Exhibit 10.3
ESCROW AGREEMENT
August 17, 2001
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Ladies and Gentlemen:
Reference is hereby made to that certain Secured Promissory Note, dated
today and in the aggregated principal amount of $910,000 (the "Note"), issued by
Educational Video Conferencing, Inc. ("EVCI" or the "Pledgor") in favor of
Seneca Capital International, Ltd. ("Seneca Int'l"), Seneca Capital , L.P.
("Seneca"), Merced Partners Limited Partnership ("Merced"), Lakeshore
International, Ltd. ("Lakeshore") and Amaranth Trading LLC ("Amaranth")
(collectively, the "Pledgee"), pursuant to which, upon the terms and subject to
the conditions set forth therein, EVCI has agreed to deposit the Pledged Shares
into escrow to secure payment of the amount due under the Note. Pursuant to the
letter agreement among EVCI and the Pledgee, dated today (the "Agreement") EVCI
has agreed to deposit the Note into escrow. All capitalized terms used and not
defined herein have the respective meanings assigned to them in the Note.
By execution of this Agreement, each of Amaranth, Seneca Int'l, Seneca,
Merced and Lakeshore confirm the appointment of Amaranth as its exclusive agent
for the collection of the Note and the enforcement of all of their rights under
the Note and under this Escrow Agreement, as Amaranth deems appropriate, in its
sole discretion, including but not limited to, the collection from EVCI of the
total amount due under the Note and the distribution to each of them of their
pro rata share of such amount, and each hereby authorizes the Escrow Agent to
accept instructions from Amaranth as if such instructions where given by each of
them.
In accordance with the terms and subject to the conditions specified in
this Escrow Agreement, Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx, in its capacity as
escrow agent (the "Escrow Agent"), is hereby authorized and directed to accept
the delivery of and to hold in escrow the Note and the Pledged Shares, in each
case in accordance with the following:
1. The Escrow Agent shall deliver the Note to Amaranth promptly after
October 10, 2001 provided Escrow Agent has not received an affidavit of EVCI
stating that the Agreement is null and void pursuant to paragraph 4 of the
Agreement and that a copy of such affidavit has been given to Amaranth in
accordance with this Agreement. If Escrow Agent receives such an affidavit by
the close of business on October 10, 2001, it shall cancel and deliver the Note
to EVCI promptly. If either Amaranth or EVCI objects to delivery of the Note to
the other by written notice to Escrow Agent, Escrow Agent shall continue to hold
the Note in escrow in accordance with Section 8 hereof.
2. The Escrow Agent shall, as promptly as practicable, notify Amaranth of
its receipt from EVCI of the Pledged Shares. EVCI hereby agrees to deliver to
the Escrow Agent, to be held in escrow hereunder, all cash, securities and other
property at any time and from time to time received, receivable or otherwise
distributed to any person in respect of or in exchange for any or all of the
Pledged Shares. Upon satisfaction of the Note, EVCI shall be entitled to prompt
return of all of the Pledged Shares, to or at the direction of EVCI, which have
not been used or applied toward satisfaction of the Note.
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3. In the event EVCI fails to pay the total amount owed under the Note when
due, whether on maturity or as a result of acceleration by the Payee:
(a) Pledgee may deliver to the Escrow Agent an affidavit of Pledgee
demanding delivery of the Pledged Shares to Pledgee. Thereafter, the Escrow
Agent shall promptly furnish to EVCI a copy of such affidavit. Unless the Escrow
Agent receives from EVCI an affidavit of the President or Chief Financial
Officer of EVCI unequivocally refuting Pledgee's affidavit within five (5)
business days of providing a copy of Pledgee's affidavit to EVCI, the Escrow
Agent shall immediately deliver the Pledged Shares to Pledgee.
(b) Thereafter, Pledgee may exercise in respect of the Pledged Shares,
in addition to other rights and remedies provided for in the Note or otherwise
available to Pledgee, all the rights and remedies of a secured party on default
under the Uniform Commercial Code in effect in the State of New York at that
time.
(c) If the Escrow Agent shall have timely received the affidavit from
the Pledgor described in Section 1(a) hereof, the Escrow Agent shall continue to
hold the Pledged Shares until otherwise authorized and directed to distribute
the Pledged Shares (i) pursuant to a joint written instruction received by it
and signed by EVCI and the Pledgee or (ii) pursuant to a final and
non-appealable judgment, order, decree or award of a court of competent
jurisdiction ("Court Order") which is received by the Escrow Agent and which
Court Order is accompanied by an opinion of counsel for the party presenting the
Court Order to the Escrow Agent (which opinion shall be satisfactory to the
Escrow Agent) to the effect that the court issuing the Court Order has competent
jurisdiction and that the Court Order is final and non-appealable.
