FORM OF ESCROW AGREEMENT
This Escrow Agreement, dated December 16, 2005 (the "Closing Date"), among
Victoria Beverage, Inc., a New York corporation ("Purchaser"), Capital Beverage
Corporation, a Delaware corporation (the "Seller"), and Xxxxx & Xxxxxxxxxxx,
LLP, as escrow agent ("Escrow Agent") (collectively, the "Parties").
This is the Escrow Agreement referred to in the Asset Purchase Agreement dated
as of September 15, 2005 (the "Purchase Agreement") by and between the
Purchaser, as assignee of Oak Beverages Inc. and the Seller.
The parties, intending to be legally bound, and for good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, agree as
follows:
Section 1. Definitions
"Business Day" means any day during which the offices of the Escrow
Agent in New York are open for business.
"Claims Amount" shall mean the aggregate amount of all Claims, Third
Party Claims, Primary Creditor Claims and Secondary Creditor Claims (each as
hereinafter defined).
"Distribution Amount" means with respect to each Distribution Date, an
amount equal to the Escrow Amount, less the Claims Amount, if any, multiplied by
one third (1/3).
"Distribution Date" means each of June 16, 2006, December 16, 2006 and
June 16, 2007.
"Eligible Investments" means (a) direct, short-term obligations of the
United States Government or its instrumentalities; (b) variable rate
certificates of deposit; or (c) short-term investments in money market accounts
of one or more United States banks having total assets in excess of
$100,000,000, in each case having maturities of not more than ninety (90) days.
"Final Distribution Date" means June 16, 2007.
"Primary Creditor Claims" means the aggregate of all claims of Primary
Creditors.
"Purchaser" shall include Victoria Beverage Inc.'s successors and
assigns, including, without limitation, any designee appointed by Victoria
Beverage Inc. pursuant to paragraph 16(j) of the Purchase Agreement.
"Secondary Creditor Claims" means the aggregate of all claims of
Secondary Creditors.
"Termination Date," means the later of (i) the Final Distribution Date,
or (ii) the date on which no Claims, Third Party Claims, Primary Creditor Claims
or Secondary Creditor Claims are outstanding.
Capitalized terms used in this agreement without definition shall have the
respective meanings given to them in the Purchase Agreement.
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Section 2. Establishment of Escrow; Deposit of Escrow Property
(a) The Purchaser shall on this date deposit with the Escrow Agent in
immediately available funds, as part of the Purchase Price, the amount of Two
Million Eight Hundred Thirty-Four Thousand Nine Hundred Twenty-Five and 22/100
Dollars ($2,834,925.22), which will consist of the Escrow Amount, plus the
Increased Escrow Amount, plus the amounts deposited with Escrow Agent toward
satisfaction of Primary Creditor Claims, if any, pursuant to paragraph 3(a) of
the Purchase Agreement, and Secondary Creditor Claims pursuant to paragraph
3(a)(i) of the Purchase Agreement, all in accordance with the provisions of the
Purchase Agreement (together with any investment income or proceeds received by
the Escrow Agent from the investment thereof from time to time pursuant to this
Escrow Agreement, collectively, the "Escrow Property").
(b) The Escrow Agent agrees to hold the Escrow Property in an
account established with JPMorgan Chase Bank, 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Account #008619223565 (the "Escrow Account"), and to
administer the Escrow Property in accordance with the terms of this Escrow
Agreement and Sections 3 and 7 of the Purchase Agreement.
Section 3. Claims
(a) Subject to the provisions of Section 3(d), from time to time on or
before the Termination Date, Purchaser may give written notice (a "Claim
Notice") to the Escrow Agent and the Seller specifying in reasonable detail the
nature and dollar amount of any direct claim made by Purchaser against Seller (a
"Claim"), which it may have under the Purchase Agreement, that certain
sub-distribution agreement between Seller and Purchaser (the "Sub-Distribution
Agreement") or the transactions contemplated by either of those agreements. If
Seller gives written notice to Purchaser and Escrow Agent disputing any Claim (a
"Counter Notice") within 10 days following receipt by Escrow Agent and the
Seller of the Claim Notice regarding such Claim, such Claim shall be resolved as
provided in this Section 3(a). If no Counter Notice is received by Escrow Agent
within such 10 day period, then the dollar amount of damages claimed by
Purchaser as set forth in the Claim Notice shall be deemed established for
purposes of this Escrow Agreement and the Purchase Agreement and, at the end of
such 10 day period, Escrow Agent shall promptly pay to Purchaser the dollar
amount claimed in the Claim Notice from (and only to the extent of) the Escrow
Property. If a Counter Notice is given with respect to a Claim, Escrow Agent
shall be entitled to retain the Escrow Property until Escrow Agent shall have
received (i) a final non-appealable order of a court of competent jurisdiction
directing delivery of the Escrow Property pursuant to the procedures specified
in paragraph 7 of the Purchase Agreement, or (ii) a written agreement executed
by Purchaser and Seller directing delivery of the Escrow Property, in which
event Escrow Agent shall disburse the Escrow Property in accordance with such
order or agreement. Escrow Agent shall not be obligated to inquire into or
consider whether a Claim complies with the requirements of the Purchase
Agreement.
(b) Subject to the provisions of Section 3(d), from time to time on or before
the Termination Date, Purchaser may provide Escrow Agent with a written
instruction (an "Instruction Notice") to reimburse Purchaser for Damages as they
are incurred by Purchaser pursuant to paragraph 7(d) of the Purchase Agreement
on account of claims covered by paragraph 7(c)(i) of the Purchase Agreement
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("Third Party Claims"). Such Instruction Notice will contain written
instructions to Escrow Agent to pay all Damages stated in the particular
Instruction Notice. Purchaser will send a copy of the Instruction Notice to
Seller at the same time it sends the Notice to Escrow Agent. Within ten (10)
days following receipt by Escrow Agent of the Instruction Notice, the Escrow
Agent will promptly pay Purchaser the dollar amount specified in such notice
from the Escrow Property. The Parties acknowledge and agree that payment by the
Escrow Agent of such amounts to Purchaser will not be subject to the prior
consent or approval of Seller or Escrow Agent. For purposes of determining the
Claims Amount, and related Distribution Amount on a particular Distribution
Date, the amount of any then outstanding Third Party Claim shall be deemed to
be: (i) the monetary amount of damages claimed in a summons and complaint, in
the event the particular Third Party Claim is commenced by the service of a
summons and complaint upon Purchaser, or (ii) the amount that Purchaser
reasonably determines in good faith to be the amount of such Third Party Claim,
in the event the Third Party Claim is a claim other than that which is commenced
by the service of a summons and complaint upon Purchaser, or if any such summons
and complaint does not set forth a sum certain as claimed damages.
(c) Escrow Agent shall not, and it shall not be authorized to, distribute
any Escrow Property as payment for legal fees or expenses incurred by Seller on
account of: (i) disputes with Purchaser concerning a Counter Notice, or (ii)
defending any Indemnified Party pursuant to paragraph 7 of the Purchase
Agreement. Similarly, Escrow Agent shall not, and it shall not be authorized to,
distribute any Escrow Property as payment for any legal fees or expenses
incurred by it in the performance of its obligations hereunder.
(d) It is understood that Purchaser will not be entitled to submit a Claim
Notice or Instruction Notice after the Final Distribution Date unless such
notice directly relates to an earlier Claim Notice or Instruction Notice
asserted by Purchaser against Seller prior to the Final Distribution Date.
Section 4. Distribution of Increased Escrow Amount; Payment of Primary
Creditors and Secondary Creditors
(a) From time to time on or before the Termination Date, Seller may give written
notice (a "Seller Notice") to the Escrow Agent and the Purchaser specifying in
reasonable detail the nature and dollar amount of any particular Unresolved
Pre-Closing Claim that resulted in all or part of the Increased Escrow Amount
being deposited with the Escrow Agent, including without limitation, the name of
the claimant (the "Unresolved Pre-Closing Claimant") and the amount required to
satisfy such claim (the "Satisfaction Amount"). Within 5 business days following
receipt by Escrow Agent of the Seller Notice and upon Purchaser's prior written
consent, Escrow Agent shall issue a check payable to the Unresolved Pre-Closing
Claimant in an amount equal to the Satisfaction Amount. Purchaser will give such
written consent provided: (i) that such amount does not exceed the portion of
the Increased Escrow Amount attributable to that particular claim, and (ii) that
the Escrow Agent shall have in its possession, prior to the payment of such
funds, a full general release signed by the Unresolved Pre-Closing Claimant
releasing all claims against the Seller and Purchaser related to the Unresolved
Pre-Closing Claim in question, in a form reasonably satisfactory to Purchaser.
Contemporaneously with the payment of the Satisfaction Amount to the Unresolved
Pre-Closing Claimant, Seller shall provide Purchaser with the general release
specified in the preceding sentence.
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(b) In the event that the Increased Escrow Amount relating to a particular
Unresolved Pre-Closing Claim is more than the Satisfaction Amount for that
claim, the Escrow Agent shall, upon written notice to Purchaser, distribute from
the Escrow Property the amount by which that particular Increased Escrow Amount
exceeds the Satisfaction Amount to Seller at the same time that it distributes
funds to the Unresolved Pre-Closing Claimant in accordance with the provisions
of this Agreement and provides Purchaser with the full general release specified
in paragraph 4(a).
(c) To the extent funds have been deposited with the Escrow Agent pursuant
to paragraph 3(a) of the Purchase Agreement, at the Closing, Escrow Agent will
issue a check to each of the Primary Creditors and Secondary Creditors for whose
account funds were deposited in escrow (other than the Primary Creditors and
Secondary Creditors that were paid at Closing by checks remitted by Purchaser
pursuant to paragraph 3(a) of the Purchase Agreement), in accordance with the
joint written instructions of Seller and Purchaser for the purpose of satisfying
in full each of such creditors claims against Seller.
(d) (i) After the Closing, and provided Seller presents to
Purchaser proof to the reasonable satisfaction of Purchaser of the satisfaction
of the claims of the Secondary Creditors for which it received the initial
Secondary Creditors Release Amount at Closing and of the claims of the Secondary
Creditors which Purchaser directly paid at Closing, if any, pursuant to Seller's
instructions, Purchaser will authorize the Escrow Agent to release the next
Secondary Creditors Release Amount to the Seller, in trust, in accordance with
the terms of this Agreement. Seller will use such Secondary Creditors Release
Amount to pay at least twenty-five percent (25%) of the aggregate claims of all
the Secondary Creditors specified on Schedule 8(a)(xiv) of the Disclosure
Statement (as updated pursuant to paragraph 8(a)(xiv)) of the Purchase
Agreement, all subject to and in accordance with the terms and provisions of
this Agreement.
(ii) Upon presentation by Seller to Purchaser of proof to the
reasonable satisfaction of Purchaser of (x): the satisfaction of the claims of
the Secondary Creditors paid by Purchaser directly at Closing, if any, and (y)
that not less than fifty percent (50%) of the aggregate claims of Secondary
Creditors have been paid and satisfied in full, Purchaser will authorize Escrow
Agent to release the next Secondary Creditors Release Amount to the Seller.
(iii) With respect to such next Secondary Creditors Release
Amount, Seller shall remit payments toward the satisfaction in full of the
claims of such other Secondary Creditors in accordance with the procedures set
forth in paragraph 3(a)(iii)(B) of the Purchase Agreement. This procedure shall
be repeated until the aggregate of all claims of Secondary Creditors have been
paid and satisfied in full, as established by proof to the reasonable
satisfaction of Purchaser. In any event, all claims of Secondary Creditors shall
be paid and satisfied in full within ninety (90) days after the Closing Date. To
the extent there are any funds remaining in escrow on account of claims of
Secondary Creditors after ninety (90) days, such funds will be released to
Seller upon the earlier of: (x) the presentation to Purchaser of proof to the
reasonable satisfaction of Purchaser that the aggregate of all claims of
Secondary Creditors have been paid and satisfied in full; or (y) twelve (12)
months after the Closing Date, provided that no claim of any Secondary Creditors
has been made, asserted, alleged or instituted against Purchaser for which a
portion of the Purchase Price is being held in escrow by the Escrow Agent as
security for the payment of Secondary Creditors pursuant to paragraph 3(a)(i) of
the Purchase Agreement.
