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EXHIBIT 10.118
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as
of the 30th day of June, 1997, by and among Concord General Corporation, a
California corporation ("Concord"), JBW & Co., Inc., a California corporation
("JBW"), Classic Fire & Marine Insurance Company, an Indiana insurance
corporation ("Classic") (Concord, JBW and Classic sometimes hereinafter are
referred to collectively as the "JBW Parties"), Alpine Insurance Company, an
Illinois insurance corporation ("Alpine"), TCO Holdings, Inc., a Delaware
corporation ("TCO") and Xxxxxx Xxxxxx & Xxxxx ("Escrow Agent").
RECITALS
WHEREAS, the JBW Parties, Alpine and TCO have entered into that
certain JBW Restructuring Agreement (the "JBW Agreement"), dated June 30, 1997,
pursuant to which Alpine will transfer to the JBW Parties that certain Secured
Promissory Note dated December 31, 1995 (the "JBW Note"), currently held by
Alpine, in exchange for an assignment by Concord of its rights under that
certain promissory note dated October 19, 1994 made by Par Mee Development
Corporation (the "Par Mee Note");
WHEREAS, pursuant to the terms of the JBW Agreement, the parties are
required to deposit in escrow certain payments made pursuant to the Par Mee
Note (the "Escrowed Funds"), which Escrowed Funds shall remain in escrow for
the periods described in Sections 3, 4 and 7 of the JBW Agreement; and
WHEREAS, the JBW Parties, Alpine and TCO wish to retain the services
of Escrow Agent in connection with the escrow, and Escrow Agent is willing to
accept such engagement, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants of the
parties set forth herein and in the JBW Agreement, the parties hereto agree as
follows:
1. Definition of Terms. Terms not otherwise defined herein shall have the
meaning ascribed to such terms in the JBW Agreement.
2. Purpose of Agreement. The JBW Parties, Alpine and TCO represent that the
JBW Agreement has been executed, and covenant that the Escrowed Funds have been
or will be deposited with the Escrow Agent pursuant to Sections 3 and 7 of the
JBW Agreement.
3. Appointment and Acceptance of Escrow Agent. The JBW Parties, Alpine and
TCO hereby nominate and appoint the law firm of Xxxxxx Xxxxxx & Zavis ("KMZ")
as Escrow Agent to hold and disburse any Escrowed Funds delivered to it
hereunder. KMZ hereby accepts such appointment upon the terms and conditions
hereinafter set forth.
4. Deposit of Escrowed Funds. Throughout the term of this Agreement, any
payments received by any party pursuant to the Par Mee Note shall be delivered
to the Escrow Agent for deposit in escrow pursuant to the provisions of this
Agreement. Such delivery shall be made in a form and to an account
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specified by the Escrow Agent. The Escrow Agent shall accept delivery of the
Escrowed Funds and hold the Escrowed Funds until such funds are distributed in
accordance with the terms hereof.
5. Purchase Agreement Not Limited by this Agreement. This Agreement and the
deposit of the Escrowed Funds with the Escrow Agent are without prejudice to,
and are not in limitation of, any rights or obligations of the JBW Parties,
Alpine or TCO in respect of any of the covenants, representations or warranties
of such parties contained in the JBW Agreement.
6. Maintenance of Escrowed Funds. Escrow Agent shall deposit the Escrowed
Funds in an interest-bearing account with a federally insured institution. The
interest earned on such Escrowed Funds shall be distributed at the same time as
the Escrowed Funds are delivered pursuant to Section 7 or 8 hereof.
7. Release of Escrowed Funds. The Escrowed Funds (including any interest
earned thereon) shall be released to Alpine, upon written notice by Alpine to
Escrow Agent, on the closing of the transactions described in the JBW
Agreement. If notice of such closing has not been received by Escrow Agent by
November 15, 1997 (or such later date of which Alpine and Concord jointly
notify Escrow Agent in writing), Escrow Agent shall release the Escrowed Funds
(including any interest earned thereon) to Concord on the following business
day. Such Escrowed Funds and any interest thereon shall be transferred by
Escrow Agent to an account designated in writing by the party entitled thereto.
