EXHIBIT 10.33
ESCROW AGREEMENT
This Escrow Agreement, dated as of December 28, 2001 (the "Escrow
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Agreement"), is made among OLYMPIC CASCADE FINANCIAL CORPORATION, a Delaware
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corporation having its principal place of business at 875 North Michigan Avenue,
Suite 1560, Chicago, Illinois 60611 ("Seller"), Mark Goldwasser and Triage
Partners LLC, a New York limited liability company having its principal place of
business at 120 Broadway, 27th Floor, New York, NY 10271 ("Purchasers") and
LITTMAN KROOKS & ROTH P.C., a New York professional corporation with offices at
655 Third Avenue, New York, New York 10017 ("LKR").
BACKGROUND
WHEREAS, Seller and Purchasers entered into a Securities Purchase
Agreement dated as of December 14, 2001 (the "Securities Purchase Agreement"),
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pursuant to which Purchasers purchased $1,072,500 of Series A Preferred Stock of
Seller (all capitalized terms used and not defined herein have the respective
meanings assigned to them in the Securities Purchase Agreement); and
WHEREAS, the Escrow Agent has agreed to act as escrow agent in
connection with holding the Escrow Amount in accordance with this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their successors and assigns, hereby agree as follows:
18. Appointment and Acknowledgment of Escrow Agent. Purchasers and Seller
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hereby appoint LKR, and LKR hereby agrees to serve, as Escrow Agent pursuant to
the terms of this Escrow Agreement.
(a) On the Closing Date, Purchasers shall wire transfer the Escrow
Amount into the Escrow Account. The wire transfer of the Escrow Amount to the
Escrow Account shall be made in federal funds transferred as follows:
Signature Bank
261 Madison Ave
NY NY 10016
ABA # 026013576
Escrow ac # 1500197753
Reference: Sands/National Olympic
(b) On the terms and subject to the conditions of this Agreement, the
Escrow Agent shall deposit the Escrow Amount into the Escrow Account. The Escrow
Agent shall not have any interest in the Escrow Amount deposited in the Escrow
Account, but shall serve as escrow holder only and have only possession thereof.
The Escrow Agent shall maintain the Escrow Account until July 28, 2002 (the
"Escrow Term"). Upon termination of the Escrow Term, any remaining funds in the
Escrow Account shall be remitted to Purchasers pro-rata in accordance with their
funding ratios.
19. Transfer of the Escrow Amount. In accordance with Section 1.3 of
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the Securities Purchase Agreement, during the Escrow Term, the Escrow Agent
shall transfer all or a portion of the
Escrow Amount upon receipt of a written request to this effect, signed by the
Seller and acknowledged by Purchasers certifying that Seller requires additional
capital (a) to satisfy its Clearing Agreement dated as of August 23, 2001
between First Clearing Corporation ("First Clearing") and National Securities
Corporation, Seller's wholly-owned subsidiary ("National") or (b) for working
capital if Seller does not attain profitability within the Escrow Period. Seller
agrees that any Escrow Amounts that come into its possession shall be utilized
for the benefit of National. Upon each draw down of the Escrow Amount, Seller
shall issue such number of shares of Series A Preferred Stock as payment
therefor at the Per Share Price in amounts and denominations in accordance with
Purchaser's instructions. In addition, to the extent the Escrow Amount has not
been theretofore funded in full to Seller, and Purchasers have a claim for
indemnification against the Seller in accordance with Article IX of the
Securities Purchase Agreement, Purchasers shall have the right to payment from
the Escrow Account on a dollar-for-dollar basis upon making a written request to
the Escrow Agent.
3. Further Provisions Relating to the Escrow.
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(a) Distribution by the Escrow Agent shall operate to divest all right,
title, interest, claim, and demand, either at law or in equity, of any party to
this Escrow Agreement (other than the distributee) in and to the Escrow Amount
distributed and shall be a perpetual bar both at law and in equity against the
parties to this Escrow Agreement and against any person claiming or attempting
to claim such Escrow Amount from, through, or under such party.
