EXHIBIT 10.134
AGREEMENT BETWEEN NUOASIS INTERNATIONAL, INC. AND
SILVER FAITH DEVELOPMENT LIMITED
AGREEMENT
DATED: 30th August, 1996
PARTIES:
1. "NuOasis" NuOasis International Inc., a corporation
organised under the laws of the Commonwealth
of the Bahamas.
2. "Silver Faith" Silver Faith Development Limited., a
corporation organised under the laws of Hong
Kong
RECITALS:
1.1 On September 30, 1995, Xxxx Xxxxxxx'x XX Inc., a Colorado corporation
("Xxxx"), the sole shareholder of NuOasis, entered into a Purchase and
Sale Agreement with Silver Faith pursuant to which Xxxx issued a
Convertible Secured Promissory Note of such date (the "Xxxx Note") in
the principal amount of Twenty One Million Dollars (USD21,000,000) a
copy of which is annexed hereto as Schedule 1; and,
1.2 NuOasis assumed Nona's rights and obligations under the Xxxx Note by
way of the Assignment dated December 31, 1995 (the "Assignment"), a
copy of which is annexed hereto as Schedule 2; and,
1.3 NuOasis wishes to purchase the Xxxx Note from Silver Faith pursuant to
the terms hereof.
OPERATIVE PROVISIONS:
1. Purchase of the Note
On the basis of the representations and warranties herein contained,
subject to the terms and conditions set forth herein, and for the
Consideration (as defined herein), NuOasis agrees to purchase the Xxxx
Note for Twelve Million Three Hundred Thousand Dollars (USD
12,000,000), which represents the current outstanding principal balance
of Eleven Million Four Hundred Thousand Dollars (USD 11,400,000) plus
interest of approximately Six Hundred Thousand Dollars (USD 600,000),
and Silver Faith agrees to assign, deliver and transfer the Xxxx Note
to NuOasis.
2. The Consideration
The consideration ("Consideration") to be paid to Silver Faith in
exchange for the Xxxx Note shall consist of that certain Convertible
Secured Promissory Note dated July 31, 1996 in the principal amount of
Twelve Million Dollars (USD 12,000,000) issued by The Hartcourt
Companies Inc.("Hartcourt"), a copy of which is annexed hereof as
Schedule 3 (the "Hartcourt Note").
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3. Effective Date and Closing
The closing and effective date of the exchange contemplated by this
Agreement (the "Closing") shall occur upon such date that the parties
have satisfied their respective obligations and covenants contained
herein, but shall not be later than 30th September 1996. At the
Closing, Silver Faith shall deliver the Xxxx Note to NuOasis and
NuOasis shall deliver the Hartcourt Note to Silver Faith, along with
any opinions, certificates, exhibits, etc. reasonably requested by the
other party.
4. Representations and Warranties of Silver Faith
Silver Faith hereby represents and warrants to NuOasis that:
4.1 Silver Faith is a corporation organized under the laws of Hong
Kong; and
4.2 Silver Faith is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgement, in any
litigation or proceedings before any Hong Kong, Peoples
Republic of China, or Chinese provincial or municipal
government, or any department, board, body or agency thereof,
which could result in a claim against the Xxxx Note; and
4.3 This Agreement has been duly executed by Silver Faith and the
execution and performance hereof will not violate, or result
in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which Silver Faith
is a party or to which Silver Faith is subject; and
4.4 Silver Faith's right to transfer the Xxxx Note is not in
violation of any preemptive rights of any person or of any
agreement to which Silver Faith is bound; and
4.5 The Xxxx Note will be transferred without any encumbrances or
adverse claims and is not subject to any interest or right of
any third person; and Silver Faith warrants that it has the
full right and power to transfer the Xxxx Note pursuant to
this Agreement; and
4.6 No representation or warranty contained herein, nor statement
in any document, certificate or schedule furnished or to be
furnished pursuant to this Agreement by Silver Faith or in
connection with the transaction contemplated hereby, contains
or contained any untrue statement of a material fact, nor does
it omit to state a material fact necessary to make any
statement of fact contained herein not misleading.
5. Representations and Warranties of NuOasis
NuOasis hereby represents and warrants to Silver Faith that:
5.1 This Agreement has been duly executed by NuOasis and the
execution and performance of this Agreement will not violate,
or result in a breach of, or constitute a default in any
agreement, instrument, judgement, order or decree to which
NuOasis is a party or to which the Hartcourt Note is subject;
and
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5.2 The Hartcourt Note is not subject to any claims or causes of
action created by or through Xxxx or NuOasis, and NuOasis is
not a defendant, nor a plaintiff against whom a counterclaim
has been made or reduced to judgement, in any litigation or
proceedings before any U.S., federal or state government, or
the Commonwealth of the Bahama's, or any department, board,
body or agency thereof, involving the Hartcourt Note as of the
date hereof; and
5.3 The Hartcourt Note is not subject to any interest or right of
any third person created by or through Xxxx or NuOasis, and
NuOasis has the full right and power to transfer the Hartcourt
Note pursuant to this Agreement; and
5.4 No representation or warranty contained herein, nor statement
in any document, certificate or schedule furnished or to be
furnished pursuant to this Agreement by NuOasis, or in
connection with the transaction contemplated hereby, contains
or contained any untrue statement of a material fact, nor does
it omit to state a material fact necessary to make any
statement of fact contained herein not misleading.
6. Availability of Information
Silver Faith and NuOasis represent that, by virtue of their respective
business activities and economic bargaining power or otherwise, they
have been able to conduct their own due diligence and have had access
to or have been furnished with, prior to or concurrently with the
execution hereof, the information which they consider to be adequate to
make a decision to exchange the Hartcourt Note for the Xxxx Note.
7. Termination
This Agreement may be terminated at anytime prior to the date of
Closing by either party if (a) there shall be any actual or threatened
action or proceeding by or before any court or any other governmental
body which shall seek to restrain, prohibit, or invalidate the
transaction contemplated by this Agreement, and which, in the judgment
of such party giving notice to terminate and based upon the advice of
legal counsel, makes it inadvisable to proceed with the transaction
contemplated by this Agreement; or (b) if this transaction has not
closed by 30th September 1996 by reason of circumstances beyond the
control of the parties hereto.
8. Miscellaneous
8.1 The officers of NuOasis and Silver Faith executing this
Agreement are duly authorized to do so and each party has
taken all action required by law or otherwise to properly and
legally execute this Agreement.
8.2 Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail,
postage prepaid, addressed as follows:
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To Silver Faith: Silver Faith Development Limited
Room 3078, Diamond Square
3/F Shun Tak Centre
000 Xxxxxxxxx Xxxx, Xxxxxxx Xxxx Xxxx
Telephone: x000-0-000-0000
Facsimile: x000-0-000-0000
To NuOasis: NuOasis International Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx
Telephone: x00 0000 000000
Facsimile: x00 0000 000000
or to any other address which may hereafter be designated by
either party by notice given in such manner. All notices shall
be deemed to have been given as of the date of receipt.
8.3 This Agreement sets forth the entire understanding between the
parties hereto and no other prior written or oral statement or
agreement shall be recognized or enforced.
8.4 If a court of competent jurisdiction determines that any
clause or provision of this Agreement is invalid, illegal or
unenforceable, the other clauses and provisions of the
Agreement shall remain in full force and effect and the
clauses and provision which are determined to be void, illegal
or unenforceable shall be limited so that they shall remain in
effect to the extent permissible by law.
8.5 Neither party may assign this Agreement without the express
written consent of the other party and any approved assignment
shall be binding on and inure to the benefit of such successor
or, in the event of death or incapacity, on assignor's heirs,
executors, administrators and successors.
8.6 Notwithstanding that this Agreement was negotiated and is
being contracted for in Hong Kong, it shall be governed by the
laws of the Commonwealth of the Bahamas, notwithstanding any
conflict-of-law provision to the contrary.
8.7 If any legal action or other preceding (nonexclusively
including arbitration) is brought for the enforcement of or to
declare any right or obligation under this Agreement or as a
result of a breach, default or misrepresentation in connection
with any of the provisions of this Agreement, or otherwise
because of a dispute among the parties hereto, the prevailing
party will be entitled to recover actual attorney's fees
(including for appeals and collection) and other expenses
incurred in such action or proceeding, in addition to any
other relief to which such party may be entitled.
8.8 Nothing in this Agreement, expressed or implied, is intended
to confer upon any person, other than the parties hereto and
their successors, any rights or remedies under or by reason of
this Agreement, unless this Agreement specifically states such
intent.
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8.9 It is understood and agreed that this Agreement may be
executed in any number of identical counterparts, each of
which may be deemed an original for all purposes.
8.10 At any time, and from time to time after the Closing, each
party will execute such additional instruments and take such
action as may be reasonably requested by the other party to
confirm or perfect title to the Hartcourt Note and the Xxxx
Note to be exchanged hereunder, or otherwise to carry out the
intent and purposes of this Agreement.
8.11 Silver Faith and NuOasis warrant that neither party has
incurred any liability, contingent or otherwise, for brokers'
or finders' fees or commissions relating to this Agreement for
which the other party shall have responsibility. Except as
otherwise provided herein, all fees, costs and expenses
incurred by either party relating to this Agreement shall be
paid by the party incurring same.
8.12 Every right and remedy provided herein shall be cumulative
with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the
same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to Closing, this
Agreement may be amended by a writing signed by all parties
hereto.
8.13 The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
SIGNED AND DELIVERED as a DEED )
)
by: /s/ Silver Faith Development Limited (a Director) )
)
on behalf of )
SILVER FAITH DEVELOPMENT LIMITED )
SIGNED AND DELIVERED as a DEED )
)
by: /s/ NuOasis International Inc. (a Director) )
)
on behalf of )
NUOASIS INTERNATIONAL INC. )
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SCHEDULE "1"
to the
Agreement
dated 30th August, 1996
THE XXXX NOTE
SCHEDULE "2"
to the
Agreement
dated 30th August, 1996
THE ASSIGNMENT
SCHEDULE "3"
to the
Agreement
dated 30th August, 1996
THE HARTCOURT NOTE