ESCROW AGREEMENT
Exhibit 10.8
EXECUTION COPY
[*The information in Schedule 2 has been omitted from this agreement in connection with a request for confidential treatment. The omitted information has been filed separately with the Securities and Exchange Commission as part of the request for confidential treatment. The omitted information is indicated by a blank and marked with an asterisk.]
This ESCROW AGREEMENT (this “Agreement”), dated as of April 15, 2013, by and among The Karlsson Group , Inc., an Arizona corporation (“Lender”), Prospect Global Resources, Inc., a Nevada corporation (“Obligor”) and JPMorgan Chase Bank, N.A., a national banking association, as escrow agent (together with any successor in such capacity, the “Escrow Agent”). Lender and Obligor are referred to collectively herein as the “Parties”, and individually, a “Party.”
3. Deposit of Funds into Escrow Account.
(a) Escrow Agent shall hold as the Escrow Amount up to a total of $9,213,000 which will be deposited
with the Escrow Agent from time to time and in the amounts and on the dates set forth in Schedule I attached hereto. Schedule I and the dates and funding amounts set forth therein are expressly made part of this Agreement. The Escrow Agent shall invest and reinvest the Escrow Amount and the proceeds thereof as directed in Section 5.
(b) Receipt, investment and reinvestment of the Escrow Amount shall be confirmed by the Escrow Agent as soon as practicable by account statement sent to the Parties, or online statements, if available from Escrow Agent and the Escrow Agent shall be notified by the Parties, as soon as reasonably practicable after becoming aware of any discrepancies in any such account statement.
a copy to Lender), such amount shall be so distributed by the Escrow Agent out of the Escrow Account to the respective vendors and payees listed thereon. The delivery of an Obligor’s Certificate is a representation by the Obligor to the Lender and Escrow Agent that (i) the amounts set forth in such Obligor’s Certificate are valid, due and owing to the payee listed therein and (ii) the amounts requested to be disbursed pursuant to such Obligor’s Certificate comply in all respects with the Approved Schedule or Amended Approved Schedule, as applicable, and Section 3(a) hereof. The Parties hereby acknowledge and agree that (i) the Escrow Agent shall be entitled to rely solely on an Approved Schedule and/or an Amended Approved Schedule and shall disburse the Escrow Amount upon receipt of the Obligor’s Certificate in accordance with such Approved Schedule or Amended Approved Schedule, as applicable, (ii) Schedule 2 attached hereto is an Approved Schedule, (iii) the Escrow Agent shall have no responsibility of ensuring that each Obligor Certificate provided by the Obligor is within the capped amount in the Approved Schedule or any Amended Approved Schedule, (iv) the Escrow Agent shall have no liability for acting on an Obligor Certificate provided by Obligor which amounts may be over the amounts listed on the Approved Schedule or any Amended Approved Schedule, and (v) the Escrow Agent shall have no responsibility to determine if sufficient amounts have been deposited by Obligor for payment to the respective payees on an Approved Schedule or Amended Approved Schedule. Upon the occurrence of the DFS Completion Date (as defined in the Amendment) and payment in full of all amounts set forth on the Approved Schedule or Amended Approved Schedule, as applicable, and Section 3(a) hereof, which shall be certified to the Escrow Agent and Lender pursuant to a certificate of the Obligor executed by an Authorized Representative and the delivery of which certificate shall be a representation by Obligor as to the occurrence of such events, Escrow Agent shall promptly remit all remaining Escrow Amounts to Obligor.
Resolution to the Escrow Agent shall provide written notice to the other Party of such submission of such Final Resolution to the other Party at the same time submission is made to the Escrow Agent. The Parties acknowledge and agree that the Escrow Agent shall be entitled absolutely to rely and act upon any such Final Resolution received, even if such Final Resolution is not final and is subject to further appeal and potential reversal.
7. Escrow Agent’s Duties and Fees.
(b) Reliance. The Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notices, instructions or requests furnished to it pursuant to the terms and provisions of this Agreement and believed by it to be genuine and to have been signed or presented by the proper party or parties in a timely fashion without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall also be protected in refraining from acting upon any such notices, instructions or requests furnished to it and believed by it not to be genuine or timely furnished. The Escrow Agreement shall not be liable to Lender, Obligor, any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or relating to the transfer or distribution of the Escrow Amount, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in accordance with Section 12 below and the Escrow Agent has been able to satisfy any applicable security procedures as may be required thereunder. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys, and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such agent or attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. In the event that the Escrow Agent shall be uncertain, or believes there is some ambiguity, as to its duties or rights hereunder or receives instructions, claims or demands from any Party hereto which, in the Escrow Agent’s judgment, conflict with any of the provisions of this Agreement, or if the Escrow Agent receives conflicting instructions, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by a joint
letter executed by Authorized Representative (as defined in Section 12(b) below) of the Parties or by a court order issued by a court of competent jurisdiction(it being understood that the Escrow Agent shall be entitled conclusively to rely and act upon any such order and shall have no obligation to determine whether any such court order is final). Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Escrow Agent shall have no duty to solicit any payments which may be due to it or due in respect of the Escrow Account, including, without limitation, the Escrow Amount, nor shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any amounts deposited hereunder. The Escrow Agent shall have no duty or obligation to make any calculations of any kind hereunder.
