Exhibit 10.1
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement") is made as of
the day of _____, 2003 between Don Pablo's Operating Corp., an Ohio corporation
("Seller"), and Miko Investments, LLC, a Tennessee limited liability company,
its successors or assigns ("Buyer").
Background
Buyer wishes to purchase from Seller, the Real Property, together with all
Improvements thereon and all Appurtenant Rights thereto, and the Personal
Property, all as defined in Article 1 below.
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell to Buyer and Buyer agrees to purchase the Property from Seller,
subject to the following terms and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement means this Real Estate Purchase and Sale Agreement, which
shall supercede all prior agreements and understandings between Buyer and Seller
concerning the sale and purchase of the Property.
1.2 Appurtenant Rights means all easements and other interests and rights
of Seller that are appurtenant to the Real Property, including without
limitation all right, title and interest of the Seller in and to any land lying
in lying in any street or road within or adjacent to the land, all easements for
ingress and egress to and from the Real Property and all easements necessary for
the installation, operation and maintenance of all utilities to serve the Real
Property.
1.3 Broker means the real estate brokerage firm identified listed as Broker
on Exhibit B of this Agreement.
1.4 Buyer means the person or entity named as Buyer in the introductory
paragraph of this Agreement.
1.6 Closing means generally the execution and delivery of those documents
and funds necessary to effect the sale of the Property by Seller to Buyer.
Unless otherwise agreed in writing by the parties, the Closing shall take place
either "mail" or at the offices of Escrow Agent on the Closing Date.
1.7 Closing Date means the date on which the Closing occurs. Unless
otherwise agreed in writing by the parties, the Closing shall take place at
10:00 A.M. Eastern Time on a date mutually agreeable to both parties, but in no
event later than June 12, 2003.
1.8 Xxxxxxx Money Deposit means the deposit(s) delivered by Buyer to Escrow
Agent prior to the Closing under Section 2.2 of this Agreement, together with
the earnings thereon, if any.
1.9 Effective Date means the next business day following the date upon
which the fully executed Agreement has been received by the Escrow Agent.
1.10 Environmental Law means any current legal requirement in effect at the
Closing Date pertaining to (a) the protection of health, safety, and the indoor
or outdoor environment, (b) the conservation, management, protection or use of
natural resources and wildlife, (c) the protection or use of source water and
groundwater, (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Material or (e) pollution (including any release to air, land, surface
water, and groundwater); and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq.,
Solid Waste Disposal Act, as amended by the Resource Conservation Act of 1976
and Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic
Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801, Occupational Safety and Health Act of
1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC App.
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended by 42 USC 300(f) et seq., and any
similar, implementing or successor law, any amendment, rule, regulation, order
or directive, issued thereunder.
1.11 Escrow Agent means the Commonwealth Title Insurance Company.
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1.12 Hazardous Material means any hazardous or toxic substance as defined
in or regulated by any Environmental Law in effect at the pertinent date or
dates.
1.13 Improvements means all buildings, structures, fixtures or other
improvements affixed to or located on the Real Property.
1.14 Inspection Period means the period of time which begins on the
Effective Date and ends upon the earlier to occur of: at 5:00 p.m. Eastern Time
on the thirtieth (30th) day after the Effective Date OR, the Closing Date.
1.15 Permitted Exceptions means only the following interests, liens and
encumbrances: (a) liens for ad valorem taxes and general assessments not payable
at or before Closing but pro-rated as of such Closing Date; and (b) covenants,
restrictions, easements and other matters of record as of the expiration of the
Inspection Period (it being understood and acknowledged by Buyer that it shall
have the Inspection Period within which to determine whether any such items
affect Buyer's contemplated use of the Property or are objectionable to Buyer);
(c) those exceptions to title which are to be discharged by Seller at or before
Closing; and (d) any other matters that become Permitted Exceptions pursuant to
Section 7.1 hereof.
