Escrow Agreement by and among BPO Management Services, Inc., Donald C. Helt and Bridget B. Helt, as trustees of the Donald C. and Bridget B. Helt Revocable Trust dated April 24, 2003 and Dated as of June 29, 2007
Exhibit
10.43
by
and among
BPO
Management Services, Inc.,
▇▇▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as trustees of the ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ Revocable Trust dated April 24, 2003
and
U.S.
Bank National Association
Dated
as of June 29, 2007
THIS
ESCROW AGREEMENT (this “Agreement”)
is dated as of the 29th day of June, 2007, by and among BPO Management
Services, Inc., a Delaware corporation (the “Purchaser”),
▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as trustees of the ▇▇▇▇▇▇ ▇. and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable Trust dated April 24, 2003 (collectively, the
“Sellers”)
and U.S. Bank National Association, a national banking association (the
“Escrow
Agent”),
as escrow agent. The Purchaser and the Sellers are sometimes referred to
herein,
collectively, as the “Interested
Parties.”
Capitalized terms used but not defined herein shall have the meanings set
forth
in the Purchase Agreement (as defined below).
WHEREAS,
the Purchaser is purchasing from the Sellers the shares of common stock of
Human
Resource Micro-Systems, Inc., a California corporation (the “Company”),
pursuant to a Stock Purchase Agreement dated as of the date hereof, by and
among
the Company, the Sellers and the Purchaser (the “Purchase
Agreement”),
pursuant to which a portion of the Purchase Price in the amount of $500,000
has
been withheld and is to be deposited in escrow as the sole source of payment
for
the Deferred Payment pursuant to Section 2(b) of the Purchase Agreement;
and
WHEREAS,
the Sellers and Purchaser wish to engage the Escrow Agent to act, and the
Escrow
Agent is willing to act, as escrow agent hereunder and, in that capacity,
to
hold, administer and distribute the amounts deposited in escrow hereunder
in
accordance with, and subject to, the terms of this Agreement;
NOW
THEREFORE, for valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
Section
1. Deposit
of Escrow Funds.
Upon
the signing of the Purchase Agreement, the Purchaser shall deposit with the
Escrow Agent in immediately available funds the amount of $500,000 (the
“Escrow
Funds”)
(the Escrow Funds together with any investment income or proceeds received
by
the Escrow Agent from the investment thereof from time to time pursuant to
Section 3 below, collectively, the “Escrow
Property”),
and the Escrow Agent agrees to hold the Escrow Property in an account
established with the Escrow Agent (the “Escrow
Account”),
and to administer the Escrow Property in accordance with the terms of this
Agreement. On the date the Escrow Agent receives the Escrow Funds, the Escrow
Agent will provide a written confirmation of its receipt to the Purchaser
and
the Sellers.
Section
2. Claims
and Payment; Release from Escrow.
(a) At
any time prior to 5:00 p.m. (Pacific Time) on the Business Day preceding
the
first anniversary of the date of this Agreement (such anniversary date being
the
“Release
Date”),
the Purchaser may deliver to the Escrow Agent and the Sellers written notice,
in
the form attached hereto as Exhibit A,
of a claim for the distribution of some or all of the Escrow Funds (a
“Claim”)
in satisfaction of any claims of offset Purchaser may have under Section
8(h) of
the Purchase Agreement, which states:
(i) the
facts giving rise to an alleged basis for the Claim; and
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(ii) the
estimated dollar amount of the loss asserted against the Escrow Funds by
reason
of the Claim (the “Claimed
Amount”).
The
Escrow Agent shall pay to the Purchaser the amount of the Claimed Amount
from
the Escrow Funds on the date ten (10) Business Days (as defined below)
after it receives such written Claim; provided,
however,
that the Escrow Agent shall not make such payment, if the Escrow Agent receives
from the Sellers (with a copy to Purchaser) at least one (1) Business Day
prior to such payment date a written notice stating the Sellers contest the
Claim and a detailed description of the nature of the objection (an
“Objection
Notice”).
