ESCROW AGREEMENT
Exhibit
No. 10.1
THIS
ESCROW AGREEMENT, made and entered into this 28th day of May, 2007, among
Harbin
SenRun Forestry Development Co., Ltd., a corporation organized under the
laws of
the P.R. China (“Harbin SenRun”), Everwin Development Ltd, a corporation
organized under the laws of British Virgin Islands (“Everwin”), Xxx Xxxx Global
Limited, a corporation organized under the laws of the Hong Kong SAR of the
P.R.
of China (“Hong Kong Xxx Xxxx”), the Xxx Xxxx Global Limited Trust, a Hong Kong
trust created pursuant to a Trust and Indemnity Agreement dated March 10,
2007
(the “Xxx Xxxx Global Limited Trust”) (Everwin, Hong Kong Xxx Xxxx and the Xxx
Xxxx Global Limited Trust being hereinafter referred to as the “SenRun
Shareholders”), and Xxxxxx X. Xxxxxx, an attorney licensed to practice law in
the State of North Carolina (the “Escrow Agent”).
RECITALS:
X. Xxxxxx
SenRun, the SenRun Shareholders, Patriot Investment Corporation, a Nevada
corporation (the “Company”), and Xxxxxxx Xxxxxxxx, the President and majority
shareholder of the Company (“Shepherd”) have or will enter into a Share Exchange
Agreement (the “Share Exchange Agreement”), pursuant to which the Everwin will
transfer all of its 100% share capital in Hong Kong Xxx Xxxx, which beneficially
owns100% of the share capital of Harbin SenRun, to the Company in exchange
for
3,000,000 shares of the Company’s common stock, and Hong Kong Xxx Xxxx and
Xxxxxx SenRun shall become wholly owned subsidiaries of the
Company.
B. In
addition, Harbin SenRun, the SenRun Shareholders, the Company, Shepherd and
Xxxx
Xxx, a director and shareholder of the Company (“Gee”) (Shepherd and Gee being
hereinafter referred to as the “Sellers”) have or will enter into a Stock
Purchase Agreement (the “Stock Purchase Agreement”), pursuant to which the
Everwin will purchase 44,630,000 shares of common stock (the “Shares”) of the
Company from the Sellers for $575,000 (the “Purchase Price”).
C. Inasmuch
as Everwin now owns 100% of the issued share capital of Hong Kong Xxx Xxxx,
Everwin will be a signatory to the definitive agreements, and will act as
the
agent for the SenRun Shareholders with respect to this Agreement and any
required communications to or from Escrow Agent
D. The
Purchase Price is payable by the SenRun Shareholders to the Sellers pursuant
to
the Stock Purchase Agreement upon the satisfaction or waiver of the conditions
of closing which are or will be set forth in the Stock Purchase
Agreement.
E. The
Stock Purchase Agreement will provide, among other things, that at Closing
the
Escrow Agent shall wire transfer the sum of $550,000.000 (the “Escrow Funds”) to
Shepherd as representative of the Sellers, and the SenRun Shareholders shall
instruct Xxxx X. Xxxxxxxxx, counsel to the Sellers, to release an additional
amount of $25,000.000 that he now holds in escrow as a deposit pursuant to
a
separate escrow agreement.
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F. The
obligations of the parties to the Stock Purchase Agreement to close and complete
the transactions contemplated thereby are subject to the satisfaction or
waiver
of the conditions of closing which are or will be set forth in the Stock
Purchase Agreement.
G. The
Escrow Agent is willing to use his attorney trust account at Wachovia Bank,
N.A.
to hold the Escrow Funds until such time as they are either delivered to
the
Sellers or returned to the SenRun Shareholders, at the sole direction of
Everwin, pursuant to the terms of this Agreement and the Stock Purchase
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration, it is agreed as
follows:
1. Recitals.
All of the above recitals are true and correct.
2. Establishment
of Escrow Account. The parties hereto shall establish, and by execution of
this Agreement hereby agree to establish, an escrow with the Escrow Agent,
which
escrow shall hold the Escrow Funds which shall be deposited in the Escrow
Agent’s Attorney Trust Account at Wachovia Bank, N.A., Cornelius, North
Carolina, Account No. 2000017313982, with an ABA Routing No. of
000000000.