8. No Encumbrance. Except as expressly provided herein or in the JBW
Agreement, no Escrowed Funds, or any beneficial interest therein, may be
pledged, assigned or transferred (including by operation of law) by any party
to this Agreement or may be taken or reached by any legal or equitable process
in satisfaction of any debt or other liability of any party to this Agreement
prior to the release or return of the Escrowed Funds by the Escrow Agent
pursuant to this Agreement.
9. Termination of Escrow. This Agreement and the duties of Escrow Agent
hereunder shall terminate upon the release or return of all property held by
Escrow Agent under and pursuant to this Agreement.
10. Escrow Agent's Liability. Escrow Agent undertakes to perform only such
duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against Escrow
Agent. Escrow Agent may act upon any instrument, certificate, opinion or other
writing believed by it in good faith and without gross negligence to be
genuine, and shall not be liable in connection with the performance by it of
its duties pursuant to the provisions of this Agreement, except for its own bad
faith, gross negligence or wilful misconduct.
11. Escrow Agent's Fees and Expenses. All fees, costs and expenses associated
with the performance by Escrow Agent of its duties hereunder shall be payable
solely by Alpine.
12. Resignation of Escrow Agent. The Escrow Agent may resign at any time upon
thirty (30) days' prior written notice to the other parties to this Agreement.
In the event of Escrow Agent's resignation, Alpine shall name a successor
escrow agent which is acceptable to the other parties to this Agreement, such
approval of a successor escrow agent not to be unreasonably withheld. Such
successor escrow agent shall accept its appointment as such by executing and
delivering to the parties to this Agreement an appropriate instrument of
acceptance, and thereupon the resignation of Escrow Agent shall become
effective and such successor escrow agent, without any further act or
instrument, shall become the Escrow Agent and be vested with all of the rights
and obligations of its predecessor, as if originally
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named as Escrow Agent herein. The predecessor Escrow Agent agrees that on
request of the other parties to this Agreement or the successor escrow agent,
it shall execute and deliver an instrument to pay over to the successor escrow
agent the Escrowed Funds and all interest thereon which are held pursuant to
this Agreement.
13. Successors. The obligations imposed and the rights conferred by this
Agreement shall be binding upon and inure to the benefit of the respective
heirs (including estates), successors and assigns of the parties hereto.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to principles
of conflicts of law.
15. Entire Agreement. This Agreement and the documents referenced herein
contain the entire agreement between the parties hereto with respect to the
transactions contemplated herein. Notwithstanding the foregoing, this
Agreement shall not supersede, amend or in any way affect the JBW Agreement or
any other document relating to the transaction governed thereunder.
16. Amendment. Except as otherwise set forth herein, this Agreement cannot be
terminated, altered or amended except pursuant to an instrument in writing
signed by all of the parties to this Agreement.
17. Enforceability. If any provision of the Agreement shall be held invalid
or unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other provision of this Agreement, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision were amended to the
minimum extent necessary to render it valid and fully enforceable under
applicable law.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
19. Notices. Any directions, notices or other communication required to be
sent or given hereunder by any of the parties shall in every case be in writing
and shall be deemed properly served if (a) delivered personally, (b) sent by
registered or certified mail, in all such cases with first class postage
prepaid, return receipt requested, (c) delivered by a recognized overnight
courier service, or (d) sent by facsimile transmission to the parties at the
addresses or facsimile numbers set forth in the JBW Agreement, or at such other
addresses as are furnished in writing in the manner described therein, and if
to the Escrow Agent addressed to: Xxxxxx Xxxxxx & Xxxxx, 000 X. Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxx Xxxxxxxx. Date of
service of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one day after the date of deposit with the overnight
courier if sent by overnight courier or (z) upon receipt of confirmation of
receipt of transmission by facsimile.
20. Section Headings. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
CONCORD GENERAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title:
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JBW & CO., INC.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: President
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TCO HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Secretary/General Counsel
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ALPINE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Secretary/General Counsel
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XXXXXX XXXXXX & XXXXX
By: /s/ Xxxx Xxxxxx, Partner
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Name: Xxxx Xxxxxx
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