CASH ESCROW AGREEMENT
CASH ESCROW AGREEMENT, dated as of September 25, 1996 (this
"AGREEMENT"), by and among XXXXXXX X. XXXXX, having an address at 0000 Xxxxxxx
Xxxx, Xxxxxxxxxxxxx, Xxxxxxxx 00000 ("RS") and XXXXXX X. XXXXX, having an
address at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 ("DS"), XXXXX XXXXXXX,
having an address at c/o F. Xxxxxxx Xxxxx, 000 Xxxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000 ("HB") (DS, HB and RS are collectively referred to herein as
"Seller"), FAMILY GOLF CENTERS, INC., a Delaware corporation having an address
at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000 ("PURCHASER"),
and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, incorporated under the laws of
the United States of America with executive offices at 0 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (together with its successors, the "ESCROW AGENT").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution hereof, Seller and
Purchaser are consummating the transactions contemplated by the Stock Purchase
Agreement, dated as of the date hereof (the "PURCHASE AGREEMENT"), between
Seller and Purchaser;
WHEREAS, pursuant to the Purchase Agreement, Purchaser is required to
deposit $100,000 into an escrow account to be maintained by Escrow Agent to be
held against any claims for indemnity under Article 10 of the Purchase
Agreement; and
WHEREAS, this is the Escrow Agreement referred to in the Purchase
Agreement. Capitalized terms used in this Escrow Agreement and not otherwise
defined herein shall
have the respective meanings given to them in the Purchase Agreement.
NOW, THEREFORE, it is agreed as follows:
1. ESCROW.
1.01 APPOINTMENT OF ESCROW AGENT.
(a) Seller and Purchaser hereby appoint Escrow Agent, and Escrow Agent
hereby agrees to serve, as Escrow Agent in accordance with, and pursuant to,
this Agreement.
(b) Escrow Agent shall establish at Chemical Bank a separate
Federally insured, interest bearing account (the "ESCROW ACCOUNT") for any
amounts received by it hereunder.
(c) All monies, including interest thereon, held by Escrow Agent in
the Escrow Account pursuant to the terms hereof shall be hereinafter referred
to as the "ESCROWED FUNDS".
(d) RS's social security number is _____________. DS's social
security number is _____________. HB's Social Security No. is
#________________. RS, DS and HB shall each be jointly and severally
responsible for the payment of any income taxes payable in connection with any
interest earned in the Escrow Account.
1.02 OPERATION OF ESCROW ACCOUNT. The parties hereto agree that the
Escrow Account shall operate as follows:
(a) Simultaneously with the execution and delivery hereof,
Purchaser
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shall deliver or cause to be delivered to Escrow Agent $100,000. Escrow Agent
shall hold such amount as Escrowed Funds in the Escrow Account.
(b) At any time prior to the first anniversary of the Closing
Date, Purchaser shall be entitled to give a notice to Escrow Agent, signed by
Purchaser's President or any Vice President (with a copy to Seller), to the
effect that there has been an event entitling Purchaser to indemnification
from Seller pursuant to the Purchase Agreement, which notice shall specify the
amounts owed by Seller pursuant to the Purchase Agreement, the calculation of
such amounts and the basis therefor.
(c) Twenty (20) days after Escrow Agent has received a notice
pursuant to Section 1.02(b) hereof (or, if not a business day, on the next
business day following such twentieth day) Escrow Agent shall deliver to
Purchaser such portion of the Escrowed Funds as is specified in such notice
unless Seller shall have notified Escrow Agent (with a copy to Purchaser) in
writing before such date that Seller disagrees with Purchaser's determination
that Purchaser is entitled to indemnification with respect to the Purchase
Agreement, which notice shall be set forth in reasonable detail the basis for
such disagreement.
(d) Should any dispute arise with respect to the delivery,
ownership, or right of possession of any of the Escrowed Funds, Escrow Agent,
as more fully set forth in Section 3.11 hereof, is authorized and directed to
retain in its possession without liability to anyone all or any part of the
Escrowed Funds until such dispute shall have been settled either by mutual
agreement by the parties concerned or by a final order, decree, or
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judgment of a court of competent jurisdiction in the United States of America
and time for appeal has expired and no appeal has been perfected, but Escrow
Agent shall be under no duty whatsoever to institute or defend any such
proceedings, and may, in its discretion, deposit such Escrowed Funds with a
court of competent jurisdiction in the United States of America and be relieved
of any and all liability to any of the parties hereto upon such deposit.
