ESCROW AGREEMENT
Exhibit
2.2
THIS
ESCROW AGREEMENT (this "Agreement") is dated as of October 31, 2007 and
is entered into by and among —
Sterling
Construction Company, Inc. ("SCC;")
Xxxxxx
Sand and Gravel Co. ("FSG;")
Xxxxxxx
X. Xxxxxxxx ("Xx. Xxxxxxxx;") and
Comerica
Bank as escrow agent (the "Escrow Agent.")
Each
of
the foregoing parties is sometimes referred to herein as a "Party" and
together they are sometimes referred to as the
"Parties." SCC, FSG and Xx. Xxxxxxxx are sometimes each
referred to herein as a "Depositor" and together as the
"Depositors." FSG and Xx. Xxxxxxxx are sometimes herein
referred to together as the "Sellers."
Background
Pursuant
to a Purchase Agreement dated as of October ____, 2007 among SCC, FSG, Xx.
Xxxxxxxx and Xxxxxx Xxxxxx (the "Purchase Agreement") SCC has agreed to
purchase and FSG and Xx. Xxxxxxxx have agreed to sell certain members'
interests in Road and Highway Builders, LLC and all of the shares of capital
stock of Road and Highway Builders Inc. Capitalized terms used but
not defined in this Agreement have the meanings assigned to them in the Purchase
Agreement.
In
order
to secure a portion of the Sellers' indemnity obligations in the Purchase
Agreement, SCC is entitled to deposit with the Escrow Agent at the Closing
five
million three hundred thousand dollars of the cash payable to the Sellers at
the
Closing (the "Escrow Amount.")
Accordingly,
for and in consideration of the foregoing recitals and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Parties hereto agree as follows:
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1.
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Establishment
of the Escrow.
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1.1.
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On
the date hereof, SCC has delivered the Escrow Amount to the Escrow
Agent.
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1.2.
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The
Escrow Amount shall be held in escrow in the name of the Escrow Agent
or
its nominee, subject to the terms and conditions set forth in this
Agreement.
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2.
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Investment
of, and Amounts Earned on, the Escrow
Amount.
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2.1.
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The
Escrow Agent agrees that it shall invest the Escrow Amount in United
States Government securities or securities of agencies of the United
States Government that are guaranteed by the United States Government
unless the Depositors, from time to time, otherwise instruct the
Escrow
Agent by a notice in accordance with Section 8 to invest in
any other securities, provided that such other securities are of
a type in
which the Escrow Agent generally invests in the ordinary course of
its
business when acting as a trustee or an escrow agent. The
investments authorized by the foregoing sentence are sometimes referred
to
herein as the "Permitted
Investments."
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2.2.
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The
Permitted Investments shall initially mature no later than eighteen
months
following the Closing Date.
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2.3.
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The
Escrow Agent is authorized to sell the necessary portion of any Permitted
Investments to make any distributions required to be made pursuant
to this
Agreement or to make any permitted deduction from the Escrow
Amount. The Escrow Agent is authorized to invest any otherwise
un-invested cash in any money market mutual fund that it makes available
and that is rated at the time of purchase within the two highest
classifications established by at least one national rating service,
including a money market mutual fund advised by the Escrow Agent
or by any
of its affiliates, and a money market fund in which interest is paid
to
the escrow account net of any bank
fee.
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2.4.
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It
is understood and agreed that the Escrow Agent or one of its affiliates
may receive a fee for its services as investment advisor to such
a fund
and that it, or an affiliate, may receive a so-called "12b-1" fee
for
other services provided to such fund. It is agreed that the
Escrow Agent, or its affiliate, may retain any such fees received
with
respect to the assets of such fund, and any conflict of interest
which
might arise from such investment is hereby waived by the
Depositors.
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2.5.
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Any
dividends or interest paid on the Escrow Amount shall be deposited
with,
or retained by, the Escrow Agent as an addition to the Escrow Amount;
shall be treated in the same manner as the Escrow Amount; and shall
be
taxable in equal portions to the
Sellers.
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3.
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Claims
Against the Escrow Amount.
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3.1.
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At
any time or times prior to the Expiration Date (as defined in Section
5.1, below) SCC may make one or more claims against the
Escrow
Amount for amounts due for indemnification under the Purchase Agreement
(each a "Claim" and together the
"Claims"). SCC shall give notice to the Sellers and
the Escrow Agent in writing of each Claim, and shall include therein
a
brief description of the amount and nature of the Claim. Each
such notice delivered to the Escrow Agent by SCC shall contain a
representation by SCC to the effect that SCC has delivered a copy
of the
notice to the Sellers prior to, or simultaneously with, its delivery
to
the Escrow Agent.
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3.2.
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Upon
receipt of a Claim by the Escrow Agent, the Escrow Agent shall make
a
record of the amount of the Claim set forth in the notice of the
Claim, or
if the Claim is unliquidated, SCC's good faith estimate of the amount
of
the Claim (the "Set Aside Amount.") In the event SCC
notifies the Escrow Agent in writing that it has made out-of-pocket
expenditures and/or anticipates that it will in the future incur
out-of-pocket expenditures such as accounting (but not legal) expenses
in
connection with any Claim with respect to which SCC is entitled to
be
indemnified under the Purchase Agreement, the amount of such incurred
and/or anticipated expenditures shall be added to, and become a part
of,
the Set Aside Amount. The Set Aside Amount will be placed by
the Escrow Agent in a separate account or accounted for separately
by the
Escrow Agent from the balance of the Escrow
Amount.
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3.3.
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No
distribution shall be made by the Escrow Agent of any of the Set
Aside
Amount with respect to a Claim until either
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3.3.1
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The
Claim has been resolved as evidenced by a written notice executed
by the
Depositors instructing the Escrow Agent as to the distribution of
the Set
Aside Amount or portion thereof; or
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3.3.2
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With
respect to disputed Claims, the dispute shall have been resolved
or
otherwise finally adjudicated in a non-appealable manner and the
Escrow
Agent shall have received a certified copy of the
adjudication.
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3.4.
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In
the event that it shall be agreed in writing by the Depositors or
determined through adjudication that SCC is not entitled to
indemnification with respect to the Claim or with respect to a portion
thereof, the Set Aside Amount or portion thereof to which SCC is
not
entitled shall be returned to the account holding the Escrow Amount,
or if
the Expiration Date shall have occurred, shall be distributed as
provided
in Section 5, below, as the case may
be.
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3.5.
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If
the amount in the notice referred to in Section 3.3.1,
above, or the amount of the final judgment referred to in Section
3.3.2, above, exceeds the Set Aside Amount, the excess shall
be
drawn from the then remaining Escrow Amount, if any, and paid to
SCC
together with the Set Aside Amount.
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3.6.
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If
the amount of a Claim exceeds the aggregate value of the Escrow Amount,
including any Set Aside Amount then held by the Escrow Agent, the
Escrow
Agent shall have no liability or responsibility for any such
excess.
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4.
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Distributions. Distributions
authorized hereunder of any portion of the Escrow Amount shall be
made by
check payable to the order of the Party entitled thereto if the amount
thereof is one hundred thousand dollars or less and by wire transfer
of
immediately available funds if the amount thereof is more than one
hundred
thousand dollars provided that the Escrow Agent shall have been give
written wire transfer instructions by the distributee
thereof.
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5.
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Termination.
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5.1.
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This
Agreement shall terminate at 5:00 p.m. Central Time on the last day
that
banks in Texas are open for business of the eighteenth full calendar
month
following the Closing Date (the "Expiration Date") provided that
there are then no outstanding Claims as to which the Escrow Agent
has
received notice pursuant to Section 3, above. The
Depositors shall notify the Escrow Agent in writing of the date of
the
Closing. If any Claims are outstanding on the Expiration Date,
then this Agreement shall continue in effect with respect to an amount
in
cash equal to one hundred fifty percent of the sum of
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5.1.1
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The
amount of any then existing Set Aside Amounts;
and
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5.1.2
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The
amount specified in any notice of a Claim delivered to the Escrow
Agent on
or prior to the Expiration Date with respect to which no Set Aside
Amount
has yet been established.
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5.2.
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The
balance of the Escrow Amount, if any, shall be distributed in equal
shares
to the Sellers.
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5.3.
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Upon
the resolution of all Claims, if any, outstanding on the Expiration
Date,
the Escrow Agent shall distribute the then remaining Escrow Amount
to the
Sellers in equal shares, and this Agreement shall thereupon
terminate.
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6.
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The
Escrow Agent.
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6.1.
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The
Escrow Agent shall promptly dispose of all or any part of the Escrow
Amount as directed by written instructions signed by the Depositors,
subject to the other provisions of this Section 6 in its
entirety.
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6.2.
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In
the administration of the escrow account hereunder, the Escrow Agent
may
execute any of its powers or perform any of its duties hereunder
directly
or through agents or attorneys and may consult with counsel, accountants
and other professionals to be selected in good faith and retained
by
it.
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6.3.
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The
Escrow Agent shall not be liable for any act or failure to act under
this
Agreement, or in connection herewith, including any negligent act
of the
Escrow Agent, except that the Escrow Agent shall be liable for its
own
gross negligence or willful misconduct. The Escrow Agent shall
at its option be entitled to refuse to comply with any disagreeing
or
adverse claims or demands during the continuance of such disagreement
and
may refrain from delivering any item affected thereby without becoming
liable to any Depositor or to any other person due to its failure
to
comply with such demands until (a) all rights of the adverse claimants
(including any third parties making an adverse claim) have been finally
adjudicated by a court having jurisdiction of the parties and the
items
affected thereby, after which time the Escrow Agent shall be entitled
to
act in conformity with such adjudication; or (b) all differences
shall
have been adjusted by agreement and the Escrow Agent shall have been
directed in writing signed by the Depositors and all other persons
making
adverse claims or demands, at which time the Escrow Agent shall be
protected in acting in compliance therewith. The rights of the
Escrow Agent under this Section 6 are cumulative of all
other rights it may have by law or
otherwise.
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6.4.
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The
Escrow Agent shall not be liable for, and each of SCC and the Sellers
shall jointly and severally indemnify the Escrow Agent for and hold
it
harmless against, any losses, liability, damages, expense or claims
(including reasonable out-of-pocket expenses and in-house or outside
counsel fees) arising out of any action by the Escrow Agent taken
or
omitted in good faith hereunder or upon the advice of counsel, accountants
or other professionals engaged by the Escrow Agent, or arising from
any
claims, controversies or legal proceedings in connection with this
Agreement. It is the express intent of the parties that the
indemnity provided for in this Escrow Agreement is to indemnify the
Escrow
Agent from the consequences of its own negligence (but not the Escrow
Agent’s gross negligence or willful misconduct) whether that negligence
is
the sole or concurring cause of the loss, liability, damage or
cost. The obligations of the Depositors to the Escrow Agent
hereunder shall be performable at the office of the Escrow Agent
in
Dallas, Texas, and shall survive the termination of this Agreement
for any
reason whatsoever. It is the intention of the parties hereto
that the Escrow Agent shall never be required to use or advance its
own
funds or otherwise incur personal financial liability in the performance
of any of its duties or the exercise of any of its rights and powers
hereunder.
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6.5.
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Notwithstanding
anything to the contrary in this Agreement, in no event shall the
Escrow
Agent be liable for special, indirect or consequential damages 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 in which such loss or damages are
sought. The Escrow Agent may decline to act and shall not be
liable for failure to act if it is in doubt as to its duties under
this
Agreement.
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6.6.
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The
Escrow Agent may act upon any instrument or signature reasonably
believed
by it to be genuine and may assume that any person reasonably believed
by
the Escrow Agent to be authorized to give any notice or instruction
hereunder has been duly so authorized, and the Escrow Agent shall
not
incur any liability for following the instructions therein contained
or
expressly provided for herein.
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6.7.
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The
Escrow Agent’s duties shall be determined only with reference to this
Agreement and applicable laws, and the Escrow Agent is not charged
with
knowledge of, or any duties or responsibilities in connection with,
any
other document or agreement, including the Purchase Agreement, except
for
the defined terms therein that are used in this
Agreement.
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6.8.
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The
Escrow Agent shall have the right at any time to resign hereunder
by
giving written notice of its resignation to the Depositors pursuant
to
Section 8, at least thirty days prior to the date specified
for such resignation to take effect. In such event, the
Depositors shall appoint a successor escrow agent within the thirty-day
period, but if they fail to do so, the Escrow Agent may appoint a
successor escrow agent, which shall in no event be any of the
Depositors. Upon the effective date of its resignation, the
Escrow Agent shall deliver the Escrow Amount then held by it hereunder
to
such successor escrow agent against a written receipt therefor or
as
otherwise shall be designated in writing by the
Depositors.
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6.9.
