PURCHASE PRICE ESCROW AGREEMENT
THIS PURCHASE PRICE ESCROW AGREEMENT (the "Purchase Price Escrow
Agreement") is made as of this ___ day of ___________, _____, by and between
XXXXX XXXX, XXXX XXXXXXXX, XXXXXXX X. XXXXX, XXXX XXXXXXXX, by and through her
power of attorney, XXX XXXXXXXXX, XXX XXXXXXXXX, individually and as agent for
Xxxx Xxxxxxxxx and Xxxx Xxxxx, XXXXX XXXXXX, XXXXX XXXXXX XXXX, each a resident
of the State of Illinois, and the CITY OF EL PASO, an Illinois municipal
corporation (each of the foregoing collectively referred to as the "Settlers"),
XXXXX X. XXXXXXXX, a resident of the State of Illinois ("Xxxxxxxx") and FIRST
FEDERAL SAVINGS AND LOAN ASSOCIATION, a ________________ (the "Purchase Price
Escrow Agent").
RECITALS
WHEREAS, Xxxxxxxx'x father, Xxxxxx X. Xxxxxx, had a controlling interest
in The El Paso Telephone Company (the "Telephone Company") at the time of his
death in 1991, owning 405 of the authorized, issued and outstanding shares of
common stock thereof, and
WHEREAS, Xx. Xxxxxx'x estate was administered on an intestate basis and
all of his assets, including his 405 shares of stock in the Telephone Company,
were distributed to Xxxxxxxx, and
WHEREAS, Xxxxxxxx has paid and/or is making payments with respect to all
of the state and federal taxes associated with Xx. Xxxxxx'x estate, and
WHEREAS, a document purporting to be the Last Will and Testament of Xxxxxx
X. Xxxxxx (the "Purported Will") was subsequently located which would have given
25 shares of stock in the Telephone Company to the City of El Paso, and the
remainder of Xx. Xxxxxx'x shares of stock in the Telephone Company
proportionately to certain employees thereof, including, among others, Xxxxx
Xxxx, Xxxx Xxxxxxxx, Xxxxxxx X. Xxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxxx
Xxxxxx Xxxx, based on their years of continuous service at the time of his
death, and
WHEREAS, after Xx. Xxxxxx'x death, but before the discovery of the
Purported Will, Xxxxxxxx negotiated an agreement with the then
minority shareholders of the Telephone Company pursuant to which the Telephone
Company redeemed the minority shareholders' 395 shares of the Telephone
Company's stock, and
WHEREAS, at the time of the discovery of the Purported Will, the Telephone
Company was in the process of a corporate reorganization which resulted in the
transfer or conversion of Xxxxxxxx'x 405 shares of its stock for 405 shares of
common stock of Ravenswood Communications, Inc. ("Ravenswood") and the ownership
by Ravenswood of all of the issued and outstanding shares of the Telephone
Company, and
WHEREAS, Xxxxxxxx entered into separate agreements with Xxxxx Xxxx, Xxxx
Xxxxxxxx, Xxxxxxx X. Xxxxx, Xxx Xxxxxxxxx as Power of Attorney for Xxxx
Xxxxxxxx, Xxx Xxxxxxxxx, individually and as agent for Xxxx Xxxxxxxxx and Xxxx
Xxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx Xxxx and the City of El Paso (the "Settlement
Agreements") whereby Xxxxxxxx agreed to sell the Telephone Company and each such
Settler assigned to her any interests they may have in the Telephone Company
under the Purported Will in exchange for a percentage of the proceeds of the
sale thereof, and
WHEREAS, the Settlement Agreements provide that after reimbursing Xxxxxxxx
for certain expenses the proceeds of the sale shall be delivered to an escrow
agent and that said proceeds shall be divided between Xxxxxxxx and the Settlers
based on certain predetermined percentages, and
WHEREAS, each of the Settlers also executed a Release and Covenant Not to
Xxx in connection with the Settlement Agreements, which fully released Xxxxxxxx
and one another from any and all liability, actions, or claims in any way
related to the Purported Will or the shares of Telephone Company owned by Xxxxxx
X. Xxxxxx at the time of his death or the Shares (as defined below), and
WHEREAS, Xxxxxxxx has settled certain litigation with other potential
claimants under the Purported Will for the sum of Five Hundred Thousand Dollars
($500,000), which amount was borrowed by Xxxxxxxx from Ravenswood pursuant to a
promissory note which is to be repaid by Xxxxxxxx from her portion of the
proceeds of the sale of the Shares, and
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WHEREAS, on or about October 16, 1998, Ravenswood, Xxxxxxxx and MJD
Services Corp. (the "Purchaser") entered into a Stock Purchase Agreement (the
"Purchase Agreement") whereby the Purchaser agreed to purchase from Xxxxxxxx all
of the shares of Ravenswood (the "Shares"), which will result in the acquisition
