Exhibit A
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ESCROW AGREEMENT
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THIS ESCROW AGREEMENT ("ESCROW AGREEMENT") is made and entered into
this 12th day of September, 1997, by and among LES EQUIPEMENTS SPORTIFS DAVTEC
INC., a Canadian corporation ("DAVTEC"), USA SKATE CO., INC., a New York
corporation and the sole stockholder of Davtec ("USA SKATE;" hereinafter Davtec
and USA Skate are sometimes referred to individually as a "SELLER" and
collectively as "SELLERS"), RAWLINGS CANADA INC., a Nova Scotia corporation
("RAWLINGS CANADA"), RAWLINGS SPORTING GOODS COMPANY, INC., a Delaware
corporation and the sole stockholder of Rawlings Canada ("RAWLINGS;" hereinafter
Rawlings Canada and Rawlings are sometimes referred to individually as a "BUYER"
and collectively as "BUYERS"), and THE BANK OF NEW YORK ("ESCROW AGENT").
WITNESSETH:
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WHEREAS, Buyers, Sellers, USA Skate Corporation and California Pro
Sports, Inc. have entered into an Asset Purchase Agreement, dated September 10,
1997 (the "ASSET PURCHASE AGREEMENT"); and
WHEREAS, the parties hereto desire that a portion of the USA Skate
Purchase Price and the Davtec Purchase Price (as those terms are defined in the
Asset Purchase Agreement) be deposited in escrow subject to the terms of this
Escrow Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto covenant and
agree as follows:
1. DEFINITIONS. All words and phrases used in this Escrow Agreement,
unless otherwise defined herein, shall have the same meanings as in the Asset
Purchase Agreement.
2. RECEIPT OF ESCROW DEPOSITS. Escrow Agent acknowledges receipt of
(i) an executed original of the Asset Purchase Agreement, (ii) the USA Skate
Adjustment Deposit (which equals $250,000) and the Davtec Adjustment Deposit
(which equals $250,000), and (iii) $500,000 as a source of indemnification for
Sellers' payment of their indemnity obligations under the Asset Purchase
Agreement (the "INDEMNITY DEPOSIT;" hereinafter the USA Skate Adjustment
Deposit, the Davtec Adjustment Deposit and the Indemnity Deposit are referred to
collectively as the "ESCROW DEPOSITS").
3. DISTRIBUTION OF ADJUSTMENT DEPOSITS. Subject to SECTION 5 hereof:
(a) If the USA Skate Net Assets equal or exceed $3,279,732, then
Rawlings and USA Skate shall instruct the Escrow Agent to distribute the USA
Skate Adjustment Deposit to USA Skate, and upon its receipt of such notice,
Escrow Agent shall promptly comply with such instructions from Rawlings and USA
Skate. If $3,279,732 exceeds the USA Skate Net Assets, then Rawlings and USA
Skate shall instruct the Escrow Agent to, first, distribute from the USA Skate
Adjustment Deposit the amount of such excess (together with all interest and
other earnings accrued on such amount) to Rawlings and, second, distribute the
balance of the USA Skate Adjustment Deposit, if any, to USA Skate, and Escrow
Agent shall promptly comply with such instructions.
(b) If the Davtec Net Assets equal or exceed C$5,793,363, then
Rawlings Canada and Davtec shall instruct the Escrow Agent to distribute the
Davtec Adjustment Deposit to Davtec, and upon its receipt of such notice, Escrow
Agent shall promptly comply with such instructions from Rawlings Canada and
Davtec. If C$5,793,363 exceeds the Davtec Net Assets, then Rawlings Canada and
Davtec shall instruct the Escrow Agent to, first, distribute from the Davtec
Adjustment Deposit the amount of such excess (together with all interest and
other earnings accrued on such amount) to Rawlings Canada and, second,
distribute the balance of the Davtec Adjustment Deposit, if any, to Davtec, and
Escrow Agent shall promptly comply with such instructions.
