EXHIBIT 2
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement"), dated as of _____________, 1999,
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is made and entered into by and among FIRST UNION NATIONAL BANK, a national
banking corporation (the "Escrow Agent"), SONIC AUTOMOTIVE, INC., a Delaware
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corporation (the "Parent"), and the stockholders of FirstAmerica Automotive,
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Inc. ("the Company") listed as Exhibit A hereto (collectively, the
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"Stockholders" and each, individually, a "Stockholder"), pursuant to the terms
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of that certain Agreement and Plan of Reorganization dated as of October 31,
1999 (the "Reorganization Agreement") by and among the Parent FAA Acquisition
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Corp., the Company and the Stockholders. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given to them in the
Reorganization Agreement.
W I T N E S S E T H:
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WHEREAS, the Parent and the Stockholders represent that the Reorganization
Agreement contemplates the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, obligations and
agreements contained herein, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Pledge and Security Interest.
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(a) The Stockholders hereby jointly and severally pledge, assign,
grant and convey to the Parent a security interest in 356,288 shares (subject to
adjustment for any stock dividend, subdivision, reclassification, split-up,
combination, or the like) (the "Escrow Shares") of the Parent"s Class A Common
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Stock, par value $.01 per share (the "Common Stock"). The Parent and the
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Stockholders acknowledge that such pledge, assignment, grant and conveyance is
made in order to secure claims or demands of the Parent for indemnification by
the Stockholders under Section 5A.7(a) of the Reorganization Agreement, or
otherwise under Section 5A.7 of the Reorganization Agreement (in any such case,
a "Claim"). The Stockholders and the Parent agree that the Escrow Agent shall
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hold the certificate or certificates representing the Escrow Shares on behalf of
the Parent for purposes of perfecting the Parent's security interest in the
Escrow Shares. The security interest of the Parent in the Escrow Shares shall
continue until the Escrow Shares have been disbursed to the Stockholders in
accordance with Section 5 hereof, at which time such security interest shall
terminate.
(b) Notwithstanding anything contained herein to the contrary, the
Escrow Agent shall have no obligation, duty or authority hereunder to enforce or
require the delivery of any items required to be delivered to the Escrow Agent
pursuant to Section 1(a) hereof.
2. Appointment of Escrow Agent. The Parent and the Stockholders hereby
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appoint and designate the Escrow Agent as the escrow agent hereunder upon the
terms and conditions and for the purposes set forth herein. The Escrow Agent
acknowledges receipt of the Escrow Shares and hereby accepts its appointment and
agrees to act as Escrow Agent and to hold and disburse the Escrow Amount (as
hereafter defined) upon the terms and conditions and for the purposes set forth
in this Agreement. The Escrow Agent undertakes to perform only such duties as
are expressly set forth herein. As used in this Agreement: the term "Escrow
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Amount" means the Escrow Shares,
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together with the Escrow Cash, the earnings on the Escrow Cash pursuant to
Section 6 hereof, and any other property, including the Stock Powers (as defined
in Section 3 below), received by the Escrow Agent in respect of the Escrow
Shares; and the term "Escrow Cash" means any cash
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proceeds of a sale of Escrow Shares pursuant to Section 4(c) below and any cash
substituted by the Stockholders pursuant to Section 5(j) below.
3. Creation of Escrow. Contemporaneously with the execution and delivery
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of this Agreement (the "Closing"), the Parent shall deliver or cause to be
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delivered to the Escrow Agent certificates representing the Common Stock
initially constituting the Escrow Shares, issued in the names of the
Stockholders in the respective amounts set forth opposite their respective names
on Exhibit A hereto, and each of the Stockholders shall deliver to the Escrow
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Agent three (3) separate guaranteed blank stock powers duly executed in blank
(the "Stock Powers"). The Stockholders agree to deliver to the Escrow Agent
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such additional blank Stock Powers as may be required by the Parent in the event
of a partial disbursement of the Escrow Shares as described in Section 5 below.
The Escrow Agent agrees to receive and hold the Escrow Shares and the Stock
Powers in escrow and to receive and to disburse the Escrow Shares all in
accordance with the terms and provisions of this Agreement.
4. Rights of the Stockholders.
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(a) For so long as any Escrow Shares, other than Disputed Shares, are
held by the Escrow Agent, the Stockholders shall be entitled to vote the Escrow
Shares and to receive any dividends paid on the Escrow Shares, except that any
shares of the Parent's stock received as a result of stock dividends or stock
splits shall be delivered to the Escrow Agent and shall become a part of the
Escrow Shares.
(b) Disputed Shares shall be voted only pursuant to joint instruction
by the Parent and the Stockholders, and the Stockholders shall promptly deliver
any dividends paid with respect to such Disputed Shares to the Escrow Agent, and
such dividends shall be held by the Escrow Agent until such Disputed Shares are
disbursed, at which time such dividends shall be paid to the party receiving
such Disputed Shares.
(c) Subject to the terms and conditions of the Reorganization
Agreement, the Stockholders shall be entitled to sell the Escrow Shares at a
price not less than the market price of the shares on the date the Escrow Shares
were placed in Escrow, other than Disputed Shares, provided that provision
satisfactory to the Parent shall have been made to ensure that the cash proceeds
of such sale are delivered to the Escrow Agent and held subject to the escrow
created by this Agreement. All such sales of the Escrow Shares shall be made by
all of the Stockholders pro rata according to their respective Escrow Shares
listed on Exhibit A hereto.
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(d) Notwithstanding anything contained herein to the contrary, the
Escrow Agent shall have no obligation, duty or authority hereunder to
investigate whether any such dividends or stock splits or payments of cash
proceeds of a sale have occurred or the dates or amounts of any such dividends,
or stock splits or cash proceeds of a sale, and the Escrow Agent shall have no
obligation, duty or authority hereunder to enforce or require the payment or
delivery of such items required to be paid or delivered to the Escrow Agent
pursuant to Section 4(a), 4(b) or 4(c) hereof.
5. Claims and Disbursements.
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(a) For purposes of this Agreement: (i) the term "Claim Termination
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Date" shall mean March 31, 2001; (ii) the term "business day" shall mean any day
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other than a Saturday, Sunday or other day on which banks in the State of North
Carolina are authorized to close; (iii) the term "Stockholders' Agent" shall
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mean Xxxxxx X. Price, as agent for the Stockholders, or such other Stockholder
as is appointed by the Stockholders; and (iv) the term "Fair Market Value" as it
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applies to a particular number of Escrow Shares shall mean the average closing
price of one share of Common Stock on the New York Stock Exchange for the twenty
(20) consecutive trading days preceding the date of determination of such Fair
Market Value.
(b) If, at any time prior to the Claim Termination Date, the Parent
shall file with the Escrow Agent, with a copy to the Stockholders' Agent, a
written and dated Claim (a "Parent Demand") for the transfer to the Parent of up
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to all of the Escrow Shares stating (i) that the Parent is entitled to all or a
portion of such Escrow Shares in satisfaction of a Claim under Section 5A.7 of
the Reorganization Agreement, and (ii) that the Parent has contemporaneously
delivered a copy of the Parent Demand to the Stockholders' Agent, the Escrow
Agent shall, except to the extent the Escrow Agent shall deliver Escrow Cash
pursuant to Section 5(k) below, disburse to the Parent that number of Escrow
Shares having a Fair Market Value (determined as of the day before the date of
disbursement) equal to the Claim presented in the Parent Demand, together with a
Stock Power of each of the Stockholders, after the thirtieth (30th) day
following the date of the Parent Demand, unless the Stockholders' Agent delivers
an objection in writing (the "Stockholder Objection") to the Escrow Agent (with
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a copy to the Parent) prior to the thirtieth (30th) day following the date of
the Parent Demand to the effect that the Parent is not so entitled, and/or
objecting to Parent"s calculation of the number of Escrow Shares or their Fair
Market Value in which case no disbursement shall be made by the Escrow Agent
pursuant to the Parent Demand except in accordance with the terms and conditions
hereof.
(c) The Parent Demand shall include a calculation of the number of
Escrow Shares having a Fair Market Value (determined as of the date of the
Parent Demand) equal to the Claim presented in the Parent Demand, and the Escrow
Agent shall be entitled to rely on such calculation unless a Stockholder
Objection to such calculation is timely delivered.
(d) If the Stockholders' Agent shall have timely objected, pursuant
to a Stockholder Objection, to all or any portion of the Escrow Shares being
disbursed to the Parent in accordance with Section 5(b) above, the Escrow Agent
shall promptly (i) set aside the certificate or certificates representing that
number of the Escrow Shares (determined as of the date of the Stockholder
Objection) having a Fair Market Value equal to 120% of the Claim, or portion
thereof, against which the Stockholders" Agent shall have objected (such number
of Escrow Shares being herein collectively called "Disputed Shares"), and (ii),
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except to the extent the Escrow Agent shall deliver Escrow Cash pursuant to
Section 5(k) below, promptly deliver to the Parent that number of the Escrow
Shares having a Fair Market Value (determined as of the day before the date of
disbursement) equal to the amount, if any, of the Claim as to which the
Stockholders' Agent shall not have objected, together with a Stock Power of each
of the Stockholders.
(e) Subject to the limitations contained in Section 5(f) below, the
Escrow Agent shall hold the certificate or certificates representing any
Disputed Shares until the Escrow Agent shall have received (i) a Joint
Instruction in accordance with Section 5(f) below, or (ii) a final and non-
appealable order of a court of competent jurisdiction, in either case directing
the disbursement of the Disputed Shares.
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(f) Parent shall be entitled to collect a maximum of $6,500,000 in
claims valued in accordance with the provisions of this Escrow Agreement, from
the Escrow Amount.
(g) As of the Claim Termination Date, the Stockholders shall be
entitled to receive, and upon request of the Stockholders' Agent, the Escrow
Agent shall disburse to the Stockholders pro rata according to their respective
Escrow Shares listed on Exhibit A hereto, all of the Escrow Shares, less (i) any
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Escrow Shares previously disbursed by the Escrow Agent to the Parent or sold
pursuant to Section 4(c) or for which cash has been substituted pursuant to
Section 5(j), and (ii) Disputed Shares with an aggregate value equal to the
lesser of (x) 120% of Claims for which the Stockholders" Agent has made an
objection and (y) $6,500,000 reduced by the dollar value of all items described
in clause (i) of this subparagraph (f). Upon disbursement of all of the Escrow
Shares hereunder, the Escrow Agent shall return the Stock Powers to the
respective Stockholders.
(h) At any time after the date of the Closing, the Escrow Agent may
be advised in writing by the Parent and the Stockholders' Agent to disburse all
or a portion of the Escrow Amount pursuant to a joint written instruction (the
"Joint Instruction"), in which case the Escrow Agent shall disburse the Escrow
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Amount, or portion thereof, in accordance with the terms and in the manner set
forth in such Joint Instruction.
(i) If the Parent and the Stockholders are unable to resolve any
disagreement with respect to their rights to the disbursement of all or a
portion of the Escrow Amount pursuant to this Section 5 within forty-five (45)
business days after the date of a Stockholder Objection, then the Escrow Agent
shall have the right (but not the obligation) to institute a xxxx of
interpleader in any court of competent jurisdiction in accordance with the
provisions of Section 7(j) hereto.
(j) The Escrow Agent shall hold the Escrow Amount until it is required
to disburse it, or any portion thereof, pursuant to this Section 5. Upon
delivery of all the Escrow Amount by the Escrow Agent pursuant to this Section
5, this Agreement shall terminate.
(k) The Stockholders and the Parent each agree that they will give to
each other copies of any Parent Demand or Stockholder Objection, as the case may
be, concurrently with the delivery thereof to the Escrow Agent.
(l) Prior to the Escrow Agent"s disbursement of Escrow Shares to the
Parent pursuant to the provisions of this Section 5, the Stockholders shall have
the right to substitute cash equal to the current Fair Market Value of their
respective portions of such Escrow Shares. Upon payment of such cash by the
Stockholders to the Escrow Agent and, thereafter, by the Escrow Agent to the
Parent, such portion of the Escrow Shares shall be disbursed to the
Stockholders. All such substitutions shall be made by all of the Stockholders
pro rata according to their respective Escrow Shares listed on Exhibit A hereto.
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(m) If at the time a claim is payable by the Escrow Agent pursuant to
Sections 5(b) or 5(c) above, the Escrow Amount includes Escrow Cash, such claim
shall be paid first from the Escrow Cash up to the entire amount of such claim;
any portion of such claim which remains unpaid after such payment from the
Escrow Cash shall be paid pursuant to Sections 5(b) or 5(c), as applicable.
6. Earnings in Respect of Escrow Shares.
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(a) Any income earned from the investment of the Escrow Cash shall be
held by the Escrow Agent for the account of the Stockholders or the Parent, as
the case may be, to whom the respective Escrow Cash is disbursed pursuant to
Section 5 above.
(b) Pending disbursement of any funds held by it hereunder, such funds
shall be invested and reinvested by the Escrow Agent in FDIC insured
certificates of deposit or money market accounts of the Escrow Agent, in either
case maturing in one month or less. Investments shall be made at times and in
accordance with procedures and deadlines from time to time determined by the
Escrow Agent.
7. Concerning the Escrow Agent.
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(a) The Escrow Agent shall not be under any duty to give the Escrow
Shares or other property or funds held by it hereunder any greater degree of
care than it gives its own similar property and shall not be required to invest
any funds held hereunder except as directed in this Agreement.
(b) This Agreement expressly sets forth all the duties of the Escrow
Agent with respect to any and all matters pertinent hereto. No implied duties
or obligations shall be read into this Agreement against the Escrow Agent. The
Escrow Agent shall not be bound by the provisions of any agreement, including,
but not limited to, the Stockholder Agreement, among the other parties hereto
except this Agreement, even if the Escrow Agent has knowledge of the existence
of such agreement or the terms or provisions thereof, Escrow Agent"s only duty,
liability and responsibility under this Agreement being to receive, hold and
deliver the Escrow Shares as provided herein.
(c) The Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct. The Parent and the Stockholders agree to
indemnify and hold harmless the Escrow Agent from and against any and all
losses, costs, expenses, damages, liabilities, claims, actions, suits, and
judgments whatsoever (including, but not limited to, consequences arising in
whole or in part from the negligence of the Escrow Agent or the alleged
negligence of the Escrow Agent and including, among other things, court costs
and reasonable attorney fees and paralegal fees incurred in connection
therewith) which the Escrow Agent may incur (or which may be claimed or asserted
against the Escrow Agent by any person or entity whatsoever), together with all
reasonable expenses resulting from the compromise or defense of any such
asserted claims or liabilities, whatsoever arising out of, from, as a result of,
or in any manner in connection with the execution, delivery, consummation or
performance by the Escrow Agent, of this Agreement; provided, however, that
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neither the Parent nor the Stockholders shall be required to indemnify the
Escrow Agent for any claims damages, losses, liabilities, costs or expenses to
the extent caused by the willful misconduct or gross negligence of the Escrow
Agent, as determined in a final nonappealable order by a court of competent
jurisdiction. Without limiting the foregoing, the Escrow Agent shall in no
event be liable in connection with its investment or reinvestment of any funds
held by it hereunder in good faith, in accordance with the terms hereof,
including, without limitation, any liability for any delays (not resulting from
its own gross negligence or willful misconduct) in the investment or
reinvestment of such funds, or any loss of interest incident to any such delays.
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(d) The Escrow Agent shall be entitled to rely in good faith upon any
order, judgment, certification, demand, notice, instrument or other writing
delivered to it hereunder without being required to determine the authenticity
or the correctness of any fact stated therein or the propriety or validity of
the service thereof. The Escrow Agent may act in reliance upon any instrument
or signature believed by it in good faith to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
(e) The Escrow Agent may execute any of the powers granted under this
Agreement and perform any of the duties by or through attorneys, agents,
employees, accountants or other experts but will be answerable for the conduct
of these parties in accordance with the standards provided in this Agreement and
shall be entitled to act upon the opinion or advice of its counsel, accountant
and other expert concerning all matters under this Agreement, and may in all
cases pay compensation to all attorneys, agents, employees, accountants and
other experts as may reasonably be employed in connection with this Agreement.
The Escrow Agent may act upon an opinion of its counsel, accountant and other
expert and shall not be responsible for any loss or damage resulting from any
action or nonaction by it taken or omitted to be taken in good faith in reliance
upon such opinion of counsel, accountant or other expert.
