OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT (the "Agreement") is made effective as of the 31st
day of March, 1997 by and among Java Centrale, Inc., a California corporation
("Java"), Xxxxxx "Ty" Peabody ("Peabody"), Pacific West Coffee Company, a
California corporation ("PWCC") and The Good Food Fast Companies, a Nevada
corporation ("GFF") (and collectively, the "Parties").
RECITALS
WHEREAS, Peabody alleges that Java and/or Paradise Bakery currently has an
outstanding obligation to Peabody in connection with services rendered to Java
as an independent contractor and/or to Paradise Bakery, Inc. as an employee in
the amount of up to $250,000 (the "Peabody Obligations");
WHEREAS, Java currently has an outstanding three-year secured convertible
subordinated note from PWCC, a wholly owned subsidiary of GFF, in the total
principal amount of Seven Hundred Fifty Thousand Dollars ($750,000), bearing
interest at nine percent (9%) per year (the "Java Note") attached hereto as
Exhibit "A" to this Agreement;
WHEREAS, Java currently holds 233,333 shares of GFF Series A Cumulative
Convertible Preferred Stock (the "Preferred Stock") having the rights,
preferences, and privileges set forth in the Certificate of Determination
attached hereto as Exhibit "B" to this Agreement;
WHEREAS, GFF desires to assume and Java desires to allow the assumption
of the Peabody Obligation in exchange for a reduction in the total principal
amount of the Java Note from $750,000 to $500,000 and in consideration to
entering into this Agreement;
WHEREAS, GFF, PWCC and Java want to effect a further partial payoff of
the Java Note in the amount of $145,000 evidenced by deemed value of $5,000
in connection with the assumption of Peabody's automobile lease and a thirty
day $145,000 promissory note from GFF to Java in the form attached hereto as
Exhibit "C";
WHEREAS, Java has agreed to convert the remaining $350,000 principal
balance of the Java Note into 40,000 shares of GFF common stock;
WHEREAS, Java has agreed to convert its Preferred Stock into 233,333
shares of GFF common stock;
WHEREAS, Java has agreed to grant GFF an option to buy the cumulative
amount of 273,333 shares of GFF common stock back from Java in accordance
with the terms of the Stock Option Agreement attached here to as Exhibit F;
and
WHEREAS, all Parties desire to release each and every other Party from
all claims related to or resulting from all prior transactions, relationships
or undertakings between any two of the Parties.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations
and conditions set forth in this Agreement, the Parties to this Agreement
mutually hereby agree as follows:
I. ASSUMPTION OF PEABODY OBLIGATIONS
1.1 ASSUMPTION. GFF shall assume and Java consents to the
assumption of the Peabody Obligation in exchange for a reduction in the total
principal amount of the Java Note from $750,000 to $500,000. Accordingly,
GFF and Peabody shall, contemporaneously with the execution of this Agreement,
enter into that certain Promissory Note (attached hereto as Exhibit "E")
wherein GFF will assume the $250,000 Peabody Obligation by way of issuing a
$250,000 promissory note to Peabody in exchange for a reduction in the total
principal amount of the Java Note from $750,000 to $500,000. Additionally,
GFF shall assume any and all obligations pursuant to the Infinity J30
automobile lease or in connection with such automobile, currently the
obligation of Paradise Bakery, Inc. and guaranteed by Peabody effective as of
March 31, 1997. Paradise Bakery, Inc. is an intended third party beneficiary
of this Agreement.
1.2 SETTLEMENT AGREEMENT AND MUTUAL RELEASES. Java and Peabody
shall, contemporaneously with the execution of this Agreement, enter into
that certain Settlement Agreement and Mutual Releases (attached hereto as
Exhibit "D") whereby Java and Peabody settle all claims among Java, Paradise
and Peabody. The Parties acknowledge that the execution and delivery of the
Settlement Agreement and Mutual Release is Peabody's sole obligation under
this Agreement. Peabody shall have no rights or obligations under the
indemnification obligations or releases contained in this Agreement.
II. PARTIAL PAYOFF OF JAVA NOTE
2.1 PARTIAL PAYOFF. GFF, PWCC and Java hereby consent to the
partial payoff of the Java Note in the amount of $145,000 evidenced by a thirty
day promissory note in the same amount from GFF to Java and in the form
attached hereto as Exhibit "C" and in the deemed amount of $5,000.00 as a
result of the assumption of Peabody's automobile lease.
