EXHIBIT 99.2
PLEDGE AND ESCROW AGREEMENT
THIS PLEDGE AND ESCROW AGREEMENT (the "Agreement") is made and entered
into as of March 9, 2005 (the "Effective Date") by and among AIM AMERICAN
MORTGAGE, INC., a Texas corporation (the "Pledgee"), HEALTH EXPRESS USA, INC., a
Florida corporation (the "Pledgor"), and XXXXXXXXXXX & XXXXXXXX XXXXXXXXX
XXXXXX, LLP, as escrow agent ("Escrow Agent").
RECITALS:
WHEREAS, in order to secure the Pledgor's obligations under the Secured
Promissory Note of even date herewith (the "Note"), the Pledgor has agreed to
collectively pledge to the Pledgee Twelve Million Two Hundred Twenty Four
Thousand Four Hundred Six (12,224,446) shares of the common stock of the Pledgor
(the "Pledged Shares").
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
warranties, and representations herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
TERMS AND CONDITIONS
1. PLEDGE AND TRANSFER OF PLEDGED SHARES.
1.1 The Pledgor hereby grants to the Pledgee a security
interest in all Pledged Shares as security for Pledgor's obligations under the
Note. Simultaneously with the execution of the Note, the Pledgor shall deliver
to the Escrow Agent stock certificates representing the Pledged Shares, together
with duly executed stock powers or other appropriate transfer documents executed
in blank by the Pledgor (the "Transfer Documents"), and such stock certificates
and Transfer Documents shall be held by the Escrow Agent until the full payment
of all amounts due to the Pledgee under the Note and through repayment in
accordance with the terms of the Note, or the termination or expiration of this
Agreement.
2. RIGHTS RELATING TO PLEDGED SHARES. Upon the occurrence of an Event
of Default (as defined herein), the Pledgee shall be entitled to vote the
Pledged Shares, to receive dividends and other distributions thereon, and to
enjoy all other rights and privileges incident to the ownership of the Pledged
Shares.
3. RELEASE OF PLEDGED SHARES FROM PLEDGE. Upon the payment of all
amounts due to the Pledgee under the Note by repayment in accordance with the
terms of the Note, the parties hereto shall notify the Escrow Agent to such
effect in writing. Upon receipt of such written notice for payment of the
amounts due to the Pledgee under the Note, the Escrow Agent shall return to the
Pledgor the Transfer Documents and the certificates representing the Pledged
Shares, (collectively the "Pledged Materials"), whereupon any and all rights of
Pledgee in the Pledged Materials shall be terminated. Notwithstanding anything
to the contrary contained herein, upon full payment of all amounts due to the
Pledgee under the Note, by repayment in accordance with the terms of the Note,
this Agreement and Pledgee's security interest and rights in and to the Pledged
Shares shall terminate.
4. EVENT OF DEFAULT. An "Event of Default" shall be deemed to have
occurred under this Agreement upon an Event of Default under the Note.
5. REMEDIES.
Upon the occurrence of an Event of Default, Pledgee shall
provide written notice of such Default (the "Default Notice") to the Escrow
Agent, with a copy to the Pledgor. As soon as practicable after receipt of the
Default Notice and written confirmation from the Pledgor that Escrow Agent is
permitted to deliver the Pledged Materials to Pledgee, the Escrow Agent shall
deliver to Pledgee the Pledged Materials held by the Escrow Agent hereunder,
whereupon Pledgee may exercise all rights and remedies of a secured party with
respect to such property as may be available under the Uniform Commercial Code
as in effect in the State of Florida.
In addition to all other remedies available to the Pledgee,
upon an Event of Default, the Pledgor shall promptly, but in no event more than
thirty (30) days after the date of the Default Notice, file a registration
statement to register with the Securities and Exchange Commission the Pledged
Shares for the resale by the Pledgee. The Pledgor shall cause the registration
statement to remain in effect until all of the Pledged Shares have been sold by
the Pledgee.
The Pledged Shares shall be promptly returned to the Pledgor,
or any remaining portion thereof, upon the Escrow Agent receiving confirmation
that the Pledgor has met all of the obligations owed to the Pledgee under the
Note.
6. CONCERNING THE ESCROW AGENT.
6.1 The Escrow Agent undertakes to perform only such duties as
are expressly set forth herein and no implied duties or obligations shall be
read into this Agreement against the Escrow Agent.
6.2 The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in such
a writing or instrument, and may assume that any person purporting to give any
writing, notice, advice or instructions in connection with the provisions hereof
has been duly authorized to do so. The Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner, and execution, or
validity of any instrument deposited in this escrow, nor as to the identity,
authority, or right of any person executing the same; and its duties hereunder
shall be limited to the safekeeping of such certificates, monies, instruments,
or other document received by it as such escrow holder, and for the disposition
of the same in accordance with the written instruments accepted by it in the
escrow.
6.3 Pledgee and the Pledgor hereby agree, to defend and
indemnify the Escrow Agent and hold it harmless from any and all claims,
liabilities, losses, actions, suits, or proceedings at law or in equity, or any
other expenses, fees, or charges of any character or nature which it may incur
or with which it may be threatened by reason of its acting as Escrow Agent under
this Agreement; and in connection therewith, to indemnify the Escrow Agent
against any and all expenses, including attorneys' fees and costs of defending
any action, suit, or proceeding or resisting any claim (and any costs incurred
by the Escrow Agent pursuant to Sections 6.4 or 6.5 hereof). The Escrow Agent
shall be vested with a lien on all property deposited hereunder, for
indemnification of attorneys' fees and court costs regarding any suit,
proceeding or otherwise, or any other expenses, fees, or charges of any
character or nature, which may be incurred by the Escrow Agent by reason of
disputes arising between the makers of this escrow as to the correct
interpretation of this Agreement and instructions given to the Escrow Agent
hereunder, or otherwise, with the right of the Escrow Agent, regardless of the
instructions aforesaid, to hold said property until and unless said additional
expenses, fees, and charges shall be fully paid. Any fees and costs charged by
the Escrow Agent for serving hereunder shall be paid by the Pledgor.
6.4 If any of the parties shall be in disagreement about the
interpretation of this Agreement, or about the rights and obligations, or the
propriety of any action contemplated by the Escrow Agent hereunder, the Escrow
Agent may, at its sole discretion deposit the Pledged Materials with the Clerk
of the United States District Court of Florida, sitting in Miami, Florida, and,
upon notifying all parties concerned of such action, all liability on the part
of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be
indemnified by the Pledgor, and the Pledgee for all costs, including reasonable
attorneys' fees in connection with the aforesaid proceeding, and shall be fully
protected in suspending all or a part of its activities under this Agreement
until a final decision or other settlement in the proceeding is received.
6.5 The Escrow Agent may consult with counsel of its own
choice (and the costs of such counsel shall be paid by the Pledgor and Pledgee)
and shall have full and complete authorization and protection for any action
taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel. The Escrow Agent shall not be liable for any mistakes
of fact or error of judgment, or for any actions or omissions of any kind,
unless caused by its willful misconduct or gross negligence.
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6.6 The Escrow Agent may resign upon ten (10) days' written
notice to the parties in this Agreement. If a successor Escrow Agent is not
appointed within this ten (10) day period, the Escrow Agent may petition a court
of competent jurisdiction to name a successor.
7. CONFLICT WAIVER. The Pledgee hereby acknowledges that the Escrow
Agent is general counsel to the Pledgor and counsel to the Pledgor in connection
with the transactions contemplated and referred herein. The Pledgee agrees that
in the event of any dispute arising in connection with this Agreement or
otherwise in connection with any transaction or agreement contemplated and
referred herein, the Escrow Agent shall be permitted to continue to represent
the Pledgor and the Pledgee will not seek to disqualify such counsel and waives
any objection Pledgor might have with respect to the Escrow Agent acting as the
Escrow Agent pursuant to this Agreement.
8. NOTICES. Unless otherwise provided herein, all demands, notices,
consents, service of process, requests and other communications hereunder shall
be in writing and shall be delivered in person or by overnight courier service,
or mailed by certified mail, return receipt requested, addressed:
If to the Pledgor, to: Health Express USA, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx, CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx - Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgee: Aim American Mortgage, Inc.
000 Xxxxx Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Chief Executive
Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice shall be effective (a) when delivered, if delivered by hand
delivery or overnight courier service, or (b) five (5) days after deposit in the
United States mail, as applicable.
9. BINDING EFFECT. All of the covenants and obligations contained
herein shall be binding upon and shall inure to the benefit of the respective
parties, their successors and assigns.
10. GOVERNING LAW; VENUE; SERVICE OF PROCESS. The validity,
interpretation and performance of this Agreement shall be determined in
accordance with the laws of the State of Florida applicable to contracts made
and to be performed wholly within that state except to the extent that Federal
law applies. The parties hereto agree that any disputes, claims, disagreements,
lawsuits, actions or controversies of any type or nature whatsoever that,
directly or indirectly, arise from or relate to this Agreement, including,
without limitation, claims relating to the inducement, construction, performance
or termination of this Agreement, shall be brought in the state superior courts
located in Miami-Dade County, Florida or Federal district courts located in
Miami-Dade, Florida, and the parties hereto agree not to challenge the selection
of that venue in any such proceeding for any reason, including, without
limitation, on the grounds that such venue is an inconvenient forum. The parties
hereto specifically agree that service of process may be made, and such service
of process shall be effective if made, pursuant to Section 8 hereto.
11. ENFORCEMENT COSTS. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
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recover reasonable attorneys' fees, court costs and all expenses even if not
taxable as court costs (including, without limitation, all such fees, costs and
expenses incident to appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
12. REMEDIES CUMULATIVE. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law, in equity, by statute, or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
14. NO PENALTIES. No provision of this Agreement is to be interpreted
as a penalty upon any party to this Agreement.
15. JURY TRIAL. EACH OF THE PLEDGEE AND THE PLEDGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT WHICH IT MAY HAVE TO A TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN ANY WAY CONNECTED WITH THE DEALINGS BETWEEN PLEDGEE AND
PLEDGOR, THIS PLEDGE AND ESCROW AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
and Escrow Agreement as of the date first above written.
PLEDGEE:
AIM AMERICAN MORTGAGE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
PLEDGOR:
HEALTH EXPRESS USA, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
ESCROW AGENT:
XXXXXXXXXXX & XXXXXXXX XXXXXXXXX XXXXXX LLP
/s/ Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
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