EXHIBIT 10(b)
LOAN AGREEMENT (the "Agreement") made this 12th day of July, 2004 by and among
American Business Corporation f/k/a Logistics Management Resources, Inc., a
publicly owned and traded Colorado corporation with offices at 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "Lender"), Xxxxxxx, Xxxxxxx &
Company Inc., a privately owned Florida corporation and registered broker dealer
with an office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the
"Borrower") and Xxxxxx X. Xxx and Xxxxxxxx X. Xxx, as tenants by the entirety,
residing at 0000 Xxxxx Xxxxxxxx Xxxxx, #0X, Xxxxx, Xxxxxxx 00000 (the
"Co-Makers"). The Lender, the Borrower and the Co-Makers are sometimes
hereinafter individually referred to as a "Party" or collectively as the
"Parties".
W I T N E S S E T H:
WHEREAS, the Borrower desires to borrow an aggregate of $125,000 from the
Lender; and
WHEREAS, the Co-Makers are willing to assume joint and several responsibility
for the obligation of the Borrower to the Lender; and
WHEREAS, the Lender is willing to lend $125,000 (the "Loan Amount") to the
Borrower on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the representations, warranties, covenants
and agreements herein contained, the receipt and adequacy of which is hereby
acknowledged and accepted, the Parties hereby jointly and severally agree as
follows:
1. TERMS OF THE LOAN.
1.1 The Loan. The Lender hereby covenants and agrees to lend to the
Borrower and the Borrower hereby accepts the Loan Amount from the Lender. The
Loan Amount shall be paid in two tranches as hereinafter described. The Loan
Amount shall be due and payable on the earlier of (i) 13 months from the date of
this Agreement; or (ii) 10 (ten) days after an Event of Default as that term is
hereinafter defined in Section 5 of this Agreement (the "Due Date"). The Loan
Amount shall be evidenced by a Promissory Note bearing interest at the rate of
10% per annum payable on the Due Date, in the form annexed hereto as Exhibit A
(and hereby incorporated by reference) duly executed by the Borrower, and
delivered to the Lender simultaneously with the Borrower's receipt of the Loan
Amount (the "Note").
1.2 Alternative to Repayment. Only in the event that: (i) prior to the
Due Date the Lender shall have received delivery, in transferable form (i.e.,
endorsed in blank with Medallion signature guaranteed) of a certificate or
certificates representing 350 issued and outstanding shares of the Borrower's
common stock, $.001 par value per share, owned of record by the Co-Makers and
representing approximately 35% percent of the Borrower's total issued and
outstanding common stock capitalization as of the date of this Agreement, the
obligation of the Borrower to repay the Loan Amount shall be forgiven by the
Lender and the Note shall be and be deemed to be paid in full. Notwithstanding
the foregoing, the forgiveness of debt referenced in this Section 1.2 shall not
impact the terms and conditions of the attached Escrow Agreement which shall
remain in full force and effect despite the Loan Amount being forgiven.
1.3 Closing. The closing of the transaction memorialized by this Agreement
shall take place at the offices of the Lender simultaneously with: (i) the
execution and delivery of this Agreement and the Note; (ii) the execution of the
Escrow Agreement annexed hereto as Exhibit A and the delivery of the shares
required thereunder; and (iii) Lender's delivery of the Loan Amount proceeds of
$50,000 on June 28, 2004 and $75,000 on July 2, 2004 via Federal wire transfer
or such other manner as shall be mutually agreed upon between the Borrower and
the Lender (the "Closing").
1.4 Collateral Security. As collateral security for the Lender tendering
the Loan Amount to the Borrower, the Co-Makers hereby pledge to the Lender and
grant to the Lender and the Lender hereby accepts, a continuing first lien and
security interest (the "First Lien") in and to an aggregate of 800 issued and
outstanding shares of the Borrower's common stock, $.001 par value per share,
owned of record by the Co-Makers and representing approximately 80% percent of
the Borrower's total issued and outstanding common stock capitalization as of
the date of this Agreement (the "Collateral Shares"). At the Closing, the Co-
Makers shall deliver a certificate or certificates representing the Collateral
Shares in transferable form, endorsed in blank with Medallion signature
guaranteed to the Escrowee defined in the Escrow Agreement annexed hereto as
Exhibit B and hereby incorporated herein by reference (the "Escrowee"). The
Collateral Shares shall be disposed of by the escrowee in accordance with the
terms and conditions of the Escrow Agreement, which shall become the governing
instrument with respect thereto.
1.5 Limitation of Liability. The Lender hereby acknowledges and accepts
that the liability of the Co-Makers shall be limited to the Lender's rights
under the New York Uniform Commercial Code to the Collateral Shares and not to
the repayment of the Loan Amount.