III. CONVERSION OF BALANCE OF JAVA NOTE
3.1 CONVERSION. GFF, PWCC AND Java hereby consent to the
conversion of the remaining $350,000 principal balance of the Java Note into
40,000 shares of GFF common stock.
3.2 SURRENDER OF NOTE. Java shall surrender on the Closing Date
(as hereinafter defined) the Java Note marked "cancelled."
3.3 ISSUANCE OF SHARES OF COMMON STOCK. GFF shall issue to Java
on the Closing Date (as hereinafter defined) 40,000 shares of GFF common
stock, validly issued, fully paid and nonassessable, and free of any liens or
encumbrances, other than being subject to the Option (as herein defined).
Notwithstanding the foregoing, only Xxxx Xxxxxxx or, in the alternative,
Xxxxx Xxxxx shall have the ability to vote the shares of common stock issued
pursuant to this Section 3.3.
IV. CONVERSION OF PREFERRED STOCK
4.1 CONVERSION. GFF, PWCC and Java hereby consent to the conversion
of the Preferred Stock into 233,333 shares of GFF common stock.
4.2 SURRENDER OF SHARES OF PREFERRED STOCK. Java shall surrender to
GFF on the Closing Date (as hereinafter defined) the properly endorsed shares of
Preferred Stock.
4.3 ISSUANCE OF SHARES OF COMMON STOCK. GFF shall issue to Java on
the Closing Date (as hereinafter defined) 233,333 shares of GFF common stock,
validly issued, fully paid and nonassessable, and free of any liens or
encumbrances, other than being subject to the Option (as herein defined).
Notwithstanding the foregoing, only Xxxx Xxxxxxx, or in the alternative Xxxxx
Xxxxx, shall have the ability to vote the shares of common stock issued pursuant
to this Section 4.3.
V. OPTION TO PURCHASE GFF COMMON STOCK
5.1 GRANT OF OPTION. As partial consideration for GFF entering into
this Agreement and GFF's assumption of the Peabody Obligation, which
consideration is hereby acknowledged, Java hereby grants to GFF an option (the
"Option") to purchase all 273,333 of GFF shares of common stock which will be
held by Java following the Closing (as hereinafter defined) and in accordance
with the form of the Stock Option Agreement attached hereto as Exhibit "F".
VI. CLOSING DATES; DELIVERY
6.1 CLOSING DATES. The closing on the purchase and sale of GFF's
common stock hereunder shall be held at the offices of Xxxxxxx, Xxxxxx & Xxxxx,
LLP located at 00000 Xxx Xxxxxx Xxxxxx, Xxxxxx XX 00000 on or before April 9,
1997 (the "Closing") or at such other time and place upon which the Parties
shall agree (the date of the Closing is hereinafter referred to as the "Closing
Date").
6.2 DELIVERY. At the Closing, the following documents will be
delivered
a.) GFF will deliver a promissory note in the amount of $250,000
in the favor of Peabody;
b.) Java and Peabody will deliver an executed Settlement
Agreement and Mutual Releases;
c.) Java will deliver that certain Convertible Subordinated
Note, in the principal amount of $750,000, dated December 1, 1996
and marked as "cancelled";
d.) GFF will deliver a certificate representing an aggregate
273,333 shares of GFF common stock issued in the name of Java;
e.) Java will deliver a certificate representing 233,333 shares
of preferred stock of GFF, appropriately endorsed to GFF;
f.) GFF and Java will deliver an executed Stock Option Agreement
between Java and GFF; and
g.) GFF will deliver a promissory note in the amount of $145,000
in the favor of Java.
VII. REPRESENTATIONS AND WARRANTIES OF JAVA
Except as set forth herein, Java represents and warrants to the Parties as
follows:
7.1 ORGANIZATION AND STANDING; ARTICLES AND BY-LAWS. Java is a
corporation duly organized and existing under, and by virtue of, the laws of the
State of California and is in good standing under such laws. Java has the
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted and as proposed to
be conducted. Java is not presently qualified to do business as a foreign
corporation in any jurisdiction, and the failure to be so qualified will not
have a materially adverse affect on Java's business as now conducted or as now
proposed to be conducted.
7.2 CORPORATE POWER. Java will have at the Closing Date all
requisite legal and corporate power and authority to execute and deliver this
Agreement and any agreement thereunder, to convert that certain Convertible
Subordinated Note into common stock of GFF, to convert the Preferred Stock into
GFF common stock, and to carry out and perform any and all of its obligations
under the terms of this Agreement.
