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EXHIBIT 10.31
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is made as of this 23rd day of
January, 1998, by and among InsureRate, Inc., a Georgia corporation
("InsureRate"), Xxxxxxxx Xxxxxx Xxxxxx Company, a Georgia corporation ("HDA"),
HomeCom Communications, Inc., a Georgia corporation and the majority shareholder
of InsureRate ("HomeCom"), Xxxxxx X. Xxxxx, an individual resident of the State
of New Jersey ("Corsi"), and SunTrust Bank, Atlanta, a Georgia corporation (the
"Escrow Agent").
R E C I T A L S :
WHEREAS, contemporaneously herewith, InsureRate, HDA, HomeCom and Corsi
have entered into that certain Common Stock Purchase Agreement dated as of
January 23, 1998 (the "Purchase Agreement"), pursuant to which HDA has agreed to
purchase, and InsureRate has agreed to sell to HDA, 33,333.33 shares of the
common stock of InsureRate (the "Common Shares"), evidenced by share certificate
no. 5 (the "Share Certificate"), for the aggregate purchase price of $100,000.00
(the "Purchase Price"); and
WHEREAS, a condition precedent to the acquisition by HDA of the Common
Shares pursuant to the Purchase Agreement is that HomeCom lend to InsureRate the
principal amount of $100,000.00 (the "Loaned Funds"), pursuant to the terms and
conditions set forth in that certain Loan Agreement dated as of January 23, 1998
(the "Loan Agreement"), by and between HomeCom, as borrower, and InsureRate, as
lender; and
WHEREAS, InsureRate, HDA, HomeCom and Corsi each have agreed that
InsureRate shall deposit the Loaned Funds with the Escrow Agent; and
WHEREAS, insofar as the Escrow Agent is concerned, this Escrow
Agreement shall be the sole document governing the obligations of the Escrow
Agent relating to the Loaned Funds deposited with the Escrow Agent;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged conclusively by the
parties hereto, the parties, intending to be legally bound hereby, agree as
follows:
1. ESCROW FUND. Contemporaneously herewith, InsureRate has delivered to
the Escrow Agent the Loaned Funds, in the amount set forth above, by HomeCom's
check to the order of SunTrust Bank, Atlanta for credit to InsureRate. The
Escrow Agent hereby acknowledges receipt of the Loaned Funds, in the amount set
forth above, and agrees to hold, safeguard, invest, administer, and distribute
the same as provided herein. InsureRate agrees to pay the Escrow Agent's fees
for its services hereunder and to reimburse the Escrow Agent for its reasonable
expenses and disbursements incurred in the performance of such services.
2. INVESTMENT OF ESCROW FUND. The Loaned Funds shall be deposited by
the Escrow Agent in a separate and distinct interest bearing account reasonably
acceptable to InsureRate,
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HomeCom, HDA and Corsi, in a federated treasury obligation money market fund
bearing interest at a rate customary for like accounts held with the Escrow
Agent (the Loaned Funds, together with all interest thereon, are collectively
referred to as the "Escrow Funds").
3. DISBURSEMENT OF ESCROW FUND. The Escrow Agent shall hold the Escrow
Funds until the earliest of the following events shall have occurred:
(i) HDA Election. From the date of this Agreement until 9:00
a.m. Atlanta, Georgia time on February 22, 1998, HDA has the sole and absolute
discretion, for any or no reason, to cause the Escrow Agent to deliver to HDA
the Loaned Funds, without any interest accrued thereon, upon (a) receipt by the
Escrow Agent of a letter from HDA, executed by its President, substantially in
the form of Exhibit A attached hereto, stating that HDA elects to exercise its
right under this Agreement to request delivery of the Loaned Funds, without any
interest accrued thereon (the "HDA Delivery Letter"), (b) receipt by InsureRate,
HomeCom and Corsi of a notice from HDA stating that HDA elects to exercise its
right under this Agreement to request delivery of the Loaned Funds, without any
interest accrued thereon (the "HDA Delivery Notice"), which HDA Delivery Notice
shall also be delivered to the Escrow Agent with an executed statement by HDA
stating that said notice has been delivered to InsureRate, HomeCom and Corsi,
and (c) concurrently with the delivery by HDA of the HDA Delivery Letter and the
HDA Delivery Notice, receipt by the Escrow Agent from HDA of the Share
Certificate, which shall be delivered (x) free and clear of all liens, claims,
charges, pledges, assignments, security interests or other encumbrances of any
kind or nature, and (y) together with a stock power in favor of InsureRate, duly
executed by HDA's President. Upon the delivery of the Loaned Funds to HDA
pursuant to this subparagraph (i), the interest accrued thereon, if any, shall
be delivered by the Escrow Agent to InsureRate in immediately available funds.
