Exhibit 99.1
CONSENT AGREEMENT
This Consent Agreement (this "Agreement") is made as of May
16, 2002 by and among Xxxxxx Tree Construction, Inc., with an address at 0000
Xxxxxxxx/Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Xxxxxx") and Xxxxx Xxxxxxx, an
individual residing at 00 Xxxxxxxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxx, 00000
and Xxxxxx Xxxxx, an individual residing at 000 X. Xxxxxxxxxx Xx., Xxxxxxxxxxxx,
Xx. 00000 (individually "Xxxxxxx" or "Xxxxx" or collectively the "Secured
Party").
Reference is hereby made to the Debt (as defined below)
evidenced by, among other things, the Stock Purchase Agreement dated as of March
15, 2002 by and among Xxxxxx and the Secured Party (the "SPA"), the Notes, the
Guaranties, the Reimbursement Agreements, the Security Agreements, and the
Pledge Agreements and all other transaction documents executed in connection
therewith (collectively, the "Transaction Documents"). All capitalized terms
used in this Agreement which are not defined herein, but which are defined in or
by reference in the SPA, shall have the same meanings herein as therein.
Xxxxxx acknowledges and agrees that certain defaults and
Events of Default have occurred and are continuing as a result of Joshua's
failure to comply with certain terms of the Transaction Documents, including
without limitation, failure to make the payments required under the SPA and the
Notes. Xxxxxx further acknowledges and agrees that as a result of those defaults
and Events of Default, the Secured Party is electing and does hereby accelerate
the payment in full of all of Joshua's Debt and/or other obligations to the
Secured Party under the Transaction Documents. Xxxxxx acknowledges and agrees
that the Secured Party has no obligation to make additional loans or otherwise
extend credit to Xxxxxx under the Transaction Documents or otherwise. The
parties have determined that it is in their best interests to enter into this
Agreement providing for the consenual and orderly: a) transfer of the Collateral
(used herein as defined in the Pledge Agreements) to the name of Secured Party
and b) taking of such Collateral in satisfaction of the Debt.
The parties hereby agree to enter into this Agreement upon the
following terms and conditions:
1. RATIFICATION OF EXISTING AGREEMENTS. All of Joshua's debt
and other obligations, indebtedness and liabilities to the Secured Party as
evidenced by or otherwise arising under the Transaction Documents (the "Debt")
are, by Joshua's execution of this Agreement, ratified and confirmed in all
respects by Xxxxxx. In addition, by Joshua's execution of this Agreement, Xxxxxx
represents and warrants that no counterclaim, right of set-off or defense of any
kind exists or is outstanding with respect to such Debt and other obligations,
indebtedness and liabilities. Xxxxxx acknowledges that the lien and security
interest securing Joshua's Debt and other obligations to the Secured Party
constitutes a valid first priority perfected lien and security interest in the
Collateral, including without limitation, all of the issued and outstanding
shares of capital stock of American Health & Diet Centers, Inc. ("Company").
2. REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties made by Xxxxxx in the Transaction Documents are true and correct
on the date hereof as if made on
and as of the date hereof. Xxxxxx represents and warrants that this Agreement
has been duly authorized and executed and is valid, binding and enforceable
against Xxxxxx in accordance with its terms.
3. EXERCISE OF RIGHTS PURSUANT TO PLEDGE AGREEMENTS. Xxxxxx
hereby irrevocably covenants and agrees with the Secured Party to the: a)
transfer of the Collateral into the name of the Secured Party and b) taking of
such Collateral in satisfaction of the Debt, free and clear of any and all
liens, security interests and encumbrances of any nature whatsoever. The parties
acknowledge and agree that following this consensual transfer and taking, all
ownership or other interest in the Collateral shall be vested solely in the
Secured Party, and Xxxxxx will have no interest in the Collateral whatsoever.
The parties acknowledge and agree that the Debt shall be deemed satisfied;
provided however that in the event the Secured Party is later required to
re-deliver all or any part of the Collateral to Xxxxxx, then the Debt shall not
be deemed so satisfied and shall be reinstated in full.
4. RELEASE OF WARRANTS AND OPTIONS. The Parties hereby
acknowledge and agree that the Warrants and Options shall be deemed void and of
no effect and the Secured Party hereby relinquishes any and all rights to such
Warrants and Options as applicable.
5. MANUFACTURING AGREEMENT. The Secured Party hereby consents
to the execution of the Manufacturing Agreement in the form attached hereto, by
Vitaquest International, Inc., a New Jersey Corporation, the Company and Xxxxxx.
6. FURTHER ACTIONS/POWER OF ATTORNEY Xxxxxx shall at any time
or from time to time execute and deliver such further instruments, and take such
further action as the Secured Party may reasonably request, in each case further
to effect the purposes of this Agreement. Xxxxxx hereby irrevocably appoints
Secured Party and each of its designees and assignees, and the designated
officers of such designees and assignees, as each of Xxxxxx' true and lawful
attorneys-in-fact, with full power of substitution, to do all acts and things
which the Secured Party may reasonably deem necessary to effectuate the terms of
this Agreement. Secured Party agrees to provide copies of Company financial
statements in their possession as requested by Xxxxxx for the period from the
execution of the Transaction Documents through the date hereof as may be
required by law.
7. EXPENSES. Xxxxxx agrees to pay to the Secured Party upon
demand an amount equal to any and all out-of-pocket costs or expenses (including
legal fees (including allocable costs of staff counsel) and disbursements)
hereafter incurred or sustained by the Secured Party in connection with the
preservation of or enforcement of any rights of the Secured Party under this
Agreement and the Transaction Documents, and at law or in equity or in respect
of any of Joshua's other debts or other obligations to the Secured Party.
8. RELEASE OF SECURED PARTY. Xxxxxx acknowledges and agrees
that any or all of Secured Party's obligations to Xxxxxx under any of the
Transaction Documents or otherwise, including without limitation any obligations
of the Secured Party arising under the SPA or the Consulting Agreement, shall
immediately terminate and shall be of no force or effect. By execution of this
Agreement, Xxxxxx acknowledges and confirms that it does not have any offsets,
defenses or claims against the Secured Party, the Company, Vitaquest
International, Inc., or any of their
subsidiaries, affiliates, officers, directors, employees, agents, attorneys,
successors and assigns, both present and former whether asserted or unasserted.
To the extent that it may have such offsets, defenses or claims, Xxxxxx and its
successors, assigns, parents, subsidiaries, affiliates, predecessors, employees,
agents, as applicable, release and forever discharge the Secured Party, the
Company, Vitaquest International, Inc., and their subsidiaries, affiliates,
officers, directors, employees, agents, attorneys, successors and assigns, both
present and former (collectively the "Secured Party Affiliates") of and from any
and all manner of action and actions, cause and causes of action, suits, debts,
controversies, damages, judgments, executions, claims and demands whatsoever,
asserted or unasserted, known and unknown in law or in equity which against the
Secured Party and/or Secured Party Affiliates they ever had, now have or which
Joshua's successors, assigns, parents, subsidiaries, affiliates, predecessors,
employees, agents, heirs, executors, as applicable, both present and former ever
had or now has, upon or by reason of any manner, cause, causes or thing
whatsoever, including, without limitation, any presently existing claim or
defense whether or not presently suspected, known or unknown, contemplated or
anticipated.
9. VOLUNTARY AGREEMENT. Xxxxxx represents and warrants that it
is represented by legal counsel of its choice, is fully aware of the terms
contained in this Agreement and have voluntarily and without coercion or duress
of any kind, entered into this Agreement and the documents executed in
connection with this Agreement.
10. ENTIRE AGREEMENT; BINDING AFFECT; NOTICES. This Agreement
constitutes the entire and final agreement among the parties with respect to the
subject matter hereof and there are no agreements, understandings, warranties or
representations among the parties except as set forth herein. This Agreement
will inure to the benefit and bind the respective heirs, administrators,
executors, representatives, successors and permitted assigns of the parties
hereto. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement will be sent to the addresses of the
parties set forth above.
11. SEVERABILITY/HEADINGS. If any clause or provision of this
Agreement is determined to be illegal, invalid or unenforceable under any
present or future law by the final judgment of a court of competent
jurisdiction, the remainder of this Agreement will not be affected thereby. It
is the intention of the parties that if any such provision is held to be
invalid, illegal or unenforceable, there will be added in lieu thereof a
provision as similar in terms to such provision as is possible, and that such
added provision will be legal, valid and enforceable. All headings contained in
this Agreement are for reference purposes only and are not intended to affect in
any way the meaning or interpretation of this Agreement.
12. GOVERNING LAW. This Agreement is executed and delivered in
the State of New Jersey and it is the desire and intention of the parties that
it be in all respects interpreted according to the laws of the State of New
Jersey. Xxxxxx specifically and irrevocably consents to the exclusive
jurisdiction and venue of the federal and state courts of the State of New
Jersey with respect to all matters concerning this Agreement or the enforcement
of any of the foregoing. Xxxxxx agrees that the execution and performance of
this Agreement shall have a New Jersey situs and accordingly, Xxxxxx consents to
personal jurisdiction in the State of New Jersey.
13. COUNTERPARTS/AMENDMENT. This Agreement may be executed in
counterparts, each of which will be deemed an original document, but all of
which will constitute a single document. Neither this Agreement nor any of the
provisions hereof can be changed, waived, discharged or terminated, except by an
instrument in writing signed by the parties against whom enforcement of the
change, wavier, discharge or termination is sought.
14. WAIVER OF JURY TRIAL. XXXXXX KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE OR HEREAFTER HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE UNDERLYING TRANSACTIONS. XXXXXX CERTIFIES THAT NEITHER THE
SECURED PARTY NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE SECURED PARTY WOULD NOT IN THE EVENT OF ANY
SUCH SUIT, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
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XXXXXX TREE CONSTRUCTION, INC.
By /s/ Xxxxxx Xxxxx
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Its President
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Duly Authorized