If no such Objection Notice is received, the Sellers shall be deemed to waive
any rights to object or contest the payment of the amount of the Claimed
Amount
to Purchaser from the Escrow Fund. If the Sellers give a timely Objection
Notice
to the Escrow Agent that confirms the Claim solely to the extent of an amount
that is less than the Claimed Amount (the “Undisputed
Amount”),
then the Escrow Agent shall pay the Undisputed Amount to the Purchaser and
retain the remainder of the Claimed Amount until the Escrow Agent receives
a
Resolution Notice (as defined below). Except as expressly directed in the
foregoing sentence, with respect to any Claim regarding which the Sellers
give a
timely Objection Notice to the Escrow Agent (a “Disputed
Claim”),
the Escrow Agent shall not make any further payment from the Escrow Funds
until
receipt of (i) written instructions signed by the Sellers and the
Purchaser, or (ii) a Resolution Notice (as defined below) (either such
document being referred to as a “Final
Resolution”).
The
Interested Parties agree to use good faith, reasonable negotiations to resolve
any Disputed Claim, for a period of fifteen (15) days after the delivery
of an
Objection Notice. If the Disputed Claim is resolved, the Interested Parties
shall deliver to the Escrow Agent written instructions for payment from the
Escrow Funds, signed by the Sellers and the Purchaser. If the Disputed Claim
is
not so resolved, the Interested Parties agree to finally resolve any Disputed
Claim through binding arbitration as described in this paragraph. Within
five (5) Business Days after the conclusion of the negotiation period
described above, the Purchaser and the Sellers will then mutually select
a
single independent arbitrator to resolve the dispute as described below (the
"Independent
Arbitrator").
If
the parties cannot agree on the identity of the Independent Arbitrator within
five (5) Business Days of the date of receipt of the Objection Notice, then
the Independent Arbitrator shall be determined by an arbitrator selected
by the
Purchaser and an arbitrator selected by the Sellers. Any dispute related
to this
Section 2(a) shall be resolved by binding expedited arbitration under the
Commercial Arbitration Rules of the American Arbitration Association
("AAA")
in
effect as of the date of the request for arbitration if filed (the "Rules").
The
arbitration shall be held in San Francisco County, California or Orange County,
California. Costs related to the Independent Arbitrator shall be borne equally
between the Purchaser and the Sellers. Upon
the final resolution of any Disputed Claim through the award of an arbitrator,
as provided for below, directing delivery of the Escrow Funds, any Interested
Party entitled to receive a payment from the Escrow Funds in accordance with
such award will deliver to the Escrow Agent and the other Interested Party
a
notice in the form attached hereto as Exhibit B
(a “Resolution
Notice”).
The Escrow Agent shall make payment from the Escrow Funds in accordance with
any
Resolution Notice within two (2) Business Days of receipt thereof.
For
purposes of this Agreement, “Business
Day”
shall mean any day other than a Saturday or Sunday or a day on which national
banking institutions in the City of Los Angeles, California are authorized
or
obligated by law or executive order to be closed.
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(b) The
Escrow Funds shall be released as follows:
(i) on
the Release Date (or, if such day is not a Business Day, the next succeeding
Business Day), the Escrow Agent shall pay Sellers $500,000, less (A) any
amounts previously paid to Purchaser pursuant to Section 2(a) above, and
(B) the Claimed Amount with respect to any Disputed Claim(s) as to which
the Escrow Agent has not received that have not yet been finally resolved;
(ii) if
any Escrow Funds are withheld from the payment described in Section 2(b)(i)
above, pursuant to clause (B) thereof, then such amount shall be paid by
the
Escrow Agent within two (2) Business Days of the Escrow Agent’s receipt of a
Resolution Notice, in accordance with the instructions set forth in such
Resolution Notice; and
(iii) if,
at any time, the Escrow Agent receives written instructions signed by both
the
Sellers and the Purchaser with respect to payment of any portion of the Escrow
Funds, then the Escrow Agent shall pay such amount in the manner set forth
in
such instructions within two (2) Business Days of the Escrow Agent’s receipt
thereof.
Section
3. Investment
of Funds.
(a) The
Escrow Agent shall invest the Escrow Property in the Escrow Agent’s Insured
Money Market Account (“IMMA”)
or, if directed by Purchaser, in short term United States Treasury bills.
