EXHIBIT 10.2
ESCROW AGREEMENT
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This Escrow Agreement (this "Escrow Agreement") dated as of January
21, 2000 is made and entered into by and among Deere Park Capital, L.L.C.
("Deere Park"), American Eco Corporation ("AEC") and LaSalle Bank National
Association (the "Escrow Agent"). All capitalized terms used and not defined
herein shall have the meanings contained in that certain Settlement Agreement
dated January 21, 2000 by and among Deere Park, U.S. Industrial Services, Inc.
("USIS") and AEC (the "Settlement Agreement"). A copy of the Settlement
Agreement is attached for ease of reference for such definitions.
RECITALS:
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WHEREAS, pursuant to the Settlement Agreement, Deere Park and AEC have
agreed to suspend the Litigation until May 15, 2000 by providing, among other
things, for the irrevocable and unconditional right by Deere Park upon an Event
of Default to receive and foreclose, in whole or in part, some or all of the
Pledged Securities;
WHEREAS, the Settlement Agreement provides for the execution and
delivery of an escrow agreement, and Deere Park and AEC have agreed that the
execution and delivery of this Escrow Agreement shall satisfy the obligations of
the parties hereto to execute and deliver such an escrow agreement.
NOW, THEREFORE, in consideration of the consummation of the
transactions contemplated by the Settlement Agreement, the covenants and
agreements herein set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Appointment and Agreement of the Escrow Agent. Deere Park and AEC
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hereby appoint and designate the Escrow Agent as the escrow agent for the
purposes set forth herein, and the Escrow Agent hereby accepts such appointment
under the terms and subject to the conditions set forth herein.
2. Deposit of the Pledged Securities and USIS Collateral. Pursuant
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to the Settlement Agreement, as of January 21, 2000, AEC shall deliver to the
Escrow Agent 7 certificates which represent 7,175,858 shares of common stock
(the "Pledged Securities") in USIS to be held in an account (the "Escrow
Account"). The Pledged Securities represent all of the equity interests in USIS
owned by AEC. The cost of establishing the Escrow Account and the ongoing costs
and expenses including Deere Park's legal fees and other expenses related to
such Escrow Account shall be borne by AEC. In addition, AEC shall deliver to the
Escrow Agent the assignment of the USIS Collateral (as such term is defined in
the Settlement Agreement).
3. Establishment of Escrow.
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3.1 Pledged Securities. The Escrow Agent shall hold in escrow
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the Pledged Securities for the benefit of Deere Park to secure payment to Deere
Park of all amounts owed to it under the Settlement Agreement.
3.2 Use of Pledged Securities. The Pledged Securities shall be
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held and disbursed pursuant to the terms and subject to the conditions of the
Settlement Agreement, as set forth in Section 4 hereof.
3.3 USIS Collateral. The USIS Collateral shall be held and
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disbursed pursuant to the terms and subject to the conditions as set forth in
Section 4 hereof.
4. Disbursements of the Pledged Securities.
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4.1 Disbursement Upon Event of Default in Payments.
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The Settlement Agreement provides that AEC shall deliver to
the Escrow Agent, for the benefit of Deere Park: (i) $40,000 concurrent with the
execution of this Escrow Agreement ($35,000 by wire transfer payable to Deere
Park and $5,000 by wire transfer payable to the Escrow Agent); and (ii)
$2,807,235 on or before May 15, 2000 (collectively, the "Payments"). All
Payments (except the $35,000 payable above) shall be paid to Escrow Agent.
Escrow Agent's records shall be dispositive concerning the receipt of all
Payments. Within one (1) business day of receipt, Escrow Agent will promptly
remit to Deere Park any Payments. Notwithstanding any other remedies available
under this Escrow Agreement and the provisions of Section 4.2 below, upon any
Event of Default, where AEC fails to timely make either of the Payments, the
Escrow Agent, without further inquiry by the Escrow Agent, further instruction
to the Escrow Agent or further notice to the parties hereto, shall immediately
deliver the Pledged Securities to Deere Park, with stock powers endorsed in
blank necessary for Deere Park to foreclose upon the Pledged Securities.
4.2 Disbursement Upon Other Events of Default.
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Upon any Event of Default other than an Event of Default
arising from failure to timely make either of the Payments, Deere Park shall
deliver to the Escrow Agent and AEC a written notice of such Event of Default,
in which notice Deere Park shall use commercially reasonable efforts to set
forth the nature of such Event of Default based on information reasonably
available to Deere Park. Within two (2) business days of receipt of such notice
by the Escrow Agent and without any further inquiry by the Escrow Agent or
further instruction to the Escrow Agent, the Escrow Agent shall deliver to Deere
Park from the Escrow Account the USIS Collateral and number of Pledged
Securities, as well as assignments separate from certificates, as indicated in
such notice, unless the Escrow Agent shall have received a written notice of
AEC's objection to. the Event of Default. In the event Deere Park and AEC
dispute the occurrence of an Event of Default, they shall use their best efforts
to cause such matters to be heard at an evidentiary hearing of the court in the
Litigation no later than two business days after AEC's notice of objection and
the Escrow Agent shall act in the manner directed by the court in the
Litigation.
4.3 Disbursement Upon Payments by AEC.
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The Escrow Agent shall maintain a separate account for the
Payments and shall promptly notify Deere Park of receipt of all or any portion
of the Payments from AEC. The parties hereto acknowledge that the interest
accrued on the Payments shall be prorated to the extent the Payments are
received prior to May 15, 2000. The Escrow Agent shall deliver the Pledged
Securities and the USIS Collateral to AEC within 95 days following the Escrow
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Agent's receipt of the Payments and an amount for Deere Park's legal fees not to
exceed $5,000 (such legal fees to be confirmed in writing to the Escrow Agent by
Deere Park).
5. Termination of Escrow.
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5.1 Ninety-five days after the last of the Payments have been
made to the Escrow Agent, unless bankruptcy proceedings have been initiated by
or against AEC, without further inquiry by the Escrow Agent or further
instruction to the Escrow Agent, the Escrow Agent shall terminate this Agreement
and deliver the Pledged Collateral.
5.2 This Escrow Agreement shall automatically terminate if and
when all of the Pledged Collateral shall have been released by the Escrow Agent
in accordance with the terms and subject to the conditions of this Escrow
Agreement. Thereafter, the Escrow Agent shall be deemed to have discharged all
of its obligations hereunder.
6. Matters Affecting the Escrow Agent.
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6.1 Indemnification of the Escrow Agent. From and at all times
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after the date of this Escrow Agreement, Deere Park and AEC shall, to the
fullest extent permitted by law and to the extent provided herein, indemnify and
hold harmless the Escrow Agent and each director, officer, employee, attorney,
agent and affiliate of the Escrow Agent (collectively, the "Indemnified
Parties") against any and all actions, claims (whether or not valid), losses,
damages, liabilities, costs and expenses of any kind or nature whatsoever
(including, without limitation, reasonable attorneys' fees, costs and expenses
actually incurred) incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct, indirect or
consequential, as a result of or arising from or in any way relating to any
claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, including, without limitation, Deere Park or AEC,
whether threatened or initiated, asserting a claim for any legal or equitable
remedy against any person under any statute or regulation, including, but not
limited to, any applicable securities laws, or under any common law or equitable
cause or otherwise, arising from or in connection with the negotiation,
preparation, execution. performance or failure of performance of this Escrow
Agreement or any transactions contemplated herein, whether or not any such
Indemnified Party is a party to any such action, proceeding, suit or the target
of any such inquiry or investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for any liability finally
determined by a court of competent jurisdiction to have resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. If any such
action or claim shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify Deere Park and AEC in writing, and Deere
Park and AEC shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Such Indemnified Party shall, in its
sole discretion, have the right to employ separate counsel (who may be selected
by such Indemnified Party in its sole discretion) in any such action and to
participate in the defense thereof, and the fees and expenses of such counsel
shall be paid by such Indemnified Party, except that Deere Park and AEC shall be
required to pay such fees and expenses. Each of Deere Park, on the one hand, and
AEC, on the other hand, shall be responsible for one-half (1/2) of each such
indemnification responsibility. All such reasonable fees and expenses payable by
Deere Park and/or AEC pursuant to the foregoing sentence shall be paid from time
to time as incurred, both in advance of and after the final disposition of such
action or claim. The obligations of Deere Park and AEC under this Section 6.1
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shall survive any termination of this Escrow Agreement and the resignation or
removal of the Escrow Agent shall be independent of any obligation to the Escrow
Agent. The parties agree that neither the payment by Deere Park or AEC of any
claim by the Escrow Agent for indemnification hereunder nor the disbursement of
any amounts to the Escrow Agent in respect of a claim by the Escrow Agent for
indemnification shall impair, limit. modify or affect, as between Deere Park and
AEC, the respective rights and obligations of Deere Park, on the one hand, and
AEC, on the other hand, under the Settlement Agreement.
6.2 Duties and Liability of the Escrow Agent. The Escrow Agent's
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sole responsibility shall be for the safekeeping and disbursement of the Pledged
Securities in accordance with the terms of this Escrow Agreement. The Escrow
Agent shall have no implied duties or obligations and shall not be charged with
knowledge or notice of any fact not specifically set forth herein. The Escrow
Agent may rely upon any instrument, not only as to its due execution, validity
and effectiveness, but also as to the truth and accuracy of any information
contained therein, which the Escrow Agent shall in good faith believe to be
genuine, to have been signed or presented by the person or parties purporting to
sign the same and to conform to the provisions of this Escrow Agreement. Except
to the extent of gross negligence or willful misconduct, in no event shall the
Escrow Agent be liable for incidental, indirect, special, consequential or
punitive damages. The Escrow Agent shall not be obligated to take any legal
action or commence any proceeding in connection with the Escrow Account, any
account in which the Pledged Securities are deposited, this Escrow Agreement or
the Settlement Agreement, or to appear in, prosecute or defend any such le;-al
action or proceeding. The Escrow Agent may consult legal counsel selected by it
in the event of any dispute or question as to the construction of any of the
provisions hereof or of any other agreement or of its duties hereunder, or
relating to any dispute involving any party hereto. Deere Park and AEC, jointly
and severally, shall promptly pay, upon demand, the reasonable fees and expenses
actually incurred of any such counsel.
6.3 Fees. AEC shall compensate the Escrow Agent for its services
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hereunder in accordance with Schedule A attached hereto. All of the compensation
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and reimbursement obligations set forth in this Section 6.3 shall be payable by
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AEC upon demand by the Escrow Agent. The obligations of Deere Park and AEC under
this Section 6.3 shall survive any termination of this Escrow Agreement and the
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resignation or removal of the Escrow Agent. AEC shall promptly pay such amounts
to the Escrow Agent or any Indemnified Party upon receipt of an itemized
invoice.
6.4 Escrow Agent to Follow Instructions of Deere Park and AEC.
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Except for matters covered by Section 4 and Section 5 hereof, the Escrow Agent
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shall at any time and from time to time take such action hereunder with respect
to the Pledged Securities as shall be agreed to in writing by Deere Park and
AEC.
6.5 Removal and Resignation of the Escrow Agent. Deere Park and
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AEC, acting jointly, may remove the Escrow Agent at any time upon thirty (30)
calendar days' prior written notice, signed by both Deere Park and AEC, to the
Escrow Agent. The Escrow Agent may resign at any time upon thirty (30) calendar
days prior written notice (unless waived by both Deere Park and AEC) to Deere
Park and AEC. Within thirty (30) calendar days after giving the foregoing notice
of resignation from the Escrow Agent, Deere Park and AEC shall jointly agree on
and appoint a successor escrow agent. The successor escrow agent shall be a
national bank having combined capital and surplus satisfactory to Deere Park as
shall be mutually selected by Deere Park and AEC. Any such successor escrow
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agent shall be appointed by a written instrument mutually satisfactory to and
executed by Deere Park and AEC, the Escrow Agent and the successor escrow agent.
If a successor escrow agent has not accepted such appointment by the
end of such thirty (30) calendar day period, the Escrow Agent may apply to a
court of competent jurisdiction for the appointment of a successor escrow agent
or for other appropriate relief. The reasonable costs and expenses (including
reasonable attorneys' fees and expenses actually incurred) incurred by the
Escrow Agent in connection with such proceeding shall be paid by, and be deemed
a joint and several obligation of, Deere Park, on the one hand, and AEC, on the
other hand.
Any successor escrow agent appointed under the provisions of this
Escrow Agreement shall have all of the same rights, powers, privileges,
immunities and authority with respect to the matters contemplated herein as are
granted herein to the original Escrow Agent. It is understood and agreed that no
resignation of the Escrow Agent shall be effective until a successor escrow
agent agrees to act hereunder. If the Escrow Agent submits a notice of
resignation, its only duty, until a successor escrow agent shall have been
appointed and shall have accepted such appointment, shall be to hold and dispose
of the Pledged Securities in accordance with this Escrow Agreement, but without
regard to any notices, requests, instructions, demands or the like received by
it from the other parties hereto after such notice of resignation shall have
been given, unless the same is a direction that the Pledged Securities be
delivered in their entirety to one of the other parties hereto.
7. Other Provisions.
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7.1 Amendment and Waiver. This Escrow Agreement may not be
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amended or waived except in a writing executed by the party against which such
amendment or waiver is sought to be enforced. No course of dealing between or
among any persons having any interest in this Escrow Agreement will be deemed
effective to modify or amend any part of this Escrow Agreement or any rights or
obligations of any person under or by reason of this Escrow Agreement.
7.2 Notices. All notices, requests, demands, claims, and other
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communications hereunder will be in writing. Any notice, request. demand. claim
or other communication hereunder shall be deemed duly given: (i) when delivered,
if delivered in person or by commercial messenger service; or (ii) two days
following deposit with a recognized overnight courier service, provided that
such deposit occurs prior to such deadline as has been imposed by such service
,for overnight delivery; or (iii) when transmitted, if sent by facsimile copy,
provided confirmation of receipt is received by the sender, in each case
provided that such communication is addressed to the intended recipient thereof
as set forth below:
If to the Deere Park:
Deere Park Capital, L.L.C.
00 Xxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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with a copy to:
Xxxxxx & Coff
00 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to AEC:
American Eco Corporation
00000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx XxXxxxxx
Fax: (000) 000-0000
If to Escrow Agent:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
Any party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery or electronic mail), but no
such notice, request, demand, claim or other communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other parties notice in the manner herein set forth.
7.3 Binding Effect and Assignment. This Escrow Agreement and all
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of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither
this Escrow Agreement nor any of the rights, interests or obligations hereunder
may be assigned by AEC, Deere Park or the Escrow Agent without the prior written
consent of Deere Park and AEC.
7.4 Severability. Whenever possible, each provision of this
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Escrow Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Escrow Agreement is held to
be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
7.5 Complete Agreement; No Third Party Beneficiaries. Subject to
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the terms of the Settlement Agreement concerning AEC and Deere Park, this Escrow
Agreement contains the complete agreement between the parties and supersedes any
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prior understandings, agreements or representations by or between the parties,
written or oral, which may have related to the subject matter hereof in any way.
Nothing in this Escrow Agreement, expressed or implied, is intended to confer
upon any person or entity, other than the parties hereto and their respective
successors and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Escrow Agreement.
7.6 Governing Law. This Escrow Agreement shall be construed,
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governed and enforced according to the internal laws of the State of Illinois
without regard to conflicts of law principles. Any suit or proceeding brought
hereunder shall be subject to the exclusive jurisdiction of the courts located
in Xxxx County, Illinois. The parties hereto submit to such jurisdiction.
8. [INTENTIONALLY OMITTED].
9. Attorneys' Fees. Should any litigation be commenced between Deere
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Park, on one hand, and AEC, on the other hand, concerning this Escrow Agreement
or the rights and duties of any party in relation thereto, Deere Park, if it is
the prevailing party, shall be entitled, in addition to such other relief as may
be granted, to receive reimbursement from the opposing party or parties, as
applicable, for Deere Park's attorneys' fees in such litigation, which shall be
determined by the court in that litigation.
10. Waiver of Trial by Jury. EACH OF THE PARTIES HERETO WAIVES, TO
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THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON-CONENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 10. EACH OF THE PARTIES
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HERETO WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY
CLAIMS. EACH OF THE PARTIES HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
AND KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
11. Counterparts and Facsimile Signatures. This Escrow Agreement may
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be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Notwithstanding the laws of any jurisdiction in which this Agreement
is executed or delivered, a facsimile signature shall for all purposes be deemed
an original and shall bind the xxxxxx as if such facsimile were an original.
Each party hereto undertakes to deliver to each other party hereto original
copies of any facsimile signature by overnight courier to the addresses set
forth in Section 7.2 above.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed effective as of the date first written above.
DEERE PARK CAPITAL, L.L.C.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Its: President
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AMERICAN ECO CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx X. XxXxxxxx
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Its: President/CEO
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LASALLE BANK NATIONAL ASSOCIATION,
AS ESCROW AGENT
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Its: Vice President
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