Exhibit 10.2
ESCROW AGREEMENT
THIS AGREEMENT, dated this 15th day of August, 2000, by and between
Sundog Technologies, Inc. ("Borrower"), Braveheart, Inc., ("Lender"), and Steven
Kapustin ("Escrow Agent");
WITNESSETH:
WHEREAS, Borrower has certain securities noted on the attached Schedule
"A" with the initial loan advance to be made by the Lender against said shares
within ten (10) days of delivery of said securities in accordance with the
Collateral Loan Agreement, or other contract between the Lender and the
Borrower; and
WHEREAS, the Escrow Agent is willing to serve as escrow agent pending
the final payment, but only on the terms and conditions hereinafter stated to
which Borrower and Lender agree;
WHEREAS, the Borrower acknowledges that they have been informed that
the Escrow Agent has performed legal services for the Lender and it is
anticipated that such services will be performed for the Lender in the future.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties here agree as follows:
1. Escrow Items
The following items with a fully executed copy of this Escrow
Agreement (collectively, the "Escrow Deposit"), shall be delivered
to Escrow Agent, to be held by Escrow Agent pursuant to this
Escrow Agreement:
a. Securities in the amount stated on Schedule "A".
b. "Blank" Stock Powers
c. Corporate Resolution authorizing the signer of the Stock Power
to enter into the transaction and to sign the Stock Power for
the company, trust or other non-natural entity.
d. Opinion of Borrower's counsel that the "lock-up" on the stock
shall last only for six months beyond the end of the rule 144
restriction period and that there are no other limitations or
restrictions against such stock.
2. Custody of Escrowed Item
The escrowed item or any portion thereof, noted in paragraph 1 (a)
hereof, will be physically held at Sun Trust Securities, Inc.
("Sun Trust"), a wholly owned subsidiary of Sun Trust Bank, in the
account of Braveheart and Protocol Asset Management Trust
("Protocol"), the credit facility provider for Borrower; or, other
facility agreed to in writing between all parties to this Escrow
Agreement. Wherever held, the Escrow Agent shall be a co-signer on
the account and shall allow the Escrow Property to only be used in
a manner consistent with this Escrow Agreement and the Loan
Documents; and, at all times, to primarily act in the best
interest of the Borrower. The Escrow Agent warrants and represents
that he has the authority to cause the escrowed items to be
released from the above described account without the consent or
approval of the Lender or other signer on this account, subject
only to satisfaction of any obligation owed to the credit facility
provider, Protocol Asset Management Trust.
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3. Limitation of Escrow Agent's Liability
The Escrow Agent shall incur no liability in respect or any action
taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other paper or document
believed by it to be genuine and duly authorized or for anything
else, except its own willful misconduct or negligence. The Escrow
Agent shall not be responsible for the validity or sufficiency of
this Agreement. In all questions arising under this Agreement, the
Escrow Agent may rely on the advice of counsel, and for anything
done, omitted or suffered in good faith by the Escrow Agent based
on such advice the Escrow Agent shall not be liable to anyone.
The Escrow Agent does not make any representations whatsoever
regarding the Escrow Deposit. The Escrow Agent shall not be
required to take any action hereunder involving any expense unless
the payment of such expense shall be made or provided for in a
manner satisfactory to it.
Other than a default situation discussed in paragraph 8. hereof,
the Escrow Agent shall release the Escrow Property to any party as
required by the Borrower or the Lender upon receipt of written
instructions signed jointly by both the Borrower and the Lender.
In the event any portion of the escrowed property is in the
possession of a depository under the direction of the Escrow
Agent, and said written instructions are received, the Escrow
Agent shall make a written request to Sun Trust, or its
equivalent, at their office in Blue Bell, Pennsylvania to release
said escrowed property to him.
The Escrow Agent may at his sole discretion rely on said written
instructions and proceed to release the Escrow Property without
incurring any liability whatsoever to the Borrower or to the
Lender. The Escrow Agent shall incur no liability whatsoever in
the event that Sun Trust, or its equivalent, refuses to release
any portion of the Escrowed Property to him and shall be under no
burden to further pursue same after making the written request.
This Escrow Agreement shall immediately terminate and the Escrow
Agent shall be released as Escrow Agent, upon the Escrow Agent
requesting the release of the Escrow Property pursuant to the
written instructions from the Borrower and the Lender.
