Exhibit 10
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of July 7, 2004, among Saunders
Karp & Megrue LLC (the "Sellers' Representative"), Bob Evans Farms, Inc., a
Delaware corporation ("Buyer"), Mimi's Cafe LLC, a Delaware limited liability
company and wholly-owned subsidiary of the Buyer (the "Purchase Subsidiary"),
and U.S. Bank National Association, as Escrow Agent (the "Escrow Agent").
R E C I T A L S
WHEREAS, the Buyer, the Sellers' Representative, the Purchase
Subsidiary, SWH Corporation, a California corporation (the "Company"), and the
equity holders of the Company (the "Sellers") are parties to a Stock Purchase
Agreement, dated as of June 11, 2004 (the "Purchase Agreement"), pursuant to
which the Buyer will purchase from the Sellers, and the Sellers will sell to the
Buyer, certain Shares and the holders of certain Options and/or Warrants will
cancel such Options and/or Warrants, all upon the terms and subject to the
conditions set forth in the Purchase Agreement.
WHEREAS, Section 3.4 of the Purchase Agreement provides for
the calculation of the Closing Working Capital Amount and Section 3.5 of the
Purchase Agreement provides for the payment by the Sellers to the Buyer of the
difference between the Closing Working Capital Amount and the Estimated Closing
Working Capital Amount in the event that the Closing Working Capital Amount is
less than the Estimated Closing Working Capital Amount;
WHEREAS, the Purchase Agreement provides that $3,000,000 (the
"Working Capital Hold-Back") of the Equity Purchase Price shall be deposited
into escrow to provide a source of funds in the event that the Closing Working
Capital Amount is less than the Estimated Closing Working Capital Amount;
WHEREAS, Section 7.7 and Section 10.2 of the Purchase
Agreement provide for the indemnification of the Buyer Indemnitees from certain
Losses that may be incurred by one or more of them; and
WHEREAS, the Purchase Agreement further provides that
$9,100,000 (the "Hold-Back Amount") of the Equity Purchase Price shall be
deposited into escrow in order to provide a source of funds for the indemnity
referred to in the immediately preceding clause.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Appointment of Escrow Agent; Escrow Deposit. The Sellers,
the Sellers' Representative and the Buyer hereby appoint the Escrow Agent as the
escrow agent under this Agreement, and the Escrow Agent accepts such appointment
according to the terms and conditions set forth herein. On the date hereof, the
Buyer has deposited with the Escrow Agent, and the Escrow Agent hereby
acknowledges receipt of, (a) $2,715,873 in cash representing the
Working Capital Hold-Back less $284,127 representing the Option Working Capital
Hold-Back and (b) $8,238,150 in cash representing the Hold-Back Amount less
$861,850 representing the Option Hold-Back Amount. On July 8, 2004, (x) the
Buyer shall deposit with the Escrow Agent, and the Escrow Agent shall
acknowledge receipt of, $1,145,977 representing the sum of the Option Working
Capital Hold-Back and the Option Hold-Back Amount and (y) the amount of the
Option Working Capital Hold-Back ($284,127) shall be attributed to the Working
Capital Hold-Back and the amount of the Option Hold-back Amount ($861,850) shall
be attributed to the Hold-Back Amount for purposes of this Escrow Agreement. All
of such aforesaid amounts, but exclusive of any interest accrued thereon, shall
be hereinafter referred to as the "Escrow Deposit." The Escrow Agent shall hold,
invest, reinvest, manage, administer, distribute and dispose of the Escrow
Deposit in accordance with the terms and conditions of this Agreement.