7.3 AUTHORIZATION. All corporate action on the part of Java, its
directors and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement, and any agreements thereunder, by Java, the
authorization of and conversion of that certain Convertible Subordinated Note,
and the conversion of the Preferred Stock and the performance of all of Java's
obligations hereunder has been taken or will be taken prior to Closing. This
Agreement, when executed and delivered by Java, shall constitute a valid and
binding obligation of Java, enforceable in accordance with its terms.
7.4 PURCHASE ENTIRELY FOR OWN ACCOUNT. Java understands that GFF
is making this Agreement with Java in reliance upon Java's representation to
GFF, which by Java's execution of this Agreement Java hereby confirms, that
the common stock to be received by Java hereunder will be acquired for
investment for Java'a own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and that Java has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, Java further represents
that Java does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation to such person or to
any third person, with respect to any of the shares of common stock. Java
represents that it has full power and authority to enter into this Agreement.
7.5 EXPERIENCE. Java has substantial experience in evaluating and
investing in private placement transactions of securities in companies
similar to GFF so that Java is capable of evaluating the merits and risks of
Java's investment in GFF and has the capacity to protect its own interests.
7.6 INVESTMENT. Java is acquiring the GFF common stock for
investment for Java's own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution thereof. Java
understands that the shares of common stock have not been, and will not be,
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act, the availability of which depends
upon, among the other things, the bona fide nature of the investment intent and
the accuracy of such Investor's representations as expressed herein.
7.7 RESTRICTED SECURITIES. Java understands that the shares of
common stock it is acquiring are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from GFF in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In this connection, Java
represents that it is familiar with SEC Rule 144, as now in effect, and
understands the resale limitations imposed thereby and by the Act.
7.8 TRANSFER RESTRICTIONS. Java understands that the shares of
Common Stock that it is acquiring are subject to GFF's option to purchase (see
Exhibit "F") and are subject to a First Refusal Right as described hereunder:
a.) RESTRICTION ON TRANSFER. Java shall not transfer, assign,
encumber, or otherwise dispose of any of the shares of GFF's common stock to
be transferred under this Agreement (the "Shares") in contravention of the
GFF's First Refusal Right under this Section 7.8.
b.) GRANT. The GFF is hereby granted the right of first refusal
(the "First Refusal Right"), exercisable in connection with any proposed
sale or other transfer of the Shares purchased by the Java pursuant to this
Agreement. For purposes of the Section 7.8, the term "transfer" shall
include any assignment, pledge, encumbrance or other disposition for value
of the Shares intended to be made by Java.
c.) NOTICE OF INTENDED DISPOSITION. In the event the Java
desires to accept a bona fide third-party offer for any or all of the
Shares (the shares subject to such offer to be hereinafter called, solely
for the purposes of the Section, the "Target Shares"), Java shall promptly
(i) deliver to the Secretary of the GFF written notice (the "Disposition
Notice") of the offer and the basic terms and conditions thereof, including
the proposed purchase price, and (ii) provide satisfactory proof that the
disposition of the Target Shares to the third-party offeror would not be in
contravention of the provisions set forth elsewhere in this Agreement.
d.) EXERCISE OF RIGHT. GFF (or its assignees) shall, for a
period of thirty (30) days following receipt of the Disposition Notice,
have the right to repurchase not less than all of the Target Shares
specified in the Disposition Notice upon substantially the same terms and
conditions specified therein. Such right shall be exercisable by written
notice (the "Exercise Notice") delivered to Java prior to the expiration of
the thirty (30) day exercise period. If such right is exercised with
respect to all the Target Shares specified in the Disposition notice, the
GFF (or its assignees) shall effect the repurchase of the Target Shares,
including payment of the purchase price, not more than five (5) business
days after delivery of the Exercise Notice; and at such time Java shall
deliver to GFF the certificates representing the Target Shares to be
repurchased, each certificate to be properly endorsed for transfer.
