EXHIBIT 10.2 ESCROW AGREEMENT

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THIS ESCROW AGREEMENT (this “Agreement”) is made as of January 11, 2008, by and among Fairhurst Properties S.A., a B.V.I. corporation (the “Fairhurst”), Sapphire Developments Limited, a Belize corporation  (the “Sapphire”), and Sanders, Ortoli, Vaughn-Flam, Rosenstadt 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.

 

 

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 Fairhurst 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 (“Fairhurst 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, Fairhurst and Sapphire have requested that the Escrow Agent hold the Fairhurst 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 Fairhurst; 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:

 

 

 

 

1.1. The parties hereby appoint Sanders, Ortoli, Vaughn-Flam, Rosenstadt 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 Fairhurst, the Escrow Agent shall deliver the Fairhurst Shares and Sapphire Shares to Sapphire.

 

 

 

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 Fairhurst.  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.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of date first written above.

 

SAPPHIRE DEVELOPMENTS LIMITED

 

By: /s/ Peter Spring

Name: Peter Spring

Title: Vice-President

                FAIRHURST PROPERTIES S.A.

 

By: /s/ Adam Mauerberger

Name: Adam Mauerberger

Title: President

SANDERS, ORTOLI, VAUGHN-FLAM, ROSENSTADT LLP

as Escrow Agent

 

By: /s/ William Rosenstadt

Name: William Rosenstadt, Esq.

Title: Partner

 

 

 

 

 

 

 

 Annex A to

 Escrow Agreement

 

 

THE UNDERSIGNED, pursuant to the Escrow Agreement, dated as of _________, among Fairhurst Properties, S.A. (“Fairhurst”), Sapphire Developments Limited (“Sapphire”) and Sanders, Ortoli, Vaughn-Flam, Rosenstadt LLP, as Escrow Agent (the “Escrow Agent”), Fairhurst hereby notifies the Escrow Agent that the conditions precedent to the release of the Fairhurst 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.

 

Fairhurst hereby authorizes the Escrow Agent to release the Fairhurst 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.

 

 

FAIRHURST PROPERTIES, S.A.

By: __________________________

Name: Adam Mauerberger

Title: President