ESCROW AGREEMENT
THIS
ESCROW AGREEMENT (this “Agreement”) is made
as of April 7, 2009, by and among Spring Creek Acquisition Corp. (the “Company”), Xxxxxxxxx
Capital Partners, LP and HCP Opportunity Fund, LP (together, “Seller A”), Alder
Offshore Master Fund, L.P. (“Seller B”) and Alder
Capital Partners I, L.P. (“Seller C,” and
together with Seller A and Seller B, the “Sellers”), AutoChina
Group, Inc. (“AutoChina”), Honest
Best Int’l Ltd, the sole shareholder of AutoChina (“Shareholder”) and
Loeb & Loeb LLP, a California limited liability partnership, as escrow agent
(the “Escrow
Agent”). Capitalized terms used but not defined herein shall
have the meanings set forth in the Option Agreements (as defined
below).
WITNESSETH:
WHEREAS,
the Company was organized for the purpose of acquiring, through a stock
exchange, asset acquisition or other similar business combination, or
controlling, through contractual arrangements, an operating business, that has
its principal operations in the Greater China region, which includes Hong Kong,
Macau and Taiwan;
WHEREAS,
the Company has agreed to acquire (the “Acquisition”) AutoChina pursuant to
certain agreements.
WHEREAS,
the Company, the Sellers, AutoChina and Shareholder, are entering into certain
Put and Call Option Agreements dated as of the date hereof (collectively, the
“Option
Agreements”) pursuant to which the Sellers will grant options to the
Company to purchase, and the Company will grant options to the Sellers to
buy, 106,990 shares from Seller A, 10,000 shares from Seller B, and
40,000 shares from Seller C, an aggregate of 156,990 ordinary shares of the
Company (the “Shares”);
and
WHEREAS,
the Company, the Sellers, AutoChina and the Shareholder have requested that the
Escrow Agent hold the ordinary shares of the Company being issued to the
Shareholder in connection with the Acquisition (the “Escrowed Shares”)
together with certain funds as provided in the Option Agreements (the “Escrowed Funds” and
together with the Escrowed Shares, the “Property”), in each
case to secure the payment of the Option Price pursuant to the Option Agreements
until the Escrow Agent has received confirmation that either the Put Options or
Call Options have been exercised with respect to all Shares subject to the
Option Agreements or is instructed to release the Property to the Sellers as
hereinafter provided.
NOW,
THEREFORE, in consideration of the covenants and mutual promises contained
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE
I
TERMS OF
THE ESCROW
1.1. The
parties hereby agree to establish an escrow account with the Escrow Agent
whereby the Escrow Agent shall hold the Escrowed Shares and Escrowed
Funds. The Escrowed Funds shall be held in a non-interest bearing
account.
1.2. Upon
the closing of the Acquisition, the Company shall deposit the Property directly
with the Escrow Agent, and with respect to the Escrowed Fund in immediately
available funds by federal wire transfer. The Escrowed Shares shall
remain the property of Shareholder, and all Escrowed Funds shall remain the
property of the Company and neither shall be subject to any liens or charges by
the Sellers or the Escrow Agent or judgments or creditors' claims against the
Sellers, until released to the Sellers as contemplated by the Option Agreement
as hereinafter provided. Escrow Agent will not use the information
provided to it by the Company or the Sellers for any purpose other than to
fulfill its obligations as Escrow Agent. Wire transfers to the Escrow
Agent shall be made to a non-interest bearing account of the Escrow Agent as
follows:
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Bank:
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Citibank,
N.A.
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Address:
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000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
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ABA No.:
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000000000
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SWIFT:
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CITI
US 33
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Account:
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Loeb
& Loeb LLP Escrow Account
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Account
No.:
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00000000
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Reference:
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Spring
Creek Acquisition Corp.
