ESCROW AGREEMENT by and among BPO Management Services, Inc., Everett Huntoon and Howard Andrews and Dated as of October 10, 2007
Exhibit
10.52
by
and
among
BPO
Management Services, Inc.,
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
U.S.
Bank
National Association
Dated
as
of October 10, 2007
THIS
ESCROW AGREEMENT (this “Agreement”) is dated as of the 10th
day of October,
2007, by and among BPO Management Services, Inc., a Delaware corporation (the
“Buyer”), ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (together, the
“Sellers”) and U.S. Bank National Association, a national banking
association (the “Escrow Agent”), as escrow agent. The Buyer
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 Buyer is purchasing from the Sellers 100% of the shares of issued stock
of
Blue Hill Data Services, Inc., a Delaware corporation (the “Company”),
pursuant to a Stock Purchase Agreement dated as of the date hereof, between
the
Sellers and the Buyer (the “Purchase Agreement”);
AND
WHEREAS the Purchase Agreement provides that, in order to secure the
Buyer’s obligation to pay an installment of the Purchase Price thereunder in the
amount of $1,000,000, the Buyer will execute a promissory note and an associated
confession of judgment (the “Confession of Judgment”) and provides that,
if the Buyer fails to pay such installment of the Purchase Price when due,
then
the Sellers will be entitled to enforce the promissory note and the Confession
of Judgment unless and to the extent that the Buyer has claimed indemnification
from the Sellers pursuant to the Purchase Agreement;
AND
WHEREAS the Purchase Agreement provides that, if the Buyer is claiming
indemnification from the Sellers pursuant to the Purchase Agreement, the Buyer
shall deposit the amount of such indemnity claim (including costs and attorney’s
fees and disbursements) in escrow pending final resolution of such indemnity
claim;
AND
WHEREAS, the Sellers and Buyer 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 the Confession of Judgment and to hold, administer and
distribute the claimed indemnity amounts (if any) 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 Document.
Upon
signing of the Purchase Agreement and this Agreement, the Buyer and the Sellers
shall deposit the Confession of Judgment with the Escrow Agent by jointly
depositing the same in a Federal Express deposit box wrapped in a properly
addressed Federal Express envelope, (with delivery confirmation by e-mail to
the
following e-mail addresses requested ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇), to be held and released in accordance with the terms
hereof. On the date the Escrow Agent receives the Confession of
Judgment, the Escrow Agent will provide a written confirmation of its receipt
to
the Buyer and the Sellers.
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Section
2.
|
Deposit
of Escrow
Funds.
|
(a) If
and when
the Buyer gives a Claim Notice to the Sellers pursuant to the Purchase
Agreement, the Buyer will simultaneously deliver a copy of such Claim Notice
to
the Escrow Agent.
(b) For
purposes
hereof, an “Indemnity Claim Amount” means the Buyer’s good faith estimate
of the amount of damages to which it is entitled pursuant to a Claim Notice
given under the Purchase Agreement.
(c) If
the Buyer
gives a copy of a Claim Notice and pays the associated Indemnity Claim Amount
to
the Escrow Agent hereunder, (such Indemnity Claim Amount, together with any
investment income or proceeds received by the Escrow Agent from the investment
thereof from time to time being collectively called the “Escrow Funds”),
then the Escrow Agent agrees to hold the Escrow Funds in an account established
with the Escrow Agent (the “Escrow Account”), and to administer the
Escrow Funds in accordance with the terms of this Agreement. On the
date the Escrow Agent receives a Claim Notice and an Indemnity Claim Amount,
the
Escrow Agent will provide a written confirmation of its receipt to the Buyer
and
the Sellers.
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Section
3.
|
Release
from Escrow.
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(a) The
dollar amount of the Confession of Judgment initially shall be
blank. The Escrow Agent is hereby irrevocably authorized and
irrevocably directed by the parties hereto to complete the Confession of
Judgment in the amount of ONE MILLION DOLLARS ($1,000,000.00) less any Indemnity
Claim Amount, notice of which is received by the Escrow Agent prior to January
1, 2009.
(b) If,
at any time after January 1, 2009 the Escrow Agent
receives a notice from the Sellers (a “Delivery Notice”) in the form
attached hereto as Exhibit A, and if, prior to that time:
(i)
the Escrow Agent has not received a Claim Notice and an Indemnity Claim Amount
from the Buyer, then the Escrow Agent shall immediately provide a copy of the
Delivery Notice to the Buyer (with copies to Buyer’s counsel as provided in
section 14 hereof) and, within ten (10) Business Days after it receives such
Delivery Notice, the Escrow Agent shall deliver the Confession of Judgment
to
the Sellers completed in the amount of ONE MILLION DOLLARS ($1,000,000.00);
or
(ii) the
Escrow Agent has previously received a copy of a Claim Notice and Indemnity
Claim Amount from the Buyer, then the Escrow Agent shall complete the Confession
of Judgment by filling in the amount of the confession, which shall be ONE
MILLION DOLLARS ($1,000,000.00) less the amount of the Indemnity Claim, and
promptly deliver the Confession of Judgment, as so completed, to Sellers’
attorney at the address listed in section 14 hereof (and will send a copy of
the
completed Confession of Judgment to the Buyer and the Buyer’s
counsel).
