Exhibit 10.6
ESCROW NO. 97115582-076
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ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made and entered into as of the
5th day of January, 1998, by and among Cross-Continent Auto Retailers, Inc.,
a Delaware corporation (the "Purchaser"), the ▇▇▇▇▇▇▇▇ Family Trust R-501
(the "Seller") and United Title of Nevada, Inc., a Nevada corporation (the
"Escrow Agent").
RECITALS
WHEREAS, in accordance with the terms and provisions of that certain
Amended and Restated Stock Purchase Agreement dated November 1, 1997 (the
"Purchases Agreement"), by and among the Purchaser, the Seller, and JRJ
Investments, Inc. (the "Company"), C-CAR has on the date hereof purchased
from the Seller all of the issued and outstanding shares of capital stock of
the Company (the "Company Shares").
WHEREAS, pursuant to subparagraph 20(g) of the Purchase Agreement and
subject to the terms and conditions of this Agreement, the Purchaser has
deposited in escrow with the Escrow Agent a portion of the purchase price for
the Company Shares in the aggregate amount reflected in Exhibit "A" attached
hereto and by this reference made a part hereof (the "Escrowed Funds"),
pending the approval from each of the respective manufacturers (or the
authorized sales/distributor entities directly or indirectly owned by the
respective manufacturers) of Bentley and Rolls Royce, or Land Rover
automobiles (individually, a "Manufacturer" and collectively the
"Manufacturers") of the Purchaser, as the owner of the Company, as an
authorized new automobile dealer for each respective Manufacturer in Las
Vegas, Nevada.
AGREEMENT
1. The Escrow Agent is hereby authorized and directed to relinquish
possession of the Escrowed Funds only in accordance with (a) the instructions
set forth herein, or (b) joint written instructions executed by the Purchaser
and the Seller.
2. The Purchaser agrees that upon notification from each of the
respective Manufacturers of its approval of the Purchaser, as the owner of
the Company, as an authorized new automobile dealer for such Manufacturer in
Las Vegas, Nevada, it will forthwith execute and deliver (either by personal
delivery or by telecopy) to the Escrow Agent written authorization
(referencing the above Escrow No.) to release to Seller such portion of the
Escrowed Funds as indicated in Exhibit A relating to such approving
Manufacturer. The Escrow Agent shall, within twenty four (24) hours of its
receipt of such notice from the Purchaser, or as soon as is otherwise
practicable, release such applicable portion of the Escrowed Funds to the
Seller.
3. Where directions or instructions from both the Purchaser and the
Seller are required, Escrow Agent shall accept such directions or
instructions given in counterpart instruments. Either
the Purchaser and the Seller may act hereunder through an agent or
attorney-in-fact provided satisfactory written evidence of authority is first
furnished to the Escrow Agent.
4. The undersigned agree that this Agreement and the following
provisions shall control with respect to the rights, duties and liabilities
of the Escrow Agent:
A. The Escrow Agent is not a party to, and is not bound by, any agreement
out of which this escrow may arise, nor shall Escrow Agent be required
to construe any contract or instrument deposited herewith, or to observe
any terms thereof or of any other agreement even though same may purport
to set forth, as between the Purchaser and the Seller, the terms of this
escrow; but to the contrary, the terms of this Agreement, as between
Escrow Agent, the Purchaser and the Seller, supersede any other contract
with reference to this escrow and may be relied upon by the Escrow Agent
absolutely and to the exclusion of any and all other agreements, and
this Agreement shall not be affected in any manner by any provision not
expressly set forth herein.
B. The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency,
correctness, genuineness, value (or any increase or decrease therein),
loss, the collection or collectibility, payment of taxes on, or validity
of the Escrowed Funds, or any part thereof, or for the form or execution
thereof, for the automatic renewal of any maturing securities, or to
collect any interest or redeem any coupons or reinvest the earnings from
any securities held (unless it receives written instructions from the
Purchaser and agrees in writing to so renew, collect, redeem or
reinvest), nor shall Escrow Agent be liable for the lapse of any rights
under any statute of limitations, laches, or other rule of law or equity
in respect to any Escrowed Funds, or for the identity or authority of
any person executing or depositing all or any part of the Escrowed Funds
or any other instrument received by Escrow Agent in connection herewith.
C. In the event Escrow Agent should in good faith initiate an action in the
nature of an interpleader (and express authority to do so is hereby
given), or in the event Escrow Agent in any other manner becomes
involved in litigation in connection with this escrow, the Purchaser and
the Seller jointly and severally agree to indemnify and save Escrow
Agent harmless of and from any and all liability, claims, demands or
causes of action of any nature whatsoever and by whomsoever asserted,
arising or to arise therefrom (save and except only liability solely
caused by or resulting from Escrow Agent's own gross negligence or
willful misconduct, and not otherwise) and from all loss, cost, damages,
costs and expenses, including (without limitation) reasonable attorneys'
fees suffered or incurred by the Escrow Agent as a result thereof. This
and all other obligations of the Purchaser and the Seller shall be
payable on demand and shall be performable and payable at the Escrow
Agent's office set forth below the Escrow Agent's signature hereon.