2. Investment of Escrow Deposit. Until the termination of this
Agreement, the Escrow Deposit, together with any interest earned thereon, shall
be invested (as directed in written instructions to the Escrow Agent from time
to time by the Sellers' Representative) solely in one or more of the investments
referred to below:
(a) interest bearing time deposits with maturity dates of 30
days or less of any bank located within the United States of America, including
one or more accounts maintained in the commercial banking department (if any) of
the Escrow Agent; provided that any amount held on deposit in any bank not
having unsecured, non-subordinated indebtedness outstanding that is rated as
"investment grade" by a nationally recognized rating agency shall be so invested
only if such amount is fully insured by the Federal Deposit Insurance
corporation ("FDIC");
(b) overnight bank deposits or certificates of deposit with
maturity dates of 30 days or less issued by the commercial banking department
(if any) of the Escrow Agent, or of any bank located in the United States of
America, provided, however, that either (A) any such bank shall have unsecured,
non-subordinated indebtedness outstanding that is rated as "investment grade" by
a nationally recognized rating agency, or (B) the full amount of each and every
certificate of deposit issued by any such bank to the Escrow Agent hereunder
shall be fully insured by the FDIC;
(c) direct obligations of, or obligations guaranteed as to all
principal and interest by, the United States of America, in each case with
maturity dates of 30 days or more;
(d) repurchase agreements with maturity dates of 30 days or
less that are fully secured as to payment of principal and interest by
collateral consisting of obligations described in Sections 2(a) through (c)
above;
(e) commercial paper with maturity dates of 30 days or less
that is rated A-1 by Standard & Poor's Corporation or Prime-1 by Moody's Buyer
Service, Inc., or better; or
(f) investments in institutional money market funds investing
principally in obligations permitted by Sections 2(a) through (e) above.
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In the absence of any written instructions from the Sellers'
Representative to the contrary, the Escrow Agent is hereby authorized and
directed to invest and reinvest the Escrow Deposit in the Escrow Agent's IMMA.
The parties acknowledge that the Escrow Agent shall not be responsible for any
diminution in the Escrow Deposit due to losses resulting from investments made
pursuant to this Agreement. Absent its timely receipt of such specific written
investment instruction from the Seller's Representative, the Escrow Agent shall
have no obligation or duty to invest (or otherwise pay interest on) the Escrow
Property; provided however, that in the event the Escrow Agent shall not have
received such written investment instruction, the Escrow Agent shall be
authorized to invest any of the Escrow Deposit in Escrow Agent's IMMA described
above until such investment instruction is received. The Sellers and the Buyer
shall 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 by July 31, 2004. The Sellers and the Buyer understand that,
in the event their 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 of the Escrow Deposit.
3. Payments From Escrow. The Escrow Agent shall hold the
Escrow Deposit in escrow in accordance with this Agreement and shall make
payments from the Escrow Deposit only as follows or as provided in Section 8
below:
(a) The Buyer shall be paid such amounts as are authorized to
be paid to the Buyer pursuant to Section 4 below.
(b) Within two Business Days after the Escrow Agent receives
joint written notice of the Closing Working Capital Amount from the Buyer and
the Sellers' Representative (and that the Buyer has been paid the amount due
pursuant to Section 3.5.2 of the Purchase Agreement, if applicable), the
Sellers' Representative shall be paid an amount equal to (i) the Working Capital
Hold-Back less (ii) the amount, if any, by which the Closing Working Capital
Amount is less than the Estimated Closing Working Capital Amount (which amount
shall be set forth in the joint written notice delivered to the Escrow Agent by
the Buyer and the Sellers' Representative).
(c) On July 8, 2005, the Sellers' Representative, on behalf of
the Sellers, shall be paid an amount equal to the entire balance of the Escrow
Deposit, including any interest earnings, then remaining less the aggregate of
the then existing Claim Reserves (as defined below) for Open Claims (as defined
below) and the amount of any claim not constituting an Open Claim which is
described in a written notice of a claim from the Buyer in accordance with
Section 4(b) and actually received by the Escrow Agent during the period from
and including July 7, 2004, to but excluding July 8, 2005.
(d) Within two Business Days of the Escrow Agent's having been
given a joint written direction with respect to an Open Claim pursuant to
Section 4(g), (i) the Buyer shall be paid an amount equal to the aggregate
amount payable to the Buyer under the joint written direction for such Open
Claim and (ii) to the extent authorized in Section 4 below, the Sellers'
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Representative, on behalf of the Sellers, shall be paid an amount equal to the
balance of the Claim Reserve established in respect of such Open Claim, the
amount of which shall be set forth in the joint written direction.
(e) Any payment required to be made hereunder by the Escrow
Agent from the Escrow Deposit shall be delivered in accordance with joint
written instructions given to the Escrow Agent by the Buyer and the Sellers'
Representative, except as otherwise provided in Section 4(c) and 4(g) hereof.