(ii) Mutual Agreement. From the date of this Agreement until
9:00 a.m. Atlanta, Georgia time on February 22, 1998, HomeCom, InsureRate, HDA
and Corsi may deliver to the Escrow Agent a written notice executed by each of
the parties (which executed notice may be in counterparts), directing the Escrow
Agent to deliver to InsureRate the Escrow Funds.
(iii) Elapse of Time. Each of HomeCom, InsureRate, HDA and
Corsi hereby agrees that if neither of the events described in subparagraphs (i)
and (ii) of this Section 3 have occurred prior to 9:00 a.m. Atlanta, Georgia
time on February 22, 1998, then at such time each of HomeCom, InsureRate, HDA
and Corsi shall be deemed to have satisfied fully the terms and conditions of
this Agreement, and the Escrow Agent hereby is directed in writing by each of
HomeCom, InsureRate, HDA and Corsi to deliver promptly to InsureRate the Escrow
Funds.
Upon the earliest of the events set forth in subparagraphs
(i), (ii) and (iii) of this Section 3 to occur, the Escrow Agent shall disburse
the Loaned Funds or the Escrow Funds, as applicable, by wire transfer in
accordance with the instructions given in writing by InsureRate or HDA, as
applicable. The Escrow Agent shall notify promptly either InsureRate or HDA, as
applicable, that such wire has been initiated, shall advise InsureRate or HDA,
as applicable, of the confirmation number thereof and shall cooperate reasonably
with InsureRate or HDA, as applicable, in the event of any complications
regarding such wire transfer.
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4. TERM OF ESCROW AGREEMENT. The term of this escrow shall commence on
the date hereof and shall continue thereafter until disbursement by Escrow Agent
of the entire Escrow Funds held hereunder as provided in Section 3 herein.
5. ACTIONS OF THE ESCROW AGENT. The acceptance by the Escrow Agent of
its duties hereunder is subject to the following terms and conditions, which all
parties hereto agree shall govern and control with respect to the rights, duties
and claims of the Escrow Agent:
(a) The Escrow Agent acts hereunder as a depository. The
duties of Escrow Agent hereunder are only such as are herein specifically
provided, being purely ministerial in nature, and the Escrow Agent shall have no
responsibility in respect of any of the Escrow Funds held or deposited with it
other than faithfully to follow the instructions herein contained.
(b) The Escrow Agent shall be protected in acting upon any
written notice, request, waiver, consent, receipt or other paper or document
which the Escrow Agent in good faith believes to be genuine.
(c) The Escrow Agent shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may do or refrain from
doing in connection herewith, except its own gross negligence or willful
misconduct. InsureRate, HomeCom, HDA and Corsi each agree, jointly and
severally, to indemnify Escrow Agent from any and all claims, costs, and damages
(including reasonable attorneys' fees and expenses) incurred by or asserted
against Escrow Agent arising in connection with Escrow Agent's acts or
omissions, other than those of gross negligence or willful misconduct, under
this Escrow Agreement, and such indemnification shall survive the termination of
this Agreement.
(d) The Escrow Agent is authorized to and may consult with,
and obtain advice from, legal counsel in the event any dispute, conflict or
question arises as to the construction of any of the provisions hereof or its
duties hereunder. Escrow Agent shall incur no liability and shall be fully
protected for acting in good faith in accordance with the written opinion and
instructions of such counsel.
6. NOTICE. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given when personally delivered, one day after being delivered to an
overnight courier, or when telecopied (with a confirmatory copy sent by
overnight courier) addressed to the party to whom such notice relates at the
following addresses:
(a) To HDA:
Xxxxxxxx Xxxxxx Xxxxxx Company
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Senior Vice President
Telecopy: (000) 000-0000
Tax Id. No. 00-0000000
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(b) To InsureRate:
InsureRate, Inc.
Xxxxxxxx 00, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President
Telecopy: (000) 000-0000
Tax Id. No. 00-0000000
With a Copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
(c) To HomeCom:
HomeCom Communications, Inc.
Xxxxxxxx 00, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxx, President
Telecopy: (000) 000-0000
(d) To Corsi:
Xxxxxx X. Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
(e) To Escrow Agent:
SunTrust Bank, Atlanta
Corporate Trust Department
00 Xxxxxxxx Xxxxxx, Xxxx 000 - Annex
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Vice President
Telecopy: (000) 000-0000
or at such alternative addresses as may be specified by the parties by notice
given in the manner provided herein.
7. MISCELLANEOUS.
(a) Benefit. This Agreement shall bind all parties, their respective
successors, assigns, heirs, executors and administrators.
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(b) Entire Agreement. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof and may not be changed except
by a writing signed by the party against whom the enforcement of any waiver,
change, extension, modification or discharge is sought.
(c) Waiver of Breach of Violation Not Deemed Continuing. The waiver by
any party hereto of a breach or violation of any provision of this Agreement
shall not operate as, or be construed to be, a waiver of any subsequent breach
hereof.
(d) Governing Law. This Agreement shall be governed by and construed
according to the laws of the State of Georgia, without regard to its conflicts
of law principles.
(e) Other Agreements. The Escrow Agreement is not a party to, nor is it
bound by, nor need it give consideration to the terms or provisions of, any
other agreement or undertaking among InsureRate, HDA, HomeCom or Corsi, or any
of them, or between InsureRate, HDA, HomeCom or Corsi, or any of them, and other
persons, or any agreement or undertaking which may be evidenced by or disclosed
by Loaned Funds, the Share Certificate and the documents related thereto, it
being the intention of the parties hereto that the Escrow Agent assent to and be
obligated to give consideration only to the terms and provisions hereof.
[SIGNATURES APPEAR ON NEXT PAGE]
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[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
"INSURERATE": "HDA":
INSURERATE, INC. XXXXXXXX XXXXXX XXXXXX COMPANY
By: By:
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Xxxxxx X. Xxxxx, President Xxxx X. Xxxxxxx,
Senior Vice President
"ESCROW AGENT": "CORSI":
SUNTRUST BANK, ATLANTA -----------------------------------
Xxxxxx X. Xxxxx
By:
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Xxxxxx X. Xxxxxxx, Vice President
"HOMECOM":
HOMECOM COMMUNICATIONS, INC.
By:
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Xxxxxx Xxx, President
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EXHIBIT A
FORM OF HDA DELIVERY LETTER
[Date]
SunTrust Bank, Atlanta
Corporate Trust Department
00 Xxxxxxxx Xxxxxx, Xxxx 000 - Annex
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Vice President
Re: Delivery Notice of Xxxxxxxx Xxxxxx Xxxxxx Company
Dear Xx. Xxxxxxx:
Pursuant to Section 3(i) of that certain Escrow Agreement dated January
23, 1998 (the "Escrow Agreement") by and among InsureRate, Inc., a Georgia
corporation ("InsureRate"), Xxxxxxxx Xxxxxx Xxxxxx Company, a Georgia
corporation ("HDA"), HomeCom Communications, Inc., a Georgia corporation and the
majority shareholder of InsureRate ("HomeCom"), Xxxxxx X. Xxxxx, an individual
resident of the State of New Jersey ("Corsi"), and SunTrust Bank, Atlanta, a
Georgia corporation (the "Escrow Agent"), prior to 9:00 a.m. Atlanta, Georgia
time on February 22, 1998, HDA has the sole and absolute discretion, for any or
no reason, to cause the Escrow Agent to deliver to it the Loaned Funds (as
defined in the Escrow Agreement), without any interest accrued thereon, subject
to (a) receipt of this letter by the Escrow Agent, (b) receipt by InsureRate,
HomeCom and Corsi of a notice from HDA stating that HDA elects to exercise its
right under the Escrow Agreement to request delivery of the Loaned Funds,
without any interest accrued thereon (the "HDA Delivery Notice"), which notice
is to be delivered to the Escrow Agent with an executed statement by HDA stating
that said notice has been delivered to InsureRate, HomeCom and Corsi, and (c)
concurrently with the delivery by HDA of this letter and the HDA Delivery
Notice, receipt by the Escrow Agent of the Share Certificate (as defined in the
Escrow Agreement) from HDA, which Share Certificate is to be delivered (x) free
and clear of all liens, claims, charges, pledges, assignments, security
interests or other encumbrances of any kind or nature, and (y) together with a
stock power in favor of InsureRate, duly executed by HDA's President.
(1) This letter serves as notice by HDA that it elects to exercise its
right to cause the Escrow Agent to deliver to HDA the Loaned Funds, without any
interest accrued thereon.
(2) HDA certifies that it has delivered a copy of the HDA Delivery
Notice to each of InsureRate, HomeCom and Corsi. Attached hereto please find
confirmation of such delivery.
(3) Enclosed please find the original Share Certificate, delivered to
you free and clear of all liens, claims, charges, pledges, assignments, security
interests or other encumbrances of any kind or nature, together with a stock
power in favor of InsureRate, duly executed by HDA's President.
Sincerely,
XXXXXXXX XXXXXX XXXXXX COMPANY
By:
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Xxxx X. Xxxxxxxx, President