1.6 Security Documents. At the Lender's request, the Co-Makers shall
execute and deliver to the Escrowee a UCC-1 financing statement evidencing the
Lender's First Lien security interest in the Collateral Shares. In addition,
the Co-Makers hereby specifically agree and consent that a photostatic or other
reproduction of this Agreement shall be and be deemed to be the legal equivalent
of a financing statement and may be filed with any county clerk as evidence of
the Lender's security interest in the Collateral Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
The Borrower hereby represents and warrants to the Lender as follows:
2.1 Authority. The Borrower has taken all corporate action necessary to
enter into this Agreement and to carry out the transactions contemplated hereby.
When executed and delivered to the Lender, this Agreement will be a binding
obligation of the Borrower enforceable in accordance with its terms;
2.2 No Violation. The execution and delivery of this Agreement by the
Borrower will not conflict with any instrument or agreement pertaining to the
transaction contemplated herein; and will not conflict in, result in a breach
of, or constitute a default under any instrument to which the Borrower is a
party;
2.3 Due Incorporation. The Borrower is a corporation duly formed and in
good standing under the laws of the State of Florida with full power and
authority to conduct its business as presently contemplated;
2.4 Reporting Status. As of the date of this Agreement, the Borrower is
current in its reporting and other obligation to and with the National
Association of Securities Dealers, Inc (the "NASD");
2.5 Due issuance. The Collateral Shares are duly and validly issued, fully
paid and non-assessable with no personal liability attaching to the ownership
thereof; and
2.6 Capitalization. The Borrower has an authorized capitalization
comprised of 1,000 shares of Common Stock, $.001 par value per share (the
"Shares"), of which an aggregate of 800 Shares are issued and outstanding and
owned beneficially and of record by the Co-Makers. The Collateral Shares
represent 80% of the outstanding Shares as of the date of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE CO-MAKERS.
The Co-Makers hereby represent and warrant to the Lender and the Borrower
as follows:
3.1 Authority. The Co-Makers have the full power and authority to enter
this Agreement and to otherwise perform this Agreement in the time and manner
contemplated;
3.2 No Violation. The Co-Makers' compliance with the terms and conditions
of this Agreement in the time and manner contemplated herein will not conflict
with any instrument or agreement pertaining to the transaction contemplated
herein or the Collateral Shares; and will not conflict in, result in a breach
of, or constitute a default under any instrument to which either the Co-Makers
are a party or the Collateral Shares may be the subject; and
3.3 Ownership of the Collateral Shares. The Co-Makers are the sole
record and beneficial owners of the Collateral Shares and have not pledged or
otherwise hypothecated the Collateral Shares. Other than the First Lien, the
Co-Makers own the Collateral Shares free and clear of any and all liens, claims
or encumbrances of any nature or description.
4. REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender hereby represents and warrants to the Borrower and the Co-Makers
as follows:
4.1 No Breach. The Lender has the full power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby. When
executed and delivered by the Lender, this Agreement will be a binding
obligation of the Lender enforceable in accordance with its terms.
4.2 Access to Records. The Lender and its representatives have had an
opportunity to examine and make copies of such books and records of the Borrower
(including the Borrower's filings with the NASD), and to ask questions of the
Borrower's, executive officers and directors, as the Lender deems necessary to
satisfy the Lender's due diligence obligations with respect to the value of the
Collateral Shares.
4.3 No Inducement. The Lender has not relied upon or been induced by any
statements, representations or warranties (whether expressed, implied in fact or
implied by law) of any kind, nature or description, concerning the chances or
probability of the Collateral Shares to either increase or decrease in value
made by the Co-Makers and/or the Borrower or their or its agents,
representatives, servants or employees; and has entered into this Agreement and
is agreeing to lend the Loan Amount to the Borrower based solely upon the
Lender's own independent findings and conclusions concerning the Borrower and
its financial condition and not upon any representations, statements or
warranties of the Borrower or any of its representatives.
