EXHIBIT 10.1
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AGREEMENT OF SALE
AGREEMENT OF SALE, made as of January __, 2003, between XXXXxx.xxx, Inc., a
Delaware corporation, having an address at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx, ("Seller"), and National Management Consultants, Inc. (formerly
Universal Media Holdings, Inc.), a Delaware corporation,
having an address at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser desires to acquire, and Seller desires to sell, the assets of
Seller, as set forth on Exhibit A, annexed hereto, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements hereafter set
forth, and other valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties here-to agree as follows:
1. AGREEMENT TO SELL. Seller agrees to sell, transfer and deliver to
Purchaser, and Purchaser agrees to purchase, upon the terms and conditions
hereinafter set forth, the business entity known as Diversified Capital
Holdings, LLC, a/k/a Azure Capital, LLC including all of the assets thereof
other than cash, certificates of deposit, securities, and cash equivalents, and
the entity known as CDKNet, LLC. (the "Assets" and the "Purchased
Entities"), including without limitation the following:
(a) the contracts and agreements described in Exhibit A hereto (the
"Contracts");
(b) the other assets described in Exhibit A hereto (the "Other Assets").
2. PURCHASE PRICE. The purchase price to be paid by Purchaser is Three
Hundred Thirty-nine Thousand Dollars ($339,000.00), payable as follow33
(a) Three Hundred Thirty-nine Thousand Dollars ($339,000.00) at the closing
by theexecution and delivery of a Promissory Note by Purchaser to Seller
in saidamount, substantially in the form of Exhibit B hereto (the "Promissory
Note"),secured by a Security Agreement substantially in the form of Exhibit C
heretoand UCC Financing Statements creating a security interest in the assets
of the Business (the "Security Agreement").
(b) If any investment holdings of the Purchased Entities are sold, or in the
event that there are licensing revenues realized, then a minimum of FIFTY
Percent (50%) of the proceeds must be paid to seller and applied on the
outstanding balance of the Note, without any prepayment penalties such sums
shall be paid prior to the issuance of any release of the security interests
then existing on the Purchased Entities or Assets.
3. THE CLOSING. The "closing" means the settlement of the obligations of
Seller and Purchaser to each other under this agreement, including the payment
of the purchase price to Seller as provided in Article 1 hereof and the delivery
of the closing documents pro-vided for in Article 4 hereof. The closing shall
be held at the offices of Universal Media Holdings, Inc., 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000, at 10 A.M. on or about January __, 2003 (the "closing
date").
4. CLOSING DOCUMENTS. At the closing Seller shall execute and de-liver to
Purchaser:
(a) a Xxxx of Sale and Assignment of LLC Ownership Interests that is
substantially in the form of Exhibit D hereto;
(b) certified copies of resolutions duly adopted by the Board of Directors and
shareholders of Seller authorizing the sale of the Assets and the performance by
Seller of its obligations hereunder;
(d) an opinion of Seller's counsel, Xxxxxxx X. Xxxxx, P.C., dated as of the
closing date, stating such counsel's opinion that: (i) Seller is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware; (ii) Seller has full power and authority, corporate and otherwise, to
enter into this agreement and perform its obligations hereunder; (iii) the
execution and delivery of this agreement and the performance by Seller of its
obligations hereunder have been duly authorized by the Board of Directors and
shareholders of Seller and no further action or approval is required in order
to constitute this agreement as the binding obligation of Seller, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, moratorium, insolvency or other laws affecting creditor's rights
generally; (iv) the execution and delivery of this agreement and the performance
by Seller of its obligations hereunder do not and will not violate any provision
of the Certificate of Incorporation or Bylaws of Seller; and (v) except as may
be set forth in this agreement, such counsel is not representing Seller in any
suit, action or proceeding against Seller which, if adversely determined, would
prohibit the con-summation of the transactions contemplated by this agreement;
and
(e) such other instruments as may be necessary or proper to transfer to
Purchaser all other ownership interests in the Assets to be transferred under
this agreement
At the closing Purchaser shall execute and deliver to Seller:
(a) the Promissory Note, Security Agreement and UCC Financing Statements
provided for in Article 2 hereof;
(b) certified copies of resolutions duly adopted by the Board of Directors and