Should the purchase price specified in the Disposition Notice be payable in
property other than cash or evidences of indebtedness, GFF (or its
assignees) shall have the right to pay the purchase price in the form of
cash equal in amount to the value of such property. If Java and GFF (or
its assignees) cannot agree on such cash value within ten (10) days after
GFF's receipt of the Disposition Notice, the valuation shall be made by an
appraiser of recognized standing selected by Java and GFF (or its
assignees), or, if they cannot agree on an appraiser within twenty (20)
days after GFF's receipt of the Disposition Notice, each shall select an
appraiser of recognized standing and the two appraisers shall designate a
third appraiser of recognized standing, whose appraisal shall be
determinative of such value. The cost of such appraisal shall be shared
equally by Java and GFF. The closing shall then be held on the latter of
(i) the fifth business day following delivery of the Exercise Notice or
(ii) the 15th day after such valuation shall have been made.
e.) NON-EXERCISE OF RIGHT. In the event the Exercise Notice is
not given to Java within thirty (30) days following the date of GFF's
receipt of the Disposition Notice, Java shall have a period of thirty (30)
days thereafter, in which sell or otherwise dispose of the Target Shares
upon terms and conditions (including the purchase price) no more favorable
to the third-party purchase than those specified in the Disposition Notice;
provided, however, that any such sale or disposition must not be effected
in contravention of the provisions contained elsewhere in this Agreement.
The third-party purchaser shall acquire the Target Shares free and clear of
all terms and provisions of the Agreement (including GFF's First Refusal
Right hereunder). In the event Java does not sell or otherwise dispose of
the Target Shares within the specified thirty (30) day period, GFF's First
Refusal Right shall continue to be applicable to any subsequent disposition
of the Target Shares by Java until such right lapses in accordance with
Section 7.8.
f.) RECAPITALIZATION. In the event of any stock dividend, stock
split, recapitalization or other transaction affecting GFF's outstanding
common stock as a class effected without receipt of consideration, then any
new, substituted or additional securities or other property which is by
reason of such transaction distributed with respect to the Shares shall be
immediately subject to GFF's First Refusal Right hereunder, but only to the
extent the Shares are at a time covered by such right.
g.) LAPSE. The First Refusal Right under this Section 7.8
shall lapse and cease to have effect upon the earliest of the following
to occur (i) a corporate transaction, (ii) the first date on which
shares of GFF's common stock are held of record by more than five
hundred (500) persons, (ii) a determination is made by GFF's Board of
Directors that a public market exists for the outstanding shares of
GFF's Common Stock or (iii) a firm commitment underwritten public
offering pursuant to an effective registration statement under the 1933
Act, covering the offer and sale of GFF's common stock in the aggregate
amount of at least $7,500,000.
h.) CORPORATE TRANSACTION. For purposes of this Section 7.8, a
"Corporate Transaction shall mean:
(i) a merger or acquisition in which GFF is not the surviving
entity, except for a transaction the principal purpose of which is to
change the State in which GFF is incorporated; or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of GFF.
i.) RECORD OWNER. GFF shall not be required (i) to transfer on its
books any Shares that have been sold or transferred in violation of the
provisions of Section 7.8 or (ii) to treat as the owner of the Shares, or
otherwise to accord voting or dividend rights to, any transferee to whom
the Shares have been transferred in contravention of this Agreement.
7.9 LEGENDS. It is understood that the certificates evidencing the GFF
common stock may bear one or more of the following legends:
(a) THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES ("STATE
ACTS"). THE SECURITIES EVIDENCED BY THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD OR TRANSFERRED FOR VALUE DIRECTLY OR INDIRECTLY, IN THE
ABSENCE OF SUCH REGISTRATION UNDER THE ACT AND QUALIFICATION UNDER
APPLICABLE STATE ACTS, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE ACT AND QUALIFICATION UNDER APPLICABLE STATE ACTS, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE REASONABLE
SATISFACTION OF GFF;
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF,
EXCEPT IN COMPLIANCE WITH THE TERMS OF THE WRITTEN AGREEMENTS BETWEEN
THE COMPANY AND THE REGISTERED
HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE
SHARES). SUCH AGREEMENTS GRANT AN OPTION TO PURCHASE AND A RIGHT OF
FIRST REFUSAL TO THE COMPANY PURSUANT TO THE TERMS OF SUCH AGREEMENTS.
THE SECRETARY OF THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A COPY
OF SUCH AGREEMENTS TO THE HOLDER HEREOF WITHOUT CHARGE; and
(c) ANY LEGEND REQUIRED BY THE LAWS OF ANY STATE, INCLUDING
ANY LEGEND REQUIRED BY THE CALIFORNIA DEPARTMENT OF CORPORATIONS AND
SECTIONS 417 AND 418 OF THE CALIFORNIA CORPORATIONS CODE.