(f) The Escrow Agent does not have any interest in the Escrow Shares
or other funds or property held by it hereunder but is serving as escrow holder
only and having only possession thereof.
(g) The Escrow Agent makes no representation as to the validity, value
or genuineness of any amounts, documents or instruments held by or delivered to
it.
(h) The Escrow Agent shall not be called upon to advise any party as
to the wisdom in taking or refraining from taking any action with respect to any
shares or amounts deposited hereunder.
(i) The Escrow Agent (and any successor Escrow Agent) may at any time
resign as such by delivering the Escrow Shares and other funds and property held
by it hereunder to any successor Escrow Agent jointly designated by the
Stockholders' Agent and the Parent in writing, or to any court of competent
jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and
all further obligations arising in connection with this Agreement. The
resignation of the Escrow Agent will take effect on the day which is thirty (30)
days after the date of delivery of its written notice of resignation to the
other parties hereto. If at that time the Escrow Agent has not received a
designation of a successor Escrow Agent, the Escrow Agent's sole responsibility
after that time shall be to safekeep the Escrow Shares until receipt of a
designation of successor Escrow Agent pursuant to a Joint Instruction or a final
order of a court of competent jurisdiction.
(j) In the event of any disagreement among the Parent, the
Stockholders, and/or any person, firm, or entity resulting in a controversy with
respect to this Agreement or in adverse claims or demands being made in
connection with the Escrow Shares or other funds or property held by it
hereunder, 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 shall be entitled to
retain the Escrow Shares or other funds or property held by it hereunder until
the Escrow Agent shall have received (i) a Joint Instruction directing delivery
of the Escrow Shares or other funds or property held by it hereunder; or (ii) a
final non-appealable order of a court of competent jurisdiction directing the
delivery of the Escrow Shares or other funds or property held by it hereunder.
Alternatively, in the
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event of such a disagreement among the Parent, the Stockholders and/or any other
person, firm or entity, the Escrow Agent shall have the right (but not the
obligation) to institute a xxxx of interpleader in any court of competent
jurisdiction to determine the rights of the parties hereto (the right of the
Escrow Agent to the institute such xxxx of interpleader shall not, however, be
deemed to modify the manner in which the Escrow Agent is entitled to make
disbursements of the Escrow Amount as hereinabove set forth other than to tender
the Escrow Amount into the registry of such court). Should a xxxx of
interpleader be instituted, then as between themselves and the Escrow Agent, the
Parent and the Stockholders, jointly and severally, hereby bind and obligate
themselves, their successors, heirs, executors and assigns to pay the Escrow
Agent its reasonable attorneys fees and costs and any and all other
disbursements, expenses, losses, costs and damages of the Escrow Agent in
connection with or resulting from such litigation.
(k) The Parent agrees that prior to or contemporaneous with the
Escrow Agent"s execution of this Agreement and without the need for a submission
by the Escrow Agent of an invoice therefore, the Parent will pay the Escrow
Agent its first Annual Escrow Agent Administration Fee, as set forth in Exhibit
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B hereto, which Exhibit B is incorporated herein by reference as though fully
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set forth herein. The Parent and the Stockholders each further agree that the
Parent will thereafter pay the Escrow Agent its customary fees payable for
acting as Escrow Agent under this Agreement, as set forth in Exhibit B hereto,
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and that the Parent will reimburse the Escrow Agent for its ordinary and
necessary expenses incurred by the Escrow Agent in carrying out the terms of
this Agreement. Except as otherwise provided for the initial payments in the
first sentence of this subparagraph, such fees and reimbursements of expenses
shall be paid directly to the Escrow Agent promptly upon receipt of periodic
invoices therefor. In the event the Escrow Agent is required by the terms of
this Agreement or otherwise deems it necessary or advisable in fulfillment of
its responsibilities hereunder to take actions beyond those which are routinely
performed by escrow agents under similar escrow agreements, the Parent will pay
the Escrow Agent its reasonable fees for its services in such regard and will
reimburse the Escrow Agent for its reasonable expenses incurred by the Escrow
Agent in connection therewith. Such fees and reimbursements of expenses shall
be paid directly to the Escrow Agent promptly upon receipt of invoices therefor.
