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Exhibit 10.2
SALE OF ASSETS AGREEMENT
AND PLAN OF REORGANIZATION
THIS SALE OF ASSETS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement")
made this ______ day of ____________, 2000 by and between STAR SERVICES GROUP,
INC., a Florida corporation, or its assigns, ("Buyer") and PEERLESS MIAMI
AVENUE, INC., a Florida corporation ("Seller" or "Miami Avenue").
W I T N E S S E T H
WHEREAS, Peerless Miami Avenue, Inc. ("Miami Avenue") entered into a
Real Estate Purchase and Sale Agreement dated May 17, 2000 with Distribution
Management Services, Inc. to purchase the real property and improvements located
thereon at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxx Xxxxxx, Xxxxxxx. A copy of said
agreement is attached hereto and incorporated herein by reference as Exhibit
"A"; and
WHEREAS, Miami Avenue currently operates a construction and demolition
debris transfer station located at 0000 Xxxxx Xxxxx Xxxxxx in Miami, Florida
under an Amended Operation Agreement dated December 22, 1998 with Distribution
Management Services, Inc., a copy of which is attached hereto as Exhibit "B";
and
WHEREAS, Miami Avenue desires to assign and Buyer desires to accept an
assignment of the aforementioned Real Estate Purchase and Sale Agreement and the
Amended Operation Agreement; and
WHEREAS, the parties intend for this transaction to be treated as a
tax-free reorganization pursuant to the provisions of Section 368(a)(1)(c) of
the Internal Revenue Code, as amended, governing the acquisition by one
corporation of substantially all of the assets of another corporation solely in
exchange for voting stock of the acquiring corporation.
WHEREAS, this transaction is intended to comply with the provisions of
Section 368(a)(1)(c) of the Internal Revenue Code of 1986, as amended.
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
SECTION 1. ASSETS PURCHASED FROM PEERLESS MIAMI AVENUE, INC.. Peerless
Miami Avenue, Inc. ("Miami Avenue") agrees to sell, assign and transfer to Buyer
and Buyer agrees to accept and assume an assignment of Miami Avenue's Real
Estate Purchase and Sale Agreement with Distribution Management Services, Inc.
to purchase the real property and the improvements thereon (solid waste transfer
station) located at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxx Xxxxxx, Xxxxxxx,
subject to the consent of Distribution Management Services, Inc. as set forth in
Section 15(c) of Exhibit "A" attached hereto. Miami Avenue also agrees to sell,
assign and transfer to Buyer and Buyer agrees to accept and assume an assignment
of Miami Avenue's Amended Operation Agreement dated December 22, 1998 with
Distribution Management Services, Inc. to operate solid waste transfer station
located at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxx Xxxxxx, Xxxxxxx, subject to the
consent of Distribution Management Services, Inc. as set forth in Section 22 of
Exhibit "B" attached hereto and also includes transfer of those other assets set
forth in Exhibit "C" attached hereto. (collectively referred to hereafter as
"Miami Avenue Assets" or "Assets").
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SECTION 2. PURCHASE PRICE. The total purchase price ("Purchase Price")
for the Miami Avenue Assets shall be paid and allocated as follows:
2.1 STOCK CONSIDERATION. The Buyer shall transfer Three
Hundred Forty Thousand (340,000) shares of fully paid, registered and
nonassessable common shares of Star Services Group, Inc. stock ("Stock
Consideration") to the individual shareholders of Peerless Miami Avenue, Inc.
("Miami Avenue") or their respective designees and/or nominees in accordance
with their respective ownership interests and as designated at Closing (as
defined in Section 4) by the President of Miami Avenue. The Stock Consideration
shall be delivered within fifteen (15) business days of the Closing (as defined
in Section 4). The parties agree that Attorney G. Xxxxxxx Xxxxxxx of
Jacksonville, Florida ("Xxxxxxx") shall be authorized to act as agent for the
shareholders of Miami Avenue for the receipt of the Stock Consideration from the
Buyer's transfer agent. Xxxxxxx shall hold the Stock Consideration until
Distribution Management Services, Inc. ("Distribution") has obtained renewal of
the existing Florida DEP permit to operate the solid waste transfer station at
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxx (the "FDEP Permit"). Once Distribution
receives the FDEP Permit, then Xxxxxxx may release the shares to the
shareholders of Miami Avenue. The parties agree that Buyer's obligation to
acquire the Miami Avenue Assets is conditioned on Distribution obtaining a
renewal of the FDEP Permit. In the event the FDEP Permit is not renewed, then
Buyer shall have no further obligations under this Agreement and the Agreement
shall be void and of no further force and effect. Upon such occurrence, all
shares of stock transferred to Seller pursuant to Section 2 hereof shall be
returned to Buyer. However, in the event Distribution Management Services, Inc.