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(d) Pledgee hereby agrees that EVCI may, at its option, deliver to
Pledgee a letter of credit in favor of the Pledgee, in form and substance
reasonably acceptable to the Pledgee, as substitute collateral security for the
payment of the Note, in which event the Pledgee agrees that it will cooperate
with EVCI to deliver joint instructions to the Escrow Agent to the effect that
the Pledged Shares shall no longer constitute collateral under the Note, the
security interest therein shall be released and the Pledged Shares shall be
released from escrow and delivered by the Escrow Agent to EVCI.
(e) Pledgee agrees that it will consider requests, other than that
described in Section 1(d) hereof, that may be made by EVCI from time to time for
substitution of collateral hereunder, and EVCI acknowledges that Pledgee is
under no obligation to grant such requests.
4. The Escrow Agent shall be entitled to rely upon, and shall be fully
protected from, all liability, loss, cost, damage or expense in acting or
omitting to act pursuant to, any instruction, order, judgment, certification,
affidavit, demand, notice, opinion, instrument or other writing delivered to it
hereunder without being required to determine the authenticity of such document,
the correctness of any fact stated therein, the propriety of the service thereof
or the capacity, identity or authority of any party purporting to sign or
deliver such document. Reference below to the Pledged Shares be deemed to
include the Note, unless the context requires otherwise.
5. The duties of the Escrow Agent are only as herein specifically provided,
and are purely ministerial in nature. The Escrow Agent shall neither be
responsible for or under, nor chargeable with any knowledge of, the terms and
conditions of any other agreement, instrument or document in connection herewith
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and shall be required to act in respect of the Pledged Shares only as provided
in this Escrow Agreement. This Escrow Agreement sets forth all the obligations
of the Escrow Agent with respect to any and all matters pertinent to the escrow
contemplated hereunder and no additional obligations of the Escrow Agent shall
be implied from the terms hereof or any other agreement or instrument. The
Escrow Agent shall incur no liability in connection with the discharge of its
obligations hereunder or otherwise in connection therewith, except such
liability as may arise from the gross negligence or willful misconduct of the
Escrow Agent.
6. The Escrow Agent may consult with counsel of its choice, which may
include attorneys in the firm of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx, and shall
not be liable for any action taken or omitted to be taken by the Escrow Agent in
accordance with the advice of such counsel.
7. The Escrow Agent shall not be bound by any modification, cancellation or
rescission of this Escrow Agreement unless such modification, cancellation or
rescission is in writing and signed by the Escrow Agent.
8. The Escrow Agent is acting as a stakeholder only with respect to the
Pledged Shares. If any dispute arises as to whether the Escrow Agent is
obligated to deliver the Pledged Shares or as to whom the Pledged Shares are to
be delivered or the amount or timing thereof, the Escrow Agent shall not be
required to make any delivery, but in such event the Escrow Agent may hold the
Pledged Shares until receipt by the Escrow Agent of instructions in writing,
signed by all parties which have, or claim to have, an interest in the Pledged
Shares, directing the disposition of the Pledged Shares, or in the absence of
such authorization, the Escrow Agent may hold the Pledged Shares until receipt
of a certified copy of a final judgment of a court of competent jurisdiction
providing for the disposition of the Pledged Shares. The Escrow Agent may
require, as a condition to the disposition of the Pledged Shares pursuant to
written instructions, indemnification and/or opinions of counsel, in form and
substance satisfactory to the Escrow Agent, from each party providing such
instructions. If such written instructions, indemnification and opinions are not
received, or proceedings for such determination are not commenced, within 30
days after receipt by the Escrow Agent of notice of any such dispute and
diligently continued, or if the Escrow Agent is uncertain as to which party or
parties are entitled to the Pledged Shares, the Escrow Agent may either (i) hold
the Pledged Shares until receipt of (x) such written instructions and
indemnification or (y) a certified copy of a final judgment of a court of
competent jurisdiction providing for the disposition of the Pledged Shares; or
(ii) deposit the Pledged Shares in the registry of a court of competent
jurisdiction; provided, however, that notwithstanding the foregoing, the Escrow
Agent may, but shall not be required to, institute legal proceedings of any
kind.