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(c) If,
at any
time, the Escrow Agent receives a written notice jointly executed by the Sellers
and the Buyer (a “Release Notice”) in the form attached hereto as Exhibit
B, then the Escrow Agent will immediately deliver the Confession of Judgment
to
the Buyer.
(d) If
the Escrow Agent receives a copy of a Claim Notice and an Indemnity Claim Amount
from the Buyer pursuant to Section 2 hereof, then the Escrow Agent will hold
the
Escrow Funds until it receives either:
(i) a
written notice jointly executed by the Buyer and the Sellers advising that
the
particular indemnity claim has been resolved and jointly instructing the Escrow
Agent as to the distribution of the Escrow Funds or any portion thereof,
or
(ii) a
notice from the Buyer or the Sellers in the form attached hereto as Exhibit
C (a
“Resolution Notice”) certifying that the matter referred to in the
particular Claim Notice has been determined by arbitration pursuant to the
rules
of the American Arbitration Association as provided by the Purchase
Agreement.
Upon
receipt of such joint written notice from the Sellers and the Buyer or such
Resolution Notice, the Escrow Agent shall make payment from the Escrow Funds
in
accordance therewith within two (2) Business Days of receipt
thereof.
(e) 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, or the City of New York are authorized or obligated by law
or
executive order to be closed.
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Section
4.
|
Investment
of Funds.
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(a) The
Escrow Agent shall invest any Escrow Funds in the Escrow Agent’s Insured Money
Market Account (“IMMA”) or, if directed by Buyer, in short
term United States Treasury bills. The Escrow Funds shall be held
and, if registrable, shall be registered in the name of the Escrow Agent under
“Escrow Agreement dated as of October 10, 2007 by and among BPO Management
Services, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and U.S. Bank National
Association, as escrow agent.”
(b) All
earnings received from the investment of the original principal amount of the
Escrow Funds shall be credited in proportion to and belong to the Interested
Party or Parties to whom the Escrow Funds are paid pursuant to Section 3
hereof. 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 Interested Party or Parties to whom the earnings are
paid pursuant to Section 3 hereof.
(d) The
Interested Parties agree to provide the Escrow Agent with a certified tax
identification or social security numbers, as the case may be, by signing and
returning a
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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. Each of the Interested
Parties 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. The Interested
Parties agree 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.
(e) The
Escrow Agent shall deliver prompt monthly account statements to the Sellers
and
the Buyer with respect to the balance of the Escrow Funds and all transactions
with respect thereto. The Escrow Agent shall respond promptly to
provide information regarding the Escrow Funds, upon the reasonable request
of
the Sellers or the Buyer.
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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.
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(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.
(e) Notwithstanding
any term appearing in this Agreement to the contrary, in no instance shall
the
Escrow Agent be required or obligated to deliver the Confession Judgment or
any
Escrow Funds (together called the “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.
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Section
6.
|
Compensation,
Expense Reimbursement and
Indemnification.
|
(a) The
Buyer 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
Buyer 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
Buyer 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 Buyer
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.
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Section
7.
|
Termination.
|
This
Agreement, and the escrow created hereunder, shall terminate upon the release
and/or distribution of all documents and amounts comprising the Escrow Property,
as provided herein, and the fulfillment of all of the Escrow Agent’s obligations
hereunder.
|
Section
8.
|
Tax
Indemnification.
|
The
Buyer
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
Funds to the Buyer, 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
Funds to the Buyer, 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 Buyer’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 Funds, the management established hereby, any
payment or distribution of or from the Escrow Funds to the Buyer 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 Funds 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 Funds 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 Buyer’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
Funds, the management established hereby, any payment or distribution of or
from
the Escrow Funds 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.
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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 Buyer 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 Buyer, such approval not to be unreasonably withheld or
delayed.
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Section
10.
|
Dispute
Resolution.
|
(a) 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 by (i) the mutual
written agreement of the parties involved, (ii) an award by an arbitrator in
an
arbitration conducted in accordance with the provisions of the Purchase
Agreement and after the time for the perfection of an appeal to such award
which
shall have run, or (iii) 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 Funds.
(b) The
parties agree that any dispute arising out of this Agreement where the Escrow
Agent is merely a stakeholder and no claim is asserted against it, including
any
dispute as to the scope of this arbitration provision, which the parties intend
to be as broad and fully encompassing as possible, shall be submitted to
arbitration by a single arbitrator in accordance with the rules for commercial
arbitration then in effect of the American Arbitration Association, including
the optional rules, the Buyer and the Sellers to bear their own costs and fees
and disbursements of attorneys.
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Section
11.
|
Governing
Law; Submission to
Jurisdiction.
|
This
Agreement shall be governed by and construed in accordance with the law 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 10.8 of the Purchase Agreement shall govern court
jurisdiction.
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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.