(211819-10001)
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1.3. The
Escrow Agent shall continue to hold the Property, subject to the terms hereof
and without the accrual of any interest thereon, until it receives instructions
to release the Property with respect to some or all of the Shares as
follows:
(a) Upon
receipt of a notice from a Seller or Sellers that the Put Option or Call Option
has been exercised and such exercise has been closed in accordance with the
relevant Option Agreement, the Escrow Agent shall release $2.40 of the Escrowed
Funds to the Company and 15.49 of the Escrowed Shares to the Shareholder for
each Share covered by the relevant exercise notice;
(b) Upon
the Company delivering to the Escrow Agent a Release Notice, in the form
attached hereto as Exhibit A (each, a “Release Notice”), the
Escrow Agent shall release the Property to the relevant Sellers in accordance
with the Release Notice; or
(c) Upon
the end of the 10th
business day following a notice to the Company and the Sellers of a Release
Request (defined below), the Escrow Agent shall release the Property in
accordance with such Release Request; provided the Company
has not objected to such release in writing prior to such time. In
the event that the Company has objected to such release in writing by the end of
the 10th
business day following a notice to the Company of a Release Request, then the
Escrow Agent is hereby authorized to act in accordance with Section 2.12 of this
Agreement. For purposes of this agreement “business day” means any
day except Saturday, Sunday and any day which shall be a federal legal holiday
or a day on which banking institutions in the City of New York, State of New
York, in the Hong Kong Special Administrative Region, or in Beijing, China, are
authorized or required by law or other governmental action to
close.
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1.4. Once
the Escrow Agent receives a Release Notice executed by the Company, the Escrow
Agent shall promptly disburse the Property in accordance with the flow of funds
and instructions set forth in the applicable Release Notice.
1.5. At
any time upon the receipt of a written request executed by each of the Company,
the Sellers, AutoChina and Shareholder to the Escrow Agent, the Escrow Agent
shall promptly return the Escrowed Shares to the Shareholder and the Escrowed
Funds to the Company pursuant to written wire instructions to be delivered by
the Company to the Escrow Agent. In the event that the Put Option
with respect to any of the Shares expires without being exercised and none of
the Sellers has notified the Escrow Agent of any dispute with the Company
regarding to the Option Agreements or the Property, the Escrow Agent shall
promptly return the Escrowed Shares to the Shareholder and the Escrowed Funds to
the Company pursuant to written wire instructions to be delivered by the Company
to the Escrow Agent.
1.6. Upon
the exercise of the Put Option, a Seller shall deliver a notice of such exercise
to the Escrow Agent. In the event the Company fails to close on the
exercise of the Put Option in accordance with such notice and the Option
Agreement, the Seller shall provide the Escrow Agent with a written request that
the Property be released with respect to the Shares subject to the exercise
notice in the form attached hereto as Exhibit B (each, a “Release Request”),
and upon receipt of a Release Request, the Escrow Agent shall within 2 business
days notify the Company and each of the Sellers of such Release
Request.
ARTICLE
II
MISCELLANEOUS
2.1. No
waiver or any breach of any covenant or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof, or of any other
covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed an extension of the time
for performance of any other obligation or act.
2.2. All
notices or other communications required or permitted hereunder shall be in
writing, and shall be sent to the addresses set forth in the Option
Agreements.
2.3. This
Escrow Agreement shall be binding upon and shall inure to the benefit of the
permitted successors and permitted assigns of the parties hereto.
2.4. This
Escrow Agreement is the final expression of, and contains the entire agreement
between, the parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This Escrow Agreement
may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein.
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2.5. Whenever
required by the context of this Escrow Agreement, the singular shall include the
plural and masculine shall include the feminine. This Escrow
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless
otherwise indicated, all references to Articles are to this Escrow
Agreement.
2.6. The
parties hereto expressly agree that this Escrow Agreement shall be governed by,
interpreted under and construed and enforced in accordance with the laws of the
State of New York, without regard to conflicts of law principles that would
result in the application of the substantive laws of another
jurisdiction. Any action to enforce, arising out of, or relating in
any way to, any provisions of this Escrow Agreement shall only be brought in a
state or Federal court sitting in New York City, Borough of
Manhattan.