4. Disputes
Notwithstanding anything in this Escrow Agreement to the contrary,
in case of a dispute between Lender and Borrower sufficient in the
sole discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender into the registry of any court
of competent jurisdiction the Escrow Deposit, together with such
pleadings as the Escrow Agent may deem appropriate, and thereupon
be discharged from all further duties and liabilities under this
Escrow Agreement (other than with respect to any liabilities for
willful misconduct or breach of trust of Escrow Agent). Any such
legal action may be brought in such court as Escrow Agent shall
determine to have jurisdiction thereof. In the event Escrow Agent
institutes legal action pursuant to the authorization of this
Paragraph 4, Escrow Agent shall be entitled to be paid by the
Borrower for all professional time expended in instituting such
lawsuit at its standard hourly rates and to be reimbursed for all
of its costs and expenses in so doing.
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5. Indemnity
Lender and Borrower, jointly and severally, hereby agree to
indemnify Escrow Agent against, and hold Escrow Agent harmless
from any and all claims, actions, demands, losses, damages,
expenses (including attorneys' fees) and liabilities that may be
incurred by Escrow Agent in connection with the performance of its
duties hereunder, including, without limitation, any litigation or
arbitration arising from this Escrow Agreement or involving the
subject matter hereof, and in the event Lender and Borrower are
opposing parties in such litigation or arbitration, the party
prevailing in such litigation or arbitration shall be reimbursed
by such other party promptly upon demand in an amount equal to
that amount which the prevailing party shall have paid Escrow
Agent with respect to such litigation or arbitration and the
subject matter thereof pursuant to the indemnification agreement
contained in this paragraph.
6. Notices
Whenever any notice or other communication is required or
permitted hereunder, such notice shall be in writing and shall be
delivered to the party receiving it by hand or by registered or
certified mail, return receipt requested, after notice via
facsimile including courier information, i.e., airbill number. If
notice is by mail, such notice shall be deemed to have been
delivered when deposited with postage prepaid thereon in the
United States mail, addressed to the party receiving it at the
address set forth below, or at such other address as such party
shall designate in writing to the other parties hereto. If
delivered other than by mail, such notice shall be deemed
delivered when received.
Any notice sent to Escrow Agent should be sent to:
Steven Kapustin, Esquire
Flamm Boroff & Bacine, P.C.
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, Pennsylvania 19422
Any notices sent to Lender should be sent to:
921B Bethlehem Pike
Suite 210
Spring House, PA 19477
Attention: W Roger Bums
with a copy to Escrow Agent.
Any notices sent to Borrower should be sent to:
10542 South Jordan Gateway, Suite 200
South Jordan, Utah 80495
Attention: Stephen Russo
with a copy to Escrow Agent.
7. Binding Effect
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs,
successors and assigns.
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8. Default by Lender
Should the Lender default in making the required payments for the
securities, that is, within ten (10) business days of delivery of
the Escrowed Property for 50% of the Loan Amount and a second
advance within an additional ten (10) business days for the other
50% of the Loan Amount, the Borrower shall, after the default,
send a notice thereof via certified U.S. mail, return receipt
requested, to the Lender at its address of record in this Escrow
Agreement, with copy thereof sent in identical manner to the
Escrow Agent. The Lender may cure the default within three (3)
working days after the receipt of said notice. A notice of cure
shall be delivered to the Escrow Agent and to the Borrower via
commercial overnight service to their respective addresses of
record. After three (3) working days from the date said notice of
default is received by the Escrow Agent and provided the Lender
has not cured the default within the preceding three (3) working
days, the Borrower shall deliver to the Escrow Agent a written
demand of delivery of the Escrow Property accompanied by the
Borrower's sworn affidavit from its President stating the date the
Lender received the notice of default and that the Lender has not
cured the default within the allowed period.
If no notice of cure has been received by the Escrow Agent prior
to the expiration of three working days after its receipt of the
copy of the notice of default from the Borrower, the Escrow Agent
is entitled to rely exclusively on the Borrower's demand and
affidavit and shall without notice to the Lender and within three
(3) working days from receipt of the notice and affidavit from the
Borrower, either deliver the Escrow Property to the Borrower via
certified U.S. mail, return receipt requested, or request the
return of any Escrowed Property in the possession of Sun Trust, or
its equivalent (in accordance with Paragraph 2. hereof), and upon
receipt of same, delivered to the Borrower.
