PLEDGE AND ESCROW AGREEMENT
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THIS PLEDGE AND ESCROW AGREEMENT (the "Agreement") is made and entered into
as of August 20, 2005 (the "Effective Date") by and among GLOBAL REALTY
DEVELOPMENT CORP., a corporation organized and existing under the laws of the
State of Florida (the "Pledgee"), A1 FINANCIAL PLANNERS PTY LTD (the "Pledgor"),
and SICHENZIA XXXX XXXXXXXX XXXXXXX LLP, as escrow agent ("Escrow Agent").
RECITALS:
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WHEREAS, in order to secure the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of all of the Pledgor's
obligations (the "Obligations") to the Pledgee or any successor to the Pledgee
under this Agreement, the Convertible Secured Subordinated Promissory Note (the
"Convertible Note") issued by the Pledgee to Sapphire Developments Limited
("Sapphire"), in the principal amount of Three Million Two Hundred Thousand
Australian Dollars (AUD$3,200,000) of principal, plus any interest, costs, fees,
and other amounts owed to Sapphire thereunder (collectively, the "Transaction
Documents"), and the Promissory Note (the "Note") issued by the Pledgee to
Dominion Estates Pty Ltd, ACN 072221375 ("Estates"), in the principal amount of
Four Hundred Sixty Five Thousand Australian Dollars (AUD$465,000) of principal,
plus any interest, costs, fees, and other amounts owed to Estates thereunder,
the Pledgor has agreed to irrevocably pledge or cause to be pledged to the
Pledgee shares of the Pledgor's common stock.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
warranties, and representations herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
TERMS AND CONDITIONS
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1. PLEDGE AND TRANSFER OF PLEDGED SHARES.
1.1. Within ninety (90) days of the execution of the Security
Agreement, the Pledgor shall cause to be delivered to the Escrow Agent stock
certificates representing 1,832,500 shares of the Pledgee's common stock (the
"Pledged Shares"), together with duly executed stock powers or other appropriate
transfer documents executed in blank (the "Transfer Documents"), and such stock
certificates and Transfer Documents shall be held by the Escrow Agent until the
Pledgee shall have completed the acquisition of both Dominion Estates Pty Ltd,
ACN 072221375 and Dominion Wines Ltd, ACN 087183739. In connection therewith,
the Pledgor hereby agrees to grant or cause to be granted to Pledgee a security
interest in all Pledged Shares as security for Pledgee's obligations under the
Convertible Note and the Note.
2. RIGHTS RELATING TO PLEDGED SHARES. Upon the occurrence of an Event of
Default (as defined herein), the Pledgee shall be entitled to vote the Pledged
Shares, to receive dividends and other distributions thereon, and to enjoy all
other rights and privileges incident to the ownership of the Pledged Shares.
3. RELEASE OF PLEDGED SHARES FROM PLEDGE. Upon the completion of the
acquisition by the Pledgee of both Dominion Estates Pty Ltd, ACN 072221375 and
Dominion Wines Ltd, ACN 087183739, the parties hereto shall notify the Escrow
Agent to such effect in writing. Upon receipt of such written notice, the Escrow
Agent shall return to the pledging party the Transfer Documents and the
certificates representing the Pledged Shares, (collectively the "Pledged
Materials"), whereupon any and all rights of Pledgee in the Pledged Materials
shall be terminated. Notwithstanding anything to the contrary contained herein,
upon completion of the acquisition by the Pledgee of both Dominion Estates Pty
Ltd, ACN 072221375 and Dominion Wines Ltd, ACN 087183739, this Agreement and
Pledgee's security interest and rights in and to the Pledged Shares shall
terminate.
4. EVENT OF DEFAULT. An "Event of Default" shall be deemed to have
occurred under this Agreement in the event that (i) the acquisition by the
Pledgee of both Dominion Estates Pty Ltd, ACN 072221375 and Dominion Wines Ltd,
ACN 087183739 has not taken place, and (ii) an Event of Default under the
Convertible Note and/or the Note occurs.
