ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is entered
into as of this 17th day of November 1997 between XXXXX XXXXXXXX
ENTERTAINMENT, INC., a Colorado corporation ("JNE"), Xxxxx Xxxxx
("Purchaser") and MRC LEGAL SERVICES CORPORATION dba the Law offices
of M. Xxxxxxx Xxxxxx, Esq., as escrow agent (the "Escrow Agent").
R E C I T A L S
A. As of October 2, 1996 JNE, AFSI, ANFS, Inc. a
Delaware corporation ("ANFS") and Real Estate Television Network,
Inc., a Nevada corporation ("RETN") entered into an Agreement and
Plan of Reorganization (the "Agreement") providing for the
acquisition of RETN by AFSI through its wholly-owned subsidiary, ANFS.
B. In connection with the transaction, AFSI issued to
JNE an aggregate of 1,000,000 shares of AFSI Series A Preferred
Stock (the "AFSI Stock"), which have been subsequently been reduced
to 400,000 shares as a result of a reverse stock split. All of the
AFSI Stock is and has been held by the Escrow Agent pursuant to the
terms of an Escrow Agreement dated as of February 12, 1997.
C. In accordance with the terms of that certain Stock
Purchase Agreement of even date herewith (the "Stock Purchase
Agreements"), JNE has agreed to sell to Purchaser 22,223 shares (the
"Shares") of unrestricted common stock upon the conversion of
certain of the shares of AFSI Stock.
D. The parties hereto desire and the Escrow Agent has
agreed to hold the proceeds from the sale of the Shares (the "Cash
Consideration") and subsequently release such proceeds to JNE upon
the occurrence of certain events as set forth in this Escrow Agreement.
E. Escrow Agent has agreed to act as the escrow agent
hereunder, in accordance with the terms and conditions set forth in
this Escrow Agreement.
NOW THEREFORE, for and in consideration of the foregoing and
of the mutual covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
1. APPOINTMENT OF ESCROW AGENT. JNE and Purchaser
(collectively, the "Parties") hereby mutually appoint and designate
the Escrow Agent to receive, hold and release, as escrow agent, the
Cash Consideration, and the Escrow Agent hereby accepts such
appointment and designation.
2. ESCROW DELIVERY. Upon closing of the transaction for
the sale of the Shares as set forth in the Stock Purchase Agreement,
Purchaser shall deliver the Cash Consideration to the Escrow Agent.
3. CONDITIONS OF ESCROW.
3.1 The Escrow Deposit. Escrow Agent shall hold and
release the Cash Consideration as follows:
a. From the date of Closing until the Share Unrestricted Date
(defined below), the Escrow Agent may release up to an additional 5%
of the Cash Consideration at the direction and request of JNE to
unrelated third parties for the purpose of completing the conversion
of the Preferred Stock to common stock of AFSI, the removal of any
restrictions on the transfer of such shares and any related actions
or other matters required to undertake the transactions contemplated
by the Stock Purchase Agreement (the "Unrestricted Share Reserve");
b. Upon the date that the Purchaser receives the Shares without
restrictive legend (the "Share Unrestricted Date"), the Escrow Agent
shall release the balance of all Cash Consideration then in Escrow
to JNE (including, without limitation, any balance left of the
Unrestricted Share Reserve");
c. The Escrow Agent may release the Cash Consideration to JNE or
Purchaser, as the case may be, pursuant to joint written
instructions executed by JNE and Purchaser;
d. The Escrow Agent may release the Cash Consideration to JNE or
Purchaser, as the case may be, pursuant to any "final order" of a
court of competent jurisdiction, any such order being deemed to be
"final" if (i) such order has not been reserved, stayed, enjoined,
set aside, annulled or suspended, (ii) no request for a stay,
suspension or an injunction, petition for reconsideration or appeal,
or sua sponte action with comparable effect is pending with respect
to the order, and (iii) the time for filing any such request,
petition or appeal or further taking of any such sua sponte action
has expired; or
e. The Escrow Agent shall release the balance of the Cash
Consideration (less the full Unrestricted Share Reserve) upon
written notice by Purchaser if the Share Unrestricted Date has not
occurred on or before the later of March 31, 1998 or the date of
such notice by Purchaser. Upon such event, the Escrow Agent shall
also notify Purchaser and JNE that the Stock Purchase Agreement has
terminated and that Purchaser is no longer entitled to receipt of
the Shares.