7 ( e), all funds and property in the Escrow Account shall be turned over promptly to such successor escrow agent, who shall thereupon be bound by all of the provisions hereof. If the Parties shall fail to name a successor escrow agent prior to the effective date of the Escrow Agent’s resignation or termination hereunder, the Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief, and any such resulting appointment shall be binding upon all of the Parties. The Escrow Agent’s sole responsibility shall be to hold the Escrow Amount (without any obligation to reinvest the same) and to deliver the same to a designated substitute escrow agent, if any, or in accordance with the directions of an order or judgment of a court of competent jurisdiction, at which time the Escrow Agent’s obligations hereunder shall cease and terminate.
(a) The Parties have provided the Escrow Agent with their respective fully executed Internal Revenue Service (“IRS”) Form W-8, or W-9. All interest or other income earned under this Agreement shall be allocated to the Obligor and reported, as and to the extent required by law, by the Escrow Agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned from the Escrow Deposit by the Obligor whether or not said income has been distributed during such year. The Parties hereby represent to the Escrow Agent that no other tax reporting of any kind is
required given the underlying transaction giving rise to this Agreement.
(b) Any other tax returns required to be filed shall be prepared and filed by Lender and Obligor, as applicable, with the IRS and any other taxing authority as required by law, including but not limited to any applicable reporting or withholding pursuant to the Foreign Investment in Real Property Tax Act (“FIRPTA”). Lender and Obligor acknowledge and agree that the Escrow Agent shall have no responsibility for the preparation and/or filing of any income tax return or any applicable FIRPTA reporting or withholding with respect to the Escrow Amount or any income earned by the Escrow Amount. Lender and Obligor further acknowledge and agree that any taxes payable from the income earned on the investment of any sums held in the Escrow Account shall be paid by Obligor. In the absence of a joint written direction from Lender and Obligor, all proceeds of the Escrow Amount shall be retained in the Escrow Account and reinvested from time to time by the Escrow Agent as provided in this Agreement.
10. Consent to Jurisdiction and Service. The Parties to this Agreement consent and submit to the jurisdiction of the courts of the State of California and of any federal court located in the State of California in connection with any actions or proceeding brought against the Parties by the Escrow Agent arising out of or in relation to this Agreement and each Party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds to the jurisdiction of such courts. In any such action or proceeding the Parties hereby absolutely and irrevocably waive personal service of any summons, complaint, declaration or other process and agrees that service thereof may be made by certified or registered first class mail directed to the Parties at the addresses set forth in Section 11.
11. Notices and Funds Transfer Information. All communications hereunder shall be in writing and,
except for communications from Lender or Obligors setting forth, claiming, objecting to, or in any way relating to the transfer of distribution of funds, including but not limited to funds transfer instructions (all of which shall be specifically governed by Section 12 below), shall be deemed to be duly given after is has been received if it is sent or served to the appropriate notice address set forth below or at such other address as any Party or the Escrow Agent may have furnished to the other parties hereto in writing. Notwithstanding the above, in the case of communications delivered to the Escrow Agent such communications shall be deemed to have been given on the date received by an officer of the Escrow Agent or any employee of the Escrow Agent who reports directly to such officer at the below referenced office. Any communications received after 5:00 pm PST shall be deemed to have been received on the next Business Day. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate. All communications hereunder shall be in writing, and all instructions shall be executed by an Authorized Representative, and shall be executed and delivered with the terms of this Agreement by facsimile or overnight courier only to the appropriate fax number or notice address set forth for each party as follows:
(i) If to Lender, to: Xxxxxxx Xxxxx, 00 Xxxxx Xxx., Xxxxxx, XX 00000, Telefax: 000 000 0000
(ii) If to Obligor to:
Prospect Global Resources, Inc.
0000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
(iii) If to the Escrow Agent, to:
JPMorgan Chase Bank, N.A. Escrow Services
000 Xxxxx Xxxxx Xxxxxx
Mail Code XX0-0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Facsimile: 000-000-0000
12. Security Procedures.
(a) Notwithstanding the foregoing, any instructions setting forth, claiming, containing, objecting to, or in any way relating to the transfer or distribution of funds, including, but not limited to, any such funds transfer instructions that may otherwise be set forth in a written instruction pursuant to Section 6 of this Agreement shall be executed by an Authorized Representative of the appropriate Party or Parties, and delivered to the Escrow Agent only by confirmed facsimile on a Business Day only at the fax number set forth in Section 11 above. No instruction for or related to the transfer or distribution of the Escrow Amount, or any portion thereof, shall be deemed delivered and effective unless the Escrow Agent actually shall have received such instruction on a Business Day by facsimile at the number provided to
Lender and Obligor by the Escrow Agent in accordance with Section 11 and as further evidenced by a confirmed transmittal to that the Party’s or Parties transmitting fax number and the Escrow Agent has been able to satisfy any applicable security procedures as may be required hereunder. The Escrow Agent shall not be liable to any Party or other person for refraining from acting upon any instruction for or related to the transfer or distribution of the Escrow Amount if delivered to any other fax number.
(b) In the event Escrow Amount funds transfer instructions are received by the Escrow Agent by facsimile, the Escrow Agent is authorized to seek confirmation of such instructions by a single telephone call-back to the Person or Persons designated on Schedule 3 hereto (each an “Authorized Representative”), and the Escrow Agent may rely upon the confirmation of anyone purporting to be that Authorized Representative. The persons and telephone numbers designated for call-backs may be changed only in a writing executed by Authorized Representatives of the applicable Party and actually received by Escrow Agent via facsimile. No funds will be disbursed until an Authorized Representative is able to confirm such instructions by telephone callback. The Escrow Agent, any intermediary bank, and the beneficiary’s bank in any funds transfer may rely upon the identifying number of the beneficiary’s bank or any intermediary bank included in a funds transfer instruction provided by Lender or Obligor and confirmed by an Authorized Representative to identify (i) the beneficiary, (ii) the beneficiary’s bank or (iii) an intermediary bank. Further, the beneficiary’s bank in the funds transfer instructions may make payment on the basis of the account number provided in such Party’s or the Parties’ instruction and confirmed by an Authorized Representative even though it identifies a person different from the named beneficiary.
(c) The Parties acknowledge that the Escrow Agent is authorized to use the following funds transfer instructions to disburse any funds due to Obligor, without a verifying call-back as set forth in Section 12(b) above:
Bank Name: KeyBank NA
Bank Address: 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
ABA Number: 000-000-000
Account Name: Prospect Global Resources Inc.
Account Number: 765071001158
The parties to this Agreement acknowledge that these security procedures are commercially reasonable. All funds transfer instructions shall be executed by an Authorized Representative as set forth on Schedule 3 hereto.
Agreement shall automatically terminate if and when all of the Escrow Amount (which includes all the securities in which any of the Escrow Amount shall have been invested) shall have been distributed by the Escrow Agent in accordance with the terms of this Agreement.
more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument or instruction, as applicable. All signatures of the parties to this Agreement may be transmitted by facsimile.
(f) Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires the Escrow Agent to implement reasonable procedures to verify the identity of any Person that opens a new account with it. Accordingly, the parties acknowledge that Section 326 of the USA PATRIOT Act and the Escrow Agent’s identity verification procedures require the Escrow Agent to obtain information which may be used to confirm the parties identity including without limitation name, address and organizational documents (“identifying information”). The parties agree to provide the Escrow Agent with and consent to the Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent.
(h) Miscellaneous. If any provision of this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. The Parties represent, warrant and covenant that each document, notice, instruction or request provided by such Party to the Escrow Agent shall comply with applicable laws and regulations. Where, however, the conflicting provisions of any such applicable law may be waived, they are hereby irrevocably waived by the parties hereto to the fullest extent permitted by law, to the end that this Agreement shall be enforced as written. Except as expressly provided in Section 7(e) above, nothing in this Agreement, whether express or implied, shall be construed to give to any person or entity other than Escrow Agent and the Parties any legal or equitable right, remedy, interest or claim under or in respect of the Escrow Amount or this Agreement.
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Lender:
THE KARLSSON GROUP, INC. |
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By: |
/s/ Xxxxxx Xxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
President |
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Obligor: |
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PROSPECT GLOBAL RESOURCES, INC. |
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By: |
/s/ Xxxxx Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
President and CEO |
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JPMORGAN CHASE BANK, N.A. |
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By: |
/s/ Xxxxx Xxx |
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Name: |
Xxxxx Xxx |
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Title: |
Vice President |
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SCHEDULE 1
Amount |
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Escrow Deposit Date | |
$ |
313,000 |
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Within one (1) Business Day of funding the First Funding Raise |
$ |
250,000 |
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Within one (1) Business Day of funding the First Funding Raise |
$ |
500,000 |
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Within one (1) Business Day of funding the First Funding Raise |
$ |
500,000 |
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Within one (1) Business Day of funding the First Funding Raise |
$ |
500,000 |
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Within one (1) Business Day of funding the First Funding Raise |
$ |
2,850,000 |
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Within one (1) Business Day of funding the Second Funding Raise |
$ |
4,050,000 |
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Within one (1) Business Day of funding the Third Funding Raise |
$ |
250,000 |
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Within one (1) Business Day of funding the Third Funding Raise |
SCHEDULE 2
APPROVED SCHEDULE
Category |
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Amount |
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Approved Vendors/Payees |
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* |
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SCHEDULE 2
Schedule of Fees and Disclosures for Escrow Agent Services
Based upon our current understanding of your proposed transaction, our fee proposal is as follows:
Account Acceptance Fee |
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$6,000 |
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Encompassing review, negotiation and execution of governing documentation, opening of the account, and completion of all due diligence documentation. Payable upon closing.
Annual Administration Fee |
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$Waived |
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The Administration Fee covers our usual and customary ministerial duties, including record keeping, distributions, document compliance and such other duties and responsibilities expressly set forth in the governing documents for each transaction. Payable upon closing and annually in advance thereafter, without pro-ration for partial years.
Extraordinary Services and Out-of Pocket Expenses
Any additional services beyond our standard services as specified above, and all reasonable out-of-pocket expenses including attorney’s or accountant’s fees and expenses will be considered extraordinary services for which related costs, transaction charges, and additional fees will be billed at the Escrow Agent’s then standard rate. Disbursements, receipts, investments or tax reporting exceeding 25 items per year may be treated as extraordinary services thereby incurring additional charges. The Escrow Agent may impose, charge, pass-through and modify fees and/or charges for any account established and services provided by the Escrow Agent, including but not limited to, transaction, maintenance, balance-deficiency, and service fees, agency or trade execution fees, and other charges, including those levied by any governmental authority.
Fee Disclosure & Assumptions: Please note that the fees quoted are based on a review of the transaction documents provided and an internal due diligence review. The Escrow Agent reserves the right to revise, modify, change and supplement the fees quoted herein if the assumptions underlying the activity in the account, level of balances, market volatility or conditions or other factors change from those used to set our fees. Payment of the invoice is due upon receipt
The Escrow Amount shall be continuously invested in a JPMorgan Chase Bank MMDA. MMDA’s have rates of interest or compensation that may vary from time to time as determined by the Escrow Agent.
Disclosures and Agreements
Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires the Escrow Agent to implement reasonable procedures to verify the identity of any person that opens a new account with it. Accordingly, you acknowledge that Section 326 of the USA PATRIOT Act and the Escrow Agent’s identity verification procedures require the Escrow Agent to obtain information which may be used to confirm your identity including without limitation name, address and organizational documents (“identifying information”). You agree to provide the Escrow Agent with and consent to the Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent.
OFAC Disclosure. The Escrow Agent is required to act in accordance with the laws and regulations of various jurisdictions relating to the prevention of money laundering and the implementation of sanctions, including but not limited to regulations issued by the U.S. Office of Foreign Assets Control. The Escrow Agent is not obligated to execute payment orders or effect any
other transaction where the beneficiary or other payee is a person or entity with whom the Escrow Agent is prohibited from doing business by any law or regulation applicable to Escrow Agent, or in any case where compliance would, in the Escrow Agent’s opinion, conflict with applicable law or banking practice or its own policies and procedures. Where the Escrow Agent does not execute a payment order or effect a transaction for such reasons, the Escrow Agent may take any action required by any law or regulation applicable to the Escrow Agent including, without limitation, freezing or blocking funds.
Abandoned Property. The Escrow Agent is required to act in accordance with the laws and regulations of various states relating to abandoned property and, accordingly, shall be entitled to remit dormant funds to any state as abandoned property in accordance with such laws and regulations.
THE FOLLOWING DISCLOSURES ARE REQUIRED TO BE PROVIDED UNDER APPLICABLE U.S. REGULATIONS, INCLUDING, BUT NOT LIMITED TO, FEDERAL RESERVE REGULATION D. WHERE SPECIFIC INVESTMENTS ARE NOTED BELOW, THE DISCLOSURES APPLY ONLY TO THOSE INVESTMENTS AND NOT TO ANY OTHER INVESTMENT.