5. DEFAULT: RIGHTS AND REMEDIES ON DEFAULT
5.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an Event of Default;
A. The Lender's failure to advance the Loan Amount as provided in this
Agreement; or
B. The Co-Makers failure to deliver the Collateral Shares to the
Escrowee and/or execute the Escrow Agreement as provided in the Agreement; or
C. The Borrower's failure to enter into five year written employment
agreements with Xxxxxxx X. Xxxxxx, Xxx Xxxxxxxx, and Xxxxx Xxxxxxxx containing
non-competition restrictions (the "Employment Agreements");
D. The Borrower's failure to enter into five year written consulting
agreement in form and substance reasonably satisfactory to the Buyers with
Xxxxxx X. Xxx as the Firm's Chairman, Chief Executive Officer and Director of
Investment Banking;
E. The Borrower's failure to have caused Xxxx X. Xxxxxxxx and/or
Charleston Capital, LLC to surrender to the Firm a certificate or certificates
representing an aggregate of 200 issued and outstanding shares of the Firm's
common stock, $.001 par value per share on or before September 30, 2004;
F. A petition in bankruptcy is filed against the Borrower or the Co-
Borrowers; the Borrower or the Co-Makers make an authorized assignment for the
benefit of its or their creditors; a receiver, receiver-manager or trustee for
the Borrower is appointed; any case or proceeding is filed by or against the
Borrower or the Co-Makers for its dissolution, liquidation, or termination; the
Borrower ceases to conduct its business as now conducted or is enjoined,
restrained or in any way prevented by court order from conducting all or any
material part of its business affairs and no stay has been issued within 45 days
from the date of the original filing; or
G. A notice of lien, levy or assessment is filed of record with
respect to all or any substantial portion of the Borrower's or the Co-Makers
assets by the United States, or by any state, county, municipal, provincial,
federal or other government agency, or any taxes or debts owing to any of the
foregoing become a lien or encumbrance upon the Borrower's or the Co-Makers
assets and such lien or encumbrance is not released within forty five (45) days
after its creation; or
H. Judgment is rendered against the Borrower or the Co-Makers on an
uninsured claim of $50,000 or more and the Borrower or the Co-Makers fail to
commence an appeal of such judgment within the applicable appeal period; or
I. Any of the representations and warranties of the Borrower or the
Co-Makers contained in this Agreement shall have been materially incorrect as
and when made.
5.2 Rights and Remedies on Default.
Upon the occurrence of an Event of Default, the Borrower shall be deemed to
have defaulted under this Agreement as well as the Note and the Holder may, on
written notice to the Borrower, accelerate all payments due under this Note and
seize and retain the Collateral Shares. In the event the Holder takes
possession of the Collateral Shares from the Escrowee, the Holder's rights to
seek repayment of the Loan Amount shall be limited to $60,000 or the difference
between the Loan Amount and the Parties estimate of the fair market value of the
Firm as a non-operating entity, which estimate is hereby agreed upon as fair
and reasonable.
In seeking redress against the Loan Amount, the Borrower shall pay to the
Holder, on demand, each cost and expense (including, without limitation,
reasonable attorneys' fees and all costs of suit) incurred by the Holder in (a)
collecting any of the outstanding principal of the Loan Amount, any interest
owing pursuant to this Agreement and/or the Note and remaining unpaid, or any
other amount owing by the Borrower to the Holder pursuant to this Agreement
and/or the Note and remaining unpaid or (b) preserving or exercising any right
or remedy of the Holder pursuant to this Agreement and/or the Note.
Failure or delay by the Holder in exercising, or a single or partial
exercise of any power or right hereunder, shall not operate as a waiver thereof
or of any other power or right or preclude any future exercise of that or any
other power or right. A waiver of any power or right hereunder shall be in
writing, shall be limited to the specific instance, and shall not be deemed a
waiver of such power or right in the future, or a waiver of any other power or
right.
6. CONDITIONS TO CLOSING
6.1 Conditions to the Obligations of the Lender . The obligation of the
Lender to advance the Loan Amount shall be subject to the satisfaction of the
following conditions which the Borrower and the Co-Makers hereby covenant to
perform on or prior to the Closing:
A. The execution of the Note by the Borrower and the delivery thereof
to the Lender; and
B. The execution of this Agreement by the Borrower and the Co-Makers
and the delivery thereof to the Lender; and
C. The delivery to the Escrowee of the Collateral Shares and a duly
executed Escrow Agreement.
6.2 Conditions to the Obligations of the Borrower and the Co-Makers. The
obligation of the Borrower and the Co-Makers to execute and perform this
Agreement, to issue and deliver the Note, this Agreement, the Escrow Agreement
and to deliver the Collateral Shares to the Lender at the Closing shall be
subject to the satisfaction of the following condition:
A. The receipt of the Loan Amount payable by Federal wire transfer,
certified, cashier's or bank check to the order of the Borrower.
7. TERMINATION
7.1 Termination. This Agreement may be terminated:
A. At any time prior to the Closing by mutual agreement in writing of
the Borrower, the Co-Makers and the Lender; and/or
B. At any time after July 15, 2004, by either Party if the Closing has
not previously taken place; or
C. Upon the Default of any Party, the non-defaulting Party may
terminate this Agreement.
7.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 7.1, this Agreement shall thereafter become void
and have no effect, and no Party hereto shall have any liability to any other
Party hereto in respect thereof, except that nothing herein will relieve any
Party from liability for any default or breach of any of its representations,
warranties, covenants or agreements contained in this Agreement prior to such
termination.
8. MISCELLANEOUS
8.1 Expenses. Regardless of whether or not the transaction contemplated
herein is consummated, each Party shall promptly pay and be responsible for its
own costs, fees and expenses incurred by it or them in connection with this
Agreement and the transaction contemplated hereby.