(c) All instructions to Escrow Agent pursuant to this SECTION 3
shall be given within five (5) days of the determination of the USA Skate Net
Assets or the Davtec Net Assets, as applicable, pursuant to Sections 3.1(b) or
3.2(b) of the Asset Purchase Agreement.
4. DISTRIBUTION OF INDEMNITY DEPOSIT. Subject to SECTION 5 hereof:
(a) Each Buyer shall promptly deliver to Escrow Agent a copy of
each Initial Claim Notice and Final Claims Statement which it gives to either
Seller. Upon its receipt of a Final Claims Statement relating to an Initial
Claim Notice previously received by it, Escrow Agent shall distribute from the
Indemnity Deposit to the appropriate Buyer an amount equal to the Damages set
forth in the Final Claims Statement.
(b) Notwithstanding the provisions of SECTION 4(a) hereof, on the
date six months from the date of this Escrow Agreement, Escrow Agent shall
distribute from the Indemnity Deposit to USA Skate the amount, if any, by which
$250,000 exceeds the aggregate amount of Damages claimed in all Initial Claim
Notices received by Escrow Agent for which Escrow Agent has not made a
distribution pursuant to SECTION 4(a) hereof.
(c) Notwithstanding the provisions of SECTIONS 4(a) AND 4(b)
hereof, on the date nine (9) months from the date of this Escrow Agreement,
Escrow Agent shall distribute from the Indemnity Deposit to USA Skate the
difference between (i) the amount then remaining in the Indemnity Deposit, less
(ii) the aggregate amount of Damages claimed in all Initial Claim Notices
received by Escrow Agent for which Escrow Agent has not made a distribution
pursuant to Section 4(a) hereof.
(d) Notwithstanding the provisions of SECTIONS 4(a) THROUGH 4(c)
hereof, if, after the date nine (9) months from the date of this Escrow
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Agreement, Buyers do not have any right under the Asset Purchase Agreement to
receive Damages set forth in an Initial Claim Notice previously delivered to
Escrow Agent, then they shall promptly give notice to such effect to Escrow
Agent, and Escrow Agent, upon receipt of such notice, shall promptly distribute
from the Indemnity Deposit to USA Skate the Damages identified in such notice as
Damages which Buyers do not have a right to receive.
5. PAYMENT TO CORTINA. Sellers hereby direct Escrow Agent to pay all
distributions to either Seller under this Escrow Agreement to Cortina
International Corp. ("CORTINA"), ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of China, or such other address as Buyers and Sellers shall
specify in writing to Escrow Agent, until the aggregate amount of such payments
to Cortina equals $476,000 or such other amount as Buyers and Sellers shall
specify in writing to Escrow Agent.
6. DISTRIBUTION OF ESCROW DEPOSITS PURSUANT TO INSTRUCTIONS.
Notwithstanding any provision of this Escrow Agreement to the contrary, Escrow
Agent shall distribute the Escrow Deposits, or any portion thereof, in
accordance with written instructions signed by Buyers and Sellers or their
respective successors and assigns.
7. INVESTMENT OF ESCROW DEPOSITS. To the fullest extent possible,
Escrow Agent shall promptly invest and reinvest the Escrow Deposits in United
States Treasury Bills, Certificates of Deposit of banks organized either under
the laws of the United States or of a State of the United States having capital
and surplus in excess of $50,000,000, securities issued or guaranteed by the
United States Government, prime commercial paper of United States issuers, or
money market funds investing in U.S. Government obligations, as directed by
Sellers' written instruction. At the time of any distribution from the Escrow
Deposits, Escrow Agent shall pay to any party receiving a distribution from the
Escrow Deposits all interest and other earnings accrued on the amount
distributed.
8. FEES AND EXPENSES. For its services hereunder, the Escrow Agent
shall be paid $1,900.00 annually, plus its reasonable expenses in performing
such services. The first year's fees shall be payable upon the funding of the
Escrow Deposits. If this Escrow Agreement terminates within one year from the
date hereof, the first year's fees shall not be prorated. Except as otherwise
provided in SECTION 9, each Buyer and each Seller shall pay one-fourth (1/4) of
Escrow Agent's fees and expenses.