7.10 ACCESS TO DATE. Java has had an opportunity to discuss GFF's
business, management and financial affairs with the GFF's management and has
had the opportunity to review any and all relevant GFF's documents and
records related thereto. Java has also had an opportunity to ask questions of
officers of the GFF, which questions were answered to its satisfaction. Java
understands that such discussion, as well as any written information issued
by the GFF, were intended to describe certain aspects of GFF's business and
prospects but were not a thorough or exhaustive description.
VIII. REPRESENTATIONS AND WARRANTIES OF GFF
Except as set forth herein, GFF represents and warrants to the Parties
as follows:
8.1 ORGANIZATION AND STANDING: ARTICLES AND BY-LAWS. GFF is a
corporation duly organized and existing under, and by virtue of, the laws of
the State of Nevada and is in good standing under such laws. GFF has the
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted and as proposed
to be conducted. GFF is presently qualified to do business as a foreign
corporation in California but is not so qualified in any other jurisdiction,
and the failure to be so qualified will not have a materially adverse affect
of GFF's business as now conducted or as now proposed to be conducted.
8.2 CORPORATE POWER. GFF will have at the Closing Date all requisite
legal and corporate power and authority to execute and deliver this Agreement
and any agreement thereunder, to convert that certain Convertible
Subordinated Note into common stock of GFF, to convert the Preferred Stock
into GFF common stock, and to carry out and perform any and all of its
obligations under the terms of this Agreement.
8.3 AUTHORIZATION. All corporate action on the part of GFF, its
directors and shareholders necessary for the authorization, execution,
delivery and performance of this Agreement, and any agreements thereunder, by
GFF, the authorization of and conversion of that certain Convertible
Subordinated Note, and the conversion of the Preferred Stock and the
performance of all of GFF's obligations hereunder has been taken or will be
taken prior to Closing. This Agreement, when executed and delivered by GFF,
shall constitute a valid and binding obligation of GFF, enforceable in
accordance with its terms.
a.) each of the representations and warranties of the other
Parties set forth above shall be true and correct in all material
respects at and as of the Closing Date;
b.) Java shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
c.) no Adverse Consequence shall be pending or threatened, wherein
an unfavorable determination would (i) prevent consummation of any of
the transactions contemplated by this Agreement or (ii) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation;
d.) valid written and binding acceptance and approval of this
Agreement and the transactions contemplated thereunder by the governing
body of Java, GFF, and PWCC; and
XIII. INDEMNIFICATION
13.1 OBLIGATION OF THE PARTIES TO INDEMNIFY. The Parties hereby
indemnify and hold harmless each of the other Parties and their directors,
officers, employees, subsidiaries (including Paradise) and agents, if any, in
respect of any and all Adverse Consequences incurred by any of the other
Parties in connection with each and all of the following:
a.) Any misrepresentation or breach of any warranty made by the
other respective Party or Parties in this Agreement or in any Schedule,
Exhibit, or other document attached hereto or delivered to any of the
Parties or any officer or agent of each of the Parties in connection
with the transactions contemplated hereby.
b.) The breach of any covenant, agreement, or obligation of any
of the Parties contained in this Agreement or any Schedule or Exhibit
hereto or any other instrument specifically contemplated by this
Agreement.
c.) Any misrepresentation in or omission from any list, Schedule,
Exhibit, certificate or other instrument required to be furnished or
specifically contemplated to have been furnished pursuant to this
Agreement to any other Party or its authorized representatives.
13.2 METHOD OF ASSERTING CLAIMS FOR INDEMNIFICATION. Whenever any
claims shall arise for indemnification hereunder, the party seeking
indemnification (the "Indemnitee") shall promptly notify the other party (the
"Indemnitor") of the claim and, when known, the facts constituting the basis
for such claim. If any claim for indemnification hereunder results from or is
in connection with any claim or Adverse Consequence by a person who is not a
party to this Agreement (the "Third-Party Claim"), such notice shall also
specify, if known, the amount or an estimate of the amount of the liability
arising therefrom. The Indemnitee shall give the other party prompt notice of
any such claim and the Indemnitor shall undertake the defense thereof by
representatives of its own choosing, reasonably satisfactory to the
Indemnitee, at the expense of the Indemnitor. The Indemnitee shall have the
right to participate in any such defense of a Third-Party Claim with advisory
counsel of its own choosing, at its own expense. If the Indemnitor fails to
defend within a reasonable time after notice of any such Third-Party Claim,
the Indemnitee or any subsidiary
or affiliate of the indemnitee shall have the right to undertake the defense,
compromise, or settlement of such Third-Party Claim on behalf and for the
account of the Indemnitor, at the Indemnitor's expense and risk. The
Indemnitor shall not, without the Indemnitee's written consent, settle or
compromise any such Third Party Claim or consent to entry of any judgment
that does not include, as an unconditional term thereof, the giving by the
claimant or the plaintiff to Indemnitee of an unconditional release from all
liability in respect of such Third-Party Claim. Notwithstanding any provision
herein to the contrary, failure of Indemnitee to give any notice required by
this Section shall not constitute a waiver of Indemnitee's right to
indemnification or a defense to any claim by Indemnitee hereunder.