1.03 DISTRIBUTION OF ESCROWED FUNDS. Unless a notice under Section
1.02(b) hereof has been given and Escrowed Funds in satisfaction of such notice
have not been delivered to Purchaser, either because the 20-day period has not
yet run out or because a dispute relating to the claim made by such notice is
then pending, the Escrowed Funds or such portion of them as at the time remains
in escrow, together with all dividends and distributions received by Escrow
Agent with respect thereto, shall be returned to Seller on the first
anniversary of the Closing Date. Any funds returned to Seller shall be paid 50%
to RS, 25% to DS and 25% to HB.
1.04 TERMINATION OF ESCROW ACCOUNT. This Agreement and the Escrow
Account will terminate at 5:00 P.M., New York City local time, on the date on
which all of the Escrowed Funds contained in the Escrow Account shall be
distributed as set forth above.
2. NOTICES.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be (a) delivered by hand, (b)
facsimile, or (c) over-night
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delivery with proper postage prepaid, and addressed as follows:
If to Purchaser to:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to RS to:
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxxx 00000
Telephone:
Facsimile:
If to DS to:
Xxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxxx 00000
If to HB to:
Xxxxx Xxxxxxx
c/o F. Xxxxxxx Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone:
Facsimile:
with, in the case of RS, DS and HB, a copy to:
Xxxxx, Xxxxxxxxxxx & Case, L.L.C.
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Escrow Agent, to:
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in the above-referenced manner. Except as
otherwise provided herein, no notice or communication shall be effective until
received. A notice by and of RS, DS or HB shall constitute notice on behalf of
Seller.
3. CONCERNING ESCROW AGENT.
To induce Escrow Agent to act hereunder, it is further agreed by each
of Seller and Purchaser that:
3.01 Escrow Agent shall not be under any duty to give the Escrowed
Funds held by it hereunder any greater degree of care than it gives its own
similar property and shall not be required to invest any funds held hereunder
except as directed in this Agreement.
3.02 This Agreement expressly sets forth all the duties of Escrow
Agent with respect to any and all matters pertinent hereto. No implied duties
or obligations shall be read into this Agreement against Escrow Agent. Escrow
Agent shall not be bound by the provisions of any agreement among the other
parties hereto except this Agreement.
3.03 Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct, and, except with respect to claims based
upon such gross negligence
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or willful misconduct that are successfully asserted against Escrow Agent, the
other parties hereto shall jointly and severally indemnify and hold harmless
Escrow Agent (and any successor Escrow Agent) from and against any and all
losses, liabilities, claims, actions, damages, and expenses, including
reasonable attorneys' fees and disbursements, arising out of, and in connection
with, this Agreement. Without limiting the foregoing, Escrow Agent shall in no
event be liable in connection with its investment or reinvestment of any cash
held by it hereunder in good faith, in accordance with the terms hereof,
including, without limitation, any liability for any delays (not resulting from
gross negligence or willful misconduct) in the investment or reinvestment of the
Escrowed Funds, or any loss of interest incident to any such delays. This
Section 3.03 shall survive notwithstanding any termination of this Agreement or
the resignation of Escrow Agent.
3.04 Escrow Agent shall be entitled to rely upon any order, judgment,
certification, demand, notice, instrument, or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. Escrow Agent may act in reliance upon any instrument or
signature believed by it in good faith to be genuine and may assume, if in good
faith, that any person purporting to give notice or receipt or advice or make
any statement or execute any document in connection with the provisions hereof
has been duly authorized to do so.
3.05 Escrow Agent may act pursuant to the advice of counsel with
respect to any
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matter relating to this Escrow Agreement and shall not be liable for any action
taken or omitted in good faith and in accordance with such advice.
3.06 Escrow Agent does not have any interest in the Escrowed Funds
deposited hereunder, but is serving as escrow holder only. Any payments of
income from the Escrow Account shall be subject to withholding regulations
then in force with respect to United States taxes. This Section 3.06 shall
survive notwithstanding any termination of this Agreement or the resignation
of Escrow Agent.
3.07 Escrow Agent makes no representation as to the validity, value,
genuineness, or the collectibility of any security or other documents or
instrument held by, or delivered to, it.
3.08 Escrow Agent shall not be called upon to advise any party as to
the wisdom in selling or retaining or taking or refraining from any action
with respect to any securities or other property deposited hereunder.