9. ESCROW AGENT.
(a) Escrow Agent hereby accepts its appointment and agrees to act
as Escrow Agent under the terms and conditions of this Escrow Agreement.
(b) The duties, responsibilities and obligations of Escrow Agent
shall be limited to those expressly set forth herein and no duties,
responsibilities or obligations shall be inferred or implied. Escrow Agent shall
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not be subject to, nor required to comply with any other agreement between or
among any of Sellers and/or Buyers, even though reference thereto may be made
herein, or to comply with any direction or instruction (other than those
contained herein or delivered in accordance with this Escrow Agreement) from any
Seller or Buyer or any entity acting on their behalf. Escrow Agent shall not be
required to, and shall not, expend or risk any of its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder.
(c) This Escrow Agreement is for the exclusive benefit of the
parties hereto and their respective successors hereunder, and shall not be
deemed to give, either express or implied, any legal or equitable right, remedy,
or claim to any other entity or person whatsoever.
(d) If at any time Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects the Escrow Deposits (including
but not limited to orders of attachment or garnishment or other forms of levies
or injunctions or stays relating to the transfer the Escrow Deposits), Escrow
Agent is authorized to comply therewith in any manner as it or its legal counsel
of its own choosing deems appropriate; and if Escrow Agent complies with any
such judicial or administrative order, judgment, decree, writ or other form of
judicial or administrative process, Escrow Agent shall not be liable to any of
the parties hereto or to any other person or entity even though such order,
judgment, decree, writ or process may be subsequently modified or vacated or
otherwise determined to have been without legal force or effect.
(e) (i) Escrow Agent shall not be liable for any action taken or
omitted or for any loss or injury resulting from its actions or its performance
or lack of performance of its duties hereunder in the absence of gross
negligence or willful misconduct on its part. In no event shall Escrow Agent be
liable (A) for acting in accordance with or relying upon any instruction,
notice, demand, certificate or document from any Seller or Buyer or any entity
acting on behalf of any Seller or Buyer, (B) for any consequential, punitive or
special damages, (C) for the acts or omissions of its nominees, correspondents,
designees, subagents or subcustodians, or (D) for an amount in excess of the
value of the Escrow Deposits, valued as of the date of deposit.
(ii) If any fees, expenses or costs incurred by, or any
obligations owed to, Escrow Agent hereunder are not promptly paid when due,
Escrow Agent may reimburse itself therefor from the Escrow Deposits and may
sell, convey or otherwise dispose of any Escrow Deposits for such purpose.
(iii) As security for the due and punctual performance of
any and all of Buyers' and Sellers' obligations to Escrow Agent hereunder, now
or hereafter arising, Buyers and Sellers, individually and collectively, hereby
pledge, assign and grant to Escrow Agent a continuing security interest in, and
a lien on, the Escrow Deposits and all distributions thereon or additions
thereto (whether such additions are the result of deposits by Buyers and Sellers
or the investment of Escrow Deposits). The security interest of Escrow Agent
shall at all times be valid, perfected and enforceable by Escrow Agent against
Buyers and Sellers and all third parties in accordance with the terms of this
Escrow Agreement.
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(iv) Escrow Agent may consult with legal counsel at the
expense of the Buyers and Sellers as to any matter relating to this Escrow
Agreement, and Escrow Agent shall not incur any liability in acting in good
faith in accordance with any advice from such counsel.
(v) Escrow Agent shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of Escrow Agent
(including but not limited to any act or provision of any present or future law
or regulation or governmental authority, any act of God or war, or the
unavailability of the Federal Reserve Bank wire or telex or other wire or
communication facility).
(f) Unless otherwise specifically set forth herein, Escrow Agent
shall proceed as soon as practicable to collect any checks or other collection
items at any time deposited hereunder. All such collections shall be subject to
Escrow Agent's usual collection practices or terms regarding items received by
Escrow Agent for deposit or collection. Escrow Agent shall not be required, or
have any duty, to notify anyone of any payment or maturity under the terms of
any instrument deposited hereunder, nor to take any legal action to enforce
payment of any check, note or security deposited hereunder or to exercise any
right or privilege which may be afforded to the holder of any such security.