3. Escrow
Period. The Escrow Agent agrees to receive and hold the Escrow Funds in
accordance with the terms of this Agreement. The “Escrow Period” shall begin on
the date hereof and shall terminate on the date of the last of the following
events to occur: (i) the Closing of the transactions contemplated by the
Stock
Purchase Agreement; (ii) the failure of the Sellers to satisfy the conditions
of
Closing attributable to them or the waiver of such conditions by the SenRun
Shareholders. If no Closing occurs by June 7, 2007, then the Escrow Funds
shall
be returned by an instruction from Everwin. Everwin has been authorized by
Harbin SenRun and the SenRun Shareholders as the sole person to give
instructions to the Escrow Agent to return the Escrow Funds.
4. Conditions
to a Release of Escrow Funds. The obligation of the Escrow Agent to release
the Escrow Funds from escrow to the Sellers is subject to the delivery by
Everwin of a signed certificate advising the Escrow Agent that the conditions
to
closing of the Stock Purchase Agreement have been satisfied and instructing
the
Escrow Agent to disburse the Escrow Funds to Sellers in payment for the Shares.
Everwin has been authorized by Harbin SenRun and the SenRun Shareholders
as the
sole person to give instructions to the Escrow Agent to disburse the Escrow
Funds to Sellers in payment for the Shares.
5. Disbursements
from the Escrow Account. Upon the disbursement of the Escrow Funds in
accordance with Section 4 above, the Escrow Agent will have no further
responsibility with respect to the Escrow Funds so disbursed and no further
responsibility under this Agreement.
6. Rights,
Duties and Responsibilities of Escrow Agent. It is understood and agreed
that the duties of the Escrow Agent are purely ministerial in nature. It
is
further agreed that:
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a.
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The
Escrow Agent shall not be responsible for the performance by the
parties
of their obligations under this
Agreement.
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b.
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The
Escrow Agent shall have the right to act in reliance upon any certificate,
document, instrument or signature believed by it in good faith
to be
genuine and to assume that any person purporting to give any notice
or
instructions in accordance with this Agreement or in connection
with any
transaction to which this Agreement relates has been duly authorized
to do
so. The Escrow Agent shall not be obligated to make any inquiry
as to the
authority, capacity, existence or identity of any person purporting
to
give any such notice or instructions. The Escrow Agent is authorized,
in
its sole discretion, to disregard any and all notices or instructions
given by any of the Company or by any other person, firm or corporation,
except only such notices or instructions as are herein provided
for and
orders or process of any court.
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c.
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In
the event that the Escrow Agent shall be uncertain as to its duties
or
rights hereunder or shall receive instructions with respect to
the Escrow
Funds which, in its sole opinion, are in conflict with either other
instructions received by it or any provision of this Agreement,
it shall
be entitled to hold the Escrow Funds, or a portion thereof, in
the Escrow
Account pending the resolution of such uncertainty to the Escrow
Agent’s
sole satisfaction; by entry of an order, judgment or decree by
a court or
courts of competent jurisdiction or otherwise; or the Escrow Agent,
at its
option, may deposit the Escrow Funds in the registry of a court
of
competent jurisdiction in a proceeding to which all parties in
interest
are joined. Upon so depositing such funds and filing its complaint
and
interpleader, the Escrow Agent shall be completely discharged and
released
from further liability.
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d.
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The
Escrow Agent shall not be liable for any action taken or omitted
hereunder
except in the case of its bad faith, gross negligence or willful
misconduct. The Escrow Agent shall be entitled to consult with
counsel of
its own choosing and shall not be liable for any action taken,
suffered or
omitted by it in reasonable reliance upon the advice of such counsel.
Any
reasonable expenses incurred by Escrow Agent in connection with
such
consultation shall be reimbursed by the SenRun
Shareholders.
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e.
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The
Escrow Agent shall have no responsibility at any time to ascertain
whether
or not any security interest exists in the Escrow Funds or any
part
thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Escrow Funds or any part
thereof.
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f.
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This
Agreement sets forth exclusively all of the duties of the Escrow
Agent
with respect to any and all matters related hereto and no implied
duties
or obligations shall be added to this Agreement against the Escrow
Agent,
apart from those explicitly set forth
herein.
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7. No
Interests Created in Fund. The Escrow Agent shall not issue any certificate
of deposit, stock certificates or any other instrument or document representing
any interest in the Escrow Funds, except that it may send a written notice
to
the SenRun Shareholders acknowledging receipt or disbursement of the deposited
funds.