4. Buyer Claims. The procedure for payments from the Escrow
Deposit shall be as follows:
(a) Within two Business Days after the Escrow Agent receives
joint written notice of the Closing Working Capital Amount from the Buyer and
the Sellers' Representative, the Buyer shall be paid an amount equal to the
amount by which the Closing Working Capital Amount is less than the Estimated
Closing Working Capital Amount, which amount shall be set forth in the joint
written notice delivered to the Escrow Agent by the Buyer and the Sellers'
Representative. Such amount shall be applied, first, against the Working Capital
Hold-Back and, second, if necessary, against the remainder of the Escrow
Deposit.
(b) From time to time prior to July 8, 2005, if Buyer
determines that Buyer or any other Buyer Indemnitee is entitled to an
indemnification payment under Sections 7.7 or Section 10.2 of the Purchase
Agreement, Buyer may request payment from the Escrow Deposit by giving written
notice of the Buyer's claim to the Escrow Agent and to the Sellers'
Representative, clarifying in such notice the nature of the claim, the amount
thereof if then ascertainable and, if not then ascertainable, a good faith
estimate of the estimated amount thereof (provided, however, that the Buyer
shall provide the Escrow Agent and the Sellers' Representative with a specific
estimated amount), and the provision(s) in the Purchase Agreement on which the
claim is based and the method by and date on which such notice was given to each
recipient and certifying, in the case of the notice to the Escrow Agent, that
the Buyer has used reasonable efforts to confirm the actual receipt of the
Sellers' Representative.
(c) If, within thirty (30) calendar days after actual receipt
by the Escrow Agent of the written notice of a claim from the Buyer in
accordance with Section 4(b), the Escrow Agent has not actually received written
objection to such claim from the Sellers' Representative, the claim stated in
such notice shall be conclusively deemed to be approved by the Sellers'
Representative, on behalf of the Sellers, and the Escrow Agent shall promptly
thereafter pay to the Buyer from the Escrow Deposit an amount equal to the
amount of such claim to the extent of the funds in the Escrow Deposit, excluding
the Working Capital Hold-Back.
(d) If within the thirty (30) day period described in Section
4(c), the Escrow Agent shall have actually received from the Sellers'
Representative a written objection to the claim by the Buyer (a copy of which
objection shall in each case be sent to the Buyer by the Sellers' Representative
in accordance with the provisions of Section 10 below), then such claim shall be
deemed to be an "Open Claim" and the Escrow Agent shall reserve within the
Escrow
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Deposit (excluding the Working Capital Hold-Back) an amount equal to the amount
of the Open Claim (which amount for each Open Claim is referred to herein as the
"Claim Reserve").
(e) The amount constituting the Claim Reserve for each Open
Claim shall be paid by the Escrow Agent from the Escrow Deposit (excluding the
Working Capital Hold-Back) to the Buyer only in accordance with a joint written
instruction by Buyer and the Sellers' Representative following resolution of the
Open Claim in accordance with Section 4(g) below, and any portion of the Claim
Reserve for such Open Claim not so required to be paid to the Buyer shall be
paid by the Escrow Agent to the Sellers' Representative in accordance with
Section 3(d) above and such Claim Reserve shall be reduced to zero; provided,
that if such Open Claim is resolved prior to July 8, 2005, the remaining portion
of such Claim Reserve shall not be distributed to the Sellers' Representative
pursuant to clause (ii) of Section 3(d) but rather shall continue to constitute
a part of the Hold-Back Amount portion of the Escrow Deposit, and shall continue
to be available for additional claims by Buyer pursuant to the terms hereof.
(f) The parties to this Agreement hereby acknowledge and agree
that all instructions, directions or other communications given on behalf of the
Sellers shall be made pursuant to a writing signed by Tim Armstrong or
Christopher Reilly, each a duly authorized officer of the Sellers'
Representative, and shall be binding upon each Seller. The parties further
acknowledge and agree that the Escrow Agent may rely upon such instructions,
directions or other communications made by the Sellers' Representative as if
made by each Seller. The powers conferred upon the Sellers' Representative
pursuant to this Section 4(f) are coupled with an interest and are irrevocable.
(g) If the Sellers' Representative shall raise an objection to
a claim by the Buyer within the 30-day period referred to in Section 4(d) above,
the Sellers' Representative and Buyer shall negotiate in good faith for a
further 15-day period to determine the appropriate amount, of any, of such Open
Claim. If the Sellers' Representative and the Buyer have not made such
determination during such 15-day period, then, to extent such Open Claim remains
in dispute, such Open Claim shall be resolved pursuant to the provisions of the
Purchase Agreement.