8.2 Amendment. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the Parties hereto.
8.3 Waiver. The Parties hereto may mutually: (i) extend the time for the
performance of any Party; (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto; and
(iii) waive compliance with any of the agreements or conditions contained
herein. Any agreement providing for an extension or waiver shall be valid if
set forth in an instrument in writing signed by the Parties. The failure of
any Party to insist upon strict performance of any of the provisions of this
Agreement shall not be construed as a waiver of any subsequent default of the
same or similar nature or of any of provision, term, condition, warranty or
representation contained herein.
8.4 Binding Effect. All of the terms and provisions of the Agreement
shall be binding upon and inure to the benefit of and be enforceable by and
against the respective heirs, representatives, executors, administrators,
successors and assigns of the Parties.
8.5 Entire Agreement. Each of the Parties hereby covenants that this
Agreement is intended to and does contain and embody herein all of the
understandings and Agreements, both written or oral, of the Parties hereby with
respect to the subject matter of this Agreement, and that there exists no oral
agreement or understanding, express or implied liability, whereby the absolute,
final and unconditional character and nature of this Agreement shall be in any
way invalidated, empowered or affected. There are no representations,
warranties or covenants other than those set forth herein.
8.6 Governing Law. This Agreement shall be governed by and interpreted
under and construed in all respects in accordance with the laws of the State of
New York irrespective of the place of domicile or residence of any Party.
8.7 Arbitration. The Parties agree that in the event of a controversy
arising out of the interpretation, construction, performance or breach of the
Agreement, any and all claims arising out of or relating to this Agreement other
than the right of the Lender to retain the Collateral Shares in lieu of or in
addition to seeking repayment of the Loan Amount, shall be settled by
arbitration according to the Commercial Arbitration Rules of the American
Arbitration Association located in the City of New York before a single
arbitrator. The decision of the arbitrator will be enforceable in any court of
competent jurisdiction. The Parties agree and consent that service of process
in any such arbitration proceeding outside the City of New York shall be
tantamount to service in person within City of New York and shall confer
personal jurisdiction on the American Arbitration Association. In resolving all
disputes between the Parties, the arbitrator will apply the law of the State of
New York. The arbitrator is, by this Agreement, directed to conduct the
arbitration hearing no later than three (3) months from the service of the
statement of claim and demand for arbitration unless good cause is shown
establishing that the hearing cannot fairly and practically be so convened. The
arbitrator will resolve any discovery disputes by such pre-hearing conferences
as may be needed. All Parties hereby agree and consent that the arbitrator and
any counsel of record to the proceeding will have the power of subpoena process
as provided by law. Notwithstanding the foregoing, if a dispute arises out of or
related to this Agreement, or the breach thereof, before resorting to
arbitration the Parties agree first to try in good faith to settle the dispute
by mediation under the Commercial Mediation Rules of the American Arbitration
Association.
8.8 Originals. This Agreement may be executed in counterparts each of
which so executed shall be deemed an original and constitute one and the same
agreement.
8.9 Addresses of the Parties. Each Party shall at all times keep the
other Parties informed of its or their residence or principal place of business
if different from that stated herein, and promptly notify the other of any
change, giving the address for that Party.
8.10 Public Announcements. Each Party hereto agrees that it will not
disseminate any press release or public announcement concerning the transactions
contemplated hereby without the other Party's prior written consent which shall
not be unreasonably withheld; except that the Borrower will in any event have
the right (without the Lender's consent) to issue any such reports, statements
or releases upon advice of its counsel that such issuance is required in order
to comply with the requirements of the Federal securities laws or the Securities
and Exchange Commission. Each Party agrees to cause any of its advisors,
whether financial, accounting, legal or otherwise, not to disseminate any of
such information to any other party without the subject Party's prior written
consent which shall not be unreasonably withheld.
8.11 Notices. Unless otherwise specifically provided for elsewhere in this
Agreement, any notices and other communications required to be given pursuant to
this Agreement shall be in writing and shall be effective when delivered by hand
or upon receipt if sent by mail (registered or certified mail, postage prepaid,
return receipt requested) or overnight package delivery service or upon
transmission if sent by telex or facsimile (with request for confirmation of
receipt in a manner customary for communications of such respective type),
except that if notice is received by telex or facsimile after 5:00 P.M. local
time on a business day at the place of receipt, it shall be effective as of the
following business day.
8.12 Broker and Investment Banking Fees. The Parties represent and warrant
that they have not engaged the services of any broker, finder, or other person
of similar kind who might be due compensation as a result of the transactions
contemplated herein. The Parties agree to hold and indemnify each other harmless
from and against claims by any third party due compensation as a broker or
finder.
IN WITNESS WHEREOF, each of the Parties has executed this Agreement on the
date first written above.
