DEBT RESTRUCTURING AGREEMENT
EXHIBIT
10.1
This
DEBT RESTRUCTURING
AGREEMENT (the "Agreement") is entered into as of January 11, 2008 by and
between Sapphire Developments Limited, a Belize corporation ("Sapphire"),
Atlantic Wine Agencies, Inc., a Florida corporation (“Atlantic”) and Xxxxxxxxx
Properties S.A., a B.V.I. corporation ("Xxxxxxxxx"). Sapphire and Xxxxxxxxx
shall sometimes be referred to herein as the “Parties.”
WHEREAS,
Sapphire loaned One
Million Two Hundred Fifty-Nine thousand Eight Hundred Sixty-Three U.S. Dollars
($1,259,863) plus interest of 5% compounded on an annualized basis to Atlantic
the aggregate principal and interest of which is equal to One Million Three
Hundred Eighty-Eight Thousand Nine Hundred Ninety-Nine U.S. Dollars
($1,388,999). Such loan is evidenced in the form of the promissory note attached
hereto as Exhibit
A (“Promissory Note”);
WHEREAS,
Sapphire has agreed
to terminate the Promissory Note in exchange for the consideration contemplated
in this Agreement and subject to the terms and conditions set forth herein;
and
WHEREAS,
the Parties hereto
desire that mutual releases be executed by each as additional consideration
to
the assignment referred to herein.
NOW,
THEREFORE, in
consideration of the covenants and agreements contained herein, and for One
Dollar and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
1.
Termination
of Promissory Note. Upon the satisfaction of all conditions of this
Agreement and in exchange for the consideration found herein, Sapphire shall
consider the Promissory Note null and void.
2.
Consideration.
Consideration for this Agreement is as follows:
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(a)
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Atlantic
shall pay Three Million Two Hundred Thousand South African Rand
(R$3,200,000) to Sapphire with the first payment of One Million Two
Hundred Thousand South African Rand (R$1,200,000) on the date of
signing
of this Agreement and all related agreement and the remaining Two
Million
South African Rand (R$2,000,000) on or before the Closing Date
(collectively, “Atlantic Payment”).
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(b)
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Atlantic
shall issue 26,699,950 shares of Atlantic common stock (“Sapphire Shares”)
to Sapphire and such Shares shall be held in escrow held in Escrow
by
Sanders, Ortoli, Xxxxxx-Xxxx, Xxxxxxxxxx LLP pursuant to the form
of
Escrow Agreement attached hereto as Exhibit
B (“Escrow Agreement”). Sapphire shall also enter into the Voting
Agreement in the form attached hereto as Exhibit
C (“Voting Agreement”) whereby Sapphire shall grant limited voting
rights over all Atlantic shares of common stock held by it or affiliates
of Sapphire.
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(b)
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Atlantic
shall issue a promissory note to Xxxxxxxxx in the amount of approximately
$400,000 without interest and maturing on January 11, 2009 (“Xxxxxxxxx
Note”) in the form attached hereto as Exhibit
D;
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(c)
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Each
of Sapphire and Xxxxxxxxx shall execute mutual releases in the forms
attached hereto as Exhibit
E and Exhibit
F, respectively;
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(d)
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Xxxxxxxxx
shall ensure that Xxxx Xxxxxxxxxxx remain as the Chief Executive
Officer
of Atlantic until such time that a material merger or share exchange
occurs (“Atlantic Corporate Event”);
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(e)
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19,960,000
Shares of Common Stock of Atlantic held by Xxxxxxxxx shall be transferred
to Sapphire upon the earlier of the six-month anniversary date of
this
Agreement or the completion of the Atlantic Corporate Event (“Xxxxxxxxx
Shares”). The Xxxxxxxxx Shares shall be held in Escrow pursuant to the
terms of the Escrow Agreement. Xxxxxxxxx shall also enter into the
Voting
Agreement.
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3.
Closing
Date. The “Closing Date” shall be no later than January 31,
2008.
4.
Further
Actions. The parties shall execute and deliver all documents,
provide all information and take or forbear from taking all such action as
may
be necessary or appropriate to achieve the purposes of this Agreement. Each
party shall bear its own expenses in connection therewith.