f. Conflicting Instructions. If a bona fide controversy arises
between the Parties concerning the release of the Cash
Consideration, the Escrow Agent may submit such controversy for
resolution by joint written instructions of the parties or by order
of a court of competent jurisdiction. If a suit is commenced
against the Escrow Agent, it may answer by way of interpleader and
name JNE and Purchaser as additional parties to such action, and the
Escrow Agent may tender the Cash Consideration into such court for
determination of the respective rights, titles and interests of the
Parties. Upon such tender, the Escrow Agent shall be entitled to
receive from the Parties its reasonable attorneys' fees and expenses
incurred in connection with said interpleader action or in any
related action or suit. As between JNE and Purchaser, such fees,
expenses and other sums shall be paid by the party which fails to
prevail in the proceedings brought to determine the appropriate
distribution
of the Cash Consideration. If and when the Escrow Agent
shall so interplead such Parties, or either of them, and deliver the
Cash Consideration to the clerk of such court, all of its duties
hereunder shall cease, and it shall have no further obligation in
this regard. Nothing herein shall prejudice any right or remedy of
the Escrow Agent.
4. CONCERNING ESCROW AGENT
4.1 Duties. Escrow Agent undertakes to perform all
duties which are expressly set forth herein; provided, however, that
the Escrow Agent shall not be required to make or be liable in any
manner for its failure to make any determination under the Agreement
or any other agreement, including whether any of JNE or the
Purchaser is entitled to delivery of the Cash Consideration under
the Agreement.
4.2 Indemnification.
a. Escrow Agent may rely upon and shall be protected in acting
or refraining from acting upon any written notice, instructions or
request furnished to it hereunder and reasonably believed by it to
be genuine and authorized.
b. Escrow Agent shall not be liable for any action taken by it
in good faith and without gross negligence or wilful misconduct, and
believed by it to be authorized or within the rights or powers
conferred upon it by this Escrow Agreement, and may consult with
counsel of its own choice and shall have full and complete
authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such
counsel.
c. JNE and Purchaser hereby jointly and severally agree to
indemnify the Escrow Agent for, and hold the Escrow Agent harmless
against, any loss, liability or expense incurred without gross
negligence or wilful misconduct or bad faith on the part of the
Escrow Agent, arising out of or in connection with the Escrow
Agent's entering into this Escrow Agreement and carrying out the
Escrow Agent's duties hereunder, including, without limitation,
costs and expenses of defending the Escrow Agent against any claim
or liability with respect thereto.
d. Escrow Agent shall have no implied obligations or
responsibilities hereunder, nor shall it have any obligation or
responsibility to collect funds or seek the deposit of money or
property.
4.3 Other Matters. Escrow Agent (and any successor
escrow agent or agents) reserves the right to resign as the Escrow
Agent at any time, provided fifteen (15) days' prior written notice
is given to the other parties hereto, and provided further that a
mutually acceptable successor escrow agent(s) agrees in writing to
serve as escrow agent hereunder within such fifteen (15)-day period.
The Escrow Agent may petition any court in the State of California
having jurisdiction to designate a successor Escrow Agent. The
resignation of the Escrow Agent (and any successor escrow agent or
agents) shall be effective only upon delivery of the Cash
Consideration then in
Escrow to the successor escrow agent(s). The Parties reserve the right
to jointly remove the Escrow Agent at any time, provided fifteen (15) days'
prior written notice is given to the Escrow Agent. In the event of
litigation or dispute by the Parties in which the performance of the duties
of the Escrow Agent is at issue, the Escrow Agent shall take no action
until such action is agreed in writing by the Parties, or until receipt of
any final order by a court of competent jurisdiction directing the Escrow
Agent to take such action.