(b) Purchasers and Seller shall indemnify and hold harmless the Escrow
Agent against and in respect of any and all claims, suits, actions, proceedings
(formal and informal), investigations, judgments, deficiencies, damages,
settlements, liabilities and legal and other expenses (including legal fees and
expenses of attorneys chosen by Escrow Agent and costs of investigation) as and
when incurred arising out of or based upon any act, omission, alleged act or
alleged omission by the Escrow Agent, or its agents, or any other cause (except
as a result of the bad faith or gross negligence of Escrow Agent), in any case
in connection with the acceptance of or the performance or non-performance by
Escrow Agent, or its agents, of any of the Escrow Agent's duties under this
Escrow Agreement. Escrow Agent shall be fully protected by acting in reliance
upon any notice, advice, direction, other document, or signature believed by
Escrow Agent to be genuine, by assuming that any person purporting to give
Escrow Agent any notice, advice, direction or other document in accordance with
the provisions hereof, in connection with this Escrow Agreement, or in
connection with Escrow Agent's duties under this Escrow Agreement, has been duly
authorized so to do, or by acting or failing to act in good faith on the advice
of any counsel retained by the Escrow Agent.
(c) Escrow Agent shall not be liable to Purchasers or Seller for any
mistake of fact or of law, any error of judgment, any act or omission to act or
any act of negligence, except as a result of the bad faith or gross negligence
of Escrow Agent. Purchasers and Seller waive any such claim against the Escrow
Agent.
(d) Escrow Agent makes no representation as to the validity, value,
genuineness, or the collectibility of any security or other document or
instrument held by or delivered to Escrow Agent.
(e) Escrow Agent shall have no duties or responsibilities except those
expressly set forth herein. Escrow Agent shall not be bound by any notice of a
claim, or demand with respect hereto, or any waiver, modification, amendment,
termination, cancellation, or revision of this Escrow Agreement, unless it is in
writing, signed by the applicable parties hereto (including Escrow Agent) and
received by Escrow Agent. If Escrow Agent's duties as Escrow Agent hereunder are
affected by any such waiver, modification, amendment, termination, cancellation
or revision of this Agreement, then Escrow Agent shall not be bound thereby
unless Escrow Agent shall have given its prior written consent thereto. Escrow
Agent shall not be bound by any assignment by Purchasers or Seller of any of
their respective rights hereunder unless Escrow Agent shall have received
written notice thereof from the assignor. Escrow Agent is authorized to comply
with and obey all laws, orders, judgments, decrees and regulations of any
governmental authority, court, tribunal or arbitrator. If Escrow Agent complies
with any such law, order, judgment, decree or regulation, Escrow Agent shall not
be liable to any of the parties hereto or to any other person even if such law,
order, judgment, decree or regulation is subsequently reversed, modified,
annulled, set aside, vacated, found to have been entered without jurisdiction or
found to be in violation of or beyond the scope of a constitution or a law.
(f) If Escrow Agent shall be uncertain as to Escrow Agent's duties or
rights hereunder, shall receive any notice, advice, direction or other document
from any other party with respect to Escrow Amount which, in Escrow Agent's
opinion, is in conflict with any of the provisions of this Escrow Agreement, or
should be advised that a dispute has arisen with respect to the payment,
ownership, or right of possession of the Escrow Amount or any part thereof (or
as to the delivery, non-delivery or content of any notice, advice, direction, or
other document), Escrow Agent shall be entitled, without liability to anyone, to
refrain from taking any action other than to use Escrow Agent's best efforts to
keep safely the Escrow Amount until Escrow Agent shall be directed otherwise in
writing by the other parties hereto or by an order, decree or judgment of a
court of competent jurisdiction which has been finally affirmed on appeal or
which by lapse of time or otherwise is no longer subject to appeal. Escrow Agent
shall be under no duty to institute or to defend any such proceeding although
Escrow Agent may, in Escrow Agent's discretion and at the expense of the other
parties hereto, institute or defend such proceedings.
(g) If LKR shall be unable to act or shall resign as Escrow Agent
hereunder, the successor escrow agent shall be a proper entity chosen by LKR in
its sole discretion (the "Successor"). LKR may at any time give written notice
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of its resignation (the "Resignation Notice") to the other parties hereto. Such
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resignation shall take effect when the Successor accepts in writing its
appointment as successor escrow agent and receives from LKR the Escrow Amount.
If no Successor has been appointed and has accepted the Escrow Amount within 5
days after the Resignation Notice is sent, Purchasers or Seller may petition any
court of competent jurisdiction for the appointment of a successor escrow agent.