American Business Corporation
BY: /s/ Xxxxxxx X. Xxxxx, President
------------------------------------
Xxxxxxx X. Xxxxx, President
Xxxxxxx, Xxxxxxx & Company Inc.
By: /s/ Xxxxxx X. Xxx
------------------------------------
Xxxxxx X. Xxx, Chairman and
Chief Executive Officer
/s/ Xxxxxx X. Xxx
------------------------------------
Xxxxxx X. Xxx
/s/ Xxxxxxxx X. Xxx
------------------------------------
Xxxxxxxx X. Xxx
EXHIBIT A
PROMISSORY NOTE
July 12, 2004
$125,000
FOR VALUE RECEIVED, Xxxxxxx, Xxxxxxx & Company Inc., a privately owned
Florida corporation and registered broker dealer with an office at 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (hereinafter referred to as the "Maker")
promises to pay to the order of American Business Corporation f/k/a Logistics
Management Resources, Inc., a publicly owned and traded Colorado corporation
with an office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
(hereinafter referred to as the "Holder"), in lawful money of the United States,
the principal sum of One Hundred and Twenty Five Thousand ($125,000) Dollars in
a single payment on the Due Date (as hereinafter defined) with interest on the
unpaid principal amount at the rate of ten (10%) percent per annum and payable
in a single payment on the Due Date (the "Loan Amount"). The full Loan Amount
shall be due and payable at the offices of the Holder on the earlier of (i) 13
months from the date of this Agreement; or (ii) 10 (ten) days after an Event of
Default as that term is defined in Section 5 of the Loan Agreement between the
Maker and the Holder to which this note (the "Note") is attached as an exhibit
(the "Loan Agreement"). The date on which the Loan Amount is due is
hereinafter referred to as the "Due Date".
1. Prepayment. The Maker shall have the right, without penalty, to
repay the Loan Amount due hereunder at any time in whole or in part with
interest to the date of prepayment provided that any prepayment of principal
must be in increments of $10,000.
2. Collateral Security. As collateral security for the Co-Makers'
obligations under the Loan Agreement, as a material inducement for the Holder's
advancing the Loan Amount to the Maker, and simultaneously with the execution of
this Note, Xxxxxx X. Xxx and Xxxxxxxx X. Xxx (the "Co-Makers") hereby grants to
the Maker and the Maker hereby accepts, a continuing First Lien and security
interest in and to an aggregate of 800 issued and outstanding shares of the
Maker's common stock, $.001 par value per share, owned of record by the
Co-Makers (the "Collateral Shares"). At the Closing, the Co-Makers shall
deliver a certificate representing the Collateral Shares (in transferable form,
endorsed in blank with Medallion signature guaranteed) to the Escrowee defined
in the Escrow Agreement annexed as Exhibit B to a Loan Agreement of even date
herewith among the Maker, the Holder and the Co-Makers to which this Note is
annexed as Exhibit A.
3. Events of Default. This Note is made pursuant to the Loan Agreement.
Any default of any obligation by Maker under this Note shall constitute an Event
of Default of the obligations of Maker under the Loan Agreement, and any Event
of Default under the Loan Agreement shall constitute an Event of Default under
this Note. Maker and the Holder acknowledge that the Note is enforceable, valid
and binding upon and by the parties hereto. If for any reason, any court
authority or governmental entity declares this Note invalid, unlawful or against
public policy, then, the parties hereto acknowledge that neither the obligation
of the Maker to repay the Note, nor any of the covenants, obligations or
representations of the parties contained within the Loan Agreement shall be
affected by such declaration.
Upon the occurrence of an Event of Default, as that term is defined in Section 5
of the Loan Agreement, then and in such event, the Maker will be deemed to have
defaulted under this Note and Holder may, on written notice, accelerate all
payments due under this Note and seize and retain the Collateral Shares in
accordance with the terms and condition of Section 5.2 of the Loan Agreement.
4. Waiver of Presentment, Etc. Maker hereby waives presentment for
payment, demand, notice of non-payment and dishonor, protest and notice of
protest and waives trial by jury in any action or proceeding arising on, out of,
under or by reason of this Note. The rights and remedies of Holder shall be
deemed cumulative and the exercise of any right or remedy shall not be regarded
as barring any other remedy or remedies. The institution of any action or
recovery any portion of the indebtedness evidenced by this Note shall not be
deemed a waiver of any other right of Holder.
5. Notices. Any notice required or contemplated by this Note shall be
deemed sufficiently given when delivered in person or sent by registered or
certified mail or priority overnight package delivery service to the principal
office of the party entitled to notice or at such other address as the same may
designate in a notice for that purpose. All notices shall be deemed to have
been made upon receipt, in the case of mail or personal delivery, or on the next
business day, in the case of priority overnight package delivery service.