8. Survival of Certain Provisions. The grant of security interest in the
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first sentence of numbered paragraph 1(a) and the provisions of numbered
paragraphs 7(c), 7(i), 7(j) and 7(k) shall remain in full force and effect for
so long as the Escrow Agent may have any liability, notwithstanding anything
contained herein to the contrary, including, but not limited to, the termination
and resignation provisions contained in this Agreement.
9. Waiver of Jury Trial. THE PARENT, THE STOCKHOLDERS AND THE ESCROW
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AGENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OR
ALL MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH, OR IN THE COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THIS AGREEMENT.
10. No Personal Liability. No stipulation, covenant, agreement or
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obligation ("Obligation") contained in this Agreement will be deemed or
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construed to be an obligation of any present or future director, officer,
employee or agent of the Escrow Agent, or any incorporator, director, officer,
employee or agent of any successor to the Escrow Agent, in any person's
individual
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capacity. No person in his/her individual capacity will be liable personally for
any breach or observance of or for any failure to perform, fulfill or comply
with any Obligation, nor will any recourse be had for any claim based upon any
Obligation, or on any Obligation, against any person, in his/her individual
capacity, either directly or through the Escrow Agent or any successor to the
Escrow Agent, under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise, and all liability of any
person in his/her individual capacity is expressly waived and released.
11. No Endorsement. By serving as Escrow Agent pursuant to this
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Agreement, First Union National Bank does not undertake to investigate the
underlying transaction or otherwise attest to its propriety, legality, or
quality and to in this Agreement or contemplated hereby, or the identity or
authority of the persons executing the same, and it shall be sufficient if any
writing purporting to be such instrument, document, certificate, statement or
notice is delivered to the Escrow Agent and purports on its face to be correct
in form and signed or otherwise executed by the party or parties required to
sign or execute the same under this Agreement.
12. Miscellaneous.
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(a) This Agreement shall be binding upon and inure solely to the
benefit of the parties hereto and their respective successors and assigns,
heirs, administrators and representatives, and shall not be enforceable by or
inure to the benefit of any third party except as provided in paragraph (i) of
Section 7 with respect to a resignation by the Escrow Agent. No party may
assign any of its rights or obligations under this Agreement without the written
consent of the other parties. This Agreement and the Escrow Amount shall be
construed and regulated under and their validity and effect shall be determined
by the laws of the State of Florida, including its conflict of law rules. All
of the Escrow Agent's rights hereunder are cumulative of any other rights it may
have by law or otherwise.
(b) This Agreement may be modified only by a writing signed by all of
the parties hereto, and no waiver hereunder shall be effective unless in a
writing signed by the party to be charged.
(c) Any notice or other communication required or permitted hereunder
may be delivered or filed personally or sent by telecopier, with receipt
confirmed, or sent by a nationally recognized overnight courier, postage
prepaid, addressed as follows:
To the Escrow Agent, to:
First Union National Bank
000 X. Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Bednasik
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If to the Parent, to:
Sonic Automotive, Inc.
0000 Xxxx Xxxxxxxxxxxx Xxxxxxxxx (Zip: 28212)
X.X. Xxx 00000 (Xxx: 28218)
Charlotte, North Carolina
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
with a copy to:
Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx.
If to the Stockholders, to the Stockholders' Agent:
Xx. Xxxxxx X. Price
c/o FirstAmerica Automotive, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxx, Esq.
or to such other address as shall be furnished in writing by any party to the
others prior to the giving of applicable notice or communication, and such
notice or communication shall be deemed to have been delivered or filed as of
the date so delivered personally or by telecopier or one (1) business day after
the date of deposit with such nationally recognized overnight courier; provided,
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however, any communications delivered to or filed with the Escrow Agent shall be
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deemed delivered or filed as of the date actually received by the Escrow Agent.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank - Signatures Next Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE ESCROW AGENT: FIRST UNION NATIONAL BANK,
as Escrow Agent
By:/s/ Xxxxx X. Xxxxxxxx
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Name:
Title:
THE PARENT: SONIC AUTOMOTIVE, INC.