Such court may thereupon appoint a successor escrow agent after LKR deposits the
Escrow Amount into court and after such notice, if any, to the other parties
hereto as the court may deem proper and prescribe. This Escrow Agreement shall
not otherwise be assignable by LKR without the prior written consent of the
other parties hereto.
(h) Purchasers or Seller authorize LKR, if LKR is threatened with
litigation or is sued, to interplead all interested parties in any court of
competent jurisdiction and to deposit the Escrow Amount with the clerk of that
court.
(i) The responsibilities and liabilities of Escrow Agent hereunder, except
as a result of the bad faith or gross negligence of Escrow Agent, will terminate
upon the delivery by Escrow Agent of all the Escrow Amount under any provision
of this Escrow Agreement.
4. Further Action. At any time and from time to time, Purchasers or Seller
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agree to take such actions and to execute and deliver such documents as may be
reasonably necessary to effectuate the purposes of this Escrow Agreement.
5. Survival. The covenants, agreements, representations, and warranties
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contained in or made pursuant to this Escrow Agreement shall survive the
delivery by Escrow Agent of the Escrow Amount.
6. Modification. This Escrow Agreement sets forth the entire understanding of
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the parties with respect to the subject matter hereof, supersedes all existing
agreements among them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party.
7. Notices. Any notice, advice, direction, or other document or communication
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required or permitted to be given hereunder shall be in writing and shall be
deemed given: (i) three days after deposit in the United States mail, certified
mail, return receipt requested; (ii) the business day following delivery to
Federal Express, or similar overnight delivery or courier service (requesting
next day delivery), or (iii) when delivered (in person or by telecopy or similar
telecommunications equipment on a business day and during business hours,
otherwise on the following business day) to the party to whom it is to be given
at the address of such party set forth in the preamble to this Escrow Agreement
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 7). A copy of any notice sent to
any party hereto (which copy shall not constitute notice) shall also be sent to
LKR, Attention: Mitchell C. Littman, Esq. at the address set forth in the
preamble. Any notice given by other means shall be deemed given at the time of
receipt thereof.
8. Waiver. Any waiver by any party of a breach of any provision of this Escrow
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Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this Escrow
Agreement. The failure of a party to insist upon strict adherence to any term of
this Escrow Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Escrow Agreement. Any waiver must be in
writing.
9. Binding Effect. The provisions of this Escrow Agreement shall be binding
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upon and inure to the benefit of Purchasers, Seller and the Escrow Agent and
their respective heirs, executors, successors and assigns.
10. No Third Party Beneficiaries. This Escrow Agreement does not create, and
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shall not be construed as creating, any rights enforceable by any person not a
party to this Escrow Agreement.
11. Governing Law. This Escrow Agreement shall be governed by and construed
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in accordance with the laws of the State of New York, without giving effect to
the rules governing the conflict of laws.
12. Jurisdiction. The parties hereby irrevocably consent to the jurisdiction of
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the courts of the State of New York and of any federal court located in such
State in connection with any action or proceeding arising out of or relating to
this Escrow Agreement, any document or instrument delivered pursuant to, in
connection with, or simultaneously with this Escrow Agreement, a breach of this
Escrow Agreement or of any such document or instrument, or the Escrow Amount.
The parties also agree that service of process may be satisfied by the delivery
of notice of such process as set forth in Section 8 of this Escrow Agreement
which shall constitute good and sufficient service.
13. Severability. To the extent any provision of this Escrow Agreement is held
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to be invalid by a court of competent jurisdiction, such provision shall be
unenforceable without affecting the enforceability of the remainder of such
provision or theremaining provisions of this Escrow Agreement.
14. Headings. The headings in this Escrow Agreement are solely for convenience
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of reference and shall be given no effect in the construction or interpretation
of this Escrow Agreement.
15. Counterparts. This Escrow Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Escrow Agreement
as of the date first written above.
OLYMPIC CASCADE FINANCIAL
CORPORATION
By:___________________________
Name: Mark Goldwasser
Title:
_______________________________
Mark Goldwasser
TRIAGE PARTNERS LLC
By:____________________________
Name: Martin Sands
Title: Co-Manager
By:____________________________
Name: Steven Sands
Title: Co-Manager
LITTMAN KROOKS & ROTH P.C
By:_____________________________
Name: Mitchell C. Littman
Title: Member