Exhibit 2.2
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of August 1, 1997 among Kamori
International Corporation (the "Seller"), ASC West ("Purchaser"), and LTCB Trust
Company ("Escrowee").
Background
The Seller and Purchaser are parties to that certain Purchase and
Sale Agreement dated as of the date hereof (the "Purchase Agreement") pursuant
to which the Seller has agreed to sell and Purchaser has agreed to purchase the
Property in accordance with the terms set forth in the Purchase Agreement.
Capitalized terms used in this Agreement and not defined shall have the meanings
specified in the Purchase Agreement.
Pursuant to the Purchase Agreement, Purchaser shall deliver to
Escrowee the Initial Deposit and the Additional Deposit to be held by Escrowee
in accordance with the terms hereof.
Agreement
1. In accordance with the terms of the Purchase Agreement, within
one business day following the date hereof, Purchaser is hereby delivering to
Escrowee by federal wire transfer the sum of $11,000,000 (the "Deposit"), to be
held by Escrowee in escrow pursuant to the terms of this Agreement. The executed
Purchase Agreement shall be held in escrow by counsel for each party and
released only upon (a) receipt of confirmation by the Escrowee of receipt of the
Deposit and (b) receipt of confirmation by Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation that the Purchase Agreement is acceptable to it.
2. The Deposit shall be invested by Escrowee in shares in any money
market mutual fund of Federated Investors rated at least AAA by Standard & Poor
or Aaa by Xxxxx'x Investors Service Inc. or Eurodollar time deposits with the
Long-Term Credit Bank of Japan, Ltd. by Escrowee. Escrowee shall have no
liability for the loss of principal or interest on the deposited funds by any
depository or the failure of a depository to return the principal of, or pay
interest on, the deposited funds when requested, or for any other default,
action or inaction on the part of such depository. The Seller and Purchaser
understand that it may take some time to deposit the funds and some time to
withdraw the funds and that the funds will earn no interest
during such times. Funds received by the Escrowee, at or prior to 11:00 am. New
York City Time, will be invested on the day of receipt. Funds received after
11:00 a.m. will be invested on the following business day. The term "Deposit" as
used herein shall, unless otherwise provided, be deemed to include any and all
interest earned on the Deposit pursuant to this Agreement.
3. The Deposit shall be released by Escrowee only as follows:
(a) In accordance with the joint written request and instruction
of the Seller and Purchaser;
(b) To Purchaser upon the written request of Purchaser stating
that the Agreement has terminated and that Purchaser is
entitled to the delivery of the Deposit, which delivery shall
be made not sooner than ten (10) days after written notice of
Purchaser's request has been delivered to the Seller and the
Seller has failed to timely deliver to Escrowee the Notice of
Dispute provided for hereinafter;
(c) To the Seller upon the written request of the Seller stating
that the Agreement has terminated and that the Seller is
entitled to the delivery of the Deposit, which delivery shall
be made no sooner than ten (10) days after written notice of
the Seller's request has been delivered to Purchaser and
Purchaser has failed to timely deliver to Escrowee the Notice
of Dispute provided for hereinafter; or
(d) To the Seller upon the written request of the Seller stating
that the Buyer has failed to fund fully the purchase price for
the Shares in a manner satisfactory to the Seller on or prior
to October 31, 1997 in accordance to ss. 10(g) of the Purchase
Agreement and that the Seller is entitled to the Delivery of
the Deposit.
In the event of the delivery by either Purchaser or the Seller of a unilateral
request for disbursement as provided in subparagraphs (b) or (c) above, Escrowee
shall promptly deliver written notice of such request to the other party to the
Agreement. The party receiving notice of such request shall have a period of ten
(10) days after its receipt of such notice within which to deliver to Escrowee
and the other party to the Agreement a notice (the "Notice of Dispute")
disputing the other party's entitlement to delivery of the Deposit and failure
to deliver such Notice of Dispute shall be conclusively presumed to indicate
such party's acquiescence in the request for disbursement of which it has had
notice. Upon receipt of a Notice of Dispute, Escrowee shall give
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prompt notice thereof to the party initially requesting delivery of the Deposit
and shall take no further action thereafter except upon the joint written
instruction of the Seller and Purchaser, or the order of a court of competent
jurisdiction.
4. (a) The duties and responsibilities of Escrowee shall be limited
to those expressly set forth herein, being purely ministerial in nature, and
Escrowee shall incur no liability whatsoever hereunder except for willful
misconduct or gross negligence.
(b) Escrowee shall not be personally liable for any act taken
or omitted hereunder if taken or omitted by it in good faith and in the exercise
of its own best judgment and without willful misconduct or gross negligence.
Escrowee shall also be fully protected in relying upon any written notice,
demand, certificate, or document which it in good faith believes to be genuine
and signed by the proper parties.
(c) Escrowee shall be under no responsibility in respect of
the amounts deposited with it other than faithfully to follow the instructions
contained herein. It may obtain advice of counsel and shall be fully protected
in any action taken in good faith, in accordance with such advice. It shall not
be required to defend any legal proceedings that may be instituted against it in
respect of the subject matter of these instructions unless requested so to do by
the Seller and shall be indemnified by the Seller to its satisfaction against
the cost and expense of such defense. It shall have no responsibility for the
genuineness or validity of any document or other item deposited with it.
(d) Escrowee shall have no liability to Purchaser and the
Seller for any loss to the Deposit resulting from the failure of a bank in which
the Deposit is deposited.
5. Both parties promise and agree to indemnify and save Escrowee
harmless from any claims, liabilities, judgments, attorneys' fees, and other
expenses of every kind and nature (other than those arising from Escrowee's
willful misconduct or gross negligence and other than the normal de minimis
costs of retaining the Deposit in accordance with paragraph 2 above) that may be
incurred by Escrowee by reason of its acceptance of, and its performance under,
this instrument; provided, however, that Purchaser shall not be obligated to
indemnify Escrowee for attorneys fees for which Seller is obligated for under
Section 4(c) hereof.
6. All of the terms and conditions in connection with Escrowee's
duties and responsibilities are contained in this instrument and Escrowee is not
expected to be required to be familiar with the provisions of any other
instrument or agreement and shall not be charged with any responsibility or
liability in
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connection with the observance or non observance by any one of the provisions of
any such instrument or agreement.
7. In the event of a dispute between any parties hereto, Escrowee
shall be entitled, but shall not be required so to do, to deposit the Deposit in
the Supreme Court of the State of New York located in New York County and
thereupon be relieved of all responsibilities hereunder.
8. All notices, consents, approvals and other communications under
this Escrow Agreement shall be in writing and shall be given in accordance with
Section 12(h) of the Purchase Agreement.
9. The tax identification numbers of Seller and Purchaser are as
follows:
The Seller: 00-000-0000
Purchaser:
10. The Escrowee shall receive an up front flat fee of $10,000
payable by the Purchaser for their services hereunder.
11. This Agreement shall be construed and enforced in accordance
with the laws of the State of New York and shall be binding upon and inure to
the benefit of Purchaser and the Seller and their respective successors and
permitted assigns, and Escrowee.
12. This Escrow Agreement shall terminate and be of no further force
and effect from and after the date that final distribution has been made
hereunder.
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Escrowee, the Seller and Purchaser have executed this Agreement as
of the day and year first above written.
LTCB TRUST COMPANY.
By:
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Name:
Title:
KAMORI INTERNATIONAL CORPORATION
By: /s/ Kimihito Kamori
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Name:
Title:
ASC WEST
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
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