5. TERMINATION. This Escrow Agreement shall be
terminated upon the release of the Cash Consideration in accordance
with the terms and conditions hereof, or otherwise by written mutual
consent signed by all parties hereto.
6. NOTICE. All notices, demands, requests, or other
communications which may be or are required to be given, served or
sent by any party to any other party pursuant to this Escrow
Agreement shall be in writing and shall be hand delivered (including
delivery by courier) or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, addressed
as follows:
IF TO JNE:
Xxxxx Xxxxxxxx Entertainment, Inc.
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx, President
Facsimile No.: 000-000-0000
IF TO PURCHASER:
Xxxxx Xxxxx
c/x Xxxxx & Xxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Facsimile No.: (000) 000-0000
IF TO THE ESCROW AGENT:
Law Offices of M. Xxxxxxx Xxxxxx, Esq.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
or such other address as the addressee may indicate by written
notice to the other parties. Each notice, demand, request or
communication which shall be given or made in the manner described
above shall be deemed sufficiently given or made for all purposes at
such time as it delivered to the addressee (with the return receipt,
the delivery receipt or the affidavit of messenger being deemed
conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
7. BENEFIT AND ASSIGNMENT. This Escrow Agreement shall
be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns as permitted hereunder.
No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision in this Escrow
Agreement against any of the parties hereto, and the covenants and
agreements set forth in this Escrow Agreement shall be solely for
the benefit of, and shall be enforceable only by, the parties hereto
or their respective successors and assigns this Escrow Agreement or
any rights hereunder without the prior written consent of the
parties hereto.
8. ENTIRE AGREEMENT; AMENDMENT. This Escrow Agreement
contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior oral or written
agreements, commitments or understandings with respect to such
matters. This Escrow Agreement may not be changed orally, but only
by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or
discharge is sought.
9. HEADINGS. The headings of the sections and
subsections contained in this Escrow Agreement are inserted for
convenience only and do not form a part or affect the meaning,
construction or scope thereof.
10. GOVERNING LAW; VENUE. This Escrow Agreement shall be
governed and constructed under and in accordance with the laws of
the State of California (but not including the conflicts of laws and
rules thereof). For purposes of any action or proceeding involving
this Escrow Agreement each of the parties to this Escrow Agreement
expressly submits to the jurisdiction of the federal and state
courts located in the State of California and consents to the
service of any process or paper by registered mail or by personal
service within or without the State of California in accordance with
applicable law, provided a reasonable time for appearance is allowed.
11. SIGNATURE IN COUNTERPARTS. This Escrow Agreement may
be executed in separate counterparts, none of which need contain the
signature of all parties, each of which shall be deemed to be an
original and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this
Escrow Agreement to produce or account for more than the number of
counterparts containing the respective signatures of, or on behalf
of, all of the parties hereto.
12. ATTORNEY'S FEES. Should any action be commenced
between the parties to this Agreement concerning the matters set
forth in this Agreement or the right and duties of either in
relation thereto, the prevailing party in such action shall be
entitled, in addition to such other relief as may be granted, to a
reasonable sum as and for its Attorney's Fees and Costs.
13. FEES AND EXPENSES OF ESCROW AGENT. Except as may
otherwise be provided herein, all fees of the Escrow Agent hereunder
shall be paid by JNE.
IN WITNESS WHEREOF, each of the parties has caused this
Escrow Agreement to be duly executed and delivered in its name and
on its behalf, all as of the date and year first above written.
XXXXX XXXXXXXX ENTERTAINMENT, INC.
a Colorado corporation ("JNE")
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx, President
PURCHASER
By: /s/Xxxxx Xxxxx
MRC LEGAL SERVICES CORPORATION, a California corporation
dba The Law Offices of M. Xxxxxxx Xxxxxx, Esq. ("ESCROW AGENT")
By: /s/ M. Xxxxxxx Xxxxxx
M. Xxxxxxx Xxxxxx, President
