ESCROW DEPOSIT AGREEMENT
EXHIBIT
10.17
This
ESCROW DEPOSIT AGREEMENT
(this “Agreement”) dated as of this 27st day of December, 2007, by and among
Marine Park Holdings,
Inc., a Delaware C corporation (the “Company”), having an address
at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX, 00000, and Capstone Investments, (“Placement Agent”), having an
address at 0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxxx, XX
00000, and SIGNATURE
BANK (the “Escrow
Agent”), a New York State chartered bank, having an office at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000. All capitalized terms not herein defined
shall have the meaning ascribed to them in that certain Securities Purchase
Agreement, dated December 27, 2007, as amended or supplemented from
time-to-time, including all attachments, schedules and exhibits thereto (the
“Purchase
Agreement”).
W I T N E S S E T H:
WHEREAS, pursuant to the terms
of the Purchase Agreement the Company desires to sell (the “Offering”) a minimum of 8,000
(“Minimum Amount”) of $1,000 par value (“Shares”) in the amount of $8,000,000
(“Minimum Amount”) and a maximum of 12,000 of such shares in the amount of
$12,000,000 (“Maximum Amount”). Each Share is being sold at a price
of $1,000 per Share, with a minimum investment of $100,000 (which minimum
investment may be waived by Company); and
WHEREAS, unless the Minimum
Amount is sold by December 28, 2007 (the “Termination Date”), or by January 5,
2008 (the “Final Termination Date”) if the Termination Date has been
extended by Company and the Placement Agent, the Offering shall terminate and
all funds shall be returned to the subscribers in the Offering; and
WHEREAS, the Company and
Placement Agent desire to establish an escrow account with the Escrow Agent into
which the Company and Placement Agent shall instruct subscribers introduced to
the Company by Placement Agent (the “Subscribers”) to deposit
checks and other instruments for the payment of money made payable to the order
of “Signature Bank as Escrow Agent for Marine Park Holdings, Inc.,”
and Escrow Agent is willing to accept said checks and other instruments for the
payment of money in accordance with the terms hereinafter set forth;
and
WHEREAS, the Company and
Placement Agent represent and warrant to the Escrow Agent that they have not
stated to any individual or entity that the Escrow Agent’s duties will include
anything other than those duties stated in this Agreement; and
WHEREAS, the Company and Placement Agent
warrant to the Escrow Agent that a copy of each document that has been delivered
to Subscribers and third parties that include Escrow Agent’s name and duties,
has been attached hereto as Schedule
I.
NOW, THEREFORE, IT IS AGREED
as follows:
1. Delivery of Escrow
Funds.
(a) Placement Agent and
the Company shall instruct Subscribers to deliver to Escrow Agent checks made
payable to the order of “Signature Bank, as Escrow Agent for Marine Park Holdings, Inc.,”
or wire transfer to Signature Bank, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, ABA
No. 000000000 for credit to Signature Bank, as Escrow Agent for Marine Park Holdings, Inc.,
Account No. _____________, in each case, with the name, address and social
security number or taxpayer identification number of the individual or entity
making payment. In the event any Subscriber’s address and/or social
security number or taxpayer identification number are not provided to Escrow
Agent by the Subscriber, then Placement Agent and/or the Company agree to
promptly provide Escrow Agent with such information in writing. The
checks or wire transfers shall be deposited into a non interest-bearing account
at Signature Bank entitled “Signature Bank, as Escrow Agent for Marine Park Holdings, Inc.”
(the “Escrow
Account”).
(b) The
collected funds deposited into the Escrow Account are referred to as the “Escrow Funds.”
(c) The
Escrow Agent shall have no duty or responsibility to enforce the collection or
demand payment of any funds deposited into the Escrow Account. If,
for any reason, any check deposited into the Escrow Account shall be returned
unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return
the check to the Subscriber and advise the Company and Placement Agent promptly
thereof.
2. Release of Escrow
Funds. The Escrow Funds shall be paid by the Escrow Agent in
accordance with the following:
(a) In
the event that the Company and Placement Agent advise the Escrow Agent in
writing that the Offering has been terminated (the “Termination Notice”), the
Escrow Agent shall promptly return the funds paid by each Subscriber to said
Subscriber without interest or offset.
(b) If prior to 3:00
P.M. Eastern time on the Termination Date, the Escrow Agent receives written
notice, in the form of Exhibit A, attached hereto and made a part hereof, and
signed by the Company and Placement Agent, stating that the Termination Date has
been extended to the Final Termination Date, then the Termination Date shall be
so extended.
(c) Provided that the
Escrow Agent does not receive the Termination Notice in accordance with
paragraph 2(a) and there is the Minimum Amount deposited into the Escrow Account
on or prior to later of the Termination Date or the date stated in
the Extension Notice, if any, received by the Escrow Agent in accordance with
paragraph 2(b) above, the Escrow Agent shall, upon receipt of written
instructions, in the form of Exhibit B, attached hereto and made a part hereof,
or in a form and substance satisfactory to the Escrow Agent, received from the
Company and Placement Agent, pay the Escrow Funds in accordance with such
written instructions, such payment or payments to be made by wire transfer
within one (1) business day of receipt of such written
instructions. Such instructions must be received by the Escrow Agent
no later than 3:00 PM Eastern Time on a Banking Day for the Escrow Agent to
process such instructions that Banking Day.
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(d) If
by 3:00 P.M. Eastern time on the later of the Termination Date or the date
stated in the Extension Notice, if any, that the Escrow Agent has received in
accordance with paragraph 2(b) above, the Escrow Agent has not received written
instructions from the Company and Placement Agent regarding the disbursement of
the Escrow Funds or the total amount of the Escrow Funds is less than the
Minimum Amount, then the Escrow Agent shall promptly return the Escrow Funds to
the Subscribers without interest or offset. The Escrow Funds returned
to each Subscriber shall be free and clear of any and all claims of the Escrow
Agent.
(e) The
Escrow Agent shall not be required to pay any uncollected funds or any funds
that are not available for withdrawal.
(f) If
the Termination Date, Final Termination Date or any date that is a deadline
under this Agreement for giving the Escrow Agent notice or instructions or for
the Escrow Agent to take action is not a Banking Day, then such date shall be
the Banking Day that immediately preceding that date. A Banking Day is any day
other than a Saturday, Sunday or a day that a New York State chartered bank is
not legally obligated to be opened.
3. Acceptance by Escrow
Agent. The Escrow Agent hereby accepts and agrees to perform
its obligations hereunder, provided that:
(a) The
Escrow Agent may act in reliance upon any signature believed by it to be
genuine, and may assume that any person who has been designated by Placement
Agent or the Company to give any written instructions, notice or receipt, or
make any statements in connection with the provisions hereof has been duly
authorized to do so. Escrow Agent shall have no duty to make inquiry
as to the genuineness, accuracy or validity of any statements or instructions or
any signatures on statements or instructions. The names and true
signatures of each individual authorized to act singly on behalf of the Company
and Placement Agent are stated in Schedule II, which is
attached hereto and made a part hereof. The Company and Placement Agent may each
remove or add one or more of its authorized signers stated on Schedule II by
notifying the Escrow Agent of such change in accordance with this Agreement,
which notice shall include the true signature for any new authorized
signatories.
(b) The
Escrow Agent may act relative hereto in reliance upon advice of counsel in
reference to any matter connected herewith. The Escrow Agent shall
not be liable for any mistake of fact or error of judgment or law, or for any
acts or omissions of any kind, unless caused by its willful misconduct or gross
negligence.