shareholders of Purchaser authorizing the purchase of the Assets and the
performance by Purchaser of its obligations hereunder;
(c) An opinion of Purchaser's counsel, dated as of the closing date, stating
such counsel's opinion that: (i) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of Delaware; (ii)
Purchaser has full power and authority, corporate and otherwise, to enter into
this agreement and perform its obligations hereunder; (iii) the execution and
delivery of this agreement and the performance by Purchaser of its obligations
hereunder have been duly authorized by the Board of Directors and shareholders
of Purchaser and no further action or approval is required in order to
constitute this agreement as the binding obligation of Purchaser, enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, moratorium, insolvency or other laws affecting creditor's rights
generally; (iv) the execution and delivery of this agreement and the
performance by Purchaser of its obligations hereunder do not and will not
violate any provision of the Certificate of Incorporation or Bylaws of
Purchaser; and (v) except as may be set forth in this agreement, such counsel is
not representing Purchaser in any suit, action or proceeding against Purchaser
which, if adversely determined, would prohibit the consummation of the
transactions contemplated by this agreement.
5. THE SECURITY AGREEMENT. The Security Agreement shall create a security
interest in the goods, chattels and all other personal property included in this
sale and all other personal property acquired after the closing by Purchaser and
used in connection with the business, together with all proceeds thereof and all
increases, substitutions, replacements and additions thereto.
Purchaser agrees to perfect the security interest of the Security Agreement by
executing and delivering to Seller appropriate Financing Statements and
extensions and renewals thereof, in accordance with the provisions of the
Uniform Commercial Code, and all other instruments or documents as may be
reasonably requested by Seller. All filing fees in connection therewith shall
be paid by Purchaser.
6. WAIVER OF BULK TRANSFER REQUIREMENTS. The parties waive compliance with
the bulk transfer provisions of the Uniform Commercial Code which may be
applicable to this transaction. Seller agrees to indemnify Purchaser against
all claims made by the creditors of Seller.
7. USE OF PURCHASE PRICE TO PAY ENCUMBRANCES. If there is any lien or
encumbrance against the Assets, or anything else affecting this sale, which
Seller is obligated to pay and discharge at the closing, Seller may use any
portion of the balance of the purchase price to discharge it, or Seller may
allow to Purchaser the amount thereof as a credit at the closing. Purchaser
agrees to provide separate certified checks as reasonably requested to assist in
clearing up these matters.
8. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Purchaser as follows:
(a) Seller is a corporation duly organized and validly existing under the laws
of Delaware, and is duly qualified to do business in New York. Seller has full
power and authority to conduct its business as now carried on, and to carry out
and perform its undertakings and obligations as provided herein. The execution
and delivery by Seller of this agreement and the consummation of the
transactions contemplated herein have been duly authorized by the Board of
Directors of Seller and will not conflict with or breach any provision of the
Certificate of Incorporation or Bylaws of Seller.
(b) No action, approval, consent or authorization of any governmental authority
is necessary for Seller to consummate the transactions contemplated hereby.
(c) Seller is the owner of and has good and marketable title to the Assets,
free of all liens, claims and encumbrances, except as may be set forth herein.
(d) There are no violations of any law or governmental rule or regulation
pending against Seller or the Assets.
(e) There are no judgments, liens, suits, actions or proceedings pending
against Seller or the Assets.
(f) Seller has not entered into, and the Assets are not subject to, any: (i)
written contract or agreement for the employment of any employee of the
business; (ii) con-tract with any labor union or guild; (iii) pension,
profit-sharing, retirement, bonus, insurance, or similar plan with respect to
any employee of the business; or (iv) similar contract or agreement affecting or
relating to the Assets.
(g) At the time of the closing, there will be no creditors of Seller.
(h) The Contracts are in full force and effect and with-out any default by
Seller thereunder. All copies of the Contracts provided by Seller to Purchaser
are true and complete copies of the original Contracts. Seller is not indebted
under any executory Contracts, except as may be set forth in Exhibit A-1 hereto.
9. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a corporation duly organized and validly existing under the
laws of Delaware, and is duly qualified to do business in New York. Purchaser
has full power and authority to carry out and perform its under-takings and
obligations as provided herein. The execution and delivery by Purchaser of
this agreement and the consummation of the transactions contemplated herein have
been duly authorized by the Board of Directors of Purchaser and will not
conflict with or breach any provision of the Certificate of Incorporation or
Bylaws of Purchaser.
(b) No action, approval, consent or authorization of any governmental authority
is necessary for Purchaser to con-summate the transactions contemplated hereby.
(c) There are no judgments, liens, suits, actions or proceedings pending or, to
the best of Purchaser's knowledge, threatened against Purchaser or its
property.
10. NO OTHER REPRESENTATIONS. Purchaser acknowledges that neither Seller nor
any representative or agent of Seller has made any re-presentation or warranty
(expressed or implied) regarding the Assets or the business, or any matter or
thing affecting or relating to this agreement, except as specifically set forth
in this agreement. Seller shall not be liable or bound in any manner by any
oral or written statement, representation, warranty, agreement or information
pertaining to the Assets or the business or this agreement furnished by any
broker, agent or other person, unless specifically set forth in this agreement.
Purchaser has inspected the Assets, Purchaser agrees to take the Assets "as is"
and in their present condition, subject to reasonable use, wear, tear and
deterioration between now and the closing date.
11. CONDUCT OF THE BUSINESS. Seller, until the closing, shall:
(a) conduct the business in the normal, useful and regular manner;
(b) use its best efforts to preserve the business and the goodwill of the
customers and suppliers of the business and others having relations with
Seller; and
(c) give Purchaser and its duly designated representatives reasonable access
to Seller's premises and the books and records of the business, and furnish to
Purchaser such data and information pertaining to Seller's business as
Purchaser from time to time reasonably may request.
Unless and until the closing shall take place, Purchaser shall hold in
confidence all information obtained in connection with this agreement, and, if
for any reason the closing shall not take place, Purchaser shall return to
Seller all documents received hereunder.
12. EXPENSES BEFORE AND AFTER THE CLOSING. Except as otherwise provided in
this agreement, Seller shall be liable for the payment of all bills for
merchandise, goods and inventory delivered to the business before the closing;
and Purchaser shall be liable for the payment of all bills for merchandise,
goods and inventory delivered to the business after the date of the closing.
Seller shall be liable for the payment of all salaries, payroll deductions and
taxes levied upon the employer in connection with the employee's work performed
before the closing. Purchaser shall be responsible for the payment of all
salaries, payroll deductions and taxes levied upon the employer in connection
with the employee's work performed after the closing.
13. CONDITIONS TO CLOSING. The obligations of the parties to close hereunder
are subject to the following conditions:
(a) All of the terms, covenants and conditions to be complied with or performed
by the other party under this agreement on or before the closing shall have been
com-plied with or performed in all material respects.
(b) All representations or warranties of the other party herein are true in all
material respects as of the closing date.
(c) On the closing date, there shall be no liens or en-cumbrances against the
Assets, except as may be provided for herein.
If Purchaser shall be entitled to decline to close the transactions contemplated
by this agreement, but Purchaser nevertheless shall elect to close, Purchaser
shall be deemed to have waived all claims of any nature arising from the failure
of Seller to comply with the conditions or other provisions of this agreement of
which Purchaser shall have actual knowledge at the closing.
14. BROKERAGE. The parties hereto represent and warrant to each other that
they have not dealt with any broker or finder in connection with this agreement
or the transactions contemplated hereby, and no broker or any other person is
entitled to receive any brokerage commission, finder's fee or similar
compensation in connection with this agreement or the transactions contemplated
hereby. Each of the parties shall indemnify and hold the other harmless from
and against all liability, claim, loss, damage or expense, including reasonable
attorneys' fees, pertaining to any broker, finder or other person with whom such
party has dealt.
