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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is entered into this 6th day of
December, 1996 by and among Central Parking Corporation, a Tennessee corporation
("Purchaser"), Square Industries, Inc., a New York corporation (the "Company"),
First American National Bank ("Escrow Agent"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (such individuals, collectively, the "Escrow Committee").
RECITALS
WHEREAS, Purchaser, the Company, and Central Parking System -- Empire
State, Inc., a New York corporation and a wholly-owned subsidiary of the
Purchaser ("Merger Sub"), have entered into an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of December 6, 1996, pursuant to which Company
will merge with Merger Sub with the Company surviving as a wholly-owned
subsidiary of Purchaser ("Surviving Corporation"); and
WHEREAS, Pursuant to the Merger Agreement, Purchaser will commence a cash
tender offer (the "Offer") to acquire all the outstanding stock of the Company;
and
WHEREAS, Pursuant to the Merger Agreement, a portion of the Offer Price,
the Merger Consideration and the Option Consideration (collectively the
"Consideration"), shall be deposited by Purchaser and held in escrow as
contingent consideration for distribution to the shareholders, optionholders and
warrantholders of the Company (collectively the "Shareholders") or to be
disbursed in whole or in part to Purchaser based upon resolution of the matters
described in Section 1.2 hereof; and
WHEREAS, the parties believe that there may be significant value that will
result from the resolution of certain contingent events which should accrue to
the benefit of the Shareholders but which can not currently be determined; and
WHEREAS, the resolution of such matters is dependent upon contingent events
beyond the control of the parties; and
WHEREAS, the Merger Agreement authorizes the Escrow Committee to represent
the interests of the Shareholders with respect to the Contingencies (as
hereinafter defined); and
WHEREAS, capitalized terms not otherwise defined in this Agreement shall
have the respective definitions assigned to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises of the Merger Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties have agreed to establish an escrow (the
"Escrow") pursuant to which a portion of the Consideration is to be deposited by
Purchaser to be held as contingent consideration for the Shareholders or
disbursed in whole or in part to Purchaser based upon resolution of the matters
described in Section 1.2 hereof (collectively, the "Contingencies") pursuant to
the terms of this Agreement. Accordingly, the parties hereto agree as follows:
SECTION 1. ESCROW.
1.1. Establishment of Escrow. Simultaneously with the deposit of
sufficient funds with the Depositary as required to consummate the tender offer,
Purchaser is delivering directly to the Escrow Agent a portion of the
Consideration, the payment of which is contingent upon the resolution of the
matters described in Section 1.2 hereof, equaling $2.50 per Share for each Share
tendered in the Offer by the Shareholders and for each Share which the holder of
any option or warrant is entitled to purchase under such option or warrant to
the extent that the holder of such option or warrant has agreed to the
"cash-out" provisions of Section 3.5 of the Merger Agreement. In addition, at
the Effective Time, Purchaser will deliver to the Escrow Agent $2.50 per Share
of the remaining Shares outstanding. The Depositary shall keep a list of (i) all
Shareholders who have tendered Shares which have been accepted for payment by
Purchaser in the Offer and the number of Shares so tendered, (ii) the number of
Shares converted into Option Consideration promptly after the closing of the
Offer and (iii) the Shareholders whose Shares are converted into Merger
Consideration in the Merger
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and the number of shares so converted (the "Escrow Certificate"). The Escrow
Agent shall invest such Escrowed Funds, provided the Escrowed Funds may only be
invested in short-term government securities (30 day maximum). Any interest
earned on the Escrowed Funds shall become part of the Escrowed Funds and be
available to be distributed pursuant to this Escrow Agreement. The contingent
rights in the Escrow are an integral part of the Consideration and shall be held
as contingent consideration for the Shareholders in the proportions set forth in
the Escrow Certificate. Such rights shall not be evidenced by a certificate or
any document other than this Escrow Agreement and the Merger Agreement, and do
not represent an interest in Purchaser, Merger Sub or Surviving Corporation.
1.2. Contingent Matters. The Escrowed Funds have been deposited by the
Purchaser with the Escrow Agent because of certain outstanding contingent
matters, which if resolved favorably could result in additional value to the
Company. The parties believe that in the event of a favorable resolution of
either or both of these contingencies the Shareholders should be entitled to the
distribution of the Escrowed Funds in whole or in part in accordance with the
terms hereof. The contingent matters contemplated by this Escrow Agreement are
set forth in Section 1.2.1 and 1.2.2.
1.2.1. The Wooster Escrow. $1.99 per Share of the Escrowed Funds (the
"Wooster Escrow") shall be held by the Escrow Agent for a period of up to
twelve (12) months from the Effective Time unless extended as provided in
this Section 1.2.1 (the "Escrow Period") solely in connection with the
resolution of the matters described in this Section 1.2.1. If during the
Escrow Period, the Company's property at ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ is
leased under a commercially reasonable lease agreement containing at least
the terms included in Exhibit 1.2(a) attached hereto, which include an
annual rental rate of no less than $900,000.00, (a "Conforming Lease") or
the Wooster property is sold on commercially reasonable terms that contain
at least the terms included in Exhibit 1.2(b) (a "Conforming Sale"), then
the entire Wooster Escrow shall be promptly delivered to the Depositary to
be distributed on a pro rata basis to the Shareholders based upon their
contingent rights thereto (based upon the proportions set forth in the
Escrow Certificate) upon notice from the Escrow Committee or Purchaser to
the Escrow Agent that such lease, executed by the lessee, has been
presented to Purchaser or Surviving Corporation for execution (or a
Conforming Sale has been consummated). If a Conforming Lease is being
negotiated but has not been executed or a contract for a Conforming Sale
executed by the potential purchaser is presented to Purchaser during the
Escrow Period, but such Conforming Lease is not presented or such
Conforming Sale is not closed during the Escrow Period, the Escrow Period
may be extended for ninety (90) days, in which case a Conforming Lease
executed or a Conforming Sale closed during such extension shall qualify as
a Conforming Lease or a Conforming Sale for purposes of the Wooster Escrow.
In the event that a Conforming Lease (or Conforming Sale) is not so
presented during the Escrow Period, as may be extended as provided above,
Purchaser shall be entitled to receive the entire Wooster Escrow without
any further claim by Shareholders. In the event that during the Escrow
Period, the property is leased on commercially reasonable terms, including
the terms included in Exhibit 1.2(a), but with a rental of less than
$900,000.00 per annum, Purchaser shall be entitled to receive from the
Wooster Escrow a sum in the aggregate equal to ten (10) times the
difference between $900,000.00 and the actual annual rental, up to the
maximum amount of the Wooster Escrow, if any, and the balance of the
Wooster Escrow shall be delivered to the Depositary to be distributed to
the Shareholders pro rata based upon the proportions set forth in the
Escrow Certificate. In the event that during the Escrow Period, the
property is sold at a purchase price of less than $9,000,000.00, payable in
cash at closing, Purchaser shall be entitled to receive from the Wooster
Escrow a sum in the aggregate equal to the difference between $9,000,000.00
and the actual sales price, up to the maximum amount of the Wooster Escrow
and the balance of the Wooster Escrow, if any, shall be delivered to the
Depositary to be distributed to the Shareholders pro rata based upon the
proportions set forth in the Escrow Certificate. In the event that during
the Escrow Period (i) the property is leased for a sum in excess of
$900,000.00 per year, on commercially reasonable terms including the terms
included in Exhibit 1.2(a), Purchaser shall pay over to the Escrow Agent an
additional sum of five (5) times the difference between $900,000.00 and the
actual annual rental; or (ii) the property is sold for a sum in excess of
$9,000,000.00, payable in cash at closing, Purchaser shall pay over to the
Escrow Agent an additional sum of fifty percent (50%) of the difference
between $9,000,000.00 and the actual sales price, which shall be delivered
to the Depositary for distribution to the
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Shareholders of the Company together with the entire Wooster Escrow on a
pro-rata basis as additional Consideration. In the event of any variation
of the other terms set forth on Exhibit 1.2, the parties agree to use their
reasonable efforts to negotiate an equitable distribution of the Wooster
Escrow. Any interest on the Wooster Escrow shall accrue on a pro rata basis
to the party receiving such funds. All requests for distribution of the
Wooster Escrow pursuant to this Section 1.2.1 shall be made in accordance
with and shall be subject to Section 2 of this Agreement.
1.2.2. Occupancy Tax Escrow. $.51 per Share of the Escrowed Funds
shall be held in escrow by the Escrow Agent during the Escrow Period solely
in connection with the resolution of the matters described in this Section
1.2.2 (the "Occupancy Tax Escrow"). In the event the total commercial rent
occupancy tax liability of the Company or the Surviving Corporation for all
tax periods from June 1, 1984 through May 31, 1991, in the aggregate
(including all interest, penalties and principal) (the "Occupancy Tax
Liability") is less than or equal to $800,000, the Escrow Agent shall
promptly deliver to the Depositary the entire Occupancy Tax Escrow to be
distributed to the Shareholders on a pro rata basis based upon the
proportions set forth in the Escrow Certificate. If the Occupancy Tax
Liability is more than $800,000 but less than or equal to $900,000, the
Escrow Agent shall pay to Purchaser the Occupancy Tax Escrow funds equal to
the difference between the amount of the Occupancy Tax Liability and
$800,000, and any remaining Occupancy Tax Escrow funds shall be delivered
to the Depositary to be distributed to the Shareholders on a pro rata basis
based upon the proportions set forth in the Escrow Certificate. If the
Occupancy Tax Liability is more than $900,000 but less than or equal to
$1,000,000, the Escrow Agent shall pay to Purchaser the Occupancy Tax
Escrow funds equal to 110% of the difference between the amount of the
Occupancy Tax Liability and $800,000, and any remaining Occupancy Tax
Escrow funds shall be delivered to the Depositary to be distributed to the
Shareholders on a pro rata basis based upon the proportions set forth in
the Escrow Certificate. If the Occupancy Tax Liability is more than
$1,000,000, the Escrow Agent shall pay to Purchaser the Occupancy Tax
Escrow funds equal to 120% of the difference between the amount of the
Occupancy Tax Liability and $800,000, and any remaining Occupancy Tax
Escrow funds shall be delivered to the Depositary to be distributed to the
Shareholders on a pro rata basis based upon the proportions set forth in
the Escrow Certificate. In the determination of the Occupancy Tax
Liability, funds received from certain lessors or owners of property for
payment of the commercial rent occupancy tax required by such lease or
management agreement for any tax periods from June 1, 1984 through May 31,
1991, will be credited against the Occupancy Tax Liability provided that
Purchaser shall be required to make reasonable commercial efforts to
exercise its rights to recover such funds under the terms of the Company's
or the Surviving Corporation's agreements with respect thereto. The Escrow
Period may be extended by either the Escrow Committee or the Purchaser if
the tax liability for all tax periods ending on or prior to May 31, 1991 is
not finally resolved as of 12 months after the Effective Time provided in
no event may the Escrow Period extend beyond three years after the
Effective Time. Any interest on the Occupancy Tax Escrow shall accrue on a
pro rata basis to the party receiving such funds. All requests for
distribution of the Occupancy Tax Escrow pursuant to this Section 1.2.2
shall be made in accordance with and shall be subject to Section 2 of this
Agreement.
1.2.3. No Commingling. There shall be no commingling of the Wooster
Escrow and the Occupancy Tax Escrow, each of which is available solely to
satisfy its respective Contingency. Any expenses or costs of the Escrow
Agent in connection with disputes shall be allocated solely to the escrow
relating to the Contingency which is the subject of the dispute. Any
expenses relating generally to the escrow will be allocated proportionately
to the Wooster Escrow and the Occupancy Tax Escrow.
SECTION 2. DISTRIBUTION OF FUNDS.
2.1. Distributions. The Escrowed Funds will be distributed in accordance
with the procedures described in this Section 2.
2.2. Right to Release of Funds. Subject to any conflicting provisions of
Section 3 below, any time prior to the termination of this Escrow Agreement,
Purchaser may give written notice to the Escrow Committee or the Escrow
Committee may give written notice to Purchaser (in either case, with a copy to
the Escrow Agent)
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of the resolution of either of the Contingencies (the "Notice"). Any Notice
shall briefly set forth the basis of the Notice and a reasonable estimate of the
amount to be distributed to the Depositary for distribution to each of the
Shareholders and Purchaser.
2.3. Holdback by Escrow Agent. Upon receipt by the Escrow Agent of such a
Notice, the Escrow Agent shall hold in escrow such portion of the Escrowed Funds
which will be sufficient to pay such resolution of the Contingencies, until
there has been a determination of the pending Contingencies in accordance with
the provisions of Section 2.4 hereof and such Escrowed Funds are distributable
pursuant to Section 2.5.
2.4. Resolution of Contingencies. If within ten (10) days after Notice as
provided in Section 2.2 Purchaser or Escrow Committee, as applicable, shall not
have received written objection (in the form specified later in this Section
2.4) to the resolution of such Contingency, then the Contingency shall be deemed
to have been resolved as provided in such Notice. If within this ten (10) day
period, written objection to such Notice is received from the other party (which
written objection shall state the nature and basis of the objection to the
Notice or the amount thereof, all in good faith, and a copy of which shall be
sent to the Escrow Agent), then for a period of ten (10) days after receipt of
such objection the parties shall attempt to settle the disputed resolution of
such Contingency. If they are unable to settle the dispute, the unresolved issue
or issues shall be settled in accordance with Section 5 hereof. The Purchaser
and the Escrow Committee, jointly (or, in the event of an arbitration proceeding
pursuant to Section 5, the prevailing party) shall promptly certify the final
determination of any resolution of such Contingency under this Section 2.4 by
written instruction to the Escrow Agent, upon which the Escrow Agent shall be
entitled to rely (provided that any unilateral notice by the prevailing party in
any arbitration proceeding is accompanied by a certified copy of the arbitration
award).
2.5. Distribution of Funds. Contingencies as to which a final
determination has been made pursuant to Section 2.4 shall be distributed in
accordance with this Section 2.5 promptly upon final determination of such
Contingency. The Escrow Agent shall distribute such Escrowed Funds, free and
clear of any interest of the other party as provided in any Notice which is not
contested or as provided in any joint Notice from Purchaser and Escrow Committee
of any contested Notice.
SECTION 3. TERMINATION OF ESCROW.
The Escrow will terminate one (1) year after the Effective Time unless
extended pursuant to Section 1.2 hereof. Immediately prior to such termination,
in the event there is then pending any contested resolution of a Contingency
which has (have) not been finally determined, the Purchaser or Escrow Committee
shall certify to the Escrow Agent in writing (with a copy to the other party)
the continuing validity of its Notice regarding such Contingency and the
Contingency shall be resolved in accordance with Section 2.4.
Upon termination of the Escrow, the Escrow Agent shall release and deliver
to the Depositary for distribution to the Shareholders the Escrowed Funds to be
delivered to the Shareholders pursuant to this Escrow Agreement in proportion to
the Shareholders' respective contingent rights as then reflected in the Escrow
Certificate held by the Depositary, free and clear of any escrow or
contingencies.
SECTION 4. ESCROW AGENT.
4.1 Appointment. Purchaser and the Escrow Committee hereby designate and
appoint First American National Bank, as Escrow Agent to serve in accordance
with the terms and conditions of this Agreement. The Escrow Agent hereby accepts
such appointment and agrees to act as Escrow Agent in accordance with such terms
and conditions.
4.2 Compensation and Expenses. Purchaser and the Escrow Committee agree
that the Escrow Agent shall be compensated for its services hereunder out of the
Escrowed Funds in accordance with Exhibit 4.2 hereto. Escrow Agent shall also be
entitled to reimbursement from the Escrowed Funds for all reasonable expenses
paid or incurred by it in the administration of its duties hereunder, including,
but not limited to, reasonably incurred transactional charges, counsel,
advisors' and agents' fees and disbursements. In the event a portion of the
Escrowed Funds is distributed to the Purchaser and a portion is delivered to the
Depositary to
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be distributed to the Shareholders under the terms of this Escrow Agreement, the
amount paid to the Escrow Agent shall be deducted on a pro rata basis from the
amount distributed to the Purchaser and the Shareholders.
4.3 Resignation and Discharge. The Escrow Agent may resign and be
discharged from its duties or obligations hereunder at any time by giving notice
of such resignation to the Purchaser and the Escrow Committee specifying a date
(not less than 30 days after the giving of such notice) when such resignation
shall take effect. Promptly after such notice, a successor Escrow Agent shall be
appointed at the joint direction of the Purchaser and Escrow Committee, and such
successor Escrow Agent will become Escrow Agent hereunder upon the resignation
date specified in the notice. The Escrow Agent shall continue to serve until its
successor accepts the Escrow and receives the Escrowed Funds. The Purchaser and
the Escrow Committee may agree at any time to substitute a new Escrow Agent by
giving notice thereof to the Escrow Agent then acting, provided that in the
event the Escrow Agent is removed it shall be entitled to receive its
compensation pursuant to Section 4.2 hereof earned prior to the date of removal.
4.4 Liability of Escrow Agent. The Escrow Agent undertakes to perform only
such duties as are specifically set forth in this Agreement, and shall have no
implied duties or obligations and shall not be charged with knowledge or notice
of any fact or circumstance not set forth herein. The Escrow Agent, acting or
refraining from acting in good faith, shall not be liable for any mistake of
fact or error of judgment by it or for any acts or omissions by it of any kind
taken in good faith, unless caused by willful misconduct or gross negligence.
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement or any of its terms,
unless evidenced by a writing delivered to Escrow Agent, signed by the proper
party or parties. Escrow Agent shall be entitled to rely on any written document
delivered to it by the Purchaser and the Escrow Committee which the Escrow Agent
in good faith reasonably believes to be genuine, to have been signed or
presented by the person or parties purporting to sign the same and to conform to
the provisions of this Agreement.
4.5 Indemnification of Escrow Agent. From and at all times after the date
of this Agreement, Purchaser shall, to the fullest extent permitted by law and
to the extent provided herein, indemnify and hold harmless Escrow Agent and each
director, officer, employee, attorney, agent and affiliate of Escrow Agent
against any and all actions, claims (whether or not valid), losses, damages,
liabilities, costs and expenses of any kind or nature whatsoever (including
without limitation reasonable attorneys' fees, costs and expenses) incurred by
or asserted against any of the Escrow Agent from and after the date hereof,
whether direct, indirect or consequential, as a result of or arising from or in
any way relating to any claim, demand, suit, action or proceeding (including any
inquiry or investigation) by any person, whether threatened or initiated,
asserting a claim for any legal or equitable remedy against any person under any
statute or regulation, including, but not limited to, any federal or state
securities laws, or under any common law or equitable cause or otherwise,
arising from or in connection with the negotiation, preparation, execution,
performance or failure of performance of this Agreement or any transactions
contemplated herein, whether or not the Escrow Agent is a party to any such
action, proceeding, suit or the target of any such inquiry or investigation;
provided, however, that the Escrow Agent shall not have the right to be
indemnified for any liability determined by a court of competent jurisdiction,
subject to no further appeal, to have resulted from the gross negligence or
willful misconduct of the Escrow Agent. If any such action or claim shall be
brought or asserted against the Escrow Agent, the Escrow Agent shall promptly
notify Purchaser in writing, and Purchaser shall assume the defense thereof,
including the employment of counsel satisfactory to the Escrow Agent and the
payment of all expenses. Escrow Agent shall, in its sole discretion, have the
right to employ separate counsel in any such action and to participate in the
defense thereof, and the fees and expenses of such counsel shall be paid by the
Escrow Agent unless (a) Purchaser agrees to pay such fees and expenses, or (b)
Purchaser shall fail to assume the defense of such action, or (c) the named
parties to any such action or proceeding (including any impleaded parties)
include both Escrow Agent and Purchaser and the Escrow Agent shall have been
advised in writing by counsel that there are one or more legal defenses
available to it which are different from or additional to those available to
Purchaser. The obligations of Purchaser under this Section 4.5 shall survive any
termination of this Agreement and the resignation or removal of Escrow Agent.
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4.6 Further Assurances. Purchaser and the Escrow Committee shall deliver
or cause to be delivered to Escrow Agent such further documents and instruments
and shall do and cause to be done such further acts as Escrow Agent shall
reasonably request (it being understood that Escrow Agent shall have no
obligation to make any such request) to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance herewith or to
assure itself that it is protected in acting hereunder.
4.7 Reports to Parties. The Escrow Agent shall, at least once during each
twelve-month period of the Escrow, deliver to the Depositary a report showing
the value (in dollars) of the Escrowed Funds and the status of the Escrowed
Funds. The Escrow Agent will request the Depositary to distribute to each
Shareholder a report showing the above plus the value (in dollars) of such
Shareholder's contingent rights in the Escrow.
SECTION 5. DISPUTES.