is successful, at any time in the future, in obtaining the FDEP Permit and Buyer
operates the permitted facility, Seller, or its designee, shall be entitled to
the Stock Consideration. The Stock Consideration shall be delivered to Xxxxxxx
in accordance with written instructions provided to Buyer by the President of
Miami Avenue at the Closing. Except as provided in Section 9 of this Agreement,
340,000 shares will be freely tradeable as of January 2, 2002. It is further
understood and agreed by the parties hereto that the sale or transfer of the
Stock Consideration by the individual shareholders of the Miami Avenue will only
be restricted as set forth above (the "Restricted Stock"). The share
certificates received for the Restricted Stock shall bear a restrictive legend
making said shares subject to the terms and conditions of this Section.
2.2 ALLOCATION OF STOCK CONSIDERATION. The Stock
Consideration, referenced in Section 2.1 above, shall be allocated in accordance
with an allocation schedule to be agreed to by the parties at or before Closing.
The parties each hereby covenant and agree that they will not take a position on
any income tax return, before any governmental agency charged with the
collection of any income tax, or in any judicial proceeding that is in any way
inconsistent with the terms of this Section 2.2 and Section 2.3.
2.3 TAX TREATMENT. The parties hereto intend that the
transactions contemplated by this Agreement be treated as a tax-free
reorganization under Section 368 of the Internal Revenue Code of 1986, as
amended. The parties agree to prepare and timely file all applicable Internal
Revenue Service forms and other governmental forms, to cooperate with each other
in the preparation of such forms, and to furnish each other with a copy of such
forms prepared in draft, within a reasonable period prior to the filing due date
thereof.
2.4 ADJUSTMENTS.
(a) The operation of Miami Avenue's business ("Seller's
Business") and related income and expenses up to the close of business on the
day before the Closing (as defined in Section 4) shall be for the account of
Seller and thereafter for the account of the Buyer. Expenses, including but not
limited to utilities, license fees, personal or real property taxes, wages,
vacation pay, payroll taxes and fringe benefits of employees of the Seller or
Seller's Business, shall be pro-rated between the Seller and Buyer as of the
close
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of business on the Closing date, the proration to be made, insofar as reasonably
possible, on the Closing Date, with settlement of any remaining items to be made
within sixty (60) days following the Closing.
(b) After the Closing Date, Buyer shall use commercially
reasonable efforts to collect the money due the Seller from the Seller's
Business prior to the Closing Date and keep records of its collection efforts
and amount collected. Seller shall provide Buyer with a list of its receivables,
none of which shall be more than ninety (90) days past due (the "Seller's
Accounts Receivable"). The Buyer shall forward the amounts collected to the
Seller monthly. All monies received by Buyer, from customers utilizing Miami
Avenue, shall first be applied to the Seller's Accounts Receivable. One hundred
and twenty (120) days after the Closing Date, Buyer shall prepare and forward to
Seller a written reconciliation of the Seller's Accounts Receivable showing
amounts collected and amounts uncollected during such 120 day period. After said
120 day period, Seller shall have the right to take such action as it may deem
necessary to collect any remaining Seller's Accounts Receivable and Buyer shall
have no further obligations in connection therewith.
SECTION 3. INSTRUMENTS OF CONVEYANCE AND DUE DILIGENCE.
(a) At the Closing, the Buyer shall deliver all of the
consideration, including the agreed upon shares and Seller shall execute and
deliver to Buyer all necessary certificates of title, bills of sale,
endorsements, assignments and other good and sufficient instruments and
documents of conveyance and transfer as shall be required to effectuate the
sale, assignment, transfer and delivery of the Miami Avenue Assets and
assignment of Exhibit "A" and Exhibit "B".
(b) Seller shall at the Closing, as defined in Section 7, and
from time to time thereafter at Buyer's request and without further
consideration, execute and deliver to Buyer such instruments of transfer,
conveyance and assignment in addition to those referenced above as Buyer shall
reasonably request to transfer, convey and assign more effectively the Assets to
Buyer.
(c) At the Closing, Seller shall provide Buyer with consents
from all of the shareholders of Peerless Miami Avenue, Inc. to the sale of
substantially all of the company's Assets to Buyer, as set forth herein, in
accordance with Section 607.0704, Florida Statutes and to Seller's Plan of
Complete Liquidation and Dissolution of Peerless Miami Avenue, Inc.,
substantially in the form attached hereto as Exhibit "D".
(d) At the Closing, Seller shall provide an updated and
complete customer list showing names, addresses, service location and pricing.
(e) At the Closing, Seller shall provide updates for all
schedules attached to the Agreement.
3.1 DUE DILIGENCE. The Buyer's obligation to close under this
Agreement is contingent upon Buyer being satisfied with the results of its due
diligence investigation. Buyer shall have until October 5, 2000 to conclude its
due diligence ("Due Diligence Period"). The Due Diligence Period may be extended
by mutual agreement of the parties. After such period, the Buyer shall be deemed
to be satisfied with its due diligence unless written notice is sent to Seller,
within five (5) days after the Due Diligence Period, that Buyer is not satisfied
with its due diligence.
SECTION 4. CLOSING. Closing, subject to the terms and conditions of
this Agreement, the sale, transfer, assignment and delivery of the Assets, the
delivery of the Purchase Price, and the delivery of the other instruments and
certificates required hereunder, shall take place on or before October 16, 2000,
or at such other time and date as shall be mutually agreed upon by the parties
hereto in writing. Such time and date shall be referred to herein as the
"Closing". The date of the Closing is sometimes herein referred to as the
"Closing Date".
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SECTION 5. OBLIGATIONS OF BUYER AND SELLER PRIOR TO CLOSING. From the
date of this Agreement until Closing:
(a) Seller shall afford to the representatives of Buyer access, during
normal business hours and upon reasonable notice, to the premises, properties,
books and records of the Seller, permit Buyer to inspect the Assets, and furnish
Buyer with such additional financial, corporate and operating data and other
information as to the Miami Avenue Assets as Buyer may from time to time
reasonably request; provided, however, that any furnishing of information to
Buyer shall not affect Buyer's right to rely on Seller's representations and
warranties made herein;
(b) until and unless the Closing has been consummated, Buyer will cause
all information obtained in connection with the negotiation and performance of
this Agreement to be treated as confidential (except such information as Buyer
may be required or find necessary to disclose to any governmental agency) and
will not use, and will not knowingly permit others to use, any such information
in a manner detrimental to Seller;
(c) except as otherwise provided by the prior written consent of Buyer,
Seller shall conduct its business and operations diligently and in the same
manner as it has heretofore been conducted, and use its best efforts to maintain
its assets, facilities and organization, to keep available to Buyer the services
of its officers, employees and agents, and to preserve present relationships
with suppliers, customers and others with which it conducts business.
(d) The parties to this Agreement shall have obtained, at or prior to
Closing, all consents, if any, required for the consummation of the transaction
contemplated by this Agreement from any party to any contract, agreement,
instrument, lease, license, arrangement or understanding to which any of them is
a party, or to which the Miami Avenue Assets are subject. It is a condition
precedent to Buyer's obligation to close that Seller obtain the assignments,
consents or approvals set forth in Exhibits "A" and "B" attached hereto and
incorporated herein by reference.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND SELLER.
6.1 REPRESENTATIONS AND WARRANTIES AND OBLIGATIONS. The
representations and warranties of Buyer and Seller contained in this Agreement
shall be accurate on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date.
6.2 COVENANTS. Each and all of the terms, covenants and
conditions of this Agreement to be complied with and performed by Buyer and
Seller on or before the Closing Date shall have been duly complied with and
performed.
