EXHIBIT 10.47
ESCROW DEPOSIT AGREEMENT
Between
GREAT DANE HOLDINGS INC.
And
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
Dated as of ______________, 1995
ESCROW DEPOSIT AGREEMENT
Escrow Deposit Agreement (the "Escrow Agreement") dated as of
_________ ___, 1995 between Great Dane Holdings Inc., a Delaware corporation,
("Holdings" or the "Company") and First Fidelity Bank, National Association, as
escrow agent (the "Agent").
W I T N E S E T H:
WHEREAS, on the date hereof pursuant to a registration statement on
Form S-1 under the Securities Act of 1933 (the "Offering") Holdings has issued
[5,700,000] shares of common stock, par value $0.01 per share (the "Shares"), of
the Company.
WHEREAS, Holdings has determined that it is in the best interest of
the Company to provide for the repayment or redemption, as the case may be, of
certain indebtedness of the Company as listed on Schedule I hereto (including
interest accrued thereon to the date of repayment or redemption, any prepayment
penalties and any other required payments thereunder) (the "Obligations"); and
WHEREAS, Holdings has elected to deposit a sufficient amount of the
net proceeds from the Offering with an escrow agent to pay the Obligations when
they become due; and
WHEREAS, the Agent has agreed to act as escrow agent in connection
with the repayment or redemption, as the case may be, of the Obligations in
accordance with the terms and conditions specified in the instruments and
agreements listed on Schedule I hereto (the "Agreements");
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein, Holdings and the Agent agree as follows:
SECTION 1. PLEDGE OF PROCEEDS. Holdings hereby irrevocably deposits
with the Agent for the benefit of the selected holders ("Holders") of the
Obligations to be selected by the Trustee pursuant to Section 3.02 of the
Indenture dated as of August 1, 1986 between Great Dane Holdings Inc. (as
successor to International Controls Corp.) and First Fidelity Bank, National
Association, as Trustee, and irrevocably appropriates and sets aside
$____________ including any additional deposits made in accordance with this
Escrow Agreement (the "Deposit"), exclusively for the repayment or redemption,
as the case may be, of the Obligations, which Deposit (and any interest or other
income earned thereon) is hereby pledged to, and for the sole benefit of, the
Holders.
The Agent hereby acknowledges receipt of the Deposit which shall be
deposited by the Agent in the Holdings Escrow Fund (as defined in Section 3
hereof). Holdings represents and warrants that the amount of the Deposit is
sufficient to pay the Obligations when due, without anticipating any interest or
other income being earned on the Deposit and understands that the Holders of the
Obligations are relying upon such representation and warranty.
SECTION 2. NOTICE OF REPAYMENT OR REDEMPTION. Holdings represents to
the Agent that the Company will give irrevocable notice of redemption on a date
which is at least 30 days after the date the notice is delivered (the "Payment
Date"), to the Holders in accordance with the Indenture.
SECTION 3. SPECIAL ESCROW FUND. There is hereby established and
created with the Agent a special and irrevocable fund designated the "Great Dane
Holdings Inc. Escrow Fund" (the "Holdings Escrow Fund") to be held in the
custody of the Agent as a special escrow fund, separate and apart from all other
funds of Holdings or the Agent, solely for the benefit of the Holders. All
Deposits and Authorized Investments (as defined in Section 4(b) hereof) set
aside and held in the Holdings Escrow Fund shall be applied to, and applied
solely for, the repayment or redemption, as the case may be, of the Obligations
and as otherwise provided herein.
SECTION 4. APPLICATION OF MONEYS ON DEPOSIT IN HOLDINGS ESCROW FUND.
(a) Holdings shall not direct the Agent to invest deposits in the Holdings
Escrow Fund at any time in any securities or other investments other than the
Authorized Investments (as defined in Section 4(b) hereof).
(b) The Agent shall act as custodian of the Holdings Escrow Fund
and shall, at the written direction of Holdings, invest and reinvest the
Holdings Escrow Fund solely in the following investments, which constitute
Authorized Investments hereunder: (i) direct obligations of the United States
Government (or agencies or instrumentalities thereof), provided that such
securities are obligations to which the full faith and credit of the United
States of America has been pledged; (ii) certificates of deposit, time deposits
or other interest-bearing deposits of commercial banks having total capital and
surplus of at least $500,000,000 or (iii) the Agent's U.S. Treasury Money Market
Fund provided that such fund maintains the highest ratings established by each
of Moody's and Standard & Poor's, in each case with a maturity or maturities
that would permit the Agent to make cash payments to repay or redeem, as the
case may be, the Obligations on the Payment Date in accordance with Section 5
hereof. The Agent shall have no responsibility for the determination of such
investments and shall have no liability for any investment losses resulting from
the investment,
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reinvestment, sale or liquidation of the Holdings Escrow Fund, except in the
case of its own gross negligence or willful misconduct.
(c) Except as otherwise specifically provided herein, Holdings
covenants and agrees that the Agent (for the benefit of the Holders) shall have
full and complete control and authority over and with respect to the Holdings
Escrow Fund and the moneys deposited therein and that Holdings shall not
exercise any control or authority over or with respect to the Holdings Escrow
Fund or the moneys deposited therein.
