 000-0000
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Copies to:
BankAtlantic Bancorp, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Chairman
Facsimile No.: (000) 000-0000
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A.
Suite 2200
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
ESCROW AGENT:
__________________________________
__________________________________
__________________________________
Attention: _______________________
Facsimile No.: ___________________
Copy to:
__________________________________
__________________________________
__________________________________
Attention: _______________________
Facsimile No.: ___________________
10.2 Entire Agreement. This Agreement, the Purchase Agreement and the
agreements and documents delivered hereunder and thereunder constitute the
entire agreement among the parties hereto with respect to the subject matters
hereof and thereof and there are no understandings, representations, warranties
or agreements relative hereto and thereto which are not fully expressed herein
and therein. No change, waiver or discharge of this Agreement will be valid
unless in writing and executed by the party against whom such change, waiver or
discharge is sought to be enforced.
10.3 Assignment. This Agreement will apply to, inure to the benefit of, and
be binding upon and enforceable against the parties to this Agreement and their
respective legal representatives, successors and permitted assigns.
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10.4 Exculpation. Notwithstanding any provision herein to the contrary, the
liability of each Seller shall be limited to the assets of such Seller and no
partner, shareholder, officer, director, employee or agent of any Seller shall
have any personal liability hereunder.
10.5 Governing Law. This Agreement, and the rights and obligations of the
parties hereto, will be governed by the substantive laws of the State of New
York without giving effect to the principles of conflict of laws of that state.
Each of Sellers and Purchaser irrevocably submits to the exclusive jurisdiction
of the federal or state courts located in New York County, New York for purposes
of any action, suit or other proceeding arising out of this Agreement or any
transaction contemplated under this Agreement, and irrevocably waives any
objection which it may now or hereafter have to the venue of any suit, action or
proceeding brought in such courts and any claim that such suit, action or
proceeding brought in such courts has been brought in an inconvenient forum and
lack of jurisdiction.
10.6 Captions. Any captions, headings and arrangements used in this
agreement are for convenience and do not in any way effect, limit or amplify the
terms and provisions of this Agreement.
10.7 Expenses. Subject to Section 9.3, Sellers will be responsible for
their own expenses (including without limitation, legal and accounting fees) and
Purchaser will be responsible for its own expenses (including, without
limitation, legal and accounting fees) incurred in connection with the
transactions contemplated under this Agreement, whether or not such transactions
are consummated.
10.8 Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which will be deemed to be an original, but which together
will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
ESCROW AGENT
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
[Sellers' and Purchaser's signatures begin on following page.]
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SELLERS:
XXXXXX XXXXXXX REAL ESTATE FUND III, L.P.
By: MSREF III, L.L.C., its general partner
By: MSREF III, Inc., its MS Member
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
XXXXXX XXXXXXX REAL ESTATE INVESTORS III,
L.P.
By: MSREF III, L.L.C., its general partner
By: MSREF III, Inc., its MS Member
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
MSP REAL ESTATE FUND, L.P.
By: MSREF III, L.L.C., its general partner
By: MSREF III, Inc., its MS Member
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
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MSREF III SPECIAL FUND, L.P.
By: MSREF III, L.L.C., its general partner
By: MSREF III, Inc., its MS Member
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
PURCHASER:
XXXXXX COMPANIES, LLC
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
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Exhibit A
Sellers' Wire Transfer Instructions
Seller Account Amount
------ ------- ------
Exhibit B
Purchaser's Wire Transfer Instructions
