The Notes are secured by, among other security, one or more deeds of trust

 

                                                                    EXHIBIT 10.5

                          ASSIGNMENT OF NOTES AND LIENS

     THIS ASSIGNMENT OF NOTES AND LIENS ("Assignment") dated as of June 24,
2002 is executed and delivered by JPMORGAN CHASE BANK ("Assignor"), to
______________________ ("Assignee").

RECITALS:

     Assignor is the legal and equitable owner and holder of the promissory
notes (the "Notes") described on Exhibit A hereto.

     The Notes are secured by, among other security, one or more deeds of trust
and/or mortgages and one or more security agreements. Such deeds of trust and
mortgages and such security agreements, together with any and all (i) other
security instruments securing payment or performance of all or any part of the
obligations or the Notes, (ii) financing statements filed to perfect the liens
and security interests created under any of the foregoing and (iii) mortgagee
policies of title insurance issued in favor of Assignor insuring the liens
created under any of the foregoing, are herein collectively called the "Security
Documents". The existing deeds of trust included within the Security Documents
are described on Exhibit A hereto, with recording information shown (provided,
however, that Assignor shall have no liability for failure to describe any deed
of trust on Exhibit A hereto or for any error in the information set forth on
Exhibit A hereto, and any applicable deed of trust shall be conveyed hereby
notwithstanding any such failure or error).

ASSIGNMENTS AND AGREEMENTS:

     For good and valuable consideration paid to Assignor and subject to the
following, the receipt and sufficiency of which are hereby acknowledged,
Assignor has TRANSFERRED and ASSIGNED and by these presents TRANSFERS and
ASSIGNS unto Assignee the Notes and the Security Documents.

     Assignor represents that Assignor is the owner and holder of the Notes and
the Security Documents and has all requisite power and authority to make this
assignment and transfer; otherwise, this Assignment of Notes and Liens is
delivered and accepted on the express understanding and agreement, which shall
bind Assignee and each person or entity claiming by, through or under Assignee,
that the Notes and the Security Documents are assigned absolutely WITHOUT
REPRESENTATION, WARRANTY OR RECOURSE as to any matter, including, but not
limited to, (1) the existence, validity, perfection or priority of any of the
liens, assignments, security interests, pledges or other security devices
securing or purporting to secure the Notes or any part thereof or the existence,
validity or enforceability of any subordination of other indebtedness to the
Notes or other Security Documents; (2) the accuracy or completeness of any
statement, appraisal, warranty or representation from any source (except the
limited representation of Assignor set forth in this sentence) made in or in
connection with the Notes or the Security Documents; (3) the financial condition
of the makers of the Notes or any other person who may be obligated, directly or
indirectly, upon the Notes; (4) the value, sufficiency or description of, or
title to, any collateral for the Notes or any property covered or purported to
be

covered by the Security Documents; (5) the performance or observance of any of
the terms, covenants or conditions of the Notes or any Security Document; (6)
the due execution, legality, validity, enforceability, genuineness, sufficiency
or collectibility of the Notes or any of the Security Documents; (7) any
inspection of any of the property, books or records of the makers of the Notes
or any other person who may be obligated, directly or indirectly, upon the
Notes; or (8) any action at any time taken or omitted to be taken by the
Assignor (other than this Assignment of Notes and Liens) in connection with the
Notes or the Security Documents.

     Assignor covenants and agrees that it shall, promptly upon request by
Assignee, execute, deliver, file and record any and all other and further
instruments (including assignments of financing statements and assignments of
deeds of trust and mortgages) which reasonably may be requested by Assignee to
effectuate and to perfect the transactions herein contemplated.

     With the full knowledge and approval of Assignee, Assignor hereby releases
and discharges in its entirety that certain Guaranty dated January 26, 2000
executed by J.L. Evans, Sr. in favor of Assignor, relating to one of the
promissory notes assigned hereby.

     EXECUTED as of the date set forth above.

                                     JPMORGAN CHASE BANK

                                     By:
                                        -----------------------------
                                        Name:
                                        Title:

THE STATE OF TEXAS        (S)
COUNTY OF HARRIS          (S)

     This instrument was acknowledged before me on this ___ day of June, 2002,
by __________________, ________________ of JPMORGAN CHASE BANK, a New York
banking corporation, on behalf of said banking corporation.

                                        ----------------------------------
                                        Notary Public in and for the
                                        State of Texas
                                        Name printed:
                                                     ---------------------
                                        My Commission Expires:
                                                              ------------

                                       -2-

                                    Exhibit A

Notes:

Promissory note in the original principal sum of $8,700,000.00 dated as of
August 4, 1997, executed by Borrower, payable to the order of JP Morgan Chase
Bank (or its predecessor in interest)

Promissory note in the original principal sum of $1,000,000.00 dated as of
January 26, 2000, executed by Borrower, payable to the order of JP Morgan Chase
Bank (or its predecessor in interest)

Deeds of Trust:

Deed of Trust and Security Agreement and Fixture Filing (With Assignment of
Rents) dated June 13, 2001 executed by Diamond Mini Mart, Inc. in favor of David
Mendez, trustee for the benefit of JP Morgan Chase Bank (or its predecessor in
interest) and filed in the real property records of Wharton County, Texas at
Volume 146, Page 40, in the real property records of Jackson County, Texas at
Volume 184, Page 576 and in the real property records of Victoria County, Texas
at Official Records No. 200111414

Deed of Trust and Security Agreement and Fixture Filing (With Assignment of
Rents) dated June 13, 2001 executed by EDCO, Incorporated in favor of David
Mendez, trustee for the benefit of JP Morgan Chase Bank (or its predecessor in
interest) and filed in the real property records of Matagorda County, Texas at
Volume 622, Page 154

Deed of Trust and Security Agreement and Fixture Filing (With Assignment of
Rents) dated March 31, 1999 executed by Diamond Mini Mart, Inc. in favor of
David Mendez, trustee for the benefit of JP Morgan Chase Bank (or its
predecessor in interest) and filed in the real property records of Victoria
County, Texas at Official Records No. 199904905, in the real property records of
Matagorda County, Texas at Volume 536, Page 625, in the real property records of
Brazoria County, Texas at File No. 99-016698 and in the real property records of
Wharton County, Texas at Volume 318, Page 834

Deed of Trust and Security Agreement and Fixture Filing (With Assignment of
Rents) dated March 31, 1999 executed by Evans Systems, Inc. in favor of David
Mendez, trustee for the benefit of JP Morgan Chase Bank (or its predecessor in
interest) and filed in the real property records of Matagorda County, Texas at
Volume 536, Page 677

                                Exhibit A Page 1 

Basic Info X:

Name: The Notes are secured by, among other security, one or more deeds of trust
Type: trust
Date: June 28, 2002
Company: EVANS SYSTEMS INC
State: Texas

Other info: