EXHIBIT 2.2
CLOSING ESCROW AGREEMENT
THIS CLOSING ESCROW AGREEMENT (this "Agreement") is made and entered
into as of April 5, 2004 (the "Effective Date") by and among Allied Capital
Corporation, a Maryland corporation (the "Acquiror"), Mercury Air Group, Inc.,
a Delaware corporation (the "Seller"), and Wachovia Bank National Association,
as Escrow Agent (the "Escrow Agent").
RECITALS
WHEREAS, the Acquiror, the Seller and Mercury Air Centers, Inc., a
California corporation (the "Company"), are parties to a Stock Purchase
Agreement dated as of October 28, 2003, as amended by letter agreements dated
December 10, 2003, January 14, 2004 and February 13, 2004 (as so amended, the
"Purchase Agreement"), pursuant to which the Acquiror agreed to purchase all of
the issued and outstanding capital stock of the Company from the Seller on the
Effective Date;
WHEREAS, the Acquiror and the Seller wish to establish an escrow fund
in the principal amount of $73,326,383 (the "Escrow Deposit") and to appoint
the Escrow Agent as escrow agent in respect thereof, and the Escrow Agent is
willing to so act, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in the Purchase Agreement, a
copy of which has been provided to the Escrow Agent.
2. Appointment of Escrow Agent. Wachovia Bank National
Association is hereby appointed to act as Escrow Agent in respect of the Escrow
Funds (as defined below in Section 3.b) under the terms and conditions set
forth herein, and agrees to act in such capacity in accordance with, and
subject to, such terms and conditions.
3. Escrow Funds.
(a) Deposit and Receipt. Contemporaneously with the
execution of this Escrow Agreement, the Acquiror is depositing the Escrow
Deposit in an account to be maintained by the Escrow Agent (the "Escrow
Account"). Receipt of the Escrow Deposit is hereby acknowledged by the Escrow
Agent.
(b) Investment. The Escrow Agent shall invest and
reinvest the Escrow Deposit (and any income realized in respect thereof) in the
Evergreen Institutional Treasury Money Market Fund #697. Investments shall be
made promptly upon receipt of available funds by the Escrow Agent. Except as
otherwise agreed by the Acquiror and the Seller, the period of maturity of any
such investment shall not exceed 90 days. The Escrow Agent shall not be
responsible or liable for any loss suffered in connection with any investments
of funds made by it in accordance with this Section 3(b). All income realized
in respect of the Escrow Deposit,
consisting of interest and capital gains (the "Investment Income"), shall be
retained in the Escrow Account until disbursement in accordance with Section 5
hereof. The Escrow Deposit and the Investment Income are collectively referred
to as the "Escrow Funds."
(c) Retention as Trust Fund. The Escrow Funds shall be held as a trust
fund and shall not be subject to any lien, attachment, trustee process or any
other judicial process of any creditor of any party hereto. The Escrow Agent
agrees to accept delivery of and to hold the Escrow Funds in escrow in
accordance with, and subject to, the terms and conditions of this Agreement.
(d) Tax Identification. The Acquiror shall provide the Escrow Agent
with its certified tax identification number on a properly completed Form W-9
upon the request of the Escrow Agent.
4. Transferability. The interests of the Seller in the Escrow Funds shall
not be assignable or transferable, other than by operation of law. No transfer
of any of such interests by operation of law shall be recognized or given
effect until the Acquiror shall have received written notice of such transfer
and shall have so informed the Escrow Agent in writing.
5. Retention and Release of the Escrow Funds.
(a) Except as otherwise provided in this Agreement, the Escrow Agent
shall hold the Escrow Funds in its possession until the Escrow Funds are
disbursed by the Escrow Agent in accordance with Section 5(c) or (d) hereof.
(b) Any Investment Income earned on the Escrow Funds shall be
retained in the Escrow Account until disbursement of the Escrow Funds pursuant
to Section 5(c) or (d) hereof.
(c) In the event the Escrow Agent shall have received in writing via
facsimile, on or prior to 3:00 p.m. EDST on April 12, 2004 or such later date
or time as the Acquiror and the Seller shall have mutually agreed upon and
jointly notified the Escrow Agent of in writing via facsimile (the
"Disbursement Deadline"), a completed notice substantially in the form of
Attachment A hereto, duly executed and delivered by each of the Acquiror and
the Seller (the "Disbursement Notice"), the Escrow Agent shall, within one hour
following receipt of the Disbursement Notice, disburse the Escrow Funds to each
of such Persons identified in the Disbursement Notice (collectively, the
"Payees") in the respective amount set forth opposite each such Person's name
in the Disbursement Notice. Each such disbursement shall be made by wire
transfer of immediately available funds to the respective bank accounts of the
Payees designated in the Disbursement Notice.
(d) In the event the Escrow Agent shall have not received the
Disbursement Notice on or prior to the Disbursement Deadline, the Escrow Agent
shall, on the immediately succeeding business day, disburse the Escrow Funds to
the Acquiror unless the Acquiror shall have otherwise notified the Escrow Agent
in writing via facsimile prior thereto. The disbursement to the Acquiror shall
be made by wire transfer of immediately available funds to the bank account of
the Acquiror designated in Attachment B hereto. In the event that the
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Escrow Funds are disbursed to the Acquiror in accordance with this Section 5.d,
the Acquiror and the Seller acknowledge and agree that their rights and
obligations under the Purchase Agreement shall be unaffected thereby and all of
the provisions set forth in the Purchase Agreement shall survive in accordance
with their respective terms. In the event that the Escrow Funds are disbursed to
the Acquiror in accordance with this Section 5.d, the Acquiror agrees to provide
notice in writing to the Seller of the condition set forth in the form of
Disbursement Notice attached hereto that was not satisfied by the Disbursement
Deadline, it being agreed between Acquiror and Seller that both parties shall be
obligated to execute and deliver the Disbursement Notice by the Disbursement
Deadline, unless one or more of the conditions precedent set forth therein shall
not have been fulfilled, the failure to occur of such conditions precedent being
the only events or circumstances which shall nullify the Parties' respective
obligations to execute and deliver the Disbursement Notice by the Disbursement
Deadline.
6. DISPUTES.
(a) ESCROW AGENT'S RIGHT TO REFUSE TO COMPLY. In the event of any dispute
or disagreement between the Acquiror and the Seller resulting in conflicting or
adverse claims or demands being made in connection with or for any of the Escrow
Funds, the Escrow Agent shall be entitled to refuse to comply with any such
claim or demand, so long as such disagreement shall continue, and in so doing
the Escrow Agent shall not be or become liable for damages, liabilities or
interest to any party for the Escrow Agent's failure or refusal to comply with
such conflicting or adverse claims or demands, except for liabilities resulting
from the Escrow Agent's own fraud, willful misconduct or negligence, and the
Escrow Agent shall be entitled to continue so to refrain and refuse so to act
until the rights of the adverse claimants have been determined or the dispute
shall have been resolved by: (i) an agreement in writing executed and delivered
by the Seller and the Acquiror; or (ii) a final arbitration award obtained in
accordance with Section 6(b) hereof; provided that the Escrow Agent shall have
received an executed copy of such agreement or a certified copy of such
arbitration award. Notwithstanding the foregoing provisions of this Section
6(a), the Escrow Agent shall release the Escrow Funds in accordance with Section
5(d), if applicable, regardless of whether the non-receipt of the Disbursement
Notice is the subject of any dispute or disagreement between or among the
Acquiror and the Seller.
(b) ARBITRATION. Any and all claims, demands, disputes or controversies
arising out of or relating to this Agreement, shall be settled by binding
arbitration before a single arbitrator conducted in the State of Delaware in
accordance with the Commercial Arbitration Rules then in effect of the American
Arbitration Association. Each of the parties hereto hereby: (i) submits to the
jurisdiction of the courts of the State of Delaware in any proceeding for the
enforcement of this Section 6(b) and for the enforcement of the award rendered
by the arbitrator; and (ii) agrees that judgment upon such arbitration award may
be entered in any court, in or out of the State of Delaware, having jurisdiction
thereof. All costs and expenses, including, without limitation, reasonable
attorneys' fees and expenses, incurred in any action to obtain an award or
relief with respect to the matters contemplated by this Escrow Agreement shall
be borne by the party which is not the prevailing party in such action.
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7. Liability of the Escrow Agent.
(a) No Liability. 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 Agreement. 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
fraud, willful misconduct or negligence was the primary cause of any loss to the
Acquiror or the Seller. The Escrow Agent's sole responsibility shall be for the
safekeeping and disbursement of the Escrow Funds in accordance with the terms of
this Agreement. The Escrow Agent shall have no implied duties or obligations and
shall not be charged with knowledge or notice of any fact or circumstance not
specifically set forth herein. The Escrow Agent may rely upon any notice,
instruction, request or other 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 believes to be genuine and
to have been signed or presented by the Persons purporting to sign the same. In
no event shall the Escrow Agent be liable for incidental, indirect, special,
consequential or punitive damages (including, without limitation, lost profits),
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action. The Escrow Agent shall not be
obligated to take any legal action or commence any proceeding in connection with
the Escrow Funds, any account in which Escrow Funds are deposited, this
Agreement or the Purchase Agreement, or to appear in, prosecute or defend any
such legal 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, and shall
incur no liability and shall be fully indemnified from any liability whatsoever
in acting in accordance with the opinion or instruction of such counsel. The
Acquiror and the Seller, jointly and severally, shall promptly pay, upon demand,
the reasonable fees and expenses of any such counsel.
(b) Reliance. The Escrow Agent is authorized, in its sole discretion,
to comply with orders issued or process entered by any court with respect to the
Escrow Funds, without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of the Escrow Funds is at any time
attached, garnished or levied upon under any court order, or in case the
payment, assignment, transfer, conveyance or delivery of any such property shall
be stayed or enjoined by any court order, or in case any order, judgment or
decree shall be made or entered by any court affecting such property or any part
thereof, then and in any such event, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ, judgment or
decree which it is advised by legal counsel selected by it is binding upon it
without the need for appeal or other action. If the Escrow Agent complies with
any such order, writ, judgment or decree, it shall not be liable to any of the
parties hereto or to any other Person by reason of such compliance even though
such order, writ, judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
8. Indemnification of the Escrow Agent.
(a) Indemnification. From and at all times after the Effective Date,
the Acquiror and the Seller, jointly and severally, shall, to the fullest extent
permitted by law,
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defend, 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 and
expenses) incurred by or asserted against any of the Indemnified Parties from
and after the Effective Date, 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, without limitation, any inquiry or
investigation) by any Person, including, without limitation, the Acquiror or the
Seller, whether threatened or initiated, asserting a claim for any legal or
equitable remedy against any Person under any statute or regulation, including,
without limitation, any federal or state 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 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, subject to no further appeal,
to have resulted solely from the fraud, willful misconduct or negligence of such
Indemnified Party. Each Indemnified Party shall, in its sole discretion, have
the right to select and employ separate counsel with respect to any action or
claim brought or asserted against it, and the reasonable fees and costs of such
counsel shall be paid, upon demand, by the Acquiror and the Seller, jointly and
severally. The obligations of the Acquiror and the Seller under this Section 8
shall survive any termination of this Agreement and the resignation or removal
of the Escrow Agent.
(b) No Impairment of Rights. The parties hereto agree that neither
the payment by the Acquiror or the Seller of any claim by the Escrow Agent for
indemnification hereunder nor the disbursement of any amounts to the Escrow
Agent from the Escrow Funds in respect of a claim by the Escrow Agent for
indemnification shall impair, limit, modify, or affect, as between the Acquiror
and the Seller, the respective rights and obligations of the Acquiror and the
Seller under the Purchase Agreement.
9. Escrow Agent.
(a) Fees and Expenses. The Escrow Agent shall be entitled to fees for
its services hereunder as set forth in Attachment C hereto and shall be
reimbursed for all reasonable expenses, disbursements and advances incurred or
made by the Escrow Agent in performance of its duties hereunder, which fees and
expenses shall be split equally between the Seller and the Acquiror.
(b) Resignation. The Escrow Agent may resign and be discharged from
its duties hereunder at any time by giving written notice of such resignation to
the Seller and the Acquiror specifying a date (not less than 30 days after the
giving of such notice) when such resignation shall take effect. Upon such
notice, the Acquiror and the Seller shall appoint a successor escrow agent who
shall replace the resigning Escrow Agent hereunder upon the resignation date
specified in such notice. If the Acquiror and the Seller are unable to agree
upon a successor escrow agent within 30 days after such notice, the Escrow Agent
shall be entitled to appoint its successor. The Seller and the Acquiror shall
have the right at any time upon their
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mutual consent to remove the Escrow Agent and appoint a successor escrow agent
by giving notice thereof to the Escrow Agent then acting.
10. Termination of Agreement. This Agreement shall terminate upon the
final disposition of all of the Escrow Funds, provided that the rights of the
Escrow Agent pursuant to Section 8 hereof shall survive such termination.
11. Miscellaneous.
(a) Miscellaneous. This Agreement shall be construed by and
governed in accordance with the internal laws of the State of Delaware, without
regard to its conflicts of laws principles. Any provision of this Agreement
which is invalid or unenforceable shall not affect the validity or
enforceability of the remaining provisions of this Agreement. If the final
judgment of a court of competent jurisdiction declares that any provision of
this Agreement is invalid or unenforceable, the parties hereto agree that such
court shall have the power to modify such provisions consistent with the intent
of the parties. The failure or delay on the part of any party hereto: (i) to
insist upon or enforce strict performance of any provision of this Agreement
by any other party; or (ii) to exercise any right, power or remedy under this
Agreement, shall not be deemed or construed as a waiver thereof. A waiver by
any party hereto of any provision of this Agreement or of any breach thereof
shall not be deemed or construed as a general waiver thereof or of any other
provision or of any rights thereunder. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer on any Person, other than the parties hereto and
their respective successors or permitted assigns, any rights, remedies,
benefits, obligations or liabilities under this Agreement, except as
specifically provided in this Agreement or otherwise specifically agreed to in
writing by the parties hereto. This Agreement and the Purchase Agreement
contain and constitute the entire agreement of or among the parties hereto with
respect to the subject matter hereof, and supersede all prior or
contemporaneous understandings, communications, commitments, undertakings,
representations and agreements, oral or written, expressed or implied, of or
among the parties with respect to the subject matter hereof. This Agreement
may not be amended, modified, discharged or waived orally or by course of
conduct, but only by an agreement in writing, signed by or on behalf of the
party against whom enforcement of any amendment, modification, discharge or
waiver is sought. The section headings contained in this Agreement are for
convenience only and shall not be considered in the interpretation or
construction of the provisions of this Agreement. Defined terms in the singular
shall include the plural and vice versa. This Agreement may be executed in any
number of counterparts and by facsimile transmission of executed counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement shall be effective only
upon execution by all parties hereto.
(b) Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given, when delivered personally, or transmitted by facsimile, receipt
acknowledged, or in the case of documented overnight delivery service or
registered or certified mail, return receipt requested, postage prepaid, on the
date shown on the receipt therefor, to the parties hereto at the following
addresses (or at such other address for a party as shall be specified in like
notice):
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If to the Acquiror, to:
Allied Capital Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxx
If to the Seller, to:
Mercury Air Group, Inc.
0000 XxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Phone: (000) 000-0000 X000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
With a copy to (which shall not constitute notice):
Xxxxx Xxxxxxx LLP
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
With a copy to (which shall not constitute notice):
Mercury Air Group, Inc.
0000 XxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx
XxXxxxx & Xxxxx
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxxx X. Xxxxx, Xx.
If to the Escrow Agent, to:
Attn: Xxx X. Xxxxxxx, CCTS
Assistant Vice President
Wachovia Bank National Association
Corporate Trust Administration - VA 9646
0000 Xxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
X.X. Xxx 00000 (23261)
Phone: 000-000-0000
Fax: 000-000-0000
(c) Cumulative Rights. Each of the rights, powers and remedies of the
Acquiror and the Seller hereunder shall be cumulative and concurrent, and shall
be in addition to every other right, power or remedy provided for hereunder or
under the Purchase Agreement or otherwise existing at law or in equity or by
statute or otherwise, and any exercise or commencement of the exercise by the
Acquiror or Seller of any one or more of such rights, powers or remedies shall
not preclude the simultaneous or later exercise by the Acquiror or Seller of any
or all such other rights, powers and remedies.
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12. Escrow of Closing Documents. The Acquiror and the Seller acknowledge
and agree that Xxxxx Xxxxxxx LLP, c/o Xxxxxxx X. Xxxxx, Esq., 0000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000, fax (000) 000-0000 and phone (410)
000-0000, has been appointed to act as escrow agent in respect of all of the
documents executed by the Acquiror and the Seller in connection with the
closing of the transactions contemplated by the Purchase Agreement (the
"Closing Documents"). Xxxxx Xxxxxxx LLP agrees to act in such capacity in
accordance with, and subject to, the terms and conditions set forth herein.
Receipt of the Closing Documents is hereby acknowledged by Xxxxx Xxxxxxx LLP.
The Acquiror and the Seller acknowledge and agree that they no longer have
possession of, control over, or the ability to amend the Closing Documents in
any manner and that their signatures on such Closing Documents are irrevocable
during the period in which Xxxxx Xxxxxxx LLP is holding such documents in
escrow. Xxxxx Xxxxxxx LLP shall hold the Closing Documents in its possession
until they are released from escrow as set forth herein. In the event that the
Escrow Agent receives a Disbursement Notice on or prior to the Disbursement
Deadline, Xxxxx Xxxxxxx LLP shall comply with the escrow release provisions set
forth in the Disbursement Notice. In the event that the Escrow Agent does not
receive a Disbursement Notice on or prior to the Disbursement Deadline: (a)
Xxxxx Xxxxxxx LLP shall continue to hold the Closing Documents in escrow until
(i) the closing of the transactions contemplated by the Purchase Agreement in
accordance with the terms and conditions set forth in the Purchase Agreement or
(ii) the termination of the Purchase Agreement in accordance with the terms and
conditions set forth in the Purchase Agreement; and (b) the Acquiror and the
Seller acknowledge and agree that their rights and obligations under the
Purchase Agreement shall be unaffected thereby and all of the provisions set
forth in the Purchase Agreement shall survive in accordance with their
respective terms. The Acquiror and the Seller acknowledge and agree that all of
the rights afforded to the Escrow Agent in Sections 6 through 11 of this
Agreement shall also be afforded to Xxxxx Xxxxxxx LLP in its capacity as
escrow agent with respect to the Closing Documents.
[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Closing Escrow
Agreement to be executed and delivered on the date first above written.
WITNESS: ALLIED CAPITAL CORPORATION
/s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
----------------------------- ---------------------------------
Name:
---------------------------------
Title: Principal
---------------------------------
WITNESS: MERCURY AIR GROUP, INC.
By:
----------------------------- ---------------------------------
Name:
---------------------------------
Title:
---------------------------------
WITNESS: WACHOVIA BANK NATIONAL ASSOCIATION
By:
----------------------------- ---------------------------------
Name:
---------------------------------
Title:
---------------------------------
For purposes of acknowledging its rights
and obligations under Section 12 of this
Agreement:
XXXXX XXXXXXX LLP
----------------------------- -------------------------------------
Xxxxxxx X. Xxxxx, Partner
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IN WITNESS WHEREOF, the parties hereto have caused this Closing Escrow
Agreement to be executed and delivered on the date first above written.
WITNESS: ALLIED CAPITAL CORPORATION
By:
_______________________ _______________________
Name:
_______________________
Title:
_______________________
WITNESS: MERCURY AIR GROUP, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X Xxxxxx
_______________________ _______________________
Name: Xxxxxx X Xxxxxx
_______________________
Title: CEO
_______________________
WITNESS: WACHOVIA BANK NATIONAL ASSOCIATION
By:
_______________________ _______________________
Name:
_______________________
Title:
_______________________
For purposes of acknowledging its
rights and obligations under Section
12 of this Agreement:
XXXXX XXXXXXX LLP
_______________________ __________________________
Xxxxxxx X. Xxxxx, Partner
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IN WITNESS WHEREOF, the parties hereto have caused this Closing Escrow
Agreement to be executed and delivered on the date first above written.
WITNESS: ALLIED CAPITAL CORPORATION
By:
__________________________________ __________________________________
Name:
__________________________________
Title:
__________________________________
WITNESS: MERCURY AIR GROUP, INC.
By:
__________________________________ __________________________________
Name:
__________________________________
Title:
__________________________________
WITNESS: WACHOVIA BANK NATIONAL ASSOCIATION
/s/ XXXXXXXX X. XXXXXX By: /s/ Xxx X Xxxxxxx
__________________________________ __________________________________
Name: Xxx X. Xxxxxxx
__________________________________
Title: Asst. Vice President
__________________________________
For purposes of acknowledging its rights
and obligations under Section 12 of this
Agreement:
XXXXX XXXXXXX LLP
__________________________________ __________________________________
Xxxxxxx X. Xxxxx, Partner
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IN WITNESS WHEREOF, the parties hereto have caused this Closing Escrow
Agreement to be executed and delivered on the date first above written.
WITNESS: ALLIED CAPITAL CORPORATION
____________________________ By: ____________________
Name: ____________________
Title: ____________________
WITNESS: MERCURY AIR GROUP, INC.
____________________________ By: ____________________
Name: ____________________
Title: ____________________
WITNESS: WACHOVIA BANK NATIONAL ASSOCIATION
____________________________ By: ____________________
Name: ____________________
Title: ____________________
For purposes of acknowledging its rights
and obligations under Section 12 of this
Agreement:
XXXXX XXXXXXX LLP
/s/ XXXXXXXXXX XXXXXX /s/ Xxxxxxx X. Xxxxx
____________________________ ___________________________
Xxxxxxx X. Xxxxx, Partner
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ATTACHMENT A
DISBURSEMENT NOTICE
Reference is made to: (i) the Closing Escrow Agreement dated as of
April 5, 2004 (the "Closing Escrow Agreement") by and among Allied Capital
Corporation, a Maryland corporation (the "Acquiror"), Mercury Air Group, Inc., a
Delaware corporation (the "Seller"), and Wachovia Bank National Association, as
Escrow Agent (the "Escrow Agent"); and (ii) the Stock Purchase Agreement dated
as of October 28, 2003, as amended by letter agreements dated December 10, 2003,
January 14, 2004 and February 13, 2004 (as so amended, the "Purchase Agreement")
by and among the Acquiror, the Seller and Mercury Air Centers, Inc., a
California corporation. Capitalized terms used but not defined herein shall have
the respective meanings assigned thereto in or by reference to the Closing
Escrow Agreement.
This notice shall constitute the Disbursement Notice referred to in
Section 5(c) of the Closing Escrow Agreement.
The undersigned hereby certify that all conditions precedent to the
disbursement of the Escrow Funds as provided below have been satisfied and the
following instructions are in compliance with the provisions of the Closing
Escrow Agreement. Without limiting the generality of the foregoing, the
undersigned hereby certify that:
1. The Acquiror has received from the Seller, on or prior to the
date hereof, evidence satisfactory to the Acquiror that the transactions
contemplated by the Purchase Agreement have been duly authorized by a majority
of the shareholders of the Seller duly authorized to vote at a meeting of the
shareholders of the Seller duly called at which a quorum was present.
2. The Acquiror has not become aware, from and after the date of
the Closing Escrow Agreement through the date hereof, that the representation
and warranty set forth in Section 3 of each of the Closing Certificates of the
Company and the Seller is untrue or inaccurate.
3. The Acquiror has not become aware, from and after the date of
the Closing Escrow Agreement through the date hereof, that: (a) any Proceeding
(as defined in the Purchase Agreement) against the Seller, the Company or their
affiliates is pending or threatened or any event or circumstance has occurred,
either of which would have a Material Adverse Effect; (b) the Company or its
Subsidiaries has suffered any material loss or damages to any of its properties
or assets whether or not covered by insurance, which change, loss or damage
materially affects or impairs the ability of the Company or its Subsidiaries to
conduct its business as it is presently conducted; or (c) the Company or its
Subsidiaries has been adversely affected in any material way by any act of God,
fire, flood or other natural disaster, shortage of power, labor disturbance,
sabotage, war, terrorism or insurrection.
4. The Seller will cause the Company to provide in a form and
substance satisfactory to the Acquiror a list of customers who are members of
the Mercury Easy Fuel Program
referenced in Section 2.c of the Fuel Sales Agreement between MercFuel, Inc. and
the Company effective as of the date hereof.
5. The Acquiror has received evidence satisfactory to it that appropriate
levels of Property and Casualty insurance coverage for the Company and its
Subsidiaries will be in effect from and after the date of Closing.
The undersigned hereby instruct the Escrow Agent to disburse the Escrow
Funds to each of the following Persons in the respective amount set forth
opposite each such Person's name to the respective bank account designated below
such Person's name:
NAME OF PAYEE AND BANK ACCOUNT INFORMATION AMOUNT TO BE DISBURSED
XXXXX FARGO FOOTHILL, INC. $_____________________
Bank name: JPMorgan Chase Bank
Bank address: 0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
ABA no.: 000000000
Account no.: 323-266193
For credit to: Xxxxx Fargo Foothill
Reference: Mercury Air Group, Inc.
ALLIED CAPITAL CORPORATION $_____________________
Bank name: Bank of America N.A.
Bank address: 000 X Xxxxx Xxxxxx
Xxxxxxxxx, XX
Beneficiary bank: Bank of America
ABA no.: 000000000
Beneficiary name: Allied Capital Corporation - Depository Clearing
Beneficiary acct. no.: 003931037398
Description: FFC Allied Capital/Loan Payoff 0110728
MERCURY AIR GROUP, INC. $_____________________
Bank name: Xxxxx Fargo Bank, N.A.
Bank address: San Francisco, CA
ABA no.: 000000000
Account no.: 4945049997
For credit to: Mercury Air Group, Inc.
Reference: Allied Capital
2
IMPERIAL CAPITAL $_____________________
Bank name: Bank of New York
Bank address: New York, NY
ABA no.: 000000000
Account no.: 8900512385
For credit to: Imperial Capital
Reference: Mercury Air Group, Inc.
WACHOVIA BANK $8,270,000.00
Bank name: Wachovia Bank
Bank address: Charlotte, NC
ABA no.: 000000000
Account no.: 5000000016439
For credit to: Wachovia Bank
Reference: X. Xxxxxxx/CT5300 - Atlanta Escrow
THE TRIDENT NORTH ATLANTIC FUND $_____________________
Bank name: Citibank
Bank address: New York, NY
ABA no.: 000000000
Account no.: 00000000
For credit to: Xxxxxxx Xxxxx International, London
Reference: X X Xxxxxx Capital Management Limited
AMERICAN OPPORTUNITY TRUST PLC $_____________________
Bank name: Bank of New York Brussels
Bank address:
ABA #: 000000000
Account #: 8900285451
For credit to: American Opportunity Trust acct#3100078400
Reference: X X Xxxxxx Capital Management
3
X X XXXXXX CAPITAL MANAGEMENT $_______________
Bank Name: Citibank
Bank Address: New York, NY
ABA#: 021 000 089
Account #: 00000000
For credit to: Xxxxxxx Xxxxx International, London
Reference: X X Xxxxxx Capital Management Limited
ALLIED CAPITAL CORPORATION Balance of Escrow Funds
Remaining in Escrow
Account
Bank name: Bank of America
Bank address: 000 X Xxxxx Xxxxxx
Xxxxxxxxx, XX
ABA no.: 000000000
Beneficiary name: Allied Capital Corporation
Beneficiary acct. no.: 003931033237
Description: Mercury -- Return of Escrow
The undersigned hereby acknowledge that this Disbursement Notice
constitutes a joint agreement and acknowledgement that the transactions
contemplated under the Purchase Agreement have been consummated and the
undersigned hereby instruct Xxxxx Xxxxxxx LLP to promptly release and deliver
one fully-executed copy of each of the Closing Documents to the Acquiror and
the Seller and hereby authorize Xxxxx Xxxxxxx LLP to take such other actions as
are necessary to fully consummate the closing of the transactions contemplated
under the Purchase Agreement.
4
IN WITNESS WHEREOF, the undersigned have hereunto caused this Disbursement
Notice to be executed and delivered as of this 12th day of April, 2004.
ALLIED CAPITAL CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
MERCURY AIR GROUP, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
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ATTACHMENT B
BANK ACCOUNT INFORMATION OF ACQUIROR
ALLIED CAPITAL CORPORATION
Bank name: Bank of America
Bank address: 000 X Xxxxx Xxxxxx
Xxxxxxxxx, XX
ABA no.: 000000000
Beneficiary name: Allied Capital Corporation
Beneficiary acct. no.: 003931033237
Description: Mercury -- Return of Escrow
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ATTACHMENT C
FEES PAYABLE TO ESCROW AGENT
I. ACCEPTANCE FEE: WAIVED
Initial fees for reviewing documents, communication with counsel and other
parties connected with the financing, setting up account(s) and
administrative records.
II. ADMINISTRATIVE FEE: WAIVED
Day to day administration of governing documents, maintenance of
investments (if applicable), communications with all parties, including
monthly account statements.
III. OUT-OF-POCKET EXPENSES: BILLED AT COST
Advance or out-of-pocket expenses, including but not limited to, postage,
telephone, facsimile, freight, legal courier and express mail. Expenses and
transaction costs (see below) will be invoiced semi-annually, in arrears,
will be subject to the terms of the Escrow Agreement, and will not exceed
10% of the Administrative Fee.
IV. OPTIONAL ACTIVITY CHARGES:
A. INVESTMENTS: WAIVED IF INVESTED IN BANK
SUPPORTED MONEY MARKET FUND
B. WIRE TRANSFERS: $25.00 EACH
(if applicable)
C. CHECK DISBURSEMENTS: $15.00 EACH
D. TAX REPORTING: $500.00 SET UP
Per 1099-DIV, 1099-INT $15.00 PER HOLDER
Questions concerning the administration or the fees for the escrow should be
directed to the administrator, Xxx Xxxxxxx, who can be reached at (804)
697-7107.
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