EXHIBIT 10.21
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of June 7, 2000, by and
among Xxxxxxxxxx.xxx, Inc. (the "Company"), the lenders signatory hereto (each a
"Lender" and together the "Lenders"), and Xxxxxxx Xxxxxx & Green, P.C., (the
"Escrow Agent"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Loan Agreement referred to in the first recital.
W I T N E S S E T H:
WHEREAS, the Lenders will be lending the Company $500,000 for the
Convertible Debentures and the Lenders will receive Warrants to purchase shares
of Common Stock, at the purchase price set forth in the Loan Agreement (the
"Loan Agreement") dated the date hereof between the Lenders and the Company,
which will be issued as per the terms contained herein and in the Loan
Agreement; and
WHEREAS, the Company and the Lenders have requested that the Escrow Agent
notify the Lenders upon its receipt of the Convertible Debentures, the Warrants
and certain other closing documents specified herein;
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 1
TERMS OF THE ESCROW
1.1. The parties hereby agree to establish an escrow account with the
Escrow Agent whereby the Escrow Agent shall hold the closing documents described
herein pending the Lender's delivery of the funds for the purchase of $500,000
principal amount of Convertible Debentures and the Warrants at the Closing as
contemplated by the Loan Agreement.
1.2. At the Closing, upon Escrow Agent's receipt of executed counterparts
of this Agreement, the Loan Agreement, the Registration Rights Agreement, the
Convertible Debenture, the Warrants and the Instructions to the Transfer Agent,
it shall telephonically advise the Lender of such fact.
Upon receipt of notice (which may be by fax or email) that the Company has
received the Purchase Price of $435,000 ($500,000 net of a ten percent ($50,000)
Origination Fee to the Lender and $15,000 for the Lender's legal fees and
expenses), the Closing shall occur. The Escrow Agent shall insert the Closing
Date and the maturity date on the face of the certificates representing the
Convertible Debentures, and the Escrow Agent shall then arrange to have the
Convertible Debentures, the Warrants and the Registration Rights Agreement
delivered
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as per instructions from the Lenders and the Escrow Agent shall deliver the
instructions to the transfer agent to the transfer agent.
ARTICLE 2
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 any extension of the time
for performance of any other obligation or act.
All notices or other communications required or permitted hereunder shall be in
writing, and shall be sent as set forth in the Loan Agreement.
2.2. This Escrow Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and permitted assigns of the parties hereto.
2.3. 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.
2.4. 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 both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Escrow Agreement.
2.5. 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 New York City.
2.6. The Escrow Agent's duties hereunder may be altered, amended, modified
or revoked only by a writing signed by the Company, each Lender and the Escrow
Agent.
2.7. 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 any act done or omitted by the Escrow Agent pursuant
to
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the advice of the Escrow Agent's attorneys-at-law shall be conclusive evidence
of such good faith.
2.8. 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.
2.9. 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 Loan Agreement or any documents or papers
deposited or called for thereunder.
2.10. The Escrow Agent shall be entitled to employ such legal counsel and
other experts as the Escrow Agent may deem necessary properly 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 therefor. The Escrow Agent has acted as legal counsel for the
Lenders, and may continue to act as legal counsel for the Lenders, from time to
time, notwithstanding its duties as the Escrow Agent hereunder. The Company
consents to the Escrow Agent in such capacity as legal counsel for the Lenders
and waives any claim that such representation represents a conflict of interest
on the part of the Escrow Agent. The Company understands that the Lenders and
the Escrow Agent are relying explicitly on the foregoing provision in entering
into this Escrow Agreement.
2.11. The Escrow Agent's responsibilities as escrow agent hereunder shall
terminate if the Escrow Agent shall resign by written notice to the Company and
the Lenders. In the event of any such resignation, the Lenders and the Company
shall appoint a successor Escrow Agent.
2.12. 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.
2.13. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the documents
or 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 documents or the escrow funds until such disputes shall have been settled
either by mutual written agreement of the parties concerned by a final order,
decree or judgment or 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 City of New York in accordance with the
applicable procedure therefor.
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2.14. The Company and each Lender 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 Loan 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 or willful misconduct of
the Escrow Agent.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the date set forth above.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxx XxXxxxx
-------------------------------------
Name: Xxxx XxXxxxx
Title: Chief Executive Officer
LENDER:
Xxxxxxx Investing Corp.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, Authorized Signatory
ESCROW AGENT:
XXXXXXX XXXXXX & GREEN, P.C.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Authorized Signatory
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