AMENDMENT NO. 1 TO ESCROW AGREEMENT
Amendment No. 1 to Escrow Agreement (this "Agreement"), dated as of
February 1, 2000, by and among Liberty Food Group, LLC, a Delaware limited
liability company (the "Buyer"), Ferro Foods Corporation, a New York
corporation, Xxxxx Xxxxx, Xx. and Xxxxx Xxxxxxx (collectively, the "Seller"),
and Xxxxxxx, Xxxxxxxxx LLP (the "Escrow Agent").
RECITALS
WHEREAS, the parties hereto have executed the Escrow Agreement dated
as of November 23, 1999 (the "Escrow Agreement"; capitalized terms used herein
not otherwise defined shall have the meanings given to such terms in the Escrow
Agreement) pursuant to which, among other things, the Shares were subject to
escrow until a financial accommodation to satisfy the Debt was in place which
was satisfactory to the Buyer;
WHEREAS, since the financial accommodation was not in place at the
time stipulated for in the Escrow Agreement, the Buyer and the Seller wish to
amend the Escrow Agreement upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Each of the Sellers hereby acknowledges that the Buyer and its
business have been economically harmed and the value of the Purchased Assets has
been diminished as a result of the failure of the establishment of the financial
accommodation to satisfy the Debts as required pursuant to the terms of the
Purchase Agreement and Escrow Agreement. Accordingly, the Sellers and the Buyer
agree as follows:
(i) 67,000 of the Shares belonging to Ferro Foods Corporation
shall be released from escrow and transferred to Suan Investments (50,400);
Xxxxxx Xxxxxx (8,000); Stoubridge Investments (5,600), Xxx Xxxxxx (2,500) and
Xxx Xxxx (500).
(ii) The balance of the Shares (1,933,000) (hereinafter
referred to as the "Escrow Shares") shall remain subject to escrow and released
only upon the written instructions of the Buyer. It is the intention of the
Seller that the Escrow Shares shall be used, to the extent possible, to satisfy
outstanding debts and liabilities of the Business and the Purchased Assets.
2. Seller hereby agrees, acknowledges and confirms that (i) the
Escrow Shares shall not be released to the Seller unless and until the Buyer is
satisfied, in its sole and absolute discretion, that all liabilities or
obligations of the Business and any liabilities or obligations of the Seller or
the Principals in connection with or related to the Business or the Purchased
Assets have been satisfied and (ii) the Seller shall have no rights to the
Escrow Shares until and unless the Buyer releases said shares, in said amount
and at times to be determined in the sole discretion of the Buyer.
3. The Seller hereby agrees that the Escrow Agent shall be entitled
to act upon the receipt of a letter from the Buyer instructing the Escrow Agent
as to whom any portion of the Escrow Shares shall be delivered.
4. Entire Agreement. This Agreement and the Escrow Agreement
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior written or oral negotiations,
representations, agreements, commitments, contracts or understandings with
respect thereto and no modification, alteration or amendment to this Agreement
may be made unless the same shall be in writing and signed by both parties
hereto.
5. Full Force and Effect. Other than as specifically set forth in
this Agreement, all terms and conditions of the Escrow Agreement shall remain in
full force and effect. All references to the Escrow Agreement after the date
hereof shall automatically be deemed to include this Agreement, and,
accordingly, without limiting the generality of this sentence, it is understood
and agreed that the defined term "Agreement" includes, collectively, the Escrow
Agreement and this Agreement.
6. Governing Law. This Agreement and the rights of the
---------------
parties shall be governed by, and construed in accordance with the laws of the
State of New York without giving effect to principles of conflicts of law.
7. References. The headings in this Agreement are for
----------
convenience of reference only and not for any other purpose.
8. Counterparts. This Amendment may be executed in one or
------------
more counterparts and as so executed shall constitute one agreement binding
on the Seller and the Buyer.
[Remainder of Page Intentionally Omitted; Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date and year first above written.
XXXXXXX, XXXXXXXXX LLP
as Escrow Agent
By: /s/
Name: Xxxxxxx, Xxxxxxxxx LLP
FERRO FOODS CORPORATION
/s/
-------------------------------
Xxxxx Xxxxx, Xx.
President
/s/
--------------------------------
Xxxxx Xxxxxxx
Secretary & Tresurer
LIBERTY FOOD GROUP, LLC
By: LIBERTY GROUP HOLDINGS, INC.,
f/k/a BIO-RESPONSE, INC.,
its sole member
By: _____/s/____________________
Name: Xxxxx Xxxx
Title: President
