EXHIBIT 99.5
------------
AMENDED AND RESTATED
EXTENSION, WAIVER AND DEBT CONVERSION AGREEMENT
This Agreement made as of this 1st day of February, 2006 between
XXXxxx.xxx, Inc., a Delaware corporation (the "Company") having a principal
place of business at 000 XX Xxxxxxx 00, Xxxxx Xxxxxxxxxx, XX 00000 and each of
the holders of the Company's outstanding 10% Convertible Extendable Notes
originally due June 8, 2005 (the "10% Convertible Notes"), 6% Convertible Notes
original due October 15, 2005 (the "6% Convertibles Notes" and, together with
the 10% Convertible Notes, the "Convertible Notes") and that Grid Note dated
October 15, 2004 (the "Grid Note" and together with the Convertible Notes, the
"Notes") that have executed this Agreement on Schedule I hereto (which amends
and restates a prior agreement relating to the same subject matter dated as of
January 24, 2006). Such holders are each referred to herein as "Holder" and are
collectively referred to as the "Holders."
WHEREAS, the Holders deem it in their respective best interests to
enter into this Agreement to amend the Convertible Notes to fix the conversion
price at $0.67 and simultaneously convert half of the outstanding principal on
the Notes into shares of the Company's common stock at the rate of $0.67 per
share to enable the Company to obtain financing to pay half of remaining
principal and interest due on the Notes February 3, 2006,
NOW THEREFORE, in consideration of the terms, conditions and agreements
contained in this Agreement, the parties agree as follows:
1. EXTENSION, FORBEARANCE AND WAIVER.
(a) Extension. The Holders hereby agree to extend the
"Maturity Date" defined in the Notes to February 10, 2006 (each an "Extension"
and collectively the "Extensions").
(b) Waiver. The Holders agree to waive (i) any and all prior
defaults on the Notes, if any, and, (ii) with respect to the Convertible Notes,
the Ancillary Documents, as defined in the 10% Convertible Notes and waive any
right to mandatory redemption.
(c) Amendment. Provided the Company has placed or caused to be
placed the sum of $287,999.56 (the "Funds") in escrow with Xxxxxx & Xxxxxxxxx
LLP (the "Paying Agent") for the payment of the amount of the Notes set forth on
Schedule I hereto, on or before February 10, 2006, the Convertible Notes, which
were issued with a conditional conversion feature, are hereby amended to fix the
conversion price at $0.67 and remove any conditions to conversion.
2. ISSUANCE OF SECURITIES.
(a) Provided Xxxxxx & Xxxxxxxxx LLP confirms receipt of the
Funds on or before February 10, 2006, in lieu of repayment of the amount of the
Notes, set forth in Schedule I hereto, the Holders agree to accept shares of the
Company's common stock, calculated at the
rate of $0.67 of principal and interest forgiven per share (the "Shares"), in
full satisfaction of the Company's obligation to repay such amounts due on the
Notes to February 3, 2006. The Company agrees to issue such shares within three
business days of such conversion and cause to be transmitted by overnight
carrier, certificates representing the Shares and an attorney's check
representing the Funds will be transmitted by the second business day after the
original Notes are received by the Paying Agent from the Holder for
cancellation, or the Holder provides Paying Agent with an affidavit of loss and
indemnity. Notwithstanding the foregoing, the Company will pay the Holders daily
interest from February 3, 2006 to the date it deposits or causes the deposit of
the Funds with the Paying Agent at the rate set forth on Schedule I hereto.
(b) The certificate, in due and proper form, representing the
shares will be registered in the name of the respective Holder and bear a legend
substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT OF 1933 OR
AN OPINION OF COUNSEL THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT".
3. HOLDERS' REPRESENTATIONS AND WARRANTIES.
Each Holder, severally and not jointly, hereby acknowledges, represents
and warrants to, and agrees with, the Company as follows:
(a) The Holder has the authority and power, corporate and
otherwise to enter into this Agreement.
