CASH ESCROW AGREEMENT
CASH ESCROW AGREEMENT, dated as of April 2, 1997 (this "AGREEMENT"),
by and among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ having an address at c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 75081("SELLER"), FAMILY GOLF CENTERS, INC.,
a Delaware corporation having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("PURCHASER"), and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, incorporated under the laws of the United States of America with
executive offices at ▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (together with its
successors, the "ESCROW AGENT").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution hereof, Seller and
Purchaser are consummating the transactions contemplated by the Stock Purchase
Agreement, dated as of the date hereof (the "PURCHASE AGREEMENT"), between
Seller and Purchaser;
WHEREAS, pursuant to the Purchase Agreement, Seller is required to
deposit $50,000.00 into an escrow account to be maintained by Escrow Agent to
be held against any claims for indemnity under Article 10 of the Purchase
Agreement; and
WHEREAS, this is the Escrow Agreement referred to in the Purchase
Agreement. Capitalized terms used in this Escrow Agreement and not otherwise
defined herein shall have the respective meanings given to them in the
Purchase Agreement.
NOW, THEREFORE, it is agreed as follows:
1. ESCROW.
1.01 APPOINTMENT OF ESCROW AGENT.
(a) Seller and Purchaser hereby appoint Escrow Agent, and Escrow
Agent hereby agrees to serve, as Escrow Agent in accordance with, and pursuant
to, this Agreement.
(b) Escrow Agent shall establish at Chase Manhattan Bank a separate
Federally insured, interest bearing account (the "Escrow Account") for any
amounts received by it hereunder.
(c) All monies, including interest thereon, held by Escrow Agent in
the Escrow Account pursuant to the terms hereof shall be hereinafter referred
to as the "ESCROWED FUNDS".
(d) Seller shall be responsible for the payment of any income taxes
payable in connection with any interest earned in the Escrow Account except
with respect to any interest on Escrowed Funds paid to or for the benefit of
Purchaser.
1.02 OPERATION OF ESCROW ACCOUNT. The parties hereto agree that the Escrow
Account shall operate as follows:
(a) At the Closing, Seller shall deliver or cause to be delivered to
Escrow Agent $50,000.00. Escrow Agent shall hold such amount as Escrowed Funds
in the Escrow Account.
(b) At any time prior to the six month anniversary of the Closing Date
(the "Escrow Period"), Purchaser shall be entitled to give a notice to Escrow
Agent, signed by Purchaser's President or any Vice President (with a copy to
Seller), to the effect
-2-
that there has been an event entitling Purchaser to indemnification from Seller
pursuant to Article 10 of the Purchase Agreement, which notice shall specify
the amounts owed by Seller pursuant to the Purchase Agreement, the calculation
of such amounts and the basis therefore.
(c) Twenty (20) days after Escrow Agent has received a notice pursuant
to Section 1.02(b) hereof (or, if not a business day, on the next business day
following such twentieth day) Escrow Agent shall deliver to Purchaser such
portion of the Escrowed Funds as is specified in such notice unless Seller
shall have notified Escrow Agent (with a copy to Purchaser) in writing before
such date that Seller disagrees with Purchaser's determination that Purchaser
is entitled to indemnification with respect to the Purchase Agreement, which
notice shall be set forth in reasonable detail the basis for such disagreement.
(d) Should any dispute arise with respect to the delivery, ownership,
or right of possession of any of the Escrowed Funds during the Escrow Period,
Escrow Agent, as more fully set forth in Section 3.11 hereof, is authorized and
directed to retain in its possession without liability to anyone all or any
part of the Escrowed Funds until such dispute shall have been settled either by
mutual agreement by the parties concerned or by a final order, decree, or
judgment of a court of competent jurisdiction in the United States of America
and time for appeal has expired and no appeal has been perfected, but Escrow
Agent shall be under no duty whatsoever to institute or defend any such
proceedings, and may, in its discretion, deposit such Escrowed Funds with a
court of
-3-
competent jurisdiction in the United States of America and be relieved of any
and all liability to any of the parties hereto upon such deposit.
