Re: Escrow Agreement
February
6, 2008
Tri-State
Title & Escrow
0000
XXX
XXXXXXXXXX XXXX #000
VIENNA
,
VA 22182
Attention
of Xxxxxxx Xxxxxxx
Re:
Escrow
Agreement
Gentlemen:
This
agreement will set forth the terms pursuant to which Xxxxxx Partners, L.P.
(“Xxxxxx Partners”) will deposit into escrow with you (the “Escrow Agent”) the
sum of Three Million three hundred thousand dollars ($3,300,000) and EOS
Holdings, LLC (“EOS”, together with Xxxxxx, the “Investors”) will deposit into
escrow with you (the “Escrow Agent”) the sum of one hundred thousand dollars
($100,000) for disbursement in connection with a financing for Shaanxi Tianren
Organic Food Company, Ltd. pursuant to a proposed securities purchase agreement
(the “Purchase Agreement”). The escrow deposit, together with accrued interest,
is referred to as the “Escrow Fund.”
1. The
Escrow Agent agrees to hold the Escrow Fund in an escrow account with the
interest payable to Xxxxxx Partners, on and subject to the terms of this Escrow
Agreement. The parties acknowledge that except for this Agreement, the Escrow
Agent is not and will not be a party to any agreement between Xxxxxx Partners
and the Company, including a Series B Convertible Preferred Stock Purchase
Agreement by and between Entech Environmental Technologies, Inc. (the “Purchase
Agreement”) and the Investors, and that, as of the date of this Escrow
Agreement, the Purchase Agreement has not been finalized or signed. The Escrow
Agent has and will have no obligations under the Purchase Agreement, and the
Escrow Agent’s only obligations are those expressly set forth in this Escrow
Agreement.
2. Xxxxxx
Partners and EOS agree that each will instruct the Escrow Agent to release
from
the Escrow Fund, the sum of $3,300,000 and $100,000 respectively in accordance
with the joint written instructions from the Company, Xxxxxx Partners and EOS
if
the following conditions shall have been satisfied to Xxxxxx Partners’
satisfaction prior to or contemporaneously with the funding.
(a) The
Company and Xxxxxx Partners and EOS shall have executed the Purchase Agreement
in a form acceptable to all parties.
(b) Xxxxxx
Partners shall be satisfied that all of the conditions to closing under the
Purchase Agreement have been satisfied or waived.
(c) Per
section 6.25 of the Preferred Stock Purchase Agreement, the Company must retain
$100,000 with the Escrow Agent to be utilized in approximately equal quarterly
installments for public relations and investor relations firms.
(d)
Per
Section 5.10 of the Preferred Stock Purchase Agreement, at closing the Escrow
Agent shall disperse to the Investor Seventy-Five Thousand Dollars ($75,000.00)
for due diligence expenses.
3. At
such time as Xxxxxx Partners shall be satisfied that the conditions set forth
in
Section 2 of this Agreement have been satisfied or waived, Xxxxxx Partners
and
EOS shall notify the Escrow Agent by fax or e-mail to such effect and the Escrow
Agent shall wire the sum of $3,400,000 as provided in Section 2 of this
Agreement. Any portion of the Escrow Fund in excess of $3,400,000 shall be
transferred to Xxxxxx Partners. Notwithstanding the foregoing, until the
execution of the Purchase Agreement, Xxxxxx Partners may request that $3,300,000
of the Escrow Funds be paid to Xxxxxx Partners and EOS may request that $100,000
of the Escrow Funds be paid to EOS, in which event the Escrow Agent shall
immediately instruct the escrow bank to wire $3,300,000 of the Escrow Funds
to
Xxxxxx Partners and $100,000 of the Escrow Funds to EOS and shall notify the
Company to such effect.
4. If
the Escrow Agent shall not have received the notice provided by Section 3 of
this Agreement by the close of business on February 29, 2008, or such later
date
as Xxxxxx Partners shall advise the Escrow agent, then the Escrow Agent shall,
upon receipt of notice from Xxxxxx Partners, pay $3,300,000 of the Escrow Funds
to Xxxxxx Partners and $100,000 of the Escrow Funds to EOS.
5. In
the event that the Escrow Agent shall be uncertain as to its obligations with
respect to the Escrow Fund, or shall receive instructions, claims or demands
which, in the Escrow Agent’s opinion, are in conflict with each other or with
any of the provisions of this Agreement, the Escrow Agent shall refrain from
taking any action other than to keep safely all Escrow Fund until the Escrow
Agent shall have written instructions from Xxxxxx Partners as to the disposition
of $3,300,000 of the Escrow Fund and from EOS as to the disposition of $100,000
of the escrow fund or until the Escrow Agent is directed by a final judgment
of
a court of competent jurisdiction final beyond right of review. In addition,
in
such circumstances, the Escrow Agent may deposit the Escrow Fund into any court
of competent jurisdiction, there to abide a decision of the court. In this
connection, each of the parties consents to the exclusive jurisdiction of the
federal and state courts located in the City, County and State of New York.
6. This
Agreement shall terminate upon a distribution of all of the Escrow Fund pursuant
to Section 3 or 4 this Agreement or upon a payment of the Escrow Fund into
court.
7. The
Company, Xxxxxx Partners and EOS shall jointly and severally (i) reimburse
the
Escrow Agent for all reasonable expenses incurred by the Escrow Agent in
connection with its duties hereunder and (ii) indemnify
and hold harmless the Escrow Agent against any and all losses, claims,
liabilities, costs, payments and expenses, including
reasonable legal fees for counsel who may be selected by the Escrow Agent,
which
may be imposed upon or incurred by the Escrow Agent hereunder, except as a
result of the gross negligence or willful misconduct of the Escrow Agent;
provided however, that this Section 7 shall only apply to the Company if the
Purchase Agreement is executed prior to the release of the Escrow Funds in
accordance with Section 4 of this Agreement.
8. Documentation
Fee: The
Company shall pay a documentation and closing fee to the Escrow Agent of $
2,000.00 out of the Escrow Funds at the closing of the Purchase Agreement,
and
Xxxxxx Partners shall separately pay a documentation and closing fee to the
Escrow Agent of $ 2,000.00.
9. The
Escrow Agent shall have no duties or responsibilities except those expressly
set
forth in this Agreement. The Escrow Agent shall have no liability under, or
duty
to inquire into the terms and provisions of, any agreement between the parties,
including the Purchase Agreement. No person, firm or corporation will be
recognized by the Escrow Agent as a successor or assignee of any party until
there shall be presented to the Escrow Agent evidence satisfactory to it of
such
succession or assignment. The Escrow Agent may rely upon any instrument in
writing believed in good faith by it to be genuine and sufficient and properly
presented and shall not be liable or responsible for any action taken or omitted
in accordance with the provisions thereof. The Escrow Agent shall not be liable
or responsible for any act it may do or omit to do in connection with the
performance of its duties as Escrow Agent, except for its gross negligence
or
willful misconduct. The Escrow Agent may consult with counsel, including
partners or associates of and attorneys who are of counsel to the Escrow Agent,
and shall be fully protected with respect to any action taken or omitted by
it
in good faith on written advice of counsel.