5.
Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York and any action or proceeding
hereunder must be commenced and prosecuted in the Supreme Court of the State
of
New York, New York County.
6.
Entire
Agreement. This Agreement constitutes the entire agreement among
the parties pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto. No covenant, representation
or
condition not expressed in this Agreement shall affect or be deemed to
interpret, change or restrict the express provisions hereof.
7.
Amendments.
This Agreement may be modified or amended only with the written approval of
all
parties.
8.
No
Waiver. No failure by any party to insist upon the strict
performance of any covenant, agreement, term or condition of this Agreement
or
to exercise any right or remedy available upon a breach thereof shall constitute
a waiver of any such breach or of such or any other covenant, agreement, term
or
condition.
9.
Rights
Cumulative. The rights and remedies of each of the parties
hereunder shall be mutually exclusive, and the implementation of one or more
of
the provisions of this Agreement shall not preclude the implementation of any
other provision.
10.
Counterparts.
This Agreement may be executed in counterparts, all of which taken together
shall constitute one agreement binding on all the parties notwithstanding that
all the parties are not signatories to the original or the same
counterpart.
11.
Indemnification.
Xxxxxxxxx agrees to indemnify and hold harmless Sapphire and its officers and
directors, and each other person, if any, who controls any such entity against
any and all loss, liability, claim, damages and expense whatsoever (including,
but not limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any breach
or
failure by Xxxxxxxxx to comply with any representation, warranty, covenant
or
agreement made by Xxxxxxxxx herein or in any other document furnished by
Xxxxxxxxx to any of the foregoing in connection with this
Agreement.
12.
Notices.
All notices required or permitted under this Agreement shall be given in writing
and, unless otherwise provided, shall be deemed effectively given upon personal
delivery to the party to be notified by hand or professional courier service
or
five days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to such party at its respective
address set forth in this Agreement, or at such other address as such party
may
designate by ten days’ advance notice to the other party.
IN
WITNESS WHEREOF, the
parties have executed this Agreement as of the above date.
Sapphire
Developments Limited
By: /s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Vice-President
Xxxxxxxxx
Properties S.A.
By: /s/ Xxxx
Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx
President
Atlantic
Wine Agencies,
Inc.
By:
/s/
Xxxx
Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx
President
EXHIBIT
A
NOVEMBER
2005 SAPPHIRE
PROMISSORY NOTE
EXHIBIT
B
ESCROW
AGREEMENT
EXHIBIT
C
VOTING
AGREEMENT
EXHIBIT
X
XXXXXXXXX
PROMISSORY
NOTE
EXHIBIT
E
Effective
upon execution of this Agreement, Sapphire Developments Limited releases and
forever discharges Xxxx Xxxxxxxxxxx, his employees, agents, successors, assigns,
legal representatives, affiliates, directors and officers from and against
any
and all actions, claims, suits, demands, payment obligations or other
obligations or liabilities of any nature whatsoever, whether known or unknown,
which such party or any of its shareholders employees, agents, successors,
assigns, legal representatives, affiliates, directors or officers have had,
now
have or may in the future have directly or indirectly arising out of (or in
connection with) any of the Agreements including any activities undertaken
pursuant to any of the Agreements.
Sapphire
Developments Limited
By:
/s/
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Vice-President
EXHIBIT
F
Effective
upon execution of this Agreement, Xxxx Xxxxxxxxxxx releases and forever
discharges Sapphire Developments Limited, its shareholders, employees, agents,
successors, assigns, legal representatives, affiliates, directors and officers
from and against any and all actions, claims, suits, demands, payment
obligations or other obligations or liabilities of any nature whatsoever,
whether known or unknown, which such party or any of its employees, agents,
successors, assigns, legal representatives, affiliates, directors or officers
have had, now have or may in the future have directly or indirectly arising
out
of (or in connection with) any of the Agreements including any activities
undertaken pursuant to any of the Agreements.
Xxxxxxxxx
Properties S.A.
By:
/s/
Xxxx
Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx
President