EXHIBIT 10.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of
the 5th day of September, 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 Southwest
Escrow Company (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Company is offering units representing membership
interests in the Company ("Units"), by means of a Prospectus dated September __,
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 Units on
a best efforts minimum $1,500,000 (the "Minimum Proceeds"), maximum $100,000,000
basis; and
WHEREAS, the Company and GES have entered into an agreement whereby
GES will act as underwriter for the offering of the Units (the "Underwriting
Agreement"); and
WHEREAS, pursuant to the Prospectus and the Underwriting Agreement,
the proceeds to the Company from the sale of the Units to the Investors are
required to be held in escrow pending receipt of the Minimum Proceeds from
the sale of the Units; and
WHEREAS, the Prospectus contemplates that the Escrow Agent 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 Escrow Agent as their agent
and custodian for the purposes of this Agreement, and the Escrow Agent accepts
such appointment, upon the terms and subject to the conditions set forth herein.
2. During the term of this Agreement, the Escrow Agent shall do the
following: (a) hold, on its behalf and on behalf of each Investor, the amounts
delivered to the Escrow Agent from time to time by the Company and GES pursuant
to Section 3 hereof, (b) deposit all subscription amounts received by the
Escrow Agent hereunder in a separate account maintained by the Escrow Agent
which enables the
Escrow Agent 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 Units subscribed for by such Investor, and the amount paid for
those Units by such Investor; and (e) to otherwise perform its duties and
responsibilities under this Agreement.
3. Until the Minimum Proceeds are deposited with the Escrow Agent, the
Company and GES hereby agree to deliver to the Escrow Agent, immediately upon
receipt, all proceeds from subscriptions for the Units received from
Investors.
4. From time to time during the term of this Agreement, the Company
shall deliver notice to the Escrow Agent that subscriptions have been accepted
by the Company.
5. Following receipt of the Minimum Proceeds from the subscriptions
for the Units prior to ___________, 2002 (six months from the effective date of
the Prospectus), the Escrow Agent shall promptly deliver written notice to the
Company and GES confirming its receipt of such amount.
6. The Escrow Agent shall deliver the Minimum Proceeds with interest as
follows:
(a) To the Company promptly in the event that the Escrow Agent has
received written notice from GES that the Minimum Proceeds
have been deposited with the Escrow Agent.
(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 __________, 2002 (six months
from the effective date of the Prospectus).
7. In the event that the Minimum Proceeds are disbursed in accordance
with Section 6(a) of this Agreement, the Escrow Agent 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 Escrow Agent shall disburse
such additional funds and any interest earned thereon upon the sole direction
of GES without reference to the obligations of the Escrow Agent prior to the
disbursement of the Minimum Proceeds.
8. The Escrow Agent 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 Escrow Agent
further agrees that all property held by the Escrow Agent hereunder shall be
identified as being held in connection with this Agreement. The Escrow Agent
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 Escrow Agent 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
Escrow Agent shall not have a lien upon, or any other right whatsoever to
payment from, the property held hereunder by the Escrow Agent, for or on
account of such right to payment and reimbursement or otherwise, EXCEPT that
the Escrow Agent, 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 Escrow Agent
for its services hereunder.
10. The Escrow Agent 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 Escrow Agent 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 Escrow Agent shall be entitled to rely upon any notice,
certificate, affidavit, letter, document, or other communication which is
believed by the Escrow Agent 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 Escrow Agent 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 Escrow Agent 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 Escrow Agent 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 Escrow Agent 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
Escrow Agent shall have been notified thereof in a writing
signed by all interested persons.
In the event of such disagreement, the Escrow Agent 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
Escrow Agent 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 Escrow Agent, GES may, in its sole and absolute
discretion, send written notice instructing the Escrow Agent 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 Escrow
Agent 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
Escrow Agent, and hold the Escrow Agent 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 Escrow Agent pursuant to Section 13 hereof, except such as
may be caused by the willful misconduct of the Escrow Agent.
15. The Escrow Agent may at any time resign by giving prior written
notice of such resignation to the Company and GES. The Escrow Agent 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 Escrow Agent 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 Escrow Agent hereunder
pursuant to Sections 6 or 7 hereof and satisfaction of its
other duties and responsibilities hereunder; or
(b) Receipt by the Escrow Agent 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 Escrow Agent.
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 Xxxxx Xxxxxxx 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 Escrow Agent:
Southwest Escrow Company
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 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 Nevada.
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.,
Conrex International Financial Inc.,
d/b/a Global Express Capital Mortgage,
Its Sole Manager
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxx
----------------------------- ------------------------------
Xxxxxx X. Xxxxxx, President Xxxx Xxxxx, President
SOUTHWEST ESCROW COMPANY
By: /s/ Xxxx X. Xxxx
-----------------------------
Xxxx X. Xxxx, President
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