AGREEMENT FOR THE PURCHASE OF COMMON STOCK
THIS COMMON STOCK PURCHASE AGREEMENT, (the "AGREEMENT") made this 11th
day of April, 2006, by and among Homeland Integrated Security Systems, Inc.,
whose address is 0 Xxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx ("Buyer")
and Xxxxx Systems, Inc. (Stock Symbol: EVSI.OB), a Texas corporation ("EVSI" or
the "Company") and Xxxx, Xxxxx & Strong II, LP ("Secured Creditor") whose
address is XX Xxx 00, Xxxxxxxxxx, Xxxxx.
WITNESSETH:
WHEREAS, the Company has agreed to sell shares of its common stock, par
value $.01 per share (the "Common Stock") to the Buyer representing 50.1% of the
issued and outstanding shares of Common Stock of the Company (such 50.1 % of
Common Stock being referred to as the "Stock") for the consideration set forth
herein; and
WHEREAS, Buyer wishes to purchase the Stock from the Company so as to
effectuate a corporate restructuring in the form of a reverse split of the
Company's stock and merger with Buyer;
WHEREAS, Secured Party is a creditor of the Company, holding a valid
and subsisting first lien on all of the assets of the Company;
WHEREAS, the Company is in default in its loan obligations to Secured Party;
WHEREAS, the liabilities of the Company exceed the value of the Company's
assets, as reflected in the Company's public filings and its most recent audited
financial statements;
WHEREAS, the Company has no financial means to cure the default, and
the likely result of Secured Party's exercise of its rights under the loan
documents will be a business failure of the Company to the detriment of the
Company's shareholders;
WHEREAS, the Company, in order to avoid foreclose upon all of its
assets and subsequent business failure, has agreed to convey such collateral
assets to Secured Party. In consideration for the assets, Secured Party has
agreed that it will, to the extent of the value of all assets conveyed. to
Secured Party and to the extent of the consideration paid by Buyer, assume: and
pay all of the debts and obligations of the Company as set forth on Exhibit A
attached hereto;
WHEREAS, the Company has agree that the consideration paid by Buyer
under this agreement shall paid to Secured Party, to be used by Secured Party to
pay the obligations of the Company assumed by Secured Party as set forth on
Exhibit A;
WHEREAS, Secured Party, Company and Buyer believe that the proposed corporate
restructure will be in the bests interests of the Company's existing
shareholders, holds the potential to preserve the market value of such
shareholder's stock, and preserves the possibility of enhancing its value in the
future;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Agreement to Purchase and Sell. Company will take all necessary
steps to cause the issuance of the Stock to Buyer, and Buyer agrees to purchase
the Stock, for a total consideration of Five Hundred Thousand ($500,000.00)
Dollars (the "Purchase Price") be payable as follows: $50,000 previously paid
and held as a deposit plus $100,000.00 at Closing by wire transfer, or bank or
certified check; to be paid to the escrow account of Tri State Title & Escrow
(the "Escrow Agent"), and Thirty Five Thousand ($35,000) Dollars per month for a
period of ten (10) months due and payable on the 11th day of each month. In the
event that the 11 day shall be a holiday, Saturday or Sunday, then the said
monthly payment shall be due and payable on the next business day.
a. All payments made under this agreement by Buyer shall be made
payable to the Escrow Agent and shall be held on deposit with the Escrow Agent
and the Escrow Agent shall utilize the funds to satisfy the obligations of the
Company as set forth on Exhibit A. Upon full satisfaction of all payments set
forth on Exhibit A, the Escrow Agent shall release the remaining balance
(including the remaining monthly payments as received) to the Secured Party. The
obligations listed on Exhibit A detail all of the obligations of the Company as
stated in the most recent audited financial statements of the Company. As
reflected on Exhibit A, certain of those obligations will not be paid with the
purchase proceeds, because these obligations are in dispute by the: Company, and
may not ever be paid. As set forth in Section 6, Secured Party agrees to
indemnify and hold harmless the Buyer and the Company from any of the
obligations set forth on Exhibit A. At issuance, $500,000.00 at issue value of
Buyer's Stock shall be placed in escrow with the Escrow Agent. If the fair
market value of the escrowed stock falls below $400,000.00 for five consecutive
days, Buyer shall deposit an additional $100,000.00 (closing price on date of
placement) in Stock with escrow.