6.3 NO ADVERSE CHANGE. No material and adverse change in the
business of the parties and/or the Miami Avenue Assets shall have occurred since
execution of the Agreement. Buyer and Seller shall not have suffered any loss or
damage to any of their respective properties or assets, whether or not covered
by insurance, since which change, loss or damage would materially affect or
impair the ability of Buyer or Seller to conduct their business.
6.4 SIMULTANEOUS CLOSING OF PURCHASES OF COMPANION
TRANSACTIONS. Buyer has entered into contracts to purchase assets from Peerless
Big Apple, Inc. and Peerless Dade, Inc. which are scheduled to close
simultaneous with this transaction ("Companion Transactions"). Buyer and Seller
acknowledge that the parties' obligation to close the transaction contemplated
by this Agreement, including without limitation the payment of the purchase
price or other consideration to Seller is conditioned upon the parties' ability
to simultaneously close the purchase or the assets of all of the Companion
Transactions, unless expressly waived by the parties in writing.
6.5 ASSIGNMENTS. Seller shall have obtained the consents and
assignments required for Exhibits A and B referenced in Section 1 hereof.
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SECTION 7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
warrants, represents and covenants, with respect to the Miami Avenue Assets
which are the subject of this transaction and Agreement, as of the date of the
execution of this Agreement and at the Closing, that:
(a) Seller is a Florida corporation duly organized, validly existing
and in good standing under the laws of all states in which Miami Avenue Assets,
which are the subject of this Agreement are located, with full authority to
execute and perform this Agreement, and the performance of this Agreement will
not result in a breach or constitute a default under Articles, Bylaws,
Contracts, and any statute, law, agreement, order or rule of any court or
governmental authority by which Seller is bound;
(b) Seller has all necessary powers to own its Assets and to operate
the businesses as now owned and operated by it; and they are duly authorized,
qualified and licensed under applicable laws, regulations, ordinances or orders
of public authorities to carry on their business in the places and in the manner
as now conducted;
(c) Except as otherwise provided herein, Seller has complete and
unrestricted power to sell, convey, transfer, assign and deliver to Buyer all of
the Miami Avenue Assets to be sold, conveyed, transferred, assigned and
delivered hereunder, and the instruments executed and delivered to Buyer
hereunder are valid in accordance with their terms and are effective for the
purposes contemplated;
(d) All of the Assets are free and clear of all debts, liens, claims,
pledges, mortgages, encumbrances and security interests;
(e) Seller shall not divulge, communicate, use to the detriment of
Buyer or for the benefit of any other person or persons, or misuse in any way,
any confidential or sensitive information or trade secrets of its business,
including, but not limited to, personnel information, know-how, customer lists,
or other financial and operating data in conjunction with the Assets being
transferred hereunder. Seller further acknowledges and agrees that any
information or data pertinent to this Agreement they have in their possession
will be transferred to Buyer;
(f) All pending or threatened litigation and any administrative or
judicial proceedings of any nature involving any of the Miami Avenue Assets are
described in Schedule 1. Seller shall be solely responsible for resolving any
pending or threatened enforcement actions and/or any administrative or judicial
proceedings as set forth in Schedule 1. The Seller knows of no other facts or
circumstances which may result in any future civil, administrative or criminal
proceedings against the Seller. The assets and/or insurance coverage of the
Seller is adequate in character and amount to pay all damages, losses,
liabilities and expenses relating to or arising from the litigation and
proceedings described in Schedule 1;
(g) Except as specifically provided in Schedule 2, the Seller is not in
default under any law, ordinance, or order of any court or federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality wherever located (other than as may be described elsewhere
herein); and there are no claims, actions, suits or proceedings pending or
threatened, against or affecting the Seller or any of the Assets at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, wherever
located, or before any arbitrator, arbitration panel or other dispute resolution
panel, which may result in any material adverse change in the financial
condition, results of operations, or Miami Avenue Assets or which may affect
Buyer's ability to operate the business or which may question the validity or
propriety of this Agreement or of any action taken or to be taken in accordance
with or in connection with this Agreement; and the Seller has received no notice
of any asserted past or present failure to comply with any law, ordnance,
regulation, permit, order or requirement;
(h) Except as specifically described in Schedule 1 or Schedule 2, the
Seller has operated from its inception, and will continue to operate through
Closing, legally and in compliance with all conditions and requirements of all
applicable zoning laws, federal, state and local statutes, ordinances, rules,
regulations
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("Laws"), including environmental Laws, permits, policies, guidelines, orders,
franchises, authorizations and consents;
(i) Except as described in Schedule 1 or Schedule 2, the Seller is not
subject to any judgment, writ, injunction, decree or other judicial order;
(j) The Seller is not aware of or knows any event or condition of any
character which would or could materially and adversely affect the Miami Avenue
Assets being sold hereunder or its business;
(k) Except as described in Schedule 1 or Schedule 2, Seller has not
received actually or contractually any notification (including requests for
information directed to the Seller) of any past or present failure by the Seller
to comply with any federal, state or local laws, regulations, permits,
franchises or orders applicable to them or the Miami Avenue Assets;
(l) To the best of Seller's knowledge and belief, it has all permits,
licenses and authorizations ("Permits") in place for operation of Miami Avenue's
business and all such Permits are transferable. Said Permits are identified in
the attached Schedule 3 and complete copies of the Permits are attached to
Schedule 3;
(m) Seller will implement and complete the Plan of Liquidation and
Dissolution of Peerless Miami Avenue, Inc. as set forth in Exhibit "D" attached
hereto and incorporated herein by reference.
(n) Seller has disclosed all material facts necessary for Buyer to
purchase the Miami Avenue Assets transferred hereunder;
(o) To the best of Seller's knowledge and belief, all representations
and warranties of Seller set forth in this Agreement, and in any written
statements and Schedules prepared in connection with this Agreement, are true
and correct as of the Closing.
(p) To the best of Seller's knowledge and belief, all of the financial
documents provided by Seller to Buyer fairly presents the information as of the
date compiled.
(q) Seller hereby represents and warrants that its financial books and
records are available and that it will, at its own cost and expense, provide
audited financial statements. Seller will take any and all necessary actions to
provide such audited financial statements. Seller further represents and
warrants that it knows of no reason why it should not be able to provide such
audited financial statements.
(r) Seller shall not dissolve Peerless Miami Avenue, Inc. prior to 270
days after the Closing.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
warrants, represents and covenants, as of the date of the execution of this
Agreement and at Closing, that:
(a) Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida is now and has been at all times
since its creation, duly authorized, qualified and licensed under all laws,
regulations, ordinances and orders of public authorities to carry on their
business.
(b) Buyer has full legal right, power and authority (corporate and
otherwise) to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. Buyer does not need to give any notice to, or
make any filing with, or obtain the authorization, consent or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(c) The execution, delivery and performance of this Agreement, the
consummation of any transactions referred to in this Agreement or contemplated
by this Agreement and the fulfillment of the terms hereof and thereof will not:
(i) conflict with, or result in a breach or violation of the Articles of
Incorporation or By-Laws of Buyer; or (ii) conflict with, or result in a breach
under any document, agreement or other instrument to which Buyer is a party.
(d) The officer of Buyer executing this Agreement has the corporate
authority to enter into and bind Buyer to the terms of this Agreement, and Buyer
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement. All corporate action by Buyer necessary to
approve
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the transaction, including both shareholder and director approvals, have been
taken and a copy of the corporate resolution(s) authorizing this transaction
will be delivered at Closing.
(e) Buyer has made all filings with Securities and Exchange Commission
that it is required to make under the Securities Act of 1933 (the "Act") and the
Securities Exchange Act of 1934 (the "Exchange Act"), as amended collectively,
the "Public Reports"). The Public Reports accurately and completely describe, in
all material respects, Buyer's financial status, business operations and
prospects as of the date of such filings, and do not contain any untrue
statement of a material fact or omit any material fact(s) necessary to make the
information contained in the filings not misleading.
SECTION 9. HOLD HARMLESS AND INDEMNIFICATION. From and after the
Closing, the Seller will indemnify and hold the Buyer and its assigns,
subsidiaries, divisions, affiliates, officers, directors, agents and employees
harmless from and against any damage, loss, liability or expense (including
attorneys' fees and litigation expenses) incurred as a result of or in
connection with:
(a) the material untruth, violation or breach (collectively referred to
as "breach") of any of the representations, warranties, agreements or
obligations set forth in or made in connection with this Agreement; or
(b) any occurrence, act or omission of the Seller, which occurrence,
act or omission occurred prior to the Closing and for which the Seller is
legally responsible; or
(c) any liabilities not assumed by Buyer affecting any Assets being
transferred hereunder.
Seller shall deliver 12,600 shares of the Stock Consideration, which
becomes fully tradeable on January 2, 2002, to G. Xxxxxxx Xxxxxxx, P.A. ("Escrow
Agent") to be held in escrow as security for Seller's indemnification
obligations regarding the material untruth, violation or breach of the
representations and warranties set forth in Section 7 of this Agreement
("Escrowed Shares"). Said Escrowed Shares shall be released to the Seller's
individual shareholders or designee if no claim for indemnification is asserted
by the Buyer under this Section 9 within two hundred seventy (270) days of the
Closing Date. Buyer will notify Escrow Agent, in writing, no later than close of
business (5:00 p.m. EST) on the 270th day from the Closing Date, of any pending
indemnification claim. In the absence of such notice, the Escrowed Shares may be
released to the Shareholders or their designee by the Escrow Agent as directed
by the Shareholders or their designee. The Buyer will give Seller written notice
of any or circumstance which may give rise to an obligation of the Seller to
indemnify Buyer under this Section 9, which notice shall be accompanied by a
copy of any claim made which may result in such obligation to indemnify. All
claims for indemnification must be submitted by Buyer to Seller within Two
Hundred Seventy (270) days of the Closing Date. The Buyer's claim for
indemnification ("Indemnification Demand") shall state: (a) which of Seller's
material representations or warranties are untrue or have been breached; (b) the
amount of losses, damages or expenses which the Buyer has incurred or has
suffered or is expected to suffer to which the Buyer may be entitled to
indemnification pursuant to this Section 9. The Seller may object to the
Indemnification Demand by sending Buyer a written notice stating the objections
and grounds for the objections ("Indemnification Objection"). If no
Indemnification Objection is sent within fifteen (15) days after Seller's
receipt of the Buyer's Indemnification Demand, Seller shall be deemed to have
acknowledged the correctness of the claim or claims specified in the
Indemnification Demand and shall pay the full amount claimed in the
Indemnification Demand within thirty (30) days. If for any reason the amount
claimed in the Indemnification Demand is not paid within thirty (30) days, the
Buyer may institute legal proceedings to enforce payment of the indemnification
claim contained in the Indemnification Demand and any other claim for
indemnification that the Buyer may have under this Agreement. Buyer agrees that
it will not make a claim for indemnification under this Section 8 for matters in
the aggregate having a value of less than $5,000.00. The Seller's Liability for
any Indemnification Demand is limited to the Escrowed Shares.
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SECTION 10. DEFAULT BY BUYER. If the Buyer fails to perform any of the
terms, covenants, conditions or obligations of this Agreement or in the event of
any breach or default by Buyer under this Agreement, or any other documents
executed or delivered in connection with the transactions contemplated by this
Agreement, the Seller shall have all rights and remedies that may be available
to Seller at law or in equity. No waiver by Seller of any such breach or
default, whether intentional or not, shall be deemed to extend to any prior or
subsequent breach or affect in any way any rights arising by virtue of any prior
or subsequent breach or default. The Buyer shall not be deemed in breach or
default under this Agreement until written notice of the breach or default has
been given to the Buyer and the Buyer has failed to remedy the breach or default
within ten (10) days of the receipt of said notice from Seller or their
designated representative or counsel.
SECTION 11. SURVIVAL OF REPRESENTATIONS. Except as otherwise provided
in Section 8, the representations, warranties, obligations and agreements of the
parties contained in Sections 6 and 7 of this Agreement or in any writing
delivered pursuant to provisions of this Agreement shall survive the Closing and
the consummation of these transactions and any examination on behalf of such
parties.
SECTION 12. GENERAL.
(a) This Agreement and the schedules attached hereto embody the entire
agreement of the parties in relation to the subject matter hereof, and all prior
agreements have been merged into this Agreement. There are no understandings or
agreements, verbal or otherwise, in relation thereto, existing or that are
enforceable between the parties except as hereinabove expressly set forth. No
change or modification of this Agreement shall be valid unless the same shall be
in writing, signed by both of the parties hereto, and incorporated by reference
herein;
(b) Nothing in this Agreement, whether expressed or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective heirs,
executors, administrators, successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any
third persons any right of subrogation over, or action against any party to this
Agreement.
(c) The rights and remedies to the parties to this Agreement in the
event of default are cumulative, and the exercise of any right or remedy shall
be without prejudice to the enforcement of any other right authorized by law, in
equity or this Agreement. The pursuit of any remedy provided in this Agreement
shall not constitute a forfeiture or waiver of any amount due for a defaulting
party or the right to maintain an action for any damages accruing for breach.
Forbearance to enforce one or more of the remedies provided by this Agreement,
on an event of default, shall not be deemed or construed to constitute a waiver
of the right to any remedy for that default.
(d) The subject headings of the Sections of this Agreement are included
for purposes of convenience only, and shall not affect the construction or
interpretation of any of its provisions.
(e) Each party to this Agreement agrees to pay its respective attorney,
accounting or other fees, plus all costs arising out of the negotiation and
preparation of this Agreement.
(f) The validity and interpretation of this Agreement and of each and
every clause, term and part hereof shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to
conflict of laws.
(g) Seller and Buyer represent to each other that no broker or finder
has been employed by any of them in connection with this transaction. Each party
agrees to indemnify the other against all loss, cost, damage or expense arising
out of claims for fees or commission of brokers or finders employed or alleged
to have been employed by such party.
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(h) All notices, requests, demands or other communications required or
permitted under this Agreement shall be sent by overnight mail, next day
delivery and fax, to Seller or Owner at their respective addresses appearing on
the signature page hereof and to Buyer at the addresses set forth below, and
notice shall be deemed given as of the date the notice is posted:
Seller: Xxxxx X. Xxxx
President
Peerless Miami Avenue, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
with a copy to: G. Xxxxxxx Xxxxxxx, Esq.
c/o Lewis, Longman & Xxxxxx, P.A.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Buyer: Xxxxxxx X. Xxxxxxx
President
Star Services Group, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
FAX: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxxx, LLP
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
FAX: (000) 000-0000
(i) If any provision hereof is held or finally determined to be invalid
or unenforceable to any extent for any reason, to the extent that such provision
is valid and enforceable, the arbiters or court of competent jurisdiction, as
the case may be, shall construe and interpret said provision to provide for
maximum validity and enforceability. If any provision of this Agreement is
invalid, illegal or unenforceable, the balance of this Agreement shall remain in
effect.
(j) In connection with any action or dispute or dispute arising under
this Agreement the prevailing party shall be entitled to an award of its
expenses including reasonable attorney fees and disbursements incurred or paid
before and at trial of any appellate proceedings.
(k) This Agreement shall not be assigned by either party without the
prior written consent of the other party. Notwithstanding the foregoing, it is
agreed that Buyer may assign this Agreement to a subsidiary. However, no such
assignment shall release Buyer from its obligations hereunder without the
specific release thereof by the Seller.
(l) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
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SECTION 13. BENEFIT AND DURATION. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
administrators, executors, successors and assigns. However, any assignment by
Seller must be agreed to in writing by Buyer. This Agreement shall continue in
effect until all the obligations, duties and warranties as specified herein,
shall be fully performed and satisfied.
IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year
first above written.
BUYER:
STAR SERVICES GROUP, INC.
Attest:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Corporate Secretary Xxxxxxx X. Xxxxxxx, Its President
SELLER:
PEERLESS MIAMI AVENUE, INC.
Attest:
BY: /s/ G. Xxxxxxx Xxxxxxx BY: /s/ Xxxxx X. Xxxx
-------------------------------- --------------------------------
Corporate Secretary Xxxxx X. Xxxx, Its President
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