AGREEMENT FOR THE SALE AND PURCHASE
OF FURNITURE, FIXTURES, EQUIPMENT AND STOCK
THIS AGREEMENT, made and entered into this ___ day of January 2000, by and
between XXXXX'X INN, INC., a New Jersey Corporation, trading as Xxxxx'x Inn,
with its main office located at 0000 Xxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxx, 00000
hereinafter called "Seller', and CHEFS INTERNATIONAL, INC. a Delaware
Corporation authorized to do business in the State of New Jersey with its main
office at 00 Xxxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxx, 00000, hereinafter called
"Purchaser".
WHEREAS, the Seller is the owner of Xxxxx'x Inn, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxx Xxxxxx; and
WHEREAS, the Seller is desirous of selling certain Furniture, Fixtures,
Equipment, Foodstuffs and Liquor for the price and under the terms and
conditions as recited herein; and
WHEREAS, the Purchaser is willing to purchase and acquire the Furniture,
Fixtures, Equipment, Foodstuffs and Liquor for continued use in the operation of
Xxxxx'x Inn subject to the terms and conditions of this Agreement, and the
contingencies contained herein; and
WHEREAS, the certain Furniture, Fixtures and Equipment to be sold and
purchased in accordance with this Agreement are set forth on attached Schedule
A;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions contained herein, and for other good and valuable consideration, and
intending to be legally bound, the parties hereto mutually agree as follows:
1. PURCHASE PRICE. The Seller shall sell to Purchaser, and the Purchaser
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shall buy from Seller, the Furniture, Fixtures and Equipment (hereinafter "F, F
& E") set forth on attached Schedule A for the sum of TWO HUNDRED AND FIFTY
THOUSAND($250,000.00) DOLLARS. An xxxxxxx money deposit in the amount of
TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS, to be applied on account of the
purchase price (or forfeited as liquidated damages as more fully recited
hereinafter), shall be deposited in escrow with Xxxxxxx Xxxxxxx, Esquire, whose
address is Two Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxx Xxxxxx, 00000, (hereinafter
"Escrow Agent"). The xxxxxxx money deposit shall be provided to Escrow Agent
within ten (I 0) days from the date of final execution of this Agreement. The
Escrow Agent shall place the deposit in a non-interest bearing account In
accordance with paragraph 6 below, the balance of the purchase price shall be
paid by depositing with the Escrow Agent on or before the closing of this
transaction, an additional sum of TWO HUNDRED AND TWENTY-FIVE THOUSAND
($225,000.00) DOLLARS, in regular corporate funds. If this Agreement becomes
null and void, or is terminated in accordance with or on account of the failure
of one or more of the contingencies stated in paragraph 3hereof, the said
xxxxxxx money deposit shall be returned to Purchaser and neither party shall
have any further obligation to the other.
At closing of title, purchaser shall also purchase all the foodstuffs and
unopened liquor (hereinafter "Stock") of Xxxxx'x inn, Inc., which are located in
the subject property. The cost of same shall be equivalent to the cost incurred
by Xxxxx'x Inn, Inc. in purchasing such foodstuffs and liquor from its
suppliers. The purchase price of Stock shall be in addition to the purchase
price of the F, F & E. The determination of "useable" shall be solely in the
discretion of purchaser and any Stock not purchased shall be immediately removed
from the
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premises by seller. Any monies due Xxxxx'x Inn, Inc. as a result of the
purchase of Stock shall be paid within thirty (30) days of closing of title.
Prior to the closing of title, Xxxxx'x Inn, Inc. will provide the purchaser
with a list of all outstanding gift certificates, specifying the names of all
holders and the amount of such certificates. Purchaser shall, as it redeems the
gift certificates, monthly submit to seller an invoice evidencing the redemption
of said certificates and seller shall within thirty (30) days after receipt of
the invoice reimburse the redemption amount to purchaser. Such reimbursement
shall be in addition to the purchase price paid for the F, F & E and the Stock.
At the termination of the Lease Agreement between purchaser herein and
Xxxxx'x Realty Associates, the purchaser/tenant shall leave at the demised
premises all F, F & E listed in attached Schedule A in good working condition,
reasonable wear and tear excepted. Said items on Schedule A, upon termination of
the lease, shall be deemed the property of either Xxxxx'x Inn, Inc. or Xxxxx'x
Realty Associates. The parties hereto agree that the return or transfer of such
F, F & E to Xxxxx'x Inn Inc. or Xxxxx'x Realty Associates shall not constitute a
penalty, or forfeiture, but rather, an inducement to Xxxxx'x Realty Associates
for the risks assumed by an early termination of the lease by tenant as therein
provided and further as compensation to Xxxxx'x Inn, Inc. for its agreement to
repurchase the liquor license as provided in Paragraph 11 of the Agreement for
the Sale and Purchase of Liquor License.
2. ESCROW AGENT. The Escrow Agent may act upon any instrument or other
writing believed by the Escrow Agent in good faith to be genuine, and to be
signed by the property party. In the event of any controversy or dispute
hereunder, or with respect to any
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question as to the construction of this Agreement or any action to be taken by
the Escrow Agent hereunder, the Escrow Agent may confer with counsel (including
members of his own firm) and shall incur no liability for any action taken or
suffered in good faith in accordance with the advice or opinion of such counsel,
including the depositing of the escrow fund in a court of competent jurisdiction
which shall adjudicate any difference between Seller and Purchaser.
(a) The Escrow Agent shall not be liable in connection with the
performance of his duties hereunder, except for his own gross negligence, fraud
or theft.
(b) The Escrow Agent shall be under no duty or responsibility to
enforce any of the terms or conditions of this Agreement.
(c) Seller and Purchaser, jointly and severally, h6by indemnify the
Escrow Agent and hold the Escrow Agent harmless from and against any loss,
liability or expense incurred (absent Escrow Agent's gross negligence, fraud or
theft), arising out of or in connection with the acceptance or administration of
the Escrow Agent's duties hereunder, including, without limitation, the cost and
expense of defending the Escrow Agent against any claim or liability hereunder.
3. CONDITIONS PRECEDENT.
I. This Agreement shall be and is hereby made contingent upon the
following conditions to be satisfied or waived in writing by Purchaser within
forty-five (45) days (the "Contingency Period") (unless extended as hereinafter
provided) from the date of final execution of this Agreement;
(a) The Purchaser shall be able to negotiate and obtain a lease upon
terms
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fully satisfactory to Purchaser for a portion of the premises known as Xxxxx'x
Inn, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx. If the Purchase shall
be unable to enter into such lease agreement within such time, this Agreement
shall, at the option of Purchaser, become null and void, unless the parties
agree, in writing, to extend the time for satisfaction of this contingency.
(b) The Purchaser shall be able to negotiate and obtain on Agreement
for the Sale and Purchase of Liquor License, upon terms fully satisfactory to
Purchaser, with Xxxxx'x Inn, Inc. for Retail Plenary Consumption Liquor License
Number 1316-33-005-003.
(c) The approval by the governing body of the Township of Freehold of
the person-to-person transfer of the liquor license referenced in (b) above from
Xxxxx'x Inn, Inc. to Chefs International, Inc.
4. WARRANTIES OF SELLER. Seller makes the representations and warranties
set forth below and agrees that such warranties and representations shall be
deemed republished at the time of closing and shall survive the closing:
(a) The Seller is the sole owner of all F, F & E set forth on Schedule
A annexed hereto as well as all Stock that may be purchased by purchaser, there
are no liens ,judgment, attachments, security agreements, financing statements,
encumbrances of any kind or nature attaching to and/or affecting the F, F & E
set forth on Schedule A or the Stock.
(b) Seller has the full and complete right to make, execute and
perform this Agreement and to close title or otherwise transfer the F, F & E and
Stock to Purchaser.
5. WARRANTIES OF PURCHASER. Purchaser makes the representations and
warranties set forth below and agrees that such warranties and representations
shall be
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deemed republished at there time of closing and shall survive the closing:
(a) That it is a corporation duly organized and lawfully existing
under the laws of the State of Delaware and that it is duly existing and in good
standing under the laws of the State of New Jersey, having filed the necessary
documentation so as to register to do business in the said State of New Jersey.
(b) That it has the right to make, execute and perform this Agreement;
and that the execution, delivery and performance of this Agreement does not
constitute a violation of Purchaser's Certificate of Incorporation, bylaws, or
any other instrument to which Purchaser is a party or by which Purchaser may be
bound.
(c) That the execution and delivery of this Agreement and the
performance by Purchaser of the obligations to be performed by it hereunder have
been duly authorized by the proper corporate actions of the board of directors
as may be necessary, and that there is no agreement of any kind that would
prohibit or restrict such corporate actions.
(d) That the corporate officers executing this Agreement are duly
elected officers of the Corporation and have received the authority to make and
execute this Agreement and to bind Purchaser hereto.
(e) That is it solvent and has the funds available for the acquisition
of the F, F, & E and Stock in the manner contemplated herein.
6. CLOSING. The closing of this transaction shall take place at the
office of Xxxxxxx, Xxxxx, Xxxxxx & White, attorney for Purchaser, Xxx Xxxxxx
Xxxxxx, Xxxx Xxxxx, Xxx Xxxxxx 00000, or at such other location as shall be
mutually agreed upon by the parties. Closing shall occur "in escrow' no later
than 3:00 PM on the same date that the Township
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of Freehold will act upon the application for the person-to-person transfer of
the liquor license referenced in paragraph 3 (b) of this Agreement.. At the time
of closing, all papers will be signed and deposited with Xxxxxxx Xxxxxxx,
Esquire, including a Xxxx of Sale for the F, F & E and Stock to be signed by the
Seller (containing the usual warranties of title) and all requisite monies, if
not previously provided to the Escrow Agent, will be deposited with the Escrow
Agent who will hold same in escrow pending the successful transfer of the
aforesaid liquor license. On the day next following the Township Council's
approval of the transfer of the aforesaid liquor license from Seller to
Purchaser, the monies will be distributed and the Xxxx of Sale will be
delivered. If the application for transfer is denied, this Agreement shall
immediately become null and void and the Escrow Agent shall return all monies to
Purchaser and the Xxxx of Sale to the Seller. Thereafter, neither party shall
have any further liability to the other.
7. NOTICES. Any notice, requested demand consent, approval, or other
communications required or permitted under this Agreement will be written and
will be deemed to have been given when personally delivered or sent by facsimile
transmission, or (ii) on the next day after delivery to a nationally recognized
express delivery service with instructions for overnight delivery; or (iii) on
the third day after it is deposited in any depository regularly maintained by
the United States postal service, postage prepaid, certified or registered mail,
return receipt requested, addressed to the other party as set forth below:
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IF TO SELLER:
Xxxxx'x Inn, Inc.
0000 Xxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esquire
WITH A COPY TO
Xxxxxxxx and Xxxxxxxx, P.C.
0000 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esquire
IF TO PURCHASER
Chefs International, Inc.
00 Xxxxxxxx
XX Xxx 0000
Xx. Xxxxxxxx Xxxxx, XX 00000
WITH A COPY TO
Xxxxxxx Xxxxxxx, Esquire,
Xxxxxxx, Xxxxx Xxxxxx & Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
8. DEFAULT. (a) Should Seller breach this Agreement or fail to close
hereunder without the right to do so, the Purchaser shall have the right to
receive the immediate receipt of all escrow funds, as well as all out of pocket
expenses and reasonable attorneys' fees; or, alternatively, Purchaser may
compel Seller to specifically perform this Agreement, and Seller agrees to
reimburse Purchaser for any reasonable attorney's fees, costs and expenses
incurred in connection therewith. Ten (I 0) days after written demand for the
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escrow funds, Escrow Agent is directed (after providing notice to the Seller) to
deliver said sum to the Purchaser. If within said ten (10) day period Escrow
Agent shall receive from Seller a written objection to the release of such
funds, Escrow Agent agrees to deposit the fund into a Court of competent
jurisdiction, and not to release the same to Purchaser. Notwithstanding the
foregoing, in the event that any representation or warranty made by the Seller
is not fully satisfied or there is a failure to satisfy a condition which is
Seller's obligation to satisfy to the extent that the F, F & E and Stock are
fully transferable, without claim or encumbrance to Purchaser and in accordance
with the terms of this Agreement, the Seller hereby directs that Purchaser may
take such action as Purchaser deems necessary, all at the expense of Seller, to
effectuate the transfer of the F, F & E and Stock to the Purchaser free and
clear of all such liens, claims and encumbrances, and in accordance with the
terms hereof Such actions on the part of the Purchaser may include, but are not
limited to, depositing with Escrow Agent sufficient sums from the consideration
otherwise due Seller hereunder and directing the Escrow Agent to pay over said
sums, as applicable, so as to obtain an appropriate release or waiver of any
claim made against the F, F & E and Stock. Escrow Agent shall not, however, make
any such payment without first bringing the claim to the attention of the Seller
and giving Seller a reasonable time to dispose of any such lien or claim.
(b) In the event that Purchaser breaches this Agreement and the F, F
& E and Stock may not be transferred to the Purchaser, or if the Purchaser
otherwise fails to close this transaction without the right to do so, the
Purchaser shall pay to Seller the sum of TWENTY-FIVE THOUSAND ($25,000.00)
DOLLARS, as liquidated damages. The parties agree that damages for wrongful
breach of this Agreement by the Purchaser are difficult or
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of title to the subject liquor F, F & E and Stock.
13. SUBJECT HEADINGS. The subject headings at the beginning of each
paragraph are provided for convenience only and are not intended to modify or
amplify the text of the paragraph.
14. SEPARABLE CLAUSES. Each provision of this Agreement shall be
considered to be separable and if, for any reason, any provision or any part
thereof is deeded to be invalid and contrary to any applicable law, such
invalidity shall not impair the portions of this Agreement which are valid; and
this Agreement shall be construed and enforced to all effects as if such invalid
provision had been omitted.
15. NONWAIVER. The failure of the Seller or Purchaser to insist upon
strict performance of any of the covenants or conditions of this Agreement shall
not be construed as a waiver by such party of any of its rights or remedies
under this Agreement, and shall not be construed as a waiver, relinquishment or
failure of any such covenant, conditions, or options.
16 COUNTERPART. This Agreement may be executed in counterpart.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed and sealed as of the day, month and year first above written.
Attest: Xxxxx'x Inn, Inc.
/s/ XXXXXXX X. XXXXXXXX By /s/ XXXXXXX X. XXXXXXXX
----------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxx, Secretary Xxxxxxx X. Xxxxxxxx
Attest: Chefs International, Inc.
/s/ XXXXXX X. XXXXXXXX By: /s/ XXXXXXX XXXXXXX
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Xxxxxx X. Xxxxxxxx, Sec. Xxxxxxx Xxxxxxx, Pres.
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