Exhibit 10.3
CASH ESCROW AGREEMENT
---------------------
This Cash Escrow Agreement ("Agreement") dated as of the ___
day of January, 2001 by and among Centrack International, Inc., a
Delaware corporation (the "Corporation"), Xxxxxx Xxxxxxxxx, in his
individual capacity (the "Buyer"), and Xxxxxxx Enterprises, Inc. a
Florida corporation, as Cash Escrow Agent (the "Cash Escrow Agent").
WITNESSETH:
-----------
The Buyer and the Corporation have entered into that certain
Stock Subscription and Purchase Agreement dated of event date herewith,
the terms of which are incorporated herein by reference and made a part
hereof, which provides that Fifty Thousand Dollars ($50,000.00) will be
deposited in escrow upon the execution thereof. In fulfillment of the
provisions of the Stock Subscription and Purchase Agreement, the Buyer,
the Corporation and the Cash Escrow Agent are now entering into this
Agreement.
Accordingly, in consideration of the mutual promises
contained herein, the parties, intending to be legally bound hereby,
agree as follows:
1. Deliveries to the Cash Escrow Agent. The Buyer hereby
deposits with the Cash Escrow Agent, via cashiers funds or via wire
transfer, in accordance with the wire transfer instructions contained in
the Stock Subscription and Purchase Agreement, the sum of Fifty Thousand
Dollars ($50,000.00) (the "Initial Cash Escrow Deposit"). By execution
of this Agreement, the Cash Escrow Agent acknowledges receipt of the
Initial Cash Escrow Deposit. In addition to the foregoing, all payments
made by the Buyer under the two promissory notes executed by the Buyer
for $50,000.00 each, as required under the terms of the Stock
Subscription and Purchase Agreement and such notes, shall be delivered
to the Cash Escrow Agent via cashiers funds or via wire transfer in
accordance with the same wire transfer instructions. All payments made
under the promissory note designated in the Stock Subscription and
Purchase Agreement as Promissory Note No. 1 shall be referred to
collectively herein as the "Second Cash Escrow Deposit." All payments
made under the promissory note designated in the Stock Subscription and
Purchase Agreement as Promissory Note No. 2 shall be referred to
collectively herein as the "Third Cash Escrow Deposit."
2. Cash Escrow Account. The Cash Escrow Agent is hereby
directed to deposit each of the three Cash Escrow Deposits referred to
above into an account with a Federally-insured banking institution, such
account to have been established by the Buyer and the Cash Escrow Agent
(the "Cash Escrow Account") at the following named banking institution:
Northern Trust Bank of Florida; having the following account number:
0000000 - Xxxxxxx Enterprises, Inc.; with Xxxxxx Xxxxxxx, President of
Xxxxxxx Enterprises, Inc. as signatory thereon.
3. Disbursement of Cash Escrow Account.
a. Disbursements to the Corporation. Cash releases
from the Cash Escrow shall be made on mandatory and non-discretionary
basis to the Corporation from time to time by the Cash Escrow Agent,
as obligations in the various categories set forth in the Cash Budget
incorporated into the Stock Subscription and Purchase Agreement as
Exhibit E thereto are incurred, or required to be paid by the
Corporation (including advance deposits and similar obligations).
Such releases shall be equal to the amount of such obligations and
shall be made in a timely fashion so that the Corporation can pay such
obligations on a current basis. One or more of the Cash Budget
categories may be exceeded by disbursements for obligations in such
categories at any time, provided that no disbursements in excess of
Exhibit 10.3 - Pg. 1
the overall Cash Budget in said Exhibit E shall be made without the
prior written agreement of the Buyer. No disbursements from the
Second Cash Escrow Deposit shall be made until the Initial Cash Escrow
Deposit has been fully disbursed. Similarly, no disbursements from
the Third Cash Escrow Deposit shall be made until the Second Cash
Escrow Deposit has been fully disbursed. The Corporation shall spend
all such disbursements on the obligations set forth in the Cash Budget
for which the disbursements were made. In the event that the
Corporation consummates a "reverse merger" prior to the disbursement
of all of the Third Cash Escrow Deposit, no further disbursements
shall be made to the Corporation from the Third Cash Escrow Deposit,
except as necessary to pay the expenses of the Corporation arising
after the date of this Cash Escrow Agreement and before the date of
completion of such reverse merger.
b. Disbursements to the Buyer. In no event shall any
portion of the Initial or Second Cash Escrow Deposits be disbursed or
otherwise returned to the Buyer. Any portion of the Third Cash Escrow
Deposit remaining after payment of all of the obligations referred to in
the last sentence of the foregoing subsection "a" shall be disbursed to
the Buyer upon completion of the reverse merger referred to in such
sentence.