(g) Escrow Agent shall provide to Buyers and Sellers monthly
statements identifying transactions, transfers or holdings of Escrow Deposits
and each such statement shall be deemed to be correct and final upon receipt
thereof by the Buyers and Sellers unless Escrow Agent is notified in writing to
the contrary within thirty (30) business days of the date of such statement.
(h) Escrow Agent shall not be responsible in any respect for the
form, execution, validity, value or genuineness of documents or securities
deposited hereunder, or for any description therein, or for the identity,
authority or rights of persons executing or delivering or purporting to execute
or deliver any such document, security or endorsement.
(i) Notices, instructions or other communications shall be in
writing and shall be given to the address set forth in SECTION 12 hereof (or to
such other address as may be substituted therefor by written notification to
Escrow Agent or Buyers and Sellers). Notices to Escrow Agent shall be deemed to
be given when actually received by Escrow Agent's Corporate Trust Department.
Escrow Agent is authorized to comply with and rely upon any notices,
instructions or other communications believed by it to have been sent or given
by Buyers or Sellers or by a person or persons authorized by Buyers or Sellers.
Whenever under the terms hereof the time for giving a notice or performing an
act falls upon a Saturday, Sunday, or banking holiday, such time shall be
extended to the next day on which Escrow Agent is open for business.
(j) Buyers and Sellers, jointly and severally, shall be liable
for and shall reimburse and indemnify Escrow Agent and hold Escrow Agent
harmless from and against any and all claims, losses, liabilities, costs,
damages, or expenses (including reasonable attorneys' fees and expenses)
(collectively, "LOSSES") arising from or in connection with or related to this
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Escrow Agreement or being Escrow Agent hereunder (including but not limited to
Losses incurred by Escrow Agent in connection with its successful defense, in
whole or in part, of any claim of gross negligence or willful misconduct on its
part), provided, however, that nothing contained herein shall require Escrow
Agent to be indemnified for Losses caused by its gross negligence or willful
misconduct.
(k) (i) Buyers and Sellers may remove Escrow Agent at any time by
giving to Escrow Agent thirty (30) calendar days' prior notice in writing signed
by all Buyers and Sellers. Escrow Agent may resign at any time by giving to
Buyers and Sellers fifteen (15) calendar days, prior written notice thereof.
(ii) Within ten (10) calendar days after giving the
foregoing notice of removal to Escrow Agent or receiving the foregoing notice of
resignation from Escrow Agent, all Buyers and Sellers shall jointly agree on and
appoint a successor Escrow Agent. If a successor Escrow Agent has not accepted
such appointment by the end of such 10-day period, Escrow Agent may, in its sole
discretion, deliver the Escrow Deposits to any of the Buyers and Sellers at the
address provided herein or may apply to a court of competent jurisdiction for
the appointment of a successor Escrow Agent or for other appropriate relief. The
costs and expenses (including reasonable attorneys, fees and expenses) incurred
by Escrow Agent in connection with such proceeding shall be paid by, and be
deemed a joint and several obligation of, the Buyers and Sellers.
(iii) Upon receipt of the identity of the successor Escrow
Agent, Escrow Agent shall either deliver the Escrow Deposits then held hereunder
to the successor Escrow Agent, less Escrow Agent's fees, costs and expenses or
other obligations owed to Escrow Agent, or hold such Escrow Deposits (or any
portion thereof), pending distribution, until all such fees, costs and expenses
or other obligations are paid.
(iv) Upon delivery of the Escrow Deposits to a successor
Escrow Agent, Escrow Agent shall have no further duties, responsibilities or
obligations hereunder.
(l) (i) In the event of any ambiguity or uncertainty hereunder or
in any notice, instruction or other communication received by Escrow Agent
hereunder, Escrow Agent may, in its sole discretion, refrain from taking any
action other than retain possession of the Escrow Deposits, unless Escrow Agent
receives written instructions, signed by all Buyers and Sellers, which
eliminates such ambiguity or uncertainty.