15. NOTICES. All notices, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been properly given if delivered by hand or by Federal Express courier or by
registered or certified mail, re-turn receipt requested, with postage prepaid,
to Seller or Purchaser, as the case may be, at their addresses first above
written, or at such other addresses as they may designate by notice given
here-under.
16. SURVIVAL. The representations, warranties and covenant contained herein
shall survive the delivery of the Xxxx of Sale and shall continue in full force
and effect after the closing, except to the extent waived in writing.
17. FURTHER ASSURANCES. In connection with the transactions contemplated by
this agreement, the parties agree to execute and deliver such further
instruments, and to take such further actions, as may be reasonably necessary or
proper to effectuate and carry out the transactions contemplated in this
agreement.
18. ENTIRE AGREEMENT. This agreement contains all of the terms agreed upon
between Seller and Purchaser with respect to the subject matter hereof. This
agreement has been entered into after full investigation. All prior oral or
written statements, representations, promises, understandings and agreements of
Seller and Purchaser are merged into and superseded by this agreement, which
alone fully and completely expresses their agreement.
19. CHANGES MUST BE IN WRITING. No delay or omission by either Seller or
Purchaser in exercising any right shall operate as a waiver of such right or any
other right. This agreement may not be altered, amended, changed, modified,
waived or terminated in any respect or particular unless the same shall be in
writing signed by the party to be bound. No waiver by any party of any breach
here-under shall be deemed a waiver of any other or subsequent breach.
20. CAPTIONS AND EXHIBITS. The captions in this agreement are for convenience
only and are not to be considered in construing this agreement. The Exhibits
annexed to this agreement are an integral part of this agreement, and where
there is any reference to this agreement it shall be deemed to include said
Exhibits.
21. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the State of New York. If any provisions of this
agreement shall be unenforceable or invalid, such unenforceability or invalidity
shall not affect the remaining provisions of this agreement.
22. BINDING EFFECT. This agreement shall not be considered an offer or an
acceptance of an offer by Seller, and shall not be binding upon Seller until
executed and delivered by both Seller and Purchaser. Upon such execution and
delivery, this agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
CDKNET, INC.
By ________________________
President
NATIONAL MANAGEMENT CONSULTANTS, INC.
(formerly UNIVERSAL MEDIA HOLDINGS, INC.)
By ________________________
President
EXHIBIT A
OTHER ASSETS AND LIABILITIES
Assets of Diversified Capital Holdings, LLC., as listed herein:
Debt Instruments in:
Panama Industries, Ltd.
Dominix, Inc.
Augrid of Nevada, Inc.
Other Assets:
Assets of CDKNet, LLC, not already listed:
CD Duplication equipment with Capital Collateral Account
Liabilities of Diversified Capital Management, LLC and CDKNet, LLC:
Note on CD Duplication equipment (or leases ?)
EXHIBIT B
PROMISSORY NOTE
STATE OF NEW YORK, COUNTY OF , ss.
January __, 2003 $339,000.00
FOR VALUE RECEIVED, National Managament Consultants, Inc. (formerly
Universal Media Holdings, Inc.), a Delawarecorporation, having an address at 000
Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX 1174("Maker"), hereby covenants and promises to
pay to CDKNet, Inc., a Delawarecorporation, having an address at 000 Xxxxxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx ,("Payee"), or order, at Payee's address first above
written or at such other address as Payee may designate in writing, Five Hundred
Fifty Thousand Dollars ($339,000.00), lawful money of the United States of
America, together with interest thereon computed from the date hereof at the
rate of five percent (5%) per annum, which principal and interest shall be
payable in equal monthly installments of Sixteen Thousand Four Hundred
Eighty-Four Dollars and 12/100ths Dollars ($9,905.59) each, commencing on the
16th day of February, 2003, and continuing on the 16th day of each month
thereafter, to be applied first against accrued interest at the aforesaid rate
on the outstanding principal amount, and then in reduction of principal, until
February 16, 2006 on which date all outstanding principal and accrued interest
shall be due and payable.
