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EXHIBIT 10.44
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "AGREEMENT"), dated as of September
30, 1999, is among FAIRGROVE RESTAURANTS, LLC, a North Carolina limited
liability company (the "BUYER"), FRESH FOODS, INC., a North Carolina corporation
("FRESH FOODS"), and FRESH FOODS SALES, LLC, a North Carolina limited liability
company and wholly-owned subsidiary of Fresh Foods (the "SELLER").
WHEREAS, Seller owns all of the assets (including real property) used
and useful in the operation of the Xxxxxxx'x Bar-B-Que restaurant located in
Conover, North Carolina (the "RESTAURANT"); and
WHEREAS, the parties have reached an understanding with respect to the
sale by the Seller and the purchase by the Buyer of certain assets used and
useful in the operation of the Restaurant;
NOW, THEREFORE, in consideration of the premises and the mutual
promises, agreements and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties intending legally to be bound, hereby agree as follows:
SECTION 1
PURCHASE AND SALE OF ASSETS
1.1 ACQUISITION OF ASSETS. On the terms and subject to the conditions
set forth in this Agreement, the Seller agrees to sell to the Buyer, and the
Buyer agrees to purchase from the Seller, all of the assets and properties of
Seller used in the operation of the Restaurant, including without limitation the
following (all hereinafter referred to as the "PURCHASED ASSETS"):
(a) REAL PROPERTY. All of the Seller's right, title and
interest in and to the real property listed on SCHEDULE 1.1(a),
together with all buildings, fixtures and other improvements located
thereon (the "PROPERTY");
(b) FURNITURE, FIXTURES, EQUIPMENT AND MACHINERY. All of the
Seller's right, title and interest in and to the furniture, fixtures,
equipment and machinery located on the premises of the Restaurant;
(c) VEHICLES. All of the Seller's right, title and interest in
and to the motor vehicles listed on SCHEDULE 1.1(c);
(d) INVENTORY AND SUPPLIES. All inventory of food, wine, beer
and soft drinks and all bar supplies, linen, china, silver, office
supplies and other supplies located on the premises of the Restaurant;
and
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(e) OTHER ASSETS. All of the Seller's right, title and
interest in and to all licenses and other governmental permits and
authorizations that relate to the Restaurant which Seller is permitted
to assign; all the Seller's books and records used or generated in the
operation of the Restaurant, including supplier lists and files, sales
listings and vendor files and records, together with all other assets,
tangible and intangible, owned by the Seller and used or useful in the
operation of the Restaurant, provided, however, that Buyer shall
provide Seller such access to the acquired books and records as Seller
shall reasonably request for legitimate business purposes (including,
without limitation, for the purpose of preparing tax returns, payroll
reports or any other reports required of Seller).
1.2 EXCLUDED ASSETS. Notwithstanding the provisions of Section 1.1, the
Purchased Assets shall not include any of the following:
(a) Cash and cash equivalents; and
(b) All claims and rights of Seller in and to federal, state
and local income tax refunds, credits, deductions and other tax
benefits of Seller relating to the Restaurant and accruing prior to the
effective time of the Closing (as defined herein).
1.3 ASSUMPTION OF LIABILITIES. On the terms and subject to the
conditions set forth in this Agreement, the Buyer shall assume the liabilities
and obligations of the Seller listed as balance sheet accounts under the heading
"Liabilities" on the September 6, 1999 balance sheet of the Restaurant attached
hereto as SCHEDULE 1.3, in such amounts as shall be accrued in such balance
sheet accounts as of the effective time and date of Closing (the "ASSUMED
LIABILITIES").
1.4 EXCLUDED LIABILITIES. The Assumed Liabilities shall include no
liability or obligation of any kind or nature, whether known or unknown,
absolute or contingent, liquidated or unliquidated, due or to become due, of the
Seller or Fresh Foods, save only as provided in Section 1.3. The liabilities of
the Seller and Fresh Foods not assumed by the Buyer hereunder are called
"EXCLUDED LIABILITIES" in this Agreement.
1.5 PURCHASE PRICE. In full consideration for the sale and transfer of
the Purchased Assets, and on the terms and subject to the conditions set forth
in this Agreement, the Buyer covenants and agrees to deliver to the Seller, not
later than 5:00 p.m., Eastern time, on October 4, 1999, a certified check in an
amount equal to the sum of (i) $1,100,000 plus (ii) the total dollar amount of
expenditures made by the Seller in connection with certain agreed-upon
improvements and repairs to the Restaurant made outside of the ordinary course
of business and for the benefit of the Buyer in contemplation of the
transactions provided for in this Agreement, as determined by the Seller
(reasonably and in good faith). SCHEDULES 1.5(a) and 1.5(b) attached hereto
list, to the best knowledge of the Seller as of the date of this Agreement, the
expenditures referenced in clause (ii) above, which will be updated based upon
final accounting as of the effective time and date of Closing.
1.6 RELATED AGREEMENTS. The following agreements shall be executed and
delivered at the Closing by the parties thereto (collectively, the "RELATED
AGREEMENTS"):
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(a) DEED. A deed in the form of EXHIBIT 1.6(A) (the "DEED").
(b) XXXX OF SALE. A xxxx of sale in the form of EXHIBIT 1.6(b)
(the "XXXX OF SALE").
(c) ASSUMPTION AGREEMENT. An assumption agreement in the form
of EXHIBIT 1.6(c) (the "ASSUMPTION AGREEMENT").
(d) FRANCHISE AGREEMENTS. Fresh Foods shall cause Claremont
Restaurant Group, LLC, a North Carolina limited liability company and
wholly-owned subsidiary of Fresh Foods ("CLAREMONT"), to execute and
deliver a Termination and Release Agreement, and Fresh Foods shall
cause Claremont to, and Buyer shall, execute and deliver a Third
Addendum to Franchise Agreement, each with respect to the parties'
franchise relationship with Xxxxxxx'x Bar-B-Que, Inc.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF SELLER AND FRESH FOODS
Seller and Fresh Foods, acknowledging that Buyer is relying on the
following representations and warranties in entering into this Agreement, hereby
jointly and severally represent and warrant to Buyer as follows:
2.1 ORGANIZATION AND QUALIFICATION. Seller is a limited liability
company duly organized, validly existing and in good standing under the laws of
North Carolina. Seller has the requisite power and authority to carry on its
business as it is now being conducted.
2.2 AUTHORITY RELATIVE TO THIS AGREEMENT. This Agreement has been duly
and validly executed and delivered by each of Seller and Fresh Foods and
constitutes a legal, valid and binding agreement of each of them, enforceable
against each of them in accordance with its terms. Each of Seller and Fresh
Foods has all requisite power and authority to enter into this Agreement. Seller
has all requisite power and authority to consummate the transactions
contemplated hereby. No further action is required on the part of either of
Seller or Fresh Foods to authorize either of Seller or Fresh Foods to consummate
the transactions contemplated hereby.
2.3 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
contemplated by Section 4.3(f) of this Agreement, the execution, delivery and
performance of this Agreement by each of Seller and Fresh Foods and the
consummation of the transactions contemplated hereby does not require the
consent of any third party and neither conflicts with, results in a breach of,
or constitutes a default under any applicable law, judgment, order, injunction,
decree, rule, regulation or ruling of any court or governmental instrumentality,
or the articles of organization or operating agreement of Seller or the charter
or bylaws of Fresh Foods, nor does it conflict with, constitute grounds for
termination of, result in a breach of, or constitute a default under, any
agreement, instrument, license or permit to which Seller or Fresh Foods is now
subject.
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2.4 COMPLIANCE WITH LAWS. To the best of Seller's knowledge, Seller is
in compliance with all laws, regulations, or governmental orders applicable to
the Restaurant and the present use by the Seller of the Property and Purchased
Assets in the operation of the Restaurant. Neither Seller nor Fresh Foods has
received any written notice of any violation of any law, regulation or
governmental order relating to the Restaurant nor has actual knowledge of any
such violation, or of any investigation with respect to any such violation, or
of any investigation with respect to any judgment, award, order, injunction or
decree of any court or other governmental authority which in any way affects or
relates to the Property, Purchased Assets or the Restaurant.
