Exhibit 10.5
Execution Copy
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into as of July 30,
2003 by and among FirstPlus Financial Group, Inc., a Nevada corporation
("FirstPlus"), and Class Representative Xxxxxx X. Xxxxxxx, III, on behalf of all
Class Members (the "Representative") and Xxxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxxx
LLP and Sirota and Sirota LLP, each solely in their capacities as Plaintiffs'
Co-Lead Counsel, supervisor of the administration of the Settlement and escrow
agent under this Agreement (collectively in their capacity as escrow agent, the
"Escrow Agent").
RECITALS
WHEREAS, FirstPlus is a member of Capital Lending Strategies, LLC, a
Texas limited liability company ("Capital Lending").
WHEREAS, Capital Lending is a stockholder of FirstPlus.
WHEREAS, FirstPlus is a defendant in the court action entitled In re:
FirstPlus Financial Group, Inc. Securities Litigation, No. 3:98-CV-2551-M (the
"Action").
WHEREAS, the parties to the Action have entered into that certain
Stipulation and Agreement of Settlement dated as of July 30, 2003 (the
"Stipulation").
WHEREAS, Capital Lending, the Representative and Plaintiffs' Co-Lead
Counsel have entered into that certain Assignment and Assumption Agreement,
dated as of the date hereof (the "Assignment Agreement").
WHEREAS, pursuant to the Stipulation and the Assignment Agreement,
FirstPlus will deliver the Certificate representing certain ownership interests
in Capital Lending (the "Escrow Fund") to the Escrow Agent as part of the
Settlement Fund.
WHEREAS, pursuant to the Stipulation and the Proof of Claim, the
Authorized Claimants have made certain agreements with respect to FirstPlus,
Capital Lending, the Escrow Agent and this Agreement.
WHEREAS, Capital Lending, the Representative and Plaintiffs' Co-Lead
Counsel have entered into that certain Registration Rights Agreement, dated as
of the date hereof (the "Registration Rights Agreement").
In consideration of the premises and mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows (Initial
capitalized terms not defined in this Agreement will have meanings ascribed to
such terms in the Stipulation):
AGREEMENT
1. Appointment of the Escrow Agent. Xxxxxxx Xxxxx Xxxxxxx Xxxxx &
Xxxxxx LLP and Sirota and Sirota LLP are hereby appointed as Escrow Agent to
receive, hold, administer and deliver the Escrow Fund in accordance with this
Agreement and the Stipulation, and the Escrow Agent hereby accepts such
appointment, all subject to and upon the terms and conditions set forth herein
and therein.
2. Deposit; General Intention.
(a) Upon the execution of the Assignment Agreement, the
Certificate will be deposited by FirstPlus with the Escrow Agent endorsed in
blank medallion signature guaranteed or accompanied by duly executed assignment
documents in accordance with Section 1(b) of the Assignment Agreement. It is the
parties' intention that the Escrow Agent shall dispose of the Escrow Fund in
accordance with the express provisions of this Agreement and the Stipulation
and, except as expressly set forth herein and therein, shall not make, be
required to make or be liable in any manner for its failure to make, any
determination under this Agreement, the Stipulation or any other agreement,
including, without limitation, any determination as to whether FirstPlus, the
Representative, or their duly appointed agents or representatives, have complied
with the terms of this Agreement or the Stipulation or are entitled to payment
or to any other right or remedy thereunder.
(b) Interests in the Escrow Fund.
(i) No Authorized Claimant shall have any title to,
right to, possession of, management of, or control
of, any portion of the Escrow Fund.
(ii) No certificate or other instrument representing,
or other evidence of ownership of or interest in,
the Escrow Fund or any portion of the Escrow Fund shall be issued.
3. Distributions.
(a) Registrable Securities. Upon written notice from FirstPlus
(or a successor entity to FirstPlus, if applicable) informing the Escrow Agent
that a registration statement relating to the distribution of Registrable
Securities (as defined in the Registration Rights Agreement) to the Holders (as
defined in the Registration Rights Agreement) has been declared effective by the
U.S. Securities and Exchange Commission, the Escrow Agent shall deliver to
Plaintiffs' Co-Lead Counsel on behalf of the Authorized Claimants as part of the
Settlement Fund the Certificate endorsed in blank or accompanied by duly
executed assignment documents.
(b) Exercise of Repurchase. Upon written notice from FirstPlus
(or a successor entity to FirstPlus, if applicable) and Plaintiffs' Co-Lead
Counsel informing the Escrow Agent of the consummation of the Repurchase under
the Assignment Agreement, the Escrow Agent shall deliver to FirstPlus the
Certificate endorsed in blank or accompanied by duly executed assignment
documents.
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(c) Termination or Failure of Settlement. Upon written notice
from Defendant's Counsel informing the Escrow Agent that the settlement
contemplated by the Stipulation is terminated or fails to become effective for
any reason, the Escrow Agent shall deliver to FirstPlus the Certificate endorsed
in blank or accompanied by duly executed assignment documents and all right,
title and interest in the Certificate and Common Units represented thereby shall
immediately revert back to, and vest in, FirstPlus.
