EXHIBIT 7.5
JB OXFORD REVOCABLE
GOVERNMENT TRUST AGREEMENT
THIS JB OXFORD REVOCABLE GOVERNMENT TRUST AGREEMENT ("Agreement") is
made and entered into as of the 18th day of February, 1999, by and between JB
OXFORD HOLDINGS, INC., a Utah corporation (the "Company"), and THIRD CAPITAL
PARTNERS, LLC, a Tennessee limited liability company, as Trustee (the
"Trustee").
A. The Company purchased 100,000 shares of its common stock, $0.01 par
value per share (the "Common Stock"), from E.B.C. Trust Corporation (the "EBC
Shares") on February 12, 1999. The EBC Shares, now registered in the name of
the Company, are represented by Certificate No. A2853.
B. The Company purchased 369,540 shares of its Common Stock from Oeri
Finance, Inc. (the "Oeri Shares") on the date hereof. The Oeri Shares are
represented by Certificate No. A2632.
C. The certificate representing the Oeri Shares is currently being
held by the United States Federal Government in connection with an
investigation of the Company being conducted by the U.S. Attorney's Office in
Los Angeles, the Federal Bureau of Investigation and the Securities and
Exchange Commission (the "Investigation").
D. The Company believes it desirable to create a trust fund to
purchase and hold the EBC Shares and the Oeri Shares to secure its
obligations, if any, to the United States and its agencies and
instrumentalities in connection with the Investigation. Subject to the terms
of this Agreement, such trust fund will be for the benefit of the United
States and its agencies and instrumentalities.
E. The Trustee is willing to purchase, hold, manage and distribute
that trust fund upon all of the terms and conditions set forth in this
Agreement.
AGREEMENT
Based upon the foregoing, and in consideration of the mutual covenants
set forth in this Agreement, the Trustee accepts the Trust (as defined below)
created hereby and agrees to hold all property which it may receive in trust
for the purposes and on the terms and conditions set forth herein, and the
parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement:
1.1 "Assets" shall mean the cash, securities and other investments
from time to time held in the Trust.
1.2 "Company" shall mean JB Oxford Holdings, Inc. and any
successor to the Company or substantially all of its business and operations.
1.3 "Trust" shall mean the trust account established hereunder,
adjusted from time to time for permissible additions and charges hereunder.
2. THE TRUST.
2.1 INITIAL DEPOSIT.
(a) Concurrently with the execution of this Agreement, the
Company has loaned to the Trust $586,915 which the Trustee is instructed to
immediately use to purchase the Oeri Shares. The Trustee has executed a
promissory note to the Company for $586,915. The form of the promissory note
is attached hereto as Exhibit A.
(b) Upon purchase of the Oeri Shares, the purchase of which
will be confirmed in writing and attached to this Agreement by the Trustee,
the Trustee shall promptly deposit such shares in a special trust account
which has been established by the Trustee for the benefit of the United
States and its agencies and instrumentalities under the name the "JB Oxford
Revocable Government Trust."
(c) Concurrently with the execution of this Agreement, the
Company shall have delivered to the Trustee Certificate No. A2853
representing the EBC Shares, receipt of which is acknowledged by the Trustee,
which the Trustee shall promptly deposit in the JB Oxford Revocable
Government Trust. The 369,540 Oeri Shares and the 100,000 EBC Shares
deposited in the Trust shall be collectively referred to as the "Trust
Shares."
2.2 ADDITIONAL DEPOSITS. After the date hereof, the Company may
direct the Trustee to accept additional trust property, which shall be
identified in an amendment to this Agreement.
2.3 TREASURY SHARES; VOTING OF TRUST SHARES. Unless the Trust
Shares are distributed as provided herein, the Company shall treat the Trust
Shares as treasury shares. If permitted by law, the Trustee shall vote the
Trust Shares in connection with any matter that is presented to the vote of
the Company's shareholders, whether at a meeting or by written consent, in
such manner as may be directed by the Board of Directors.
2.4 DIRECTION OF INVESTMENT. The Assets, other than the Trust
Shares, shall be invested and reinvested by the Trustee in United States
Treasury bills having a maturity of 30 days or less ("30-Day Treasuries"),
and all interest, income and profit shall be added to and become a part of
the Trust, and all brokers' commissions, fees, expenses and losses, if any,
relating thereto shall be charged against the Trust. In the event that
30-Day Treasuries have matured, and the Assets invested in such matured
30-Day Treasuries cannot immediately be reinvested in 30-Day Treasuries, the
Trustee shall place any such Assets in a money market account pending
reinvestment. Notwithstanding any provision to the contrary in this Section
2.4, the Trustee is hereby directed to hold uninvested such monies or to
liquidate and/or sell such monies as the Trustee, in its sole discretion,
considers necessary to meet anticipated and imminent disbursements, including
any payments pursuant to Section 5.3 hereof, without regard to any penalty or
loss incurred as a result of liquidation prior to the maturity or sale of
such Assets. To the extent the Trustee is uncertain as to the appropriate
action to be taken in regard to the investment of the Assets, the Trustee
shall be permitted to accept instructions in that regard from the Company.