9. EVCI agrees to reimburse the Escrow Agent on demand for, and to
indemnify and hold harmless the Escrow Agent from, against and with respect to,
any and all loss, liability, damage, claim or expense (including, without
limitation, attorneys' fees and costs) that the Escrow Agent may suffer or incur
in connection with agreeing to this Escrow Agreement and the performance of its
obligations hereunder or otherwise in connection therewith, except to the extent
such loss, liability, damage, claim or expense arises from the gross negligence
or willful misconduct of the Escrow Agent. Without in any way limiting the
foregoing, the Escrow Agent shall be reimbursed for the cost of all legal fees
and costs incurred by it in acting as the Escrow Agent hereunder (which may
include fees and costs of legal services provided by attorneys in the firm of
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx), based
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on the normal hourly rates in effect at the time services are rendered. The
Escrow Agent shall have the right at any time and from time from time to charge,
and reimburse itself from, the Pledged Shares for all amounts to which it is
entitled pursuant to this Escrow Agreement.
10. The Escrow Agent and any successor escrow agent may at any time resign
as such by delivering the Pledged Shares to either (i) any successor escrow
agent designated in writing by all the parties hereto (other than the Escrow
Agent), or (ii) any court having competent jurisdiction. Upon its resignation
and delivery of the Pledged Shares as set forth in this paragraph 10, the Escrow
Agent shall be discharged of, and from, any and all further obligations arising
in connection with the escrow contemplated by this Escrow Agreement.
11. If the Escrow Agent requires any further instruments or instructions to
effectuate this Escrow Agreement or obligations in respect hereof, the necessary
parties hereto shall join in furnishing the same.
12. The Escrow Agent shall have the right to represent EVCI in any dispute
between the parties hereto with respect to the Pledged Shares or otherwise.
13. This Escrow Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns. Nothing
contained herein, express or implied, shall give to anyone, other than the
parties hereto and their respective permitted successors and assigns, any
benefit, or any legal or equitable right, remedy or claim, under or in respect
of this Escrow Agreement or the escrow contemplated hereby.
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14. All notices and other communications hereunder shall be in writing and
shall be deemed to have been given when delivered by hand (which shall include
delivery by Federal Express or similar service) or upon receipt or two days
after mailing when mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to EVCI, to:
Educational Video Conferencing, Inc.
00 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxx, Chairman
(000) 000-0000
(000) 000-0000 (Fax)
(b) if to the Pledgee, to:
Amaranth Trading LLC
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
(000) 000-0000
(000) 000-0000 (Fax)
(c) if to the Escrow Agent, to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (Fax)
15. This Escrow Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York, without regard to the
conflicts of law doctrine of such state. All actions against the Escrow Agent
arising under or relating to this Agreement shall be brought against the Escrow
Agent exclusively in the appropriate court in the County of New York, State of
New York. Each of the parties hereto agrees to submit to personal jurisdiction
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and to waive any objection as to venue in the County of New York, State of New
York. Service of process on any party hereto in any action arising out of or
relating to this Escrow Agreement shall be effective if mailed to such party as
set forth in the immediately preceding paragraph.
16. TO THE FULL EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS ESCROW AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ESCROW AGENT ENTERING INTO THIS
ESCROW AGREEMENT.
17. This Escrow Agreement may be executed in counterparts, each of which
shall constitute an integral original part of one and the same original
instrument.
18. All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the
parties hereto taken within context may require.
19. The rights of the Escrow Agent contained herein, including, without
limitation, the right to indemnification, shall survive the resignation of the
Escrow Agent and the termination of the escrow contemplated hereunder.
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If the foregoing correctly sets forth the understanding between EVCI and
the Pledgee, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xx. Xxxx X. Xxxxxxxx
-------------------------------
Name: Xx. Xxxx X. Xxxxxxxx
Title: Chairman and CEO
AMARANTH TRADING LLC
By: Amaranth Advisors, LLC
(Managing Member)
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Member
SENECA CAPITAL INTERNATIONAL, LTD.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Partner
SENECA CAPITAL, L.P.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Partner
MERCED PARTNERS LIMITED PARTNERSHIP
By: Global Capital Management, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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LAKESHORE INTERNATIONAL, LTD.
By: Hunter Capital Management, L.L.C.,
Investment Manager
By: Global Capital Management, Inc.
Member
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ACCEPTED AS OF THE DATE FIRST ABOVE WRITTEN:
XXXXXXXXX XXXXXXX XXXXXX XXXXXXX
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Partner
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