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In
the event that the Escrow Agent is at any time confronted with
inconsistent or conflicting claims or demands by one or more of the
Depositors, the Escrow Agent shall have the right to interplead those
Parties in a court of competent jurisdiction situated in the State
of
Michigan and to request that such court determine the respective
rights
and obligations of the Parties with respect to this Agreement and
upon
doing so, the Escrow Agent shall be released from any obligations
or
liability to any of the Depositors as a consequence of any such claims
or
demands.
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6.10.
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Nothing
in this Agreement shall be deemed to impose upon the Escrow Agent
any duty
to qualify to do business or to act as a fiduciary or otherwise in
any
jurisdiction other than the State of Texas. The Escrow Agent
shall not be responsible for, and shall not be under a duty to examine,
inquire into, or pass upon, the validity, binding effect, execution
or
sufficiency of this Agreement or of any amendment or supplement
hereto.
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6.11.
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Any
corporation into which the Escrow Agent may be merged or converted
or with
which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Escrow Agent shall
be a
party, or any corporation to which substantially all of the corporate
trust business of the Escrow Agent may be transferred, shall be the
Escrow
Agent under this Agreement without further act by any of the Parties;
and
provided, further, that this Agreement is entered into with Comerica
Bank,
a Michigan banking corporation (for purposes of this Section
6.11, the "Merged Bank"). The Merged Bank
has been or will be merged with and into Comerica Bank, a Texas banking
association (for purposes of this Section 6.11, the
"Surviving Bank"). The undersigned hereby acknowledge
and agree that any reference in this Agreement to Comerica Bank,
a
Michigan banking corporation, shall mean Comerica Bank, a Texas banking
association, as successor by merger to the Merged
Bank.
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6.12.
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The
Escrow Agent shall have no obligation to prepare any applicable tax
return
(local state or federal) in connection with the Escrow Amount except
as to
the Escrow Agent's own income.
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7.
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Compensation
of the Escrow Agent.
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7.1.
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The
Depositors shall compensate the Escrow Agent for its services hereunder
in
accordance with the Escrow Agent’s fee schedule attached hereto as
Schedule I, one-half of which shall be payable by SCC and the other
one-half of which shall be payable in equal shares by each of the
Sellers,
provided however, that if the Escrow Agent performs extraordinary
services not contemplated herein it shall receive reasonable, additional
compensation therefor, the payment of which shall be a joint and
several
obligation of the Depositors.
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7.2.
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If
any of the Depositors fails to pay any fee or make any reimbursement
to
the Escrow Agent within thirty days of receipt of an invoice or notice
thereof, the Escrow Agent may pay the same out of the Escrow
Amount. To the extent that the payment of a Depositor's share
of fees and/or expenses is made out of the Escrow Amount pursuant
to this
Section 7.2 the amount thereof shall be deducted by the
Escrow Agent from any amount thereafter becoming distributable to
such
Depositor.
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8.
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Notices. All
notices, including Claims and other communications under this Agreement
shall be in writing and shall be given to a Party either (a) by hand
delivery to such Party against a receipt therefor; or (b) by a
nationally-recognized delivery service with instructions to provide
next-business-day delivery and proof of delivery to such Party at
the
following addresses:
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If
to SCC at:
00000
Xxxxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxx X. Xxxxxx, Xx.,
President
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With
a copy to:
Xxxxx
X. Xxxxxx, Esq.
00
Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxxxxx 00000
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If
to Xx. Xxxxxxxx at:
0000
Xxxx Xxxx Xxxx
Xxxx,
XX 00000
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With
a copy to:
Xxxx
X. Xxxxxx, Esq.
000
Xxxxxxxxxx Xxxxxx
Xxxx,
XX 00000
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If
to FSG at:
Xxxxxx
Industries
0000
Xxxxxx Xxxxx
Xxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxx Xxxxxx,
President
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With
a copy to:
Xxx
Xxxxxx, Esq.
General
Counsel
Xxxxxx
Industries
0000
Xxxxxx Xxxxx
Xxxxxxxxx,
XX 00000-0000
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If
to the Escrow Agent at:
Xxxxx
Xxxxxxxx
Vice
President, Comerica Bank
Wealth
& Institutional Management
Institutional
Trust & Retirement Services
0000
Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
or
X.X.
Xxx 000000
Xxxxxx,
XX 00000-0000
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or
to
such other Persons or addresses as may be designated in writing by the Party
to
receive such notice. Any notice shall be deemed delivered when
received by the Party to which it is addressed, as evidenced by a receipt signed
by such Party or its representative, or by the evidence of delivery furnished
by
the courier service.
CUSTOMER
NOTICE REQUIRED BY THE USA PATRIOT ACT
To
help
the U.S. government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person (whether an
individual or organization) for which a relationship is
established.
What
this
means to you: When you establish a relationship with Comerica Bank,
we will ask you to provide certain information (and documents) that will help
us
to identify you. We will ask for your organization’s name, physical
address, tax identification or other government registration number and other
information that will help us to identify you. We may also ask for a
certificate of incorporation or similar document or other pertinent identifying
documentation for your type of organization.
We
thank
you for your assistance.
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9.
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Other
Matters.
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9.1.
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No
Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and
their
respective successors and permitted
assigns.
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9.2.
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Succession
and Assignment. This Agreement shall be binding upon, and
inure to the benefit of, the Parties named herein and their successors
and
permitted assigns. No Depositor may assign either this
Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other Depositors except
that SCC
(a) may assign any or all of its rights and interests hereunder to
one or
more of its Affiliates; (b) may collaterally assign any or all of
its
rights and interests under this Agreement to its institutional or
bank
lender or lenders, or to any agent representing such lenders from
time to
time; and (c) may designate one or more of its Affiliates to perform
its
obligations hereunder, in any or all of which cases, SCC nonetheless
shall
remain responsible for the performance of all of its obligations
hereunder..
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9.3.
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Amendments. No
amendment of any provision of this Agreement shall be valid unless
it
shall be in writing and signed by all of the Parties
hereto.
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9.4.
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Waivers. To
be enforceable, the waiver of any term or condition hereof must be
in
writing and signed by the Party to be bound thereby. Failure by
a Party to insist upon strict compliance with any term, covenant
or
condition, or to exercise any right contained herein shall not be
deemed a
waiver of such term, covenant, condition or right; and no waiver
or
relinquishment of any term, covenant, condition or right at any one
or
more times shall be deemed a waiver or relinquishment thereof at
any other
time or times.
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9.5.
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Severability. Each
provision of this Agreement to the extent possible shall be interpreted
in
such manner as to be effective and valid under applicable law, but
if any
provision or part of a provision of this Agreement is finally declared
to
be invalid or incapable of being enforced by any tribunal of competent
jurisdiction, it shall be deemed automatically adjusted, if possible,
to
conform to the requirements for validity, but if such adjustment
is not
possible, it shall be deemed deleted from this Agreement as though
it had
never been included herein. In either case, the balance of any
such provision or part of this Agreement shall remain in full force
and
effect. Notwithstanding the foregoing, however (a) no provision
shall be severed if it is clearly apparent under the circumstances
that a
Party would not have entered into this Agreement without such provision;
and (b) no such adjustment shall increase the cost of this Agreement
to a
Party or reduce any amount payable to a
Party.
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9.6.
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Expenses. Each
of SCC and the Sellers will pay their own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement
and
the transactions contemplated
hereby.
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9.7.
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Construction.
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9.7.1
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The
Parties agree that they have participated jointly in the negotiation
and
drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall
be
construed as if drafted jointly by the Parties and no presumption
or
burden of proof shall arise favoring or disfavoring any Party by
virtue of
the authorship of any of the provisions of this
Agreement.
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9.7.2
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The
words "hereof," "herein," "hereunder," "this Agreement" and words
of
similar import when used in this Agreement refer to this Agreement
as a
whole and not to any particular provision of this Agreement, and
they
refer to this Agreement as it exists at the time any issue arises
with
respect to it. The words "include," "includes," "including" and
words of similar import shall mean considered as part of a larger
group
and not limited to any one or more enumerated
items.
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9.7.3
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The
section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation
of this
Agreement.
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9.7.4
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References
herein to actions taken or to be taken by the Depositors (in the
plural)
shall mean all three of the
Depositors.
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9.8.
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Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the domestic Laws of the State of Michigan without
giving
effect to any choice or conflict of Law provision or rule (whether
of the
State of Michigan or any other jurisdiction) that would cause the
application of the Laws of any jurisdiction other than the State
of
Michigan.
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9.9.
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Submission
to Jurisdiction. Each of the Parties submits to the
jurisdiction of state or federal court sitting in the State of Michigan
in
any action or proceeding arising out of, or relating to, this Agreement
and agrees that all claims in respect of the action or proceeding
may be
heard and determined in any such court. Each Party also agrees
not to bring any action or proceeding arising out of, or relating
to, this
Agreement in any other court. Each of the Parties waives any
defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security
that
might be required of the other Party with respect thereto. Any
Party may make service on the other Party by sending or delivering
a copy
of the process to the Party to be served at the address and in the
manner
provided for the giving of notices in Section 14, above, or by
registered or certified mail, return receipt requested. Each
Party agrees that a final judgment in any action or proceeding so
brought
shall be conclusive and may be enforced by suit on the judgment or
in any
other manner provided by law or in equity in any court of competent
jurisdiction.
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9.10.
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Entire
Agreement. This Agreement together with the exhibits and
schedules identified in this Agreement, all of which are incorporated
herein by this reference and made a part hereof, constitute the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written
or oral,
to the extent they have related in any way to the subject matter
hereof.
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9.11.
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JURY
TRIAL WAIVER. EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT THE
RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE
WAIVED. EACH OF THE UNDERSIGNED, AFTER CONSULTING OR HAVING HAD
THE OPPORTUNITY TO CONSULT WITH COUNSEL OF ITS OR HIS CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO
TRIAL
BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT.
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9.12.
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Counterparts. This
Agreement, any amendment of this Agreement and any instructions given
to
the Escrow Agent by the Depositors may be executed in any number
of
counterparts, each of which counterparts shall be enforceable against
the
Party executing such counterpart, and all of which together shall
constitute but one and the same instrument. This Agreement, any
amendment of this Agreement and any instructions given to the Escrow
Agent
by the Depositors when signed by a Party may be delivered by telecopier
or
other facsimile transmission or via e-mail in portable document format
as
if such Party had executed and delivered an original manually signed
counterpart.
|
[The
following page is the signature page of this Agreement]
In
Witness Whereof, the parties hereto have executed this Agreement as of the
date
first set forth above.
| Sterling Construction Company, Inc. | Comerica Bank | |||
| By: |
/s/
Xxxxxxx X. Xxxxxxx
|
By: |
/s/
|
|
|
Xxxxxxx
X. Xxxxxxx
|
Name:
|
|||
|
Chairman
& Chief Executive Officer
|
Title:
|
|||
| Xxxxxx Sand & Gravel Co. | ||||
| By: |
/s/
Xxxxx Xxxxxx
|
/s/ Xxxxxxx X. Xxxxxxxx | ||
|
Name:
Xxxxx Xxxxxx
|
Xxxxxxx
X. Xxxxxxxx
|
|||
|
Title:
Treasurer
|
||||
_________________________
Escrow
Agreement
Page
9 of
10
SCHEDULE I
COMERICA
BANK ESCROW AGENT FEE SCHEDULE
|
Acceptance
Fee
|
$2,000
|
|
|
Legal
Fees
|
||
|
Out-of-pocket
expenses incurred by the Bank for the services of legal counsel to
review
the Escrow Agreement and any related documents will be billed to
the
customer.
|
||
|
Minimum
Annual Base Fee
|
$6,000
|
|
|
Market
Value Fee
|
0.0005
(5 basis points)
|
|
|
Applied
to the balance of all non-Comerica cash related assets (see
below).
|
||
|
Cash
Sweep Fee
|
||
|
All
cash will be invested in the AIM Treasurer’s Series Trust Premier
Portfolio and a 50 basis point sweep fee will be netted against the
earnings. Please note that Comerica may receive a servicing fee
for non-proprietary money market funds.
|
||
|
Extraordinary
Services
|
||
|
Any
other special services not contemplated at the inception of the Escrow
appointment or not specifically covered in this schedule will be
invoiced
at a flexible rate of $75 or $200 per hour. The rate is
dependent upon the nature of the work, degree of risk and grade of
employee involved.
|
ACCEPTANCE
| Comerica Bank | Sterling Construction Company, Inc. | |||
| By: |
/s/
|
By: |
/s/
Xxxxxx X. Xxxxxx, Xx.
|
|
|
Name:
|
Xxxxxx
X. Xxxxxx, Xx.
|
|||
|
Title:
|
President
& Chief Operating Officer
|
|||
| Xxxxxx Sand & Gravel Co. | ||||
| By: |
/s/
Xxxxx Xxxxxx
|
/s/
Xxxxxxx X. Xxxxxxxx
|
||
|
Name:
Xxxxx Xxxxxx
|
Xxxxxxx
X. Xxxxxxxx
|
|||
|
Title:
Treasurer
|
||||
Escrow
Agreement
Page
10 of
10