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(iv) In the event any Secondary Creditors Release Amount
exceeds the amounts expended by Seller to pay and satisfy in full twenty-five
percent (25%) of the aggregate claims of all Secondary Creditors for which it
has been released, Seller will be entitled to retain the difference thereof.
Section 5. Distribution of Escrow Property to Seller; Termination of
Escrow
(a) Subject to the terms of this Agreement, on each Distribution Date,
Escrow Agent shall pay and distribute to Seller the Distribution Amount;
provided however, that on the Final Distribution Date, the Distribution Amount
shall be increased to include all of the Escrow Property, less any outstanding
Claims Amount.
(b) Subject to the terms of this Agreement, not later than the fifth
Business Day after the Termination Date, Escrow Agent shall pay and distribute
to Seller the then amount of Escrow Property, if any.
Section 6. Investment of Funds
Except as Purchaser and Seller may from time to time jointly instruct Escrow
Agent in writing, the Escrow Property shall be invested from time to time in
Eligible Investments until disbursement of the entire Escrow Property. Escrow
Agent is authorized to liquidate in accordance with its customary procedures any
portion of the Escrow Property consisting of Eligible Investments to provide for
payments required to be made under this Escrow Agreement.
Section 7. Duties of Escrow Agent
(a) The Escrow Agent shall not be responsible for any of the agreements
referred to or described herein (including without limitation the Purchase
Agreement), or for determining or compelling compliance therewith, except this
Escrow Agreement.
(b) The Escrow Agent shall be obligated only for the performance of such
duties as are expressly and specifically set forth in this Escrow Agreement on
its part to be performed, each of which is ministerial (and shall not be
construed to be fiduciary) in nature, and no implied duties or obligations of
any kind shall be read into this Escrow Agreement against or on the part of the
Escrow Agent.
(c) Escrow Agent shall not be liable for any actions or omissions hereunder
except for its own gross negligence or willful misconduct.
(d) Escrow Agent shall not be under any duty to give the Escrow Property
held by it hereunder any greater degree of care than it gives its own similar
property.
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(e) The Escrow Agent shall not be obligated to take any legal or other
action hereunder which might in its judgment involve or cause it to incur any
expense or liability unless it shall have been furnished with acceptable
indemnification.
(f) The Escrow Agent may consult counsel satisfactory to it, and the
opinion or advice of such counsel in any instance shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or advice of
such counsel reasonably acceptable to Purchaser.
(g) The Escrow Agent may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction (including, without
limitation, wire transfer instructions, whether incorporated herein or provided
in a separate written instruction), instrument, statement, certificate, request
or other document furnished to it hereunder and believed by it to be genuine and
to have been signed or presented by the proper person, and shall have no
responsibility to make inquiry as to or to determine the genuineness, accuracy
or validity thereof (or any signature appearing thereon), or of the authority of
the person signing or presenting the same, unless the Escrow Agent has reason to
believe the signature is not genuine or the person signing same is without
authority to do so. Escrow Agent may conclusively presume that the undersigned
representative of any party hereto which is an entity other than a natural
person has full power and authority to instruct Escrow Agent on behalf of that
party unless written notice to the contrary is delivered to Escrow Agent.
(h) In no event shall the Escrow Agent be liable for: (i) indirect,
punitive, special or consequential damage or loss (including but not limited to
lost profits) whatsoever, even if the Escrow Agent has been informed of the
likelihood of such loss or damage and regardless of the form of action, or (ii)
its investment or reinvestment of any property held by it hereunder in good
faith in Eligible Investments, in accordance with the terms hereof, including,
without limitation, any liability for any delays (not resulting from its gross
negligence or willful misconduct) in the investment or reinvestment of the
Escrow Property, or any loss of interest incident to any such delays.