4. The Escrow Agent. The Escrow Agent has agreed to accept its duties
under this Agreement on the following terms and conditions:
(a) Liability of the Escrow Agent. (i) The Escrow Agent shall
have no liability or obligation with respect to the Escrow Fund or under this
Agreement except for the Escrow Agent's willful misconduct or gross negligence.
The Escrow Agent's sole responsibility shall be for the safekeeping and
distribution of the Escrow Fund in accordance with the terms of this Agreement.
The Escrow Agent shall have no implied duties or obligations and shall not be
charged with knowledge or notice of any fact or circumstance not specifically
set forth in this Agreement. The Escrow Agent may rely upon any instrument not
only as to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained therein, which the Escrow Agent
shall in good faith believe to be genuine, to have been signed or presented by
the person or parties purporting to sign the same and to conform to the
provisions of this Agreement. In no event shall the Escrow Agent be liable for
incidental, indirect, special, consequential or punitive damages. The Escrow
Agent shall not be obligated to take any legal action or commence any proceeding
in connection with this Agreement, or to appear in, prosecute or defend any such
legal action or proceeding.
(ii) The Escrow Agent is authorized, in its sole discretion,
to comply with orders issued or process entered by any court with respect to the
Escrow Fund, without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of the Escrow Fund is at any time
attached, garnished or levied upon under any court order, or in case the
payment, assignment, transfer, conveyance or delivery of any such Escrow Fund
shall be stayed or enjoined by any court order, or in case any order, judgment
or decree shall be made or entered by any court affecting such Escrow Fund or
any part of it, then and in any such event, the Escrow Agent is authorized, in
its sole discretion, to rely upon and comply with any such order, writ, judgment
or decree which it is advised by legal counsel selected by it is binding upon it
without the need for appeal or other action; and if the Escrow Agent complies
with any such order, writ, judgment or decree, it shall not be liable to any of
the parties to this Agreement or to any other person or entity by reason of such
compliance even though such order, writ, judgment decree may be subsequently
reversed, modified, annulled, set aside or vacated.
(iii) The Escrow Agent may consult with legal counsel selected
by it in connection with the Escrow Agent's duties under this Agreement and such
counsel's fees and expenses shall be paid by the Settlement Fund.
(iv) The Escrow Agent hereby acknowledges its other capacities
and obligations other than as Escrow Agent in the matters relating to, among
other things, this
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Agreement, the Action and the Stipulation, and agrees that this Section 4 shall
only be applicable to the Escrow Agent in its capacity as Escrow Agent under
this Agreement.
(b) Fees and Expenses. The Escrow Agent shall be paid
reasonable fees and reimbursed for its expenses in connection with its acting as
the Escrow Agent, and such fees and expenses shall be paid from the Settlement
Fund. Plaintiffs' Co-Lead Counsel, solely in their capacity as supervisors of
the administration of the Settlement Fund pursuant to paragraph 12 of the
Stipulation, agree to pay these sums upon demand.
(c) Controversies. If any controversy arises between the
parties to this Agreement, or with any other party, concerning the subject
matter of this Agreement, its terms or conditions, the Escrow Agent will not be
required to determine the controversy or to take any action regarding it. The
Escrow Agent may hold all documents and property and may wait for settlement of
any such controversy by final appropriate legal proceedings or other means as,
in the Escrow Agent's reasonable discretion, may be required, despite what may
be set forth elsewhere in this Agreement. In such event, the Escrow Agent will
not be liable for interest or damage. Furthermore, if such controversy has not
been resolved within sixty (60) days, the Escrow Agent may at its option, file
an action of interpleader requiring the parties to answer and litigate any
claims and rights among themselves and to the extent required or permitted by
law, the Escrow Agent may deliver the Escrow Fund to the court that the Escrow
Agent files such action of interpleader with for holding and disposition in
accordance with the instructions of such court. Upon initiating such action, the
Escrow Agent shall be fully released and discharged of and from all obligations
and liability imposed by the terms of this Agreement, except for obligations or
liabilities arising by reason of the prior gross negligence or willful
misconduct on the part of the Escrow Agent.
(d) Resignation of the Escrow Agent. The Escrow Agent may
resign at any time upon giving at least thirty (30) days' written notice to the
parties hereto; provided, however, that no such resignation shall become
effective until the appointment of a successor escrow agent by Plaintiffs'
Co-Lead Counsel. Plaintiffs' Co-Lead Counsel may also request the Court in the
Action to appoint a successor escrow agent. The successor escrow agent shall
execute and deliver an instrument accepting such appointment and it shall,
without further acts, be vested with all the estates, properties, rights, powers
and duties of the predecessor escrow agent as if originally named as the Escrow
Agent. Thereafter, the Escrow Agent shall be discharged from any further duties
and liability under this Agreement, except for obligations or liabilities
arising by reason of the prior gross negligence or willful misconduct on the
part of the Escrow Agent.
(e) Nothing in this Agreement shall preclude the Escrow Agent
from representing the Plaintiffs in any connection or respect whatsoever.
