Exhibit 10.39
ESCROW AGREEMENT
This Escrow Agreement ("Escrow Agreement") made and entered into
as of the ___ day of ________, 1995 by and among Cinema Herricks, Inc., a New
York corporation (the "GG Group"), Clearview Cinema Group, Inc. a Delaware
corporation ("CCG") and CCC Herricks Cinema Corp., a Delaware corporation ("HCC"
together with CCG the "Clearview Group") and Hollenberg, Levin, Xxxxxxx, Xxxx
and Xxxxxx, LLP, as escrow agent (hereinafter referred to as the "Escrow
Agent");
The Clearview Group and the GG Group have entered into an
Agreement dated the date hereof (the "Agreement") that requires that the
Clearview Group and the GG Group to place certain funds and documents into
escrow with the Escrow Agent to be held and disbursed in accordance with the
terms and conditions of that Agreement.
The Clearview Group and the GG Group desire to deposit with the
Escrow Agent the funds and documents described herein to be distributed as set
forth herein.
In consideration of the foregoing and the mutual covenants set
forth herein, and intending to be legally bound hereby, the parties hereto agree
as follows:
I Article
Deliveries to the Escrow Agent.
1.1 Escrow Fund. Simultaneously with the execution of this Escrow
Agreement, the Clearview Group is depositing with the Escrow Agent, the
principal sum of Sixty Thousand Dollars ($60,000) (the "Principal Amount"). The
Principal Amount and any interest thereon, are hereinafter collectively referred
to as the "Escrow Fund". The Escrow Agent shall subject to the collection of the
Principal Amount invest the assets in the Escrow Fund in certificates of deposit
at the Xxxxxxx Avenue Garden City Branch of Fleet Bank in an account entitled
Security Deposit of Clearview Cinema Group, Inc. and CCC Herricks Cinema Corp.,
for the benefit of the GG Group pursuant to Escrow Agreement, dated _______,
1995. The Clearview Group may, from time to time, deposit additional funds with
the Escrow Agent; provided, however, that the maximum amount of Escrowed Funds
held at a particular time shall not exceed $60,000, plus accrued interest.
1.2 Escrowed Documents. Simultaneously with the execution of this
Escrow Agreement, (i) the GG Group is
delivering to the Escrow Agent (a) assignments of Grand Avenue and Port
Washington Leases duly executed by the GG Group and (b) a general warranty xxxx
of sale and instrument of assignment duly executed by the GG Group, and (ii) the
Clearview Group is delivering to the Escrow Agent simultaneously with the
execution of this Agreement an assignment of rights of the Clearview Group.
II ARTICLE
Disposition of the Escrow Fund and Documents.
2.1 Use of Escrow Funds. The rights of each of the GG Group and
the Clearview Group to the Escrow Funds shall be as set forth in the Agreement.
The Clearview Group covenants that it will not assign or encumber or attempt to
assign or encumber the Escrow Funds and neither the Escrow Agent nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
2.2 Request of the Parties. Upon receipt of written request (the
"Request") from either of the GG Group or the Clearview Group (each an
"Instructing Party") to disburse funds and/or documents, the Escrow Agent shall
immediately deliver by facsimile and certified mail a copy of the Request to the
other of the Clearview Group or the GG Group (each an "Instructed Party"). If,
within the ten business day period following the delivery of the Request to the
Instructed Party, the Instructed Party shall not have delivered to the Escrow
Agent a written objection to the Request, the Escrow Agent shall disburse funds
and documents in accordance with the Request.
2.3 Expiration of the Agreement. The Escrow Agent shall pay the
Escrow Fund directly to the Clearview Group as soon as shall be practicable
after the Termination Date (as defined in Section 4.1), unless, as of the
Termination Date, the Escrow Agent shall (i) have pending before it any request
to pay any of the Escrow Fund pursuant to any other Section of this Escrow
Agreement or (ii) have filed an interpleader action pursuant to Section 4.4 of
this Escrow Agreement.
III ARTICLE
Delivery of Notices; Statements.
3.1 If the GG Group shall send any certificate, notice, request,
demand and other communication (each a "Certificate") to the Escrow Agent, the
GG Group shall simultaneously send such Certificate to the Clearview Group by
facsimile and certified mail. If the Clearview Group shall send a Certificate to
the Escrow Agent, the Clearview Group shall simultaneously send such Certificate
to the GG Group by facsimile and certified mail.