3.09 Escrow Agent (and any successor escrow agent) at any time may be
discharged from its duties and obligations hereunder by the delivery to it of
notice of termination signed by Purchaser and Seller or at any time may resign
by giving written notice to such effect to Purchaser and Seller. Upon any such
termination or resignation, Escrow Agent shall deliver the Escrowed Funds to any
successor escrow agent jointly designated by the other parties hereto in
writing, or to any court of competent jurisdiction if no such successor escrow
agent is agreed upon, whereupon Escrow Agent shall be
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discharged of and from any and all further obligations arising in connection
with this Escrow Agreement. The termination or resignation of Escrow Agent shall
take effect on the earlier of (a) the appointment of a successor (including a
court of competent jurisdiction) or (b) the day that is thirty (30) days after
the date of delivery: (i) to Escrow Agent of the other parties' notice of
termination or (ii) to the other parties hereto of Escrow Agent's written notice
of resignation. If at that time Escrow Agent has not received a designation of a
successor escrow agent, Escrow Agent's sole responsibility after that time shall
be to keep the Escrowed Funds safe until receipt of a designation of successor
escrow agent or a joint written disposition instruction by the other parties
hereto or an enforceable order of a court of competent jurisdiction.
3.10 Escrow Agent shall have no responsibility for the contents of
any writing of any third party contemplated herein as a means to resolve
disputes and may rely without any liability upon the contents thereof.
3.11 In the event of any disagreement among or between the other
parties hereto resulting in adverse claims or demands being made in connection
with the Escrowed Funds, or in the event that Escrow Agent in good faith is in
doubt as to what action it should take hereunder, Escrow Agent shall be
entitled to retain the Escrowed Funds until Escrow Agent shall have received
(a) a final and non-appealable order of a court of competent jurisdiction
directing delivery of the Escrowed Funds or (b) a written agreement executed by
the other parties hereto directing delivery of the Escrowed Funds, in which
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event Escrow Agent shall disburse the Escrowed Funds in accordance with such
order or agreement. Any court order referred to in (a) above shall be
accompanied by a legal opinion by counsel for the presenting party satisfactory
to Escrow Agent to the effect that said court order is final and non-appealable.
Escrow Agent shall act on such court order and legal opinions without further
question.
3.12 As consideration for its agreement to act as Escrow Agent as
herein described, Purchaser shall pay the Escrow Agent's fees determined in
accordance with the terms set forth on Exhibit A hereto (and made a part of
this Escrow Agreement as if herein set forth). In addition, Purchaser and
Seller agree to reimburse Escrow Agent (on a 50/50 basis) for all reasonable
expenses, disbursements, and advances incurred or made by Escrow Agent in
performance of its duties hereunder (including reasonable fees, expenses, and
disbursements of its counsel).
3.13 No publicly distributed material or other matter in any language
(including, without limitation, notices and reports) which mentions Escrow
Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by
the other parties hereto or on such parties' behalf unless Escrow Agent shall
first have given its specific written consent thereto.
4. MISCELLANEOUS.
4.01 BINDING EFFECT. This Escrow Agreement shall be binding upon, and
inure solely to the benefit of, the parties hereto and their respective
successors and assigns,
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heirs, administrators, and representatives, and shall not be enforceable by, or
inure to the benefit of, any other third party, except as provided in Section
3.09 hereof with respect to the termination of, or resignation by, Escrow Agent.
No party may assign any of its rights or obligations under this Agreement
without the written consent of the other parties.
4.02 CHOICE OF LAW. This Agreement shall be construed in accordance
with, and governed by, the internal law of the State of New York (without
reference to its rules as to conflicts of law).
4.03 MODIFICATION. This Agreement may only be modified by a writing
signed by all of the parties hereto.
4.04 HEADINGS. The section headings herein are for convenience only
and shall not affect the construction thereof. Unless otherwise indicated,
references to Sections and Articles are to Sections and Articles,
respectively, contained herein.
4.05 COUNTERPARTS. This Agreement may be executed in one or more
counterparts but all such separate counterparts shall constitute but one and
the same instrument; provided that, although executed in counterparts, the
executed signature pages of each such counterpart may be affixed to a single
copy of this Agreement which shall constitute an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the day and year first above written.
FAMILY GOLF CENTERS, INC.
By: __________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
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XXXXXXX X. XXXXX
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XXXXXX X. XXXXX
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XXXXX XXXXXXX
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY
By: __________________________________
Name:
Title:
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