ESCROW AGREEMENT
EXHIBIT
10.2
THIS
ESCROW AGREEMENT (this
“Agreement”) is made as of January 11, 2008, by and among Xxxxxxxxx Properties
S.A., a B.V.I. corporation (the “Xxxxxxxxx”), Sapphire Developments Limited, a
Belize corporation (the “Sapphire”), and Sanders, Ortoli,
Xxxxxx-Xxxx, Xxxxxxxxxx LLP, as Escrow Agent (the “Escrow
Agent”). Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Debt Restructuring Agreement referred to in
the
first recital or the Share Exchange Agreement referred to in the fourth recital,
as applicable.
W
I T N E S S E T H:
WHEREAS,
Sapphire has agreed
to restructure certain debt owed it by Atlantic Wine Agencies, Inc. (“Atlantic”)
evidenced by the Promissory Note made by Atlantic on November 16, 2005 for
$1,259,863 of principal and $129,136 of interest pursuant to the terms and
conditions contained herein and in the Debt Restructuring Agreement dated
December 28, 2008 to which Sapphire and Xxxxxxxxx are parties (“Debt
Restructuring Agreement”);
WHEREAS,
the consummation of
the transaction under the Debt Restructuring Agreement is subject to certain
conditions, including without limitation (i) the payment of 19,960,000 shares
of
Atlantic Wine Agencies, Inc. common stock (“Xxxxxxxxx Shares”) and (ii)
26,699,950 shares of Atlantic Common Stock to be issued to Sapphire in exchange
for the extinguishment of $533,999 of debt owed to Sapphire as a result of
the
Debt Restructuring Agreement;
WHEREAS,
Xxxxxxxxx and
Sapphire have requested that the Escrow Agent hold the Xxxxxxxxx Shares and
a
Promissory Note made by Atlantic Wine Agencies, Inc. in the amount of $533,999
(“Sapphire Shares”) in escrow until the Escrow Agent has received a Release
Notice in substantially the form attached hereto as Annex A (the “Release Notice”)
from Xxxxxxxxx; and
NOW,
THEREFORE, in
consideration of the covenants and mutual promises contained herein and other
good and valuable consideration, the receipt and legal sufficiency of which
are
hereby acknowledged and intending to be legally bound hereby, the parties agree
as follows:
ARTICLE
I
TERMS
OF THE ESCROW
1.1. The
parties hereby appoint Sanders, Ortoli, Xxxxxx-Xxxx, Xxxxxxxxxx LLP as Escrow
Agent under this Agreement and agree to pay the Escrow Agent a fee of $1,500
USD
(“Escrow Agent’s Fee”).
1.2. Assuming
the earlier of 6 month anniversary date of this Agreement or the receipt of
an
executed Release Notice from Sapphire and Xxxxxxxxx, the Escrow Agent shall
deliver the Xxxxxxxxx Shares and Sapphire Shares to Sapphire.
ARTICLE
II
MISCELLANEOUS
2.1. No
waiver
or any breach of any covenant or provision herein contained shall be deemed
a
waiver of any preceding or succeeding breach thereof, or of any other covenant
or provision herein contained. No extension of time for performance
of any obligation or act shall be deemed an extension of the time for
performance of any other obligation or act.
2.2. All
notices or other communications required or permitted hereunder shall be in
writing, and shall be sent as set forth in the Debt Restructuring Agreement
and
Exchange Agreement.
2.3. This
Escrow Agreement shall be binding upon and shall inure to the benefit of the
permitted successors and permitted assigns of the parties hereto.
2.4. This
Escrow Agreement is the final expression of, and contains the entire agreement
between, the parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This Escrow Agreement
may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein.
2.5. Whenever
required by the context of this Escrow Agreement, the singular shall include
the
plural and masculine shall include the feminine. This Escrow
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if all parties had prepared the same.
2.6. The
parties hereto expressly agree that this Escrow Agreement shall be governed
by,
interpreted under and construed and enforced in accordance with the laws of
the
State of New York. Any action to enforce, arising out of, or relating
in any way to, any provisions of this Escrow Agreement shall only be brought
in
a state or federal court sitting in the State of New York.
2.7. The
Escrow Agent’s duties hereunder may be altered, amended, modified or revoked
only by a writing signed by the Escrow Agent.
2.8. The
Escrow Agent shall be obligated only for the performance of such duties as
are
specifically set forth herein and may rely and shall be protected in relying
or
refraining from acting on any instrument reasonably believed by the Escrow
Agent
to be genuine and to have been signed or presented by the proper party or
parties. The Escrow Agent shall not be personally liable for any act
the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting
in good faith and in the absence of gross negligence, fraud and willful
misconduct, and any act done or omitted by the Escrow Agent pursuant to the
advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of
such good faith, in the absence of gross negligence, fraud and willful
misconduct.