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D. The Escrow Agent shall be privileged to act and protected in acting upon
any written instructions, notice, request, waiver, consent, certificate,
receipt, authorization, power of attorney or other instrument or
document which the Escrow Agent in good faith believes to be genuine and
what it purports to be, and without any obligation upon Escrow Agent to
inquire into the authority of the individual or entity executing or
delivering same to Escrow Agent.
E. The Escrow Agent shall not be liable for anything which it may do or
refrain from doing in connection herewith, except its own gross
negligence or willful misconduct, and all risk of damage or loss from
any other cause whatever shall be upon undersigned.
F. The Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of any of the provisions
hereof or its duties hereunder, and it shall incur no liability and
shall be fully protected in acting and absolutely privileged to act in
accordance with the reasonable opinion and instructions of such counsel,
and any costs incurred by Escrow Agent shall be deemed to be proper
charges to be paid by the Purchaser and the Seller to Escrow Agent,
failing which Escrow Agent may withhold same from any funds on deposit.
G. Escrow Agent may, prior to relinquishing possession of any portion of
the Escrowed Funds, demand of the recipient thereof execution of a
receipt and release in the form attached hereto as Exhibit "B." In the
event of any disagreement between any of the parties to this agreement,
or between them or either or any of them and any other person,
resulting, or which could result, in adverse claims or demands being
made in connection with the Escrowed Funds, or in the event that the
Escrow Agent, in good faith, is in doubt as to what action it should
take hereunder, the Escrow Agent may, at its option, refuse to comply
with any claims or demands on it, or refuse to take any other action
hereunder, so long as such disagreement shall continue or such doubt
shall exist, and in any such event, the Escrow Agent shall not be or
become liable in any way or to any person for its failure or refusal to
act, and the Escrow Agent shall be entitled to continue so to refrain
from acting until (1) the rights of all parties shall have been fully
and finally adjudicated by a court of competent jurisdiction, or (2) all
differences shall have been adjusted and all doubts resolved by
agreement among all of the interested persons, and the Escrow Agent
shall have been notified thereof in writing signed by all such persons.
The rights of the Escrow Agent under this paragraph are in addition to
all other rights which it may have by law or otherwise.
H. This Agreement shall be binding upon the parties hereto, their
successors, heirs, administrators, executors, successors and assigns,
and any authority herein given to the Escrow Agent shall not lapse by
reason of the supervening incompetence of any party hereto.
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I. Compensation for the normal services of the Escrow Agent (in the amounts
set forth in Schedule I attached hereto) and a reasonable charge for any
extra services performed by the Escrow Agent shall be paid one-half
(1/2) each by the Purchaser and the Seller.
J. Escrow Agent agrees to place the Escrowed Funds into a demand
interest-bearing account as directed by the Purchaser, and all
interest that accrues thereon shall be payable to the Purchaser at
such times as the Purchaser and the Escrow Agent mutually agree, but
no later than the date this Agreement is terminated.
EXECUTED as of the date first above written.
CROSS-CONTINENT AUTO RETAILERS, INC.
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman and CEO
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Federal Tax ID# ▇▇-▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE ▇▇▇▇▇▇▇▇ FAMILY TRUST R-501
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Trustee
Address: c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
40 Innisbrook
Las Vegas, Nevada 89113
Federal Tax ID# ###-##-####
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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Escrow Agent hereby acknowledges receipt of the Escrowed Funds as
described in the foregoing Agreement and hereby agrees to serve as the Escrow
Agent thereunder, subject to the terms and conditions therein set out.
EXECUTED as of the date first above written.
UNITED TITLE OF NEVADA, INC.
By:
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Its:
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Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
▇
▇▇▇▇▇▇▇ "▇"
▇▇▇▇▇▇▇ and Rolls Royce $ 345,201.00
Land Rover $1,133,780.00
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Total $1,478,981.00
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EXHIBIT "B"
FORM OF RECEIPT AND RELEASE
The undersigned hereby acknowledges receipt, from United Title of
Nevada, Inc., as Escrow Agent, of the amount of $ _____________
(constituting all/part of the Escrowed Funds) pursuant to the terms and
conditions of that certain Escrow Agreement (Escrow No.97115582-076). The
undersigned acknowledges a faithful and proper performance by the Escrow
Agent of its duties under the Escrow Agreement, and in consideration of such
delivery of Escrowed Funds to the undersigned, the undersigned hereby
releases and discharges the Escrow Agent from all further responsibility or
liability as Escrow Agent under the Escrow Agreement with respect to the
Escrowed Funds received by the undersigned.
EXECUTED this ______ day of ____________________, 1998.
[Name of Recipient]
By:
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