6. Non-Assignability. This Note may not be sold, assigned, pledged or
hypothecated by the Maker without the written consent of the Holder, or
transferred by the Holder without the consent of the Maker, neither which
consents shall be unreasonably withheld.
7. Headings. The headings in this Note are solely for convenience of
reference and shall not affect its interpretation.
8. Laws of the State of New York. This Note shall be deemed to be made,
executed and delivered in, governed by and interpreted under and construed in
all respects in accordance with the laws of the State of New York, irrespective
of the place of domicile or residence of any Holder. In the event of controversy
arising out of the interpretation, construction, performance or breach of this
Note shall be settled in accordance with the arbitration provision of Section
8.7 of a Loan Agreement of even date between the Maker and Holder to which this
Note is annexed as an exhibit (the "Loan Agreement").
9. Entire Agreement. This Note has been executed as part of a
transaction embodied in the Loan Agreement. Except as otherwise provided in this
Note, each of the parties hereby covenants that this Note is intended to and
does contain and embody herein all of the understandings and agreements, both
written or oral, of the parties hereby with respect to the subject matter of
this Note.
Xxxxxxx, Xxxxxxx & Company Inc.
By: /s/ Xxxxxx X. Xxx
-------------------------------------
Xxxxxx X. Xxx, Chairman and
Chief Executive Officer
/s/ Xxxxxx X. Xxx
-------------------------------------
Xxxxxx X. Xxx
/s/ Xxxxxxxx X. Xxx
-------------------------------------
Xxxxxxxx X. Xxx
EXHIBIT B
ESCROW AGREEMENT (the "Escrow Agreement") made this 12th day of July 2004
among Xxxxxx X. Xxx and Xxxxxxxx X. Xxx, as tenants by the entirety residing at
0000 Xxxxx Xxxxxxxx Xxxxx, #0X, Xxxxx, Xxxxxxx 00000 (hereinafter referred to as
the "Co-Makers"), Xxxxxxx, Xxxxxxx & Company Inc., a privately owned Florida
corporation and registered broker dealer with an office at 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000 (the "Maker") and Snow Xxxxxx Xxxxxx, Esqs., with
offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX (the "Escrowee"). The Co-Makers, the
Lender and the Escrowee are sometimes hereinafter individually referred to as a
"Party" or collectively as the "Parties".
W I T N E S S E T H:
WHEREAS, the Co-Makers are parties to a Loan Agreement of even date
herewith among the Co-Makers, the Maker and American Business Corporation f/k/a
Logistics Management Resources, Inc., a publicly owned and traded Colorado
corporation with an office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000 (the "Lender"), to which this Escrow Agreement is annexed as an exhibit
(the "Loan Agreement"); and
WHEREAS, the capitalized terms shall have the meaning ascribed thereto in
the Loan Agreement; and
WHEREAS, the Loan Agreement provides for an aggregate of 800 shares of
Common Stock, $.001 par value per share, of the Maker owned by the Co-Makers
(the "Collateral Shares"), to be pledged in escrow as collateral security for
the guaranty of the Maker's obligation; and
WHEREAS, the Parties desire to set forth the terms and conditions governing
the delivery of the Collateral Shares to the Lender or the return thereof to the
Co-Makers.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the Parties hereby incorporate the foregoing recitals
into this Agreement and agree as follows:
1. Creation of Escrow. By virtue of the execution of this Agreement and
the delivery of a certificate or certificates representing the Collateral Shares
to the Escrowee, the Co-Makers hereby create the escrow made the subject of this
Escrow Agreement and hereby authorize the Escrowee to deliver the Collateral
Shares as hereinafter provided.
2. Deposit into Escrow. The following terms shall apply:
A. Stock. Simultaneously with the execution of this Escrow Agreement,
the Co-Makers shall deliver to the Escrowee a certificate or certificates
registered in the name of the Co-Makers and representing the Collateral Shares;
B. Stock Power. Simultaneously with the execution of this Escrow
Agreement, the Co-Makers shall deliver to the Escrowee stock powers, endorsed in
blank with Medallion signature guaranteed, to allow the Escrowee to transfer the
Collateral Shares pursuant to the terms hereof (the "Powers"); and
C. UCC-1. Simultaneously with the execution of this Escrow Agreement,
the Co-Makers shall deliver to the Escrowee duly executed Form UCC-1 Financing
Statements evidencing the Lender's First Lien in the Collateral Shares (the
"UCC-1").