5. Conditions to Escrow. The Escrow Agent agrees to hold the
Escrow Deposit and to perform in accordance with the terms and provisions of
this Agreement. The Sellers, the Sellers' Representative and the Buyer agree
that the Escrow Agent does not assume any responsibility for the failure of the
Sellers, the Sellers' Representative or the Buyer to perform in accordance with
the Purchase Agreement or this Agreement. The acceptance by the Escrow Agent of
its responsibilities hereunder is subject to the following terms and conditions,
which the parties hereto agree shall govern and control with respect to the
Escrow Agent's rights, duties, liabilities and immunities:
(a) The Escrow Agent may conclusively rely, and shall be
protected in acting or refraining from acting upon, any written notice,
certification, request, waiver, consent, receipt or other paper or document
furnished to it, not only as to its due execution and validity and effectiveness
of its provisions, but also as to the truth and accuracy of any information
therein contained which the Escrow Agent reasonably believes to be genuine and
to have been signed
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and presented by the proper party or parties. Should it be necessary for the
Escrow Agent to act upon any instructions, directions, documents or instruments
issued or signed by or on behalf of another party hereto, it shall not be
necessary for the Escrow Agent to inquire into such party's authority, capacity,
existence or identity. The Escrow Agent is also relieved from the necessity of
satisfying itself as to the authority of the persons executing this Agreement in
a representative capacity. It is understood that any references herein to joint
instructions or joint written instructions or words of similar import include
any instructions signed in counterpart by the Buyer and the Sellers'
Representative.
(b) The Escrow Agent shall not be liable for any error of
judgment or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may do or refrain from
doing in connection herewith, except for its own gross negligence or willful
misconduct.
(c) The Escrow Agent may consult with, and obtain advice from,
legal counsel, including in-house counsel, in the event of any question as to
any of the provisions hereof or the duties hereunder, and it shall incur no
liability and shall be fully protected in acting in good faith in accordance
with the opinion and instructions of such counsel. The reasonable costs of such
counsel's services shall be paid to the Escrow Agent in accordance with Section
8 below.
(d) The Escrow Agent shall have no duties except those which
are expressly set forth herein and it shall not be bound by (i) the Purchase
Agreement or any agreement of the other parties hereto (whether or not it has
any knowledge thereof) or by any notice of a claim, or demand with respect
thereto, or (ii) any waiver, modification, amendment, termination or rescission
of this Agreement unless the Escrow Agent agrees thereto in writing.
(e) The Escrow Agent may resign and be discharged from its
duties and obligations hereunder by giving notice in writing of such resignation
specifying a date (no earlier than 30 days following the date of such notice)
when such resignation will take effect, provided, however, that until a
successor escrow agent is appointed by the Sellers' Representative and by the
Buyer and such successor accepts such appointment, the Escrow Agent shall
continue to hold the Escrow Deposit and otherwise comply with the terms of this
Agreement; provided further that the parties to this Escrow Agreement agree to
use their commercially reasonable efforts to mutually agree on a successor
escrow agent within 30 days after the giving of Escrow Agent's notice and if no
such successor escrow agent shall be appointed within 30 days of the Escrow
Agent providing its notice, the Escrow Agent may, at the expense of the Buyer
and the Sellers, (i) appoint a successor escrow agent which shall be a national
or state-chartered banking, trust or savings association, (ii) petition any
court of competent jurisdiction for the appointment of a successor escrow agent
or (iii) deposit the Escrow Deposit with the Clerk of the Untied State District
Court for the District of New York, or with the office of the clerk of registry
of any other court of competent jurisdiction, at which time the Escrow Agent's
duties hereunder shall terminate. Any successor escrow agent shall execute and
deliver an instrument accepting such appointment and it shall without further
acts, be vested with all the estates, properties, rights, powers and duties of
the predecessor escrow agent as if originally named as escrow agent. The
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resigning Escrow Agent shall thereupon be discharged from any further
obligations under this Escrow Agreement.
(f) If the Escrow Agent shall merge or consolidate with
another entity or shall sell all or substantially all of its corporate trust
business to another entity, and such surviving entity or transferee shall have
total assets in excess of $100,000,000, such surviving entity or transferee, as
applicable, shall be the escrow agent under this Agreement without any further
act.
(g) Upon delivery of all of the entire Escrow Deposit pursuant
to the terms of Section 3 above or to a successor escrow agent, the Escrow Agent
shall thereafter be discharged from any further obligations hereunder. The
Escrow Agent is hereby authorized, in any and all events, to comply with and
obey any and all final judgments, orders and decrees (not subject to appeal) of
any court of competent jurisdiction which may be filed, entered or issued, and,
if it shall so comply or obey, it shall not be liable to any other person by
reason of such compliance or obedience.
(h) The Escrow Agent shall not have any responsibility or
liability for the completeness, correctness or accuracy of any transactions
between the Buyer and the Purchase Subsidiary, on the one hand, and the Sellers
and the Sellers' Representative, on the other hand.
(i) In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions with respect to
the Escrow Deposit which, in its sole opinion, are in conflict with either other
instructions received by it or any provision of this Agreement, it shall without
liability of any kind, be entitled to hold the Escrow Deposit pending the
resolution of such uncertainty to the Escrow Agent's sole satisfaction, by final
judgment of a court or courts of competent jurisdiction or otherwise, or the
Escrow Agent, at its option, may, in final satisfaction of its duties hereunder,
deposit the Escrow Deposit with the Clerk of the United States District Court
for the District of New York or with the office of the clerk of registry of any
other court of competent jurisdiction.
6. Indemnification. The Sellers, on the one hand, and the
Buyer, on the other, hereby agree to jointly and severally indemnify the Escrow
Agent, its directors, officers, agents and employees and any person who
"controls" the Escrow Agent within the meaning of Section 15 of the Securities
Act of 1933 (collectively, the "Indemnified Parties") for and to hold them
harmless against any loss, liability or expense (including, without limitation,
reasonable attorneys' fees and all expenses reasonably incurred in its
investigation and defense and costs and expenses reasonably incurred in
enforcing this right of indemnification) incurred without gross negligence or
willful misconduct on the part of the Indemnified Parties arising out of or in
connection with this Agreement. The provisions of this Section 6 shall survive
the termination of this Agreement. The Escrow Agent shall have and does have a
first lien against the Escrow Deposit to satisfy any claims for indemnification
made hereunder. Notwithstanding the joint and several nature of the
indemnification obligation hereunder of the Buyer and the Sellers, as between
the Buyer and the Sellers, each shall be responsible for 50% of any such
obligation.
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7. Banking Days. If any date on which the Escrow Agent is
required to make an investment or a delivery pursuant to the provisions hereof
is not a banking day, then the Escrow Agent shall make such investment or
delivery on the next succeeding banking day.
8. Escrow Costs; Not Right of Set-off. The Escrow Agent shall
be entitled to be paid a fee for its services pursuant to the attached Fee
Schedule and to be reimbursed for its reasonable costs and expenses hereunder
(including reasonable counsel fees), which fees, costs and expenses shall be
borne 50% by Buyer and 50% by Sellers; provided, however, that any fees, costs
and expenses not paid to Escrow Agent when due may be deducted by the Escrow
Agent from the interest earned on the Escrow Deposit from time to time as such
fees, costs and expenses are earned. If there is insufficient interest to pay
such escrow costs, such costs may be deducted by the Escrow Agent from the
principal in the Escrow Deposit. Buyer shall reimburse Sellers' Rep for the
portion of any fees, costs and expenses deducted from the interest earned on the
Escrow Deposit or from the principal of the Escrow Deposit to the extent such
fees, costs and expenses were owed by Buyer and not paid to Escrow Agent when
due. Nothing in this Section 8 limits the Escrow Agent's rights against the
Sellers and the Buyer for the payment of amounts due the Escrow Agent under
Section 6 above or the Escrow Agent's fees, costs and expenses hereunder.
The Escrow Agent acknowledges and agrees that it is holding
the Escrow Deposit in its capacity as escrow agent and that it has no right to
apply amounts in the Escrow Deposit against any obligations of (a) the other
parties to this Agreement that do not arise under this Agreement or (b) the
Company.
9. Defined Terms. As used in this Agreement, the following
terms have the respective meanings set forth below:
Person: shall mean an individual, partnership, joint-stock
company, corporation, limited liability company, trust or unincorporated
organization or a government or agency or political subdivision thereof.
10. Notices.
(a) All communications under this Agreement shall be in
writing and shall be delivered by hand or mailed by overnight courier or by
registered mail or certified mail, postage prepaid:
(i) if to the Buyer or the Purchase Subsidiary (and
those to be copied upon notice to the Buyer), to:
Bob Evans Farms, Inc.
Corporate Headquarters
3776 South High Street
Columbus, Ohio 43207
Attention: Stewart Owens/Don Radkoski
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with a copy to:
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
Columbus, Ohio 43215
Attention: Webb I. Vorys/Ronald A. Robins, Jr.
or at such other address as Buyer may have furnished the other
parties hereto in writing;
(ii) if to the Sellers' Representative or the Sellers
(and those to be copied upon notice to the Sellers' Representative),
to:
Saunders Karp & Megrue, LLC
262 Harbor Drive
Stamford, Connecticut 06902
with a copy to:
Ropes & Gray LLP
One International Place
Boston, MA 02110
Attention: Daniel S.Evans
(iii) if to the Escrow Agent, to:
US Bank National Association
225 Asylum Street
Floor 23
Hartford, CT 06103
Attention: Cauna M. Silva, Vice President,
Corporate Trust Services.
(b) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by overnight courier,
on the first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
11. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby and may be amended, modified, supplemented or altered only
by a writing duly executed by the Escrow Agent, the Buyer and the Sellers'
Representative, and any prior agreements or understandings, whether oral or
written, are entirely superseded hereby.
12. Assigns and Assignment. This Agreement shall extend to,
shall inure to the benefit of and shall be binding upon all of the parties
hereto and upon all of their respective successors and permitted assigns.
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13. Payment and Taxation of Interest Earned on Investments of
Escrow Deposit. Any and all interest or other income accrued or earned on the
Escrow Deposit less amounts deducted from such interest or other income pursuant
to Section 8 hereof shall be paid to the Sellers' Representative on or as
promptly as practicable following September 30 and December 31 of 2005 and March
31, June 30, September 30 and December 31 of 2006 and each year thereafter in
which all or any portion of the Escrow Deposit remains undistributed pursuant to
the terms of this Agreement. Each of the Sellers hereby acknowledges that, for
federal and state income tax purposes, the product of (i) such Seller's Seller's
Percentage and (ii) interest earned on the investment of the Escrow Deposit
shall be income of such Seller.
14. No Other Third Party Beneficiaries. Except as otherwise
expressly provided herein, nothing herein expressed or implied is intended or
shall be construed to confer upon or to give any person other than the parties
hereto, any rights or remedies under or by reason of this Agreement.
15. No Waiver. No failure or delay by any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, and no single or partial exercise thereof shall preclude any right of
further exercise or the exercise of any other right, power or privilege.
16. Severability. If any covenant, agreement, provision or
term of this Agreement is held to be invalid for any reason whatsoever, then
such covenant, agreement, provision or term will be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and will
in no way affect the validity or enforceability of any other provision of this
Agreement.
17. Governing Law. This Agreement will be governed by and
construed in accordance with the domestic laws of the State of New York, without
giving effect to any choice of law or conflict provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the laws of any
jurisdiction other than the State of New York to be applied.
18. Counterparts. This Agreement may be executed by the
parties hereto individually or in any combination, in one or ore counterparts,
each of which shall be an original and all of which shall together constitute
one and the same agreement.
19. Defined Terms. Capitalized terms used in this Agreement
without definition shall have the meanings ascribed thereto in the Purchase
Agreement.
20. Patriot Act. To help the government fight the funding of
terrorism and money laundering activities, 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the date first written above.
ESCROW AGENT: U.S. Bank National Association
By: /s/ Cauna M. Silva
---------------------------------
Name: Cauna M. Silva
Title: Vice President
THE BUYER: BOB EVANS FARMS, INC.
By: /s/ Stewart Owens
--------------------------------
Name: Stewart Owens
Title: CEO
PURCHASE SUBSIDIARY: MIMI'S CAFE, LLC
By: /s/ Stewart Owens
--------------------------------
Name: Stewart Owens
Title: Manager and President
THE COMPANY: SWH CORPORATION
By: /s/ Edward Bartholemy
--------------------------------
Name: Edward Bartholemy
Title: Treasurer
SELLERS' REPRESENTATIVE: SAUNDERS KARP & MEGRUE, LLC
By: /s/ Christopher K. Reilly
--------------------------------
Name: Christopher K. Reilly
Title: Partner
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FEE SCHEDULE
Initial fee: $3,500
Annual fee: $3,500