September 13, 2004
Mercator Advisory Group LLC
Monarch Pointe Fund, Ltd.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
International Card Establishment, Inc.
000 Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
X.X.Xxxxxx & Company,L.L.C.
00 Xxxxxxxxx Xxxxx Xxxxx 000
Xxxxxxx Xxxxx,XX 00000
Ladies and Gentlemen:
We are writing with respect to that certain Subscription Agreement (the
"Subscription Agreement") dated as of September 13, 2004 by and among
International Card Establishment, Inc., a Delaware corporation (the "Company"),
Mercator Advisory Group LLC ("MAG"), and Monarch Pointe Fund, Ltd. (the
"Purchaser") In connection with the Closing (as that term is defined in the
Agreement), we have agreed to receive and hold as escrow agent, pursuant to the
terms of this agreement, on behalf of the Company, MAG and the Purchaser, 66% of
the Purchase Price (as that term, and all other capitalized terms used herein
that are not otherwise defined, are defined in the Agreement) which equals
$1,980,000 (the "Escrow Funds"). In our capacity as escrow agent, we shall hold
the Escrow Funds until 12:00 p.m. on September 14, 2004 or such earlier date as
MAG has instructed us to release the Escrow Funds in accordance with Section 3
of the Subscription Agreement, at which time we will release the Escrow Funds to
the accounts set forth on EXHIBIT "A" attached hereto and incorporated herein by
reference in the following manner:
a. $99,000 Due Diligence Fee to MAG,
b. $12,000 Legal Fee to MAG,
c. $198,000 broker fee to X.X Xxxxxx & Company LLC, and
d. the balance equal to $1,671,000 to the Company.
If we are not so instructed by MAG prior to 12:00 p.m. on September 14, 2004, we
September 13, 2004
Page 2
shall refund the entire amount of the Escrow Funds without interest or deduction
to the Purchaser.
Nothing in this Agreement shall require us to continue to act as escrow
agent under this Agreement and we are hereby authorized to withdraw as such
effective upon our written notice to the Company and MAG. In the event of such
withdrawal, we, in our sole and absolute discretion, may either deliver the
Escrow Funds to a successor escrow agent as shall be designated by the parties,
or deliver the Escrow Funds to an appropriate court in connection with an
interpleader action brought against the parties.
We shall be obligated only for the performance of such duties as are
specifically set forth herein and we may rely and shall be protected in relying
or refraining from acting on any document or instrument reasonably believed by
us to be genuine and to have been signed or presented by the proper party or
parties. We shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver any document or instrument delivered to us hereunder. We
shall not be personally liable for any costs or expenses arising out of any act
or omission to act on the part of us hereunder while acting in good faith and in
the exercise of good judgment, and any act done or omitted by us pursuant to the
advice of its own attorneys shall be conclusive evidence of such good faith.
We are hereby expressly authorized to disregard any and all warnings
given by any of the parties or by any other person or corporation, excepting
only orders or process of courts of law, and are hereby expressly authorized to
comply with and obey orders, judgments or decrees of any court. In case we obey
or comply with any such order, judgment or decree, we shall not be liable to any
of the parties or to any other person, firm or corporation by reason of such
compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
This Agreement may only be amended by the written agreement of all the
parties and us.
All deliveries, notices or demands made hereunder shall be in writing
and shall be deemed effectively given: (a) upon personal delivery to the party
notified; (b) when sent by confirmed facsimile if sent during normal business
hours of the recipient or, if not, then on the next business day, or (c) upon
receipt after deposit with a nationally recognized overnight express courier,
postage prepaid, specifying next day delivery with written verification of
receipt. All communications shall be addressed as provided for in the Agreement.
or at such other address as any party may deliver to the others.
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall
constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered to the other
parties.
Signature Page to Follow
September 13, 2004
Page 3
If this Agreement accurately sets forth our agreements and
understandings, please sign this Agreement in the location provided below and
return your signed copy to us.
Very truly yours,
Xxxxxx X. Xxxxxxx, Inc.
By: ____________________________
Name; _________________________
Title: ___________________________
ACKNOWLEDGED AND AGREED
MERCATOR ADVISORY GROUP, LLC XX XXXXXX & COMPANY LLC
By: __________________________ By:
Xxxxx Xxxxxxxxx Name: ______________________________
Managing Member Title: _______________________________
MONARCH POINTE FUND, LTD. INTERNATIONAL CARD ESTABLISHMENT, INC.
______________________________ By:
By: Xxxxx Xxxxxxxxx Name: _______________________________
Its: President Title: _______________________________
EXHIBIT "A"
WIRE INSTRUCTIONS FOR MERCATOR ADVISORY GROUP, LLC
Bank Name: Manufacturers Bank
000 X. Xxxxxxxx Xxxxxx,
XX, XX 00000
Account Name: Mercator Advisory Group, LLC.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Account #: 7000015720
ABA# 000000000
WIRE INSTRUCTIONS XX XXXXXX & COMPANY, LLC
Bank: Wachovia Bank, National Association, Atlanta, Georgia
ABA#: 000000000
Account Name: XX Xxxxxx & Company, LLC
Account Number: 2000186834169
WIRE INSTRUCTIONS INTERNATIONAL CARD ESTABLISHMENT, INC.
Bank: California Bank and Trust
000 X. Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
ABA#: 000000000
Account Name: International Card Establishment, Inc.
Account Number: 3320030621