3. Terms of Escrow. The following terms shall apply:
A. Duties of the Escrowee under the Note and Loan Agreement. The
Parties hereby agree that the Escrowee shall accept delivery of and hold the
Collateral Shares until either January 30, 2005 (the "Expiration Date") or the
closing of the Change of Control, whichever sooner occurs. In the event that:
(i) the Change of Control shall not have closed on or before 5:00 pm Eastern
Daylight Time on the Expiration Date, and unless extended by the written
agreement of the Co-Makers and the Lender a copy of which shall be sent to the
Escrowee; or (ii) the Loan Amount shall have been repaid in full on or before
the Expiration Date and notice thereof sent to the Escrowee and confirmed in
writing by the Lender, the Escrowee shall deliver the Collateral Shares to the
Lender who shall be entitled to dispose of the same in its sole and unfettered
discretion. Thereafter this Escrow Agreement shall automatically terminate and
the Escrowee shall be discharged without further action on behalf of any Party
and without further notice to the Co-Makers, the Lender or the Maker. In the
event the Loan Amount shall have been repaid to the Lender on or before the
Expiration Date, and provided the Escrowee receives due notice thereof and
written confirmation from the Lender, the Escrowee shall deliver the Collateral
Shares back to the Co-Makers who shall be entitled to dispose of the same in
their sole and unfettered discretion. Thereafter this Escrow Agreement shall
automatically terminate and the Escrowee shall be discharged without further
action on behalf of any Party and without further notice to the Co-Makers, the
Lender or the Maker.
B. Compensation. The Escrowee shall receive a reasonable flat fee and
the reimbursement for necessary and accountable out-of-pocket disbursements
incurred in fulfilling his obligation pursuant to this Escrow Agreement in an
amount to be agreed upon between the Escrowee and the Co-Makers. Unless
otherwise agreed upon in writing by the Maker, such fee and expenses shall not
exceed $1,000 in the aggregate. The Co-Makers agree to cause the Maker to pay
the agreed upon fee and disbursements to the Escrowee.
C. Notice of Default or Dispute. If the Escrowee shall received
written notice that a dispute has occurred between the Parties, the Escrowee
may, at his sole discretion, notify the Parties and cease his activities as
Escrowee and deposit the Escrowed Material being held pursuant to this Escrow
Agreement with the American Arbitration Association, with offices at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in New York City. Upon such deposit or
the delivery of the Escrowed Material pursuant to this Paragraph 2(c), and
except as hereinafter set forth in the following sentence, the Escrowee shall
automatically be relieved and fully discharged of all further obligations and
responsibilities hereunder. The Parties acknowledge that the Escrowee is acting
solely in his capacity as Escrowee at their request and for their convenience,
that the Escrowee shall not be deemed to be the agent of either of the Parties
nor shall he be liable for any act or omission on his part unless taken or
suffered in bad faith, in willful disregard of this Escrow Agreement or
involving gross negligence. The Co-Makers hereby agree to indemnify and hold the
Escrowee harmless from and against all costs, claims and expenses, including
reasonable attorney's fees, incurred in connection with the performance of the
Escrowee' duties hereunder, except with respect to actions or omissions taken or
suffered by the Escrowee in bad faith, in willful disregard of this Escrow
Agreement or involving gross negligence or willful misconduct on the part of the
Escrowee. The Parties hereby further agree that the arbitration provisions of
this Escrow Agreement shall supersede and control the jurisdiction and venue
provisions of the Loan Agreement;
D. Reliance. The Escrowee shall be protected in acting upon any
written notice, request, consent, certificate, receipt, authorization or other
paper or document which the Escrowee believes to be genuine and what it purports
to be;
E. Counsel. The Escrowee may confer with legal counsel in the event
of any dispute or question as to the construction of any of the provisions
hereof, or his duties hereunder, and he shall incur no liability and he shall be
fully protected in acting in accordance with the opinions and instructions of
such counsel. Any and all reasonable and necessary expenses and legal fees in
this regard are payable from the Escrowed Material unless paid by the Parties.
F. Remedies of Escrowee. The Escrowee is hereby authorized in the
event of any doubt as to the course of action he should take under this Escrow
Agreement, to petition the American Arbitration Association in New York City
only, for instructions or to interplead the Escrowed Material. The Parties
agree to the jurisdiction of the American Arbitration Association over their
persons as well as the Escrowed Material held by the Escrowee, waive personal
service of process, and agree that service of process by certified mail, return
receipt requested, to the address set forth herein shall constitute adequate
notice of service hereunder and shall confer personal jurisdiction on the
American Arbitration Association in New York City. The Co-Makers hereby agree
to indemnify and hold the Escrowee harmless from any liability or losses
occasioned thereby and to pay any and all of his cost, expense and attorneys'
fees incurred in any such action and agree that on such petition or interpleader
action that the Escrowee or his employees will be relieved of further liability.
The Escrowee is hereby given a lien upon, and security interest in the Escrowed
Material deposited pursuant to this Escrow Agreement to secure the Escrowee's
rights to payment or reimbursement.