4. Regarding the Cash Escrow Agent.
a. The Corporation and the Buyer, jointly and
severally, agree to hold the Cash Escrow Agent harmless and to indemnify
the Cash Escrow Agent against any loss, liability, expenses (including
attorney's fees and expenses), claim or demand arising out of or in
connection with the performance of its obligations in accordance with
the provisions of this Agreement, except for the negligence, willful
misconduct or failure of the Cash Escrow Agent to perform its
obligations. The foregoing indemnities in this paragraph shall survive
the resignation of the Cash Escrow Agent or the termination of this
Agreement.
b. The Cash Escrow Agent's duties are only such as
are specifically provided herein, and the Cash Escrow Agent shall incur
no liability whatsoever to the Corporation or the Buyer, except for its
negligence, willful misconduct or failure to perform its obligations
hereunder. The Cash Escrow Agent shall have no responsibility hereunder
other than to follow faithfully the instructions herein contained, and
the Cash Escrow Agent shall have no duty or obligation to determine
which party may at any time be entitled to the monies on deposit in the
Escrow Account. Except as set forth in this Paragraph 4.b, the Cash
Escrow Agent shall not be liable while acting in accordance with any
written instructions given to it hereunder and believed by it to have
been executed by the proper parties.
c. It is understood and agreed that should any
dispute arise with respect to the payment and/or ownership or right of
possession of any portion of the Cash Escrow Account, other than the
Initial and Second Cash Escrow Deposits, the Cash Escrow Agent is
authorized and directed to retain in its possession, without liability
to anyone, all or any part of the Third Cash Escrow Deposit only, until
such dispute shall have been settled either by mutual agreement by the
parties concerned or by the final order, decree or judgment of a court
or other tribunal of competent jurisdiction in the United States of
America and time for appeal has expired and no appeal has been
perfected, but the Cash Escrow Agent shall be under no duty whatsoever
to institute or defend any such proceedings. except in case of its
negligence, willful misconduct or its breaching this Agreement.
d. The Cash Escrow Agent may resign at any time by
giving written notice thereof to the other parties hereto, but such
resignation shall not become effective until a successor Cash Escrow
Agent shall have been appointed with the consent of all parties hereto
and shall have accepted such appointment in writing. If an instrument
of acceptance by a successor Cash Escrow Agent shall have not have been
delivered to the Cash Escrow Agent within thirty (30) days after the
Exhibit 10.3 - Pg. 2
giving of such notice of resignation, the resigning Cash Escrow Agent
may petition any court of competent jurisdiction for the appointment of
a successor Cash Escrow Agent.
5. Notices. All notices, demands, requests and other
communications required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed duly given on the
date mailed by certified United States delivered (by messenger or
overnight or express delivery service), addressed to the Corporation and
the Buyer as set forth in the Stock Subscription and Purchase Agreement
(the Corporation being referred to therein as the "Seller"). All
notices and demands, given to the Cash Escrow Agent under the provisions
of this Agreement shall be in writing and shall be addressed to Xxxxxxx
Enterprises, Inc., 0000 Xxxx Xxxxx, Xxxxxxx, XX 00000, Attention:
Xxxxxx Xxxxxxx, President.
6. The Parties agree to indemnify the accounting firm of
Xxxxxx & Xxxxxx, Xxxxxxx X. Xxxxxx individually against any claims
brought against any of them pertaining to this Agreement, except to
the extent such claims are based upon the negligence, willful
misconduct or violation of law by Xxxxxx & Xxxxxx, Xxxxxxx X. Xxxxxx
individually.
7. General. This Agreement shall be construed in
accordance with the laws of the State of Florida, without giving effect
to the conflicts of laws rules thereof. Each of the Parties submits
unconditionally to the jurisdiction of the Federal Court for the
Southern District of Florida for resolution of any controversy
hereunder. This Agreement may be executed in several counterparts, each
of which shall constitute an original, and all collectively shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
ATTEST: XXXXXXX ENTERPRISES, INC.
____/s/ Xxxxxxx X. Caruso________ By:_____/s/ Xxxxxx X. Merritt______
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: President
-----------------------------
ATTEST: CENTRACK INTERNATIONAL, INC.
______Michael A. Caruso__________ By:_____/s/Xxxx X. Lofquist________
Name: Xxxx X. Xxxxxxxx
------------------------------
Title: Chairman & CEO
-----------------------------------
______/s/ Xxxxxx Nathanail_________
Xxxxxx Xxxxxxxxx
Exhibit 10.3 - Pg. 3