(c) Placement
Agent and the Company agree to indemnify and hold the Escrow Agent harmless from
and against any and all claims, losses, costs, liabilities, damages, suits,
demands, judgments or expenses (including but not limited to reasonable
attorney’s fees) claimed against or incurred by Escrow Agent arising out of or
related, directly or indirectly, to this Escrow Agreement unless caused by the
Escrow Agent’s gross negligence or willful misconduct.
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(d) In
the event that the Escrow Agent shall be uncertain as to its duties or rights
hereunder, the Escrow Agent shall be entitled to (i) refrain from taking any
action other than to keep safely the Escrow Funds until it shall be directed
otherwise by a court of competent jurisdiction, or (ii) deliver the Escrow Funds
to a court of competent jurisdiction.
(e) The
Escrow Agent shall have no duty, responsibility or obligation to interpret or
enforce the terms of any agreement other than Escrow Agent’s obligations
hereunder, and the Escrow Agent shall not be required to make a request that any
monies be delivered to the Escrow Account, it being agreed that the sole duties
and responsibilities of the Escrow Agent shall be to the extent not prohibited
by applicable law (i) to accept checks or other instruments for the payment of
money and wire transfers delivered to the Escrow Agent for the Escrow Account
and deposit said checks and wire transfers into the non-interest bearing Escrow
Account, and (ii) to disburse or refrain from disbursing the Escrow Funds as
stated above, provided that the checks received by the Escrow Agent have been
collected and are available for withdrawal.
4. Resignation and Termination
of the Escrow Agent. The Escrow Agent may resign at any time
by giving 30 days’ prior written notice of such resignation to Placement Agent
and the Company. Upon providing such notice, the Escrow Agent shall
have no further obligation hereunder except to hold as depositary the Escrow
Funds that it receives until the end of such 30-day period. In such
event, the Escrow Agent shall not take any action, other than receiving and
depositing Subscribers checks and wire transfers in accordance with this
Agreement, until the Company has designated a banking corporation, trust
company, attorney or other person as successor. Upon receipt of such
written designation signed by Placement Agent and the Company, the Escrow Agent
shall promptly deliver the Escrow Funds to such successor and shall thereafter
have no further obligations hereunder. If such instructions are not
received within 30 days following the effective date of such resignation, then
the Escrow Agent may deposit the Escrow Funds held by it pursuant to this
Agreement with a clerk of a court of competent jurisdiction pending the
appointment of a successor. In either case provided for in this
paragraph, the Escrow Agent shall be relieved of all further obligations and
released from all liability thereafter arising with respect to the Escrow
Funds.
5. Termination. The
Company and Placement Agent may terminate the appointment of the Escrow Agent
hereunder upon written notice specifying the date upon which such termination
shall take effect, which date shall be at least 30 days from the date of such
notice. In the event of such termination, the Company and Placement
Agent shall, within 30 days of such notice, appoint a successor escrow agent and
the Escrow Agent shall, upon receipt of written instructions signed by the
Company and Placement Agent, turn over to such successor escrow agent all of the
Escrow Funds; provided,
however, that if the
Company and Placement Agent fail to appoint a successor escrow agent within such
30-day period, such termination notice shall be null and void and the Escrow
Agent shall continue to be bound by all of the provisions
hereof. Upon receipt of the Escrow Funds, the successor escrow agent
shall become the escrow agent hereunder and shall be bound by all of the
provisions hereof and Signature Bank shall be relieved of all further
obligations and released from all liability thereafter arising with respect to
the Escrow Funds and under this Agreement.
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6. Investment. All
funds received by the Escrow Agent shall be invested only in non-interest
bearing bank accounts at Signature Bank.
