EXHIBIT 10.1
SECURED PARTY'S XXXX OF SALE
This Secured Party's Xxxx of Sale and Agreement (the "Secured Party's
Xxxx of Sale") is made this 12th day of January, 2001 by and between:
FLEET NATIONAL BANK, Agent, with an office at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (the "Secured Party"); and
Health & Nutrition Systems International, Inc., a Florida corporation
with an office at 0000 Xxxxxxxxxx Xxxx, Xxxxx 0, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000 (the "Purchaser")
in consideration of all amounts required to be paid and performed in accordance
with this Secured Party's Xxxx of Sale.
Sale of Assets.
--------------
1. For good and valuable consideration, and in consideration of the
payment by the Purchaser of the sum of One Hundred Seventy-Nine Thousand
Twenty-Eight and 35/100 ($179,028.35) Dollars (the "Purchase Price"), the
Secured Party hereby sells, assigns, and transfers to the Purchaser all right,
title, and interest of Heritage Consumer Products, LLC, a Delaware limited
liability company (the `Borrower") in and to certain tangible and intangible
personal property comprising certain of the Borrower's business assets
(collectively, the "Purchased Assets") listed on Exhibit "A," annexed hereto and
incorporated herein by reference, in which The Secured Party has been granted a
security interest by the Borrower.
Representations of Secured Party.
--------------------------------
2. The Secured Party warrants and represents that:
a. The Secured Party was granted by the Borrower, and currently holds,
a valid perfected security interest in all of the Purchased Assets.
b. The Secured Party has not previously sold, assigned, transferred, or
encumbered the Purchased Assets.
c. The execution by the Secured Party of this Secured Party's Xxxx of
Sale and the performance by the Secured Party of its obligations hereunder have
been duly authorized by all requisite corporate action. Neither such execution
nor such performance will violate any order of any court or governmental agency
or any agreement by which the Secured Party is bound:
d. This secured party's sale is conducted in accordance with
Section 9-504 of the Uniform Commercial Code.
e. The Purchaser shall acquire all of the Borrower's right, title, and
interest in and to the Purchased Assets free and clear of the lien and security
interest pursuant to which this sale is made, as well as any lien or security
interest subordinate thereto.
Representations and Acknowledgments of Purchaser.
------------------------------------------------
3. The Purchaser acknowledges and agrees that, except as expressly
provided in Paragraph 2, above:
a. This secured party's sale is made WITHOUT any representations or
warranties whatsoever by the Secured Party, whether expressed, implied, or
imposed by law. Without limiting the generality of the foregoing exclusion of
representations and warranties, this secured party's sale is made WITHOUT ANY
WARRANTY OF MERCHANTABILITY and WITHOUT ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE.
b. The Purchaser acknowledges and agrees that the Secured Party is
selling only those Purchased Assets in which the Secured Party has been granted
a security interest by the Borrower, and not any items of leased property or
other items in the possession of the Borrower, but not owned by the Borrower.
c. The Purchaser acknowledges. and agrees that the Purchaser is not
purchasing any of the other assets of the Borrower, all of which are expressly
excluded from this secured party's sale.
d. The Purchaser further warrants and represents that the Purchaser (i)
has made its own independent investigation and evaluation as to the nature and
sufficiency of the Purchased Assets, (ii) is acquiring the Purchased Assets AS
IS and WHERE IS, (iii) has entered into this transaction after consultation with
independent counsel of the Purchaser's own selection, and (iv) is not relying
upon any representation or warranty of the Secured Party in consummating this
transaction.
e. Upon delivery of this Secured Party's Xxxx of Sale, all risk of loss
with respect to the Purchased Assets shall transfer to the Purchaser. The
Purchaser further acknowledges and agrees that by accepting this Secured Party's
Xxxx of Sale, the Purchaser has received all of the Purchased Assets to be
transferred hereunder and the Secured Party has performed all and singular its
obligations to the Purchaser in connection with this transaction.
f. The Purchaser warrants and represents that the Purchaser has full
power and authority to execute, deliver, and perform its agreements set forth
herein, and the person executing and delivering this Secured Party's Xxxx of
Sale in the name, and on behalf of the Purchaser has been duly authorized so to
do.
Remedy for Breach of Representations and Warranties
---------------------------------------------------
4. Upon the determination by a court of competent jurisdiction that any
of the representations or warranties made by the Secured Party as set forth in
Paragraph 2, above, was not materially true. accurate, or complete, the
Purchaser shall be entitled to a refund of all or a portion, as may be
appropriate under the circumstance, of the Purchase Price actually paid by the
Purchaser to the Secured Party. The Purchaser acknowledges and agrees that the
Purchaser's sole and exclusive remedy for any such breach, both at law and in
equity, shall be limited to such a refund. In no event shall the Secured Party
ever be liable to the Purchaser or its successors or assigns for any incidental,
consequential, special, or punitive damages arising out of any breach by the
Secured Party of the terms and conditions of this Secured Party's Xxxx of Sale
or otherwise in any way relating to this transaction or the Purchased Assets.
Indemnification of Secured Party by Purchaser
---------------------------------------------
5. The Purchaser shall indemnify, defend, and hold (i) the Secured
Party, and (ii) and any employee, officer, or agent of the Secured Party (each,
an "Indemnified Person") harmless of and from any claim brought or threatened
against any Indemnified Person by any person or entity (as well as from
attorneys' reasonable fees and expenses in connection therewith) arising out of,
or on account of, facts, circumstances, and occurrences which arise or occur
from and after the date of this Secured Party's Xxxx of Sale due to the acts or
omissions of the Purchaser (each of which may be defended, compromised, settled,
or pursued by the Indemnified Person with counsel of the Secured Party's
selection, but at the expense of the Purchaser) other than any claim as to which
a final determination is made in a judicial proceeding (in which the Secured
Party and any other Indemnified Person has had an opportunity to be heard),
which determination includes a specific. finding that the Indemnified Person
seeking indemnification had acted in a grossly negligent manner or in actual bad
faith.
Miscellaneous
-------------
6. This Secured Party's Xxxx of Sale constitute the entire agreement
between the Secured Party and the Purchaser, shall be construed in accordance
with the internal law of The Commonwealth of Massachusetts without regard to any
conflicts of laws or principles, and is intended to take effect as a sealed
instrument.
a. The Purchaser agrees that any legal action proceeding, case, or
controversy against the Purchaser with respect to this Secured Party's Xxxx of
Sale may be brought in the Superior Court of Suffolk County Massachusetts or in
the United States District Court, District of Massachusetts, sitting in Boston,
Massachusetts, as the Secured Party may elect in the Secured Party's sole
discretion. By execution and delivery of this Secured Party's Xxxx of Sale, the
Purchaser, for itself and in respect of its property, accepts, submits, and
consents generally and unconditionally, to the jurisdiction of the aforesaid
courts.
b. The Purchaser WAIVES personal service of any and all process upon
it, and irrevocably consents to the service of process our of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by certified mail, postage prepaid, to the Purchaser at the Purchaser's
address set forth above.
c. The Purchaser WAIVES, at the option of the Secured Party, any
objection based on forum non conveniens and any objection to venue of any action
or proceeding instituted under this Secured Party's Xxxx of Sale or the
Agreement and consents to the granting of such legal or equitable remedy as is
deemed appropriate by the Court.
d. Nothing herein shall affect the right of the Secured Party to bring
legal actions or proceedings in any other competent jurisdiction.
e. The Purchaser agrees that any action commenced by the Purchaser
asserting any claim or counterclaim arising under or in connection with this
Secured Party's Xxxx of Sale or the Agreement shall be brought in the Superior
Court of Suffolk County Massachusetts or in the United States District Court,
District of Massachusetts, sitting in Boston, Massachusetts, and that such
Courts shall have exclusive jurisdiction with respect to any such action.
Executed at Boston, Massachusetts this 12th day of January, 2001.
"Secured Party"
FLEET NATIONAL BANK, Agent
By: /s/
-----------------------------------
Title: Authorized Officer
-----------------------------------
Date: January 12, 2001
Accepted on the terms set forth herein:
"Purchaser"
HEALTH & NUTRITION SYSTEMS
INTERNATIONAL, INC.
By: /s/Xxxxxxxxxxx Xxxx
-----------------------------------
Title: President
-------------------
Date: January 12, 2001
Consented to by:
HERITAGE CONSUMER PRODUCTS, LLC
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Title: President
-------------------------------------
Date: January 12, 2001
EXHIBIT "A"
Purchased Assets
All "Accutrim inventory described on Schedule 1 hereto, all outstanding purchase
orders, if any, received by the Borrower for "Accutrim" inventory, and the
trademarks relating to the "Accutrim" brand listed on Schedule 2 hereto.
SCHEDULE 1
[HERITAGE HERITAGE CONSUMER PRODUCTS, L.L.C.
LOGO] Analysis of Prepaid Vendor Advances
Account #14050
----------------------------------------------------------------------------------------------------------------------
Reference Description Units (Tablets) Dollars
Garden State Nutritional:
----------------------------------------------------------------------------------------------------------------------
10/16/00 00010939 Acutrim AM (50% deposit P.O. Box #51642 1,521,083 $ 41,025.00
tabs)
----------------------------------------------------------------------------------------------------------------------
00010939 Acutrim PM (50% deposit P.O. Box #51643 1,509,411 $ 39,750.00
tabs)
----------------------------------------------------------------------------------------------------------------------
11/18/00 423127500 Acutrim AM (50% D.P.) addl P.O. Box #451642 1,000,000 $ 13,675.00
tabs due 12/18
----------------------------------------------------------------------------------------------------------------------
11/8/00 423131500 Acutrim PM (50% deposit P.O. Box #51643 500.000 $ 6,625.00
tabs) addl tabs due 12/18
----------------------------------------------------------------------------------------------------------------------
11/10/00 51651-VA Acutrim PM (50% deposit X.X. Xxx #00000 2,000.000 $ 26,500.00
tabs) tabs for Jan. promo
----------------------------------------------------------------------------------------------------------------------
11/10/00 51650-VA Acutrim AM (50% deposit X.X. Xxx #00000 1,875,00 $ 25,640.50
tabs) tabs for Jan. promo
----------------------------------------------------------------------------------------------------------------------
12/4/00 00011067 Acutrim Natural AM & PM P.O. Box #51583/84 $ 812.85
(Bal due prev. orders)
----------------------------------------------------------------------------------------------------------------------
Subtotal $ 154,028.35
----------------------------------------------------------------------------------------------------------------------
SCHEDULE 2
----------------------------------------------------------------------------------------------------------------------
Trademark Registration Number
----------------------------------------------------------------------------------------------------------------------
Acutrim 1266820
----------------------------------------------------------------------------------------------------------------------