1.16 Permitted Termination means the express right of either party, as
specifically set forth in this Agreement, to terminate this Agreement, in which
event, if properly exercised, will result in the following: (a) all Xxxxxxx
Money Deposits shall be immediately refunded to Buyer, and (b) all rights,
obligations and duties of both parties shall terminate (except those which
expressly survive termination of this Agreement).
1.17 Personal Property means any and all of Seller's right, title and
interest in the built-in fixtures listed on Exhibit C.
1.18 Property means collectively, the Real Property, the Improvements, all
Appurtenant Rights and the Personal Property.
1. 20 Purchase Price means the consideration agreed to be paid by Buyer to
Seller for the purchase of the Property as set forth in Section 2.1.
1.21 Real Property means the land located in Xxxx County, State of
Tennessee, more particularly described in Exhibit A.
1.22 Seller means the person or entity named as Seller in the introductory
paragraph of this Agreement.
1.23 Survey means a boundary survey of the Real Property prepared by Xxxx
X. Xxxxx, of Barge Xxxxxxxx Xxxxxx & Xxxxxx, Inc., a licensed land surveyor
reasonably acceptable to Seller, which survey shall comply with ALTA/ACSM Survey
Requirements 1999 for ALTA/ACSM land title surveys jointly established and
adopted in 1999, the American Land Title Association, American Congress on
Surveying and Mapping, and the National Society of Professional Engineers,
including optional items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof,
which meets the accuracy standards (as adopted by ALTA and ACSM and in effect on
the date of the Survey). The Survey shall be dated not earlier than thirty (30)
days prior to the Closing, and shall be certified to Buyer, Seller, and the
Title Company.
1.24 Title Company means Commonwealth Title Insurance Company or any
national title insurer reasonably acceptable to Buyer and Seller.
1.25 Title Defect means any exception in the Title Insurance Commitment or
any matter disclosed by the Survey, other than a Permitted Exception.
1.26 Title Insurance means an ALTA owners policy of title insurance in the
amount of the Purchase Price, insuring indefeasible fee simple title in Buyer,
subject only to the Permitted Exceptions and the printed exceptions and
exclusions customarily included in such policies, issued by the Title Company.
1.27 Title Insurance Commitment means a binder whereby the Title Company
agrees to issue the Title Insurance to Buyer, together with copies of all
instruments which are exceptions noted therein or conditions to be satisfied.
2. PURCHASE PRICE, PRORATIONS AND CLOSING COSTS
2.1 Purchase Price; Payment. The total Purchase Price for the Property
shall be One Million and no/100ths ($1,000,000.) Dollars, payable in cash at
Closing (the "Purchase Price").
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2.2 Xxxxxxx Money Deposit. An initial xxxxxxx money deposit in the amount
of Twenty-Five Thousand and no/100ths ($25,000.00) Dollars (the "Initial Xxxxxxx
Money") shall be deposited with Escrow Agent by Buyer within five (5) business
days after the Effective Date. Such Initial Xxxxxxx Money shall apply to the
Purchase Price at Closing and shall be refundable to Buyer if a Permitted
Termination occurs or Seller is unable to perform pursuant to the terms hereof.
Any additional xxxxxxx money deposits required under this Agreement (the
"Additional Xxxxxxx Money") shall be delivered by the deadline specified and
shall be refundable per the terms hereof. All deposits made as xxxxxxx money,
together with the earnings thereon, shall be deemed included within the meaning
of the term Xxxxxxx Money Deposit for all purposes. The Xxxxxxx Money Deposit
shall be held as specifically provided in this Agreement and shall be applied to
the Purchase Price at Closing. Buyer shall be in default under this Agreement if
either the Initial Xxxxxxx Money or the Additional Xxxxxxx Money is not
delivered to Escrow Agent by the applicable deadline. This Agreement may be
terminated by Seller by notice to Buyer if the Xxxxxxx Money Deposit is not
delivered to Escrow Agent by such deadline. One Hundred Dollars ($100.00) of the
Xxxxxxx Money Deposit shall be independent contract consideration for Seller's
execution of this Agreement and agreement to provide Buyer with the Inspection
Period. Such independent contract consideration shall be non-refundable to Buyer
under any circumstance.
2.3 Tax Prorations. Ad valorem taxes and assessments shall be prorated as
of midnight on the day immediately prior to the Closing Date. If the amount of
the Closing tax year's property taxes are not available on the Closing Date,
such taxes will be prorated based upon the prior tax year's assessment. In the
event that, as of the Closing Date, Seller is protesting or has notified Buyer
in writing that Seller is electing to protest any real estate taxes and/or
assessments, then Buyer agrees that Seller shall have the right, after the
Closing Date, to continue such protest. In such case, any real estate taxes
and/or assessments paid by Buyer after the Closing Date shall be paid under
protest and Buyer shall promptly notify Seller of any payments of real estate
taxes and/or assessments made by Buyer. Buyer further agrees to cooperate with
Seller and execute any documents reasonably requested by Seller in connection
with such protest, provided such cooperation shall be at no material cost to
Buyer and such documents will be in form reasonably acceptable to Buyer. Any tax
savings for the calendar year of the Closing realized by Seller as a result of
such protest shall be prorated between the parties as of the Closing Date. If
such refunds are paid to Buyer as the owner of the Property, Buyer shall, within
thirty (30) days of receipt from the taxing authority, credit such amounts
attributable to the period prior to the Closing Date to Seller's rent
obligation. Payments after the Closing Date shall be made in cash to the
applicable party at its address set forth in Section 10.2. The obligations of
this Section 2.3 shall survive the Closing.
2.4 Other Prorations. Matters of income and expense, if any, and other
items customarily prorated in transactions of this kind shall be prorated as of
midnight of the day preceding the Closing Date.
2.5 Closing Costs.
(a) Seller shall pay: (1) The costs, if any, of curing any Title Defects
and recording any curative title documents, if and to the extent Seller has
elected to cure same in accordance with Section 7.1; (2) The costs of satisfying
any consensual liens made by Seller on the Property; (3) The brokerage
commission payable to Broker incurred in connection with the sale of the
Property to Buyer, if and when this transaction closes, in accordance with a
separate written agreement between Broker and Seller; (4) costs of the ALTA
survey; (5) One-half of the Escrow Agent's fees; (6) Seller's attorneys' fees
relating to the sale of the Property; (7) Transfer taxes, if any, on the deed;
and, (8) The costs of recording the deed.
(b) Buyer shall pay: (1)The costs of Buyer's due diligence investigations,
including costs of the title examination, Title Commitment and Title policy and
costs of the Phase I environmental site assessment to be obtained by Buyer, if
any (2) One-half of the Escrow Agent's fees; (3) Mortgage taxes, if any; and (4)
Buyer's attorneys' fees.
3. INSPECTION PERIOD, PERMITTING PERIOD, AND SELLER'S DELIVERIES
3.1 Inspection Period; Application for Permits. Buyer shall have the
Inspection Period within which (i) to physically inspect the Property and
conduct its due diligence related thereto, (ii) to investigate, object to and
waive or approve any existing exceptions to title or survey (as set forth in
Section 7), (iii) to determine, in its sole discretion the feasibility of
purchasing the Property for the Buyer's intended use, and (iv) negotiate a
satisfactory (in Buyer's sole discretion) ground lease agreement with the Seller
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(a) Subject to the terms of subsection (b), BUYER and BUYER=s officers,
employees, consultants, attorneys and other authorized representatives, shall
have the right to reasonable access to the Properties at reasonable times during
the Inspection Period to conduct its due diligence review of the Property. Buyer
hereby agrees to indemnify and hold Seller harmless from any damages,
liabilities or claims for property damage or personal injury caused by Buyer,
its employees, agents and contractors, in the conduct of such inspections and
investigations. If Buyer terminates this Agreement as a Permitted Termination,
Buyer shall return the tested portions of the Property to substantially the same
condition they were in prior to performing tests. Seller shall cooperate with
and assist Buyer in making such inspections and reviews.
