PFE PROPERTIES, LLC
MEMBERSHIP ACQUISITION AGREEMENT
THIS PFE PROPERTIES, LLC MEMBERSHIP ACQUISITION AGREEMENT (this
"Agreement") is made and entered into as of the 31st day of March, 2005 (the
"Closing Date"), by and between RAJAYEE XXXXXX, an individual (the "Seller")
with a mailing address at 0000 Xxxxx Xxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxx 00000
and CIRTRAN CORPORATION, a Nevada corporation (the "Purchaser") located at 0000
X. 0000 X., Xxxx Xxxxxx Xxxx, Xxxx, 00000.
RECITALS
A. The Seller is the owner and holder of a one hundred percent (100%)
membership interest (the "Membership Interest") in and to PFE PROPERTIES, LLC, a
Utah limited liability company ("PFE" or the "Company"), in accordance with the
Articles of Organization (the "Articles") and the Operating Agreement of PFE.
B. The primary asset of PFE is its rights, titles and interests in and
to that certain real property, together with any and all improvements, rents and
profits thereon or associated therewith, located at 0000 X. 0000 X., Xxxx Xxxxxx
Xxxx, Xxxx, 00000, more particularly described as follows (the "Real Property"):
Beginning at a point which is North 89 deg. 57' 13" East 33.00 feet
along the section line and South 0 deg. 07' 31" East 40.00 feet
parallel to 0000 Xxxx Xxxxxx from the North quarter corner of Xxxxxxx
0, Xxxxxxxx 0 Xxxxx, Xxxxx 2 West, Salt Lake Base and Meridian, Salt
Lake County, Utah, and running thence North 89 deg. 57' 13" East 367.00
feet to the West line of HUNTER COVE SUBDIVISION PHASE 1; thence along
said line South 0 deg. 07' 31" East 552.50 feet; thence North 89 deg.
58' 06" West 367.00 feet to the East line of 0000 Xxxx Xxxxxx; thence
along said street North 0 deg. 07' 31" West 552.00 feet to the point of
beginning.
Excepting therefrom all oil, gas and minerals and any rights
appurtenant thereto.
C. PFE acquired the Real Property on December 17, 2003, at which time
it borrowed ONE MILLION FIFTY THOUSAND AND NO/100 DOLLARS ($1,050,000.00) (the
"Loan") from STONEFIELD, INC., a Nevada corporation (the "Lender") to finance
its purchase of the Property.
D. In order to secure its obligations under the Loan, on December 17,
2003 PFE granted Lender a security interest in the Real Property by its
execution, delivery and recordation with the Salt Lake County Recorder, State of
Utah, a Deed of Trust, With Absolute Assignment of Rents as Entry No. 8926765 in
Book Xx. 0000 Xx. Xx. 0000 (the "Trust Deed") for the benefit of Lender.
E. The Seller has represented to the Purchaser that except for PFE's
obligations under the Loan, the Trust Deed and that certain Promissory Note
dated December 17, 2003 made payable to Lender in the amount of the Loan (the
"Promissory Note"), PFE does not owe or possess any other liabilities, debts or
obligations, nor is PFE in default of the Loan, the Trust Deed or the Promissory
Note.
F. The Seller desires to sell all of his Membership Interest in PFE to
Purchaser, in accordance with the terms and conditions of this Agreement.
G. The Purchaser desires to acquire the Membership Interest in PFE so
that it might be the sole member of PFE, in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto do hereby covenant and agree as follows:
PURCHASE AND SALE OF MEMBERSHIP INTEREST
1. Sale and Purchase of the Membership Interest. The Seller hereby
sells to Purchaser, and Purchaser hereby purchases from the Seller, the
Membership Interest, and any and all other rights, titles and interests which
the Seller may have or hold in and to PFE and the Real Property, for and in
consideration of (i) the Purchaser's issuance to Seller of TWENTY MILLION
(20,000,000) shares of the Seller's common stock (the "Shares") with a
non-binding, estimated value as of the date of this Agreement of $0.05/share or
ONE MILLION AND NO/100 ($1,000,000.00) and (ii) Purchaser overseeing PFE's
repayment of the Loan. Following the completion of this sale of the Membership
Interest to the Purchaser, the Seller no longer will be a member of PFE, and the
Purchaser shall become the sole member of PFE in the place and stead of Seller,
as provided for herein.