by the Purchaser of all the issued and outstanding shares of stock of the
Telephone Company, El Paso Long Distance Company and Gemcell, Inc., for an
aggregate purchase price of Ten Million Dollars ($10,000,000) ("Purchase
Price"), and
WHEREAS, the Purchase Agreement provides in part that Five Hundred
Thousand Dollars ($500,000) of the Purchase Price will be retained by the
Purchaser to repay the loan from Ravenswood to Xxxxxxxx (with Xxxxxxxx paying
the interest thereon directly) and that One Million Dollars ($1,000,000) of the
Purchase Price (the "Indemnity Holdback Funds") will be deposited with an escrow
agent for the duration of the Indemnification Period, as defined in Section 11.1
of the Purchase Agreement, to secure Xxxxxxxx'x agreement to indemnify Purchaser
as set forth in the Purchase Agreement, and
WHEREAS, Xxxxxxxx, Purchaser and First Federal Savings and Loan
Association, as "Indemnity Escrow Agent", have entered into a separate escrow
agreement regarding the Indemnity Holdback Funds (the "Indemnity Escrow
Agreement") which provides in part that the Indemnity Escrow Agent distribute
any portion of the Indemnity Holdback Funds remaining in its possession which
are not the subject of a pending Claim, immediately upon the expiration of the
Indemnification Period to the Purchase Price Escrow Account established pursuant
to this Purchase Price Escrow Agreement, and
WHEREAS, this Purchase Price Escrow Agreement provides for acceptance of
the Initial Purchase Price Escrow Funds (as defined below) by the Purchase Price
Escrow Agent, establishment of a Purchase Price Escrow Account, and distribution
of the funds from the Purchase Price Escrow Account to Xxxxxxxx and the Settlers
as herein provided, and
WHEREAS, the Purchase Price Escrow Agent has agreed to serve as escrow
agent under this Purchase Price Escrow Agreement and to accept delivery of the
Initial Purchase Price Escrow Funds and the Subsequent Purchase Price Escrow
Funds (as defined below) (collectively, the "Escrow Funds") and make
distribution from the
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Purchase Price Escrow Account in accordance with the terms and conditions set
out in this Purchase Price Escrow Agreement.
AGREEMENT
In consideration of the premises, and the agreements set out below, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties enter into the following Purchase Price
Escrow Agreement:
1. Purpose of Escrow. The Escrow Funds shall be used solely for the purposes
set forth herein. The Escrow Funds shall not constitute an asset of
Xxxxxxxx or the Settlers until the distribution thereof pursuant to this
Escrow Agreement.
2. Term. The term of this Purchase Price Escrow Agreement (the "Purchase
Price Escrow Period") shall expire on the sixtieth (60th) day following
expiration of the Indemnification Period, as defined in Section 11.1 of
the Purchase Agreement, except that it shall be automatically extended as
necessary to provide for the disposition of any Claims filed by Purchaser
with the Indemnity Escrow Agent during such period, in accordance with the
procedures set forth in Section 5 of the Indemnity Escrow Agreement.
3. Initial Deposit with Purchase Price Escrow Agent. At Closing of the sale
and purchase of the Shares as provided in the Purchase Agreement,
Purchaser shall deliver to the Purchase Price Escrow Agent the sum of
Eight Million Five Hundred Thousand Dollars ($8,500,000) (the "Initial
Purchase Price Escrow Funds") to be held, administered and distributed by
the Purchase Price Escrow Agent pursuant to the terms of this Purchase
Price Escrow Agreement. In addition, One Million Dollars ($1,000,000) of
the Ten Million Dollars ($10,000,000) aggregate Purchase Price shall be
delivered to the Indemnity Escrow Agent pursuant to the Indemnity Escrow
Agreement. The remaining Five Hundred Thousand Dollars ($500,000) of the
Purchase Price shall be retained by the Purchaser to repay the loan from
Ravenswood to Xxxxxxxx (with Xxxxxxxx paying the interest thereon
directly).
4. Initial Purchase Price Escrow Funds. Upon receipt of the Initial Purchase
Price Escrow Funds, the Escrow Agent shall
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deposit the Initial Purchase Price Escrow Funds in an escrow account (the
"Purchase Price Escrow Account") and shall hold, administer, invest and
distribute the Initial Purchase Price Escrow Funds in accordance with the
terms of this Purchase Price Escrow Agreement.