b. In the event that the Buyer shall fail to make a timely monthly
payment, such event to be deemed a Default, Buyer shall have the option to cure
said Default upon ten (10) days written notice of such Default from Secured
Party. In the event that Buyer fails to cure said Default within five (5) days
of receipt of the notice of Default, then the entire amount then due and owing
shall become immediately due and payable, and Buyer shall forfeit to Secured
Party the Stock held in escrow. Otherwise, upon satisfactory completion payment
of the Purchase
Price by Buyer, the Stock held in escrow shall be released to Buyer.
2. Closing And Payment.
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a. Subject to the terms and conditions hereof, and in reliance upon the
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written representations and warranties of Buyer the Company will take all
necessary steps to cause the issuance of the Stock to Buyer, and Buyer and,
subject to the terms and conditions hereof, Buyer will purchase, at a single
closing (the "Closing"), the Stock. The Closing shall be held at the offices of
Big Apple Consulting USA, Inc. or by the exchange of documents and instruments
by mail, courier, telecopy and wire transfer, to the extent mutually acceptable
to the parties hereto, on the date first written above or other such date as may
be agreed upon by the Parties (the "Closing Date"). At the Closing, the Company
shall (i) deliver to the Buyer the documents necessary to accomplish the
issuance of the Stock, (ii) deliver the resignation of Xxxxx Xxxxx, Xxx Xxxxxx
and Xxxxx X. Xxxxx as Directors of Company (the "Directors") to be held in
escrow until the effectuation of a the conditions set forth in Section 6; (iii)
deliver a Board of Directors resolution appointing Xxxxx Xxxxx, Xxxxx Xxxxx,
Xxxx Xxxxx and Xxx Xxxxx as Directors of Company to be held in escrow until
effectuation of the conditions set forth in Section 6; and (iv) financial
records of Company and (v) true and correct copies of all business and corporate
records of Company, including but not limited to correspondence files, bank
statements, checkbooks, minutes of shareholder and directors meetings, financial
statements, shareholder listings, stock transfer records, agreements and
contracts. Notwithstanding the above, the parties agree that the shares set
forth above will not be issued until the Company has filed a 14C Information
Statement with the SEC and subsequently filed an amendment to its articles of
incorporation to increase its authorized shares as set forth in Section 6.
b. In consideration for their agreeing to remain on the Board of
Directors until completion of a corporate restructuring, a reverse split and
completion of Buyer's Covenant in Section 5, Buyer has agreed to remit to the
Directors One Thousand ($1,000) Dollars each.
c. In further consideration of the obligations set forth herein the
parties agrees that at Closing the 1) Secured Party will convert a portion of
its debt into 4,000,000 shares of Common Stock at $.05 per share, to be paid by
a credit in the amount of $200,000 to the. note obligation owed to Secured Party
by the Company; 2) the Company will issue 1,000,000 of its Common Stock to
Secured Party for the price of $.05 per share, by conversion of $50,000.00 of
the convertible note obligation held by Secured Party. Such shares shall be free
trading in accordance with Rule 144(k) of the Securities Act of 1933; 3) Buyer
and Company further agree that, after the successful completion of the corporate
restructure, reverse stock split and merger contemplated herein, cause the
issuance of restricted shares in the Company (as restructured after the merger)
to Xxxxx Xxxxx, Xxx Xxxxxx and Xxxxx X. Xxxxx with a collective fair market
value on the date of such issuance of $100,000.00, to be divided equally (1/3
each) among them.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to Buyer that the statements in the following paragraphs
of this Section 3 are all true and complete as of the date hereof:
a. Authority; Due Authorization. This Agreement has been duly and
validly executed and delivered by the Company, and upon the execution and
delivery by Buyer of this Agreement and the performance by Buyer of Buyer's
obligations herein, will constitute, a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except
as such enforcement may be limited by bankruptcy or insolvency laws or other
laws affecting enforcement of creditors' rights or by general principles of
equity.