The Trustee shall not be liable
or responsible for making any investment authorized by the provisions of this
Agreement, in the manner provided in this Agreement or omitting to make any
investment not authorized by this Agreement, or for any loss resulting from
any such investment so made or omission to so make. The Trustee may deem
investments directed by the Company to be appropriate investments without
independent investigation thereof.
2.5 SUMMARY OF ACTIVITY; ACCESS TO BOOKS AND RECORDS. The Trustee
shall, from time to time upon the request of the Company, but not less often
than quarterly, furnish the Company with a summary of all activity relating
to the Trust; and if so requested by the Company, the Trustee shall permit
the Company or its authorized representatives (including without limitation
its independent public accountants) to access to its books and records
relating to the Trust for the purpose of auditing the Trust and the
activities therein.
2.6 TAXES. Unless the Company elects to prepare and file the tax
returns of the Trust and timely notifies the Trustee in writing of its
election to do so, the Trustee shall prepare and file any required tax
returns of the Trust. The amounts, if any, due in respect of taxes shall be
determined by the Company if the Company elects to prepare the tax returns
and gives timely written notice to the Trustee, and otherwise shall be
determined by the Trustee. Any and all amounts due in respect of taxes shall
be paid by the Trustee out of the Assets, other than the Trust Shares, of the
Trust.
3. USE OF THE TRUST.
3.1 USE OF ASSETS. The Assets in the Trust shall not be used for
any purpose other than investment, as provided in Section 2.4 hereof. The
Trustee, however, may not sell or otherwise dispose of the Trust Shares
unless instructed to do so by the Company upon the termination of the Trust
in accordance with Section 4.2 hereof.
4. TERM AND TERMINATION.
4.1 TERM. This Agreement shall become effective upon the date of
its execution and shall exist until terminated in accordance with Section 4.2
hereof. The Company may under no circumstances withdraw, or cause the
Trustee to withdraw, Assets from the Trust prior to termination.
4.2 TERMINATION. This Agreement shall terminate on the first to
occur of the following: (i) February 18, 2001; (ii) written notice or notices
from the United States or any agency or instrumentality thereof of the
completion of the Investigation, provided that such notice or notices must
specify that all United States agencies and instrumentalities have completed
the Investigation and the Company has no obligation to the United States as a
result thereof; or (iii) written notice from the President of the Company
directing that the Investigation has been completed or for any other reason,
in any case specifying how the Assets are to be distributed.
4.3 DISTRIBUTION ON TERMINATION. When this Trust is terminated in
accordance with Section 4.2 hereof, the Trustee shall distribute the Assets
in the Trust to the United States or its agencies or instrumentalities or to
the Company as designated by the Company, after any
deductions required or authorized by Section 5.3 hereof. If the Trustee
receives no written directions as to the distribution of the Assets, the
Trustee shall distribute the Assets in the Trust to the Company after any
deductions required or authorized by Section 5.3 hereof.
5. THE TRUSTEE.
5.1 THE TRUSTEE'S DUTIES AND LIABILITIES.
5.1.1 This Agreement expressly sets forth all the duties
of the Trustee with respect to any and all matters pertinent
hereto. No implied duties or obligations shall be read into this
Agreement against the Trustee. The Trustee shall not be liable for
any loss sustained by the Trust by reason of the purchase,
retention, sale or exchange of any investment, and the Trustee
shall incur no liability with respect thereto except for its
willful misconduct or gross negligence as long as the Trustee has
acted in accordance with the terms and the conditions of this
Agreement. The Trustee shall not be under any duty to give the
Assets held by it hereunder any greater degree of care than it
gives its own similar property.
5.1.2 The Trustee shall not be called upon to advise any
party as to the wisdom of selling or retaining or taking or
refraining from any action with respect to any securities or other
property deposited hereunder.
5.1.3 The Trustee makes no representation as to the
validity, value, genuineness or collectibility of any security or
other documents or instrument held by or delivered to it.
5.1.4 The Trustee shall be entitled to rely upon any
order, judgment, certification, demand, notice, instrument or other
writing delivered to it hereunder without being required to
determine the authenticity or the correctness of any fact stated
therein or the propriety or validity of the service thereof. The
Trustee may act in reliance upon any instrument or signature
believed by it in good faith to be genuine and may assume, if in
good faith, that any person purporting to give notice or receipt or
advice or make any statement or execute any document in connection
with the provisions hereof has been duly authorized to do so.
