EXHIBIT 10.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of
the ___ day of May, 2001, by and among GLOBAL EXPRESS CAPITAL REAL ESTATE
INVESTMENT FUND I, LLC, a Nevada limited liability company (the "Company"),
GLOBAL EXPRESS SECURITIES, INC., a Nevada corporation ("GES"), and BANK OF
AMERICA, N.A. (the "Custodian").
WITNESSETH:
WHEREAS, the Company is offering membership interests in the Company
("Membership Certificates"), by means of a Prospectus dated May __, 2001 (the
"Prospectus") as filed by the Company with the Securities and Exchange
Commission as part of Registration Statement No. 333- 55098 on Form S-11, under
the Securities Act of 1933, as amended; and
WHEREAS, the Company is managed by Conrex Financial International,
Inc., a Nevada corporation doing business as Global Express Capital Mortgage
(the "Manager"); and
WHEREAS, pursuant to the Prospectus, the Company has engaged GES, a
NASD licensed broker and affiliate of the Manager, to offer and sell Membership
Certificates on a best efforts minimum $1,000,000 (the "Minimum Proceeds"),
maximum $25,000,000 basis; and
WHEREAS, the Company and GES have entered into an agreement dated May
__, 2001 whereby GES will act as dealer manager for the offering of the
Membership Certificates (the "Dealer Manager Agreement"); and
WHEREAS, pursuant to the Prospectus and the Dealer Manager Agreement,
the proceeds to the Company from the sale of the Membership Certificates to the
Investors are required to be held in escrow pending receipt of the Minimum
Proceeds from the sale of the Membership Certificates; and
WHEREAS, the Prospectus contemplates that the Custodian will serve as
agent and custodian on the terms and subject to the conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. The Company and GES hereby appoint the Custodian as their agent and
custodian for the purposes of this Agreement, and the Custodian accepts such
appointment, upon the terms and subject to the conditions set forth herein.
2. During the term of this Agreement, the Custodian shall do the
following: (a) hold, on its behalf and on behalf of each Investor, the amounts
delivered to the Custodian from time to time by the Company and GES pursuant to
Section 3 hereof, (b) deposit all subscription amounts received by the Custodian
hereunder in a separate account maintained by the Custodian which enables the
Custodian to transmit or return appropriate subscription amounts and/or interest
earned thereon to the person and/or entity entitled thereto when the appropriate
event has occurred or fails to occur in accordance with Section 6 hereof; (c)
either deposit the subscription amounts received in an interest bearing account
or invest the amounts deposited in short-term securities issued or guaranteed by
the United States Government (all interest paid or earnings on the amounts
deposited are hereinafter referred to as "interest") (d) maintain a complete
record of the name and address of each Investor, the number of Membership
Certificates subscribed for by such Investor, and the amount paid for those
Membership Certificates by such Investor; and (e) to otherwise perform its
duties and responsibilities under this Agreement.
3. Until the Minimum Proceeds are deposited with the Custodian, the
Company and GES hereby agree to deliver to the Custodian, immediately upon
receipt, all proceeds from subscriptions for the Membership Certificates
received from Investors.
4. From time to time during the term of this Agreement, the Company
shall deliver notice to the Custodian that subscriptions have been accepted by
the Company.
5. Following receipt of the Minimum Proceeds from the subscriptions for
the Membership Certificates prior to November 30, 2001, the Custodian shall
promptly deliver written notice to the Company and GES confirming its receipt of
such amount.
6. The Custodian shall deliver the Minimum Proceeds with interest as
follows:
(a) To the Company promptly in the event that the Custodian has
received written notice from GES that the Minimum Proceeds
have been deposited with the Bank.
(b) To the Investors in the amount of their respective
subscriptions with their allocable share of interest in the
event that the conditions specified in Section 6(a) of this
Agreement are not satisfied by November 30, 2001.
7. In the event that the Minimum Proceeds are disbursed in accordance
with Section 6(a) of this Agreement, the Custodian shall deposit any additional
subscriptions that it receives in an escrow account established in the name of
"GES for the benefit of subscribers of Global Express Capital Real Estate
Investment Fund I, LLC," and said Custodian shall disburse such additional funds
and any interest earned thereon upon the sole direction of GES without reference
to the obligations of the Custodian prior to the disbursement of the Minimum
Proceeds.
8. The Custodian hereby accepts its obligations under this Agreement,
and represents that it has the power and legal authority to enter into this
Agreement and perform its obligations hereunder. The Custodian further agrees
that all property held by the Custodian hereunder shall be identified as being
held in connection with this Agreement. The Custodian agrees that its documents
and records, with respect to the transactions contemplated hereby will be
available for examination by the Company, GES, and the Investors.
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9. The Custodian shall be entitled to receive from the Company, from
time to time, (i) reasonable compensation for its services hereunder, and (ii)
reimbursement for any reasonable expenses incurred by it hereunder. The
Custodian shall not have a lien upon, or any other right whatsoever to payment
from, the property held hereunder by the Custodian, for or on account of such
right to payment and reimbursement or otherwise, EXCEPT that the Custodian, upon
receipt of written consent from GES, shall be entitled to withdraw from the
interest earned only on the subscription amounts held hereunder, reasonable
administrative expenses incurred by the Custodian for its services hereunder.