(b) BUYER acknowledges and agrees that SELLER shall continue to operate its
restaurant business on the Property during the Inspection Period and until
Closing and then pursuant to the terms of the lease agreement. Except for those
persons whose knowledge of this Agreement is required for the BUYER to complete
the transactions contemplated hereunder, finance the purchase through an
institutional lender, and lease the Properties after Closing (BUYER's "Required
Confidants"), BUYER will not and will direct its Required Confidants not to,
without the prior written consent of the SELLER, disclose to any person,
including specifically the current employees of the restaurants located on the
Properties, the provisions of this Agreement or the fact of this sale until
SELLER has announced its intent to sell the Properties. BUYER agrees that (i)
communications regarding the proposed transaction, (ii) requests for
information, (iii) request for facility tours or management meetings, and (iv)
discussions or questions regarding procedures will be submitted to Xxxxx Xxxxxx
at SELLER's corporate office at telephone number 000-000-0000.
(c) Prior to the end of the Inspection Period, the parties will agree to
the terms of a Lease Agreement in the form of the Lease attached hereto as
Exhibit E, by which Buyer agrees to lease the Property to Seller for a period of
five (5) years following the Closing Date, with one (1) five year option to
renew.
3.2 Buyer's Election to Proceed. Within the Inspection Period, Buyer may
elect in its sole and absolute discretion whether or not to go forward with this
Agreement. Buyer may elect to terminate this Agreement for any reason
whatsoever, as a Permitted Termination by giving written notice to Seller prior
to the end of the Inspection Period, and returning to Seller the materials and
information furnished to Buyer by Seller. If a Permitted Termination occurs,
then all Xxxxxxx Money paid by Buyer up to that point, shall immediately be
refunded to Buyer. If such written notice is not timely given, Buyer is deemed
to have waived all rights of termination during the Inspection Period. After the
conclusion of the Inspection Period the Xxxxxxx Money Deposit shall not be
refundable except upon terms otherwise expressly set forth herein.
3.3 Seller's Deliveries. Within five (5) days after the Effective Date of
this Agreement, Seller shall deliver to Buyer copies of the following, if and to
the extent in Seller's possession:
(a) Existing title report and survey of the Real Property, if any;
(b) Existing environmental and soil reports covering the Property if any;
(c) Site plan for the Property, if any;
(d) Description of utilities for the Property,
(e) Description of any work done on or about the Property for the last one
hundred eighty (180) days exceeding One Thousand and no/100 dollars ($1,000.00
per occurrence;
(f) Copies of any and all warranties (HVAC, paving, roof, FF & E, etc.) and
operating manuals pertaining to the Improvements, if any;
(g) A photocopy of the liability and casualty insurance certificates
evidencing coverage covering the Property, and improvements thereto
Except as set forth herein, Buyer acknowledges that all reports, documents,
surveys and other materials and information delivered or made available by
Seller to Buyer are without representation or warranty by Seller. Should Buyer
terminate this Agreement, it shall return to Seller all of the reports
furnished.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER; DISCLAIMER OF
SELLER
Seller warrants and represents to the best of Seller's reasonable
information and belief, and where indicated covenants and agrees, as follows.
When used herein terms such as "Seller's reasonable information and belief" and
"Seller knowingly" and the like shall mean only the actual, current, conscious
knowledge, without inquiry (not the constructive, imputed or implied knowledge),
of Seller's representatives, Xxxxx Xxxxxx and Xxxxxxxx X. Xxxxxxx, provided that
so qualifying Seller's knowledge shall in no event give rise to any personal
liability on the part of said individual or any other officer or employee of
Seller, on account of any breach of any representation or warranty made by
Seller herein.
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4.1 Organization; Authority. Seller is duly organized, validly existing and
in good standing under the laws of the state of its organization. Seller is
authorized to transact business in the state in which the Property is located.
Seller has full power and authority to enter into and perform this Agreement in
accordance with its terms, and the persons executing this Agreement on behalf of
Seller have been duly authorized to do so.
