This INVESTMENT MANAGEMENT TRUST
AGREEMENT (this “ Agreement ”) is made as of February 14, 2008, by and
between GHL Acquisition Corp. (the “ Company ”) and American Stock Transfer & Trust
Company (the “ Trustee ”). Capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the
Registration Statement (as defined below).
WHEREAS, the Company’s
Registration Statement on Form S-1 (No. 333-147722) (the
“ Registration
Statement ”), for its
initial public offering of securities (the “
IPO ”) has been declared effective as of the
date hereof by the Securities and Exchange Commission (the
“ Effective
Date ”);
and
WHEREAS, Banc of America Securities
LLC is acting as the representative (the “
Representative
”) of the underwriters in the
IPO pursuant to an underwriting agreement dated on or about the
date hereof between the Company and the Representative (the
“ Underwriting
Agreement ”);
and
WHEREAS, as described in the
Registration Statement, and in accordance with the Company’s
amended and restated certificate of incorporation, upon execution
of this Agreement or as promptly thereafter as practicable, the
Company shall deliver to the Trustee an amount equal to the sum of
(i) $392,000,000 of the net proceeds of the IPO, including
$16,351,500 in deferred underwriting compensation (or $450,931,682
of the net proceeds, including $18,883,182 in deferred underwriting
compensation, if the over-allotment option is exercised in full)
and (ii) $8,000,000 of the proceeds from the Company’s
issuance and sale in a private placement of 8,000,000 warrants
issued to its founding stockholder, Greenhill & Co., Inc. for a
total of $400,000,000 (or 458,931,682 if the underwriters’
over-allotment option is exercised in full) to be deposited and
held in a trust account for the benefit of the Company and the
holders of the Company’s common stock, par value $0.001 per
share, issued in the IPO (the “ Public Stockholders ”). The amount to be delivered to the
Trustee is referred to herein as the “ Property ,” and the parties for whose benefit the
Trustee shall hold the Property are referred to together with the
Company as the “ Beneficiaries ”; and
WHEREAS, pursuant to the Underwriting
Agreement, a portion of the Property equal to $16,351,500 (or
$18,883,182 if the underwriters’ over-allotment option is
exercised in full, subject to proportional adjustment pursuant to
the Underwriting Agreement if the underwriters’
over-allotment option is exercised in part, but not in full, prior
to its expiration as specified in a notice pursuant to Paragraph
2(d) hereof), subject to reduction, as provided in the Underwriting
Agreement, by amounts paid to public stockholders who convert their
shares of common stock of the Company for cash, is attributable to
deferred underwriting commissions that will become payable by the
Company to the underwriters upon the consummation of an Initial
Business Combination (the “ Deferred Discount ”); and
WHEREAS, the Company and the Trustee
desire to enter into this Agreement to set forth the terms and
conditions pursuant to which the Trustee shall hold the
Property.
NOW, THEREFORE, in consideration of
the premises herein contained and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1
1. Agreements and Covenants of Trustee
. The Trustee is hereby appointed to
serve as Trustee hereunder, and the Trustee hereby agrees to act as
Trustee upon the terms and conditions set forth herein. The Trustee
hereby agrees and covenants to:
(a) Hold the Property in trust for the
Beneficiaries in accordance with the terms of this Agreement, in a
segregated trust account (the “ Trust Account ”) established by the Trustee at Wachovia
Securities, LLC;
(b) Manage, supervise and administer
the Trust Account subject to the terms and conditions set forth
herein;
(c) In a timely manner, upon the
written instruction of the Company, to invest and reinvest the
Property only in U.S. “government securities” within
the meaning of Section 2(a)(16) of the Investment Company Act of
1940, as amended (the “ Investment Company Act ”), with a maturity of 180 days or less,
other than, at the option of the Company, up to $5.0 million that
may be invested in U.S. ‘‘government
securities,’’ as defined under the Investment Company
Act, with remaining maturities at all times of more than six months
and one day, or in money market funds selected by the Company which
invest principally in either short-term securities issued or
guaranteed by the United States having a rating in the highest
investment category granted thereby by a recognized credit rating
agency at the time of acquisition or tax exempt municipal bonds
issued by governmental entities located within the United States or
otherwise meeting the conditions under Rule 2a-7 under the
Investment Company Act;
(d) Collect and receive, when due, all
principal and income arising from the Property, which shall become
part of the “Property,” as such term is used
herein;
(e) Notify the Company of all
communications received by it with respect to any Property
requiring action by the Company;
(f) Supply any necessary information
or documents as may be requested by the Company in connection with
the Company’s preparation of the tax returns for the Company
and Trust Account;
(g) Participate in any plan or
proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company
to do so; and
(h) Render to the Company and to such
other person as the Company may instruct monthly written statements
of the activities of and amounts in the Trust Account reflecting
all receipts and disbursements of the Trust Account.
