TRADEMARK PURCHASE AGREEMENT
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This Trademark Purchase Agreement, made this 17th day of February,
2000, by and between Finova Capital Corporation, a corporation incorporated
under the State of Delaware ("Finova"), with its principal place of business at
000 Xxxx 00xx Xxxxxx, Xxxx xx Xxx Xxxx, Xxxxx of New York, Xxx Xxxxxxxxx,
Esquire, Chapter 7 ("Trustee"), Trustee for Caribbean Cigar Company in Chapter 7
Bankruptcy in the Eastern District of Tennessee; Trustee and Finova will at
times be referred to as ("Seller"), SJI Wholesale, Inc., a corporation organized
under the laws of the State of Tennessee, ("Buyer") with its principal place of
business at 0000 Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, and XXXXXX XXXXXXX,
presently residing in Knoxville, Tennessee ("Guarantor").
WHEREAS, Caribbean Cigar Company (a Florida Corporation) by and
through its Chapter 7 Estate ("Caribbean") is the owner of certain trademarks as
set forth in the Trademark Assignment and Release of Security Interests of
Exhibit "A";
WHEREAS, Finova has Security Interests in certain ones of the
trademarks of Caribbean as set forth in the Trademark Assignment and Release of
Security Interests of Exhibit "A".
WHEREAS, pursuant to court order in Case No. 99-30466 in the United
States Bankruptcy Court for the Eastern District of Knoxville, the Trustee has
been ordered to cause Caribbean to deliver to Finova such documents or
instruments as may be necessary to transfer to Finova certain of its trademarks
and all goodwill associated with such trademarks;
WHEREAS, Buyer desires to obtain ownership of all trademarks of
Caribbean and all goodwill of the business symbolized by such trademarks;
WHEREAS, the parties desire that Finova fully release all of its
Security Interests in the trademarks of Caribbean and that ownership of all
trademarks of Caribbean including, but not limited to, the Marks, Registrations
and Applications, and all goodwill of the business symbolized by such trademarks
be transferred to Buyer;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties herein contained, the parties agree as follows,
with closing contingent upon the performance of all of the below agreed
obligations: a-d;
1. Agreed obligations.
a. Trustee and Finova execute the Trademark Assignment
and Release of Security Interests as set forth on
Exhibit "A".
b. Buyer and Guarantor execute the Promissory Note as
set forth on Exhibit "B" and Guarantor executing the
Guaranty as set forth on Exhibit "C".
c. Buyer and Finova execute the Security Agreement on
Exhibit "D".
d. Buyer and Finova execute the Escrow Agreement of
Exhibit "E" and Buyer delivers to escrow agent one
hundred thousand (100,000) shares of the Big Hub,
Inc. stock.
2. Sale. Buyer purchases and Seller sells for the sum of Three Hundred
Twenty-five Thousand Dollars ($325,000), to be paid to Finova in accordance with
the Promissory Note, all of Seller's right, title and interest in the
Trademarks, including but not limited to, the marks, registrations and
applications, and all goodwill of the business symbolized by such Trademarks as
more fully described on Exhibit "A".
3. Security Interest. Buyer grants to Finova a security interest in
the Trademarks as more fully set forth on Exhibit "C" attached.
(a) Buyer shall, at its expense, take all reasonable actions
requested by Finova at any time, pertaining to any events that occur from the
effective date of this Agreement forward, to perfect, maintain, protect, and
enforce Finova's first priority security interest and other rights in the
Trademarks and the priority thereof, from time to time, including, without
limitation, executing and filing financing statements or continuation statements
and amendments thereof and executing and delivering such documents. In
furtherance thereof, Buyer will deliver to Finova a UCC-l Financing Statement
describing the Trademarks. The parties specifically recognize that any
occurrences that may have an effect on Finova's first
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priority security interest that arose from events occurring prior to Buyer
acquiring the Trademarks, shall be subject solely to the discretion of Buyer;
the intent being that Finova specifically recognizes that since Buyer is
purchasing from Finova the Trademarks "AS IS" "WHERE IS", "WITH ALL FAULTS",
that Finova has no right to direct Buyer to take any action to perfect,
maintain, protect and enforce Finova's "first priority security interest"
resulting from events that have occurred prior to Buyer acquiring said
Trademarks;
(b) Buyer represents, warrants and covenants that, to
the best of its ability,
(i) it will not, after closing, cause any liens,
claims or encumbrances on the Trademarks whatsoever; and
(ii) Buyer shall not, without Finova's prior written
approval, sell, encumber or dispose of or permit the sale, encumbrances or
disposal of any Trademarks or all or any substantial part of any of its other
operating assets (or any interest of Buyer therein).
(c) As further consideration, Buyer will deliver to escrow
agent one hundred thousand (100,000) shares of the Big Hub, Inc. stock ("HUB")
to be held and disbursed by escrow agent as more fully set forth in the Escrow
Agreement, a copy of which is attached here as Exhibit "D".
4. Representations and Warranties of Seller. Seller has the authority
and right to enter into this Agreement and perform its terms.
5. Representations and Warranties of Buyer. The Buyer represents and
warrants to Seller as follows:
(a) Buyer's Good Standing and Authority. Buyer is validly
existing and in good standing under the laws of the State of Tennessee, and has
all requisite power and authority to execute and deliver this Agreement, and to
consummate the transactions contemplated hereby, and has obtained all consents
and approvals, and made all registrations, required to be made or obtained by it
in connection herewith.
(b) No Contravention. The execution, delivery and performance
of this Agreement, delivered by it in connection herewith does not violate (i)
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to it, (ii) any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which it may be bound or to which any of its assets is subject, or (iii) any
provision of its charter or by-laws.
(c) Validity. This Agreement is binding upon and is
enforceable against the Buyer in accordance with its terms.
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(d) Registration. No registration with or consent or approval
of, or any other action by, any governmental authority or any other person is
required in connection with its execution, delivery and performance of, or is
necessary for the validity or enforceability of this Agreement.
(e) No Investment Advice. It acknowledges that Seller has not
given any investment advice, credit information or rendered any opinion as to
whether the purchase of the Trademarks is prudent.
(f) Sophisticated Buyer. Buyer is a sophisticated purchaser
with respect to the Trademarks and has adequate information to make informed
decisions regarding the purchase of the Trademarks and has, independently and
based upon such information as it has deemed appropriate, made its own
independent decision to enter into this Agreement. Buyer acknowledges and
understands that no employee, agent, representative or attorney of Seller has
been authorized to make, and that the Buyer has not relied upon and shall not be
entitled to rely upon, any statements or representations other than those
specifically contained in this Agreement.
(g) Due Diligence. Prior to executing this Agreement, Buyer
has made or has been given the opportunity to make such examinations, reviews
and investigations as it deems necessary or appropriate in making its decision
to purchase the Trademarks. Buyer has been and will continue to be solely
responsible for the making of its own independent investigation as to all
aspects of the Trademarks.
(h) No Representations. Except as expressly provided herein,
Seller does not and will not make any oral or written representations,
warranties, promises or guarantees whatsoever, whether expressed or implied,
concerning or with regard to, and expressly disclaims any liability or
obligation with respect to, concerning or relating to, any of the Trademarks.
(i) No Broker. Seller shall not be liable for any broker,
finder or other person or entity acting pursuant to the authority of Buyer in
connection with the transactions contemplated hereby.
(j) No Recourse. Buyer acknowledges that the assignment and
transfer of the Trademarks to Buyer is irrevocable and Buyer has no recourse to
Seller, except for any breach of this Agreement by Seller.
(k) Schedules. Buyer acknowledges that it reviewed Exhibit
"A" and that it is true and correct regarding stating the Trademarks that the
Buyer is purchasing.
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(l) Buyer will from the date of possession of the Trademarks,
be the exclusive owner of whatever right, title and interest Buyer has in and to
each of the Trademarks, as were in existence at the time of acquisition of the
Trademarks. Buyer is accepting these Trademarks "AS IS" "WHERE IS", "WITH NO
FAULTS", Buyer expressly does not represent and warrant that Buyer will correct
any or all defects in title that were preexisting on the date of the purchase of
the Trademarks.
6. Miscellaneous.
A. Amendments. This Agreement may only be amended by
the written consent of all parties.
B. Notices. Trustee fully completes its obligations
under this agreement by its execution of the
Assignment document of Exhibit "A" and thus no
further notices or communications between Trustee
and the other parties, Buyer and Finova, are
contemplated. All notices between the remaining
parties, Finova and Buyer, shall be in writing.
Notices delivered personally or by telecopier shall
be deemed received on the same business day if
delivered personally or by telecopier before 5:00
p.m. on such day, and otherwise on the next day.
Notices deposited with an overnight courier service
prior to this deadline on any business day shall be
deemed received on the next business day. Notices
deposited in the mail, postage prepaid, on any
business day shall be deemed received on the third
business day following such deposit. All notices to
Finova shall be given to:
FINOVA CAPITAL CORPORATION
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Ruskin, Moscou, Xxxxx & Faltischek
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esquire
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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All notices to Buyer shall be given to:
SJI Wholesale, Inc.
0000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Stone & Xxxxx, P.C.
000 Xxxxx Xxxxxxxx Xxxxxx
000 Xxx Xxxxxx, X.X.
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esquire
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
C. Headings. The headings, titles, and subtitles
herein are inserted for convenience of reference
only and shall not control or effect the meaning or
construction of any of the provisions hereof
D. Gender. As used herein, all pronouns shall
include the masculine, feminine, neuter, singular,
and plural thereof, where ever the context and the
facts require such construction.
E. Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the
State of New York.
F. Severability. In the event any provisions of this
Agreement shall be held invalid or unenforceable
according to the law, such holding or actions shall
not invalidate or render unenforceable any other
provision hereof
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G. Entire Agreement. All exhibits and schedules
referred to in this Agreement are incorporated
herein and made a part hereof This Agreement and the
exhibits and schedules hereto, and the Agreement of
even date herewith between Finova and Xxx Xxxxxxx
("Guarantor"), shall serve as a final integration
and expression of all agreements between Finova,
Buyer and Guarantor with respect to the subject
matter hereof, and any previous agreement,
representation or warranty, whether oral or written,
shall have no force and effect.
H. Binding Effect. This Agreement shall be binding
upon and insure to the benefit of the parties hereto
and their respective assigns, and legal
representatives.
I. Survival of Representations. All representations,
warranties, covenants, disclaimers, acknowledgments
and agreement made by the parties hereto shall be
considered to have been relied upon by the parties
and shall survive the execution, delivery and
performance of this Agreement and all other
documents contemplated herein.
J. The parties recognize Guarantor has signed this
Agreement solely to acknowledge that he will sign as
a Guarantor of the monies obligated to be paid by
Buyer to Finova under this Agreement.
K. The parties recognize that the Trustee has signed
this Agreement for the limited purpose of selling
all right, title and interest that Caribbean has in
the Trademarks (Exhibit "A") to sign Exhibit "A",
and to expressly put Buyer on notice that Caribbean
is selling the Trademarks "WHERE IS" and "AS IS",
and with all faults.
IN WITNESS WHEREOF, the parties have caused this Trademark Purchase
Agreement to be duly executed on the date first below written.
CARIBBEAN CIGAR COMPANY
Date: 2/15/00
By: /s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx, Esq, Chapter 7 Trustee
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FINOVA CAPITAL CORPORATION
Date: 2/17/00 By: /s/ Xxxxxxx X. Xxxxxxx
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Its: AVP
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XXXXXXX X. XXXXXXX
SJI WHOLESALE, INC.
Date: 2/14/00 By: /s/ Xxx Xxxxxxx
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XXX XXXXXXX, President
GUARANTOR:
Date: 2/14/00 By: /s/ Xxx Xxxxxxx
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XXX XXXXXXX
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