5. REMEDIES. Upon and anytime after the occurrence of an Event of
Default, the Pledgee shall have the right to provide written notice of such
Event of Default (the "Default Notice") to the Escrow Agent, with a copy to the
Pledgor. As soon as practicable after receipt of the Default Notice, the Escrow
Agent shall deliver to Pledgee the Pledged Materials held by the Escrow Agent
hereunder. Upon receipt of the Pledged Materials, the Pledgee shall have the
right to (i) sell the Pledged Shares and to apply the proceeds of such sales,
net of any selling commissions, to the Obligations owed to the Pledgee by the
Pledgor under the Transaction Documents, including, without limitation,
outstanding principal, interest, legal fees, and any other amounts owed to the
Pledgee, and exercise all other rights and (ii) any and all remedies of a
secured party with respect to such property as may be available under the
Uniform Commercial Code as in effect in the State of New York.
5.1. Each right, power and remedy of the Pledgee provided for in this
Agreement or any other Transaction Document shall be cumulative and concurrent
and shall be in addition to every other such right, power or remedy. The
exercise or beginning of the exercise by the Pledgee of any one or more of the
rights, powers or remedies provided for in this Agreement or any other
Transaction Document or now or hereafter existing at law or in equity or by
statute or otherwise shall not preclude the simultaneous or later exercise by
the Pledgee of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee to exercise any such right, power or remedy
shall operate as a waiver thereof. No notice to or demand on the Pledgor in any
case shall entitle it to any other or further notice or demand in similar or
other circumstances or constitute a waiver of any of the rights of the Pledgee
to any other further action in any circumstances without demand or notice.
6. CONCERNING THE ESCROW AGENT.
6.1. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no implied duties or obligations shall be read
into this Agreement against the Escrow Agent.
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6.2. The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in such
a writing or instrument, and may assume that any person purporting to give any
writing, notice, advice or instructions in connection with the provisions hereof
has been duly authorized to do so. The Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner, and execution, or
validity of any instrument deposited in this escrow, nor as to the identity,
authority, or right of any person executing the same; and its duties hereunder
shall be limited to the safekeeping of such certificates, monies, instruments,
or other document received by it as such escrow holder, and for the disposition
of the same in accordance with the written instruments accepted by it in the
escrow.
6.3. Pledgee and the Pledgor hereby agree, to defend and indemnify the
Escrow Agent and hold it harmless from any and all claims, liabilities, losses,
actions, suits, or proceedings at law or in equity, or any other expenses, fees,
or charges of any character or nature which it may incur or with which it may be
threatened by reason of its acting as Escrow Agent under this Agreement; and in
connection therewith, to indemnify the Escrow Agent against any and all
expenses, including attorneys' fees and costs of defending any action, suit, or
proceeding or resisting any claim (and any costs incurred by the Escrow Agent
pursuant to Sections 6.4 or 6.5 hereof). The Escrow Agent shall be vested with a
lien on all property deposited hereunder, for indemnification of attorneys' fees
and court costs regarding any suit, proceeding or otherwise, or any other
expenses, fees, or charges of any character or nature, which may be incurred by
the Escrow Agent by reason of disputes arising between the makers of this escrow
as to the correct interpretation of this Agreement and instructions given to the
Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent,
regardless of the instructions aforesaid, to hold said property until and unless
said additional expenses, fees, and charges shall be fully paid. Any fees and
costs charged by the Escrow Agent for serving hereunder shall be paid by the
Pledgor.
6.4. If any of the parties shall be in disagreement about the
interpretation of this Agreement, or about the rights and obligations, or the
propriety of any action contemplated by the Escrow Agent hereunder, the Escrow
Agent may, at its sole discretion deposit the Pledged Materials with the Clerk
of the United States District Court of New York, sitting in New York, New York,
and, upon notifying all parties concerned of such action, all liability on the
part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall
be indemnified by the Pledgor, the Company and Pledgee for all costs, including
reasonable attorneys' fees in connection with the aforesaid proceeding, and
shall be fully protected in suspending all or a part of its activities under
this Agreement until a final decision or other settlement in the proceeding is
received.