10. The Custodian shall not have any duties or responsibilities
hereunder except as expressly set forth herein; shall have no investment
responsibility with respect to funds or other property held hereunder; and shall
have no responsibility for ascertaining or taking any action with respect to
calls, conversions, exchanges, maturities, tenders, or other matters relating to
any property held by it hereunder, whether or not the Custodian has or is deemed
to have knowledge or notice of such matters, or taking any steps to preserve
rights against any parties with respect to any properly held hereunder.
11. The Custodian shall be entitled to rely upon any notice,
certificate, affidavit, letter, document, or other communication which is
believed by the Custodian to be genuine and to have been signed or sent by the
proper party or parties, and may rely oil statements contained therein without
further inquiry or investigation.
12. The Custodian shall not be liable for any action taken in
accordance with the terms of this Agreement, including without limitation, any
release of amounts held by it hereunder in accordance with Sections 6, 7, and 16
of this Agreement. The Custodian shall not be liable for any other action or
failure to act under or in connection with this Agreement, except for its own
willful misconduct.
13. In the event of any disagreement between the Company, GES, and/or
the Investors, or any other person, or any of them, resulting in an adverse
claim to funds or property held hereunder, the Custodian shall be entitled at
its option to refuse to comply with any such claim and shall not be, liable for
damages or interest to any such person or persons for its failure to comply with
such adverse claims; and the Custodian shall be entitled to continue to so
refrain until:
(a) The rights of the averse claimants shall have been finally
adjudicated by a court of competent jurisdiction; or
(b) All differences shall have been adjusted by agreement and the
Custodian shall have been notified thereof in a writing signed
by all interested persons.
In the event of such disagreement, the Custodian in its discretion may file a
suit in interpleader for the purpose of having the respective rights of the
claimants of such funds or other property adjudicated.
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Notwithstanding anything contained herein to the contrary, in the event of any
dispute or disagreement between the Company, GES, and/or the Investors, or any
of them, regarding this Agreement or any of the funds or property held by the
Custodian hereunder, which dispute or disagreement is not settled or otherwise
resolved within thirty (30) days after written notice of such dispute is
delivered to the Custodian, GES may, in its sole and absolute discretion, send
written notice instructing the Custodian to return the funds held by it
hereunder to the Investors in accordance with Sections 6(b) hereof, pending the
resolution of such dispute Or disagreement. The Custodian shall have no further
obligation or responsibility with respect to the return of any such funds under
this Section 13.
14. The Company and GES, jointly and severally, indemnify the
Custodian, and hold the Custodian harmless, from and against any and all claims,
costs, expenses, demands, judgments, losses, damages, and liabilities
(including, without limitation. reasonable attorneys' fees and expenses) arising
out of or in connection with this Agreement, including without limitation any
action brought by the Custodian pursuant to Section 13 hereof, except such as
may be caused by the willful misconduct of the Custodian.
15. The Custodian may at any time resign by giving prior written notice
of such resignation to the Company and GES. The Custodian shall not be
discharged from its duties and obligations hereunder until a successor custodian
shall have been designated by the Company and GES, and shall have executed and
delivered an Escrow Agreement in substantially the form of this Agreement, and
all property then held by the Custodian hereunder shall have been delivered to
such successor custodian.
16. The term of this Agreement shall commence as of the date hereof and
shall terminate upon the earlier to occur of the following:
(a) Disbursement of all amounts held by the Custodian hereunder
pursuant to Sections 6 or 7 hereof and satisfaction of its
other duties and responsibilities hereunder; or
(b) Receipt by the Custodian of written notice executed by the
Company and GES providing for the termination of this
Agreement and designating the manner of distribution of the
items deposited with the Custodian.
17. All communications or notices required under this Agreement shall
be deemed to have been given on the date when delivered personally or deposited
in the United States mail, postage prepaid, and addressed as follows (unless and
until any of such parties advises the other in writing of a change in such
address):
(a) if to the Company:
Global Express Capital Real Estate Investment Fund I, LLC
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
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(b) if to GES:
Global Express Securities, Inc.
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
(c) if to the Custodian:
Bank of America, N.A.
000 Xxxx Xxxxxxxx
Xxxxx 0X
Xxx Xxxxx, XxxxxxX 00000
18. This Agreement shall be binding and inure to the benefit of the
parties hereto and their respective successors and assigns. Nothing therein is
intended or shall be construed to give any other person any right, remedy or
claim under, in or with respect to this Agreement or any property held hereunder
except as specifically set forth herein with respect to the Investors.
19. This Agreement shall be governed by, and be construed and
interpreted in accordance with, the internal laws of the State of New York.
20. This Agreement may be entered into in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed and delivered by their duly authorized
officers on the date first above written.
GLOBAL EXPRESS CAPITAL REAL
ESTATE INVESTMENT FUND I, LLC GLOBAL EXPRESS SECURITIES, INC.,
By: By:
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BANK OF AMERICA, N.A.
By:
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