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ESCROW AGREEMENT
This Escrow Agreement made this 15th day of June, 1995, by
and among Alert Centre, Inc., a Delaware corporation ("Seller"), Masada
Security, Inc., a Delaware corporation ("Buyer"), and Xxxxxxxx Xxxxxxxxx
Professional Corporation (the "Escrow Agent").
STATEMENT OF FACTS
1. Buyer and Seller are parties to that certain Asset Purchase
Agreement dated as of June 9, 1995 (the "Purchase Agreement"). All capitalized
terms used herein, but not otherwise defined herein, shall have the meanings
given them in the Purchase Agreement.
2. Pursuant to the Purchase Agreement, Buyer agreed to purchase
all of the Assets to be Acquired.
3. Pursuant to the Purchase Agreement, Buyer and Seller agreed
that Buyer would deposit a portion of the Purchase Price with the Escrow Agent
to provide a source to fund any Chip Change Credit, any Purchase Price Deduct
and any indemnification obligation of Seller pursuant to Section 8.1 of the
Purchase Agreement.
NOW, THEREFORE, in consideration of the Statement of Facts
and the mutual covenants and agreements contained herein, the parties,
intending to be legally bound, covenant and agree as follows:
1. Establishment of Escrow Fund.
1.1 Simultaneously with the execution and delivery of this
Escrow Agreement, Buyer shall deposit the sum of Fifty-Seven Thousand
fifty-four and 98/100 Dollars ($57,054.98) (which deposit, together with
interest accrued thereon, shall be referred to as the "Escrow Fund") with the
Escrow Agent.
2. Appointment of Escrow Agent.
2.1 Buyer and Seller hereby appoint the Escrow Agent to serve as
escrow agent under the terms of this Escrow Agreement, and the Escrow Agent
hereby accepts such appointment.
2.2 The Escrow Agent agrees to place the Escrow Fund in an
account with PNC Bank, such account to bear interest at the highest rate
offered on accounts available for immediate withdrawal.
2.3 The Escrow Agent further agrees to carry out the provisions
of this Escrow Agreement on its part to be performed.
3. Purpose of the Escrow Fund.
3.1 The purpose of the Escrow Fund is to deposit a designated
portion of the Purchase Price to provide a source to fund any Chip Change
Credit, any Purchase Price Deduct and any indemnification obligation of Seller
pursuant to Section 8.1 of the Purchase Agreement.
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4. Distribution of the Escrow Fund.
4.1 The Escrow Agent shall disburse the Escrow Fund, in whole or
in part, only upon receipt of joint written instructions executed on behalf of
Buyer and Seller or at the direction of the arbitrators to be selected pursuant
to Section 12.3 of the Purchase Agreement or at the direction of a court of
competent jurisdiction.
4.2 The Escrow Agent may, at any time, deposit the Escrow Fund
with such arbitrators or court, and upon such deposit, the Escrow Agent shall
be relieved of any further liability or responsibility with respect thereto.
5. Escrow Agent.
5.1 The Escrow Agent shall not in any way be bound or affected
by a notice of modification or cancellation of this Escrow Agreement unless
notice thereof is given to the Escrow Agent by both Seller and Buyer, nor shall
the Escrow Agent be bound by any modification of its obligations hereunder
unless the same shall be consented to by the Escrow Agent in writing. The
Escrow Agent shall be entitled to rely upon any judgment, certification, demand
or other writing delivered to it hereunder without being required to determine
the authenticity or the correctness of any facts stated therein, the propriety
or validity of the service thereof, or the jurisdiction issuing any judgment.
5.2 The Escrow Agent shall not be under any duty to give the
property held by it hereunder any greater care than it gives its own similar
property.
5.3 The Escrow Agent may act in reliance upon any instrument or
signature believed by it to be genuine, and it may assume that any person
purporting to give any notice or make any statement in connection with the
provisions hereof has been duly authorized to do so.
5.4 The Escrow Agent may act in reliance upon advice of counsel
in reference to any matter connected herewith, and shall not be liable for any
mistake of fact or error of judgment, or for any act or omission of any kind
except to the extent that such act or omission constitutes willful misconduct,
gross negligence or fraud.
5.5 The Escrow Agent shall not have any responsibility for the
payment of taxes except with funds furnished to the Escrow Agent for that
purpose.
5.6 This Escrow Agreement sets forth exclusively the duties of
the Escrow Agent with respect to any and all matters pertinent hereto. Except
as otherwise expressly provided herein, the Escrow Agent shall not refer to,
and shall not be bound by, the provisions of any other agreement.
5.7 Except with respect to claims based upon the Escrow Agent's
willful misconduct, gross negligence or fraud, Buyer shall indemnify and hold
harmless the Escrow Agent from any claims made against the Escrow Agent by
Seller arising out of or relating to this Escrow Agreement, and Seller shall
indemnify and hold the Escrow Agent harmless from any claims made against the
Escrow Agent by Buyer arising out of or relating to this Escrow Agreement.
Buyer and Seller jointly and severally shall indemnify and hold the Escrow
Agent harmless from any claim made by any third party arising out of or
relating to this Escrow Agreement, such indemnification to include all costs
and expenses incurred by the Escrow Agent, including reasonable attorneys'
fees.
