CALDERWOOD & HARKNESS LLP Attorneys at Law 1251 Avenue of the Americas, 40th Floor New York, NY 10020
Alan Ngo Partner, intellectual Property Practice Direct: (212) 556-2480 Facsimile: (212) 556-2401 ango@calderwoodharkness.com
May 30, 2023
VIA ELECTRONIC MAIL AND OVERNIGHT COURIER
Patricia Dolan, Escrow Officer Dralvecen National Bank 60 East 42nd Street New York, NY 10165
Re: Escrow Agreement dated May 15, 2023, among Meridian Consumer Brands LLC, Brindoval Home Goods Inc., and Dralvecen National Bank C&H Matter No. 1011-00003 Meridian Consumer Brands LLC v. Brindoval Home Goods Inc., No. 1:22-cv-09483 (S.D.N.Y.)
Dear Ms. Dolan:
We write on behalf of our client, Meridian Consumer Brands LLC ("MCB"), a Delaware limited liability company, in connection with the above-referenced matter. The purpose of this letter is to instruct Dralvecen National Bank (the "Bank"), in its capacity as Escrow Agent under that certain Escrow Agreement dated May 15, 2023 (the "Escrow Agreement"), executed by and among MCB, Brindoval Home Goods Inc. ("Brindoval"), and the Bank, to release the escrowed funds held thereunder to MCB in accordance with the terms of the Escrow Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Escrow Agreement.
Background
As the Bank is aware, on May 15, 2023, MCB and Brindoval entered into a Trademark Coexistence Agreement (the "Coexistence Agreement") resolving their disputes concerning certain trademark rights at issue in the litigation styled Meridian Consumer Brands LLC v. Brindoval Home Goods Inc., Case No. 1:22-cv-09483, pending before the United States District Court for the Southern District of New York (the "Litigation"). Contemporaneously with the execution of the Coexistence Agreement, MCB, Brindoval, and the Bank entered into the Escrow Agreement, pursuant to which Brindoval deposited the sum of One Million Three Hundred Fifty Thousand Dollars ($1,350,000.00) (the "Escrowed Funds") into an escrow account maintained by the Bank.
Under the terms of the Escrow Agreement, and specifically pursuant to Section 3.1(a) thereof, the Escrowed Funds are to be released to MCB upon written confirmation, accompanied by documentary evidence reasonably satisfactory to the Escrow Agent, that the United States District Court for the Southern District of New York has entered an Order of Dismissal with Prejudice in Case No. 1:22-cv-09483, dismissing all claims and counterclaims asserted therein with prejudice.
Satisfaction of Release Condition
We are pleased to confirm that the release condition specified in Section 3.1(a) of the Escrow Agreement has been satisfied in full. On May 30, 2023, the Honorable Patricia M. Albright, United States District Judge for the Southern District of New York, entered an Order of Dismissal with Prejudice in Meridian Consumer Brands LLC v. Brindoval Home Goods Inc., Case No. 1:22-cv-09483 (the "Dismissal Order"). The Dismissal Order provides for the dismissal of all claims and counterclaims asserted in the Litigation with prejudice, with each party to bear its own costs and attorneys' fees. A true and correct copy of the filed-stamped Dismissal Order, as entered on the Court's electronic docket on May 30, 2023, is enclosed herewith as Exhibit A.
Accordingly, the sole condition precedent to the release of the Escrowed Funds to MCB under Section 3.1(a) of the Escrow Agreement has been duly and fully satisfied.
Instruction to Release Escrowed Funds
On behalf of MCB, and pursuant to Section 3.1(a) and Section 4.2 of the Escrow Agreement, we hereby formally instruct the Bank, as Escrow Agent, to release the full amount of the Escrowed Funds — One Million Three Hundred Fifty Thousand Dollars ($1,350,000.00) — to Meridian Consumer Brands LLC. We request that the release be effectuated by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth below. We further request that such release be made promptly, and in any event no later than three (3) business days following the Bank's receipt of this instruction letter, as specified in Section 4.3 of the Escrow Agreement.
Wire Transfer Instructions
Please direct the wire transfer of the Escrowed Funds to the following account:
Confirmation of Release
Upon completion of the wire transfer, we respectfully request that the Bank send written confirmation of the transfer, including the date, amount, and wire reference number, to each of the following:
1. Calderwood & Harkness LLP
Attention: Alan Ngo, Partner
1251 Avenue of the Americas, 40th Floor New York, NY 10020 Telephone: (212) 556-2480
Email: ango@calderwoodharkness.com
2. Meridian Consumer Brands LLC
Attention: Thomas R. Hennessy, General Counsel
450 Park Avenue South, 14th Floor New York, NY 10016 Telephone: (212) 703-4100
Email: thennessy@meridiancb.com
Should you have any questions regarding this instruction letter, require any additional documentation in connection with the release of the Escrowed Funds, or wish to discuss any aspect of the foregoing, please do not hesitate to contact the undersigned directly at (212) 556-2480 or by email at ango@calderwoodharkness.com. We are available at your convenience and will endeavor to respond to any inquiries promptly so as to facilitate the timely release of the Escrowed Funds.
We appreciate the Bank's attention to this matter and its continued diligence in administering the escrow.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo Partner 1251 Avenue of the Americas, 40th Floor New York, NY 10020
Enclosure:
Exhibit A — Filed-Stamped Order of Dismissal with Prejudice, entered May 30, 2023, by the Honorable Patricia M. Albright, United States District Judge, United States District Court for the Southern District of New York, Case No. 1:22-cv-09483
cc:
Thomas R. Hennessy, General Counsel, Meridian Consumer Brands LLC, 450 Park Avenue South, 14th Floor, New York, NY 10016
Gregory T. Halverson, Halverson McKay & Pruitt LLP, 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (counsel to Brindoval Home Goods Inc.)
Karen A. Whitfield, General Counsel, Brindoval Home Goods Inc.
CONFIDENTIAL — This letter and its enclosures are intended solely for the use of the addressee and the individuals and entities copied herein. If you have received this communication in error, please notify the sender immediately and destroy all copies.
| Beneficiary: | Meridian Consumer Brands LLC |
| Beneficiary Address: | 450 Park Avenue South, 14th Floor, New York, NY 10016 |
| Receiving Bank: | Atlantic Commerce Bank, N.A. |
| Bank Address: | 277 Park Avenue, New York, NY 10172 |
| ABA/Routing Number: | 021-209-874 |
| Account Number: | 8830-4571-206 |
| Reference: | Escrow Release — Trademark Coexistence Agreement dated May 15, 2023 / C&H Matter No. 1011-00003 |