2.9. The
Escrow Agent is hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such
order, judgment or decree, the Escrow Agent shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of such
decree being subsequently reversed, modified, annulled, set aside, vacated
or
found to have been entered without jurisdiction.
2.10. The
Escrow Agent shall not be liable in any respect on account of the identity,
authorization or rights of the parties executing or delivering or purporting
to
execute or deliver the Debt Restructuring Agreement or any documents or papers
deposited or called for thereunder in the absence of gross negligence, fraud
and
willful misconduct.
2.11. The
Escrow Agent shall be entitled to employ such legal counsel and other experts
as
the Escrow Agent may deem necessary to advise the Escrow Agent in connection
with the Escrow Agent’s duties hereunder, may rely upon the advice of such
counsel, and may pay such counsel reasonable compensation. Counsel
may also include partners of the Escrow Agent.
2.12. The
Escrow Agent’s responsibilities as Escrow Agent hereunder shall terminate if the
Escrow Agent resigns by giving written notice to Xxxxxxxxx. In the
event of any such resignation, the parties shall appoint a successor Escrow
Agent and the Escrow Agent shall deliver to such successor Escrow Agent any
escrow funds and other documents then held by the Escrow Agent
hereunder.
2.13. If
the
Escrow Agent reasonably requires other or further instruments in connection
with
this Escrow Agreement or obligations in respect hereto, the necessary parties
hereto shall join in furnishing such instruments.
2.14. It
is
understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the escrow funds held by the Escrow
Agent hereunder, the Escrow Agent is authorized and directed in the Escrow
Agent’s sole discretion (1) to retain in the Escrow Agent’s possession without
liability to anyone all or any part of said escrow funds until such disputes
shall have been settled either by mutual written agreement of the parties
concerned or by a final order, decree or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been
perfected, but the Escrow Agent shall be under no duty whatsoever to institute
or defend any such proceedings, or (2) to deliver the escrow funds and any
other
property and documents held by the Escrow Agent hereunder to a state or Federal
court having competent subject matter jurisdiction and located in the State
of
New York.
2.15. The
parties hereto agree, jointly and severally, to indemnify and hold harmless
the
Escrow Agent and its partners, employees, agents and representatives from any
and all claims, liabilities, costs or expenses in any way arising from or
relating to the duties or performance of the Escrow Agent hereunder or the
transactions contemplated hereby or by the Debt Restructuring Agreement other
than any such claim, liability, cost or expense to the extent the same shall
have been determined by final, unappealable judgment of a court of competent
jurisdiction to have resulted from the gross negligence, fraud or willful
misconduct of the Escrow Agent.
* * *
IN
WITNESS WHEREOF, the
parties hereto have executed this Escrow Agreement as of date first written
above.
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SAPPHIRE
DEVELOPMENTS LIMITED
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By:
/s/ Xxxxx
Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Vice-President
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XXXXXXXXX PROPERTIES
S.A.
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By:
/s/ Xxxx
Xxxxxxxxxxx
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Name:
Xxxx Xxxxxxxxxxx
Title:
President
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SANDERS,
ORTOLI, XXXXXX-XXXX, ROSENSTADT LLP
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as
Escrow
Agent
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By:
/s/ Xxxxxxx
Xxxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxxx, Esq.
Title:
Partner
Annex
A to
Escrow
Agreement
RELEASE
NOTICE
THE
UNDERSIGNED, pursuant to
the Escrow Agreement, dated as of _________, among Xxxxxxxxx Properties, S.A.
(“Xxxxxxxxx”), Sapphire Developments Limited (“Sapphire”) and Sanders, Ortoli,
Xxxxxx-Xxxx, Xxxxxxxxxx LLP, as Escrow Agent (the “Escrow Agent”), Xxxxxxxxx
hereby notifies the Escrow Agent that the conditions precedent to the release
of
the Xxxxxxxxx Shares and the Sapphire Shares to Sapphire have been satisfied.
Capitalized terms used herein and not defined shall have the meaning ascribed
to
such terms in the Escrow Agreement.
Xxxxxxxxx
hereby authorizes the Escrow Agent to release the Xxxxxxxxx Shares and the
Sapphire Shares to Sapphire.
This
Release Notice may be signed in one or more counterparts, each of which shall
be
deemed an original.
IN
WITNESS WHEREOF, the
undersigned have caused this Release Notice to be duly executed and delivered
as
of this ____ day of _________ 2008.
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XXXXXXXXX
PROPERTIES, S.A.
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By: __________________________
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Name:
Xxxx Xxxxxxxxxxx
Title:
President