1.03 DISTRIBUTION OF ESCROWED FUNDS. Unless a notice under Section 1.02(b)
hereof has been given and Escrowed Funds in satisfaction of such notice have
not been delivered to Purchaser, either because the 20-day period has not yet
run out or because a dispute relating to the claim made by such notice is then
pending, the Escrowed Funds or such portion of them as at the time remains in
escrow and is not in dispute, together with all dividends and distributions
received by Escrow Agent with respect thereto, shall be returned to Seller on
the first anniversary of the Closing Date.
1.04 TERMINATION OF ESCROW ACCOUNT. This Agreement and the Escrow Account
will terminate at 5:00 P.M., New York City local time, on the date on which all
of the Escrowed Funds contained in the Escrow Account shall be distributed as
set forth above.
2. NOTICES.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be (a) delivered by hand, (b)
facsimile, or (c) over-night delivery with proper postage prepaid, and
addressed as follows:
If to Purchaser to:
Family Golf Centers, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Family Golf Centers, Inc.
-4-
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to Escrow Agent, to:
▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in the above-referenced manner. Except as
otherwise provided herein, no notice or communication shall be effective until
received.
-5-
3. CONCERNING ESCROW AGENT.
To induce Escrow Agent to act hereunder, it is further agreed by each of
Seller and Purchaser that:
3.01 Escrow Agent shall not be under any duty to give the Escrowed Funds
held by it hereunder any greater degree of care than it gives its own similar
property and shall not be required to invest any funds held hereunder except as
directed in this Agreement.
3.02 This Agreement expressly sets forth all the duties of Escrow Agent
with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against Escrow Agent. Escrow
Agent shall not be bound by the provisions of any agreement among the other
parties hereto except this Agreement.
3.03 Escrow Agent shall not be liable, except for its own gross negligence
or willful misconduct, and, except with respect to claims based upon such gross
negligence or willful misconduct that are successfully asserted against Escrow
Agent, the other parties hereto shall jointly and severally indemnify and hold
harmless Escrow Agent (and any successor Escrow Agent) from and against any and
all losses, liabilities, claims, actions, damages, and expenses, including
reasonable attorneys' fees and disbursements, arising out of, and in connection
with, this Agreement. Without limiting the foregoing, Escrow Agent shall in no
event be liable in connection with its investment or reinvestment of any cash
held by it hereunder in good faith, in accordance with the terms hereof,
including, without limitation, any liability for any delays (not resulting from
gross negligence or willful misconduct) in the investment or reinvestment of
the Escrowed
-6-
Funds; or any loss of interest incident to any such delays. This Section 3.03
shall survive notwithstanding any termination of this Agreement or the
resignation of Escrow Agent.
3.04 Escrow Agent shall be entitled to rely upon any order, judgment,
certification, demand, notice, instrument, or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. Escrow Agent may act in reliance upon any instrument or
signature believed by it in good faith to be genuine and may assume, if in good
faith, that any person purporting to give notice or receipt or advice or make
any statement or execute any document in connection with the provisions hereof
has been duly authorized to do so.
3.05 Escrow Agent may act pursuant to the advice of counsel with respect
to any matter relating to this Escrow Agreement and shall not be liable for any
action taken or omitted in good faith and in accordance with such advice.
3.06 Escrow Agent does not have any interest in the Escrowed Funds
deposited hereunder, but is serving as escrow holder only. Any payments of
income from the Escrow Account shall be subject to withholding regulations then
in force with respect to United States taxes. This Section 3.06 shall survive
notwithstanding any termination of this Agreement or the resignation of Escrow
Agent.
3.07 Escrow Agent makes no representation as to the validity, value,
genuineness, or the collectibility of any security or other documents or
instrument held by, or delivered to, it.
-7-
3.08 Escrow Agent shall not be called upon to advise any party as to the
wisdom in selling or retaining or taking or refraining from any action with
respect to any securities or other property deposited hereunder.