4.2 Litigation. There is no litigation or legal proceeding pending or
threatened against Seller or relating to the Property. The Property and
improvements thereon are in full compliance with the law and Seller does not
have any knowledge of any potential or pending violation thereof. Seller shall
indemnify and hold Buyer harmless from any and all matters arising prior to the
date of Closing related to the Property or Seller's operations thereon.
4.3 Eminent Domain/Condemnation. No condemnation or eminent domain
proceedings are now pending concerning the Property, and Seller has received no
written notice from any governmental agency or authority or other potential
condemnor concerning any right-of-way, utility or other taking which may affect
the Property.
4.4 Environmental Matters. Seller has used no Hazardous Material at the
Property except for items lawfully used as cleaning or baking products, nor has
Seller permitted any other person to do so.
4.5 Foreign Investment and Real Property Tax Act. Seller is not a "foreign
person" within the meaning of Section 1445 of the Internal Revenue Code, or
under any comparable state statutes which are applicable to this transaction. At
Closing Seller will execute and deliver to Buyer an affidavit regarding such
matters.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER;
Buyer hereby warrants and represents and where indicated covenants and
agrees as follows:
5.1 Organization; Authority. Any of Buyer's successors or assigns which are
corporate entities are duly organized, validly existing and in good standing
under the laws of the state of its organization, and will be authorized to
transact business in the state in which the Property is located. This Agreement
has been duly authorized by all necessary action on the part of Buyer and
constitutes the valid and binding agreement of Buyer and is enforceable in
accordance with its terms. There is no other person or entity whose consent is
required in connection with Buyer's performance of its obligations hereunder.
The persons executing this Agreement on behalf of Buyer have been duly
authorized to do so.
6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be transferred to Buyer at
the conclusion of the Closing subject to the terms of this Agreement and the
Lease.
6.2 Eminent Domain. If, before Closing, any substantial portion of the
Property is taken or threatened by eminent domain, or if there is a material
obstruction of access by virtue of a taking by eminent domain, Seller shall,
within ten (10) days of such taking, notify Buyer thereof and Buyer shall have
the option to:
(a) terminate this Agreement upon notice to Seller given within ten (10)
business days after such notice from Seller, in which case Buyer shall receive a
return of the Xxxxxxx Money Deposit; or
(b) proceed with the purchase of the Property without reduction in the
Purchase Price, in which event Seller shall assign to Buyer without
representation, warranty or recourse, all Seller's right, title and interest in
all amounts due or collected by Seller as condemnation awards.
7. TITLE AND SURVEY MATTERS
7.1 Title and Survey.
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(a) Title Insurance. Within ten (10) days after the Effective Date hereof,
Seller shall deliver to Buyer a recent Title Insurance Commitment and ALTA
Survey. Buyer will have ten (10) days after its receipt of both the Title
Insurance Commitment and Survey, but in no event later than the expiration of
the Inspection Period, within which to notify Seller in writing of any
conditions, defects, encroachments or other objections to title or survey (other
than the Permitted Exceptions) which are not acceptable to Buyer. Any matter
disclosed by the Title Insurance Commitment (other than consensual liens placed
upon the Property by Seller which are removable by the payment of money) or by
the Survey, which is not timely specified in Buyer's written notice to Seller
shall be deemed an additional Permitted Exception. Seller may, but shall not be
obligated to, cure any or all objections to title or survey by the end of the
Inspection Period. If such Title Defects and/or objections are not cured within
the Inspection Period, Buyer may as Buyer's sole and exclusive remedy, (i)
decline to purchase the Property, terminate this Agreement prior to the
expiration of the Inspection Period in accordance with Section 3.2 and receive a
return of the Xxxxxxx Money Deposit; or (ii) waive such objection(s) and close
the purchase of the Property subject to them without reduction of the Purchase
Price.