(ii) In the event of any dispute between or conflicting
claims by or among the Buyers and Sellers and/or any other person or entity with
respect to any of the Escrow Deposits, Escrow Agent shall be entitled, in its
sole discretion, to refuse to comply with any and all claims, demands or
instructions with respect to such Escrow Deposits so long as such dispute or
conflict shall continue, and Escrow Agent shall not be or become liable in any
way to the Buyers and Sellers for failure or refusal to comply with such
conflicting claims, demands or instructions. Escrow Agent shall be entitled to
refuse to act until, in its sole discretion, either (A) such conflicting or
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adverse claims or demands shall have been determined by a final order, judgment
or decree of a court of competent jurisdiction, which order, judgment or decree
is not subject to appeal, or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to Escrow Agent or (B) Escrow
Agent shall have received security or an indemnity satisfactory to it sufficient
to hold it harmless from and against any and all Losses which it may incur by
reason of so acting. Escrow Agent may, in addition, elect, in its sole
discretion, to commence an interpleader action or seek other judicial relief or
orders as it may deem, in its sole discretion, necessary. The costs and expenses
(including reasonable attorneys' fees and expenses) incurred in connection with
such proceeding shall be paid by, and shall be deemed a joint and several
obligation of, the Buyers and Sellers.
(m) The Escrow Agent does not have any interest in the Escrow
Deposits deposited hereunder but is serving as escrow holder only, and having
only possession thereof. Each party shall pay or reimburse the Escrow Agent upon
request for any transfer taxes or other taxes relating to the Escrow Deposits
incurred in connection herewith and shall indemnify and hold harmless the Escrow
Agent from any amounts that it is obligated to pay in the way of such taxes. Any
payments of income from this Escrow Account shall be subject to withholding
regulations then in force with respect to United States taxes. The parties
hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D.,
number certifications, or W-8 forms for non-resident alien certifications. It is
understood that the Escrow Agent shall be responsible for income reporting only
with respect to income earned on investment of funds which are a part of the
Escrow Deposits and is not responsible for any other reporting.
10. INSPECTION. All money or other property held as a part of the
Escrow Deposits shall at all times be clearly identified as being held by the
Escrow Agent hereunder. Any party hereto may inspect the Escrow Deposits at any
time during the Escrow Agent's business hours.
11. NO RIGHT OF OFFSET. Notwithstanding any provision of the Amended
and Restated Credit Agreement, dated the date hereof, among Rawlings, the
financial institutions signatory thereto, and The First National Bank of
Chicago, as agent, or any other agreement by which Rawlings or Escrow Agent is
bound, whether now existing or hereafter entered into, Escrow Agent shall have
no right of offset against the Escrow Deposits except for amounts due to Escrow
Agent pursuant to this Escrow Agreement.
12. NOTICES. Any instruction, notice or other communication required
or permitted hereunder to Buyers or Sellers shall be given in writing and shall
be (i) delivered in person, (ii) sent by registered or certified mail, return
receipt requested, postage prepaid, (iii) sent by a nationally recognized
overnight delivery service, with delivery confirmed, or (iv) sent by facsimile,
with receipt confirmed, addressed as follows:
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In the case of Buyers:
Rawlings Sporting Goods Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇, Mag & Fizzell, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. Finger, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Sellers:
California Pro Sports, Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: C. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of Escrow Agent:
The Bank of New York
The ▇▇▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such substituted address as any party shall have given to the other
parties hereto in writing. Except as otherwise provided in SECTION 9, any such
instruction, notice or communication shall be deemed to have been given (i) if
delivered in person, on the date so delivered, (ii) if sent by registered or
certified mail, three days after the date when so deposited in the mail properly
addressed, (iii) if sent by overnight delivery service, the day after the date
when delivered during business hours to the overnight delivery service properly
addressed, or (iv) if sent by facsimile, the date when receipt of the facsimile
is confirmed, unless (in each case) the sending party has actual knowledge that
such notice was not received by the intended recipient.