(b) The Holder has the financial ability to bear the economic
risk of his investment, has adequate means for providing for his current needs
and personal contingencies and has no need for liquidity with respect to his
investment in the Company.
(c) The Holder is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D under the Act (17 C.F.R. 230.501(a)).
(d) The Holder has made an independent investigation of the
Company's business, and is relying solely on the information contained in the
Company's reports filed under Sections 13 or 15(d) of the Securities Exchange
Act of 1934, as amended.
(e) The Holder has not transferred or assigned any interest in
their Note to a third party.
2
(f) The foregoing representations, warranties and agreements
shall survive the delivery of the Shares under the Agreement.
4. COMPANY REPRESENTATIONS AND WARRANTIES.
The Company hereby acknowledges, represents and warrants to, and agrees
with the Holders as follows:
(a) The Company has been duly organized, is validly existing
and is in good standing under the laws of the State of Delaware. The Company has
full corporate power and authority to enter into this Agreement and this
Agreement has been duly and validly authorized, executed and delivered by the
Company and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforcement may
be limited by the United States Bankruptcy Code and laws effecting creditors
rights, generally.
(b) Subject to the performance by the Holders of their
respective obligations under this Agreement and the accuracy of the
representations and warranties of the Holder, the offering and sale of the
shares will be exempt from the registration requirements of the Act.
(c) The execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement in accordance
with the terms of this Agreement will not contravene any provision of applicable
law or the charter documents of the Company or any agreement or other instrument
binding upon the Company, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement in accordance with the terms of this Agreement.
(d) The foregoing representations, warranties and agreements
shall survive the Closing.
5. RELEASE.
Effective as of February 3, 2006 subject to the Paying Agent's
confirmation that the Funds have been deposited on or before February 10, 2006,
the Holders release and forever discharge the Company of and from all and all
manner of actions, suits, debts, sums of money, contracts, agreements, claims
and demands at law or in equity, that Holders had, or may have arising from the
Notes, except
(a) obligations arising under this Agreement; and
(b) any registration rights contained in the Notes or
agreement relating to the Convertible Notes, securities of the Company issued on
conversion of the Convertible Notes or other securities of the Company held by
the respective Holder that would, by its terms, give such Holder registration
right with respect to the Shares.
3
6. OBLIGATION IRREVOCABLY AND SEVERAL.
The Holders obligations under this Agreement are several and not joint
and will be effective and irrevocable upon the receipt of an executed
counterpart of this Agreement signed by each Holder.
7. MISCELLANEOUS.
(a) Modification. Neither this Agreement nor any provisions
hereof shall be modified, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, change, discharge or
termination is sought.
(b) Notices. Any notice, demand or other communication which
any party hereto may be required, or may elect, to give to anyone interested
hereunder shall be sufficiently given if (a) deposited, postage prepaid, in a
United States mail letter box, registered or certified mail, return receipt
requested, addressed to such address as may be given herein, or (b) delivered
personally at such address.
(c) Counterparts. This Agreement may be executed through the
use of separate signature pages or in any number of counterparts, and each of
such counterparts shall, for all purposes, constitute one agreement binding on
all the parties, notwithstanding that all parties are not signatories to the
same counterpart.
(d) Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
assigns. If the undersigned is more than one person, the obligation of the
Investor shall be joint and several, and the agreements, representations,
warranties and acknowledgments herein contained shall be deemed to be made by
and be binding upon each such person and his heirs, executors, administrators
and successors.
(e) Entire Agreement. This instrument contains the entire
agreement of the parties, and there are no representations, covenants or other
agreements except as stated or referred to herein.
(f) Applicable Law. This Agreement shall be governed and
construed under the laws of the State of New York.
(g) Termination. This Agreement shall have no further cause or
effect if the Company has not deposited the Funds or caused the Funds to be
deposited with the Paying Agent on or before February 10, 2006.
[SIGNATURE PAGE FOLLOWS]
4
IN WITNESS WHEREOF, the Company and Holders have executed or caused
this Agreement to be executed and delivered by their respective officers and
Trustees, thereunto duly authorized.
XXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
----------------------
Xxxx Xxxxxxxx, CEO
[HOLDER SIGNATURE PAGES FOLLOW]
5
SCHEDULE I
XXXXXX.XXX, INC.
AMENDED AND RESTATED
EXTENSION, WAIVER AND DEBT CONVERSION AGREEMENT
DATED AS OF FEBRUARY 1, 2006
IN WITNESS WHEREOF, the undersigned holder of the Company's 10%
Convertible Extendable Note originally due June 8, 2005 has caused this
Agreement to be duly executed as of January 24, 2006.
BEAUFORT VENTURES, LTD.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
Total Amount Due: $258,484.75
Amount Converted: $129,242.38
Shares: 192,900
Payment: $129,242.38
Daily Interest: $68.97
Delivery Instructions:
000 Xxxxx Xxxx
Xxxxxx XX0 0XX Xxxxxx Xxxxxxx
6
SCHEDULE I
XXXXXX.XXX, INC.
AMENDED AND RESTATED
EXTENSION, WAIVER AND DEBT CONVERSION AGREEMENT
DATED AS OF FEBRUARY 1, 2006
IN WITNESS WHEREOF, the undersigned holder of the Company's 10%
Convertible Extendable Note originally due June 8, 2005 has caused this
Agreement to be duly executed as of January 24, 2006.
BRUGES REALTY CORP. CHARITABLE
REMAINDER TRUST U/A/D 5/31/01
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Trustee
Total Amount Due: $103,393.90
Amount Converted: $51,696.95
Shares: 77,160
Payment: $51,696.95
Daily Interest: $27.59
Delivery Instructions:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX
7
SCHEDULE I
XXXXXX.XXX, INC.
AMENDED AND RESTATED
EXTENSION, WAIVER AND DEBT CONVERSION AGREEMENT
DATED AS OF FEBRUARY 1, 2006
IN WITNESS WHEREOF, the undersigned holder of the Company's Grid Note
due October 15, 2005 has caused this Agreement to be duly executed as of January
24, 2006.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Total Amount Due: $51,912.13
Amount Converted: $25,956.07
Shares: 38,741
Payment: $25,956.07
Daily Interest: $7.87
Delivery Instructions:
c/o Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
8
SCHEDULE I
XXXXXX.XXX, INC.
AMENDED AND RESTATED
EXTENSION, WAIVER AND DEBT CONVERSION AGREEMENT
DATED AS OF FEBRUARY 1, 2006
IN WITNESS WHEREOF, the undersigned holder of the Company's 6%
Convertible Note due October 15, 2005 has caused this Agreement to be duly
executed as of January 24, 2006.
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Total Amount Due: $108,166.67
Amount Converted: $54,083.33
Shares: 80,722
Payment: $54,083.33
Daily Interest: $16.67
Delivery Instructions:
c/o Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
9
SCHEDULE I
XXXXXX.XXX, INC.
AMENDED AND RESTATED
EXTENSION, WAIVER AND DEBT CONVERSION AGREEMENT
DATED AS OF FEBRUARY 1, 2006
IN WITNESS WHEREOF, the undersigned holder of the Company's 6%
Convertible Note due October 15, 2005 has caused this Agreement to be duly
executed as of January 24, 2006.
STORTFORD HOLDINGS LTD.
By: /s/ Xxxxx Xxxxx
----------------------
Name: Xxxxx Xxxxx
Title:
Total Amount Due: $54,041.67
Amount Converted: $27,020.83
Shares: 40,330
Payment: $27,020.83
Daily Interest: $8.33
Delivery Instructions:
c/o Euroba Management Ltd.
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX00 Xxxxxxx
10
