Exhibit 10.1
Form of Escrow Agreement between CNL American Properties Fund, Inc.
and SouthTrust Asset Management Company of Florida, N.A.
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is dated this ___ day of
_____________, 1996, by and among CNL AMERICAN PROPERTIES FUND, INC., a Maryland
corporation (the "Company"), CNL SECURITIES CORP., a Florida corporation (the
"Managing Dealer"), and SOUTHTRUST ASSET MANAGEMENT COMPANY OF FLORIDA, N.A.
(the "Escrow Agent"). This Agreement shall be effective as of the effective date
of the Company's Registration Statement filed with the Securities and Exchange
Commission (the "Effective Date").
WHEREAS, the Company proposes to offer and sell, on a best-efforts basis
through the Managing Dealer and selected broker-dealers registered with the
National Association of Securities Dealers, Inc. (the Managing Dealer and such
selected broker-dealers are hereinafter referred to collectively as the
"Soliciting Dealers") up to 27,500,000 shares of common stock of the Company
(the "Shares") to investors at $10.00 per Share pursuant to a registration
statement (the "Registration Statement") filed with the Securities and Exchange
Commission; and
WHEREAS, the Company and the Managing Dealer desire to establish an
escrow in which funds received from subscribers will be deposited and the Escrow
Agent is willing to serve as Escrow Agent upon the terms and conditions herein
set forth;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties covenant and agree as follows.
1. Establishment of Escrow Accounts. On or prior to the Effective
Date, the Company and the Managing Dealer shall establish an interest-bearing
escrow account with the Escrow Agent, which escrow account shall be entitled
"ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR COMMON STOCK OF CNL AMERICAN
PROPERTIES FUND, INC. (the "Escrow Account"). All monies deposited in the Escrow
Account are hereinafter referred to as the "Escrowed Funds." The Managing Dealer
will, and will cause selected broker-dealers acting as Soliciting Dealers to,
instruct subscribers to make checks for subscriptions payable to either the
Escrow Agent or the Company. The Managing Dealer may authorize certain
Soliciting Dealers which are "$250,000 broker-dealers" to instruct their
customers to make their checks for Shares subscribed for payable directly to the
Soliciting Dealer. In such case, the Soliciting Dealer will collect the proceeds
of the subscribers' checks and issue a check made payable to the order of the
Escrow Agent for the aggregate amount of the subscription proceeds.
2. Deposits into the Escrow Account. The Managing Dealer will
promptly deliver all monies received from subscribers for the payment of Shares
to the Escrow Agent for deposit in the Escrow Account.
3. Collection Procedure.
(a) The Escrow Agent is hereby authorized to forward each check for
collection and, upon collection of the proceeds of each check, to
deposit the collected proceeds in the Escrow Account or, alternatively,
the Escrow Agent may telephone the bank on which the check is drawn to
confirm that the check has been paid.
(b) Any check returned unpaid to the Escrow Agent shall be returned
to the Soliciting Dealer that submitted the check. In such cases the
Escrow Agent will promptly notify the Company of such return.
(c) In the event that (i) the Company rejects any subscription for
Shares or (ii) an investor who has telephonically subscribed for Shares
properly withdraws such subscription as provided in the Registration
Statement, and, in either such event, the Escrow Agent has already
collected funds for such subscription, the Escrow Agent shall promptly
issue a refund check to the drawer of the check submitted by or on
behalf of the rejected or withdrawing subscriber. If either of the
events specified in the clauses (i) or (ii) of the preceding sentence
occur and, in either such event, the Escrow Agent has not yet collected
funds for such subscription but has submitted the check relating to such
subscription for collection, the Escrow Agent shall promptly issue a
check in the amount of such check to the rejected or withdrawing
subscriber after the Escrow Agent has cleared such funds. If the Escrow
Agent has not yet submitted the check relating to the subscription of
the rejected or withdrawing subscriber, the Escrow Agent shall promptly
remit such check directly to the drawer of the check submitted by or on
behalf of the subscriber.
4. Investment of Escrowed Funds. The Escrow Agent, immediately upon
receipt of each check remitted to it, shall deposit such check in
interest-bearing savings accounts, in short-term certificates of deposit issued
by a bank, or in other short-term securities directly or indirectly issued or
guaranteed by the United States government, all as directed by the Company.
5. Distribution of Escrowed Funds. The Escrow Agent shall release from
the Escrow Account to the Company any and all Escrowed Funds therein, together
with all interest earned thereon, upon the written request of an officer of the
Company.
6. Liability of Escrow Agent.
(a) In performing any of its duties under this Agreement, or upon
the claimed failure to perform its duties hereunder, the Escrow Agent
shall not be liable to anyone for any damages, losses, or expenses which
it may incur as a result of the Escrow Agent so acting, or failing to
act; provided, however, the Escrow Agent shall be liable for damages
arising out of its willful default or misconduct or its gross negligence
under this Agreement. Accordingly, the Escrow Agent shall not incur any
such liability with respect to (i) any action taken or omitted to be
taken in good faith upon advice of its counsel or counsel for the
Company which is given with respect to any questions relating to the
duties and responsibilities of the Escrow Agent hereunder, or (ii) any
action taken or omitted to be taken in reliance upon any document,
including any written notice or instructions provided for in this Escrow
Agreement, not only as to its due execution and to the validity and
effectiveness of its provisions but also as to the truth and accuracy of
any information contained therein, if the Escrow Agent shall in good
faith believe such document to be genuine, to have been signed or
presented by a proper person or persons, and to conform with the
provisions of this Agreement.
