AGREEMENT
THIS AGREEMENT, made and entered into this 23rd day of February, 2001,
by and among Xxxx Xxxxxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxx Xxxxxxxxxxx
(herein collectively referred to as "Lenders") and Xxxxxxxxxx.xxx, Inc.
(herein "Craftclick")
RECITALS:
WHEREAS, on November 17, 2000, Lenders and Craftclick entered into that
certain Loan Agreement (herein "Loan Agreement"); and
WHEREAS, pursuant to the Loan Agreement, Lenders loaned to Craftclick
the sum of $154,825.77, secured by the assets of Craftclick; and
WHEREAS, also pursuant to the Loan Agreement, Lenders later loaned to
Craftclick the sum of $80,000, also secured by all of the assets of
Craftclick; and
WHEREAS, The principal and accrued and unpaid interest with respect to
both the $154,825.77 loan and the $80,000 loan become due and payable on June
30, 2001, and
WHEREAS, Craftclick has indicated to Lenders that it will not have the
ability on June 30, 2001 to pay the principal and/or accrued and unpaid
interest with respect to the $154,825.77 loan and the $80,000 loan; and
WHEREAS, Craftclick, in order to effect an orderly winding down of its
business operations, desires to retire all of its trade debt, and in order to
induce Lenders to assist Craftclick in the orderly winding down of its
business operations has offered to permit the acceleration of the $154,825.77
loan and the $80,000 loan; and
WHEREAS, Lenders desire to foreclose upon their loans and take
possession of the assets securing their loans as quickly as possible.
NOW, THEREFORE, in consideration of the foregoing premises, and of the
mutual representations, covenants and warranties herein contained, the parties
hereto stipulate and agree as follows:
1. Acceleration of Loans. In exchange for the consideration described
hereinbelow, Craftclick hereby declares the $154,825.77 loan and the $80,000
loan (herein collectively, the "Loans") to be due and payable as of the date
written hereinabove. Craftclick waives any right of protest or dishonor with
respect to the Loans and the Secured Promissory Notes evidencing the same.
Craftclick agrees that there are no defenses, exceptions or rights of setoff
with respect to the Loans. In addition, Craftclick agrees that Lenders shall
have the right to immediately foreclose upon and take possession as its own
all of the assets of Craftclick, being all of the assets securing the Loans.
Craftclick agrees to execute whatever documents and provide to Lender's
whatever assurances they require in order fully vest all legal and equitable
title in all the assets in favor of Lenders. A partial list of the assets
thus transferred to Lenders is attached hereto as Exhibit A. Craftclick
hereby agrees to execute at the Closing, its Xxxx of Sale in favor of
Craftclick, in form substantially identical to that contained in Exhibit B,
attached herein and incorporated herein by this reference.
2. Retirement of Certain Debts. In exchange for the acceleration of
the indebtedness described in Section 1, hereinabove, Lenders agree to retire
certain of the debts of Craftclick. The debts of Craftclick that Lenders
shall retire are described in Exhibit C, attached hereto and incorporated
herein by this reference. Except as set forth in Exhibit C, Lenders shall
not be required to make any payment to any creditor of Craftclick unless and
until Lenders shall have obtained a Release from the creditor, in a form
reasonably acceptable to Lender's counsel, to the effect that following the
payment of the amount listed in Exhibit C, no other amount remains payable
from Craftclick in favor of the creditor or that Craftclick is in any respect
liable to the creditor.
2.1 In agreeing to retire certain in the debts of some of
Craftclick's creditors, the parties hereto specifically stipulate and agree
that this agreement confers no rights upon any creditor of Craftclick or any
person not a party to this Agreement, and specifically does not confer upon
any creditor of Craftclick the status of a third party beneficiary, nor does
this Agreement constitute the assumption by Lenders of any of Craftclick's
debts in favor of any person or a novation of any contract, right, debt or
instrument of any kind.
2.2 The parties hereto agree that the Loans shall be accelerated
and Lenders shall be entitled to take possession of the assets secured by the
Loans by the payment by Lenders of any one debt of Craftclick listed in
Exhibit C. The failure of any creditor or creditors of Craftclick to provide
Craftclick with a Release shall not in any respect defeat the immediate
possessory interest in Lenders in all of the assets of Craftclick at the
Closing. Lenders agree that, by taking possession of the assets, CraftClick
shall no longer be indebted to Lenders or Tri-Tech under or in connection with
the Loans, monies advanced under the November 17, 2000 Loan Agreement,
payments made under this Agreement and any other monies advanced to or for the
benefit of CraftClick.
