ESCROW AGREEMENT
Exhibit
10.5
THIS
ESCROW AGREEMENT (this “Escrow
Agreement”)
made
as of October 31, 2008, by and among Hyde Park Acquisition Corp., a Delaware
corporation (the “Purchaser”), KCP
Services, LLC, a Delaware limited liability company (the “Seller
Representative”),
and
KeyBank National Association, as escrow agent (the “Escrow
Agent”).
WITNESSETH
WHEREAS,
Essex Crane Rental Corporation, a Delaware corporation, the Purchaser, Seller
Representative, Essex Holdings LLC, a Delaware limited liability company
(“Holdings”)
and
the members of Holdings have entered into a certain Purchase Agreement dated
as
of March 6, 2008, as amended on May 9, 2008 and August 14, 2008 (as amended,
the
“Purchase
Agreement”)
(capitalized terms used but not otherwise defined herein shall have the meanings
attributed to them in the Purchase Agreement) with respect to the sale to
Purchaser of all of the equity securities of Holdings, other than the Retained
Interests; and
WHEREAS,
in order to secure the Purchaser against payments of Shortfall Consideration
and
indemnification payments pursuant to Section 11.3 of the Purchase Agreement,
a
portion of the Total Purchase Price and a portion of the shares of Purchaser
Stock owned by Kirtland (defined below) as of the date hereof shall be delivered
to the Escrow Agent to be held in escrow in accordance with the provisions
hereof.
NOW,
THEREFORE, in consideration of the premises set forth herein and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Appointment
of Escrow Agent.
The
Escrow Agent is hereby appointed to act as Escrow Agent hereunder in accordance
with the terms set forth herein, and the Escrow Agent hereby agrees to accept
such
appointment.
2. Deposit
of Escrow Funds and Escrowed Interests.
(a) At
the
Closing, the Purchaser shall deliver to the Escrow Agent (i) an aggregate amount
of $7,000,000 (the “Cash
Escrow Funds”)
by
wire transfer of immediately available funds and (ii) stock certificates issued
in the name of (x) Kirtland Capital Partners III, L.P. (“KCP
III”)
representing 605,191 shares of Purchaser Stock, and (y) Kirtland Capital Company
III LLC (“KCC
III”
and
together with KCP III, “Kirtland”)
representing 36,902 shares of Purchaser Stock (together with securities issued
upon a stock split or other reclassification or combination involving such
shares of Purchaser Stock, the “Escrowed
Interests”
and
together with the Cash Escrow Funds, the “Total
Escrow Funds”).
The
Total Escrow Funds are to be held and disbursed by the Escrow Agent in
accordance with the terms set forth herein.
(b) At
and
from time to time after the Closing as is necessary to transfer the Escrowed
Interests to Purchaser in accordance with the terms hereof, Kirtland shall
deliver to the Escrow Agent duly endorsed stock powers or other documentation
necessary to effectuate any transfers of Purchaser Stock to Purchaser, which
stock powers and other documentation shall be held in escrow by the Escrow
Agent
until such time or times as such transfers are required to be made in accordance
with the terms of this Escrow Agreement.
(c)Reserved.
(d) During
the term of this Escrow Agreement, the Cash Escrow Funds shall be held in a
trust account at KeyBank National Association (“Trust
Account”),
segregated apart from the general funds of KeyBank National Association, pending
disbursement pursuant to this Escrow Agreement. The Escrow Agent shall cause
the
Cash Escrow Funds to be invested, to the maximum practical extent, in United
States Treasury bills having a maturity of thirty-one (31) days or less or
other
similar short-term instruments, including, without limitation, the Victory
Institutional Money Market Fund, payment of the principal and interest on which
is backed by the full faith and credit of the United States. Any interest earned
on the Cash Escrow Funds shall be for the account of the Seller Representative.
Accordingly, the Escrow Agent shall distribute to Seller Representative within
five days following the end of each calendar quarter an amount equal to any
interest or other earnings on such Cash Escrow Funds. The Escrow Agent shall
not
have any liability for any loss sustained as a result of any investment in
an
investment made pursuant to the terms of this Escrow Agreement. The Escrow
Agent
shall have the right to liquidate any investments held in order to provide
funds
necessary to make required payments under this Escrow Agreement.
(e)Escrowed
Interests and any related stock powers or other instruments of transfer shall
be
held by the Escrow Agent in escrow hereunder. Any cash distributions or
dividends paid in respect of the Escrow Interests shall be distributed to Seller
Representative within five days following the end of each calendar quarter.
Kirtland shall be entitled to exercise any voting rights attached to the
Escrowed Interests during such time that the Escrowed Interests are held in
escrow pursuant to this Escrow Agreement.
3. Release
of
Escrow Funds and Escrowed Interests.
The
Cash Escrow Funds and Escrowed Interests shall be distributed by the Escrow
Agent as follows:
(a) If
the
Seller Representative and the Purchaser shall at any time jointly direct Escrow
Agent in writing to distribute some or all of the Total Escrow Funds, or if
Escrow Agent shall have received an order, decree or judgment of a court or
arbitrator of competent jurisdiction and directing Escrow Agent to distribute
some or all of the Total Escrow Funds, Escrow Agent shall on the fifth (5th)
Business Days thereafter distribute the amount of the Total Escrow Funds as
directed in such joint written direction, order, decree or judgment. Any such
distributions made on account of Shortfall Consideration shall be so specified
in such joint written direction, order, decree or judgment.
(b) If
the
Escrow Agent does not receive a copy of a Claim Response on or prior to the
tenth (10th)
Business Day (the “Claim
Response Date”)
immediately following receipt by the Escrow Agent of a copy of a Claim Notice
delivered pursuant to the Purchase Agreement, then the Escrow Agent shall,
on
the fifth (5th)
Business Day after the Claim Response Date, distribute to, or as directed by,
the Purchaser the amount claimed by the Purchaser Indemnitee in the Claim
Notice.
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(c) If
the
Escrow Agent receives a copy of a Claim Response on or prior to the Claim
Response Date, then the Escrow Agent shall (i) on the fifth Business Day after
the Claim Response Date distribute to, or as directed by, the Purchaser the
amount claimed by the Purchaser Indemnitee in the Claim Notice which is not
disputed by the Indemnifying Party in such Claim Response and (ii) retain as
part of the Total Escrow Funds the amount of such claim disputed by the
Indemnifying Party in such Claim Response (a “Disputed
Amount”),
and
continue to hold and disburse such amount in accordance with the provisions
of
this Escrow Agreement.
(d) Any
Claim
Notice, joint written direction, order, decree, judgment or other written
instruction which directs the Escrow Agent to disburse all or a portion of
the
Total Escrow Funds shall specify the amount of such disbursement to be paid
out
of the Cash Escrow Funds and the amount of such disbursement to be paid out
of
the Escrowed Interests; provided,
however,
(i) any
distribution from the Total Escrow Funds shall first be made from the Cash
Escrow Funds until such Cash Escrow Funds have been completely depleted, unless
otherwise agreed to by the Seller Representative, (ii) if, at the time of any
distribution, the specified distribution allocation is no longer possible as
a
result of intervening distributions from the Total Escrow Funds or otherwise,
such distribution shall be satisfied in full out of the Total Escrow Funds
in a
manner that is consistent with the specified allocation to the greatest extent
practicable, and (iii) the aggregate value of Escrowed Interests that may be
distributed under this Escrow Agreement may not exceed $5,000,000 (as calculated
in Section
3(e)
hereof).
The aggregate value of Escrowed Interests from time to time in excess of
$5,000,000 shall be held by the Escrow Agent solely for the benefit of the
Seller Representative.
(e) A
distribution of Escrowed Interests to Purchaser hereunder shall be effected
via
surrender by the Escrow Agent to the Purchaser of the stock powers or other
instruments of transfer held by the Escrow Agent relating to the Escrowed
Interests. The value of any Escrowed Interests to be distributed to the
Purchaser hereunder shall be the average closing sale price for a share of
Purchaser common stock as quoted on the Over-the-Counter Bulletin Board (or
on a
national securities market on which the Purchaser’s common stock is then quoted
for trading) for the twenty trading days ending two trading days immediately
preceding the date of applicable distribution of Escrowed Interests. The
Purchaser shall deliver to the Escrow Agent and the Seller Representative the
Purchaser’s calculation of the value of any Escrowed Interests to be distributed
hereunder, which calculation shall be final and binding absent manifest error
(and Seller’s Representative shall be deemed to be in agreement with such
calculation, unless it shall notify Escrow Agent and Purchaser of any such
error
prior to the time that distribution of the Escrowed Interests to Purchaser
is
required pursuant to this Escrow Agreement). Escrow Agent will not be
responsible for determining or calculating the market price or the amount of
any
distribution.
(f) Promptly
following the date that any payments in respect of an Adjustment are required
to
be made pursuant to Section 2.3(d) of the Purchase Agreement, the Purchaser
and
the Seller Representative shall deliver joint written notice to the Escrow
Agent
directing the Escrow Agent to distribute to, or as directed by, the Seller
Representative from the balance of the Cash Escrow Funds an amount equal to
the
positive difference, if any, between $1,000,000 and any amounts theretofore
distributed to the Purchaser on account of such Adjustment (as specified in
any
joint written direction, order, decree, judgment or other written instruction
theretofore received by the Escrow Agent).
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(g) Promptly,
but in no event longer than five (5) Business Days, following the earlier of
(i)
date that the Survival Period has expired, or (ii) the date on which the total
Cash Escrow Funds plus an aggregate number of Escrowed Interests have been
distributed to Purchaser under this Escrow Agreement having an aggregate value
of $5,000,000, the Purchaser and the Seller Representative shall deliver joint
written notice to the Escrow Agent directing the Escrow Agent to distribute
to,
or as directed by, the Seller Representative the then-remaining amount of the
Total Escrow Funds less
(A) the
aggregate of any Disputed Amounts, and (B) the amount claimed by the Purchaser
in any Claim Notices received as of such date by the Escrow Agent in respect
of
which a Claims Response had not yet been received, or required to be received,
by the Escrow Agent (“Pending
Claim Amounts”).
The
Escrow Agent shall continue to hold and disburse such Disputed Amounts and
Pending Claim Amounts in accordance with the provisions of this Escrow
Agreement.
4. Escrow
Agent.
(a) The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein and no duties shall be implied. The Escrow Agent shall have no liability
under and no duty to inquire as to the provisions of any agreement other than
this Escrow Agreement. The Escrow Agent shall neither be responsible for, nor
chargeable with, knowledge of, nor have any requirements to comply with, the
terms and conditions of any other agreement, instrument or document between
any
of the parties hereto, in connection herewith, if any, including without
limitation the Purchase Agreement, nor shall the Escrow Agent be required to
determine if any person or entity has complied with any such agreements, nor
shall any additional obligations of the Escrow Agent be inferred from the terms
of such agreements, even though reference thereto may be made in this Escrow
Agreement.
(b) The
Escrow Agent may rely upon and shall not be liable for acting or refraining
from
acting upon any written notice, instruction or request furnished to it hereunder
and reasonably believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent shall be under no duty to
inquire into or investigate the validity, accuracy or content of any such
document. The Escrow Agent shall have no duty to solicit any payments which
may
be due it or the Total Escrow Funds. The Escrow Agent shall have no duty or
obligation to make any calculations of any kind hereunder.
(c) The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith except to the extent that a court of competent jurisdiction determines
that the Escrow Agent's gross negligence or willful misconduct was the primary
cause of any loss to the Purchaser or the Seller Representative. 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 the
careful selection of any such agent or attorney) and may consult with counsel,
accountants and other skilled persons to be selected and retained by it. The
Escrow Agent shall not be liable for anything done, suffered or omitted in
good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons. In the event that the Escrow Agent shall
be uncertain as to its duties or rights hereunder or shall receive instructions,
claims or demands from any party hereto which, in its opinion, conflict with
any
of the provisions of this Escrow Agreement, it shall be entitled to refrain
from
taking any action and its sole obligation shall be to hold safely all the Total
Escrow Funds until it shall be directed otherwise in writing by the Purchaser
and the Seller Representative jointly or by a final order or judgment of a
court
of competent jurisdiction. The parties to this Escrow Agreement agree to pursue
any redress or recourse in connection with any dispute without making the Escrow
Agent a party to the same, except where the Escrow Agent is a necessary party
or
is otherwise required by law to be a party to such dispute.
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(d) Anything
in this Escrow Agreement to the contrary notwithstanding, in no event shall
the
Escrow Agent be liable for special, 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.
5. Succession.
The
Escrow Agent may resign and be discharged from its duties or obligations
hereunder by giving 30 days advance notice in writing of such resignation to
the
Purchaser and the Seller Representative specifying a date when such resignation
shall take effect. The Purchaser and the Seller Representative shall use their
best efforts to mutually agree on a successor escrow agent within thirty (30)
days after receiving such notice The 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 escrow agent. If the
Purchaser and the Seller Representative have failed to appoint a successor
escrow agent prior to the expiration of thirty
(30) days following receipt of the notice of resignation, 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 hereto. Escrow Agent’s sole
responsibility after such thirty (30) day notice period expires shall be to
hold
the Cash Escrow Funds (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 a final order or judgment of a court of
competent jurisdiction, at which time of delivery Escrow Agent’s obligations
hereunder shall cease and terminate. The Escrow Agent shall have the right
to
withhold an amount equal to any amount due and owing to the Escrow Agent, plus
any costs and expenses the Escrow Agent shall reasonably believe may be incurred
by the Escrow Agent in connection with the termination of this Escrow Agreement.
Any corporation or association into which the Escrow Agent may be merged or
converted or with which it may be consolidated, or any corporation or
association to which all or substantially all the escrow business of the Escrow
Agent’s line of business may be transferred, shall be the Escrow Agent under
this Escrow Agreement without further act.
6. Fees.
The
Purchaser and the Seller Representative agree jointly and severally to (i)
pay
the Escrow Agent upon execution of this Escrow Agreement and from time to time
thereafter reasonable compensation for the services to be rendered hereunder,
which unless otherwise agreed in writing shall be as described in Schedule
1
attached
hereto, and (ii) pay or reimburse the Escrow Agent upon request for all
expenses, disbursements and advances, including reasonable attorney's fees
and
expenses, incurred or made by it in connection with the preparation, execution,
performance, delivery, modification and termination of this Escrow Agreement.
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7. Indemnity.
The
Purchaser and the Seller Representative shall jointly and severally indemnify,
defend and save harmless the Escrow Agent
and its
directors, officers, agents and employees from all loss, liability or expense
(including the fees and expenses of in house or outside counsel) arising out
of
or in connection with (i) the Escrow Agent's execution and performance of this
Escrow Agreement, except in the case of any indemnitee to the extent that such
loss, liability or expense is finally adjudicated by a court of competent
jurisdiction to have been primarily caused by the gross negligence or willful
misconduct of such indemnitee, or (ii) its following any instructions or other
directions from the Purchaser or the Seller Representative, except to the extent
that its following any such instruction or direction is expressly forbidden
by
the terms hereof. The parties hereto acknowledge that the foregoing indemnities
shall survive the resignation or removal of the Escrow Agent or the termination
of this Escrow Agreement. The Purchaser and the Seller Representative hereby
grant the Escrow Agent a lien on, right of set-off against and security interest
in the Total Escrow Funds for the payment of any claim for indemnification,
compensation, expenses and amounts due hereunder.
8. Termination.
This
Escrow Agreement shall automatically, without any action by the Purchaser or
the
Seller Representative, be terminated upon the disbursement by the Escrow Agent
of all the Total Escrow Funds pursuant to the terms herein.
9. Notices.
(a) All
communications hereunder shall be in writing and shall be deemed to be duly
given and received:
(i)
upon
delivery if delivered personally or upon confirmed transmittal if by
facsimile;
(ii)
on
the next Business Day (as hereinafter defined) if sent by overnight courier;
or
(iii)
four (4) Business Days after mailing if mailed by prepaid registered mail,
return receipt requested, to the appropriate notice address set forth below
or
at such other address as any party hereto may have furnished to the other
parties in writing by registered mail, return receipt requested.
(b) Notwithstanding
the above, in the case of communications delivered to the Escrow Agent pursuant
to (ii) and (iii) of this Section 9, such communications shall be deemed to
have
been given on the date received by the Escrow Agent. 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
reasonably deems appropriate.
(c) "Business
Day" shall mean any day other than a Saturday, Sunday or any other day on which
the Escrow Agent located at the notice address set forth below is authorized
or
required by law or executive order to remain closed.
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(d) All
communications under this Escrow Agreement shall be delivered to the following
address:
|
If
to the Purchaser:
|
000
Xxxxx Xxxxxx, 00 Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxxx X. Xxxx and Xxxxxx Xxxx
Fax:
(000) 000-0000
|
|
with
a copy to:
|
Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx X. Xxxxxxxx, Esq.
Fax:
(000) 000-0000
|
|
If
to Seller Representative:
|
KCP
Services LLC
0000
Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx XxXxxxxxx
Fax
(000) 000-0000
|
|
with
a copy to:
|
Xxxxx
Day
North
Point
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx Xx.
Fax
(000) 000-0000
|
|
If
to the Escrow Agent:
|
KeyBank
National Association
000
Xxxxxx Xxxxxx
Corporate
Xxxxxx Xxxx., 00xx
Xxxxx
Xxxxxxxxx,
Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxxx
Fax
(000) 000-0000
|
10. Amendments
and Waivers.
This
Escrow Agreement may only be amended with the written consent of the parties
or
their respective successors and assigns. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon the parties and their
respective successors and assigns.
11. Successors
and Assigns.
The
terms and conditions of this Escrow Agreement shall inure to the benefit of
and
be binding upon the parties and their successors and assigns. Except as
otherwise set forth herein, no party to this Escrow Agreement may assign its
rights or delegate its duties under this Escrow Agreement without the consent
of
the other parties hereto. The
term
“Escrow Agent” as used herein shall also refer to the successors and assigns of
Escrow Agent, including, without limitation, a receiver, trustee, custodian
or
debtor-in-possession.
12. Titles
and Subtitles.
The
titles and subtitles used in this Escrow Agreement are used for convenience
only
and are not to be considered in construing or interpreting this Escrow
Agreement.
13. Severability.
If one
or more provisions of this Escrow Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded
from this Escrow Agreement, (ii) the balance of this Escrow Agreement shall
be interpreted as if such provision were so excluded and (iii) the balance
of this Escrow Agreement shall be enforceable in accordance with its
terms.
14. Entire
Agreement.
This
Escrow Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof, and merges all prior negotiations
and
drafts of the parties with regard to the transactions contemplated
herein.
15. Counterparts.
This
Escrow Agreement may be executed in a number of identical counterparts but
all
counterparts shall constitute one agreement. All signatures of the parties
to
this Escrow Agreement may be transmitted by facsimile, and such facsimile will,
for all purposes, be deemed to be the original signature of such party whose
signature it reproduces and will be binding upon such party.
16. Governing
Law.
This
Escrow Agreement and all acts and transactions pursuant hereto and the rights
and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law.
17. Consent
to Jurisdiction; Waiver of Jury Trial.
Each of
the parties hereto hereby irrevocably consents to the exclusive jurisdiction
of
the courts of the State of New York and the United States District Court for
the
Southern District of New York and waives trial by jury in any action or
proceeding with respect to this Escrow Agreement.
18. Compliance
with Court Orders.
In the
event that any escrow property shall be attached, garnished or levied upon
by
any court order, or the delivery thereof shall be stayed or enjoined by an
order
of a court, or any order, judgment or decree shall be made or entered by any
court order affecting the property deposited under this Escrow Agreement, the
Escrow Agent is hereby expressly authorized to obey and comply with all writs,
orders or decrees so entered or issued, which it is advised by legal counsel
is
binding upon it, and in the event that the Escrow Agent obeys or complies with
any such writ, order or decree it shall not be liable to any of the parties
hereto or to any other person, firm or corporation, by reason of such compliance
notwithstanding such writ, order or decree be subsequently reversed, modified,
annulled, set aside or vacated.
19. Tax
Reporting.
Prior
to execution of this Escrow Agreement, the Seller Representative shall provide
the Escrow Agent with a fully executed W-8 or W-9 Internal Revenue Service
form,
which shall include its Tax Identification Number (TIN) as assigned by the
Internal Revenue Service.
[signature
page to follow]
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IN
WITNESS WHEREOF, the parties have duly executed this Escrow Agreement as of
the
date first hereinabove stated.
|
KEYBANK
NATIONAL ASSOCIATION
|
|
/s/
Xxxxx X. Xxxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxxx
|
|
Title:
Assistant Vice President
|
|
/s/
Xxxxxxxx Xxxx
|
|
Name:
Xxxxxxxx Xxxx
|
|
Title:
Chief Executive Officer
|
|
KCP
SERVICES LLC
|
|
By:
Kirtland Capital Corporation, its managing member
|
|
/s/
Xxxxxxx X. XxXxxxxxx
|
|
Name:
Xxxxxxx X. XxXxxxxxx
|
|
Title:
Vice President
|
[Signature
Page to Escrow Agreement]
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Schedule
1
Escrow
Fees
Annual
Administrative Escrow Fee payable upon execution of agreement, and annually
thereafter upon the anniversary date of the account opening:
|
Annual
Administrative Fee:
|
$3,500.00
|
*Note:
Should the Parties to the Escrow Agreement direct alternative investments other
than the Victory money market funds (Government Reserve , Federal, and
Institutional), an additional monthly custodial fee of 5 basis points (.0005)
of
assets market value will be charged monthly against the escrowed funds. The
custody fee will be in addition to the annual administrative escrow
fee.