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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.
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Notices;
Wiring Instructions.
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(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
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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with
a
copy to:
▇▇▇▇▇▇
&
BLOCK,
PLLC
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
eFax
Attention:
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
If
to
Buyer:
BPO
Management Services, Inc.
▇▇▇▇
▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
With
a
required copy to:
▇▇▇▇▇▇▇
& ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
And
a
required copy to:
▇.▇.
▇▇▇▇
▇▇▇▇
& Berlis LLP
1800
–
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to
Escrow Agent:
U.S.
Bank
National Association
Corporate
Trust Services
▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
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Notwithstanding
the foregoing, notices addressed to the Escrow Agent shall be effective only
upon receipt. Any notice to the Escrow Agent in the form of any of
the Exhibits to this Agreement which indicates that a copy thereof is to be
given to one or more of the Interested Parties must be given to such Interested
Party in the manner herein provided at the same time as such notice is given
to
the Escrow Agent. 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 Buyer, 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 Buyer or the Escrow Agent,
as
applicable.
If
to the
Sellers, then to:
Bank:
Union State Bank, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Routing
Number: 021 905 977
Account
Number: 475 735 161
Name
on
Account: ▇▇▇▇▇▇
& Block, PLLC Trust Account
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
If
to the Buyer, then to:
Bank: Union
Bank of California
Transit
Number:
▇▇▇▇▇▇▇▇▇
Account
Number:
▇▇▇▇▇▇▇▇▇▇
Swift
ID:
▇▇▇▇▇▇▇▇▇▇▇
Name
on
Account:
BPO Management Services, Inc
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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.
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-
(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.
(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. To help the U.S. federal
government fight the funding of terrorism and money laundering activities,
U.S.
federal law requires all financial institutions to obtain, verify and record
information that identifies each person who opens an account. For a
non-individual person such as a business entity, a charity, a trust or other
legal entity the Escrow Agent will ask for documentation to verify its formation
and existence as a legal entity. The Escrow Agent may also ask to see
financial statements, licenses, identification and authorization documents
from
individuals claiming authority to represent the entity or other relevant
documentation. Buyer and Sellers each agree to provide all such
information and documentation as to themselves as reasonably requested by Escrow
Agent to ensure compliance with U.S. federal law.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of this
10th day of
October, 2007.
|
BPO
Management Services, Inc.
By: /▇▇▇▇▇
▇▇▇▇▇▇▇/
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
|
|
|
ESCROW
AGENT:
|
|
|
U.S.
Bank National Association, as Escrow Agent
|
|
|
By: /▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice
president
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, individually
/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, individually
/▇▇▇▇▇▇
▇▇▇▇▇▇▇/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
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-
EXHIBIT
A
DELIVERY
NOTICE
|
To:
|
U.S.
Bank National Association
|
|
With
copy to:
|
BPO
Management Services, Inc. and to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇ &
Berlis LLP
|
This
Notice is issued pursuant to that certain Escrow Agreement, dated as of
October 10, 2007 (the “Escrow Agreement”), by and among BPO Management
Services, Inc. (the “Buyer”), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and U.S. Bank
National Association (the “Escrow Agent”). Capitalized terms herein
shall have the meaning ascribed to them in the Escrow Agreement.
The
undersigned hereby certify that: (i) the Buyer has failed to pay to the
undersigned all or a portion of the deferred installment of the
Purchase Price under the Purchase Agreement, (ii) the undersigned have not
received a Claim Notice from the Buyer in respect to any claim for
indemnification under the Purchase Agreement, and (iii) the undersigned are
entitled to enforce the Confession of Judgment.
The
undersigned hereby request that the Escrow Agent deliver the Confession of
Judgment to them pursuant to the Escrow Agreement.
DATED:
______________________
|
By:
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
By:
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
EXHIBIT
B
RELEASE
NOTICE
To: U.S.
Bank National Association
This
Notice is issued pursuant to that certain Escrow Agreement (the “Escrow
Agreement”), dated as of October 10, 2007, by and among BPO Management
Services, Inc. (the “Buyer), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and U.S. Bank
National Association. Capitalized terms herein shall have the meaning
ascribed to them in the Escrow Agreement.
The
undersigned hereby request that you deliver the Confession of Judgment being
held under the Escrow Agreement to the Buyer.
DATED:
_______________________
|
By: _____________________________
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
By:
____________________________
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
By:
_____________________________
Name:
|
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-
EXHIBIT
C
RESOLUTION
NOTICE
TO: U.S.
Bank National Association
With
copy
to: [insert name of Interested Party which is not giving this
Notice]
This
Notice is issued pursuant to that certain Escrow Agreement (the “Escrow
Agreement”), dated as of October 10, 2007, by and among BPO Management Services,
Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 3 of the Escrow Agreement.
You
are
hereby instructed to deliver immediately $________ of the Escrow Funds held
by
you to _____________ by wire transfer to the following account:
_________________________(Bank)
_________________________(Account)
_________________________(Routing
Number)
|
By:
_________________________________
Name:
Title:
|
16