(b) The Company hereby agrees to indemnify and hold harmless the
Escrow Agent against any and all losses, claims, damages, liabilities
and expenses, including, without limitation, reasonable costs of
investigation and counsel fees and disbursements which may be incurred
by it resulting from any act or
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omission of the Company; provided, however, that the Company shall not
indemnify the Escrow Agent for any losses, claims, damages, or expenses
arising out of the Escrow Agent's willful default, misconduct, or gross
negligence under this Agreement.
(c) If a dispute ensues between any of the parties hereto which, in
the opinion of the Escrow Agent, is sufficient to justify its doing so,
the Escrow Agent shall be entitled to tender into the registry or
custody of any court of competent jurisdiction, including the Circuit
Court of Orange County, Florida, all money or property in its hands
under the terms of this Agreement, and to file such legal proceedings as
it deems appropriate, and shall thereupon be discharged from all further
duties under this Agreement. Any such legal action may be brought in any
such court as the Escrow Agent shall determine to have jurisdiction
thereof. The Company shall indemnify the Escrow Agent against its court
costs and attorneys' fees incurred in filing such legal proceedings.
7. Inability to Deliver. In the event that checks for subscriptions
delivered to the Escrow Agent by the Company pursuant to this Agreement are not
cleared through normal banking channels within 120 days after such delivery, the
Escrow Agent shall deliver such uncleared checks to the Company.
8. Notice. All notices, requests, demands and other communications or
deliveries required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or deposited for mailing, first class, postage prepaid,
registered or certified mail, as follows:
If to the subscribers for Shares: To their respective addresses as
specified in their Subscription
Agreements.
If to the Company: 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx, Xx.,
Chairman of the Board
If to the Managing Dealer: 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx,
President
If to the Escrow Agent: SOUTHTRUST ASSET MANAGEMENT COMPANY
OF FLORIDA, N.A.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. Xxxx Xxxx
9. Fees to Escrow Agent. In consideration of the services to be
provided by the Escrow Agent hereunder, the Company will pay the Escrow Agent a
fee for its services hereunder (the "Escrow Fee"). The Escrow Fee shall be $350
for each month or any portion thereof that the Escrow Account continues for the
Company. Payments by the Company shall be due on the earlier of (i) the date on
which the Escrowed Funds become distributable to the Company pursuant to
Paragraph 5 hereof, or (ii) six months from the effective date of this
Agreement; or (iii) the closing of the offering of Shares in the Company.
Subsequent payments by the Company, if any, shall be due and payable no less
frequently
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than six-month intervals while the escrow continues for the Company. In
no event shall the total Escrow Fees payable by the Company pursuant to
this Agreement be less than $2,100, nor more than $4,200, for any
12-month period. Notwithstanding anything contained in this Agreement to
the contrary, in no event shall any fee, reimbursement for costs and
expenses, indemnification for any damages incurred by the Escrow Agent,
or monies whatsoever be paid out of or chargeable to the Escrowed Funds
in the Escrow Account.
11. General.
(a) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Florida.
(b) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(c) This Agreement sets forth the entire agreement and
understanding of the parties with regard to this escrow transaction and
supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
(d) This Agreement may be amended, modified, superseded or
cancelled, and any of the terms or conditions hereof may be waived, only
by a written instrument executed by each party hereto or, in the case of
a waiver, by the party waiving compliance. The failure of any party at
any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No
waiver in any one or more instances by any party of any condition, or of
the breach of any term contained in this Agreement, whether by conduct
or otherwise, shall be deemed to be, or construed as, a further or
continuing waiver of any such condition or breach, or a waiver of any
other condition or of the breach of any other terms of this Agreement.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) This Agreement shall inure to the benefit of the parties hereto
and their respective administrators, successors, and assigns.
12. Representation of the Company. The Company hereby acknowledges that
the status of the Escrow Agent with respect to the offering of the Shares is
that of agent only for the limited purposes herein set forth, and hereby agrees
it will not represent or imply that the Escrow Agent, by serving as the Escrow
Agent hereunder or otherwise, has investigated the desirability or advisability
of an investment in the Shares, or has approved, endorsed or passed upon the
merits of the Shares, nor shall the Company use the name of the Escrow Agent in
any manner whatsoever in connection with the offer or sale of the Shares, other
than by acknowledgement that it has agreed to serve as Escrow Agent for the
limited purposes herein set forth.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
"Company"
CNL AMERICAN PROPERTIES FUND, INC.
By:
XXXXX X. XXXXXX, XX., Chairman of the Board
"MANAGING DEALER"
CNL SECURITIES CORP.
Attest: By:
XXXXXX X. XXXXXX, President
"ESCROW AGENT"
SOUTHTRUST ASSET MANAGEMENT COMPANY
OF FLORIDA, N.A.
Attest: By:
Name:
Title:
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