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10. The
Escrow Agent may at any time resign hereunder by giving written notice of its
resignation to the other parties hereto, at their addresses set forth below,
at
least twenty (20) business days prior to the date specified for such resignation
to take effect. If the Escrow Agent shall resign, and upon the effective date
of
the resignation of the Escrow Agent, all property then held by the Escrow Agent
pursuant to this Escrow Agreement shall be delivered by the Escrow Agent to
such
person as may be designated in writing by the joint instructions of the Company
and Xxxxxx Partners, whereupon all such Escrow Agent’s obligations hereunder
shall cease and terminate. If no such person shall have been designated by
such
date, all of the Escrow Agent’s obligations hereunder shall, nevertheless, cease
and terminate. The Escrow Agent’s sole responsibility thereafter shall be to
keep safely all property then held by the Escrow Agent and to deliver the same
to a person jointly designated as provided in this Agreement or, if the parties
shall have failed to designate a successor escrow agent, the Escrow Agent may
deposit the Escrow Fund into a court of competent jurisdiction as provided
in
Section 5 of this Agreement.
11. Any
notice, request, demand and other communication hereunder shall be in writing
and shall be deemed to have been duly given if delivered by facsimile or e-mail
(if receipt is confirmed by the recipient) or sent by messenger or overnight
courier service which provides evidence of delivery or by certified or
registered mail, return receipt requested, postage
prepaid, and shall be deemed given when delivered, if to the Company or Xxxxxx
Partners at their addresses set forth on the signature page of this Agreement.
If any party refuses to accept delivery (other than notice given by telecopier),
notice shall be deemed to have been given on the date of attempted delivery.
Any
party may, by like notice, change the person, address or telecopier number
to
which notice should be sent.
12. This
Agreement shall in all respects be construed and interpreted in accordance
with,
and the rights of the parties shall be governed by, the laws of the State of
New
York applicable to contracts executed and to be performed wholly within such
State. Each party hereby (a) consents to the exclusive jurisdiction of the
United States district court for the Southern District of New York and Supreme
Court of the State of New York in the County of New York in any action relating
to or arising out of this Agreement, (b) agrees that any process in any action
commenced in such court under this Agreement may be served upon either (i)
by
certified or registered mail, return receipt requested, or by messenger or
courier service which obtains evidence of delivery, with the same full force
and
effect as if personally served upon him in New York City or (ii) by any other
method of service permitted by law and (c) waives any claim that the
jurisdiction of any such tribunal is not a convenient forum for any such action
and any defense or lack of in personam jurisdiction with respect
thereto.
13. Section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
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14. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, personal representatives, successors
and
assigns; provided, that any assignment of this Agreement or their rights
hereunder by any party hereto without the written consent of the other parties
shall be void. Nothing in this Agreement is intended to confer upon any other
person any rights or remedies under or by reason of this Agreement.
15. This
Agreement may be executed and delivered in counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
16. No
modification, waiver or discharge of any provisions of this Agreement shall
bind
any party unless it is in writing, specifically refers to this Agreement and
is
signed by or on behalf of the party to be bound or affected
thereby.
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Very
truly yours,
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Signature
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Address:
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XXXXXX
PARTNERS, L.P.
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000
0xx
Xxx. , 25th
Floor
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New
York , NY 10019
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By:
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XXXXXX
CAPITAL ADVISORS LLC
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Managing
Partner
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Phone
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000-000-0000
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By:
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/s/
Xxxxxx Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx Xxxxxx, CEO
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Fax:
000-000-0000
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Address:
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0000
Xxxxxxxx Xx.
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EOS
HOLDINGS LLC
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Las
Vegas, NV 89134
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By:
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/s/
Xxx Xxxxxx
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Phone
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Xxx
Xxxxxx
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President
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Fax:
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Address:
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Company:
SHAANXI TIANREN ORGANIC FOOD COMPANY, LTD.
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By:
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/s/
Xxxxxx Xxx
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Phone:
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Name:
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Xxxxxx
Xxx
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Title:
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Director
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Fax:
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Address:
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000
Xxxx Xx., Xxxxx 000
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AGREED
TO AND ACCEPTED:
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Washington,
VA 22747
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TRI-STATE
TITLE & ESCROW, LLC
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By:
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/s/
Xxx X. Xxxxxx
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Xxx
X. Xxxxxx
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Phone:
000-000-0000
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Fax: 000-000-0000
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