By:/s/ B. Xxxxx Xxxxx
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Name:
Title:
THE STOCKHOLDERS:
/s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price, Spouse: Xxxxxxxxx X. Xxxxx
individually and as trustee
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx Spouse: Xxxxx X. Xxxxxxx
/s/ X. Xx Xxxxxxxxxx
-------------------------------- ----------------------------
Name: X. Xx Xxxxxxxxxx Spouse: Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------- ----------------------------
Name: Xxxx X. Xxxxxx Spouse: Xxxxxxxxx Xxxxxx
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COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
/s/ Xxxx Xxxxxx
-------------------------------- ----------------------------
Name: Xxxx Xxxxxx Spouse: Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxx
-------------------------------- ----------------------------
Name: Xxxxx Xxxxxxx Spouse: Xxxxxxx Xxxxxxx
/s/ Attorney for Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx Spouse:
[ADDITIONAL SIGNATURE LINES AS NECESSARY]
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COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
BB INVESTMENTS
a California General Partnership
/s/ W. Xxxxx Xxxxxxxxx
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Name: W. Xxxxx Xxxxxxxxx
EMBARCADERO AUTOMOTIVE, LLC
/s/ W. Xxxxx Xxxxxxxxx
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Name: W. Xxxxx Xxxxxxxxx
XXXXX PLAZA IRREVOCABLE TRUST
/s/ W. Xxxxx Xxxxxxxxx
----------------------
Name: W. Xxxxx Xxxxxxxxx
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Investment Management Company,
its investment advisor
____________________________
Name: Xxxx-Xxxx Xxxxxx
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Investment Management Company,
its investment advisor
____________________________
Name: Xxxxxxxx X. Tell, Jr.
12
COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P., as General Partner
By TCW Advisors (Bermuda), Limited,
as General Partner
____________________________
Name: Xxxxxxxx X. Tell, Jr.
Managing Director
By: TCW Investment Management Company
its investment advisor
____________________________
Name: Xxxx-Xxxx Xxxxxx
Managing Director
By: TCW Investment Management Company
its investment advisor
13
COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
TCW/CRESCENT MEZZANINE
PARTNERS, L.P.
TCW/CRESCENT MEZZANINE TRUST
TCW/CRESCENT MEZZANINE INVEST-
MENT PARTNERS, L.P.
By: TCW/Crescent Mezzanine, L.L.C.
its general partner or managing owner
____________________________
Name: Xxxx-Xxxx Xxxxxx
President
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Limited,
as General Partner
____________________________
Name: Xxxxxxxx X. Tell, Jr.
Managing Director
By: TCW Investment Management Company
its investment advisor
____________________________
Name: Xxxx-Xxxx Xxxxxx
Managing Director
14
COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company,
as investment manager and attorney-in-fact
____________________________
Name: Xxxx-Xxxx Xxxxxx
Managing Director
____________________________
Name: Xxxxxxxx X. Tell, Jr.
Managing Director
ASIAN PACIFIC
By: /s/ Asian Pacific
-----------------
RAINTREE CAPITAL
By: /s/ Xxxxxxx X. Xxxx
--------------------
XXXXX XXXXXXX XXXX & COMPANY, L.P.
BY: /s/ Xxxxx Xxxx
---------------
/s/ Xxxxxxxx Xxxxxxx
--------------------
/s/ Xxxxxxx X. Xxxx
-------------------
/s/ Xxxxx XxXxxxx
-----------------
/s/ Xxxxxx X. Xxxxxx
--------------------
/s/ Xxxx Xxxxxxxx
-----------------
/s/ Xxxxx Xxxxxx
----------------
/s/ Xxxx Xxxxxx
---------------
/s/ Xxxxxxx X. Xxxxxxx
----------------------
/s/ Xxxxx Xxxxxxxx
------------------
/s/ X.X. Xxxxxxxxxx
-------------------
15
EXHIBIT A TO ESCROW AGREEMENT
-----------------------------
Name of Stockholder No. of Escrow Shares % of Escrow
------------------- -------------------- -----------
16
EXHIBIT B TO ESCROW AGREEMENT
-----------------------------
Annual Escrow Agent Administration Fee: $1,800
(payable annually in advance)
Services Not Included in Our Fee:
---------------------------------
All out-of-pocket expenses such as legal fees and costs, wire transfers,
telephone and telegraph, shipping costs, insurance, etc., will be billed at
our cost.
Any extraordinary services provided by First Union National Bank will be
billed separately, on a monthly basis upon analysis of the work involved.
17