SECTION 5. PAYMENT OF OBLIGATIONS. On the Payment Date the Agent
shall apply sufficient funds, to the extent available, from the funds held in
the Holdings Escrow Fund to the payment in full of the Obligations (as such
payment is directed to be made on Schedule I). To the extent sufficient funds
are not available, Holdings agrees to deposit the necessary funds in the
Holdings Escrow Fund in order for such Obligation to be paid in full on the
Payment Date and understands that the Holders of the Obligations are relying
upon such agreement.
SECTION 6. IRREVOCABLE DEPOSIT; RELINQUISHMENT OF RIGHTS OF THE
COMPANY. (a) The Deposit being made into the Holdings Escrow Fund shall
constitute an irrevocable deposit solely for the payment of the Obligations, and
solely for the benefit of the Holders thereof pursuant to the terms of this
Escrow Agreement.
(b) Holdings hereby agrees that it shall not have any beneficial
interest in, or rights to, the Deposit or proceeds thereof (or interest or other
income earned thereon) on deposit in the Holdings Escrow Fund (whether in the
form of cash, Authorized Investments or otherwise) or payments made therefrom so
long as any of the Obligations or any amounts owing to the Agent hereunder
remain unpaid.
SECTION 7. LIABILITY OF AGENT. The liability of the Agent to make
the payments required by this Escrow Agreement with respect to the Obligations
shall be limited to application of the funds deposited with it hereunder and the
Agent shall not be personally liable for any amounts due to the Holders. The
Agent shall not be liable for any loss resulting from any investment made in
accordance with the instructions of Holdings.
SECTION 8. TERMINATION; INCOME FROM AUTHORIZED INVESTMENTS. (a) This
Escrow Agreement shall terminate when all Obligations to the Holders shall have
been paid to the Holders and all fees and expenses of the Agent shall have been
paid in full.
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(b) Upon termination of this Escrow Agreement in accordance with the
provisions of subsection (a) of this Section 8, any funds in the Holdings Escrow
Fund (including income from all Authorized Investments) shall be promptly paid
to Holdings upon the direction of Holdings.
SECTION 9. FEES OF AGENT. (a) Holdings shall pay upon request all
compensation and expenses of the Agent, including, without limitation,
reasonable compensation for all services rendered by the Agent in the execution,
exercise and performance of any of the duties to be exercised or performed by it
pursuant to the provisions of this Escrow Agreement (including reasonable
counsel fees and expenses). Attached hereto as Schedule II is the Agent's fee
schedule. The Agent shall be entitled to indemnity from Holdings against any
and all losses, claims, liabilities or expenses incurred on the part of the
Agent arising out of or in connection with the acceptance or administration of
its powers and duties under this Escrow Agreement, including the cost and
expense of defending against any such loss, claim or liability, other than
losses, claims, liabilities or expenses arising out of the Agent's gross
negligence or willful misconduct.
(b) Except for the fees which may be paid out of the interest earned
on the funds in the Holdings Escrow Fund (but not under any circumstances out of
the original principal amount of such funds) as expressly set forth on Schedule
II, the Agent has no right to payment for its fees, compensation and expenses
from the Holdings Escrow Fund so long as all of the Obligations shall not have
been paid in full.
(c) All of the rights, entitlements, and protections provided to the
Agent in this Section 9 shall survive its resignation or termination of this
Escrow Agreement, whether by payment of the Obligations or otherwise.
SECTION 10. DUTIES OF AGENT; EVIDENCE UPON WHICH AGENT MAY ACT;
REPLACEMENT OF AGENT. (a) The duties and obligations of the Agent hereunder
shall be determined solely by the express provisions of this Escrow Agreement,
and the Agent shall not be liable except for the performance of its duties and
obligations as specifically set forth herein and to act in good faith in the
performance thereof, and no implied duties, covenants or obligations shall be
incurred by the Agent other than those specified herein, and the Agent shall be
protected when acting or omitting to act in good faith upon the advice of
counsel, who may be counsel to Holdings.
(b) Subject to the requirement under subsection (a) of this Section
10 to act in good faith, the Agent may conclusively rely, as to the correctness
of statements, conclusions and opinions
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therein, upon any certificate, report, opinion or other document furnished to
the Agent pursuant to any provision of this Escrow Agreement. Any request,
consent, certificate, notice, appointment or other direction made or given by
Holdings to the Agent shall be deemed to have been sufficiently made or given by
the proper party or parties if executed by an authorized officer of the Company
on behalf of Holdings.
(c) The Agent may resign and be discharged of its duties as agent
hereunder by giving written notice of such intention to resign to an authorized
officer of Holdings; provided, however, that such resignation shall not become
effective until the later of (i) ten (10) days after the giving of such notice
and (ii) a successor shall have been appointed and the funds held by the Agent
in the Holdings Escrow Fund have been transferred to such successor agent. Any
such successor agent shall be a commercial bank having total capital and surplus
of at least $500,000,000. If no successor shall have been appointed within ten
(10) days after the giving of the aforementioned notice, the Agent may petition
any court of competent jurisdiction for the appointment of such successor.