3. Representations and Warranties of Craftclick. Craftclick represents
unto Lenders, which representations shall survive the Closing, that:
3.1 To the best of Craftclick's knowledge, the assets listed in
Exhibit A represent all of the assets of Craftclick, except for assets in
possession of Xxxxxxx Xxxxxx, Xxx Xxxxxx and Xxxxx Xxxxxx. No tangible asset
of Craftclick is located at any location other than at the premises of
Craftclick or at the premises of Tri-Tech Internet Services, Inc., 000 X.
Xxxxxxxx Xxxx., #000, Xxx Xxxxxxx, XX. Since November 17, 2000, Craftclick has
not caused any encumbrances to be placed upon any of the assets of Craftclick.
3.2 Since November 17, 2000, Craftclick has not disposed of any
of the assets of Craftclick other than in the normal course of its business
operations.
4. Closing. The Closing shall occur on February 23, 2001, at the
offices of Craftclick, at 000 Xxxxxx Xxxx., Xxxxx xxx Xxx, XX 00000. At the
Closing:
4.1 Craftclick shall execute its Xxxx of Sale for all of the
assets of Craftclick;
4.2 Lenders shall issue its checks in favor of all those
creditors of Craftclick who have executed releases in favor of Craftclick.
5. Post-Closing. The parties hereto agree that it is the best
interests of the parties if certain relationships were preserved to the
greatest extent possible during the Post-Closing Period. For the purpose of
this Agreement, the Post-Closing Period shall be February 23, 2001 until March
10, 2001. Accordingly, the respective parties stipulate and agree as follows:
5.1 Lenders shall be permitted to store the assets described in
Exhibit A at Craftclick's premises until March 10, 2001. During such period,
Craftclick shall be permitted to use the assets in the manner used during
Craftclick's business operations, but for no other purpose.
5.2 Lenders shall make whatever premises lease and utility
payments required in order to maintain the premises until March 10, 2001, in
order to permit the storage of the assets at Craftclick's premises. In the
event that Lenders elect not make the required premises lease and utility
payments, Lenders shall forthwith remove the assets from the Craftclick
premises.
5.3 Craftclick's executives, Xxxxxx Xxxx and Xxxxx Xxxxx, shall
assist Lenders in the transition of the assets to premises and facilities of
Lenders' choosing. During such period, Lenders shall be required to
compensate Messrs. Seth and Singh to the same extent as they were compensated
by Craftclick immediately prior to the Post-Closing Period.
5.4 If, as and when additional Releases from creditors are
received, Lenders shall make payments of the amounts owing to them as listed
on Schedule C.
5.5 Messrs. Seth and Singh and Lenders shall use their best
efforts to maintain the business of Craftclick in its normal course throughout
the Post-Closing Period.
6. Miscellaneous
6.1 Notices. All notices and communications provided for
hereunder shall be in writing and sent by telecopy if the sender on the same
day sends a confirming copy of such notice by a recognized overnight delivery
service, charge prepaid, or registered or certified mail, return receipt
requested. Any such notices must be sent to the address as listed below or
such addresses that may be substituted by any party.
If to Lenders:
c/o Tri-Tech Internet Services, Inc.
000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 91`205
If to CraftClick:
XxxxxXxxxx.xxx, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxx Xxx Xxx, XX 00000
6.2 Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns whether so
expressed or not.
6.3 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
6.4 Construction. Each covenant herein contained shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to
action to be taken by any person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
6.5. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.
6.6 Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of California, excluding choice of law principles of
the law of such State that would require the application of the laws of a
jurisdiction other than such state.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
LENDERS:
/s/Xxxxx Xxxxxxxxx
____________________________________________
Xxxxx Xxxxxxxxx
/s/Xxxxx Xxxxxxxxxxx
___________________________________________
Xxxxx Xxxxxxxxxxx
/s/Xxxx Xxxxxxxxxxx
___________________________________________
Xxxx Xxxxxxxxxxx
XXXXXXXXXX.XXX, INC.
By:/s/Xxxxxx Xxxx
President
Attest:
Secretary