13.3 MEANS OF INDEMNIFICATION. All indemnification hereunder shall be
effected upon demand as follows by prompt payment of cash, delivery of a
cashier's check or wire transfer in the amount of the indemnification
liability.
13.4 SURVIVAL OF RIGHTS TO INDEMNIFICATION. The indemnities contained
herein shall survive the Closing for a period of one (1) year after the
Closing Date.
XIV. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
14.1 SURVIVAL. All of the representations and warranties of the
respective parties contained in this Agreement shall survive the Closing for
a period of one (1) year after the Closing Date.
XV. RELEASE.
15.1 RELEASE. Upon completion of the Closing, GFF and PWCC, for
themselves, their legal successors and assigns, their agents, officers,
employees, directors, attorneys, subsidiaries, affiliates, heirs, executors,
administrators, personal representatives, members and each of them, do hereby,
absolutely, fully and forever release and discharge Java, its legal
successors and assigns, its agents, officers, employees, directors,
attorneys, subsidiaries (including but not limited to Paradise), affiliates,
heirs, executors, administrators, personal representatives, members and each
of them, from any and all manner of action or actions, cause or causes of
action, suits, debts, liabilities, demands, sums of money in controversy,
damages, accounts, reckonings, and liens of every kind or nature whatsoever,
whether known, suspected, or unsuspected which GFF and/or PWCC shall or may
have, own or hold, which they at any time heretofore had, owned or held, or
may hereafter own, or hold, based on anything occurring before the date of
this Agreement, including but not limited to, claims in connection with that
certain Asset Purchase Agreement and the related documents entered into by
and among GFF, PWCC and Java on or about December 1, 1996 and/or GFF's
relationship with Peabody (collectively the "GFF/PWCC Claim" or "GFF/PWCC
Claims"). GFF/PWCC Claims shall not include any claim for a misrepresentation
or a breach of a convent or warranty under the terms of this Agreement.
Upon completion of the Closing, Java, for themselves, their legal
successors and assigns, their agents, officers, employees, directors,
attorneys, subsidiaries, affiliates, heirs, executors, administrators,
personal representatives, members and each of them, do hereby, absolutely,
fully and forever release and discharge GFF and PWCC, its legal successors
and assigns, its agents, officers,
employees, directors, attorneys, subsidiaries (including but not limited to
Paradise), affiliates, heirs, executors, administrators, personal
representatives, members and each of them, from any and all manner of
action or actions, cause or causes of action, suits, debts, liabilities,
demands, sums of money in controversy, damages, accounts, reckonings, and
liens of every kind or nature whatsoever, whether known, suspected, or
unsuspected which Java shall or may have, own or hold, which they at any time
heretofore had, owned or held, or may hereafter own, or hold based on anything
occurring before the date of this Agreement, including, but not limited to,
claims in connection with that certain Asset Purchase Agreement and the
related documents entered into by and among GFF, PWCC and Java on or about
December ___, 1996 and/or GFF's relationship with Peabody (collectively
the "Java Claim" or "Java Claims"). Java Claims shall not include any claim
for a misrepresentation or a breach of a covenant or warranty under the terms
of this Agreement.
GFF, PWCC and Java each acknowledge that they have been informed by their
respective attorneys and advisors of, and each is familiar with, Section 1542
of the CIVIL CODE of the State of California, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING A RELEASE WHICH
IF KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
GFF, PWCC and Java do hereby waive and relinquish all rights and benefits
each has or may have under Section 1542 of the CIVIL CODE of the State of
California, to the fullest extent that each may lawfully waive such rights
and benefits pertaining to the subject matter of this AGREEMENT.