2.7. The
Escrow Agent’s duties hereunder may be altered, amended, modified or revoked
only by a writing signed by the Company, each Seller and the Escrow
Agent.
2.8. The
Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by the Escrow Agent
to be genuine and to have been signed or presented by the proper party or
parties. The Escrow Agent shall not be personally liable for any act
the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting
in good faith and in the absence of gross negligence, fraud or willful
misconduct, and any act done or omitted by the Escrow Agent pursuant to the
advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of
such good faith, in the absence of gross negligence, fraud or willful
misconduct.
2.9. The
Escrow Agent shall not be liable in any respect on account of the identity,
authorization or rights of the parties executing or delivering or purporting to
execute or deliver the Option Agreements or any documents or papers deposited or
called for thereunder in the absence of gross negligence, fraud or willful
misconduct. In no event shall the Escrow Agent be liable, directly or
indirectly, for any damages or expenses arising out of the services provided
hereunder, other than damages which result from the Escrow Agent’s gross
negligence or willful misconduct
2.10. Escrow
Agent may resign upon 30 days advance written notice to the other parties to
this Agreement. If a successor escrow agent is not appointed within the 30-day
period following such notice, Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent or interplead the Property with
such court, whereupon Escrow Agent’s duties hereunder shall
terminate.
2.11. If
the Escrow Agent reasonably requires other or further instruments in connection
with this Escrow Agreement or obligations in respect hereto, the necessary
parties hereto shall join in furnishing such instruments.
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2.12. It
is understood and agreed that should any dispute arise with respect to the
delivery and/or ownership or right of possession of the Property held by the
Escrow Agent hereunder, the Escrow Agent is authorized and directed in the
Escrow Agent’s sole discretion (1) to retain in the Escrow Agent’s possession
without liability to anyone all or any part of said Property until such disputes
shall have been settled either by mutual written agreement of the parties
concerned by a final order, decree or judgment or a court of competent
jurisdiction after the time for appeal has expired and no appeal has been
perfected, but the Escrow Agent shall be under no duty whatsoever to institute
or defend any such proceedings or (2) to deliver the Property and any other
property held by the Escrow Agent hereunder to a state or Federal court having
competent subject matter jurisdiction and located in the City of New York,
Borough of Manhattan, in accordance with the applicable procedure
therefor.
2.13. Each
of the Company, the Sellers, AutoChina and the Shareholder agrees to indemnify
and hold harmless the Escrow Agent and its partners, employees, agents and
representatives from any and all claims, liabilities, costs or expenses in any
way arising from or relating to the duties or performance of the Escrow Agent
hereunder or the transactions contemplated hereby or by the Option Agreements
other than any such claim, liability, cost or expense to the extent the same
shall have been determined by final, unappealable judgment of a court of
competent jurisdiction to have resulted from the gross negligence, fraud or
willful misconduct of the Escrow Agent.
[SIGNATURE
PAGES FOLLOW]
5
[SIGNATURE
PAGE TO ESCROW AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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SPRING
CREEK ACQUISITION CORP.
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By:
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/s/ Xxxxx Sha
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Name:
Xxxxx Sha
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Title:
Chief Executive Office
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AUTOCHINA
GROUP, INC.
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By:
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/s/ Li Xxxx Xxx
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Name:
Li Xxxx Xxx
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Title:
President
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HONEST
BEST INT’L LTD.