MAKER COVENANTS AND AGREES WITH PAYEE FOLLOWING:
1. Maker will pay the indebtedness evidenced by this Note as provided
herein.
2. This Note is secured by a Security Agreement of even date herewith
(the "Security Agreement"). All of the terms, covenants and conditions,
contained in the Security Agreement are expressly incorporated by reference
herein and hereby made a part hereof. In the event of any conflict between the
provisions of this Note and the provisions of the Security Agreement, the terms
of the Security Agreement shall be paramount and shall govern.
3. In the event any payment due hereunder shall not be paid on the
date when due, such payment shall bear interest at the lesser of 8 percent per
annum or the highest lawful rate permitted under applicable law, from the date
when such payment was due until paid. This paragraph shall not be deemed to
extend or otherwise modify or amend the date when such payments are due
hereunder. The obligations of Maker under this Note are subject to the
limitation that payments of interest shall not be required to the extent that
the charging of or the receipt of any such payment by Payee would be contrary to
the provisions of law applicable to Payee limiting the maximum rate of interest
which may be charged or collected by Payee.
4. The holder of this Note may declare the entire unpaid amount of
principal and interest under this Note to be immediately due and payable if
Maker defaults in the due and punctual payment of any installment of principal
or interest hereunder.
5. Maker shall have the right to prepay the indebtedness evidenced by
this Note, in whole or in part, without penalty, upon ten days prior written
notice to Payee. The installment payments provided for herein shall continue
without change after any such prepayment.
6. Maker, and all guarantors, endorsers and sureties of this Note,
hereby waive presentment for payment, demand, protest, notice of protest, notice
of nonpayment, and notice of dishonor of this Note. Maker and all guarantors,
endorsers and sureties con-sent that the holder of this Note at any time may
extend the time of payment of all or any part of the indebtedness secured
hereby, or may grant any other indulgences.
7. Any notice or demand required or permitted to be made or given
hereunder shall be deemed sufficiently given or made if given by personal
service or by Federal Express courier or by certified or registered mail,
return receipt requested, addressed, if to Maker, at Maker's address first above
written, or if to Payee, at Payee's address first above written. Either party
may change its address by like notice to the other party.
8. This Note may not be changed or terminated orally, but only an
agreement in writing signed by the party against whom enforcement of any change,
modification, termination, waiver, or discharge is sought. This Note shall be
construed and enforced in accordance with the laws of New York.
IN WITNESS WHEREOF Maker has executed this Note as of the date first
above written.
NATIONAL MANAGEMENT CONSULTANTS, INC.
(formerly UNIVERSAL MEDIA HOLDINGS, INC.)
By ________________________
President
EXHIBIT C
SECURITY AGREEMENT
AGREEMENT, dated as of January __, 2003, between National
Management Consultants, Inc. (formerly Universal Media Holdings, Inc.), a
Delaware corporation, having an address at 000 XxxxxxxxxxxXxxx, Xxxxxxxx, XX
00000 ("Debtor"), and CDKNet, Inc., a Delaware corporation,having an address
at New York, ("Secured Party").
W I T N E S S E T H:
WHEREAS, concurrently herewith Secured Party is lending to Debtor the
sum of $339,000.00, as evidenced by a Promissory Note of even date herewith (the
"Note"); and
WHEREAS, in order to induce Secured Party to make said loan, Debtor
has agreed to pledge to Secured Party certain property as security for the loan;
NOW THEREFORE, in consideration of Ten Dollars, and other valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. The following terms as used in this Agreement shall
have the meanings set forth below:
"Collateral" shall mean all of the property set forth in Exhibit A attached
hereto and made a part hereof, and all property of the same class or character
acquired by Debtor subsequent to the date hereof, and all proceeds thereof, and
all substitutions, replacements and accessions thereto.
"Obligations" shall mean all principal and interest due or to become due under
the aforesaid Note, and any other indebtedness or liability of Debtor to Secured
Party, direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising.
2. CREATION OF THE SECURITY INTEREST. Debtor hereby grants to
Secured Party a security interest in all of the right, title and interest of
Debtor in and to the Collateral to secure the full and prompt payment and
performance of all of the Obligations.