(d) The recitals contained herein shall be taken as the statements of
Holdings and the Agent assumes no responsibility for their correctness. The
Agent makes no representation as to the validity or sufficiency of this Escrow
Agreement or of the Deposit in the Holdings Escrow Fund.
(e) The Agent may consult with counsel and the advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
SECTION 11. AMENDMENTS. This Escrow Agreement shall not be repealed,
revoked, altered or amended or any provisions thereof waived as to any of the
Obligations without the written consent of all Holders of each such Obligation,
the written consent of the Agent and the written consent of Holdings; PROVIDED
HOWEVER, that Holdings and the Agent may, without the consent of, or notice to,
the Holders, enter into such agreements supplemental to this Escrow Agreement as
shall not adversely affect the rights of the Holders, for any one or more of the
following purposes:
(a) to cure any ambiguity, defect or omission in this Escrow
Agreement; or
(b) to grant to, or confer upon the Agent for the benefit of, the
Holders any additional rights, remedies, powers or authority that may lawfully
be granted to, or conferred upon, the Agent.
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The Agent may, but shall not be obligated to, enter into any such amendment or
supplement to this Escrow Agreement which affects the Agent's own rights, duties
or immunities under this Escrow Agreement or otherwise. Holdings shall provide
the Agent with an opinion of counsel that any such amendment or supplement does
not adversely affect the rights of the Holders.
SECTION 12. SEVERABILITY. If any one or more of the covenants or
agreements provided in this Escrow Agreement on the part of Holdings or the
Agent to be performed should be determined by a court of competent jurisdiction
to be contrary to law, such covenant or covenants, or such agreement or
agreements, or such portions thereof, shall be deemed severable from the
remaining covenants and agreements or portions thereof provided in this Escrow
Agreement and the invalidity thereof shall in no way affect the validity of
other provisions of this Escrow Agreement, but the Holders shall retain all the
rights and benefits accorded them hereunder and under applicable provisions of
law.
If any provisions of this Escrow Agreement shall be held or deemed to
be or shall, in fact, be inoperative or unenforceable or invalid as applied in
any particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any constitution or
statute or rule of public policy, or for any other reason, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable or invalid in any other case or circumstance, or of rendering any
other provision or provisions herein contained inoperative or unenforceable or
invalid to any extent whatever.
SECTION 13. GOVERNING LAW. This Escrow Agreement shall be construed
and interpreted in accordance with the laws of the State of New York, without
regard to its conflict of law principles.
SECTION 14. COUNTERPARTS. This Escrow Agreement may be executed in
several counterparts, all or any of which shall be regarded for all purposes as
one original and shall constitute and be one and the same instrument.
SECTION 15. SECTION HEADINGS. The headings of the several Sections
hereof and the Table of Contents appended hereto shall be solely for convenience
of reference and shall not affect the meaning, construction, interpretation or
effect of this Escrow Agreement.
SECTION 16. BINDING EFFECT, ETC. This Escrow Agreement shall be
binding upon the parties hereto and their respective successors, legal
representatives and permitted assigns.
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SECTION 17. NOTICES. Any notices or other communications to be given
hereunder by any party hereto to the other party shall be in writing and shall
be given by delivery in person, by electronic facsimile transmission or other
standard forms of written telecommunications, by overnight courier or by
registered or certified mail, postage prepaid, as follows:
if to Holdings, to:
Great Dane Holdings Inc.
2016 North Pitcher Street
Kalamazoo, Michigan 49007
Telecopy number: (616) 343-6823
Attention: David R. Markin
with a copy to:
Hutton Ingram Yuzek Gainen
Carroll & Bertolotti
250 Park Avenue
New York, New York 10177
Telecopy number: (212) 907-9681
Attention: Paulette Kendler, Esq.
if to the Agent, to:
First Fidelity Bank, National Association
765 Broad Street, C76505
Newark, New Jersey 07102
Telecopy number: (201) 430-4963
Attention: Corporate Trust Department
Directions from Holdings to the Agent to be given under the terms of this Escrow
Agent shall only be made on behalf of the Company by the following persons (or
such additional persons as may be appointed by any of the persons named below or
their appointees by written notice to the Agent):
David R. Markin
Jay H. Harris
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IN WITNESS WHEREOF, the parties have each caused this Escrow Agreement
to be executed by their duly authorized officers as of the date first above
written.
GREAT DANE HOLDINGS INC.
By:
--------------------------
Title:
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, as Agent
By:
--------------------------
Title:
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SCHEDULE I
HOLDERS OF 12-3/4% SENIOR SUBORDINATED
DEBENTURES DUE 2001 SELECTED FOR REDEMPTION BY
THE TRUSTEE IN ACCORDANCE WITH THE INDENTURE
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SCHEDULE II
AGENT FEE SCHEDULE
See attached Escrow Agreement Fee Agreement
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