2. Agreements and Covenants of the Company
. The Company hereby agrees and
covenants to:
(a) Give all instructions to the
Trustee hereunder in writing, signed on behalf of the Company by a
duly authorized executive officer of the Company. In addition,
except with respect to its duties under Paragraph 3, the Trustee
shall be entitled to rely on, and shall be protected in relying on,
any verbal or telephonic advice or instruction which it in good
faith believes to be given by any one of the persons authorized
above to give written instructions, provided that the Company shall promptly confirm such
instructions in writing;
(b) Hold the Trustee harmless and
indemnify the Trustee from and against any and all expenses,
including reasonable counsel fees and disbursements, or loss
suffered by the Trustee in connection with any action, suit or
other proceeding brought against the Trustee involving any claim,
or in connection with any claim or demand which in any way arises
out of or relates to this Agreement, the services of the Trustee
hereunder, or the Property or any income earned from investment of
the Property, except for expenses and losses resulting from the
Trustee’s gross negligence or willful misconduct. Promptly
after the receipt by the Trustee of notice of demand or claim or
the commencement of any action, suit or proceeding, pursuant to
which the Trustee intends to seek indemnification under this
Paragraph, it shall notify the Company in writing of such claim
(hereinafter referred to as the “ Indemnified Claim ”). The Company shall have the right to
conduct and manage the defense against such Indemnified
Claim, provided
that the Company shall obtain the
consent of the Trustee with respect to the selection of counsel,
which consent shall not be unreasonably withheld. The Company may
not agree to settle any Indemnified Claim without the prior written
consent of the Trustee, which consent shall not be unreasonably
withheld, unless such settlement includes a full release of the
Trustee with respect to such Indemnification Claim. The Trustee may
participate in such action with its own counsel at its own
expense;
(c) Pay the Trustee a fee of $3,000
for its services as Trustee at the consummation of the IPO
(separately and in addition to making payments to the Trustee of a
monthly fee of $1,000 for transfer agent services, of a one-time
fee of $2,500 for warrant agent services and a closing fee of
$3,500 in accordance with the terms of a separate fee letter to be
delivered to the Company on or about February 21, 2008, as
subsequently amended from time to time). The Company shall not be
responsible for any other fees or charges of the Trustee except as
may be provided in Paragraph 2(b) hereof;
(d) Within five business days after
the underwriters’ over-allotment option (or any unexercised
portion thereof) expires or is exercised in full, provide the
Trustee with a notice in writing (with a copy to the
Representative) of the total amount of the Deferred Discount, which
shall in no event be less than $16,351,500; and
(e) In connection with any vote of the
Company’s stockholders on whether to approve an Initial
Business Combination, provide to the Trustee an affidavit or
certificate of a firm regularly engaged in the business of
soliciting proxies and tabulating stockholder votes (which firm may
be the Trustee) verifying the vote of the Company’s
stockholders regarding such Initial Business
Combination.
3. Liquidation and Distribution of Trust Account
Property . The Trustee
shall commence liquidation of the Trust Account only upon receipt
of, and only in accordance with the terms of, a letter in form
substantially similar to that attached hereto as either
Exhibit A or Exhibit
B (a “
Termination Letter
”), signed on behalf of the
Company by a duly authorized executive officer of the Company and
affirmed by a duly authorized officer of the Company, and complete
the liquidation of the Trust Account and distribute the Property in
the Trust Account only as directed in the Termination Letter and
any other documents referred to therein; provided, however , that the Trustee shall (i) from time to time as
may be necessary timely to pay any taxes incurred as a result of
interest or other income earned on the Property held in the Trust
Account (or to reimburse the Company for previous payments
thereof), or to pay any franchise taxes incurred by the Company,
only upon receipt and in accordance with the terms of a letter in
form substantially similar to that attached hereto as
Exhibit C (a “ Tax Disbursement Letter ”), signed on behalf of the Company by a
duly authorized executive officer of the Company and copied to
Authorized Counsel, as evidenced
by his or her countersignature
thereto, distribute such funds to the person or persons indicated
on the Schedule of Tax Payments attached to the Tax Disbursement
Letter the amount or amounts that may be requested by the Company
with respect thereto only as directed in the Tax Disbursement
Letter and any other documents referred to therein, and (ii) from
time to time, only upon receipt and in accordance with the terms of
a letter in form substantially similar to that attached hereto
as Exhibit D
(a “ Disbursement Letter ”), signed on behalf of the Company by a
duly authorized executive officer of the Company and copied to
Authorized Counsel, as evidenced by his or her countersignature
thereto, distribute to the Company such amount as may be requested
by the Company for working capital requirements as directed in the
Disbursement Letter and the other documents referred to
therein, provided,
however , that the
aggregate amount distributed by the Trustee to the Company pursuant
to this Paragraph 3(ii) may not exceed the lesser of (y) the
aggregate amount of interest and any other income actually received
or paid on amounts in the Trust Account less an amount equal to
estimated taxes that are or will be due on such income at an
assumed rate of 40% and (z) $4,000,000, subject to proportional
adjustment in the event that the size of the IPO is increased or
the underwriters’ over allotment option is exercised in full
or in part). In addition, if as of the date of a Termination Letter
in form substantially similar to that attached hereto as
Exhibit B , should the Company have received the full amount
of its disbursements pursuant to the preceding sentence, and should
such funds be insufficient to cover the Company’s costs and
expenses incurred in connection with the adoption and
implementation of its plan of dissolution and its liquidation, to
the extent that there is any interest accrued in the Trust Account
not required to be used to pay income taxes on interest income
earned on the Trust Account balance, the Company may request in the
Termination Letter that the Trustee release to it an additional
amount of up to $100,000 of such accrued interest to pay costs and
expenses incurred in connection with its dissolution and
liquidation.
For purposes of this Agreement,
“ Authorized
Counsel ” shall mean,
at any date, the attorney retained and authorized by the Company to
perform such functions.
4. Limitations of Liability . The Trustee shall have no responsibility or
liability to:
(a) Take any action with respect to
the Property, other than as directed in Paragraphs 1 and 3 hereof,
and the Trus
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