3. DEBTOR'S OBLIGATIONS TO PAY. Debtor shall pay and perform all of
the Obligations of Debtor to Secured Party as the same may become due according
to their terms. Debtor shall be liable for, and shall reimburse to Secured
Party, all expenses, including reasonable attorneys' fees, incurred or paid in
connection with establishing, perfecting, maintaining, protecting or enforcing
any of Secured Party's rights and remedies hereunder.
4. PROTECTION OF THE COLLATERAL. Debtor shall defend the title to
the Collateral against all claims and demands whatsoever. Debtor shall keep
the Collateral free and clear of all liens, charges, encumbrances, taxes and
assessments, and shall pay all taxes, assessments and fees relating to the
Collateral. Upon request by Secured Party, Debtor shall furnish further
assurances of title, execute any further instruments and do any other acts
necessary to effectuate the purposes and provisions of this Agreement. The
risk of loss of the Collateral at all times shall be borne by Debtor. Debtor
shall keep the Collateral in good repair and condition and shall not misuse,
abuse or waste the Collateral or allow the Collateral to deteriorate except for
normal wear and tear.
The Collateral shall be kept at Debtor's place of business set forth
above, except for temporary removal in connection with its ordinary use or
unless Debtor shall have obtained the prior written consent of Secured Party for
its removal to another location. Secured Party shall have the right to enter
upon Debtor's premises at any reasonable time, and from time to time, to inspect
the Collateral.
5. FILING AND RECORDING. Debtor, at its own cost and expense, shall
execute and deliver to Secured Party any financing statements, and shall procure
for Secured Party any other documents, necessary or appropriate to protect the
security interest granted to Secured Party hereunder against the rights and
interests of third parties, and shall cause the same to be duly recorded and
filed in all places necessary to perfect the security interest of Secured Party
in the Collateral. In the event that any recording or refiling thereof (or
filing of any statements of continuation or assignment of any financing
statement) is required to protect and preserve such security interest, Debtor,
at its own cost and expense, shall cause the same to be re-recorded and/or
refiled at the time and in the manner requested by Secured Party. Debtor hereby
authorizes Secured Party to file or refile any financing statements or
continuation statements with respect to the security interest granted pursuant
to this Agreement which at any time may be required or appropriate, although
the same may have been executed only by Secured Party, and to execute such
financing statement on behalf of Debtor. Debtor hereby irrevocably designates
Secured Party, its agents, representatives and designees, as agent and
at-xxxxxx-in-fact for Debtor for the aforesaid purposes.
6. DEFAULT. The occurrence of any one or more of the following
events (hereinafter referred to as "Events of Default") shall constitute a
default hereunder, whether such occurrence is voluntary or involuntary or comes
about or is effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental authority:
(a) If Debtor shall default in the payment of any principal or interest due
under the Note; or
(b) If Debtor shall fail to pay, perform or observe any covenant, agreement,
term or provision of this Agreement, or any other agreement or arrangement now
or hereafter entered into between the parties hereto or with respect to any
Obligation of Debtor to Secured Party; or
(c) If any representation, warranty or other statement of fact herein or in any
writing, certificate, report or statement at any time furnished to Secured Party
pursuant to or in connection with this Agreement or the Note shall be false or
misleading in any material respect; or
(d) If Debtor shall: admit in writing its inability to pay its debts generally
as they become due; file a petition for relief under the bankruptcy laws or a
petition to take advantage of any insolvency act; make an assignment for the
benefit of creditors; commence a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or the whole or any substantial
part of its property; file a petition or answer seeking reorganization or
arrangement or similar relief under the Federal Bankruptcy Laws or any other
applicable law or statute of the United States or any State; or if Debtor shall
be adjudged a bankrupt or insolvent, or a court of competent jurisdiction shall
enter any order, judgment or decree appointing a receiver, trustee, liquidator
or conservator of Debtor or of the whole or any substantial part of the
property of Debtor or approves a petition filed against Debtor seeking
reorganization or similar relief under the Federal Bankruptcy Laws or any other
applicable law or statute of the United States or any State; or if, under the
provisions of any other law for the relief or aid of debtors, a court of
competent jurisdiction shall assume custody or control of Debtor or the whole
or any substantial part of its property; or if there is commenced against Debtor
any proceeding for any of the foregoing relief; or if Debtor by any act
indicates its consent to, approval of, or acquiescence in any such proceeding;
or
(e) If any creditor of Debtor for any reason whatsoever hereafter shall
accelerate payment in whole or in part of any outstanding obligation owed to it
by Debtor under any agreement or arrangement, or if any judgment against the
Debtor or any execution against any of its property for any amount remains
unpaid, unstayed or undismissed for a period in excess of ten days; or
(f) If Debtor or any guarantor or surety of any Obligation shall die or cease
to exist; or
(g) If there occur any reduction in the value of the Collateral or any act of
Debtor which imperils the prospect of the full performance or satisfaction of
the Obligations.
7. RIGHTS AND REMEDIES. Upon the occurrence of an Event of Default,
the Obligations shall immediately become due and payable in full without notice
or demand. Secured Party shall have all rights and remedies provided by the
Uniform Commercial Code in effect in the State of New York on the date hereof.
In addition to, or in conjunction with, or substitution for such rights and
remedies, Secured Party may at any time and from and after the occurrence of an
Event of Default hereunder:
(a) with or without notice to Debtor, foreclose the security interest created
herein by any available judicial procedure, or take possession of the
Collateral, or any portion thereof, with or without judicial process, and enter
any premises where the Collateral may be located for the purpose of taking
possession of or removing the same, or rendering the same unusable, or disposing
of the Collateral on such premises, and Debtor agrees not to resist or interfere
therewith;
(b) require Debtor to prepare, assemble or collect the Collateral, at Debtor's
own expense, and make the same available to Secured Party at such place as
Secured Party may designate, whether at Debtor's premises or elsewhere;
(c) sell, lease or otherwise dispose of all or any part of the Collateral,
whether in its then condition or after further preparation, in Debtor's name or
in its own name, or in the name of such party as Secured Party may designate,
either at public or private sale (at which Secured Party shall have the right to
purchase), in lots or in bulk, for cash or for credit, with or without
re-presentations or warranties, and upon such other terms as Secured Party, in
its sole discretion, may deem advisable; and ten days' written notice of such
public sale date or dates after which private sale may occur, or such lesser
period of time in the case of an emergency, shall constitute reasonable notice
hereunder;
(d) execute and deliver documents of title, certificates of origin, or other
evidence of payment, shipment or storage of any Collateral or proceeds on behalf
of and in the name of Debtor;
(e) remedy any default by Debtor hereunder, without waiving such default, and
any monies expended in so doing shall be chargeable with interest to Debtor and
added to the Obligations secured hereby; and
(f) apply for an injunction to restrain a breach or threatened breach of this
Agreement by Debtor.
8. CUMULATIVE RIGHTS. All rights, remedies and powers granted to
Secured Party herein, or in any instrument or document related hereto, or
provided or implied by law or in equity shall be cumulative and may be exercised
singly or concurrently on any one or more occasions.
9. DEBTOR'S REPRESENTATIONS AND WARRANTIES. Debtor hereby represents
and warrants to Secured Party that:
(a) Debtor is not in default under any indenture, mortgage, deed of trust,
agreement or other instrument to which it is a party or by which it may be
bound. Neither the execution nor the delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will violate any law or regulation, or any order or decree of
any court of governmental authority, or will conflict with, or result in the
breach of, or constitute a default under, any in-denture, mortgage, deed or
trust, agreement or other instrument to which Debtor is a party or by which
Debtor may be bound, or result in the creation or imposition of any lien, claim
or encumbrance upon any property of Debtor.
(b) Debtor has the power to execute, deliver and perform the provisions of this
Agreement and all instruments and documents delivered or to be delivered
pursuant hereto, and has taken or caused to be taken all necessary or
appropriate actions to authorize the execution, delivery and performance of
this Agreement and all such instruments and documents.