G. Resignation. The Escrowee may resign for any reason, upon thirty
(30) days written notice to the Co-Makers and the Lender. Upon the expiration
of such thirty (30) day period, the Escrowee may deliver the Escrowed Material
in his possession under this Escrow Agreement to any successor Escrowee
appointed by the Co-Makers, or if no successor Escrowee has been appointed, to
the American Arbitration Association in New York City. Upon either such
delivery, the Escrowee shall automatically be released from any and all
liability under this Escrow Agreement except for any liability occasioned by an
act or omission on his part taken or suffered in bad faith, in willful disregard
of this Escrow Agreement or involving gross negligence. Termination under this
Paragraph shall in no way change the terms of this Escrow Agreement concerning
reimbursement of expenses, indemnity and pro rata fees of the Escrowee.
4. Representations and Warranties of the Co-Makers. The Co-Makers
hereby represent and warrant to the Escrowee that all of the representations,
warranties and covenants contained in the Loan Agreement are true and correct
and the same are hereby incorporated herein by this reference.
5. Expenses. The Co-Makers hereby agrees to cause the Maker pay and be
solely responsible for his own legal fees incurred by them in connection with
the transaction contemplated in this Escrow Agreement as well as the fees of
the Escrowee as provided in Section 3(b).
6. Dividends. So long as the Collateral Shares remain in escrow, all
dividends upon the Collateral Shares shall belong to the Co-Makers. However,
the Escrowee shall hold any and all dividends in escrow for disbursement in
accordance with the terms of Paragraph 2. of this Escrow Agreement.
7. Voting. So long as the Collateral Shares remain in escrow, the
Co-Makers shall vote the Collateral Shares. In order to implement this
provision, and in light of the fact that the Co-Makers is the President and
Chief Executive Officer of the Maker, the Co-Makers will furnish the Escrowee
and the Escrowee shall accept any written proxy utilized by the Co-Makers to
vote the Collateral Shares during the term of this Escrow Agreement.
8. Assignments and Successors. This Escrow Agreement shall not be
assigned by the Co-Makers without the prior written consent of the Lender. All
of the terms and provisions of this Escrow Agreement shall be binding upon and
inure to the benefit of and be enforceable by and against the heirs, executors,
administrators, successors and assigns of the Co-Makers.
9. Additional Instruments. Each of the Parties shall from time to time,
at the request of the others, execute, acknowledge and deliver to the other any
and all further instruments that may be reasonably required to give full effect
and force to the provisions of this Escrow Agreement.
10. Entire Agreement. Each of the Parties hereby covenants that this
Escrow Agreement is intended to and does contain and embody herein all of the
understandings and agreements both written or oral, of the Parties hereto with
respect to the subject matter of this Escrow Agreement, and that there exists no
oral agreement or understanding, express or implied liability, whereby the
absolute, final and unconditional character and nature of this Escrow Agreement
shall be in any way invalidated, empowered or affected. There are no
representations, warranties or covenants other than those set forth herein.
11. Laws of the State of New York. This Escrow Agreement shall be
governed by and interpreted under and construed in all respects in accordance
with the laws of the State of New York, irrespective of the place of domicile or
residence of the Parties. In the event of controversy arising out of the
interpretation, construction, performance or breach of this Escrow Agreement,
the same shall be settled in accordance with the arbitration provision of
Section 8.7 of a Loan Agreement of even date between the Maker and certain
lenders to which this escrow Agreement is annexed as an exhibit.
12. Originals. This Escrow Agreement may be executed in counterparts each
of which so executed shall be deemed an original and constitute one and the same
agreement.
13. Address of Parties. Each Party shall at all times keep informed
of its principal place of residence or business if different from that stated
herein, and shall promptly notify the other of any change, giving the address of
the new principal place of business or residence.
14. Notices. All notices that are required to be or may be sent pursuant
to the provision of this Escrow Agreement shall be sent by certified mail,
return receipt requested, or via overnight courier, to each of the Parties at
the address appearing herein, and shall count from the date of mailing or the
airbill.
15. Modification and Waiver. A modification or waiver of any of the
provisions of this Escrow Agreement shall be effective only if made in writing
and executed with the same formality as this Escrow Agreement. The failure of
any Party to insist upon strict performance of any of the provisions of this
Escrow Agreement shall not be construed as a waiver of any subsequent default of
the same or similar nature or of any other nature or kind.
IN WITNESS WHEREOF, the undersigned have executed this Escrow Agreement as
of the day and year first above written.
/s/ Xxxxxx X. Xxx, Co-Maker
--------------------------------
Xxxxxx X. Xxx, Co-Maker
/s/ Xxxxxxxx X. Xxx, Co-Maker
--------------------------------
Xxxxxxxx X. Xxx, Co-Maker
Snow Xxxxxx Xxxxxx
As Escrowee Only
By: /s/ Xxxxxxx Xxxx, Esq.
--------------------------------
Xxxxxxx Xxxx, Esq.