5. Disbursement of Initial Purchase Price Escrow Funds.
(a) Within thirty (30) days of the date of the Closing on the sale
of the Shares, Xxxxxxxx shall submit to the Purchase Price Escrow Agent
and the Settlers a report of the expenses incurred by Xxxxxxxx in
connection with the sale of the Shares, as approved by Xxxxxxxx, including
but not limited to all brokerage, advertising, accounting, legal and
escrow fees and expenses, but not including any expenses which shall have
been paid or reimbursed by the Telephone Company or Ravenswood pursuant to
the Purchase Agreement. Said expenses shall include the state and federal
taxes paid by Xxxxxxxx in connection with the estate of Xxxxxx X. Xxxxxx,
but shall not include any expenses for legal services rendered before July
8, 1996 or expenses of litigation with other potential claimants under the
Purported Will. In addition, neither the Five Hundred Thousand Dollars
($500,000) paid by Xxxxxxxx to settle the litigation with the other
potential claimants under the Purported Will, nor the interest to be paid
on the related promissory note to Ravenswood, shall be considered an
expense of the sale for purposes of the calculations under this Section 5.
The report shall include copies of all bills or invoices evidencing said
expenses. Upon receipt of the report, the Purchase Price Escrow Agent
shall promptly distribute to Xxxxxxxx a portion of the Initial Purchase
Price Escrow Funds sufficient to cover all such expenses.
(b) Based upon said report from Xxxxxxxx, the Purchase Price Escrow
Agent shall determine the initial net proceeds of the sale of the Shares
for distribution to Xxxxxxxx and the Settlers ("Initial Net Proceeds").
The Initial Net Proceeds shall be determined by first subtracting from the
Ten Million Dollars ($10,000,000) aggregate Purchase Price the One Million
Dollars ($1,000,000) of Indemnity Holdback Funds. From the amount so
derived shall be subtracted all expenses incurred by Xxxxxxxx in
connection with the sale of the Shares as shown in her report.
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(c) Within thirty (30) days of the date Xxxxxxxx submits the report
to the Purchase Price Escrow Agent, but in no event later than sixty (60)
days after the Closing on the sale of the Shares, the Purchase Price
Escrow Agent shall deliver to Xxxxxxxx and each Settler a check in an
amount equal to the respective percentage of the Initial Net Proceeds to
which each is entitled under the terms of the Settlement Agreements.
Exhibit 5(c) sets forth a hypothetical calculation of expenses and
necessary adjustments to the Initial Net Proceeds to be allocated among
and distributed to Xxxxxxxx and the Settlers. Each of the Settlers
acknowledges and agrees that Exhibit 5(c) is for illustrative purposes
only, that the percentage shown thereon applicable to such Settler is
correct, and that the actual amount received by each such Settler may vary
from that shown on Exhibit 5(c), depending upon whether the actual
expenses of sale are higher or lower than those shown on Exhibit 5(c).
(d) Any funds remaining in the Purchase Price Escrow Account after
all Settlers have been paid shall be immediately paid over by the Purchase
Price Escrow Agent to Xxxxxxxx, except to the extent that a certain
portion thereof may be required to remain in the Purchase Price Escrow
Account to keep it open for future uses as set forth herein, as determined
by Xxxxxxxx.
(e) Xxxxxxxx and each Settler shall (i) be responsible for the
determination and payment of all federal and state income taxes resulting
from any of the provisions of the Settlement Agreement and/or this
Purchase Price Escrow Agreement, (ii) hold the other parties hereto
harmless for any liability for such taxes which are determined to be the
legal liability of such other party, and (iii) execute and deliver such
tax and other information documents as the Purchase Price Escrow Agent
shall reasonably request or require in connection with its obligations
hereunder.
6. Subsequent Deposit with Purchase Price Escrow Agent. Pursuant to the
provisions of the Indemnity Escrow Agreement, the Indemnity Escrow Agent
shall distribute any portion of the funds remaining in the escrow account
established pursuant to the Indemnity Escrow Agreement, which are not the
subject of
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a pending Claim, immediately upon the expiration of the Indemnity Escrow
Agreement to the Purchase Price Escrow Account established pursuant to
this Purchase Price Escrow Agreement (the "Subsequent Purchase Price
Escrow Funds") to be held, administered and distributed by the Purchase
Price Escrow Agent pursuant to the terms of this Purchase Price Escrow
Agreement.
7. Subsequent Escrow Funds. Upon receipt of the Subsequent Purchase Price
Escrow Funds, the Purchase Price Escrow Agent shall deposit the Subsequent
Purchase Price Escrow Funds in the Purchase Price Escrow Account and shall
hold, administer, invest and distribute the Subsequent Purchase Price
Escrow Funds in accordance with the terms of this Purchase Price Escrow
Agreement.
8. Disbursement of Subsequent Purchase Price Escrow Funds.
(a) Within thirty (30) days of the date of receipt by the Purchase
Price Escrow Agent of the Subsequent Purchase Price Escrow Funds, Xxxxxxxx
shall submit to the Purchase Price Escrow Agent and the Settlers a report
of any additional expenses incurred by Xxxxxxxx in connection with the
sale of the Shares. The report shall include copies of all bills or
invoices evidencing said expenses. Upon receipt of the report, the
Purchase Price Escrow Agent shall promptly distribute to Xxxxxxxx a
portion of the Subsequent Purchase Price Escrow Funds sufficient to cover
all such expenses paid by her.
(b) Based upon said report from Xxxxxxxx, the Purchase Price Escrow
Agent shall determine the subsequent net proceeds of the sale of the
Shares for distribution to Xxxxxxxx and the Settlers ("Subsequent Net
Proceeds"). The Subsequent Net Proceeds shall be determined by subtracting
from the Subsequent Purchase Price Escrow Funds all such expenses incurred
by Xxxxxxxx in connection with the sale of the Shares as shown in her
report under Section 8(a) above.
(c) Within thirty (30) days of the date Xxxxxxxx submits the report
to the Purchase Price Escrow Agent, but in no event later than sixty (60)
days after the receipt by the Purchase Price Escrow Agent of the
Subsequent Purchase Price Escrow Funds, the Purchase Price Escrow Agent
shall deliver to
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Xxxxxxxx and each Settler a check in an amount equal to the respective
percentage of the Subsequent Net Proceeds to which each is entitled under
the terms of the Settlement Agreements. Exhibit 8(c) sets forth a
hypothetical calculation of expenses and necessary adjustments to the
Subsequent Net Proceeds to be allocated among and distributed to Xxxxxxxx
and the Settlers. Each of the Settlers acknowledges and agrees that
Exhibit 8(c) is for illustrative purposes only, that the percentage shown
thereon applicable to such Settler is correct, and that the actual amount
received by each Settler may vary from that shown on Exhibit 8(c),
depending upon (i) whether any Claims are made by the Purchaser against
the Indemnity Holdback Funds under the terms of the Indemnity Escrow
Agreement, and if so, the amount of such Claims and the resulting amount
of funds remaining in the Indemnity Escrow Account at the expiration of
the Indemnity Escrow Period, and (ii) whether the actual expenses of sale
are higher or lower than those shown on Exhibit 8(c).
(d) Any funds remaining in the Purchase Price Escrow Account after
all Settlers have been paid shall be paid over to Xxxxxxxx.
(e) Xxxxxxxx and each Settler shall be responsible for the
determination and payment of all federal and state income taxes resulting
from any of the provisions of the Settlement Agreement and/or this
Purchase Price Escrow Agreement and will hold the other parties hereto
harmless for any liability for such taxes which are determined to be the
legal liability of such other party.
9. Dispute Resolution In the event the Purchase Price Escrow Agent receives a
written notice of a dispute between Xxxxxxxx and any of the Settlers prior
to having distributed any or all of the Initial Net Proceeds or Subsequent
Net Proceeds, the Purchase Price Escrow Agent shall (i) immediately
distribute to the parties any amounts not in dispute, and (ii) within
sixty (60) days of receipt of such written notice, file an action in
interpleader with any Illinois court of competent jurisdiction to resolve
such disagreement and deposit with the registry of the court an amount
equal to the disputed portion of the Escrow Funds, unless a joint
instruction is received by the Purchase Price Escrow Agent from Xxxxxxxx
and the Settlers
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as to the disposition of the disputed portion of the Escrow Funds prior to
the expiration of such sixty (60) day period. If the written notice does
not state the amount or portion of the Escrow Funds which are in dispute,
all Escrow Funds shall be deemed to be in dispute.
10. Full and Final Payment. The Settlers hereby recognize and agree that the
sums to be paid to them hereunder shall be a full and final payment for
the rights conveyed under the Settlement Agreements, including, without
limitation, any and all rights they may have, or claim to have, under the
Purported Will, in any assets owned by Xxxxxx X. Xxxxxx at the time of his
death, including, but not limited to, shares of capital stock and/or
assets of the Telephone Company, G & G Services, El Paso Long Distance
Company, Gemcell, Inc. or Ravenswood, as such companies are presently or
hereafter organized or constituted (collectively, the "Companies"). The
Settlers acknowledge and agree that upon Purchaser's delivery of the
Indemnity Holdback Funds to the Indemnity Escrow Agent and delivery of the
Initial Purchase Price Escrow Funds to the Purchase Price Escrow Agent,
pursuant to the terms of the Indemnity Escrow Agreement and this Purchase
Price Escrow Agreement, respectively, then Purchaser shall have no
obligation hereunder or otherwise to the Settlers, and the provisions of
this Section 10 and of Sections 11 and 12 below shall immediately be
effective with respect to and for the benefit of the Purchaser and its
Affiliates (as defined below).