5.2 INDEMNIFICATION OF THE TRUSTEE. The Trustee shall not be
liable for any action taken or omitted by it in good faith and believed to be
authorized hereby or within the rights or powers conferred upon it hereunder,
or taken or omitted by it in accordance with advice of counsel (which counsel
may be of the Trustee's own choosing and may include counsel to the Company)
that such action or omission is authorized hereby or within the rights or
powers of the Trustee hereunder, and shall not be liable for any mistake of
fact or error of judgment or for any acts or omissions of any kind unless
caused by willful misconduct or gross negligence. The Company agrees to
indemnify, defend and hold harmless the Trustee, in its individual and
fiduciary capacity, and its respective agents, employees, trustees,
stockholders, representatives, assigns and affiliates against any and all
liabilities, losses, claims, expenses (including reasonable attorneys' fees)
and damages incurred by it hereunder, except for liabilities, losses, claims,
expenses and damages incurred by the Trustee,
resulting from its own willful misconduct or gross negligence. The
indemnities contained in this Section 5.2 shall be applicable whether or not
the Trustee is then serving as the Trustee and shall survive termination of
the Trust.
5.3 COMPENSATION; EXPENSES. The Trustee shall not be entitled to
any compensation under this Agreement. The Trustee shall pay from the Trust,
to the extent not paid by the Company, within 30 days after an invoice
therefor has been presented to the Company by the Trustee, (i) the Trustee's
reasonable expenses of administration of the Trust, including reasonable
compensation of counsel and any agents engaged by the Trustee to assist in
such administration, and (ii) any taxes the Company has failed to pay
pursuant to Section 2.6 hereof.
5.4 POWERS OF THE TRUSTEE. Unless otherwise limited by the terms
of this Agreement, the Trustee shall have, with respect to any property at
any time held by it and constituting part of the Trust, such powers as may be
granted to a trustee under California law.
5.5 ADMINISTRATIVE POWERS OF THE TRUSTEE. The Trustee shall have
the power to do any of the following:
5.5.1 To cause any investment to be registered and held in
the name of one or more of its nominees, or one or more nominees of
any system for the central handling of securities, without increase
or decrease of liability;
5.5.2 To receive any and all money and other property due
to the Trust and to give full discharge therefor; and
5.5.3 To hold uninvested, without liability for interest
thereon, such monies received by the Trustee as the Trustee
considers necessary to meet anticipated and imminent disbursements.
5.6 RESIGNATION OR REMOVAL OF THE TRUSTEE.
5.6.1 Resignation of the Trustee. The Trustee may resign
at any time by delivering a written notice of resignation to the
Company. The resignation shall take effect on the date set forth in
such notice, which shall be no earlier than 60 days from the date
of such delivery to the Company unless a shorter time has been
agreed upon in writing by the Trustee and the Company; provided
that a successor trustee has been appointed pursuant to Section
5.6.2 or Section 5.6.4 hereof.
5.6.2 Appointment of Successor Trustee. In the event of
the Company's receipt of notice of resignation by the Trustee
pursuant to Section 5.6.1 hereof, a successor trustee shall be
appointed by the Company within 30 days after such notice has been
given. The appointment of a successor trustee shall be effective
upon the later of (i) the date set forth as the effective date of
such appointment in an agreement supplementary hereto to assume any
and all of the obligations of the Trustee
hereunder, and (ii) the date of delivery to the Trustee of a copy
of such agreement so executed.
5.6.3 Successor Trustee. Upon the effective date of the
appointment of a successor trustee, the successor trustee, for all
purposes, shall be deemed to be the "Trustee" hereunder and all the
provisions of this Agreement shall relate to each successor with
the same force and effect as if such successor had been originally
named as the Trustee hereunder.
5.6.4 Petition to Court. If a successor trustee is not
appointed within 30 days after the Trustee gives notice of
resignation pursuant to Section 5.6.1 hereof, which appointment
shall become effective not later than the date of resignation of
the Trustee as set forth in the Trustee's notice of resignation,
the Trustee, at the expense of the Trust, may petition the court;
pursuant to California Probate Code Section 15640, to resign and
the Trustee or the Company may petition the court, at the expense
of the Trust, pursuant to California Probate Code Section 17200,
for appointment of a successor trustee.
5.6.5 Transfer of Trust. Upon the effective date of the
appointment of a successor trustee pursuant to Section 5.6.2 or
5.6.4 hereof, the Trustee shall promptly transfer all Assets in the
Trust to the successor trustee to be held under and pursuant to the
terms and conditions of an agreement supplementary hereto or in the
form hereof to assume any and all of the obligations of the Trustee
hereunder.
6. MISCELLANEOUS.
6.1 NOTICES. All notices, requests, demands, waivers,
instructions and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given
when personally delivered or two business days after being deposited in the
U.S. mail, registered or certified, return receipt requested, with postage
prepaid and addressed as follows to the party to whom the notice, request,
demand, waiver, instruction or other communication is to be given, or at such
other address as that party shall designate by notice to the other parties in
accordance with this Section:
To the Company:
JB Oxford Holdings, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
000-000-0000
000-000-0000 (facsimile)
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
0000 X. Xxxxx Xxxxxx, 20th Floor
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx
000-000-0000
000-000-0000 (facsimile)
To the Trustee:
Third Capital Partners, LLC
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
000-000-0000
000-000-0000 (facsimile)
6.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
6.3 SUCCESSORS AND ASSIGNS. This Agreement shall, subject to
other provisions hereof restricting assignment or delegation, be binding upon
and inure to the benefit of the parties hereto, their respective spouses,
successors, heirs, executors, administrators, estates, legal representatives
and assigns.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by each party on separate counterparts, each of which shall
be deemed an original agreement, but all of which together shall constitute
one and the same instrument.
6.5 HEADINGS. Titles and headings to sections herein are for
purposes of reference only and shall in no way limit, define or otherwise
affect the interpretation of the provisions hereof.
6.6 REVOCABILITY OF TRUST; AMENDMENT. The Trust created by this
Agreement shall be revocable and may be revoked or terminated by the Company
as specifically provided in Section 4.2. The Trust created by this Agreement
shall not be amended, modified or supplemented except by an agreement in
writing, signed by the Company and the Trustee.
6.7 ENTIRE AGREEMENT. This Agreement constitutes and embodies the
entire understanding and agreement of the parties hereto relating to the
subject matter hereof and there are no other agreements or understandings,
written or oral, in effect between the parties relating to such subject
matter except as expressly referred to herein.
6.8 ARBITRATION. Any claim or dispute arising out of or relating
to this Agreement, or the construction, interpretation or breach hereof,
shall be submitted to arbitration in Los Angeles, California, in accordance
with the provisions and procedures of the American Arbitration Association
and, to the extent permissible by law, the parties shall be bound by the
results thereof; provided, however, that the Trustee shall have no obligation
to initiate any such proceeding. Judgment upon any award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date and year first above written.
THIRD CAPITAL PARTNERS, LLC
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Chief Manager
JB OXFORD HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
EXHIBIT A
PROMISSORY NOTE
Beverly Hills, CA
$586,915.00 February 18, 1999
FOR VALUE RECEIVED, JB Oxford Revocable Government Trust (the "Maker")
promises to pay to JB Oxford Holdings, Inc., a Utah corporation (the
"Holder"), the principal sum of Five Hundred Eighty-Six Thousand Nine Hundred
Fifteen ($586,915.00) without interest in accordance with the terms set forth
below. This Note is issued pursuant to and is subject to the terms of the JB
Oxford Revocable Government Trust Agreement, as of February 18, 1999, by and
between the Holder and Third Capital Partners, LLC, a Tennessee limited
liability company, as Trustee (the "Trust Agreement").
The Maker will make one total payment of principal in the amount of
$586,915.00, due and payable on the date of the termination of the trust
created by the Trust Agreement in accordance with Section 4.2 of the Trust
Agreement. This Note may be repaid in cash or in Trust Shares (as that term
is defined in the Trust Agreement). The value of the Trust Shares shall be
determined by the closing price of the Holder's common stock, par value $0.01
per share, on the day before the termination of the trust in accordance with
Section 4.2 of the Trust Agreement.
If an Event of Default, as defined below, occurs and continues to exist,
then, Holder shall have the right, at his option, to declare the entire
balance of principal then remaining unpaid (the "Debt"), immediately due and
payable without presentment, demand, or notice of any kind, all of which are
expressly waived by the Maker. The occurrence of any of the following
constitutes an "Event of Default": (i) the Maker fails to make full and
timely payment when due under this Note; or (ii) the Maker breaches any
representation, warranty, covenant or agreement contained in the Trust
Agreement.
If the Maker fails to make full and timely payment of principal when due
under this Note, the Maker shall pay to Holder, in addition to such amounts
due, all costs of collection, including reasonable attorneys' fees.
Holder's failure to exercise any right or remedy available to him
hereunder or at law or in equity, or any delay in exercising any such right
or remedy, shall not operate as a waiver of any of Holder's rights.
This Note shall be governed, construed, and enforced in accordance with
the laws of the State of California.
JB OXFORD REVOCABLE GOVERNMENT TRUST
By: Third Capital Partners, LLC, as Trustee
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Its: Chief Manager