The
Escrow Property and all investments thereof shall be held and, if registrable,
shall be registered in the name of the Escrow Agent under “Escrow Agreement
dated June ________, 2007 by and among BPO Management Services, Inc.,
▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as trustees of the ▇▇▇▇▇▇ ▇. and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable Trust dated April 24, 2003 and U.S. Bank National
Association, as escrow agent.”
(b) All
earnings received from the investment of the Escrow Funds shall be credited
to
and belong solely to the Purchaser and released to Purchaser on the date
that
all of the Escrow Funds have been disbursed. The Escrow Agent shall have
no
liability for any investment losses, including without limitation any market
loss on any investment liquidated prior to maturity in order to make a payment
required hereunder.
(c) The
Interested Parties agree that, for tax reporting purposes, all interest and
other income earned from the investment of the Escrow Funds in any tax year
shall be reported by the Purchaser.
(d) Purchaser
agrees to provide the Escrow Agent with a certified tax identification number
by
signing and returning a Form W-9 (or Form W-8 BEN, in case of non-U.S.
persons) to the Escrow Agent upon the execution and delivery of this Agreement.
Purchaser understands that, in the event its tax identification numbers are
not
certified to the Escrow Agent, the Internal Revenue Code, as amended from
time
to time, may require withholding of a portion of any interest or other income
earned on the investment from the Escrow Funds. Purchaser agrees to instruct
the
Escrow Agent in writing with respect to the Escrow Agent’s responsibility for
withholding and other taxes, assessments or other governmental charges, and
to
instruct the Escrow Agent with respect to any certifications and governmental
reporting that may be required under any laws or regulations that may be
applicable in connection with its acting as Escrow Agent under this
Agreement.
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(e) The
Escrow Agent shall deliver prompt monthly account statements to the Sellers
and
the Purchaser with respect to the balance of the Escrow Property and all
transactions with respect thereto. The Escrow Agent shall respond promptly
to
provide information regarding the Escrow Property, upon the reasonable request
of the Sellers or the Purchaser.
Section
4. Intentionally
Omitted.
Section
5. Concerning
the Escrow Agent.
(a) Each
Interested Party acknowledges and agrees that the Escrow Agent (i) shall
not be responsible for any of the agreements referred to or described herein
(including, without limitation the Purchase Agreement), or for determining
or
compelling compliance therewith, and shall not otherwise be bound thereby,
(ii) shall be obligated only for the performance of such duties as are
expressly and specifically set forth in this Agreement on its part to be
performed, each of which is ministerial (and shall not be construed to be
fiduciary) in nature, and no implied duties or obligations of any kind shall
be
read into this Agreement against or on the part of the Escrow Agent,
(iii) shall not be obligated to take any legal or other action hereunder
which might in its judgment involve or cause it to incur any expense or
liability unless it shall have been furnished with acceptable indemnification,
(iv) may rely on and shall be protected in acting or refraining from acting
upon any written notice, instruction (including, without limitation, wire
transfer instructions, whether incorporated herein or provided in a separate
written instruction), instrument, statement, certificate, request or other
document furnished to it hereunder and believed by it in good faith to be
genuine and to have been signed or presented by the proper person, and shall
have no responsibility or duty to make inquiry as to or to determine the
genuineness, accuracy or validity thereof (or any signature appearing thereon),
or of the authority of the person signing or presenting the same, and (v)
may
consult counsel satisfactory to it, including in-house counsel, and the opinion
or advice of such counsel in any instance shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted
by it hereunder in good faith and in accordance with the opinion or advice
of
such counsel.
(b) The
Escrow Agent shall not be liable to anyone for any action taken or omitted
to be
taken by it hereunder except in the case of the Escrow Agent’s gross negligence
or willful misconduct in breach of the terms of this Agreement. In no event
shall the Escrow Agent be liable for indirect, punitive, special or
consequential damage or loss (including but not limited to lost profits)
whatsoever, even if the Escrow Agent has been informed of the likelihood
of such
loss or damage and regardless of the form of action, unless due to the Escrow
Agent’s willful misconduct or fraud.