11. Release and Covenant Not to Xxx. The Settlers hereby fully release and
agree to hold harmless, indemnify and defend the Purchaser and the
Companies, together with their respective past, present or future
officers, directors, owners, shareholders, agents, representatives, parent
entities, affiliates, subsidiaries, purchasers, predecessors, successors
and assigns (collectively, the "Affiliates" of such party), from any and
all liability, actions, or claims in any way related to or arising out of,
or claimed to be related to or arising out of, the Purported Will or to
the assets or capital stock of any or all of the Companies (collectively,
the "Released Claims"), and the Settlers hereby agree not to institute any
legal action or file any suit, whether in law or
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equity, against any such party or parties with respect to any of the
Released Claims.
12. Incorporation and Extension of Prior Agreements. The terms of the
Settlement Agreements and Appendix D thereto are hereby reaffirmed and
incorporated into this Purchase Price Escrow Agreement by reference as if
fully set forth herein, and the Settlers acknowledge and agree that the
release and indemnification terms of such documents are hereby extended
to, and shall apply with full force and effect for the benefit of the
Purchaser and its Affiliates, as though the Purchaser and its Affiliates
were parties originally released thereunder.
13. Release of Purchase Price Escrow Agent. As and when all of the Escrow
Funds are either distributed as provided hereunder or deposited with the
registry of the court in interpleader, the Purchase Price Escrow Agent
shall be released and discharged from any further obligation hereunder
without further action of any party. Compliance by the Purchase Price
Escrow Agent with any final, non-appealable order or a judgment of a court
concerning the subject matter of any such dispute or agreement shall
thereupon release and relieve the Purchase Price Escrow Agent from all
obligations and responsibility with respect to the Escrow Funds to which
such order or judgment relates.
14. Investment of Escrow Funds. The Purchase Price Escrow Agent shall hold the
Escrow Funds delivered to it under the terms of this Purchase Price Escrow
Agreement and shall invest the Escrow Funds held by it (i) in interest
bearing demand deposit accounts with commercial banks whose accounts are
insured by the Federal Deposit Insurance Corporation or another
appropriate and comparable authority (for example, the Federal Home Loan
Bank Board), or (ii) in any other investment upon which Xxxxxxxx and the
Settlers shall agree.
15. Agreement of Purchase Price Escrow Agent. The Purchase Price Escrow Agent
hereby agrees to receive the Escrow Funds and hold the same intact, and to
deposit the Escrow Funds in accordance with the terms of this Purchase
Price Escrow Agreement, and shall not permit any withdrawal except under
the terms of this Purchase Price Escrow Agreement. The
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Purchase Price Escrow Agent shall be responsible only for the safekeeping
and the deposit of the Escrow Funds and the disbursements or delivery in
accordance with the terms of this Purchase Price Escrow Agreement. The
Purchase Price Escrow Agent shall not be responsible for the
appropriateness, sufficiency or accuracy of information contained in any
written notice.
16. Performance of Purchase Price Escrow Agent.
(a) There are no implied duties under this Purchase Price Escrow
Agreement. The duties, obligations and acts of the Purchase Price Escrow
Agent shall be construed as purely ministerial in nature. The Purchase
Price Escrow Agent shall be responsible for only those duties expressly
set forth in this Purchase Price Escrow Agreement. In performing any of
its duties under this Purchase Price Escrow Agreement, or upon the claimed
failure to perform its duties under this Purchase Price Escrow Agreement,
the Purchase Price Escrow Agent shall not be liable to anyone for any
damages, losses, or expenses which they may incur as a result of the
Purchase Price Escrow Agent so acting, or failing to act; provided,
however, the Purchase Price Escrow Agent shall be liable for damages
arising out of its willful default or gross negligence under this Purchase
Price Escrow Agreement. Accordingly, the Purchase Price Escrow Agent shall
not incur any such liability with respect to (i) any action taken or
omitted to be taken in good faith upon advice of its counsel given with
respect to any questions relating to the duties and responsibilities of
the Purchase Price Escrow Agent hereunder, or (ii) any action taken or
omitted to be taken in reliance upon any document, including any written
notice or instructions provided for in this Purchase Price Escrow
Agreement, not only as to its due execution and to the validity and
effectiveness of its provisions but also as to the truth and accuracy of
any information contained in any notice or document, which the Purchase
Price Escrow Agent shall in good faith believe to be genuine, to have been
signed or presented by a proper person or persons and to conform with the
provisions of this Purchase Price Escrow Agreement.
(b) Xxxxxxxx and the Settlers each agree to indemnify and hold
harmless the Purchase Price Escrow Agent against any
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and all losses, claims, damages, liabilities and expenses, including
without limitation, reasonable costs of investigation and counsel fees and
disbursements which may be imposed on the Purchase Price Escrow Agent or
incurred by it in connection with its acceptance of this appointment as
Purchase Price Escrow Agent or the performance of its duties, including,
without limitation, reasonable attorneys' fees and costs attributable to
any interpleader action commenced by the Purchase Price Escrow Agent or
any other litigation arising from this Purchase Price Escrow Agreement or
involving the subject matter of this Purchase Price Escrow Agreement;
provided, however, that if the Purchase Price Escrow Agent shall be found
guilty of willful default or gross negligence under this Purchase Price
Escrow Agreement, then, in that event, the Purchase Price Escrow Agent
shall itself bear all such losses, claims, damages, liabilities and
expenses.
17. Fees of the Purchase Price Escrow Agent. For its ordinary services
hereunder (which shall include receipt, investment and disbursement of the
Escrow Funds in the manner described in this Purchase Price Escrow
Agreement), the Purchase Price Escrow Agent shall receive compensation of
One Thousand Eight Hundred Seventy Five and No/100 Dollars ($1,875.00) to
be paid from the Escrow Funds as an expense of the sale and shall receive
such additional reasonable compensation during the term hereof as is
commensurate with its services provided hereunder as Purchase Price Escrow
Agent; any such additional compensation to be similarly paid from the
Escrow Funds as an expense of the sale.
18. Resignation of Escrow Agent. The Purchase Price Escrow Agent or its
successor at any time may resign by giving thirty (30) business days
written notice to the parties hereto, and such resignation shall take
effect at the end of such thirty (30) business days if all of the Escrow
Funds have been tendered into the registry or custody of an Illinois court
in the manner provided in Section 9 hereof, or upon the earlier
appointment, with the approval of Xxxxxxxx and each Settler, of a
successor. From and after the effective date of such resignation or
appointment of a successor, the Purchase Price Escrow Agent shall not be
obligated to perform any of the duties of the Purchase Price Escrow Agent
hereunder and will not be liable for any nonperformance thereof nor for
any act
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or failure to act whatsoever on the part of any successor Purchase Price
Escrow Agent. If Xxxxxxxx and the Settlers are unable to agree upon a
successor Purchase Price Escrow Agent within thirty (30) days following
notice of the Purchase Price Escrow Agent's resignation, the Purchase
Price Escrow Agent shall commence an action in interpleader and deposit
the Escrow Funds with the registry of the court in the manner provided in
Section 9 hereof.
19. Successor to Purchase Price Escrow Agent. Any corporation resulting from
any merger or consolidation to which the Purchase Price Escrow Agent or
any successor to it shall be a party, or any corporation in any manner
succeeding to all or substantially all of the business of the Purchase
Price Escrow Agent or any successor, shall be the successor escrow agent
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hereunder without the execution or filing of any paper or any further acts on
the part of any of the parties hereto. In the event of a resignation of the
Purchase Price Escrow Agent pursuant to Section 18 of this Purchase Price Escrow
Agreement, any person(s) or corporation hereafter agreed upon by the parties
shall be the successor escrow agent hereunder.
20. Instructions and Notices. In executing and performing its duties
hereunder, except as otherwise provided, the Purchase Price Escrow Agent
shall be entitled to rely upon instructions of Xxxxxxxx. Any notice,
payment, demand, instruction or communication required or permitted to be
given by this Purchase Price Escrow Agreement shall be in writing and
shall be given by hand delivery, overnight messenger or certified mail,
return receipt requested, addressed to the appropriate party at the
address stated below:
If to Xxxxxxxx:
Xxxxx X. Xxxxxxxx
0000 X. 0000 Xxxx
Xxxxxxxx, XX 00000
If to the
Settlers: [Name and address of Each Settler]
_________________________________________________
_________________________________________________
_________________________________________________
If to the
Purchase Price
Escrow Agent: First Federal Savings and Loan Association
000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx, President
Any notice sent by overnight messenger or hand delivery shall be deemed
made on the date received, and any notice sent by certified mail shall be deemed
made three (3) days after mailing.