3.09 Escrow Agent (and any successor escrow agent) at any time may be
discharged from its duties and obligations hereunder by the delivery to it of
notice of termination signed by Purchaser and Seller or at any time may resign
by giving written notice to such effect to Purchaser and Seller. Upon any such
termination or resignation, Escrow Agent shall deliver the Escrowed Funds to
any successor escrow agent jointly designated by the other parties hereto in
writing, or to any court of competent jurisdiction if no such successor escrow
agent is agreed upon, whereupon Escrow Agent shall be discharged of and from
any and all further obligations arising in connection with this Escrow
Agreement. The termination or resignation of Escrow Agent shall take effect on
the earlier of (a) the appointment of a successor (including a court of
competent jurisdiction) or (b) the day that is thirty (30) days after the date
of delivery: (i) to Escrow Agent of the other parties' notice of termination or
(ii) to the other parties hereto of Escrow Agent's written notice of
resignation. If at that time Escrow Agent has not received a designation of a
successor escrow agent, Escrow Agent's sole responsibility after that time
shall be to keep the Escrowed Funds safe until receipt of a designation of
successor escrow agent or a joint written disposition instruction by the other
parties hereto or an enforceable order of a court of competent jurisdiction.
-8-
3.10 Escrow Agent shall have no responsibility for the contents of any
writing of any third party contemplated herein as a means to resolve disputes
and may rely without any liability upon the contents thereof.
3.11 In the event of any disagreement among or between the other parties
hereto resulting in adverse claims or demands being made in connection with the
Escrowed Funds, or in the event that Escrow Agent in good faith is in doubt as
to what action it should take hereunder, Escrow Agent shall be entitled to
retain the Escrowed Funds until Escrow Agent shall have received (a) a final
and non-appealable order of a court of competent jurisdiction in the United
States of America directing delivery of the Escrowed Funds or (b) a written
agreement executed by the other parties hereto directing delivery of the
Escrowed Funds, in which event Escrow Agent shall disburse the Escrowed Funds
in accordance with such order or agreement. Any court order referred to in (a)
above shall be accompanied by a legal opinion by counsel for the presenting
party satisfactory to Escrow Agent to the effect that said court order is final
and non-appealable. Escrow Agent shall act on such court order and legal
opinions without further question.
3.12 As consideration for its agreement to act as Escrow Agent as herein
described, Purchaser shall pay the Escrow Agent's fees determined in accordance
with the terms set forth on Exhibit A hereto (and made a part of this Escrow
Agreement as if herein set forth). In addition, Purchaser and Seller agree to
reimburse Escrow Agent (on a 50/50 basis) for all reasonable expenses,
disbursements, and advances incurred or
-9-
made by Escrow Agent in performance of its duties hereunder (including
reasonable fees, expenses, and disbursements of its counsel).
4. MISCELLANEOUS.
4.01 BINDING EFFECT. This Escrow Agreement shall be binding upon, and
inure solely to the benefit of, the parties hereto and their respective
successors and assigns, heirs, administrators, and representatives, and shall
not be enforceable by, or inure to the benefit of, any other third party,
except as provided in Section 3.09 hereof with respect to the termination of,
or resignation by, Escrow Agent. No party may assign any of its rights or
obligations under this Agreement without the written consent of the other
parties.
4.02 CHOICE OF LAW. This Agreement shall be construed in accordance with,
and governed by, the internal law of the State of Texas (without reference to
its rules as to conflicts of law).
4.03 MODIFICATION. This Agreement may only be modified by a writing signed
by all of the parties hereto.
4.04 HEADINGS. The section headings herein are for convenience only and
shall not affect the construction thereof. Unless otherwise indicated,
references to Sections and Articles are to Sections and Articles, respectively,
contained herein.
4.05 COUNTERPARTS. This Agreement may be executed in one or more
counterparts but all such separate counterparts shall constitute but one and
the same instrument; provided that, although executed in counterparts, the
executed signature pages of each such counterpart may be affixed to a single
copy of this Agreement which shall constitute an original.
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the day and year first above written.
FAMILY GOLF CENTERS, INC.
By: __________________________________
Name:
Title:
_______________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: __________________________________
Name:
Title:
-11-