(c) The
Escrow Agent shall have no more or less responsibility or liability on account
of any action or omission of any book-entry depository, securities intermediary
or other subescrow agent employed by the Escrow Agent than any such book-entry
depository, securities intermediary or other subescrow agent has to the Escrow
Agent, except to the extent that such action or omission of any book-entry
depository, securities intermediary or other subescrow agent was caused by
the
Escrow Agent’s own gross negligence or willful misconduct in breach of this
Agreement.
(d) The
Escrow Agent is hereby authorized, in making or disposing of any investment
permitted by this Agreement, to deal with itself (in its individual capacity)
or
with any one or more of its affiliates, whether it or such affiliate is acting
as a subagent of the Escrow Agent or for any third person or dealing as
principal for its own account.
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(e) Notwithstanding
any term appearing in this Agreement to the contrary, in no instance shall
the
Escrow Agent be required or obligated to distribute any Escrow Property (or
take
other action that may be called for hereunder to be taken by the Escrow Agent)
sooner than (i) two (2) Business Days after it has received the
applicable documents required under this Agreement in good form, or
(ii) passage of the applicable time period or occurrence of the applicable
distribution date (or both (i) and (ii), as applicable under the terms of
this
Agreement), as the case may be.
Section
6. Compensation,
Expense Reimbursement and Indemnification.
(a) The
Purchaser agrees to pay the Escrow Agent’s fees and expenses hereunder in
accordance with the fee schedule attached hereto as Schedule 1
and made a part hereof, which may be subject to change hereafter by the Escrow
Agent on an annual basis.
(b) The
Purchaser agrees to reimburse the Escrow Agent on demand for all costs and
expenses incurred in connection with the administration of this Agreement
or the
escrow created hereby or the performance or observance of its duties hereunder
which are in excess of its compensation for normal services hereunder, including
without limitation, payment of any legal fees and expenses incurred by the
Escrow Agent in connection with resolution of any claim by any party
hereunder.
(c) The
Purchaser and Sellers agree to indemnify the Escrow Agent (and its directors,
officers and employees) and hold it (and such directors, officers and employees)
harmless from and against any loss, liability, damage, cost and expense of
any
nature incurred by the Escrow Agent arising out of or in connection with
this
Agreement or with the administration of its duties hereunder, including but
not
limited to reasonable attorney’s fees and other costs and expenses of defending
or preparing to defend against any claim of liability (collectively,
“Losses”),
unless and except to the extent such Losses are caused by the Escrow Agent’s
gross negligence, or willful misconduct, and except that Purchaser shall
be
solely responsible for escrow fees and expenses charged by Escrow Agent under
Schedule 1 hereunder.
(d) The
foregoing indemnification and agreement to hold harmless shall survive the
termination of this Agreement.
Section
7. Termination.
This
Agreement, and the escrow created hereunder, shall terminate upon the release
and/or distribution of all amounts comprising the Escrow Property, as provided
herein, and the fulfillment of all of the Escrow Agent’s obligations
hereunder.
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Section
8. Tax
Indemnification.
The
Purchaser agrees (i) to assume any and all obligations imposed now or hereafter
by any applicable tax law with respect to any payment or distribution of
the
Escrow Property to the Purchaser, or performance of other activities under
this
Agreement, (ii) to instruct the Escrow Agent in writing with respect to the
Escrow Agent’s responsibility for withholding and other taxes, assessments or
other governmental charges with respect to any payment or distribution of
the
Escrow Property to the Purchaser, and to instruct the Escrow Agent with respect
to any certifications and governmental reporting that may be required under
any
laws or regulations that may be applicable in connection with its acting
as
Escrow Agent under this Agreement, by virtue of the Purchaser’s status as an
Interested Party, and (iii) to indemnify and hold the Escrow Agent harmless
from any liability or obligation on account of taxes, assessments, additions
for
late payment, interest, penalties, expenses and other governmental charges
that
may be assessed or asserted against the Escrow Agent in connection with,
on
account of or relating to the Escrow Property, the management established
hereby, any payment or distribution of or from the Escrow Property to the
Purchaser pursuant to the terms hereof or other activities performed under
the
terms of this Agreement, including without limitation any liability for the
withholding or deduction of (or the failure to withhold or deduct) the same,
and
any liability for failure to obtain proper certifications or to report properly
to governmental authorities in connection with this Agreement, including
costs
and expenses (including reasonable legal fees and expenses), interest and
penalties. The Sellers agree (i) to assume any and all obligations imposed
now
or hereafter by any applicable tax law with respect to any payment or
distribution of the Escrow Property to the Sellers, (ii) to instruct the
Escrow Agent in writing with respect to the Escrow Agent’s responsibility for
withholding and other taxes, assessments or other governmental charges with
respect to any payment or distribution of the Escrow Property to the Sellers,
and to instruct the Escrow Agent with respect to any certifications and
governmental reporting that may be required under any laws or regulations
that
may be applicable in connection with its acting as Escrow Agent under this
Agreement, by virtue of the Purchaser’s status as an Interested Party, and
(iii) to indemnify and hold the Escrow Agent harmless from any liability or
obligation on account of taxes, assessments, additions for late payment,
interest, penalties, expenses and other governmental charges that may be
assessed or asserted against the Escrow Agent in connection with, on account of
or relating to the Escrow Property, the management established hereby, any
payment or distribution of or from the Escrow Property to the Sellers pursuant
to the terms hereof or other activities performed under the terms of this
Agreement, including without limitation any liability for the withholding
or
deduction of (or the failure to withhold or deduct) the same, and any liability
for failure to obtain proper certifications or to report properly to
governmental authorities in connection with this Agreement, including costs
and
expenses (including reasonable legal fees and expenses), interest and penalties.
The indemnifications and agreements to hold harmless set forth in this Section
8
shall survive the termination of this Agreement.
Section
9. Resignation.
The
Escrow Agent may at any time resign as Escrow Agent hereunder by giving
thirty (30) days’ prior written notice of resignation to each of the
Interested Parties. Prior to the effective date of the resignation as specified
in such notice, the Purchaser will issue to the Escrow Agent a written
instruction authorizing redelivery of the Escrow Property to a bank or trust
company that it selects as successor to the Escrow Agent hereunder, which
successor shall have been approved in writing by the Sellers prior to such
instruction by the Purchaser, such approval not to be unreasonably withheld
or
delayed.
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Section
10. Dispute
Resolution.
It
is understood and agreed that, should any dispute arise with respect to the
delivery, ownership, right of possession, and/or disposition of the Escrow
Property, or should any claim be made upon the Escrow Agent or the Escrow
Property by a third party, the Escrow Agent upon receipt of notice of such
dispute or claim is authorized and shall be entitled (at its sole option
and
election) to retain in its possession without liability to anyone, all or
any of
the Escrow Property until such dispute shall have been settled either by
the
mutual written agreement of the parties involved or by a final order, decree
or
judgment of a court of competent jurisdiction in the United States of America,
the time for perfection of an appeal of such order, decree or judgment having
expired. The Escrow Agent may, but shall be under no duty whatsoever to,
institute or defend any legal proceedings which relate to the Escrow
Property.
Section
11. Governing
Law; Submission to Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of California applicable to agreements made and to be performed entirely
within such State. Solely for purposes of any actions, suits, or proceedings
to
which the Escrow Agent is a party, each party hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of California or the courts of the United States of America
located
in Los Angeles for any actions, suits, or proceedings arising out of or relating
to this Agreement (and the parties agree not to commence any action, suit,
or
proceeding relating thereto except in such courts), and further agrees that
service of any process, summons, notice, or document by U.S. registered mail
to
the respective addresses set forth above shall be effective service of process
for any action, suit, or proceeding brought against the parties in any such
court. Solely for purposes of any actions, suits, or proceedings to which
the
Escrow Agent is a party, Each party hereby irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit, or proceeding
arising out of this Agreement, in the courts of the State of California or
the
United States of America located in Los Angeles, and hereby further irrevocably
and unconditionally waives its right and agrees not to plead or claim in
any
such court that any such action, suit, or proceeding brought in any such
court
has been brought in an inconvenient forum. For all actions, suits or proceedings
to which the Escrow Agent is not a party, the parties agree that Section
10(o)
of the Purchase Agreement shall govern court jurisdiction.
Section
12. Waiver
of Jury Trial.
TO
THE EXTENT PERMITTED BY LAW, THE ESCROW AGENT AND THE INTERESTED PARTIES
HEREBY
WAIVE A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING
BETWEEN THEM OR THEIR SUCCESSORS OR ASSIGNS, UNDER OR IN CONNECTION WITH
THIS
AGREEMENT OR ANY OF ITS PROVISIONS OR ANY NEGOTIATIONS IN CONNECTION
HEREWITH.
Section
13. Force
Majeure.
The
Escrow Agent shall not be responsible for delays or failures in performance
resulting from acts beyond its control. Such acts shall include but not be
limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, communication
line
failures, computer viruses, power failures, earthquakes or other
disasters.
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Section
14. Notices;
Wiring Instructions.
(a) Notice
Addresses.
Any notice permitted or required hereunder shall be in writing, and shall
be
sent (i) by personal delivery, overnight delivery by a recognized courier
or delivery service, or (ii) mailed by registered or certified mail, return
receipt requested, postage prepaid, or (iii) by confirmed telecopy
accompanied by mailing of the original on the same day by first class mail,
postage prepaid, in each case the parties at their address set forth below
(or
to such other address as any such party may hereafter designate by written
notice to the other parties).
If
to Sellers:
▇▇▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
as
trustees of the ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Revocable
Trust dated April 24, 2003
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
with
a copy to:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, a Law Corporation
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to Purchaser:
BPO
Management Services, Inc.
▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
Tel.
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
With
a copy to:
▇▇▇▇▇▇▇
& ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel.
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
-8-
If
to Escrow Agent:
U.S.
Bank National Association
Corporate
Trust Services
▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Notwithstanding
the foregoing, notices addressed to the Escrow Agent shall be effective only
upon receipt. If any notice or document is required to be delivered to the
Escrow Agent and any other person, the Escrow Agent may assume without inquiry
that each notice or document was received by such other person when it is
received by the Escrow Agent.
(b) Wiring
Instructions.
Any funds to be paid by the Escrow Agent to the Sellers, or to the Purchaser,
or
to be paid to the Escrow Agent hereunder, shall be sent by wire transfer
pursuant to such instruction as may have been given in advance and in writing
to
or by the Sellers, the Purchaser or the Escrow Agent, as
applicable.
Section
15. Miscellaneous.
(a) Binding
Effect; Successors.
This Agreement shall be binding upon the respective parties hereto and their
heirs, executors, successors and assigns. If the Escrow Agent consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business (including the escrow contemplated by this Agreement) to,
another
corporation, the successor corporation without any further act shall be the
successor Escrow Agent.
(b) Modifications.
This Agreement may not be altered or modified without the express written
consent of the parties hereto. No course of conduct shall constitute a waiver
of
any of the terms and conditions of this Escrow Agreement, unless such waiver
is
specified in writing, and then only to the extent so specified. A waiver
of any
of the terms and conditions of this Escrow Agreement on one occasion shall
not
constitute a waiver of the other terms of this Escrow Agreement, or of such
terms and conditions on any other occasion. Notwithstanding any other provision
hereof, consent to an alteration or modification of this Agreement may not
be
signed by means of an e-mail address.
(c) Reproduction
of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, and (b) certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, optical disk, micro-card, miniature photographic or other similar
process. The parties agree that any such reproduction shall be admissible
in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such reproduction
was made by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
(d) Counterparts
and Facsimile Execution.
This Escrow Agreement may be executed in several counterparts, each of which
shall be deemed to be one and the same instrument. The exchange of copies
of
this Agreement and of signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement as to the parties and
may be
used in lieu of the original Agreement for all purposes. Signatures of the
parties transmitted by facsimile shall be deemed to be their original signatures
for all purposes.
-9-
(e) Severability.
If one or more provisions of this Agreement are held to be unenforceable
under
applicable law, such provision shall be excluded from this Agreement and
the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
(f) U.S.A.
Patriot Act Compliance Information.
The Purchaser and the Sellers each shall provide to the Escrow Agent such
information as the Escrow Agent may reasonably require to permit the Escrow
Agent to comply with its obligations under the federal U.S.A. Patriot Act.
The Escrow Agent shall not credit any amount of interest or investment proceeds
earned on the Escrow Funds, or make any payment of all or a portion of the
Escrow Funds, to any person unless and until such person has provided to
the
Escrow Agent such documents as the Escrow Agent may require to permit the
Escrow
Agent to comply with its obligations under such Act.
[Signature
Pages to Follow]
-10-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of this
29th
day of June, 2007.
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BPO
Management Services, Inc.
By:__________________________________________
Name:
Title:
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ESCROW
AGENT:
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U.S.
Bank National Association, as Escrow Agent
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By:__________________________________________
Name:
Title:
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Trustees
of the ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Revocable
Trust dated April 24, 2003
By:__________________________
▇▇▇▇▇▇
▇. ▇▇▇▇, Trustee
By:__________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇, Trustee
-11-
SCHEDULE
1
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Initial
Fees
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Acceptance
Fee (excluding charge for legal counsel and/or legal
opinion)
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$500.00
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The
acceptance fee includes the administrative review of all documents,
initial set-up of the account, and other reasonably required
services up
to and including the closing. This is a one-time fee, payable
at closing.
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U.S.
Bank Corporate Trust Services reserve the right to refer any
and all
escrow documents for legal review before execution. Legal fees
(billed on
an hourly basis) and expenses for this service will be billed
to, and paid
by, the customer. If appropriate and upon request by the customer,
U.S.
Bank Corporate Trust Service will provide advance estimates of
these legal
fees.
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Investment
Purchases
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$100.00
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Escrow
Agent
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$1500.00
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Annual
Administration fee for performance of the routine duties of the
escrow
agent associated with the management of the account. Administration
Fees
are payable in advance
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Incidental
Expenses
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0%
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Charge
for miscellaneous expenses such as fax; messenger service, overnight
mail,
telephone, stationary and postage. This charge is a percent of
total
Administration Fees charged in advance
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Direct
Out of Pocket Expenses
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Reimbursement
of expenses associated with the performance of our duties, including
but
not limited to publications, legal counsel after the initial
close, travel
expenses and filing fees.
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At
Cost
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Extraordinary
Services
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Extraordinary
services are duties or responsibilities of an unusual nature,
but not
provided for in the governing documents or otherwise set forth
in this
schedule. A reasonable charge will be assessed based on the nature
of the
service and the responsibility involved. At our option, these
charges will
be billed at a flat fee or at our hourly rate then in effect.
Examples
include:
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taxpayer
ID number solicitation
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claim
distributions
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execution
of amendments/supplement agreements
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-12-
EXHIBIT
A
NOTICE
OF CLAIM AGAINST ESCROW FUNDS
To: [Escrow
Agent and Sellers]
This
certificate is issued pursuant to that certain Escrow Agreement, dated as
of
June ___________, 2007, by and among BPO Management Services, Inc., ▇▇▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as trustees of the ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ Revocable Trust dated April 24, 2003 and U.S. Bank National
Association. Capitalized terms herein shall have the meaning ascribed to
them in
the Escrow Agreement.
The
undersigned hereby makes a Claim against the Escrow Funds. The nature of
the
Claim is as follows:
The
estimated Claimed Amount is
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By:
__________________________________________________
Name:
Title:
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EXHIBIT
B
RESOLUTION
NOTICE
TO: [Escrow
Agent and the Sellers and Purchaser]
This
Certificate is issued pursuant to that certain Escrow Agreement, dated as
of
June _________ 2007, by and among BPO Management Services, Inc., ▇▇▇▇▇▇ ▇.
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as trustees of the ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Revocable Trust dated April 24, 2003, and U.S. Bank National Association.
Capitalized terms herein shall have the meaning ascribed to them in the Escrow
Agreement.
The
undersigned hereby certifies that (i) it has received an arbitration award
directing delivery of the Escrow Funds, (ii) a true and correct copy of the
award accompanies this certificate, and (iii) it is entitled to receive
payment from the Escrow Funds in the amount set forth below in accordance
with
Section 2 of the Escrow Agreement.
You
are hereby instructed to deliver immediately $________ of the Escrow Property
held by you to _____________ by wire transfer to the following
account:
_________________________(Bank)
_________________________(Account)
_________________________(Routing
Number)
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By:
_______________________________________________
Name:
Title:
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