21. Governing Law. This Purchase Price Escrow Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
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22. Headings. The headings in this Purchase Price Escrow Agreement are
inserted for convenience and identification only and are in no way
intended to interpret, define or limit the scope, extent or intent of this
Purchase Price Escrow Agreement or any provision of this Purchase Price
Escrow Agreement.
23. Severability. Each provision of this Purchase Price Escrow Agreement is
intended to be severable. If any term or provision of this Purchase Price
Escrow Agreement is illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the validity or enforcement of
the remainder of this Purchase Price Escrow Agreement.
24. Counterparts. This Purchase Price Escrow Agreement and any amendment
hereto may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
25. Amendment. No modification or amendment to this Purchase Price Escrow
Agreement shall be valid unless produced in writing and signed by all of
the parties hereto.
26. Successors. This Purchase Price Escrow Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, legal representatives, assigns and transferees, as the case
may be. The Purchase Price Escrow Agent shall not be bound by or incur any
liability with respect to this Purchase Price Escrow Agreement or any
other agreement or understanding between Xxxxxxxx and the Settlers, except
as in this Purchase Price Escrow Agreement expressly provided.
[This space left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase Price
Escrow Agreement to be executed as of the date first above written.
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Xxxxx X. Xxxxxxxx Date Witness
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Xxxxx Xxxx Date Witness
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Xxxx Xxxxxxxx Date Witness
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Xxxxxxx X. Xxxxx Date Witness
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Xxx Xxxxxxxxx, POA, for Date Witness
Xxxx Xxxxxxxx
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Xxx Xxxxxxxxx Date Witness
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Xxxx Xxxxxxxxx Date Witness
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Xxxx Xxxxx Date Witness
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Xxxxx Xxxxxx Date Witness
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Xxxxx Xxxxxx Xxxx Date Witness
CITY OF EL PASO
By:
--------------------
Mayor
ATTEST:
---------------- -----------------------
City Clerk Date
FIRST FEDERAL SAVINGS
AND LOAN ASSOCIATION
By:
--------------------
Its:
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Date Witness
* * * * * *
STATE OF
-------------------
COUNTY OF
------------------
I, the undersigned Notary Public for said County and State, do hereby
certify that Xxxxx X. Xxxxxxxx personally appeared before me this day, and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this __________ day of
_________________, 199_.
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Notary Public
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My Commission Expires:
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(Seal)
STATE OF
-------------------
COUNTY OF
------------------
I, the undersigned Notary Public for said County and State, do hereby
certify that Xxxxx Xxxx personally appeared before me this day, and acknowledged
the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this _________ day of
_________________, 199_.
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Notary Public
My Commission Expires:
------------------------------
(Seal)
* * * * * *
STATE OF
-------------------
COUNTY OF
------------------
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I, the undersigned Notary Public for said County and State, do hereby
certify that Xxxx Xxxxxxxx personally appeared before me this day, and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this _________ day of
_________________, 199_.
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Notary Public
My Commission Expires:
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(Seal)
STATE OF
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COUNTY OF
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I, the undersigned Notary Public for said County and State, do hereby
certify that Xxxxxxx X. Xxxxx personally appeared before me this day, and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this _________ day of
_________________, 199_.
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Notary Public
My Commission Expires:
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(Seal)
-19-
* * * * * *
STATE OF
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COUNTY OF
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I, the undersigned Notary Public for said County and State, do hereby
certify that Xxx Xxxxxxxxx, Power of Attorney for Xxxx Xxxxxxxx, personally
appeared before me this day, and acknowledged the due execution of the foregoing
instrument.
WITNESS my hand and notarial seal, this _________ day of
_________________, 199_.
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Notary Public
My Commission Expires:
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(Seal)
STATE OF
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COUNTY OF
------------------
I, the undersigned Notary Public for said County and State, do hereby
certify that Xxx Xxxxxxxxx personally appeared before me this day, and
acknowledged the due execution of the foregoing instrument, individually and as
agent for Xxxx Xxxxxxxxx and Xxxx Xxxxx.