GFF, PWCC and Java understand and acknowledge that they may discover
facts different from, or in addition to, those facts which each such party
now knows or believes to be true, and agrees that this Release shall be and
remain effective in all respects notwithstanding any such subsequent
discovery of different and/or additional facts. GFF, PWCC and Java
acknowledge that it has undertaken its own independent investigation of all
the facts relating to GFF/PWCC claims and/or the Java Claims and in entering
this Agreement is not relying on any representation, warranty or statement of
any other Party except as expressly set forth herein. GFF, PWCC and Java each
acknowledge that this waiver is an essential and material term of this
Agreement, without which the consideration set forth herein would not have
been so delivered.
XVI. MISCELLANEOUS
16.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and
be binding upon the respective successors and assigns of the Parties
(including transferees of any of the Shares issued hereunder). Nothing in
this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
16.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the internal laws of the State of California.
16.3 TIDES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
16.4 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or on
three (3) days after the date of deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to the Party
to be notified at the address indicated for such Party indicated below, or at
such other address as such Party may designate by ten (10) days' advance
written notice to the other Parties.
(A) If to GFF or PWCC, to:
The Good Food Fast Companies
c/o Pacific Culinary Capital
0000 Xxxxx Xxxxxx, Xxxxx X0-000
Xxxxxxx Xxxxx, XX 00000
Attn.: Xxxxxxxxxxx X. Xxxxxxx, President
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
With a courtesy copy to:
Xxxxx Xxxx, Esq.
Xxxxxxx, Xxxxxx & Xxxxx, LLP
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
(B) If to Java, to:
Java Centrale, Inc.
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
(C) If to Peabody, to:
Xxxxxx "Ty" Peabody
C/O Xxxxxxxxxxx Xxxxxxx
000 Xxxxxx Xxxxx, Xxxxx X-000
Xxxxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
16.5 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the parties hereto. Any
amendment or waiver effected in accordance with this paragraph shall be
binding upon parties hereto and their successors, assigns and transferees.
16.6 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as
if such provision were so excluded and shall be enforceable in accordance
with its terms.
16.7 COMPLETE AGREEMENT. This Agreement, together with the agreements
and documents referred to herein, constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings by and between the Parties.
16.8 ATTORNEYS' FEES. Should any litigation or arbitration be commenced
between the parties hereto or their personal representatives concerning any
provision of this Agreement or the rights and duties of any person in
relation thereto, the party prevailing in such litigation or arbitration
shall be entitled, in addition to such other relief as may be granted, to a
reasonable sum as and for its or their attorneys' fees in such litigation or
arbitration which shall be determined by the court or arbitration board.
16.9 ARBITRATION. Any matter or disagreement arising under this
Agreement shall be submitted in Orange County, California for decision to a
panel of three neutral arbitrators with expertise in the subject matter to
be arbitrated. One arbitrator will be selected by each party and the two
arbitrators so selected shall select the third arbitrator. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association. The decision and award rendered by the arbitrators shall be
final and binding. Judgment upon the award may be entered in any court
having jurisdiction thereof. Any arbitration shall be held in Orange County,
California, or such other place which may be mutually agreed upon by the
parties.
16.10 CORPORATE APPROVALS. The Parties represent and warrant that the
execution of this Agreement by its applicable corporate officer named below
has been duly authorized by their applicable Board of Directors, is not in
conflict with any Bylaw or other agreement and will be a binding obligation
of the Parties, enforceable in accordance with its terms.
16.11 COUNTERPARTS. This Agreement may be executed in counterparts,
including electronically transmitted counterparts, each of which shall be
enforceable against the Party actually executing such counterpart, and all of
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Omnibus Agreement
dated March 31, 1997.
"Java" JAVA CENTRALE, INC.
a California corporation
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Xxxx Xxxxxx, President
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxx, Chief Financial Officer
"GFF" THE GOOD FOOD FAST COMPANIES,
a Nevada corporation
By:--------------------------------------------
J. Xxxxx Xxxxxx, Chairman of the Board
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx, President
"PWCC" PACIFIC WEST COFFEE COMPANY,
a California corporation
By:--------------------------------------------
J. Xxxxx Xxxxxx, Chairman of the Board
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxxxxxx X. Xxxxxxx, President
"Peabody" By: /s/ Xxxxxx Xx Xxxxxxx
--------------------------------------------
Xxxxxx "Ty" Peabody