Demand Deposit Account Disclosure. The Escrow Agent is authorized, for regulatory reporting and internal accounting purposes, to divide an escrow demand deposit account maintained in the U.S. in which the Escrow Amount is held into a non-interest bearing demand deposit internal account and a non-interest bearing savings internal account, and to transfer funds on a daily basis between these internal accounts on the Escrow Agent’s general ledger in accordance with U.S. law at no cost to the Parties. The Escrow Agent will record the internal accounts and any transfers between them on the Escrow Agent’s books and records only. The internal accounts and any transfers between them will not affect the Escrow Amount, any investment or disposition of the Escrow Amount, use of the escrow demand deposit account or any other activities under this Agreement, except as described herein. The Escrow Agent will establish a target balance for the demand deposit internal account, which may change at any time. To the extent funds in the demand deposit internal account exceed the target balance, the excess will be transferred to the savings internal account, unless the maximum number of transfers from the savings internal account for that calendar month or statement cycle have already occurred. If withdrawals from the demand deposit internal account exceeds the available balance in the demand deposit internal account, funds from the savings internal account will be transferred to the demand deposit internal account up to the entire balance of available funds in the savings internal account to cover the shortfall and to replenish any target balance that the Escrow Agent has established for the demand deposit internal account. If a sixth transfer is needed during a calendar month or statement cycle, it will be for the entire balance in the savings internal account, and such funds will remain in the demand deposit internal account for the remainder of the calendar month or statement cycle.
MMDA Disclosure and Agreement. If MMDA is the investment for the escrow deposit as set forth above or anytime in the future, you acknowledge and agree that U.S. law limits the number of pre-authorized or automatic transfers or withdrawals or telephonic/electronic instructions that can be made from an MMDA to a total of six (6) per calendar month or statement cycle or similar period. The Escrow Agent is required by U.S. law to reserve the right to require at least seven (7) days notice prior to a withdrawal from a money market deposit account.
Unlawful Internet Gambling. The use of any account to conduct transactions (including, without limitation, the acceptance or receipt of funds through an electronic funds transfer, or by check, draft or similar instrument, or the proceeds of any of the foregoing) that are related, directly or indirectly, to unlawful Internet gambling is strictly prohibited.
Schedule 3
Telephone Number(s) and Signature(s) for Person(s) Designated to Give & Confirm Funds Transfer Instructions
If to Lender:
Name |
Telephone Number |
Specimen Signature |
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1. Xxxxxxx Xxxxx |
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If to Obligor: |
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Name |
Telephone Number |
Specimen Signature |
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1. Xxxx Xxxxxxx |
000-000-0000 |
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Periodically, Lender or Obligor may issue payment orders to the Escrow Agent to transfer funds by federal funds wire. All orders, including but not limited to funds transfer instructions, transmitted by facsimile, must include the signature of an Authorized Representatives authorizing said funds transfer on behalf of such Party. The Escrow Agent reviews the orders to determine compliance with the governing documentation and to confirm signature by the appropriate party, in accordance with this Schedule 3. The Escrow Agent’s policy requires that, whenever practicable, it undertake callbacks to a party other than the individual who signed the payment order to verify the authenticity of the payment order.
Schedule 4
Obligor Certificate
[INSERT DATE]
Via Facsimile
JPMorgan Chase Bank, N.A.
Escrow Services
000 Xxxxx Xxxxx Xxxxxx, Mail Code XX0-0000
Xxx Xxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
Escrow Agreement dated April [ ], 2013 by and among The Karlsson Group, Inc. (“Lender”), Prospect Global Resources, Inc. (“Obligor”), and JPMorgan Chase Bank, N.A. (the “Escrow Agent”)
Ladies and Gentlemen:
This Obligor Certificate is being delivered pursuant to Section 6(a) of the Agreement referenced above. The Obligor hereby instructs the Escrow Agent to distribute the following amount [$ ] from Category [ ] for [VENDOR/PAYEE]and with the following wiring instructions:
Bank Name:
Bank Address:
ABA Number:
Account Name:
Account Number:
All capitalized terms used in this letter and not otherwise defined shall have the respective meanings ascribed thereto in the Agreement.
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Authorized Representative of Obligor |
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Exhibit A
(Definitions)
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. For purposes of the immediately preceding sentence, the term “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.
“Business Day” means a day on which banks are open to the public for conducting business and not authorized or required to close in the State of California.
“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof.