TRI-PARTY ESCROW AGREEMENT (Knapp)
TRI-PARTY
ESCROW AGREEMENT (Xxxxx)
This
is
an Agreement among Near North National Title, LLC (Escrow Depository), having
an
office and place of business in Chicago, Illinois; AMB Financial Corporation,
incorporated in Indiana (Corporation or Pledgor), and First Regional Bank,
custodian FBO Xxxxxxx X. Xxxxx, Xx. XXX (Lender or Pledgee).
Receipt
of Shares Into Escrow
1.01.
The
Escrow Depository agrees to receive: (i) a stock certificate representing
562,063 Shares of American Savings FSB common stock (Shares) that are owned
by
Corporation and which have been pledged as collateral to Lender to secure a
loan
made by Lender to Corporation, as is evidenced by a Term Note, a copy of which
is attached hereto as Exhibit 1, and a Collateral Pledge Agreement, a copy
of
which is attached hereto as Exhibit 2; and (ii) the executed stock power, a
copy
of which is attached hereto as Exhibit 3 (“Escrowed Documents”). The Escrow
Depository agrees to hold and keep the Escrowed Documents in escrow in
accordance with the terms and conditions of this Agreement and for the uses
and
purposes set forth in this Agreement and the Collateral Pledge Agreement
attached hereto as Exhibit 2.
Transfers
During Escrow
2.01.
During the time that the Escrowed Documents described in Paragraph 1.01 remain
in escrow, the Corporation, the Lender/Pledgee, and the Escrow Depository agree
that no sale or transfer or other disposition of the Escrowed Documents or
any
interest in the Escrowed Documents shall be consummated, nor shall any
consideration be received for the Escrowed Documents
Duration
of Agreement
3.01.
Subject to the occurrence of a Default as provided for in Paragraph 3.07, the
Escrow Depository is authorized and instructed to hold the certificate
representing the Escrowed Documents described in Paragraph 1.01 in escrow until
the Escrow Depository has been furnished a written notice from Lender/Pledgee
indicating that Corporation has fully paid the Term Note secured by the pledge
of said Escrowed Documents as collateral, at which time said Escrowed Documents
shall be immediately released and returned to Corporation/Pledgor.
3.02.
Voting
rights. During
the term of this pledge, and so long as Pledgor is not in default in the
performance of any term of this agreement or in the payment of the principal
or
interest of the Term Note according to its terms, Pledgor may vote the pledged
shares on all corporate questions, and Pledgee shall, if necessary, execute
due
and timely proxies in favor of Pledgor to this end. As long as Pledgor shall
not
be in default on the payment of principal and interest on the Term Note, neither
Pledgee nor Custodian shall be entitled to exercise any control over American
Savings, FSB by reason of the subject loan, pledge and related matters. If
the
Pledgor defaults on a Term Note, the Pledgee/Lender shall be entitled to vote
the pledged shares on all corporate questions so long as Company shall remain
in
default, but only to the extent permitted by applicable law and regulations,
including Part 574 of the OTS Regulations, with Pledgor retaining the remaining
voting rights.
3.03.
Representations.
Pledgor
warrants and represents that, except as required by applicable law or
regulations including Part 574 of the OTS Regulations, there are no restrictions
upon the transfer of any pledged shares, other than may appear on the face
of
the certificate, and that Pledgor is the sole shareholder of American Savings,
FSB and has the right to transfer such shares free of any
encumbrances.
3.04.
Adjustments.
If,
during the term of this pledge, any share dividend, reclassification,
readjustment, or other change is declared or made in the capital structure
of
the company not incident to American Savings, FSB’s normal operations as a
depository institution, all new, substituted, and additional shares, or other
securities, issued by reason of any such change shall be delivered to and held
by Escrow Depository under the terms of this agreement in the same manner as
the
shares originally pledged hereunder. Notwithstanding any other statement herein
to the contrary, as long as Pledgor is not in default of the Term Note, (i)
American Savings, FSB shall be entitled to declare and pay such cash dividends
as it determines in its discretion, (ii) Pledgor shall be entitled to receive
such cash dividends immediately on payments, and (iii) Pledgee and Escrow
Depository shall have no rights with respect to such dividends.
3.05.
Warrants
and rights. If,
during the term of this pledge, subscription warrants or any other rights or
options are issued in connection with the pledged shares, Pledgee shall
immediately assign the pledged warrants, rights, or options to Pledgor. If
exercised by Pledgor, all new shares or other securities so acquired by Pledgor
shall be immediately assigned to Pledgee and delivered to Escrow Depository
to
be held under the terms of this agreement in the same manner as the shares
originally pledged hereunder.
3.06.
Payment
of loan. Upon
full
payment of the principal and interest of the Term Note secured by the collateral
held in escrow pursuant hereto, the Lender/Pledgee shall immediately (within
two
(2) business days) provide written notice to Escrow Depository that said Term
Note has been fully repaid, and shall authorize and direct the Escrow Depository
to transfer and return to Pledgor all the pledged shares and all rights received
by Pledgee, if any, as a result of the original collateral pledge.
3.07.
Default.
The
occurrence of any events of default under the terms of the Term Note shall
constitute an Event of Default hereunder. Upon Pledgee’s written notification to
Escrow Depository that the Corporation has defaulted under the Term Note, the
Escrow Depository shall tender and deliver to the Pledgee the Escrowed
Documents.
Escrow
Fee
4.01.
The
fee of the Escrow Depository for its services under this Agreement shall be
payable by the Corporation in monthly amounts of Seventy-Five Dollars ($75.00)
until all of the Escrow Depository's duties under this Agreement have been
satisfied, and, if the Escrow Depository's duties are satisfied at any time
other than the end of a month, payable ratably for the portion of the last
month
the Escrow Depository acts under this Agreement.
Liability
of Depository
5.01.
The
Escrow Depository shall not be liable for any action taken or omitted under
this
Agreement, except in the case of its willful misconduct or gross negligence.
The
Escrow Depository shall be entitled to consult with counsel of the Escrow
Depository's own choosing.
If
conflicting demands are made upon Escrowee or legal action in connection with
this Escrow, Escrowee may withhold and stop all further proceedings without
liability therefore, or Escrowee may file suit for interpleader or declaratory
relief. If Escrowee is required to respond to any legal summons or proceedings,
or if any action of interpleader or declaratory relief is brought by Escrowee,
or if conflicting demands or notice by parties to this Escrow or by any other
party or parties are served upon Escrowee, the undersigned jointly and severally
agree to pay escrow fees and all costs, expenses, and attorney’s fees expended
or incurred by Escrowee as a result of any of the above described events. The
undersigned further agree to save Escrowee harmless as escrow holder under
this
Escrow from all losses and expenses, including reasonable attorney’s fees and
court costs incurred by reason of any claim, demand, or action with respect
to
this Escrow.
Amendments
6.01.
If
applicable Federal banking law or regulations are changed, the Indiana
Securities Law and the Rules of the Securities Commissioner promulgated under
that law are amended, or if a new securities law is adopted that changes the
provisions pertaining to the escrow of securities, then this Agreement may
be
amended at the request of the Corporation and the Lender/Pledgee to provide
for
changes in this Agreement consistent with the amended or new law or
regulation.
Execution
7.01.
The
effectiveness of this Agreement is conditioned on its execution by all of the
parties to the Agreement. The Agreement may be signed in counterparts and on
different dates by the various parties to the Agreement with the same force
and
effect as though the parties had all signed one instrument on the same
date.
Miscellaneous
8.01.
Public
Disclosure.
The
parties hereto agree, subject to applicable law, to make no public disclosure
regarding the loan, pledge and related matters, without the other parties’
consent, which consent shall not be unreasonably withheld.
8.02. Transferability.
This
Tri-Party Escrow Agreement and the rights hereunder are not assignable to a
third party.
8.03. Binding
Agreement.
This
Tri-Party Escrow Agreement and all provisions hereof shall be binding upon
and
inure to the benefit of the parties’ respective successors, heirs and legal
representatives and all other persons or entities claiming under or through
each
of them.
8.04. Modification
or Amendment.
Neither
this Tri-Party Escrow Agreement nor any provision hereof may be amended,
modified, waived, discharged or terminated orally nor may any of the Escrowed
Documents be released, except by a written instrument, duly signed by or on
behalf of the Pledgee hereunder.
8.05. Paragraph
Headings.
The
paragraph headings used herein are for convenience of reference only and shall
not define or limit the provisions of this Tri-Party Escrow
Agreement.
8.06. Plural/Singular.
As used
in this Tri-Party Escrow Agreement, the singular shall include the plural,
and
the plural shall include the singular, the masculine, feminine and neuter
pronouns shall be fully interchangeable, where the context
requires.
In
witness whereof, we have subscribed our names on the respective dates set forth
next to our signatures.
NEAR
NORTH NATIONAL TITLE LLC
(Escrow
Depository)
By
_____________________________[signature] Date:_____________
Printed
Name:____________________
Title:___________________________
000
X.
XxXxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx X’Xxxxxxx
(000)000-0000
(312)419-0569fax
xxxxx.xxxxxxxx@xxxxx.xxx
AMB
Financial Corporation (Corporation/Pledgor)
By
_____________________________[signature] Date:_____________
Printed
Name:____________________
Title:___________________________
0000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
(000)000-0000
First
Regional Bank, custodian FBO Xxxxxxx X. Xxxxx, Xx. XXX
(Lender/Pledgee
)
________________________________[signature] Date:_____________
Address:
X.X. Xxx 00000, Xxx Xxxxx, XX 00000-0000