8. Amendment;
Resignation. This Agreement may be altered or amended only with the written
consent of Harbin SenRun, the SenRun Shareholders and the Escrow Agent, in
which
event notice of any such amendment shall be provided to the Company and the
Sellers at the addresses set forth in the Stock Purchase Agreement within
one
business day following the execution of such amendment. The Escrow Agent
may
resign as Escrow Agent at any time upon ten (10) days’ prior written notice to
the parties. In the case of the Escrow Agent’s resignation, its only
duty shall be to hold and dispose of the Escrow Funds in accordance with
the
original provisions of this Agreement until a successor Escrow Agent shall
be
appointed and written notice of the name and address of such successor Escrow
Agent shall be given to the Escrow Agent by Harbin SenRun and the SenRun
Shareholders, whereupon the Escrow Agent’s only duty shall be to pay over to the
successor Escrow Agent the Escrow Funds.
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9. Fees
and Expenses. The Escrow Agent shall, in addition to the indemnification
provided for in Section 10 below, be entitled to be reimbursed by the SenRun
Shareholders for any reasonable expenses for performing its obligations in
connection with this Agreement.
10. Indemnification. Harbin
SenRun and the SenRun Shareholders, jointly and severally, agree to indemnify
the Escrow Agent and its officers, agents, directors, partners and employees
(herein, jointly and severally the “Indemnitees”) against, and hold them
harmless of and from, any and all loss, liability, cost, damage and expense,
including without limitation, reasonable attorneys’ fees, which the Indemnitees
may suffer or incur by reason of any action, claim or proceeding brought
by any
party against the Indemnitees, arising out of or relating in any way to this
Agreement or any transaction contemplated by this Agreement, or in the
performance of its duties hereunder including, but not limited to any
interpleader action brought pursuant to Section 6(c).
11. Governing
Law, Jurisdiction and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina and
the
proper venue and jurisdiction for any action or claim with respect to this
Agreement or any document delivered pursuant hereto shall be in the Superior
Court in Mecklenburg County, North Carolina. The parties agree that service
of
process in any such action or claim shall be deemed valid if made by registered
mail, return receipt requested, sent to the address set forth in Section
13
hereof. Nothing in this Agreement is intended to or shall confer upon
anyone other than the parties hereto any legal or equitable right, remedy
or
claim.
12. Assignability.
This Agreement shall not be assignable without the written consent of all
of the
parties hereto. All of the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the
successors and permitted assigns of the parties.
13. Notices.
All notices required or permitted to be given in connection with this
Agreement shall be sent by registered or certified mail, return
receipt required, and addressed as follows:
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If
to Harbin SenRun:
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Xxxx
0000, 00/X, 00 Xxxxxxxx Xxxx
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Xxxxxxx,
Xxxx Xxxx SAR of the PRC
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If
to SenRun Shareholders:
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Xxxx
0000, 00/X, 00 Xxxxxxxx Xxxx
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Xxxxxxx,
Xxxx Xxxx SAR of the PRC
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If
to Everwin:
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3rd
Floor,
Goldlion Digital Network Center
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138
Tiyu Road East, Tianhe
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Guangzhou,
PRC
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If
to the Escrow Agent:
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Xxxxxx
X. Xxxxxx, Esq.
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00000
Xxxxxx Xxxxx, Xxxxx 000X
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Xxxxxxxxx,
XX 00000
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14.
Severability. If any provision of the Agreement or the application
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of the Agreement or the application
of
such provision to persons or circumstances other than those to which it is
held
invalid or unenforceable shall not be affected thereby and shall be valid
and
enforceable to the fullest extent permitted by law.
15.
Execution in Several Counterparts. This Agreement may be executed in
several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto. In addition, facsimile or electronic signatures shall have the same
legally binding effect as original signatures.
16.
Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes
all
prior agreements and understandings (written or oral) of the parties in
connection herewith.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
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HARBIN
SENRUN FOREST DEVELOPMENT CO., LTD.
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By:
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/s/
Han, Degong
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Name:
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Xx.
Xxx, Degong
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Title:
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Chairman
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EVERWIN
DEVELOPMENT LTD
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By:
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/s/
Man Ha
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Name:
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Man
Ha
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Title:
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Director
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XXX
XXXX GLOBAL LIMITED
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By:
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/s/
Man Ha
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Name:
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Man
Ha
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Title:
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Director
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XXX
XXXX GLOBAL LIMITED TRUST
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By:
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/s/
Han, Degong
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Name:
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Xx.
Xxx, Degong
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Title:
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Trustee
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ESCROW
AGENT
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XXXXXX
X. XXXXXX, ESQ.
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/s/
Xxxxxx X. Xxxxxx
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(In
His Individual Capacity)
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