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By:
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/s/ Xxxx Xxx
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Name:
Xxxx Xxx
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Title:
Director
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ESCROW
AGENT:
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LOEB
& LOEB LLP
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By:
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/s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx
X. Xxxxxxxx
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Title: Partner
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[SELLERS’
SIGNATURE PAGE FOLLOWS]
6
[SELLERS’
SIGNATURE PAGE TO ESCROW AGREEMENT]
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XXXXXXXXX
CAPITAL PARTNERS, LP
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By:
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/s/ Xxxxx Xxxxxxxxx
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Name:
Xxxxx Xxxxxxxxx
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Title:
Managing Member of GP
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Address:
0000 Xxxx Xxxx
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Xxxxxxxxx,
XX 00000
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HCP
OPPORTUNITY FUND, LP
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By:
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/s/ Xxxxx Xxxxxxxxx
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Name:
Xxxxx Xxxxxxxxx
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Title:
Managing Member of GP
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Address:
0000 Xxxx Xxxx
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Xxxxxxxxx,
XX 00000
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ALDER
OFFSHORE MASTER FUND, L.P.
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Managing Partner
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Address:
0000 Xxxxxx xxx Xxx
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Xxx
Xxx, XX 00000
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ALDER
CAPITAL PARTNERS I, L.P.
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Managing Partner
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Address:
0000 Xxxxxx xxx Xxx
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Xxx
Xxx, XX 00000
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7
Exhibit A
to
Escrow
Agreement
RELEASE
NOTICE
The
Company, pursuant to the Escrow Agreement dated as of April 7, 2009 among the
Company, the Sellers, AutoChina, the Shareholder and Loeb & Loeb LLP, as
Escrow Agent (the “Escrow Agreement”),
hereby instructs the Escrow Agent to release $2.40 per Share with respect to
[_________] Shares (an aggregate of $[________]) of the Escrowed Funds to the
account and in the amount specified below:
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·
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$[___________]
to Seller [__], pursuant to the following wire transfer
instructions:
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[WIRE INSTRUCTIONS]
In
addition, the Company, pursuant to the Escrow Agreement, hereby instructs the
Escrow Agent to release 15.49 Escrowed Shares per Share with respect to
[_________] Shares (an aggregate of [________]) Escrowed Shares to
[SELLER].
The
remainder of the Escrowed Funds and Escrowed Shares shall be held by the Escrow
Agent in accordance with the terms of the Escrow Agreement.
[SIGNATURE
PAGE FOLLOWS]
8
IN
WITNESS WHEREOF, the undersigned has caused this Release Notice to be duly
executed and delivered as of this ___ day of ____________, 2009.
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SPRING
CREEK ACQUISITION CORP.
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By:
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Name:
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Title:
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HONEST
BEST INT’L LTD
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By:
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Name:
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Title:
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9
Exhibit B
to
Escrow
Agreement
RELEASE
REQUEST
The
undersigned Seller, pursuant to the Escrow Agreement dated as of April 7, 2009
among the Company, the Sellers, AutoChina, the Shareholder and Loeb & Loeb
LLP, as Escrow Agent (the “Escrow Agreement”),
hereby notifies the Escrow Agent that the Company has failed to close on the
Shares pursuant to the attached exercise notice in accordance with the terms of
the Option Agreement, and instructs the Escrow Agent to notify the Company and
each of the Sellers of this Release Request. In the event the Company
does not object to this Release Request within 10 business days from the date
the Escrow Agent provides notice hereof to the Company, the Escrow Agent is
hereby instructed to release and 15.49 Escrowed Shares per Share with respect to
[_________] Shares (an aggregate of [________]) Escrowed Shares to the Seller
and $2.40 per Share with respect to [_________] Shares (an aggregate of
$[________]) of the Escrowed Funds to the account and in the amount specified
below:
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·
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$[___________]
to Seller [__], pursuant to the following wire transfer
instructions:
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[WIRE INSTRUCTIONS]
The
remainder of the Escrowed Funds and Escrowed Shares shall be held by the Escrow
Agent in accordance with the terms of the Escrow Agreement.
[SIGNATURE
PAGE FOLLOWS]
10
IN
WITNESS WHEREOF, the undersigned has caused this Release Notice to be duly
executed and delivered as of this ___ day of ____________, 2009.
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[SELLER]
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By:
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Name:
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Title:
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11