8. CLOSING
8.1 Seller's Deliveries. At Closing and upon payment of the Purchase Price,
Seller shall execute and deliver:
(a) A general warranty deed in proper form for recording, duly executed,
witnessed and acknowledged, so as to convey to Buyer the fee simple title to the
Real Property, together with all Appurtenant Rights thereto and all Improvements
thereon, subject only to the Permitted Exceptions, if any;
(b) A Xxxx of Sale, in the form attached hereto as Exhibit D, duly
executed, so as to convey to Buyer title to the Personal Property, including any
and all warranties related to the improvements and Property; and
(c) An owner's affidavit, non-foreign affidavit and such further
instruments of conveyance, transfer and assignment and other documents as may
reasonably be required by the Title Company in order to effectuate the
provisions of this Agreement and the consummation of the transactions
contemplated herein.
(d) Lease Agreement in the form attached hereto as Exhibit E.
(e) First months rent and other charges (taxes, etc.) due under the Lease
Agreement.
8.2 Buyer's Deliveries. At Closing Buyer shall pay the Purchase Price and
shall execute and deliver a signed original of the Lease Agreement in the form
attached hereto as Exhibit E and such documents as Seller or the Title Company
may reasonably request to effect the transactions contemplated by this
Agreement.
9. BREACH; REMEDIES
9.1 Breach by Seller. In the event of a breach of Seller's covenants or
warranties herein and the failure of Seller to cure such breach prior to
Closing, Buyer may, at Buyer's election and as Buyer's sole and exclusive remedy
do one of the following: (i) terminate this Agreement and receive a return of
the Xxxxxxx Money Deposit, and the parties shall have no further rights or
obligations under this Agreement (except as survive termination); (ii) enforce
this Agreement by suit for specific performance; or (iii) waive such breach and
close the purchase contemplated hereby, notwithstanding such breach.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and the failure of Buyer to cure such breach prior to Closing,
Seller's sole and absolute remedy shall be to terminate this Agreement and
retain Buyer's Xxxxxxx Money Deposit as agreed liquidated damages for such
breach (it being agreed that actual damages in such event would be difficult to
determine, and the Xxxxxxx Money Deposit is a reasonable estimate thereof), and
upon payment in full to Seller of such Xxxxxxx Money Deposit, the parties shall
have no further rights, claims, liabilities or obligations under this Agreement,
except that Buyer's obligations under any indemnity or repair obligation shall
survive such termination and Seller may proceed thereunder as it may be advised.
9.3 Notice of Breach: Before either party shall be entitled to declare the
other in breach of this Agreement, it shall put the other party on written
notice of the nature of the claimed breach and the party claimed to have
breached this Agreement shall have five (5) days after receipt of such notice in
which to cure the claimed breach.
10. MISCELLANEOUS
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10.1 Commissions. Seller will pay a six percent (6%) commission to The
Xxxxxxxxx Group as a broker's commission at Closing. The Seller agrees to
indemnify and hold the Buyer harmless from and against all claims, liabilities
and obligations for any commission, finder's fee or other compensation in
connection with this Agreement claimed by or through Seller. The Buyer agrees to
indemnify and hold the Seller harmless from and against all claims, liabilities
and obligations for any commission, finder's fee or other compensation in
connection with this Agreement claimed by or through Buyer.
10.2 Notices. All notices and demands of any kind which either party may be
required or may desire to serve upon the other party in connection with this
Agreement shall be in writing, signed by the party or its counsel identified
below, and shall be served (as an alternative to personal service) by registered
or certified mail, overnight courier service or facsimile transmission (followed
promptly by personal service or mailing of a hard copy), at the addresses set
forth below or at such other address as has been substituted by notice given in
the manner required hereby.
As to Buyer: Xxxxxxx Xxxxx 0000-00 Xxxxx Xxxx Xxxxxxxxx, XX 00000 Phone:
000-000-0000 Telefax: 000-000-0000
With a copy to Xxxxx X. Xxxxxxxx Suite F, 0000 Xxxxxxxx Xxxx, XX Xxxxxxx,
Xxxxxxx 00000 Phone: 000.000.0000 Telefax: 404.233.4804
As to Seller: Don Pablo's Operating Corp. c/o Avado Brands, Inc. Attention:
Xxxxx Xxxxxx Xxxxxxx at Washington Xxxxxxx, Xxxxxxx 00000 Telephone: (706)
000-0000 Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxxx, Esquire GravesSieffert, P.A. 000-X
Xxxxx Xxxxxxxxxxxx Xxxxx (29607) Xxxx Xxxxxx Xxx 0000 Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000 Telefax: 000-000-0000
As to Escrow Agent: LandAmerica Title Services Attn: Xxxx Xxxxx 0000
Xxxxxxxxx Xxxxxxx Xxxxx 0000 Xxxxxxx, XX 00000 Tel: 000.000.0000
Art Xxxxxxxxx The Xxxxxxxxx Company 0000-00 Xxxxx Xxxx Xxxxxxxxx, Xxxxxxxxx
00000 Phone: 000.000.0000
Any such notice or demand so secured, shall constitute proper notice
hereunder upon delivery to the United States Postal Service or to such overnight
courier, or by confirmation of the facsimile transmission.
10.3 Headings. The titles and headings of the various sections hereof are
intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
10.4 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby, and every other provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
10.5 Attorneys' Fees. In the event of any dispute, litigation or other
proceeding between the parties hereto to enforce any of the provisions of this
Agreement or any right of either party hereunder, the unsuccessful party to such
dispute, litigation or other proceeding shall pay to the successful party all
costs and expenses, including reasonable attorneys' fees, incurred at trial, on
appeal, and in any arbitration, administrative or other proceedings, all of
which may be included in and as a part of the judgment rendered in such
litigation. Any indemnity provisions herein shall include indemnification for
such costs and fees. This section shall survive the Closing or a prior
termination hereof.
10.6 Time. Time is of the essence of this Agreement, provided that if any
date upon which some action, notice or response is required of any party
hereunder occurs on a weekend or national holiday, such action, notice or
response shall not be required until the next succeeding business day.
10.7 Governing Law. This Agreement shall be governed by the laws of the
state in which the Real Property is located.
10.8 Gender; Plural; Singular; Terms. A reference in this Agreement to any
gender, masculine, feminine or neuter, shall be deemed a reference to the other,
and the singular shall be deemed to include the plural and vice versa, unless
the context otherwise requires. The terms "herein," "hereof," "hereunder," and
other words of a similar nature mean and refer to this Agreement as a whole and
not merely to the specified section or clause in which the respective word
appears unless expressly so stated.
10.9 Recitals and Exhibits. All recitals herein and exhibits attached
hereto are incorporated herein by reference to the same extent as though such
recitals and/or exhibits were included in the body of this Agreement verbatim.
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10.10 Counterparts, Further Instruments, etc. This Agreement may be
executed in counterparts, and when so executed shall be deemed executed as one
agreement. Seller and Buyer shall execute any and all documents and perform any
and all acts reasonably necessary to fully implement this Agreement.
10.11 No Recording. This Agreement shall not be recorded.
10.12 Survival. The representations and warranties of Seller and Buyer, and
the obligations of Seller and Buyer shall survive the Closing.
10.13 Assignment. Buyer has the right to assign its rights hereunder, as
long as Buyer, or its successors and assigns, remains fully liable for its
obligations under this Agreement. The terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the heirs, successors
and permitted assigns of the parties. No third parties, including any brokers or
creditors, shall be beneficiaries hereof or entitled to any rights or benefits
hereunder.
10.14 Entire Agreement. This Agreement, together with the exhibits attached
hereto, supercedes all prior agreements between the parties as to the Property,
if any, and constitutes the entire agreement between the parties with respect to
the subject matter hereof. This Agreement may not be modified, amended or
otherwise changed in any manner except by a writing executed by Buyer and
Seller.
10.15 Consents. Unless specified otherwise in the terms of this Agreement,
whenever a party is asked to provide consent under this Agreement, such party
shall not unreasonably withhold or delay giving the consent requested.
10.16 Force Majeure. The time for performance of an obligation, other than
the payment of money, or the satisfaction of any contingency under this
Agreement shall be extended for the period during which a party is prevented
from performing by the act or omission of the other party, acts of God,
government, or other force or event beyond the reasonable control of such party.
10.17 Waiver. No right or remedy under this Agreement will be waived unless
the waiver is in writing and signed by the party claimed to have made the
waiver. One waiver will not be interpreted as a continuing waiver.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date given below.
SELLER: Don Pablo's Operating Corp.
By: ___________________________________
Name: Xxxxxxxx X. Xxxxxxx
Title: President
Date: May _____, 2003
Tax Identification No: xx-xxxxxxx
BUYER:
Miko Investments, LLC, a Tennessee
Limited liability company
By: Xxxxxxx Xxxxx
Its: _________________
Date: May _____, 2003
Tax Identification No: xx-xxxxxxx
S-1
JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of agreeing to comply
with the terms hereof insofar as they apply to Escrow Agent. Escrow Agent shall
receive and hold the Xxxxxxx Money Deposit in trust, to be disposed of in
accordance with the provisions of this joinder and the foregoing Agreement.
Unless prohibited by law, the Xxxxxxx Money Deposit shall be invested by Escrow
Agent in an interest bearing account.
2. Indemnity. Escrow Agent shall not be liable to any party except for
claims resulting from the negligence or willful misconduct of Escrow Agent. If
the escrow is the subject of any controversy or litigation, the parties to the
Agreement shall jointly and severally indemnify and hold Escrow Agent harmless
from and against any and all loss, cost, damage, liability or expense, including
costs of reasonable attorneys' fees to which Escrow Agent may be put or which
Escrow Agent may incur by reason of or in connection with such controversy or
litigation, except to the extent it is determined that such controversy or
litigation resulted from Escrow Agent's negligence or willful misconduct. If the
indemnity amounts payable hereunder result from the fault of Buyer or Seller (or
their respective agents), the party at fault shall pay and hold the other party
harmless against such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow Agent
or if Escrow Agent is uncertain with respect to the escrow, the parties to the
Agreement expressly agree that Escrow Agent shall have the absolute right to do
either or both of the following: (i) withhold and stop all proceedings in
performance of this escrow and await settlement of the controversy by final
appropriate legal proceedings or otherwise as it may require; or (ii) file suit
for declaratory relief and/or interpleader and obtain an order from the court
requiring the parties to interplead and litigate in such court their several
claims and rights between themselves. Upon the filing of any such declaratory
relief or interpleader suit and tender of the Xxxxxxx Money Deposit to the
court, Escrow Agent shall thereupon be fully released and discharged from any
and all obligations to further perform the duties or obligations imposed upon
it. Buyer and Seller agree to respond promptly in writing to any request by
Escrow Agent for clarification, consent or instructions. Any action proposed to
be taken by Escrow Agent for which approval of Buyer and/or Seller is requested
shall be considered approved by the particular party if Escrow Agent does not
receive written notice of disapproval within five (5) business days after a
written request for approval is received by the party whose approval is being
requested. Escrow Agent shall not be required to take any action for which
approval of Buyer and/or Seller has been sought unless such approval has been
received. No notice by Buyer or Seller to Escrow Agent of disapproval of a
proposed action shall affect the right of Escrow Agent to take any action as to
which such approval is not required.
4. Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
ESCROW AGENT:
Commonwealth Title Insurance Company
By:____________________________________
Its Authorized Agent
Date: May ___, 2003
S-2
JOINDER BY BROKER
The Xxxxxxxxx Group, as broker, joins in the execution of the above and
foregoing instrument for the purpose of agreeing to the terms and provisions
thereof as the same relates to the broker commission:
The Xxxxxxxxx Group
By: _____________________________
Print Name: Art Xxxxxxxxx
Date: May ____, 2003
S-3
Exhibits and schedules to this agreement are not filed pursuant to Item
601(b)(2) of SEC Regulation S-K. By the filing of this Form 10-Q, the Registrant
hereby agrees to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