2.5 TITLE TO PURCHASED ASSETS. Seller has good and marketable title to
all Purchased Assets, free and clear of all mortgages, security interests,
claims, liens, encumbrances and restrictions. The Seller has the right to convey
the Purchased Assets to the Buyer and the Seller shall convey at the Closing
good and marketable title to the Purchased Assets, free and clear of all
encumbrances, and shall warrant and defend the title to the Purchased Assets in
the Buyer against the claims of all persons whomsoever.
2.6 FILING OF TAX RETURNS. Seller has filed all federal, state and
local tax returns which are required to be filed (except to the extent that
failure to file is not reasonably likely to have a material adverse effect on
the business, condition (financial or otherwise), operations or prospects of the
Restaurant) in connection with the Restaurant and has paid or made adequate
provision for the payment of all assessments for such taxes and duties when due
and payable, except for taxes the nonpayment of which is not reasonably likely
to have a material adverse effect on the business, condition (financial or
otherwise), operations or prospects of the Restaurant. All such returns, as
applicable, have been prepared in all material respects in accordance with the
applicable provisions of the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder and with the applicable provisions of the state
and local laws, rules and regulations concerning taxation.
2.7 NO INJUNCTIONS. There is not in effect any preliminary or permanent
injunction or other order by any federal or state authority prohibiting the
consummation of the transactions contemplated hereby.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer, acknowledging that Seller and Fresh Foods are relying on the
following representations and warranties in entering into this Agreement,
represents and warrants to Seller and Fresh Foods as follows:
3.1 ORGANIZATION AND QUALIFICATION. Buyer is a limited liability
company duly organized, validly existing and in good standing under the laws of
North Carolina and has the requisite power and authority to carry on its
business as it is now being conducted.
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3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. This Agreement has been duly
and validly executed and delivered by Buyer and constitutes a legal, valid and
binding agreement of Buyer, enforceable against Buyer in accordance with its
terms. Buyer has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The members of Buyer
have, subject to the terms and conditions set forth herein, approved this
Agreement and the transactions contemplated hereby. No other action is required
on the part of Buyer or the members of Buyer to authorize Buyer to consummate
the transactions contemplated hereby.
3.3 OWNERSHIP. Buyer has authorized capital consisting of membership
interests of a single class and series, all of which are owned (of record and
beneficially) by Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxxx, Xx., Xxxxx X. Xxxxx, X.
Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxxx Xxxxxx free and clear of any mortgages,
security interests, claims, liens, encumbrances or restrictions. All such
membership interests have been duly authorized and validly issued.
3.4 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. The
execution, delivery and performance of this Agreement by Buyer does not require
the consent of any third party and neither conflicts with, results in a breach
of, or constitutes a default under any applicable law, judgment, order,
injunction, decree, rule, regulation or ruling of any court or governmental
instrumentality, or the articles of organization or operating agreement of the
Buyer, nor does it conflict with, constitute grounds for termination of, result
in a breach of, or constitute a default under, any agreement, instrument,
license or permit to which the Buyer is now subject.
3.5 COMMISSIONS. There is no broker, finder or other person who has any
valid claim against Buyer for a commission, finder's fee or brokerage fee in
connection with this Agreement or the transactions contemplated hereby. Buyer
hereby agrees to indemnify and hold Seller harmless from any claim for any such
commission or fee.
SECTION 4
CLOSING AND CONDITIONS TO CLOSING
4.1 CLOSING DATE. The closing (the "CLOSING") of the purchase and sale
of the Purchased Assets provided for in this Agreement, effective for all
purposes as of 11:59 p.m. on October 3, 1999, shall take place at the offices of
McGuire, Woods, Battle & Xxxxxx LLP, at 10:00 a.m. on September 30, 1999, or at
such later date as shall be agreed upon by the parties. The time and date of
closing are herein called the "CLOSING DATE."
4.2 CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligations of the
Buyer to consummate the transactions provided for herein on the Closing Date are
subject to the fulfillment on or before the Closing Date of each of the
following conditions, except to the extent that the Buyer may, in its absolute
discretion, waive one or more thereof in writing in whole or in part:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of the Seller and Fresh Foods contained
herein shall be true and
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correct in all material respects on and as of the Closing Date with
the same force and effect as if made on and as of such date and the
covenants of the Seller and Fresh Foods set forth herein shall have
been complied with through the Closing Date in all material respects,
and a certificate to such effect, executed by the Chief Financial
Officer of Fresh Foods (in his capacity as such), shall be executed and
delivered to the Buyer on and as of the Closing Date.
(b) DOCUMENTS OF THE SELLER. The Seller shall have caused to
be delivered to the Buyer the following:
(i) GOOD STANDING CERTIFICATES. Certificate of
Seller's Existence from the North Carolina Secretary of State.
(ii) ORGANIZATION DOCUMENTS. The Articles of
Organization, as amended to date, of the Seller, certified by
the North Carolina Secretary of State, and the Operating
Agreement of the Seller, together with a certificate of the
sole member-manager of the Seller, dated as of the Closing
Date, certifying the accuracy and completeness of such
documents as of such date.
(iii) RESOLUTIONS. Certified copy of resolutions of
Fresh Foods as the sole member-manager of Seller authorizing
the transactions contemplated hereby and the execution,
delivery and performance of this Agreement and the Related
Agreements.
(c) RELATED AGREEMENTS. The Related Agreements shall have been
executed and delivered by the parties thereto (other than the Buyer).
(d) NO ADVERSE PROCEEDING. No action, suit or proceeding
before any court or any governmental or regulatory authority shall have
been commenced, no investigation by any governmental or regulatory
authority shall have been commenced, and no action, suit or proceeding
by any governmental or regulatory authority shall have been threatened,
against any of the parties to this Agreement wherein an unfavorable
judgment, order, decree, stipulation, injunction or charge 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.
(e) OTHER ASSURANCES. The Seller and Fresh Foods shall have
delivered to the Buyer such other and further certificates, assurances
and documents as the Buyer may reasonably request to evidence the
accuracy of the representations and warranties made pursuant to Section
2, the performance of covenants and agreements to be performed pursuant
to Section 5 at or prior to the Closing, and the fulfillment of the
conditions to the Buyer's obligations.
4.3 CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligations of the
Seller and of Fresh Foods to consummate the transactions provided for herein on
the Closing Date are subject to the
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fulfillment on or before the Closing Date of each of the following conditions,
except to the extent that the Seller and Fresh Foods may, each in its absolute
discretion, waive in writing one or more thereof in whole or in part:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Buyer contained herein shall be true and correct in
all material respects on and as of the Closing Date with the same force
and effect as if made on and as of such date and the covenants of the
Buyer set forth herein shall have been complied with through the
Closing Date in all material respects, and a certificate to such
effect, executed by Xxxxx X. Xxxxx (in his capacity as a member of
Buyer), shall be executed and delivered to the Seller on and as of the
Closing Date.
(b) DOCUMENTS OF THE BUYER. The Buyer shall have caused to be
delivered to the Seller the following:
(i) GOOD STANDING CERTIFICATE. Certificate of Buyer's
Existence from the North Carolina Secretary of State.
(ii) ORGANIZATION DOCUMENTS. The Articles of
Organization, as amended to date, of the Buyer, certified by
the North Carolina Secretary of State, and the Operating
Agreement of the Buyer, together with a certificate of a duly
authorized officer of the Buyer, dated as of the Closing Date,
certifying the accuracy and completeness of such documents as
of such date.
(iii) RESOLUTIONS. Certified copy of resolutions of
the members of the Buyer authorizing the transactions
contemplated hereby and the execution, delivery and
performance of this Agreement and the Related Agreements.
(c) RELATED AGREEMENTS. The Related Agreements shall have been
executed and delivered by the parties thereto (other than the Seller).
(d) NO ADVERSE PROCEEDINGS. No action, suit or proceeding
before any court or any governmental or regulatory authority shall have
been commenced, no investigation by any governmental or regulatory
authority shall have been commenced, and no action, suit or proceeding
by any governmental or regulatory authority shall have been threatened,
against any of the parties to this Agreement wherein an unfavorable
judgment, order, decree, stipulation, injunction or charge 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.
(e) FAIRNESS OPINION. Fresh Foods shall have received an
opinion letter of Xxxxxx Xxxxxxxxx Xxxxxx, a division of First Union
Capital Markets
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Corp., dated a recent date, in support of the transactions contemplated
by this Agreement.
(f) LENDER CONSENTS. Fresh Foods and Seller shall have
received any and all necessary waivers and consents granted by their
institutional lenders or shall have received amendments to their credit
documents having the same effect.
(g) OTHER ASSURANCES. The Buyer shall have delivered to the
Seller such other and further certificates, assurances and documents as
the Seller or its counsel may reasonably request to evidence the
accuracy of the representations and warranties made pursuant to Section
3, the performance of the covenants and agreements to be performed
pursuant to Section 5 at or prior to the Closing and the fulfillment of
the conditions to the Seller's obligations pursuant to this Section
4.3.
SECTION 5
CERTAIN COVENANTS AND AGREEMENTS
5.1 PRE-CLOSING ACCESS TO BUSINESS. Prior to the Closing, the Seller
shall afford to authorized representatives of the Buyer free and full access
upon reasonable notice and during normal business hours to the premises, assets,
properties, books, personnel and records of the Seller so that the Buyer may
have full opportunity to make such investigations as it shall desire to make of
the Seller; PROVIDED, HOWEVER, that, until the Closing, the Buyer shall not
disclose or use and shall cause its agents, attorneys and representatives not to
disclose or use any confidential data or information secured from the Seller,
and, if the Closing does not occur as herein provided, the Buyer will promptly
return to the Seller, at the request of the Seller, any and all copies,
summaries or abstracts thereof and shall not use any such information in any
manner.
5.2 INTERIM CONDUCT OF BUSINESS. Pending the Closing, the Seller shall
conduct its business only in the usual and ordinary course.
5.3 CONTINUATION OF PROPERTY INSURANCE COVERAGE. The Seller agrees that
prior to the effective date of the Closing it will retain its existing insurance
coverage in such amounts and on substantially the same terms as in effect on the
date hereof.
5.4 PRESS RELEASES AND ANNOUNCEMENTS. Prior to one week after the
Closing, no press release or other public announcement pertaining in any way to
the transactions contemplated by this Agreement will be made by any party unless
it has first been approved by the other parties or, in the reasonable opinion of
counsel to the disclosing party, is required by applicable law, rule, regulation
or order and the disclosing party gives prior written notice of its intention to
make a disclosure and provides to the nondisclosing party an opportunity to
participate in preparing any such disclosure.
5.5 INDEMNIFICATION.
(a) From and after the Closing Date, Fresh Foods shall indemnify,
defend and hold harmless Buyer from and against any loss, damage, liability,
cost or expense (each, a "LOSS")
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incurred pursuant to any claim, action, suit, proceeding or investigation (each,
a "CLAIM") asserted with respect to an Excluded Liability.
(b) From and after the Closing Date, Buyer shall indemnify, defend and
hold harmless each of Seller and Fresh Foods from and against any Loss incurred
in connection with any Claim asserted as a result of or with respect to (i) the
breach by Buyer of any representation and warranty, covenant or other agreement
contained in this Agreement or (ii) an Assumed Liability.
(c) This Section is intended to be for the benefit of, and shall be
enforceable by, each indemnified party referred to in subsections (a) and (b)
and such party's heirs, personal representatives, successors and assigns.
SECTION 6
EXPENSES AND TAXES
6.1 EXPENSES. Except as otherwise expressly provided herein, the
parties hereto shall pay their respective expenses incurred under or in
connection with this Agreement.
6.2 TRANSFER TAXES. Taxes associated with transferring the Purchased
Assets to Buyer pursuant to this Agreement, including without limitation
tangible or intangible personal property taxes and any bulk sales or use taxes,
shall be paid by Seller.
SECTION 7
FURTHER ASSURANCES
7.1 FURTHER ACTS AND ASSURANCES. Seller shall, upon the request of
Buyer and at no cost or charge to Buyer, execute and deliver to Buyer any and
all such other and further instruments, bills of sale, assignments, conveyances
or assurances as may be necessary or appropriate to vest and confirm in Buyer
and protect its right, title, and interest in and to all of the Purchased
Assets, and to otherwise consummate and carry out the transactions contemplated
hereby.
SECTION 8
MISCELLANEOUS PROVISIONS
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and other agreements of the parties made in and pursuant
to this Agreement shall not survive the Closing, except for covenants and
agreements that, by their terms, are to be performed after the Closing Date.
Covenants and agreements to be performed after the Closing Date shall survive
the Closing for one year.
8.2 BENEFIT AND ASSIGNMENT. Neither party may assign any of its rights
under this Agreement without the prior written consent of the other party, which
will not be unreasonably
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withheld. Subject to the preceding sentence, this Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement shall not be deemed to confer any rights
or remedies upon any person other than the parties hereto and their respective
successors and permitted assigns.
8.3 EFFECT AND CONSTRUCTION OF THIS AGREEMENT. This Agreement contains
the final, complete and exclusive statement of the agreement among the parties
with respect to the transactions contemplated herein and supersedes any and all
prior agreements, arrangements and understandings relating to matters provided
for herein.
8.4 AMENDMENTS AND WAIVER. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement, will be
enforceable unless evidenced by an instrument in writing signed by the party
sought to be charged with its enforcement.
8.5 CAPTIONS. The captions and headings set forth in this Agreement are
for convenience only and shall not be construed as a part of this Agreement.
8.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.7 EXHIBITS AND SCHEDULES. All exhibits and schedules referred to in
this Agreement and attached hereto shall be deemed and construed as part of this
Agreement. For all purposes, all such exhibits and schedules are hereby
specifically incorporated herein by this reference to them.
8.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina without regard to the
principles of conflict of laws of such State.
8.9 NOTICES. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered (a) when personally delivered, (b) one
business day after being sent by facsimile at the number listed below for such
party, (c) one business day after the day on which the same has been delivered
prepaid to a national courier service guaranteeing next day service or (d) three
days after deposit in the United States mail, registered or certified, postage
prepared and return receipt requested, in each case addressed to the party to
whom such notice is to be given at the address listed below for such party, or
to such other address as any party may request by notifying in writing all of
the other parties to this Agreement:
To Buyer: Fairgrove Restaurants, LLC
000 Xxxxxx Xxxxxx X.X.
Xxxxxxx, XX 00000
Fax: (000) 000-0000
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Copy to: T. Xxxxxxx Xxxxxx, Esq.
Battle, Xxxxxxx, Xxxxx & Wiley, P.A.
0000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
To Seller: Fresh Foods Sales, LLC
000 Xxxxxx Xxxxxx X.X.
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Copy to: Xxxxxx Xxxxxxxxxx Xxxxx, Esq.
McGuire, Woods, Battle & Xxxxxx LLP
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
8.10 SEVERABILITY. In the event that any one or more of the provisions
of this Agreement shall be held or found to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
8.11 TIME OF ESSENCE. Time is of the essence of this Agreement.
8.12 PRONOUNS AND NUMBER. All pronouns used herein shall be deemed to
refer to the masculine, feminine or neuter gender as the context requires. Words
importing the singular number hereunder shall include the plural number and vice
versa.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
FAIRGROVE RESTAURANTS, LLC
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Member
By: /s/ XXXXX X. XXXXXXXXXX, XX.
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Xxxxx X. Xxxxxxxxxx, Xx.
Member
By: /s/ X. XXXX XXXXXX
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X. Xxxx Xxxxxx
Member
By: /s/ XXXXXXX XXXXXXX XXXXXX
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Xxxxxxx Xxxxxxx Xxxxxx
Member
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Member
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Member
FRESH FOODS, INC.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Chief Financial Officer
FRESH FOODS SALES, LLC
By: Fresh Foods, Inc.,
its sole member and manager
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Chief Financial Officer
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(SCHEDULES AND EXHIBITS OMITTED)