(i) Escrow Agent does not have any interest in the Escrow Property
deposited hereunder but is serving as escrow holder only and having only
possession thereof. Escrow Agent makes no representation as to the validity,
value, genuineness or the collectability of any security or other document or
instrument held by or delivered to it.
(j) Escrow Agent shall not be called upon to advise any party as to the
wisdom in selling or retaining or taking or refraining from any action with
respect to any securities or other property deposited hereunder.
(k) Escrow Agent (and any successor Escrow Agent) may at any time resign
as such by delivering the Escrow Property to any successor Escrow Agent jointly
designated by the other parties hereto in writing, or to any court of competent
jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all
further obligations arising in connection with this Escrow Agreement. The
resignation of Escrow Agent will take effect on the earlier of (i) the time of
appointment of a successor (including a court of competent jurisdiction) or (ii)
the day which is 30 days after the date of delivery of its written notice of
resignation to the other parties hereto. If at that time Escrow Agent has not
received a designation of a successor Escrow Agent, Escrow Agent's sole
responsibility after that time shall be to retain and safeguard the Escrow
Property until receipt of a designation of successor Escrow Agent or a joint
written disposition instruction by the other parties hereto or a final
non-appealable order of a court of competent jurisdiction.
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(l) No printed or other matter in any language (including, without
limitation, prospectuses, notices, reports and promotional material) that
mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent
shall be issued by the other parties hereto or on such parties' behalf unless
Escrow Agent shall first have given its specific written consent thereto.
Section 8. Indemnification of Escrow Agent
(a) Each of the Parties agree, jointly and severally, to indemnify the
Escrow Agent (and its directors, officers and employees) and hold it (and such
directors, officers and employees) harmless from and against any loss,
liability, damage, cost and expense, including reasonable attorney's fees
("Damages") incurred by the Escrow Agent as a result of a claim made, asserted,
alleged or instituted by a third party as a result of Escrow Agent's performance
under this Agreement.
(b) Each of the Parties agree, jointly and severally, to indemnify the
Escrow Agent (and its directors, officers and employees) and hold it (and such
directors, officers and employees) harmless from and against any Damages
incurred by the Escrow Agent as a result of a claim made, asserted, alleged or
instituted by Purchaser against Escrow Agent as a result of Escrow Agent's
performance under this Agreement, provided however, that if such claim by
Purchaser is due to the Escrow Agent's failure to disburse the Escrow Property,
or any portion thereof, pursuant to: (i) paragraph 3(b) of this Agreement, or
(ii) or pursuant to an Instruction Notice, then Escrow Agent shall not be
entitled to indemnification by Purchaser under this paragraph 8(b).
(c) Each of the Parties agree to jointly indemnify the Escrow Agent (and
its directors, officers and employees) and hold it (and such directors, officers
and employees) harmless from and against fifty percent (50%) of any Damages
incurred by the Escrow Agent as a result of a claim made, asserted, alleged or
instituted by Seller against Escrow Agent as a result of Escrow Agent's
performance under this Agreement. Escrow Agent shall be entitled to reimburse
itself from the Escrow Property for reasonable legal fees actually incurred in
the defense of the Escrow Agent against any claims instituted by either
Purchaser or Seller against the Escrow Agent, up to an aggregate amount of One
Hundred Thousand Dollars ($100,000.00).
(d) In the event Purchaser indemnifies Escrow Agent from and against an
amount in excess of fifty percent (50%) of any Damages incurred by Escrow Agent
as a result of claim made asserted, alleged or instituted by Seller, Seller
shall promptly reimburse Purchaser for all Damages resulting thereby, as such
Damages are incurred. In the event Seller indemnifies Escrow Agent from and
against an amount in excess of fifty percent (50%) of any Damages incurred by
Escrow Agent as a result of claim made asserted, alleged or instituted by
Purchaser, Purchaser shall promptly reimburse Seller for all Damages resulting
thereby, as such Damages are incurred.