WITNESS my hand and notarial seal, this _________ day of
_________________, 199_.
-20-
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Notary Public
My Commission Expires:
------------------------------
(Seal)
* * * * * *
STATE OF
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COUNTY OF
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I, the undersigned Notary Public for said County and State, do hereby
certify that Xxxxx Xxxxxx personally appeared before me this day, and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this _________ day of
_________________, 199_.
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Notary Public
My Commission Expires:
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(Seal)
STATE OF
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COUNTY OF
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-21-
I, the undersigned Notary Public for said County and State, do hereby
certify that Xxxxx Xxxxxx Xxxx personally appeared before me this day, and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this _________ day of
_________________, 199_.
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Notary Public
My Commission Expires:
------------------------------
(Seal)
* * * * * *
STATE OF ILLINOIS
COUNTY OF
------------------
I, the undersigned a Notary Public of the County and State aforesaid,
certify that ____________________________ personally came before me this day and
acknowledged that he/she is ____________ City Clerk for the City of El Paso, a
municipal corporation and that by authority duly given and as the act of the
municipal corporation, the foregoing instrument was signed in its name by its
Mayor, sealed with its corporate seal and affixed by him/her as its
_________________ City Clerk.
Witness my hand and official stamp or seal, this _________ day of
__________________, 199_.
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Notary Public
My Commission Expires:
-22-
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(Seal)
STATE OF
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COUNTY OF
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I, a Notary Public of the County and State aforesaid, certify that
__________________________________ personally came before me this day and
acknowledged that he/she is ___________________ Secretary of FIRST FEDERAL
SAVINGS AND LOAN ASSOCIATION, and that by authority duly given and as the act of
such entity, the foregoing instrument was signed in its name by its ____________
President, sealed with its corporate seal and attested by __________________ as
its ____________________ Secretary.
Witness my hand and official stamp or seal, this _______ day of
________________, 199_.
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Notary Public
My Commission Expires:
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(Seal)
-23-
EXHIBIT 5(c)
ILLUSTRATIVE DISTRIBUTION OF INITIAL NET PROCEEDS
(For hypothetical and discussion purposes only)
Calculation of Initial Net Proceeds
Purchase Price $10,000,000
Indemnity Holdback 1,000,000
-----------
Adjusted Net Proceeds $ 9,000,000
Sale Expenses 200,000
-----------
Initial Net Proceeds $ 8,800,000
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Allocation of Initial Net Proceeds Among Settlers
In accordance with Appendix C to the Settlement Agreement (Appendix B of
the City of El Paso's Agreement), each Settler's share of the Initial Net
Proceeds is as follows:
Percentage
Settler From Appendix Share
------- ------------- -----
Xxxxx Xxxx 3.909% $ 343,992
Xxxx Xxxxxxxx 4.887% $ 430,056
Xxxxxxx X. Xxxxx 3.909% $ 343,992
Xxx Xxxxxxxxx as
POA for Xxxx
Xxxxxxxx 9.122% $ 802,736
Xxxxx Xxxxxx 4.561% $ 401,368
Xxxxx Xxxxxx Xxxx 8.145% $ 716,760
City of El Paso 3.086% $ 271,568
TOTAL $3,310,472
Distribution of Initial Net Proceeds Between Xxxxxxxx and Settlers
Initial Net Proceeds $8,800,000
Settlers' Share From Appendix C
to the Settlement Agreement (Ap-
pendix B of the City of El Paso's
Agreement)
$8,800,000 x 37.619% $3,310,472
Xxxxxxxx'x Share
(Initial Net Proceeds less Settlers'
Share less $500,000 Repayment of
Ravenswood Loan)
$8,800,000 - $3,310,472 - $500,000 $4,989,528
EXHIBIT 8(c)
ILLUSTRATIVE DISTRIBUTION OF SUBSEQUENT NET PROCEEDS
(For hypothetical and discussion purposes only)
Calculation of Subsequent Net Proceeds
Indemnity Holdback $1,000,000
Sales Expenses 20,000
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Subsequent Net Proceeds $ 980,000
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Allocation of Subsequent Net Proceeds Among Settlers
In accordance with Appendix C to the Settlement Agreement (Appendix B of
the City of El Paso's Agreement), each Settler's share of the Subsequent Net
Proceeds is as follows:
Percentage
Settler From Appendix Share
------- ------------- -----
Xxxxx Xxxx 3.909% $ 38,308
Xxxx Xxxxxxxx 4.887% $ 47,893
Xxxxxxx X. Xxxxx 3.909% $ 38,308
Xxx Xxxxxxxxx as
POA for Xxxx
Xxxxxxxx 9.122% $ 89,395
Xxxxx Xxxxxx 4.561% $ 44,698
Xxxxx Xxxxxx Xxxx 8.145% $ 79,821
City of El Paso 3.086% $ 30,243
TOTAL $368,666
Distribution of Subsequent Net Proceeds Between Xxxxxxxx and Settlers
Subsequent Net Proceeds $980,000
Settlers' Share From Appendix C
to the Settlement Agreement (Ap-
pendix B of the City of El Paso's
Agreement)
$980,000 x 37.619% $368,666
Xxxxxxxx'x Share
(Subsequent Net Proceeds less Set-
tlers' Share)
$980,000 - $368,666 $611,334