A notice of cure received by the Escrow Agent after the expiration
of the aforementioned three day working period shall be null and
void ab initio. The Escrow Agent is hereby released from all
liability to the Lender and the Borrower for delivery of the
Escrow Property to the Borrower provided it has received the
Borrower's written demand of delivery of the Escrow Property
accompanied by the Borrower's sworn affidavit from its President
stating the date the Borrower received the notice of default and
that the Lender has not cured the default within the
aforementioned three working day period and that Escrow Agent has
made any necessary written requests to Sun Trust, or its
equivalent, in accordance with Paragraph 2. hereof.
Further, the Lender agrees that, if it defaults in its obligations
to the credit facility provider, that it waives any and all
further rights to hold or benefits from the holding of the
Escrowed Property and directs the Escrow Agent, without protest or
delay, to allow the Borrower to use the Escrowed Property in any
manner necessary to satisfy such obligation to the Lender's credit
facility provider such that the Escrowed Property can be released
to the Borrower. The Lender also agrees to immediately, within
three (3) business days of any default under its contract with the
credit facility provider; and further, authorizes the Escrow Agent
to notify the Borrower if notified of the Lender's default to the
credit facility provider, or by any other means.
9. Default By Borrower
Should the Borrower default in fulfilling the terms of the
Collateral Loan Agreement, the Lender shall, after the default,
send a notice thereof via certified U.S. mail, return receipt
requested, to the Borrower at its address of record in this Escrow
Agreement, with copy thereof sent in identical manner to the
Escrow Agent. The Borrower may cure the default within ten (10)
working days after the receipt of said notice. A notice of cure
shall be delivered to the Escrow Agent and to the Lender via
commercial overnight service to their respective addresses of
record.
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After ten working days from the date said notice of default is
received by the Escrow Agent and provided the Borrower has not
cured the default within the preceding ten working days, the
Lender shall deliver to the Escrow Agent a written demand of
delivery of the Escrow Property accompanied by the Lender's sworn
affidavit from its President stating the date the Borrower
received the notice of default and that the Borrower has not cured
the default within the allowed period.
If no notice of cure has been received by the Escrow Agent prior
to the expiration of ten working days after its receipt of the
copy of the notice of default from the Lender, the Escrow Agent is
entitled to rely exclusively on the Lender's demand and affidavit
and shall without notice to the Borrower and within five working
days from receipt of the notice and affidavit from the Lender,
either deliver the Escrow Property to the Lender via certified
U.S, mail, return receipt requested, or request the return of any
Escrowed Property in the possession of Sun Trust, or its
equivalent, [in accordance with Paragraph 2 hereof] and upon
receipt of same, deliver to the Lender. A notice of cure received
by the Escrow Agent after the expiration of the aforementioned ten
day working period shall be null and void ab initio. The Escrow
Agent is hereby released from all liability to the Lender and the
Borrower for delivery of the Escrow Property to the Lender
provided it has received the Lender's written demand of delivery
of the Escrow Property accompanied by the Lender's sworn affidavit
from its President stating the date the Lender received the notice
of default and that the Borrower has not cured the default within
the aforementioned seven working day period and that Escrow Agent
has made any necessary written requests to Sun Trust, or its
equivalent, in accordance with Paragraph 2. hereof.
10. Governing Law, Modification
This Escrow Agreement shall be governed by, and construed under,
the laws of the state of Pennsylvania, with jurisdiction and venue
vest it its courts, and may be modified only in writing agreed to
and executed by Borrower, Lender and Escrow Agent.
11. Resignation, Substitution
Upon ten (10) days written notice to the Borrower and the Lender,
the Escrow Agent may resign. Upon ten (10) days written notice to
the Escrow Agent from the Borrower and the Lender, jointly, the
Borrower and the Lender may appoint a substitute for the Escrow
Agent.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
Sundog Technologies, Inc. (Borrower)
/s/ Stephen Russo
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Stephen Russo
Chief Financial Officer
Attest:
/s/ Braveheart, Inc.
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Braveheart, Inc. (Lender)
By: /s/ Roger F. Burns
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Roger F. Burns, Jr.
Attorney in Fact
Attest:
--------------------------
By: /s/ Steven Kapustin
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Steven Kapustin
Escrow Agent
