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EXHIBIT 2.7
EXHIBIT F TO MERGER AGREEMENT
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into this
_____ day of __________, 1996, among XXXXXX XXXXXXX GROUP, INC., a California
corporation ("JSG"); 800 TRAVEL SYSTEMS, INC., a Delaware corporation ("Travel
Systems"), and VINCENT, BERG, XXXXXXX & XXXXXXXX, P.C., a Georgia professional
corporation (the "Escrow Agent").
Background Statement
A. JSG and Travel Systems are parties to certain Asset Purchase
Agreement (the "Purchase Agreement," by this reference made a part hereof) of
even date herewith pursuant to which JSG agreed to sell to Travel Systems, and
Travel Systems agreed to purchase from JSG, certain assets used in connection
with the business operations of JSG, all as provided therein.
B. JSG and Travel Systems wish to have the Escrow Agent hold and
disburse certain funds and documents to be delivered by the parties at the
closing of the transactions contemplated by the Purchase Agreement, all as set
forth therein and herein.
C. The Escrow Agent is willing to perform the duties and
responsibilities of the Escrow Agent as set forth herein, all on the terms and
conditions hereinafter set forth.
D. Capitalized terms used, but not defined, herein shall have the
same meanings ascribed to them in the Purchase Agreement.
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Agreement
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, each
intending to be legally bound hereby, agree as follows:
1. Delivery and Receipt of Escrow Items.
Prior to or simultaneously with the execution of this Agreement by the
parties hereto, the Escrow Agent has received:
(a) From Travel Systems, the following items:
(i) The Note (signed, but not dated, by Travel
Systems); and
(ii) The Certificate (signed, but not dated, by
Travel Systems); and
(b) From JSG, the Xxxx of Sale (signed, but not dated, by
JSG) (the items described in this Section 1 are referred to herein as the
"Escrow Items"). The Escrow Agent hereby agrees to hold and disburse the
Escrow Items in accordance with, and subject to, the terms and conditions of
this Agreement.
2. Terms and Conditions of Disbursement.
(a) At the Closing of the Purchase Agreement, and upon
written instructions from JSG and Travel Systems, the Escrow Agent shall:
(i) Date and deliver the Note and the Certificate
to JSG; and
(ii) Date and deliver the Xxxx of Sale to Travel
Systems; and
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(iii) Deliver any and all of the Consents received
by the Escrow Agent to Travel Systems.
(The items described in clauses (i) and (ii) shall be dated as of the date on
which such items are tendered for delivery by the Escrow Agent to the intended
recipient thereof).
(b) If the Closing does not occur by April 15, 1997, then
the Escrow Agent shall:
(i) Return to JSG the Xxxx of Sale (undated) and
any and all consents received by the Escrow
Agent; and
(ii) Return to Travel Systems the Note (undated)
and the Certificate (undated).
3. Written Assurances. Notwithstanding any provision to the
contrary herein contained, the Escrow Agent may, but need not, request as a
condition to the delivery of all or any of the Escrow Items the written
assurances of JSG and Travel Systems that they each agree that the proposed
delivery by the Escrow Agent of all or any of the Escrow Items is in accordance
with this Agreement. At such time as all of the Escrow Items have been
delivered as provided herein, this Agreement shall be deemed terminated and the
Escrow Agent shall thereupon be relieved from any further liability or
responsibility hereunder.
4. Liabilities of Escrow Agent.
(a) The Escrow Agent shall have no duties or
responsibilities other than those expressly set forth herein. The Escrow Agent
shall be under no liability to anyone by reason of
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any failure on the part of any party (other than the Escrow Agent for
performance of duties and responsibilities specifically set forth herein) or
any maker, guarantor, endorser or other signatory of any document to perform
such party's obligation under any such document.
(b) The Escrow Agent shall not be liable for any action
taken or omitted by it, except for gross negligence or willful misconduct, and
the Escrow Agent may reasonably rely upon any order, notice, demand,
certificate, opinion or advice of counsel (including counsel chosen by the
Escrow Agent), statement, instrument, report or other paper or document which
is reasonably believed by the Escrow Agent to be genuine and to be signed or
presented by the proper person or persons. The Escrow Agent shall not be bound
by any notice or demand, or any waiver, modification, termination or rescission
of this Agreement, unless the Escrow Agent agrees thereto in writing.
5. Indemnification. JSG and Travel Systems jointly and severally
hereby agree to indemnify and hold harmless the Escrow Agent and its
shareholders, directors, officers, employees and agents against any and all
costs, losses, claims, damages, liabilities, expenses, including reasonable
costs of investigation, court costs, and attorney's fees, and disbursements,
which may be imposed upon the Escrow Agent and/or any of the other indemnified
persons or entities in connection with this Agreement or any matter or event
related thereto, including any litigation arising from this Agreement or
involving the subject matter
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hereof, and all such costs, expenses and disbursements shall be for the account
of an shall be borne and paid by JSG and Travel Systems as a condition to
termination of this Agreement.
6. Disputes.
(a) In the event of any disagreement among any of the
parties to this Agreement, or among them or any other person resulting in
adverse claims and demands being made in connection with or from any property
involved herein or affected hereby, the Escrow Agent shall be entitled to
refuse to comply with any such claims or demands as long as such disagreement
may continue, and in so refusing, shall make no delivery or other disposition
of any property then held by it under this Agreement, and in so doing the
Escrow Agent shall be entitled to continue to refrain from acting until (a) the
right of adverse claimants shall have been finally settled by binding
arbitration or finally adjudicated in a court assuming and having jurisdiction
of the property involved herein or affected hereby or (b) all differences shall
have been adjusted by agreement and the Escrow Agent shall have been notified
in writing of such agreement signed by the parties hereto.
(b) In the event of such disagreement, Escrow Agent may,
but need not, tender into the registry or custody of any court of competent
jurisdiction all money or property in its hands under the terms of this
Agreement, together with such legal proceedings as it deems appropriate, and
thereupon to be discharged from all further duties under this Agreement.
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7. Notices. All notices (and copies thereof), demands and other
instruments required or permitted to be given pursuant to this Agreement are to
be in writing and delivered by hand or by overnight express service or by
certified or registered mail addressed to each party hereto at the following
respective addresses (which addresses may be changed upon written notice to the
other parties hereto):
Escrow Agent: Vincent, Berg, Xxxxxxx & Xxxxxxxx, P.C.
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
JSG: Xxxxxx Xxxxxxx Group, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Travel Systems: 800 Travel Systems, Inc.
0000 Xxxx Xxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Any notice, demand, or other instrument shall be deemed to be given and
effective hereunder on the fourth (4th) business day after dispatch (assuming
proper postage attached) or upon actual receipt by the addressee, whichever
first occurs.
8. Successors. The terms "JSG," "Travel Systems," and the
"Escrow Agent" shall be deemed to include the assigns and successors in
interest of said parties, and in such event, said assigns or successors in
interest shall be substituted as a party hereto.
9. Legal Action. The Escrow Agent shall have no obligation to
take any legal action in connection with this Escrow Agreement or towards its
enforcement or to appear in, prosecute
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or defend any action or legal proceeding which would or might involve it in any
cost, expense, loss or liability unless satisfactory security and indemnity
shall be furnished.
10. Binding Effect. This Escrow Agreement contains the entire
understanding between and among the parties hereto with respect to the subject
matter hereof, and shall be binding upon and inure to the benefit of such
parties, their respective heirs, successors in interest and legal
representatives.
11. Governing Law. This Escrow Agreement is being delivered in
and shall be governed by and construed and enforced in accordance with the laws
of the State of Georgia.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, all
on the day and year first above written.
JSG:
XXXXXX XXXXXXX GROUP, INC.
By:
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Its:
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TRAVEL SYSTEMS:
800 TRAVEL SYSTEMS, INC.
By:
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Its:
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The Escrow Agent:
VINCENT, BERG, XXXXXXX &
XXXXXXXX, P.C.
By:
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Its:
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