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b.Title to Stock. The sale and delivery of the Stock to Buyer pursuant
to this Agreement will vest in Buyer legal and valid title to the Stock, free
and clear of all liens, security interests, adverse claims or other encumbrances
of any character whatsoever ("Encumbrances") (other than Encumbrances created by
Buyer and restrictions on resales of the Stock under applicable securities
laws).
c. That as of the date first above mentioned the: Company is current on
all of its expenses, obligations, bills and other payment obligations, except as
stated above and as reflected in the Company's most recent audited financial
statements (the payment of all of which are assumed by Secured Party as provided
herein).
d. The Company has delivered to the Buyer copies of its financial
statements, all of which are true and complete and have been prepared in
accordance with generally accepted accounting principles consistently followed
throughout the period indicated thereon.
e. Except as set forth below, there is currently no litigation or
proceeding pending, or to the Company's knowledge threatened, against or
relating to the Company, its properties, or business, nor does the Company know
or have reasonable grounds to know of any basis for any such action, or of any
governmental investigation relative to the Company, its properties, or business.
Notwithstanding the foregoing and the Company; represents that there is
currently litigation entitled American Cast Iron Pipe, et. al. vs. Chevron USA,
Inc., et. al., including MC Star, an assumed name of the Company, pending in the
United States District Court, Jefferson County, in the State of Texas, and
designated as cause No. DI75632, for which American Management Corporation, the
Company's insurance carrier, has agreed to defend and pay (subject to a
reservation of rights letter) on any liabilities of the Company in this action.
f. No representation or warranty by the Company in this agreement, nor
any statement or certificate furnished or to be furnished to the Buyer pursuant
hereto, or in connection with the transactions contemplated hereby, contains, or
will contain any untrue statement of a material fact, or omits, or will omit to
state, a material fact necessary to make the statements contained herein or
therein not misleading.
g. Except as set forth above, the Company make no representations or
warranties, express or implied, with respect to the Company or any aspect of the
business of the Company and the Purchaser agrees to receive said shares subject
thereto.
h. The provisions of this section shall survive the closing and
termination of this Agreement, and continue throughout the applicable period of
limitations.
4. Representations and Warranties of the Secured Party. The Secured Party hereby
represents and warrants to Buyer that the statements in the following paragraphs
of this Section 4 are all true and complete as of the date hereof:
a.Authority; Due Authorization. This Agreement has been duly and
validly executed and delivered by Secured Party, and upon the execution and
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delivery by Buyer of this Agreement and the performance by Buyer of Buyer's
obligations herein, will constitute, a legal, valid and binding obligation of
the Secured Party enforceable against the Secured Party in accordance with its
terms, except as such enforcement may be limited by bankruptcy or insolvency
laws or other laws affecting enforcement of creditors' rights or by general
principles of equity,
b. No representation or warranty by the Secured Party in this
agreement, nor any statement or certificate furnished or to be furnished to the
Buyer pursuant hereto, or in connection with the transactions contemplated
hereby, contains, or will contain any untrue statement of a material fact, or
omits, or will omit to state, a material fact necessary to make the statements
contained herein or therein not misleading.
c. Except as set forth above, the Secured Party make no representations
or warranties, express or implied, with respect to the Secured Party.
d. The provisions of this section shall survive the closing and
termination of this Agreement, and continue throughout the applicable period of
limitations.
5. Representations and Warranties of Buyer. Buyer hereby represents and warrants
to Secured Party that the statements in the following paragraphs of this Section
5 are all true and complete as of the date hereof:
a. Exempt Transaction. Buyer understands that the offering and sale of
the Stock is intended to be exempt from registration under the Securities' Act
of 1933, as amended (the "Act") and exempt from registration or qualification
under any state law.
b. Buyer represents that he has full power and authority to enter into
this Agreement. This Agreement has been duly and validly executed and delivered
by Buyer, and upon the execution and delivery by Secured Party of this Agreement
and the performance by Secured Party of its obligations herein, will constitute,
a legal, valid and binding obligation of Buyer enforceable against Buyer in
accordance with its terms, except as such enforcement may be limited by
bankruptcy or insolvency laws or other laws affecting enforcement of creditors'
rights or by general principles of equity.
c. The Stock to be purchased by Buyer hereunder will be acquired for
investment for Buyer's own account, not as a nominee or agent, and not with a
view to the public resale or distribution thereof, and Buyer has no present
intention of selling, granting any participation in, or otherwise distributing
the same.
d. Information Concerning the Company. Buyer has conducted its own due
diligence with respect to the Company and its liabilities and believes it has
enough information upon which to base an investment decision in the Stock. With
the exception of any contrary provisions in Section 4, Buyer acknowledges that
Secured Party has made no representations with respect to the Company or its
status, it is being taken "as is" and Secured Party is not making any
representation as to the existence or non-existence of liabilities in the
Company except for the convertible note previously entered into between Xxxx,
Xxxxx & Strong II, LP and the Company.
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e. Investment Experience. The Buyer understands that the purchase of the
Stock involves substantial risk. The Buyer (a) has experience as a purchaser in
securities of companies in the development stage and acknowledges that he can
bear the economic risk of Buyer's investment in the Stock and (b) has such
knowledge and experience in financial, tax, and business matters so as to enable
Buyer to evaluate the merits and risks of an investment in the Stock, to protect
Buyer's own interests in connection with the investment, and to make an informed
investment decision with respect thereto.
f. No Oral Representations. No oral or written representations have been made
other than as stated, or in addition to those stated, in this Agreement, and
Buyer is not relying on any oral statements made by Secured Party, or-any of
Secured Party's representatives or affiliates, in purchasing the Stock.
g. Restricted Securities. Buyer understands that the Stock is
characterized as "restricted securities" under the Act inasmuch as they were
acquired from the Company in a transaction not involving a public offering and
that under the Act, and applicable regulations thereunder.
h. Opinion Necessary. Buyer acknowledges that if any transfer of the
Stock is proposed to be made in reliance upon an exemption under the Act, the
Company may require an opinion of counsel satisfactory to the Company that such
transfer may be made pursuant to an applicable exemption under the Act. Buyer
acknowledges that a restrictive legend appears on the Stock and must remain on
the Stock until such time as it may be removed under the Act.
i. The provisions of this section shall survive the closing and
termination of this Agreement, and continue throughout the applicable period of
limitations.
6. Conditions Precedent. Prior to the shares being released from escrow, the
resignation of the current Directors of the Company being released from escrow
and the appointment of the new officers and directors of the Company being
released from escrow the following conditions shall be met:
a. Company shall have effectuated a reverse split and merger with an
operating and profitable business.
b. The Company shall have file an amendment to its articles of
incorporation with the state of Texas to increase its authorized shares to
300,000,000 shares of common stock, $.001 par value.
Both the reverse split and the amendment to the articles of incorporation shall
require the Company to file 14C Information Statement with the SEC which shall
be filed within five (5) days of the execution of this Agreement. The Company
agrees to use its best efforts to have the 14C approved by the SEC in a timely
manner.
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7. Secured Parry's Indemnification.
-------------------------------
The Secured Party shall indemnify and hold harmless the Buyer and the
Company, their members, officers, directors, agents, employees, attorneys,
accountants, assigns and consultants (collectively "Indemnified Persons") from
and against any losses, damages, expenses and liabilities or actions,
investigations, inquiries, arbitrations, claims or other proceedings in respect
thereof, at all times after the date of this agreement, against and in respect
of
a. All liabilities of the Company of any nature, whether accrued,
absolute, contingent, or otherwise, existing at the date of closing or arising
out of transactions entered into, or any state of facts existing, prior to such
date, as reflected in the Company's most recent audited financial statements,
but only to the extent of the value of all assets conveyed to Secured Party by
the Company in lieu of foreclosure plus the consideration paid by Buyer under
the provisions of Paragraph 1;
b. Any damage or deficiency resulting from any misrepresentation,
breach of warranty, or nonfulfillment of any agreement on the part of the
Secured Party and the Company, or either of them, under this agreement, or from
any misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished to the Buyer hereunder; and
c. All actions, suits, proceedings, demands, assessments, judgments,
costs, attorney's fees, and expenses incident to any of the foregoing. The
Secured Party shall reimburse the Company or the Buyer, on demand, for any
payment made by the Company or the Buyer at any time after the date of closing,
in respect of any liability or claim to which the foregoing indemnity relates.
8. Buyer's Indemnification.
-----------------------
The Buyer shall indemnify and hold harmless the Company and .the
Secured Party, its members, officers, directors, agents, employees, attorneys;
accountants, assigns and consultants (collectively "Indemnified Persons") from
and against any losses, damages, expenses and liabilities or actions,
investigations, inquiries, arbitrations, claims or other proceedings in respect
thereof, at all times after the date of this agreement, against and in respect
of
a. All liabilities of the Buyer of any nature, whether accrued,
absolute, contingent, or otherwise, existing at the date of closing, to the
extent not reflected or reserved against in full in the Buyer's Balance Sheet,
including, without limitation, any. tax liabilities to the extent not so
reflected or reserved against, accrued in respect of or measured by the Buyer's
income for any period prior to the date of closing hereof, or arising out of
transactions entered into, or any state of facts existing, prior to such date;
b. Any damage or deficiency resulting from any misrepresentation,
breach of warranty, or nonfulfillment of any agreement on the part of the Buyer
under this agreement, or from any misrepresentation in or omission from any
certificate or other instrument furnished or to be furnished to the Secured
Party and /or Company hereunder; and
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c. All actions, suits, proceedings, demands, assessments, judgments,
costs, attorney's fees, and expenses incident to any of the foregoing. The Buyer
shall reimburse the Company or the Secured Party, on demand, for any payment
made by the. Company or Secured Party at any time after the date of closing
hereof, in respect of any liability or claim to which the foregoing indemnity
relates.
9. Additional Indemnification Provisions
-------------------------------------
a. Buyer and Secured Party agrees that without an Indemnified Person's
prior written consent it shall not settle any pending or threatened claim,
action, suit or proceeding related to this Agreement unless the settlement also
includes an express unconditional release of all Indemnified Persons from all
liability and obligations arising therefrom, or indemnifying party reaffirms
their obligation, to indemnify for or contribute to losses incurred by any
unreleased Indemnified Person as herein provided.
b. Promptly after receipt of notice of the commencement of any action,
any Indemnified Person will, if a claim in respect thereof is to be made against
any indemnitor hereunder, notify in writing the indemnitor of the commencement
thereof; but omission so to notify an indemnitors will not relieve the
indemnitors from any liability hereunder which they may have to any Indemnified
Person. If the indemnitor so elects, indemnitor may assume the defense of such
Action in a timely manner, including the employment of counsel (reasonably
satisfactory to the Indemnified Person) and payment of expenses, provided
Indemnitors acknowledge in writing its unconditional obligation pursuant to this
agreement to indemnify the Indemnified Person in respect of such Action and
provides to the Indemnified Person evidence reasonably satisfactory to it that
the indemnitor will have the financial resources to conduct such defense
actively and diligently and permit Indemnitee and counsel retained by the
Indemnified Person at its expense to participate in such defense.
Notwithstanding the foregoing, in the event the Indemnified Party determines in
its sole discretion that it is advisable for the Indemnified Person to be
represented by separate counsel, then the indemnitee may employ on behalf of the
Indemnified Person a single separate counsel to represent or defend such
Indemnified Persons in such action, claim, proceeding or investigation and the
indemnitee will pay the reasonable fees and disbursements of such separate
counsel as incurred.
c. In the event of any fundamental change involving the corporate
structure of either party, such as by merger, plan of exchange or sale of all or
substantially all of its assets, any executory obligations of an indemnitor in
this Agreement shall, if not assumed by operation of law, be assumed by contract
by the acquiring entity or arrangements made to protect the interests of
Indemnified Person reasonably satisfactory to it.
d. If multiple claims are brought against an Indemnified Person in any
Action with respect to at least one of which Indemnification is permitted under
applicable law and provided for under this Agreement, the indemnitor agrees that
any judgment, arbitration award or other monetary award shall be conclusively
deemed to be based on claims as to which Indemnification is permitted and
provided for.
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e. If the indemnity referred to in this Agreement should be, for any
reason whatsoever, unenforceable, unavailable or otherwise insufficient to hold
each Indemnified Person harmless, Indemnitors shall pay to or on behalf of each
Indemnified Person contributions for Losses so that each Indemnified Person
ultimately bears only a portion of such Losses as is appropriate (i) to reflect
the relative benefits received by each such Indemnified Person, respectively, on
the one hand and Indemnitors on the other hand in connection with the
transaction or (ii) if the allocation on that basis is not permitted by
applicable law, to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of each such Indemnified Person,
respectively, and Indemnitors as well as any other relevant equitable
considerations.
f. The obligations of the indemnitor referred to. above shall be in
addition to any rights that any Indemnified Person may otherwise have.
10. Termination. Neither Buyer or Secured Party may not, except for a
material breach or failure of a condition or requirement, on or before the
Closing Date, terminate this Agreement.
11. Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties, except that Buyer may not assign or transfer any of its
rights or obligations under this Agreement.
12. Governing Law; Jurisdiction. Any dispute, disagreement, conflict of
interpretation or claim arising out of or relating to this Agreement, or its
enforcement, shall be governed by the laws of the State of Florida. Buyer and
Secured Party hereby irrevocably and unconditionally submit, for themselves and
their property, to the nonexclusive jurisdiction of federal and state courts of
the State of Florida, and any appellate court from any thereof in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such. Florida State, or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Each party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
above. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
below. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law. Each party
hereto hereby waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in any legal proceeding directly or
indirectly arising out of or relating to this agreement or the transactions
contemplated: hereby (whether based on contract, tort or any other theory). each
party hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter
into this agreement by, among other things, the mutual waivers and
certifications in this section.
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13. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement. A telefaxed copy of this Agreement shall
be deemed an original.
14. Headings. The headings and captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement. All references in this Agreement to sections, paragraphs, exhibits
and schedules shall, unless otherwise provided, refer to sections and paragraphs
hereof and exhibits and schedules attached hereto, all of which exhibits and
schedules are incorporated herein by this reference.
15. Costs, Expenses. Each party hereto shall bear its own costs in connection
with the preparation, execution and delivery of this Agreement.
16. Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of Secured Party and the Buyer. No delay or omission to exercise
any right, power, or remedy accruing to Buyer, upon any breach, default or
noncompliance of Secured Party under this Agreement shall impair any such right,
power, or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of any similar breach,
default or noncompliance thereafter occurring. All remedies, either under this
Agreement, by law, or otherwise afforded to Purchaser, shall be cumulative and
not alternative.
17. Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision(s) shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
18. Entire Agreement. This Agreement, together with all exhibits and schedules
hereto, constitutes the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings duties or obligations
between the parties with respect to the subject matter hereof.
19. Notices. All notices must be in writing and sent to the appropriate address
listed above, or to such other address as either party may designate in writing,
by first class mail and either certified mail return receipt requested or
overnight courier service. In the case of certified mail notice shall be deemed
given as of the date of deposit with the United States Postal Service, and in
case of overnight courier service notice shall be deemed given as of the date of
deposit with such overnight courier service.
20. Further Assurances. From and after the date of this Agreement, upon the
request of the Buyer or Secured Party, Buyer, Secured Party and the Company
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
11
SECURED PARTY BUYER
/s/ Skell Strong /s/ Xxxxx Xxxxx
-------------------------------------------- ----------------------------
Xxxx, Xxxxx & Strong II, LP Homeland Integrated Security
By Xxxx, Xxxxx & Strong, LLC, General Partner Systems, Inc.
By: Xxxxxx Strong, authorized Member By: Xxxxx Xxxxx, President
COMPANY
/s/ Xxxxx Xxxxx
--------------------------------------------
Xxxxx Systems, Inc.
By: Xxxxx Xxxxx, President
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ASSIGNMENT OF NOTES
THIS ASSIGMENT OF NOTES dated April 11, 2006 is executed and delivered
by XXXX, XXXXX & STRONG II, LP (Assignor) to BIG APPLE CONSULTING USA, INC., a
Delaware Corporation (Assignee).
Assignor represents and covenants to Assignee that Assignor is the
owner and holder of the Notes described below:
1. Promissory note in the original principal sum of $8,700,000.00 dated
as of August 1997, executed by Xxxxx Systems, Inc. payable to the
order of XX Xxxxxx Xxxxx Bank (or its predecessor in interest).
2. Promissory note in the original principal sum of $1,000,000.00 dated
as of January 26, 2000, executed by Xxxxx. Systems, Inc. payable to
the order of XX Xxxxxx Xxxxx Bank (or its predecessor in interest).
Assignor further represents and covenants to Assignee that:
a. The Notes are valid and subsisting obligations of Xxxxx Systems,
Inc.
b. The Notes were assigned to Assignor in an Assignment dated June
24, 2002, of record in Vol.565, Page 491of the Official Records
of Xxxxxxx County, Texas.
c. The Notes have a current principal and accrued interest balance
of $1,205,775.66.
d. Assignor has the authority to execute this assignment, and such
assignment is not in violation of any of any agreement or
obligation of Assignor to any other party.
e. This assignment delivers clear title and ownership in the Notes
to Assignee.
FOR TWENTY FIVE THOUSAND US DOLLARS, PAYABLE IN CASH, CASHIER'S CHECK OR OTHER
FORM ACCEPTABLE TO ASSIGNOR, AND OTHER GOOD AND VALUABLE CONSIDERATION, RECEIPT
OF WHICH IS HEREBY ACKNOWLEDGED, Assignor assigns transfers and conveys the
Notes to Assignee, without recourse.
Xxxx, Xxxxx & Strong II, LP
By Xxxx, Xxxxx & Strong, LLC, General Partner
By: Xxxxxx Strong, authorized Member
/s/ Xxxxxx Strong
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EXHIBIT A
EVSI Debts and Obligations
Paid by
Method of Payment and Paid out Xxxxxxx &
Amount Payee Source of Obligation Special instructions Payor of Escrow Priority Paid by CSS Xxxxx
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$ 25,000.00 Xxxxxxx & Xxxxx EVSI Audit Paid out of Escrow. Escrow $ 25,000.00 1
$ 31,673.60 Matagorda Co. Personal Property Taxes Paid out of Escrow. Escrow $ 31,673.60 4
$ 75,000.00 Muese Commission Paid out of Escrow. Escrow $ 75,000.00 1
$ 25,000.00 Xxxxxxx Commission Paid out of Escrow. Escrow $ 25,000.00 1
$ 42,649.44 DB&C Legal fees Paid out of Escrow. Escrow $ 42,649.44 1
$101,646.73 Xxxxxxx Co. Personal Property Taxes Paid out of Escrow. Escrow $101,646.73 5
$54,864.96 paid out
of escrow for Black
Cat Store and Edco
bulk plant, $39,000
has been paid,
$25,000 will be paid
by Xxxxxxx & Xxxxx
(Xxxxxx bulk plant
$118,864.96 Matagorda Co. RE taxes property sold to them) Escrow $ 54,864.96 2 $ 25,000.00
$144165.27.24 paid
out of Escrow on
Hungerfor store,
balance will be paid
by CSS in pending
property sales of
Xxxxxxx and Boling
stores
$223,248.24 Xxxxxxx Co. RE taxes ($79,082.97) Escrow $144,165.27 3 $79,082.97
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$643,082.97 $500,000.00 $79,082.97 $ 25,000.00
$604,082.97
Paid $ 39,000.00
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$643,082.97