5. Notice Provisions. All notices permitted or required to be given or
transmitted to any person pursuant to the provisions of this Agreement shall be
deemed to have been properly given and received when actually delivered to and
receipted for by such person or when mailed to such person by certified or
registered U.S. Mail, return receipt requested, postage prepaid. In the case of
any notice given or transmitted to any party hereto by mail, as aforesaid, such
notice shall be deemed to have been properly given or transmitted if mailed to
such person at its address
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shown on the signature page of this Agreement signed by such person or such
other address as such person shall have furnished to the other party from time
to time in writing.
6. Governing Law. The internal substantive laws, and not the laws of
conflicts, of the State of Texas shall govern the enforceability and validity of
this Agreement, the construction of its terms and the interpretation of the
rights and duties of the parties. The Court in the Action shall have the
continuing jurisdiction over the parties hereto for purposes of construing and
enforcing this Agreement.
7. Counterparts. This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one agreement,
and any of the parties hereto may execute this Amendment by signing any such
counterpart.
8. No Oral Agreements. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN AND AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
PARTIES.
9. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF
THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT, THE ASSIGNMENT AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE ACTIONS OF THE PARTIES IN
THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
10. Termination. This Agreement shall terminate upon the earliest of
(i) a termination required by the applicable laws of the State of Texas, or (ii)
the termination due to the distribution of the Escrow Fund as provided in
Section 3 above.
11. Obligations.
(a) Notwithstanding anything to the contrary in this Agreement
and except as provided by the Assignment Agreement, the Registration Rights
Agreement or the Stipulation, neither FirstPlus nor Capital Lending, nor any
successor entity to FirstPlus or Capital Lending shall be responsible for any
payment to the Escrow Agent or the Escrow Fund, including payment for
compensation for duties performed hereunder by the Escrow Agent, or
reimbursement for out-of-pocket expenses incurred in connection with services
rendered as the Escrow Agent.
(b) No recourse:
(i) for any payment with respect to the Escrow Fund
or any portion of the Escrow Fund,
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(ii) for any claim based on or otherwise in respect
of the Escrow Fund or any portion of the Escrow
Fund,
(iii) under or upon any obligation, covenant or
agreement of FirstPlus or Capital Lending in this Agreement or in any subsequent
agreement or in the Escrow Fund or any portion of the Escrow Fund, or
(iv) because of the creation of any indebtedness
represented by the Escrow Fund or any portion of the Escrow Fund, shall be had
against any incorporator, member, manager, stockholder, officer or director, as
such, past, present or future, of FirstPlus or Capital Lending or any
incorporator, member, manager, stockholder, officer or director, as such, past,
present or future, of any successor entity to FirstPlus or Capital Lending,
either directly or through FirstPlus, Capital Lending or any successor entity to
FirstPlus or Capital Lending, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise,
except as provided in the Assignment Agreement, the Registration Rights
Agreement and/or the Stipulation with respect to such person or entity.
(c) No Authorized Claimant shall be, or have any of the rights
or privileges of, a Member of Capital Lending, a transferee or assignee of any
ownership interest in or other obligation of Capital Lending, or a shareholder,
stockholder or other holder of an ownership interest in, or other obligation of,
Capital Lending with respect to the Escrow Fund or any portion of the Escrow
Fund unless and until a distribution of Registrable Securities pursuant to the
terms of the Registration Rights Agreement, the Stipulation and the Plan of
Allocation has occurred and such Authorized Claimant is listed on the transfer
ledger relating to the equity securities of Capital Lending as the holder of
such Registrable Securities.
12. Status of the Escrow Agent With Respect to Capital Lending. The
parties acknowledge that the Escrow Agent shall hold the Common Units under this
Agreement in escrow and solely as escrow agent under this Agreement. Except as
set forth in the Assignment Agreement, the Stipulation and the Registration
Rights Agreement, FirstPlus shall retain all of its rights with respect to the
Common Units represented by the Certificate held in escrow by the Escrow Agent
to the same extent as if such Common Units were not escrowed.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first written above.
FIRSTPLUS FINANCIAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------
Title: CEO
------------------------------
Address for Notices:
0000 X. X'Xxxxxx Xxxx.
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: 214.231.7698
/s/ Xxxxxx X. Xxxxxxx, III
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CLASS REPRESENTATIVE XXXXXX X. XXXXXXX, III
Address for Notices:
c/o Xxxxxxx Xxxxx Xxxxxxx Xxxxx &
Lerach LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx, Esq.
Telecopy No.: 619.231.7423
XXXXXXX XXXXX XXXXXXX XXXXX & XXXXXX LLP,
as Plaintiffs' Co-Lead Counsel, Supervisor
of the Administration of the Settlement and
Escrow Agent
By: /s/ Joy Xxx Xxxx
--------------------------------
Name: Joy Xxx Xxxx
------------------------------
Title: A Member of the Firm
------------------------------
Address for Notices:
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx, Esq.
Telecopy No.: 619.231.7423
SIROTA & SIROTA LLP,
as Plaintiffs' Co-Lead Counsel, Supervisor of
the Administration of the Settlement and
Escrow Agent
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------
Title: Partner
--------------------------------
Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopy No.: 212.425.9093