7. Compensation. Escrow
Agent shall be entitled, for the duties to be performed by it hereunder, to a
fee of $3,500, which fee shall be paid by the Company upon the signing of this
Agreement. In addition, the Company shall be obligated to reimburse Escrow Agent
for all fees, costs and expenses incurred or that become due in connection with
this Agreement or the Escrow Account, including reasonable attorney’s
fees. Neither the modification, cancellation, termination or
rescission of this Agreement nor the resignation or termination of the Escrow
Agent shall affect the right of Escrow Agent to retain the amount of any fee
which has been paid, or to be reimbursed or paid any amount which has been
incurred or becomes due, prior to the effective date of any such modification,
cancellation, termination, resignation or rescission. To the extent
the Escrow Agent has incurred any such expenses, or any such fee becomes due,
prior to any closing, the Escrow Agent shall advise the Company and the Company
shall direct all such amounts to be paid directly at any such
closing.
8. Notices. All
notices, requests, demands and other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if sent by hand-delivery, by facsimile (followed by first-class mail), by
nationally recognized overnight courier service or by prepaid registered or
certified mail, return receipt requested, to the addresses set forth
below:
If to
Placement Agent:
Capstone
Investments
0000 Xx
Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxx
Xxxxx, XX 00000
Attention:
Xxxxx X. Xxxxx
Fax:
000.000.0000
If to the
Company:
Marine
Park Holdings, Inc.
0000
Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX, 00000
Attention:
_____________________
Fax:
If to
Escrow Agent:
Signature
Bank
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxx
Xxxxxx, Group Director and Senior Vice President
Fax:
000-000-0000
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9. General.
(a) This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of New York applicable to agreements made and to be entirely performed
within such State, without regard to choice of law principles and any action
brought hereunder shall be brought in the courts of the State of New York,
located in the County of New York. Each party hereto irrevocably
waives any objection on the grounds of venue, forum nonconveniens or any
similar grounds and irrevocably consents to service of process by mail or in any
manner permitted by applicable law and consents to the jurisdiction of said
courts. Each of the parties hereto hereby waives all right to trial
by jury in any action, proceeding or counterclaim arising out of the
transactions contemplated by this Agreement.
(b) This
Agreement sets forth the
entire
agreement and understanding of the parties with respect to the matters contained
herein and supersedes all prior agreements, arrangements and understandings
relating thereto.
(c) All
of the terms and conditions of this Agreement shall be binding upon, and inure
to the benefit of and be enforceable by, the parties hereto, as well as their
respective successors and assigns.
(d) This
Agreement may be amended, modified, superseded or canceled, and any of the terms
or conditions hereof may be waived, only by a written instrument executed by
each party hereto or, in the case of a waiver, by the party waiving
compliance. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect its right at a
later time to enforce the same. No waiver of any party of any
condition, or of the breach of any term contained in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or a
waiver of any other condition or of the breach of any other term of this
Agreement. No party may assign any rights, duties or obligations
hereunder unless all other parties have given their prior written
consent.
(e) If
any provision included in this Agreement proves to be invalid or unenforceable,
it shall not affect the validity of the remaining provisions.
(f) This
Agreement and any modification or amendment of this Agreement may be executed in
several counterparts or by separate instruments and all of such counterparts and
instruments shall constitute one agreement, binding on all of the parties
hereto.
10. Form of Signature.
The parties hereto agree to accept a facsimile transmission copy of their
respective actual signatures as evidence of their actual signatures to this
Agreement and any modification or amendment of this Agreement; provided, however, that each party who
produces a facsimile signature agrees, by the express terms hereof, to place,
promptly after transmission of his or her signature by fax, a true and correct
original copy of his or her signature in overnight mail to the address of the
other party.
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IN WITNESS WHEREOF, the
parties have duly executed this Agreement as of the date first set forth
above.
| Marine Park Holdings, Inc. | Capstone Investments |
| By: /s/ Xxxxxxxxx Xxxxxx | By: /s/ Xxxxx X. Xxxxx |
|
Name:
Xxxxxxxxx Xxxxxx
|
Name:
Xxxxx X. Xxxxx
|
|
Title:
Chief Executive Officer
|
Title:
Managing Director
|
SIGNATURE
BANK
By: /s/ Cliff
Broder_______________
Name: Xxxxx
Xxxxxx
Title:
Senior Vice President
By: /s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President
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