(c) Debtor is the legal and equitable owner of the Col-lateral, free and clear
of all security interests, liens, claims and encumbrances of every kind and
nature. Except as may be set forth in Exhibit A annexed hereto, no financing
statement covering the Collateral or its proceeds is on file in any public
office.
(d) No default exists, and no event which with notice or the passage of time,
or both, would constitute a default under the Collateral by any party thereto,
and there are no offsets, claims or defenses against the obligations evidenced
by the Collateral, except as may be expressly set forth in Exhibit A annexed
hereto.
10. NOTICES. All notices, requests, demands or other communications
provided for herein shall be in writing and shall be deemed to have been
properly given if sent by Federal Express courier or by registered or certified
mail, return receipt request-ed, with postage prepaid, addressed to the parties
at their respective addresses herein above set forth, or at such other
addresses as the parties may designate in writing. Debtor immediately shall
notify Secured Party of any change in the address of Debtor or discontinuance of
the place of business or residence of Debtor.
11. MODIFICATION AND WAIVER. No modification or waiver of any
provision of this Agreement, and no consent by Secured Party to any breach
thereof by Debtor, shall be effective unless such modification or waiver shall
be in writing and signed by Secured Party, and the same shall then be effective
only for the period and on the conditions and for the specific instances and
purposes specified in such writing. No course of dealing between Debtor and
Secured Party in exercising any rights or remedies hereunder shall operate as a
waiver or preclude the exercise of any other rights or remedies hereunder. All
such rights and remedies shall continue unimpaired, notwithstanding any delay,
extension of time, renewal, compromise or other indulgence granted with respect
to any of the Obligations. Debtor hereby waives all notice of any such delay,
extension of time, renewal, compromise or indulgence, and consents to be bound
thereby as fully and effectually as if Debtor expressly had agreed thereto in
advance. The aforesaid Note may be negotiated by Secured Party, without
releasing Debtor or the Collateral.
12. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns. Secured Party may assign this
Agreement, and if assigned, the assignee shall be entitled, upon notifying
Debtor, to the payment and performance of all of the Obligations and agreements
of Debtor hereunder and to all of the rights and remedies of Secured Party
hereunder, and Debtor will assert no claims or defenses Debtor may have against
Secured Party against the assignee. The gender and number used in this
Agreement are used for reference term only and shall apply with the same effect
whether the parties are masculine, feminine, neuter, singular or plural.
13. MISCELLANEOUS. This Agreement shall be construed in accordance
with and shall be governed by the laws of the State of New York. The invalidity
or unenforceability of any provision of this Agreement shall not effect the
validity or enforceability of any other provision of this Agreement. Debtor
covenants and agrees to execute and deliver to Secured Party on demand such
additional assurances, writings and instruments as may be required by Secured
Party for purposes of effectuating the intent of this Agreement. The captions
in this Agreement are for convenience only, and shall not be considered in
construing this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
NATIONAL MANAGEMENT CONSULTANTS, INC.
(formerly UNIVERSAL MEDIA HOLDINGS, INC.)
By ________________________
President
CDKNET, INC.
By ________________________
President
EXHIBIT D
XXXX OF SALE
KNOW THAT, for valuable consideration, CDKNet, Inc., a Delaware
corporation, having an address at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx,
("Seller"), does hereby grant, sell, transfer and assign unto National
Management Consultants, Inc. (formerly Universal Media Holdings, Inc.), a
Delaware corporation, having an address at 000 XxxxxxxxxxxXxxx, Xxxxxxxx, XX
00000 ("Purchaser"), all right, title and interest of Seller in and to the
assets of the business known as Assets of Diversified Capital Holdings, LLC,
more particularly described in Exhibit A attached hereto and made a part
here-of, and the entity known as CDKNet, LLC.
TO HAVE AND TO HOLD the same unto Purchaser and the heirs, executors,
administrators, successors and assigns of Purchaser forever.
IN WITNESS WHEREOF, Seller has duly executed this Xxxx of Sale as of
January __, 2003.
CDKNET, INC.
By ________________________
President
