EXHIBIT 10.143
COLLATERAL SUBSTITUTION AGREEMENT DATED DECEMBER 29, 1995
BETWEEN THE REGISTRANT AND NG MAN SUN
COLLATERAL SUBSTITUTION AGREEMENT
This Collateral Substitution Agreement (the "Agreement") is made this 29th
day of December 1995, by and between Xxxx Xxxxxxx'x XX Inc, a Colorado
corporation ("Xxxx") and Silver Faith Holdings Limited, a corporation organized
under the laws of Hong Kong ("Silver Faith").
WHEREAS, on May 1, 1995, Xxxx and Dragon Sight International Amusement
(Macau) Company ("Dragon") entered into an Asset Purchase Agreement (the
"Purchase Agreement") pursuant to which Xxxx purchased from Dragon a Net Profits
Interest (as defined in the Purchase Agreement); and,
WHEREAS, a closing of the Asset Purchase Agreement occurred on May 23,
1995; and,
WHEREAS, the consideration delivered to Dragon in the purchase of the Net
Profits Interest consisted of, among other things, a promissory note in the
principal amount of US$3,000,000 (the "Note") and a security agreement of the
same date ("Security Agreement") conveying to Dragon a security interest in
certain securities owned by Xxxx consisting of 250,000 shares of Series B
Preferred Stock of NuOasis Gaming Inc. (the "NuOasis Shares" or "Original
Collateral"); and,
WHEREAS, Silver Faith owns or has the right to acquire the Note, Security
Agreement and Original Collateral; and,
WHEREAS, Xxxx and Silver Faith have agreed to a substitution of certain
other assets of Xxxx for the NuOasis Shares as collateral for the Note and the
Security Agreement.
NOW, THEREFORE, in consideration of and in reliance on the mutual promises
and representations and warranties contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Silver Faith and Xxxx agree as follows:
1. Pledge of Substitute Collateral
In consideration for the release of the NuOasis Shares as the Original
Collateral, as provided for herein, Xxxx hereby pledges and grants to Silver
Faith a security interest in (a) 10,000 shares of no par value common stock of
Fantastic FoodsInternational Inc., a California corporation ("Fantastic
Shares"), (b) 6,000,000 New Class D Warrants to Purchase Common Stock of NuOasis
Gaming Inc., a Delaware corporation (the "NuOasis New Class D Warrants"), and
(c) One Million (1,000,000) shares of capital stock of Cleopatra Palace Limited,
a corporation organized under the laws of Ireland ("Cleopatra Shares").
Collectively, the Fantastic Shares, the NuOasis New Class D Warrants and the
Cleopatra Shares are referred to herein as the "New Collateral", and are valued,
for the purpose of this Agreement, at US$3,000,000 as allocated in Exhibit "A"
attached hereto.
2. Release of Original Collateral
Inconsideration for Nona's assignment and transfer of the New
Collateral, Silver Faith hereby releases any and all claims which it may have to
the NuOasis Shares pursuant to the Note or Security Agreement, or otherwise, and
agrees to convey and deliver to Xxxx, to have and to hold forever, all of Silver
Faith's security interest in the NuOasis Shares, and any claims of Silver Faith
related to the NuOasis Shares. And, Silver Faith warrants that it has the power
and authority, and does hereby agree to transfer same to Xxxx at Closing, free
and clear of all liens and encumbrances.
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3. No Prior Encumbrances or Assignment
Silver Faith represents and covenants that it has not assigned,
pledged or otherwise in any manner whatsoever conveyed or transferred to any
third party the NuOasis Shares, or any security interest therein, either by
instrument in writing or otherwise.
4. Transfer of New Collateral by Xxxx
Xxxx agrees to transfer to Silver Faith, or its designee(s), the New
Collateral pursuant to the following terms and conditions:
A) Assignment. Xxxx will deliver certificates and
other appropriate documents evidencing Nona's
title to the respective securities comprising the
New Collateral, together with properly signed and
guaranteed stock powers, if applicable. Such
assignment shall be made on an assignment separate
from such certificates at Closing.
B) Authority to Transfer. Xxxx represents and
warrants that it has full legal power, right and
authority to enter into this Agreement and to
convey the New Collateral, as provided herein,
free and clear of encumbrances, and that duly
authorized corporate action, if appropriate, has
or will be taken by Xxxx prior to the date of
Closing.
5. Effective Date and Closing
It is mutually understood and agreed that this Agreement may require
the consent and execution of third parties, and, as a result, effecting the
exchange of the Original Collateral for the New Collateral ("Closing") may take
up to 60 days from the date hereof. Notwithstanding the actual date of Closing,
the effective date of this Agreement shall be the date first written above
("Effective Date").
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6. No Detrimental Releases
Silver Faith and Xxxx expressly acknowledge and agree that before
executing this Agreement, each party hereto has been fully informed of the
terms, contents, conditions and effects of this Agreement; that in executing
this Agreement and negotiating the terms thereof, each has had the benefit of
the advise of attorneys of its own choosing; and, that no promise or
representation of any kind has been made to any party by another party hereto,
or anyone acting for them, except as it expressly stated in this Agreement.
7. Miscellaneous
A. Survival of Representations and Warranties. All
representations, warranties, and covenants made by
any party in this Agreement shall survive the
Closing hereunder and the consummation of the
transactions contemplated hereby for three (3)
years from the Closing Date. Silver Faith and Xxxx
are executing and carrying out the provisions of
this Agreement in reliance on the representations,
warranties, and covenants and agreements contained
in this Agreement orat the Closing of the
transactions herein provided for including any
investigation upon which it might have made or any
representations, warranty, agreement, promise, or
information, written or oral, made by the other
party or any other person other than as
specifically set forth herein.
B. Costs and Expenses. Each party shall bear its
share of all costs and expenses incurred in this
proposed exchange and transfer.
C. Further Assurances. At any time and from time to
time, after the effective date, 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 any property
transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
D. Waiver. Any failure of any party to this Agreement
to comply with any of its obligations, agreements,
or conditions hereunder may be waived in writing
by the party to whom such compliance is owed. The
failure of any party to this Agreement to enforce
at any time any of the provisions of this
Agreement shall in no way be construed to be a
waiver of any such provision or a waiver of the
right of such party thereafter to enforce each and
every such provision. No waiver of any breach of
or non-compliance with this Agreement shall be
held to be a waiver of any other or subsequent
breach or non-compliance.
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E. Notices. All notices and other communications
hereunder shall either be in writing and shall be
deemed to have been given if delivered in person,
sent by overnight delivery service or sent by
facsimile transmission, to the parties hereto, or
their designees, as follows:
To Silver Faith:
Silver Faith Holdings Limited Room 3078,
Diamond Square 3/F Shun Tak Centre
000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Telephone: 000-000-0-000-0000
Facsimile: 011-852-2-540-5020
To Xxxx:
Xxxx Xxxxxxx'x XX Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
F. Headings. 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.
G. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of
which together shall constitute one and the same
instrument.
H. Governing Law. Notwithstanding that this Agreement
was negotiated and is being contracted for in
Macau and any conflict-of-law provision to the
contrary, the Agreement shall be governed by the
laws of the United States, State of California.
I. Binding Effect. This Agreement shall be binding
upon the parties hereto and inure to the benefit
of the parties, their respective heirs,
administrators, executors, successors, and
assigns.
J. Entire Agreement. This Agreement contains the
entire agreement between the parties hereto and
supersedes any and all prior agreements,
arrangements, or understandings between the
parties relating to the subject matter of this
Agreement. No oral understandings, statements,
promises, or inducements contrary to the terms of
this Agreement exist. No representations,
warranties, covenants, or conditions, express or
implied, other than as set forth herein, have been
made by any party.
K. Severability. If any part of this Agreement is
deemed to be unenforceable the balance of the
Agreement shall remain in full force and effect.
L. Amendment. This Agreement may be amended only by a
written instrument executed by the parties or
their respective successors or assigns.
M. Facsimile Counterparts. A facsimile, telecopy or
other reproduction of this Agreement may be
executed by one or more parties hereto and such
executed copy may be delivered by facsimile of
similar instantaneous electronic transmission
device pursuant to which the signature of or on
behalf of such party can be seen, and such
execution and delivery shall be considered valid,
binding and effective for all purposes. At the
request of any party hereto, all parties agree to
execute an original of this Agreement as well as
any facsimile, telecopy or other reproduction
hereof.
N. Time is of the Essence. Time is of the essence of
this Agreement and of each and every provision
hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
"Xxxx"
XXXX XXXXXXX'X XX INC.
a Colorado corporation
/s/ Xxxx X. Xxxx
By:----------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Executive Officer
SILVER FAITH HOLDINGS LIMITED
a Hong Kong corporation
By:-----------------------------------------
Name:
Title:
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EXHIBIT "A"
to the
Collateral Substitution Agreement
dated December 29, 1995
NEW COLLATERAL
- Ten Thousand (10,000) shares of common stock of Fantastic
Foods International Inc., a California corporation,
Certificate No. 1, issued June 29, 1993 (the "Fantastic
Shares") valued at US$1,250,000
- Six Million (6,000,000) New Class D Warrants to Purchase
Common Stock of NuOasis Gaming Inc., a Delaware corporation,
Certificate No. (the "NuOasis New Class D Warrants"), valued
at US$250,000.
- One Million (1,000,000) shares of capital stock of Cleopatra
Palace Limited, a corporation organized under the laws of
Ireland, Certificate No. (the "Cleopatra Shares") valued at
US$1,500,000.
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