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5.8 The Escrow Agent shall not be required to institute or
defend any action involving any matters referred to herein or which affect it
or its duties or liability hereunder, unless or until requested to do so by any
party to this Escrow Agreement and then only upon receiving full indemnity, in
character satisfactory to the Escrow Agent, against any and all claims,
liabilities and expenses, including reasonable attorneys' fees, in relation
thereto.
5.9 Upon termination of this Escrow Agreement, the Escrow Agent
may request from Buyer and Seller such additional assurances, certificates,
satisfactions, releases and/or other documents as it may deem appropriate to
evidence the termination of this Escrow Agreement.
5.10 The Escrow Agent shall not be entitled to receive a fee for
serving as the Escrow Agent hereunder.
5.11 Buyer and Seller acknowledge that it may be necessary, for
federal income tax or other purposes, for the Escrow Agent to know the employer
identification numbers ("EIN") of Buyer and Seller. Buyer represents that its
EIN is 00-0000000. Seller represents that its EIN is 00-0000000.
5.12 Seller acknowledges that the Escrow Agent is merely acting
as a depository hereunder and that the Escrow Agent has served as counsel for
Buyer with respect to the transactions contemplated herein. Seller agrees that
the Escrow Agent shall be entitled to serve as legal counsel and to represent
Buyer in any dispute involving Buyer and Seller, and Seller hereby waives any
right to assert any conflict of interest or to object to the Escrow Agent
representing Buyer based on its services as the Escrow Agent. The Escrow Agent
shall not be treated as being in a conflict situation with respect to its
representation of Buyer by virtue of the Escrow Agent's agreeing to serve
hereunder.
6. Notices.
6.1 All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered when
delivered (i) personally, (ii) by registered or certified mail, (iii) by
legible facsimile transmission or (iv) by overnight courier (fare prepaid), in
all cases addressed as follows:
If to Buyer, to: with a copy to:
Masada Security, Inc. Xxxxxxxx Xxxxxxxxx Professional Corporation
Attention: Xxxxxxx X. Xxxxxxxxx Attention: Xxxxxx X. Xxxxxxxx, Esq.
Vice President 00xx Xxxxx, 000 Xxxxx Xxxxxx
000 00xx Xxxxxx Xxxxx, Xxx. 000 Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000 Telecopy: 000-000-0000
Telecopy: 000-000-0000
If to Seller, to: with a copy to:
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
Vice President General Counsel
Alert Centre, Inc. Alert Centre, Inc.
0000 X. Xxxxxx Xx. 0000 X. Xxxxxx Xx.
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: 000-000-0000 Telecopy: 000-000-0000
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If to the Escrow Agent, to:
Xxxx X. Van der Veer, Esquire
Xxxxxxxx Ingersoll, P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
or to such address as such party may indicate by a notice delivered to the
other parties. Notice shall be deemed received the same day (when delivered
personally), five (5) days after mailing (when sent by registered or certified
mail), or the next business day (when sent by facsimile transmission or when
delivered by overnight courier). Any party to this Escrow Agreement may change
its address to which all communications and notices may be sent hereunder by
addressing notices of such change in the manner provided.
7. Miscellaneous.
7.1 This Escrow Agreement and the rights and the obligations of
the parties shall be governed by and construed and enforced in accordance with
the laws of the State of Alabama without regard to its conflicts of law
provisions.
7.2 The parties: (i) agree that any legal action concerning any
and all claims, disputes, or controversies arising out of or relating to this
Escrow Agreement shall only be commenced in Birmingham, Alabama or Denver,
Colorado; (ii) consent to the jurisdiction of the arbitrators elected pursuant
to the Purchase Agreement; and (iii) agree to accept service of any pleadings
(and such service shall be valid), if made by certified or registered mail,
return receipt requested, to the respective parties at the addresses set forth
in Section 6 of this Escrow Agreement. IN THE EVENT OF ANY COURT PROCEEDING
HEREUNDER, THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY.
7.3 The parties agree to execute and deliver any and all documents
and to take such further action as shall be reasonably required to effectuate
the provisions of this Escrow Agreement.
7.4 This Escrow Agreement contains the entire understandings of
the parties with respect to the subject matter herein contained and shall not
be modified except by a writing signed by all the parties.
7.5 This Escrow Agreement shall inure to the benefit of and be
binding upon the parties and their respective successors and assigns. Seller
and the Escrow Agent cannot assign this Escrow Agreement, but Buyer shall be
permitted to assign this Escrow Agreement and its rights and obligations
hereunder to its affiliates, successors and assigns.
7.6 There shall be no presumption against any party on the ground
that such party was responsible for preparing this Escrow Agreement or any part
hereof. The word "including" means "including without limitation."
7.7 This Escrow Agreement may be executed in one or more
counterparts, each of which when taken together shall comprise one instrument.
Delivery of executed signature pages by facsimile transmission shall constitute
effective and binding execution and delivery.
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IN WITNESS WHEREOF, the parties have caused this Escrow
Agreement to be executed and delivered as of the day and year first above
written.
ALERT CENTRE, INC.
By: /s/ Xxxxx X. Xxxxxxx
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EXEC. V.P. AND C.F.O.
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MASADA SECURITY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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VICE PRESIDENT, CORPORATE DEVELOPMENT
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XXXXXXXX XXXXXXXXX PROFESSIONAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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