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(e) Escrow Agent may retain such portion of the Distribution Amount to
reimburse itself for Damages incurred by Escrow Agent as a result of a claim
made, asserted, alleged or instituted against it as a result of Escrow Agent's
performance under this Agreement, provided however, that Escrow Agent retains an
amount up to and only to the extent that there is a Distribution Amount to be
distributed to Purchaser in accordance with the terms of this Agreement.
Section 9. Ownership for Tax Purposes
(a) Each of the parties agrees that, solely for purposes of reporting and
paying federal and other taxes based on income, Seller will be treated as the
owner of the Escrow Property, respectively, and that it will report all income,
if any, that is earned on, or derived from, the Escrow Property as their income,
in such proportions, in the taxable year or years in which such income is
properly includible and pay any taxes attributable thereto.
(b) Any payments of income from this Escrow Property shall be subject to
withholding regulations then in force with respect to United States taxes.
Seller hereto agree to provide the Escrow Agent with a certified tax
identification number by signing and returning a Form W-9 (or Form W-8 BEN, in
case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery
of this Escrow Agreement. Seller understands that, in the event their tax
identification numbers are not certified to the Escrow Agent, the Internal
Revenue Code, as amended from time to time, may require withholding of a portion
of any interest or other income earned on the investment of the Escrow Property.
Section 10. Intentionally Omitted
Section 11. Notices
All notices, consents, waivers and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand (with written confirmation of receipt), (b) sent by telecopier (with
written confirmation of receipt) provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee, if sent
by a nationally recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate by
notice to the other parties):
SELLER
Capital Beverage Corporation
000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx # 000
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
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PURCHASER
Victoria Beverage, Inc.
Xxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
ESCROW AGENT
Xxxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxxxxxxx, LLP
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Section 12. Dispute Resolution
It is understood and agreed that, should any dispute arise with respect to the
delivery, ownership, right of possession, and/or disposition of the Escrow
Property, or should any claim be made upon the Escrow Agent or the Escrow
Property by a third party, the Escrow Agent upon receipt of notice of such
dispute or claim is authorized and shall be entitled (at its sole option,
election and expense) to retain in its possession without liability to anyone,
all or any of said Escrow Property until such dispute shall have been settled
either by the mutual written agreement of the parties involved or by a final
order, decree or judgment of a court in the United States of America, the time
for perfection of an appeal of such order, decree or judgment having expired.
The Escrow Agent may, but shall be under no duty whatsoever to, institute or
defend any legal proceedings which relate to the Escrow Property.
Section 13. Jurisdiction; Service Of Process
Any action or proceeding seeking to enforce any provision of, or based on any
right arising out of, this Agreement may be brought against any of the parties
in the courts of the State of New York, County of New York, or, if it has or can
acquire jurisdiction, in the United States District Court for the Southern
District of New York, and each of the parties consents to the jurisdiction of
such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on any party
anywhere in the world in accordance with applicable law.
Section 14. Counterparts
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original and all of which, when taken together, will be
deemed to constitute one and the same.
Section 15. Section Headings
The headings of sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation.
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Section 16. Waiver
The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this Agreement or the documents referred to in
this Agreement will operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this Agreement
or the documents referred to in this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
Section 17. Exclusive Agreement And Modification
This Agreement supersedes all prior agreements among the parties with respect to
its subject matter and constitutes (along with the documents referred to in this
Agreement) a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by the Purchaser, the Seller
and the Escrow Agent.
Section 18. Governing Law
This Agreement shall be governed by the laws of the State of New York, without
regard to conflicts of law principles.
Section 19. Counsel to Seller
Each of Purchaser and Seller acknowledge that Escrow Agent has, and may continue
to serve as, legal counsel to Seller.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Agreement as of the date first written above.
VICTORIA BEVERAGE, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: President
CAPITAL BEVERAGE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx Xxxxxx
Title: President and CEO
Escrow Agent:
XXXXX & XXXXXXXXXXX, LLP
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