6.5. The Escrow Agent may consult with counsel of its own choice (and
the costs of such counsel shall be paid by the Pledgor and Pledgee) and shall
have full and complete authorization and protection for any action taken or
suffered by it hereunder in good faith and in accordance with the opinion of
such counsel. The Escrow Agent shall not be liable for any mistakes of fact or
error of judgment, or for any actions or omissions of any kind, unless caused by
its willful misconduct or gross negligence.
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6.6. The Escrow Agent may resign upon ten (10) days' written notice to
the parties in this Agreement. If a successor Escrow Agent is not appointed
within this ten (10) day period, the Escrow Agent may petition a court of
competent jurisdiction to name a successor.
6.7 Conflict Waiver. The Pledgor hereby acknowledges that the Escrow
Agent is general counsel to the Pledgee in connection with the transactions
contemplated and referred herein. The Pledgor agrees that in the event of any
dispute arising in connection with this Agreement or otherwise in connection
with any transaction or agreement contemplated and referred herein, the Escrow
Agent shall be permitted to continue to represent the Pledgee and the Pledgor
will not seek to disqualify such counsel and waives any objection Pledgor might
have with respect to the Escrow Agent acting as the Escrow Agent pursuant to
this Agreement.
6.8 Notices. Unless otherwise provided herein, all demands, notices,
consents, service of process, requests and other communications hereunder shall
be in writing and shall be delivered in person or by overnight courier service,
or mailed by certified mail, return receipt requested, addressed:
If to the Pledgor, to: A1 Financial Planners Pty Ltd
Telephone:
Facsimile:
With a copy to:
Attention:
Telephone:
Facsimile:
If to the Pledgee: Global Realty Development Corp.
00000 Xxxxx Xxx Xxxxxxxxx, Xxxxx 000
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Xxxxx Xxxxxxx Xxxxxxx 00000
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Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile:
With copy to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Any such notice shall be effective (a) when delivered, if delivered by hand
delivery or overnight courier service, or (b) five (5) days after deposit in the
United States mail, as applicable.
7. BINDING EFFECT. All of the covenants and obligations contained herein
shall be binding upon and shall inure to the benefit of the respective parties,
their successors and assigns.
8. GOVERNING LAW; VENUE; SERVICE OF PROCESS. The validity,
interpretation and performance of this Agreement shall be determined in
accordance with the laws of the State of New York applicable to contracts made
and to be performed wholly within that state except to the extent that Federal
law applies. The parties hereto agree that any disputes, claims, disagreements,
lawsuits, actions or controversies of any type or nature whatsoever that,
directly or indirectly, arise from or relate to this Agreement, including,
without limitation, claims relating to the inducement, construction, performance
or termination of this Agreement, shall be brought in the state superior courts
located in New York County, New York or Federal district courts located in New
York, New York, and the parties hereto agree not to challenge the selection of
that venue in any such proceeding for any reason, including, without limitation,
on the grounds that such venue is an inconvenient forum. The parties hereto
specifically agree that service of process may be made, and such service of
process shall be effective if made, pursuant to Section 8 hereto.
9. ENFORCEMENT COSTS. If any legal action or other pro-ceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresenta-tion in connection with any provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees, court costs and all expenses even if not
taxable as court costs (including, without limita-tion, all such fees, costs and
expenses incident to appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
10. REMEDIES CUMULATIVE. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or here-after existing at law, in equity, by statute, or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
12. NO PENALTIES. No provision of this Agreement is to be interpreted as
a penalty upon any party to this Agreement.
13. JURY TRIAL. EACH OF THE PLEDGEE AND THE PLEDGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT WHICH IT MAY HAVE TO A TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN ANY WAY CONNECTED WITH THE DEALINGS BETWEEN PLEDGEE AND
PLEDGOR, THIS PLEDGE AND ESCROW AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge and
Escrow Agreement as of the date first above written.
GLOBAL REALTY DEVELOPMENT CORP.
By: /s/ Xxxxx Xxxxxxx Xxxxx
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Name: Xxxxx Xxxxxxx Xxxxx
Title:
A1 FINANCIAL PLANNERS PTY LTD
By:/s/ Xxxxxxxxx Xxxx
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Name: Xxxxxxxxx Xxxx
Title:
ESCROW AGENT
SICHENZIA XXXX XXXXXXXX XXXXXXX LLP
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title:
