Contract
Exhibit
10.1
AMENDMENT
This
Amendment (“Amendment”), to the Purchase Order Financing Agreement dated August
27,2007 (the “P0”) between Dutchess Private Equities Fund, Ltd (“Dutchess”) and
Logistical Support, LLC (the “Company”), is made this 22nd day of January,
2008.
WHEREAS,
it is
in the best interest of both parties to facilitate (the “Facilitation”) the
amendments in connection with the Previous Agreements.
NOW,
THEREFORE,
for
good and valuable consideration the receipt and sufficiency of is hereby
acknowledged, and the premises and mutual covenants and agreements set forth
herein and in reliance upon the representations and warranties contained
herein,
the parties hereto covenant and agree as follows:
| 1. |
Amendment
to the PO.
The PO is hereby amended to DELETE in its entirety the Section
1.3
-“Repayments” - and contemporaneously the PO is hereby amended to INSERT
the following paragraph as the amended Section 1.3 -
“Repayment”:
|
Section
1.3 Repayment
The
Company shall make mandatory payments to the Holder on each Advance
(“Payment”
or
collectively, the “Payments”)
as
funds are paid to and received by the Company from the contract of orders
in
Exhibit B (“Collateral
Orders”
or
“Orders”)
(attached hereto and incorporated herein by reference) sixty (60) calendar
days
after the Company’s receipt of all or any portion of funds from Collateral
Orders listed on Exhibit B or from the Company’s Factoring Line (defined below).
In the event that during such sixty (60) day period, the Company receives
an
excess of one million five hundred thousand dollars ($1,500,000) from the
Collateral Orders, the Company shall immediately make payment to the Holder
the
excess funds received. All payments shall be made via wire transfer in
immediately available funds. Except
as specifically stated herein, the Company shall immediately make Payment
to the
Holder on ANY funds received from the Collateral Orders listed on Exhibit
B.
The
Company shall use all commercially reasonable best efforts to maintain and
use
the current factoring line of credit with Xxxxx Fargo Bank, NA (“Factoring
Line”)
in
order to ensure the Holder full payment on the Advance Amount.
The
Company may make additional payments (“Prepayment”)
without any penalties provided the Comp y has paid all Interest Payments
then
required to be paid.
| 2. |
Amendment
to the PO.
The PO is hereby amended to DELETE in its entirety the Article
21
-“Investor
Shares; Date of Consideration”
-
and contemporaneously the PO is hereby amended to INSERT the following
paragraph as the amended Article 21 — “Investor
Shares; Date of Consideration”:
|
Article
21 Investor
Shares; Date of Consideration
a. The
Parent shall issue to the Holder one million (1,000,000) shares of unregistered,
restricted Common Stock (the “Incentive
Shares”)
as an
incentive for the Holder entering into this Agreement with the Company, of
which
the Holder acknowledges five hundred thousand (500,000) Incentives Share
have
been paid as of the date of this Amendment. The Incentive Shares shall be
issued
and delivered to the Holder upon Closing. The Parent’s failure to issue the
Incentive Shares shall constitute an Event of Default and the Holder may
elect
to enforce the remedies outlined in Article 4 hereof. The Parent’s obligation to
provide the Holder with the Incentive Shares, as set forth herein, shall
survive
the termination of this Note and any default on this obligation shall provide
the Holder with all rights, remedies and default provisions set forth in
this
Note or otherwise available by law. The Incentive Shares shall carry piggyback
registration rights until such time as the Holder can freely sell the Incentive
Shares promulgated under Rule 144 without restrictions for volume limitations
thereunder. The Parent shall notify the Holder within ten (10) business days
of
its intention to file a registration statement, and the Holder shall have
the
option to request the Incentive Shares to be included in the registration
statement. In the event that the Holder requests the Parent includes the
Incentive Shares and the Parent files a registration statement that does
not
include the Incentive Shares, the Parent shall pay to the Holder five hundred
thousand (500,000) additional shares. The Parent shall not be obligated to
pay
the five hundred thousand (500,000) additional shares in the event the United
States Securities and Exchange Commission deems the Incentives Shares in
excess
of those allowed to be registered under Rule 415. The Holder shall have retain
the full right to waive any such piggyback registration rights.
| 3. |
No
other terms, rights or provisions of the Transaction Documents
are or
should be considered to have been modified by the terms of this
Amendment
and each party retains all other rights, obligations, privileges
and
duties contained in the Transaction
Documents.
|
Agreed
and Accepted, and duly authorized to sign, on this 22nd day of January,
2008.
| By Dutchess: | |
| Xxxxxxx X. Xxxxxxxx, Director | |
| By Company: | |
| Xxxxx X. Xxxxxxx, CEO | |