3.2 All certificates, notices, requests, demands and other
communications hereunder or with respect hereto shall be in writing and shall be
deemed to have been duly given or made upon
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the second business day after the date of mailing, if delivered by certified
mail, postage prepaid, upon delivery, if sent by hand delivery, upon delivery,
if sent by prepaid courier or overnight service (such as Federal Express), with
a record of receipt, or the next day after the date of dispatch, if sent by
cable, telegram, facsimile or telecopy (with a copy simultaneously sent by
registered or certified mail, postage prepaid, return receipt requested), to the
parties at the following addresses:
(i) if to the Clearview Group, to:
Clearview Cinema Group, Inc.
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a required copy to:
Xxxxxx X. Xxxxxxxx, Esquire
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
(ii) if to the GG Group, to:
Xxxxx Xxxxx
00 Xxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
with a required copy to:
Xxxxxxx X. Xxxxxxx
Hollenberg, Levin, Xxxxxxx, Xxxx
and Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
(iii) if to Escrow Agent, to:
Xxxxxxx X. Xxxxxxx
Hollenberg, Levin, Xxxxxxx, Xxxx
and Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Any party hereto may change the address to which notice to it, or copies
thereof, shall be addressed, by giving notice thereof to the other parties
hereto in conformity with the foregoing.
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3.3 The Escrow Agent shall promptly deliver or cause to be
delivered to the Clearview Group and to the GG Group monthly bank statements
reflecting the status of and any activity in the account.
IV ARTICLE
General Provisions
4.1 If not sooner terminated by the written consent of both the GG
Group and the Clearview Group, this Escrow Agreement shall terminate on August
31, 2000 or later, if required pursuant to the Escrow Agents obligations under
the Agreement (the "Termination Date").
4.2 The Clearview Group and the GG Group agree to indemnify Escrow
Agent and hold it harmless from any loss or liability, including reasonable
attorneys' fees and expenses, arising from its service as Escrow Agent hereunder
and any actions taken pursuant hereto, except for losses or liabilities arising
from Escrow Agent's fraud, gross negligence or willful misconduct. The
provisions of this Section 4.2 relating to indemnity of the Escrow Agent shall
survive the Termination Date and the final disbursement of the Escrow Fund or
the sooner expiration of this Escrow Agreement or removal of the Escrow Agent
for any reason.
4.3 In the absence of fraud on its part, Escrow Agent shall be
entitled to rely conclusively, as to the truth of the statements contained
therein, upon any certificate, notice, authorization or other document delivered
to it hereunder which it reasonably believes to be in conformity with the
requirements of this Escrow Agreement and to be genuine and to have been signed
by any authorized representative of the Clearview Group or the GG Group (as the
case may be) from time to time. The Escrow Agent need not investigate any
factual matters averred or stated in any such certificate, notice, authorization
or other document; provided, however, that Escrow Agent shall examine each such
document to determine whether it conforms to the requirements of this Escrow
Agreement.
4.4 If Escrow Agent in good faith is in doubt as to what actions
should be taken hereunder, Escrow Agent shall have the absolute right to deposit
the Escrow Fund with the Clerk of the Supreme Court of Nassau County in
accordance with CPLB 1006 and upon such deposit the Escrow Agent shall be
released from all liability under this Escrow Agreement.
4.5 The service of Hollenberg, Levin, Xxxxxxx, Xxxx and Xxxxxx,
LLP as Escrow Agent under this Agreement shall not disqualify Hollenberg, Levin,
Xxxxxxx, Xxxx and Xxxxxx, LLP from the representation of Xxxxx Xxxxx or any of
the GG Group in any matter, including but not limited to, any dispute relating
to this Escrow Agreement.
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4.6 The Clearview Cinema Group, Inc. shall file tax returns
reflecting the interest earned on the Escrow Funds, and shall pay any and all
taxes due on the income to Clearview Cinema Group, Inc. on account of the
interest earned on the Escrow Funds. Its Taxpayer Identification Number is
______________.
4.7 During the term of the Agreement, the Escrowed Funds shall be
held for the benefit of the GG Group pursuant to the terms of the Agreement, and
shall not be subject to the rights of any trustee, creditor, or other person
with respect to the Clearview Group in any bankruptcy, reorganization,
insolvency or receivership proceeding.
4.8 This Escrow Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. The Clearview
Group may not assign its rights under this Agreement. This Escrow Agreement is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
4.9 This Escrow Agreement may not be revoked, rescinded or
modified as to any of its terms or conditions except upon consent in writing of
all the parties hereto.
4.10 This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which shall
together constitute one and the same instrument.
WITNESS the due execution hereof the day and year first above
written.
Cinema Herricks, Inc.
By: __________________________
Title: ___________________
Clearview Cinema Group, Inc.
By: __________________________
Title: ___________________
CCC Herricks Cinema Corp.
By: __________________________
Title: ___________________
Hollenberg, Levin, Xxxxxxx,
Xxxx and Xxxxxx, LLP
By: __________________________
Title: ___________________