Any dispute that may arise under this Escrow Agreement with respect to (a)
any Notice by Purchaser or Escrow Committee; (b) the delivery, ownership, or
right to possession of the Escrowed Funds or any portion thereof; (c) the
instructions given to the Escrow Agent; and (d) any other questions arising
under this Agreement, shall be settled by (i) mutual agreement of the parties to
such dispute (evidenced by appropriate instructions in writing to the Escrow
Agent jointly by the Purchaser and the Escrow Committee, upon which the Escrow
Agent may rely) or (ii) by a binding and final arbitration in accordance with
the rules and procedures of the American Arbitration Association, whose
determination shall be final and conclusive. The Purchaser shall cooperate in
the voluntary exchange of information to expedite any such arbitration,
including without limitation, providing access to the Surviving Corporation's
tax and financial information as required to verify occupancy tax matters. The
Arbitration shall be conducted in New York City and shall be submitted to a
panel of three arbitrators who shall be recognized as experts in the New York
City Commercial Real Estate Market and issues related thereto, one of which
shall be selected by Purchaser, one of which shall be selected by the Escrow
Committee and the third of which shall be selected by the first two. The Escrow
Agent shall be under no duty to institute or defend any such proceedings and
none of the costs and expenses of any such proceedings shall be borne by the
Escrow Agent. Prior to the settlement of any dispute as provided in this Section
5, the Escrow Agent is authorized and directed to retain in its possession,
without liability to anyone (but subject to Section 4.4 hereof), the portion of
the Escrowed Funds that is the subject of or involved in the dispute. The Escrow
Agent shall be entitled to rely on a copy of the arbitration award with respect
to any such dispute delivered to it and certified as true and correct by the
prevailing party. If the Purchaser is the prevailing party in any such dispute,
it shall be entitled to recover as an addition to the Escrowed Funds
distributable pursuant to the final resolution of the Contingency in dispute,
Escrowed Funds equal to all reasonable costs and expenses including legal fees,
incurred by Purchaser in connection with the dispute. If the Shareholders are
the prevailing party in any such dispute, they shall be entitled to recover from
the Purchaser, all reasonable costs and expenses, including legal fees and
Escrow Agent fees and expenses incurred by the Shareholders in connection with
the dispute.
SECTION 6. ALLOCATION OF INTEREST.
Any interest earned on the Escrowed Funds during the Escrow Period, but not
distributed to either the Shareholders or the Purchaser at the end of any
taxable period will be deemed interest income of the Escrow pursuant to Section
468B of the Internal Revenue Code of 1986, as amended and will not be treated as
interest income to the Shareholders or Purchaser prior to distribution.
SECTION 7. MISCELLANEOUS.
7.1. No Waiver. No failure to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, provided
that the exercise of the remedies hereunder are exclusive of any other remedies
provided by law or contract.
7.2. Governing Law; Amendments. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Tennessee,
without giving effect to principles of conflict or laws. This
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Agreement may not be changed orally or modified, amended or supplemented without
an express written agreement executed by Escrow Agent and the other parties.
7.3. Assignment. This Agreement, and the terms, covenants and conditions
hereof, shall be binding upon and inure to the benefit of each party's
respective successors and legal representatives. Neither Purchaser nor the
Escrow Committee may assign any right or delegate any obligation under this
Agreement without the
prior written consent of Escrow Committee or Purchaser as the case may be and
any such attempted assignment or delegation will be null and void. A Shareholder
may not transfer its contingent rights with respect to the Escrow except by
will, intestate succession, or operation of law.
7.4. Headings. Section headings used herein are for convenience only and
are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
7.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument.
7.6. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given: (a) if delivered
personally or sent by facsimile, on the date received, (b) if delivered by
overnight courier, on the day after mailing, and (c) if mailed, five (5) days
after mailing with postage prepaid. Any such notice shall be sent as follows:
if to the Purchaser:
Central Parking Corporation
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Attention: Chairman
(with copies to)
▇▇▇▇ Manner, Esq.
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1800 First American Center
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if to the Escrow Committee:
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c/o ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC
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c/o ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(with copies to)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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and
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
One Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Escrow Agent:
First American National Bank
First American Center, 4th Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or to such other addresses as may be designated in writing by the party to
receive such notice. The Depositary can be notified at SunTrust Bank, Atlanta,
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇.
7.7. Entire Agreement, etc. This Agreement constitutes the entire
agreement, and supersedes all other prior agreements, understandings,
representations and warranties both written and oral, among the parties, with
respect to the subject matter hereof, and, except as otherwise expressly
provided herein, are not intended to confer upon any other person any rights or
remedies hereunder.
7.8. Parties in Interest. This Agreement shall be binding upon and inure
to the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person, other than the
Shareholders, any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow
Agreement as of the date first above written.
PURCHASER
By:
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Title:
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COMPANY
By:
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Title:
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ESCROW COMMITTEE
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ESCROW AGENT
By:
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Title:
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EXHIBIT 1.2
(a) A Conforming Lease shall include at least the following terms:
1. provide for an annual rental rate of no less than $900,000.00
2. have a non-cancelable term of at least fifteen (15) years
3. contain triple net lease provisions
4. provide for at least a two percent annual rental escalation
5. grant no more than one year free rent and
6. grant no more than a $750,000 build out allowance
(b) A Conforming Sale shall include at least the following terms:
1. a sale price of no less than $9,000,000.00 before deduction for or
the payment of any broker fees payable in cash at closing.
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