2. Indemnity and Hold Harmless. As additional consideration for the
purchase of the Membership Interest, the Seller hereby agrees to guarantee
payment of, and/or to indemnify, defend, and hold the Purchaser harmless from
and against, all financial obligations of the Company which arose prior to the
date of the purchase of the Membership Interest, including, without limitation,
all state and federal taxes associated with the ownership and/or operation of
the Company and the Real Property prior to the date of this Agreement, equipment
leases, promissory notes, trade payables, and other agreements or obligations
reflected on the balance sheet of the Company as of the Closing Date (the
"Obligations"), except for and excluding those obligations under the Loan, Trust
Deed and Promissory Note arising from and after the Closing Date. In the event
legal counsel is required to defend the Purchaser or the Company against
collection of one or more of the Obligations, Seller agrees to retain counsel
mutually acceptable to both parties and to pay for such defense through trial
and any appeal together with any judgment against the Purchaser or the Company.
REPRESENTATIONS AND WARRANTIES
3. The Purchaser hereby represents and warrants to the Seller as
follows:
A. Good Standing. The Purchaser represents that it is a Utah
corporation in good standing, and has all requisite power and authority to enter
into this Agreement.
B. Sole Party in Interest. The Purchaser represents that it is the sole
and true party in interest in the purchase of the Membership Interest from the
Seller.
C. Disclosure, Access to Information, etc. The Purchaser has read and
analyzed, is familiar with and has retained copies of this Agreement and such
other documents as the Purchaser has requested from the Seller. In this regard,
the Purchaser confirms that the Purchaser has reviewed the following documents
which have been provided to the Purchaser by the Seller:
(1) the Articles of Organization and Operating Agreement of
the Company;
(2) a sheet provided by the Seller showing the balance owing
on a loan the Company has secured from the Lender;
(3) the Commitment to Insure issued by Metro National Title
with respect to the real estate which is owned by the Company, showing
liens and encumbrances of record on such real property.
4. The Seller hereby acknowledges, covenants, represents and warrants
to the Purchaser as follows:
A. Sole Member of the Company; No Encumbrances. The Membership Interest
constitutes one hundred percent (100%) of the outstanding membership interests
of the Company. The Seller holds of record and owns beneficially the Membership
Interest, free and clear of any restrictions on transfer (other than any
restrictions under the Securities Act and state securities laws), taxes,
security interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands. The Seller is not a party to any option, warrant,
purchase right, or other contract or commitment that could require the Seller to
sell, transfer, or otherwise dispose of any of the membership interests of the
Company (other than this Agreement). The Seller is not a party to any voting
trust, proxy, or other agreement or understanding with respect to the voting of
any of the membership interests of the Company. Upon the parties execution of
this Agreement and the Purchaser's issuance of the delivery of the certificates
representing the Seller=s Company Shares, the Purchaser will acquire valid,
marketable title thereto, free and clear of any Security Interests and claims of
any other Seller or third parties.
B. Ownership of Membership Interests. The Seller is the owner of record
of the Membership Interest, he possesses all right, title and authority to sell
and transfer the Membership Interest to the Purchaser, and the Membership
Interest will be transferred to Purchaser free and clear of all claims, liens or
encumbrances of any kind whatsoever.
C. Approvals. The Seller has secured all necessary consents and
approvals to have the Purchaser become a substitute Member of the Company, in
accordance with the provisions of the Company's Operating Agreement, so that
following the sale of the Membership Interest to the Purchaser, it shall have
and possess all of the powers, rights and privileges which were owned and held
by the Seller prior to the sale of the Membership Interest to the Purchaser.
Seller will take all necessary action to cause this action to occur.
D. No Amendments; No Other Obligations. The Loan, the Trust Deed and/or
the Promissory Note have not been amended, modified, transferred or assigned,
the Company is current on any and all payments owed on the Loan and the
Promissory Note, and there are no Obligations other than those represented by
the Loan except for certain de minimis Obligations disclosed on the books and
records of the Company previously delivered to the Purchaser by the Seller.
E. No Company Certificates. No certificates have ever been issued by
the Company with respect to the Membership Interests or any other capital
interest in the Company.
F. Authorization of Transaction. The Seller has full power and
authority to execute and deliver this Agreement, and any and all other
agreements, consents and instruments to be signed by Seller in effect the
transactions contemplated hereunder (the "Ancillary Agreements") and to perform
Seller's obligations hereunder. This Agreement and the Ancillary Agreements are,
or when executed and delivered by Seller and the other parties thereto will be,
valid and binding obligations of Seller, enforceable against Seller in
accordance with their respective terms. The Seller need not give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency or any third party in order to consummate the
transactions contemplated by this Agreement.
G. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject, or (ii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which the Seller is a party or by which he is
bound or to which any of his assets is subject.
H. Brokers' Fees. The Seller has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Purchaser could become
liable or obligated.
I. Absence of Indebtedness and Claims. Seller is not indebted to
Company, and the Company is not indebted to Seller and the Seller has no claims
against the Company.
J. Title to Assets. The Company has good and marketable title to the
Real Property and the personal property and assets used by it, located on the
Real Property (except for those personal properties and assets presently owned
by the Purchaser in its capacity as the tenant of the Real Property), free and
clear of all security interests and encumbrances, except for the Trust Deed and
the Purchaser's lease of the Real Property from the Company presently in effect.
K. Non-Assignment of Lease. The Company has not assigned, transferred
or conveyed any of its rights, titles and interests under that certain lease
agreement pursuant to which the Purchaser presently leases the Real Property.
L. Financial Statements. The Company's financial statements provided by
the Company to the Purchaser concurrently herewith have been prepared in
accordance with Generally Accepted Accounting Principles applied on a consistent
basis throughout the periods covered thereby, present fairly the financial
condition of the Company as of such dates and the results of operations of them
for such periods, are correct and complete, and are consistent with their books
and records (which books and records are correct).
M. Undisclosed Liabilities. The Company has no liability (and to the
Company's or Sellers' knowledge there is no basis for any present or future
action, suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand against it giving rise to any liability), except for (i) the liabilities
represented by the Promissory Note and the Trust Deed, and (ii) the liabilities
set forth in the Company's most recent financial statements provided by the
Company to the Purchaser concurrently herewith.
N. Legal Compliance. The Company has complied and is in compliance with
all applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal, state
and local governments (and all agencies thereof), and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
has been served by a court officer (or to the Seller's knowledge, filed or
commenced) against the Company alleging any failure so to comply.
O. No Employees. There are presently no regular or part-time employees
of the Company and at no time in the past has the Company ever employed any
person on a regular or part time basis. In addition, there are presently no
independent contractors, consultants or other persons providing services to or
for the benefit of the Company for whom the Company owes any duty, payment or
obligation. There are no employment contracts or consulting agreements currently
in effect with respect to the Company.
P. Taxes. The Company has filed all tax returns that it was required to
file on or before the Closing Date. All such tax returns were correct and
complete in all material respects. All taxes owed by the Company (whether or not
shown on any tax return) have been paid. The Company currently is not the
beneficiary of any extension of time within which to file any tax return. No
claim has ever been made by an authority in a jurisdiction where the Company
does not file tax returns that it is or may be subject to taxation by that
jurisdiction. The Company has not disposed of any property which has been
accounted for tax purposes under the installment method. The Company is not a
party to any interest rate swap, currency swap or similar transaction.
X. Xxxxxx of Attorney. There are no outstanding powers of attorney
executed on behalf of the Company.
R. Litigation. The Company is not (i) subject to any outstanding
injunction, judgment, order, decree, ruling, or charge or (ii) a party or, to
the knowledge of the Seller or the Company, threatened to be made a party to any
action, suit, proceeding, hearing, or investigation of, in, or before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator. Neither the Company nor the
Seller has any reason to believe that any action, suit, proceeding, hearing or
investigation may be brought or threatened against the Company. There is no
basis for any person, firm, corporation or entity to assert a claim against the
Seller based upon: (a) ownership or rights to ownership of any of the Membership
Interests or other securities of the Company, or (b) any rights as a Company
securities holder, including, without limitation, any option or other right to
acquire any Company securities, any preemptive rights or any rights to notice or
to vote Company stock or securities.
S. No Guaranties/Subsidiaries. The Company is not a guarantor or
otherwise liable for any liability or obligation (including indebtedness) of any
other person. The Company does not have any subsidiaries or any interest, direct
or indirect, in any corporation, partnership, joint venture or other business
entity.
T. Environmental. Each of the Company and its predecessors has complied
and is in compliance with all Environmental, Health, and Safety Requirements
(defined hereafter). The Company has not received any written or oral notice,
report or other information regarding any actual or alleged violation of
Environmental, Health, and Safety Requirements, or any liabilities or potential
liabilities (whether accrued, absolute, contingent, unliquidated or otherwise),
including any investigatory, remedial or corrective obligations, relating to any
of them or its facilities arising under Environmental, Health, and Safety
Requirements. For purposes of this Agreement, "Environmental, Health, and Safety
Requirements" shall mean all federal, state, local and foreign statutes,
regulations, ordinances and other provisions having the force or effect of law,
all judicial and administrative orders and determinations, all contractual
obligations and all common law concerning public health and safety, worker
health and safety, and pollution or protection of the environment, including
without limitation all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release, threatened
release, control, or cleanup of any hazardous materials, substances or wastes,
chemical substances or mixtures, pesticides, pollutants, contaminants, toxic
chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise or radiation, each as amended and as now or hereafter in
effect.
U. Bank Accounts. Exhibit "A" attached hereto and incorporated herein
contains a full and complete list of all the bank accounts of the Company,
together with the names of the persons authorized to draw thereon. All cash in
such accounts is held in demand deposits and is not subject to any restriction
or limitation as to withdrawal.
V. Books and Records. The books, records and accounts of the Company
(a) are in all material respects true and complete, and (b) have been maintained
in accordance with reasonable business practices.
W. Accredited Status. The Seller, by initialing the applicable
paragraph (a) through (g) below, hereby represents and warrants that it is an
"Accredited Investor" as defined in Regulation D under the Securities Act,
because it meets the requirements set forth in one or more of the enumerated
categories. The Seller confirms it is an "Accredited Investor" as indicated
below. Place your initials in the space provided in the beginning of each
applicable paragraph thereby representing and warranting as to the applicability
to the Seller of the initialed paragraph or paragraphs.
[ X ] (a) any individual purchaser whose net worth, or joint
net worth with that person's spouse at the time of his
purchase, exceeds $1,000,000 (including any individual
participant of a Xxxxx Plan, XXX or XXX Rollover Purchaser);
[ X ] (b) any individual purchaser who had an income in
excess of $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of $300,000
in each of those years and who reasonably expects an income
in excess of the same income level in the current year
(including any individual participant of a Xxxxx Plan, XXX
or XXX Rollover Purchaser);
[ ] (c) any corporation or partnership not formed for the
specific purpose of making an investment in the Shares, with
total assets in excess of $5,000,000;
[ ] (d) any trust, which is not formed for the specific
purpose of investing in the Shares, with total assets in
excess of $5,000,000, whose purchase is directed by a
sophisticated person, as such term is defined in Rule 506(b)
of Regulation D under the Securities Act;
[ ] (e) any ERISA Plan if the investment decision is made by
a plan fiduciary, as defined in section 3(21) of ERISA,
which is either a bank, insurance company, or registered
investment adviser, or the Plan has total assets in excess
of $5,000,000;
[ ] (f) any individual purchaser who is an executive officer
or director of the Purchaser;
[ ] (g) any entity in which all of the equity owners are
Accredited Investors under paragraphs (a), (b), (c) or (f)
above or any other entity meeting required "Accredited
Investor" standards under Rule 501 of Regulation D under the
Securities Act and applicable State securities law criteria.
IF THE PURCHASER IS AN ENTITY IN WHICH ALL OF THE EQUITY
OWNERS ARE ACCREDITED INVESTORS, THE PURCHASER MUST PROVIDE
A SUBSCRIPTION AGREEMENT FROM EACH OF ITS EQUITY OWNERS;
[ ] (h) other (please explain i.e., a foreign investor)
X. Sole Party in Interest. Seller represents that he is the sole and
true party in interest, and no other person or entity has or will have upon the
issuance of the Shares any beneficial ownership interest in the Shares or any
portion of the Shares, whether direct or indirect.
Y. Investment Purpose. Seller represents that it is acquiring the
Shares for its own account and for investment purposes and not on behalf of any
other person or entity or for or with a view to resale or distribution.
Z. Knowledge and Experience. Seller has been advised, to the Seller's
satisfaction and understanding, with respect to the advisability of an
investment in the Purchaser and the shares. Seller is experienced in evaluating
and making speculative investments, and has the capacity to protect its
interests in connection with the acquisition of the Shares. Seller has such
knowledge and experience in financial and business matters in general, and
investments in the electronics and technology industry in particular, that
Seller is capable of evaluating the merits and risks of Seller's investment in
the Purchaser. Seller has been informed that an investment in the Purchaser is
speculative and has concluded that Seller's proposed investment is appropriate
in light of its overall investment objectives and financial situation.
AA. Investment Advisors. Seller represents that no investment advisor
or purchaser representative has been consulted or retained in connection with
Seller's decision to invest in the Purchaser.
AB. Disclosure, Access to Information. Seller confirms that he has
received and thoroughly read and is familiar with and understands this
Agreement, and that all documents, records, books and other information
pertaining to the Seller's investment in the Purchaser requested by the Seller
have been made available for inspection and copying and that there are no
additional materials or documents that have been requested by Seller that have
not been made available by the Purchaser. Seller further acknowledges he has had
an opportunity to ask questions of and receive answers from the Purchaser's
representatives, and that any decision not to ask questions of the Purchaser's
representatives or to review the Purchaser's public filings, including such
filings as disclosure risk factors relating to the Purchaser and an investment
in the Purchaser was a conscious decision on Seller's part and reflects Seller's
belief that no additional information is necessary in order to make an informed
decision about investing in the Purchaser.
AC. Exclusive Reliance on this Agreement. In making the decision to
purchase the Shares, Seller has relied exclusively upon information included in
this Agreement, and investigations made by Seller, and not on any other
representations, promises or information, whether written or verbal, by any
person.
AD. Share Certificate Legends. The Seller agrees to the imprinting, so
long as is required by this Agreement, of the following legend on the Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS.
AE. Restricted Stock. Seller acknowledges and agrees that it is
receiving "restricted stock," as that term is defined in the Securities Act of
1933, as amended (the "Securities Act"), and rules promulgated thereunder, and
that as such, the Seller's ability to sell the shares will be limited.
AF. Advice of Counsel. Seller understands the terms and conditions of
this Agreement, has investigated all issues to Seller's satisfaction, has
consulted with such of Seller's own legal counsel or other advisors as Seller
deems necessary, and is not relying, and has not relied on the Purchaser for an
explanation of the terms or conditions of this Agreement or any document or
instrument related to the transactions contemplated thereby. Seller further
acknowledges, understands, and agrees that, in arranging for the preparation of
this Agreement and all other documents and materials related thereto, the
Purchaser has not attempted to procure, and has not procured, legal
representation for Seller.
AG. Accuracy of Representations and Information. All representations
made by Seller in this Agreement and all documents and instruments related to
this Agreement, and all information provided by Seller to the Purchaser
concerning Seller and its respective financial positions is correct and complete
as of the date hereof. If there is any material change in such information
before the actual issuance of the Shares, Seller immediately will provide such
information to the Purchaser.
AH. No Representations. None of the following have ever been
represented, guaranteed, or warranted to Seller by the Purchaser or any of its
employees, agents, representatives or affiliates, or any broker or any other
person, expressly or by implication:
(1) The approximate or exact length of time that Seller will
be required to remain as owner of the shares;
(2) The percentage of profit or amount of or type of
consideration, profit or loss (including tax write-offs or other tax
benefits) to be realized, if any, as a result of an investment in the
Shares; or
(3) The past performance or experience on the part of the
Purchaser or any affiliate or their associates, agents or employees, or
of any other person as being indicative of future results of an
investment in the shares.
AI. No Representations by Brokers or Finders. Seller represents in
making his decision to purchase the Shares, he is not relying on any
representations, warranties, promises, or other inducements to purchase that
were made by any broker, finder, or selling agent of the Purchaser, and that the
only representations, warranties, or other inducements to purchase are contained
in the written materials provided by the Purchaser to the Seller.
AJ. Disclosure. No representation or warranty in this Agreement, or in
any document, certificate, statement or exhibit hereto or thereto which are
furnished or to be furnished to the Purchaser under this Agreement or in
connection with the transactions contemplated herein, contains or will contain
any untrue statement of material fact, or omits or will omit to state a material
fact necessary to make the factual statements contained herein and therein, at
the time made and in light of the circumstances under which made, not
misleading. In addition, each of the representations and statements concerning
the Seller and the Company made in the Recital Paragraphs above is accurate, not
misleading and true in all respects. There is no fact or condition that the
Seller has not disclosed to the Purchaser in writing that materially adversely
affects the Company's business, or will materially adversely affect the
Company's business.
AK. Cooperation. The Seller shall cooperate and use his best efforts to
take all action and to do all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement.
The Seller will give any notices to third parties, and use best efforts to
obtain any third party consents, authorizations, and approvals that the
Purchaser may request to consummate the transactions contemplated herein.
MISCELLANEOUS PROVISIONS
5. Conditions to the Purchaser's Performance of its Obligations. The
obligation of the Purchaser to consummate the transactions to be performed by it
in connection with the closing of the transactions contemplated herein (the
"Closing") is subject to satisfaction of the following conditions: (i) the
representations and warranties set forth in Section 4 above shall be true and
correct in all respects at and as of the Closing Date; (ii) Seller shall have
performed and complied with all of his covenants hereunder in all respects
through the Closing and (iii) the Purchaser shall have received to its
satisfaction a date-down endorsement or other product or policy of title
insurance insuring that the Company possesses good, clean, marketable title to
the Real Property, not subject to any encumbrances or security interests except
for the Trust Deed and the Purchaser's leasehold rights.
6. Warranties Survive. All warranties, representations, covenants,
indemnities and agreements hereunder shall survive any termination or revocation
of this Agreement.
7. Purchaser's Remedies. Seller shall indemnify, save and hold harmless
the Purchaser, the Company and each of their respective officers, directors,
employees, agents, legal representatives, advisors, consultants, successors and
assigns, from any adverse consequences suffered or incurred by any of them to
the extent arising from:
A. any breach (or in the event any third party alleges facts
that, if true, would constitute such breach) of any of the Seller's or
the Company's representations, warranties and covenants contained in
this Agreement or in any certificate, instrument or other document
delivered pursuant hereto or thereto; and
B. for any taxes of the Company with respect to any tax year
or portion thereof ending on or before the Closing Date (or for any tax
year beginning before and ending after the Closing Date to the extent
allocable (to the portion of such period beginning before and ending on
the Closing Date), to the extent such taxes are not reflected in any
reserve for deferred taxes established to reflect timing differences
between book and tax income) shown on the face of the Company's balance
sheet.
8. Severability. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable, all other provisions of
this Agreement shall be given effect separately from the provision or provisions
determined to be illegal or unenforceable and shall not be affected thereby.
9. Successors and Assigns. Except as otherwise provided herein, all the
terms, provisions, representations and warranties of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the respective
successors and assigns of the parties hereto.
10. Choice of Law. It is the intention of the parties hereto that the
laws of Utah should govern the validity of this Agreement, the construction of
its terms and the interpretation of the rights and duties of the parties hereto.
11. Venue and Jurisdiction. In the event of legal action hereunder, the
Seller agrees that jurisdiction and venue of such action shall be in the Third
Judicial District Court in and for Salt Lake County, State of Utah, or in the
U.S. District Court for the District of Utah, Northern Division, and the Seller
and the Purchaser each submit to exclusive personal and subject matter
jurisdiction concerning any action or dispute arising out of this Agreement.
11. Entire Agreement; Amendments. This Agreement, together with the
Exhibit hereto, constitutes the entire agreement between the Seller and the
Purchaser, and supersedes all other agreements between the parties on the
subject matter hereof. There are no other covenants, agreements, promises,
terms, provisions, conditions, undertakings, or understandings, either oral or
written, between them concerning the Real Property other than those herein set
forth. No subsequent agreement shall be binding upon the Seller or the Purchaser
unless in writing and signed by both the Seller and the Purchaser.
12. Waiver. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provisions, whether or not similar, nor shall
any waiver be a continuing waiver. Except as expressly provided in this
Agreement, no waiver shall be binding unless executed in writing by the party
making the waiver. Either party may waive any provisions of this Agreement
intended for its benefit; provided, however, such waiver shall in no way excuse
the other party from the performance of any of its other obligations under this
Agreement.
13. Rights and Remedies Cumulative. The rights and remedies herein
provided shall be cumulative and not exclusive of any other rights or remedies
provided by law or otherwise.
14. Gender. For purposes of this Agreement, where the context so
requires, masculine pronouns shall include the feminine and the neuter, and the
neuter shall include the masculine and feminine, as the case may require.
15. Notices. All notices, requests, consents, and other communications
required or permitted hereunder shall be in writing and shall be delivered, or
mailed first class postage prepaid, registered or certified mail, to the address
for each of the Purchaser and the Seller set forth in the opening paragraph to
this Agreement. And all such notices and other communications shall for all
purposes of this Agreement be treated as being effective or having been given
when delivered if delivered personally, or, if sent by mail, at the earlier of
their receipt or 72 hours after the same have been deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and
postage prepaid as aforesaid.
16. Legal Fees. Should any litigation or administrative proceeding be
commenced between the parties hereto concerning this Agreement, or the rights
and duties of either party in relation thereto, or the meaning or interpretation
of this Agreement, the prevailing party in such litigation or proceeding, shall
be entitled, in addition to such other relief as may be granted, its reasonable
attorneys' fees, expert witness fees, litigation related expenses, and court
costs in such litigation or proceeding. For purposes hereof, the term
"prevailing party" shall mean, in the case of the plaintiff or claimant, one who
is successful in obtaining substantially all of the relief sought, and in the
case of the defendant or respondent, one who is successful in denying
substantially all of the relief sought be the claimant. Any award of fees and
costs shall be set by the court and not by the jury.
17. Headings. The headings, captions, numbering system, etc., are
inserted only as a matter of convenience and may not be considered in
interpreting the provisions of this Agreement.
18. Binding Effect. All of the provisions of this Agreement are hereby
made binding upon the personal representatives, heirs, successors, and assigns
of all parties hereto. The provisions of this Agreement are not intended to
create, nor shall they be in any way interpreted to create, a joint venture, a
partnership, or any other similar relationship between the parties. Nothing
contained in this Agreement shall create a contractual relationship with or a
cause of action in favor of a third party against either Seller or Purchaser.
19. Time. Time is of the essence of this Agreement.
20. Business Day. If the final day of any period or any date of
performance under this Agreement falls on a Saturday, Sunday, or legal holiday,
then the final day of the period or the date of performance shall be extended to
the next day that is not a Saturday, Sunday or legal holiday.
21. Construction. The parties acknowledge that each party and its
counsel have reviewed and approved this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or Exhibits hereto. Whenever the context reasonably permits, the
singular shall include the plural, the plural shall include the singular, and
the whole shall include any part thereof. Any terms defined in this Agreement in
the singular shall have a comparable meaning when used in the plural, and vice
versa. Further, the masculine gender shall include the female gender and neuter,
and vice versa. The words "including," "includes" and "include" shall be deemed
to be followed by the words "without limitation." The words "hereof," "hereto,"
"herein" and "hereunder" and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. References herein to Sections and Exhibits shall be
construed as references to Sections and Exhibits of this Agreement unless the
context otherwise requires. The Recital Paragraphs set forth above are expressly
incorporated into this Agreement by this reference.
22. Counterparts. This Agreement may be executed in two or more
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be deemed an original, shall be construed
together and shall construe one and the same instrument. Facsimile signatures
shall bind the party transmitting such signature to the same extent as an
original.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Closing Date first above written.
Seller:
/s/ Rajayee Xxxxxx
------------------------------------
RAJAYEE XXXXXX
Purchaser: CIRTRAN CORPORATION,
a Nevada corporation
By /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
EXHIBIT "A"
COMPANY BANK ACCOUNTS