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13. MISCELLANEOUS.
(a) This Escrow Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assign.
(b) This Escrow Agreement shall be interpreted, construed,
enforced and administered in accordance with the internal substantive laws (and
not the choice of law rules) of the State of New York. Each of the Buyers and
Sellers hereby submits to the non-exclusive personal jurisdiction of and each
agrees that all proceedings relating hereto may be brought in courts located
within the City and State of New York or elsewhere (including but not limited to
the Circuit Court of St. Louis County, Missouri and the United States District
Court for the Eastern District of Missouri, Eastern Division) as Escrow Agent
may select. Each of the Buyers and Sellers hereby waives the right to trial by
jury in any such proceedings. To the extent that in any jurisdiction any Buyer
or Seller may be entitled to claim, for itself or its assets, immunity from
suit, execution, attachment (whether before or after judgment) or other legal
process, each hereby irrevocably agrees not to claim, and hereby waives, such
immunity. Each Buyer and Seller waives personal service of process and consents
to service of process by certified or registered mail, return receipt requested,
directed to it at the address last specified for notices hereunder, and such
service shall be deemed completed ten (10) calendar days after the same is so
mailed.
(c) Except as otherwise permitted herein, this Escrow Agreement
may he modified only by a written amendment signed by all the parties hereto,
and no waiver of any provision, hereof shall be effective unless expressed in a
writing signed by the party to be charged.
(d) The rights and remedies conferred upon the parties hereto
shall be cumulative, and the exercise or waiver of any such right or remedy
shall not preclude or inhibit the exercise of any additional rights or remedies.
The waiver of any right or remedy hereunder shall not preclude the subsequent
exercise of such right or remedy.
(e) Each Buyer and Seller hereby represents and warrants (a) that
this Escrow Agreement has been duly authorized, executed and delivered on its
behalf and constitutes its legal, valid and binding obligation and (b) that the
execution, delivery and performance of this Escrow Agreement by it does not and
will not violate any applicable law or regulation.
(f) The invalidity, illegality or unenforceability of any
provision of this Escrow Agreement shall in no way affect the validity, legality
or enforceability of any other provision; and if any provision is held to be
enforceable as a matter of law, the other provisions shall not be affected
thereby and shall remain in full force and effect.
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(g) This Escrow Agreement shall constitute the entire agreement
of the parties with respect to the subject matter and supersedes all prior oral
or written agreements in regard thereto.
(h) This Escrow Agreement shall terminate upon the distribution
of all Escrow Deposits from the Account. The provisions of SECTION 9 of this
Escrow Agreement shall survive termination of this Escrow Agreement and/or the
resignation or removal of the Escrow Agent.
(i) No printed or other material in any language, including
prospectuses, notices, reports, and promotional material which mentions "The
Bank of New York" by name or the rights, powers, or duties of the Escrow Agent
under this Escrow Agreement shall be issued by any other parties hereto, or on
such party's behalf, without the prior written consent of Escrow Agent.
(j) The headings contained in this Escrow Agreement are for
convenience of reference only and shall have no effect on the interpretation or
operation hereof.
(k) This Escrow Agreement may be executed by each of the parties
hereto in any number of counterparts, each of which counterpart, when so
executed and delivered, shall be deemed to be an original and all such
counterparts shall together constitute one and the same agreement.
(l) This Escrow Agreement expressly sets forth all the duties of
the Escrow Agent with respect to any and all matters pertinent hereto. No
implied duties or obligations shall be read into this Escrow Agreement against
the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any
agreement among the other parties hereto except this Escrow Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the day and year first above written.
LES EQUIPEMENTS SPORTIFS DAVTEC INC.
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Authorized Officer
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USA SKATE CO., INC.
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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RAWLINGS CANADA INC.
By /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Chief Financial Officer
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RAWLINGS SPORTING GOODS COMPANY, INC.
By /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Chief Financial Officer
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THE BANK OF NEW YORK
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
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