EXHIBIT 10.10
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, made and entered this 25th day of January, 2002, by and between
CAUSEWAY FOODS, INC., A FLORIDA CORPORATION, d/b/a MR. MANATEE'S, with a
principal place of business located at 00 Xxxxx Xxxx Xxxxxx Xxxx Xxxxx, Xxxxxxx,
00000, and MR. MANATEE'S FRANCHISE CORPORATION, A FLORIDA CORPORATION, whose
address is (hereinafter collectively referred to as "Seller"), XXXXXX X.
XXXX whose address is P. O. Xxx 0000 Xxxx Xxxxx, Xxxxxxx, 00000-0000,
(hereinafter referred to as "Long") and CHEFS INTERNATIONAL, INC., A DELAWARE
CORPORATION, whose address is x/x Xxxx Xxxxxx Xxx 0000 Xxxxx Xxxxxxxx Xxxxx, XX
00000, (hereinafter referred to as "Buyer").
WITNESSETH:
WHEREAS, Seller is an active corporation organized and existing under the
laws of the State of Florida; and
WHEREAS, Buyer is an active corporation organized and existing under the
laws of the State of Delaware; and
WHEREAS, the parties have agreed that the Seller shall sell, and the Buyer
shall buy the business known as "MR. MANATEE'S CASUAL GRILLE", together with
the name, trademark, goodwill, franchising rights in Mr. Manatee's Franchise
Corporation, a Florida Corporation, liquor license, and all furnishings,
personal property, fixtures and equipment located at 00 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxx 00000, subject to the terms and conditions as hereinafter set
forth, and subject further to full performance of the covenants and
contingencies expressed herein; and
WHEREAS, Seller and Long have agreed to be bound by non-competition
covenants as hereinafter set forth;
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable considerations, the receipt and
adequacy of which is hereby acknowledged, the parties hereto covenant, stipulate
and agree as follows:
1. SALE OF ASSETS: The Seller agrees to sell to Buyer free from all
liabilities, liens, encumbrances and interests of others, the entire
business interests known as "Mr. Manatee's" a/k/a Mr. Manatee's Casual
Grille including without limitation, goodwill, the name (with legal
transfer/assignment of all trademark, or other Federal/State protection)
all personal property, furnishings, fixtures, and equipment, liquor
license, franchising rights in Mr. Manatee's Franchise Corporation, a
Florida Corporation, and the Business telephone number
(collectively the "Assets"). Buyer agrees to purchase the same upon the
terms and conditions of this Asset Purchase Agreement (hereinafter referred
to as "Agreement").
2. PURCHASE PRICE: The Purchase Price shall be EIGHT HUNDRED THOUSAND DOLLARS
($800,000.00), payable as follows:
DEPOSIT FIVE THOUSAND DOLLARS ($5,000.00) by xxxxxxx money
deposit in the form of a check to be held by Xxxxx,
Cooksey, Fennell, X'Xxxxx, Marine, Xxxxxx & Xxxxxx,
P.A. Trust Account at execution of the Agreement.
AN ADDITIONAL TWENTY THOUSAND DOLLARS ($20,000.00) due
and payable at the end of the DUE DILIGENCE Period as
described herein.
CASH AT CLOSING SEVEN HUNDRED SEVENTY FIVE THOUSAND DOLLARS
($775,000.00) by Cashier's Check payable to Closing
Agent at or before Closing.
3. ACCEPTANCE: Buyer's offer hereby made shall be open for Seller's written
acceptance on or before January 17, 2002, and Seller shall deliver to Buyer
written acceptance of such offer within 24 hours of such acceptance, or the
deposit shall be returned to Buyer.
4. EFFECTIVE DATE: The Effective Date of this Agreement is the date on which
the last of the Parties signs the latest offer. TIME IS OF THE ESSENCE of
this Agreement. Time periods of 5 days or less shall be computed without
including Saturday, Sunday, or national legal holidays and any time period
ending on a Saturday, Sunday or national legal holiday shall be extended
until 5:00 p.m. on the next business day.
5. CLOSING:
(A) The closing shall take place on or before the April 1, 2002, at
the law offices of Xxxxx, Cooksey, Fennell, X'Xxxxx, Marine, Xxxxxx, &
Xxxxxx, P.A., 000 Xxxxxxxxx Xxxx. Xxxx Xxxxx, Xxxxxxx, at which time
the Commercial Lease Option shall be executed. Any extension of this
closing date must be in writing and signed by Buyer and Seller.
(B) At the closing, the parties shall further execute the following
documents and take the actions hereinafter described:
(i) Seller shall execute and deliver to Buyer an Absolute Xxxx of Sale
for all personal property, including furniture and fixtures, included
in this sale, as per the Personal Property List attached hereto as per
SCHEDULE "A,"
and by reference incorporated herein, for which Seller warrants that
it has good and marketable title, free and clear of all liens and
encumbrances, except any liens or encumbrances disclosed herein.
Seller hereby agrees to provide Buyer with a final itemized inventory
of the personal property within twenty (20) days of the Effective
Date, defined above. Buyer specifically acknowledges that any
outstanding municipal or governmental assessments related to the Royal
Palm Pointe project shall be satisfied by Seller upon the subsequent
settlement of the real property.
(ii) Seller shall execute and deliver to Buyer an Assignment of name,
franchising rights, and interests, and any other intangible personal
property interests relating to the business.
(iii) Seller shall transfer the Liquor License which he presently
holds to Buyer. Buyer shall execute all appropriate documents with the
Alcohol and Beverage Department of the State of Florida to effectuate
this transfer.
(iv) Seller shall transfer and assign to Buyer, effective with the
Closing of this sale, all rights held by Seller in the trade name "Mr.
Manatee's" and "Mr. Manatee's Casual Grille" and any derivations
thereof, and hereby waives any rights thereto, and shall not after
Closing, make use of such name, directly or indirectly. Seller has
disclosed to Buyer a limited license to utilize trade secrets, trade
name and logo in favor of Xxxxx Xxxxxxx ("Xxxxxxx") as set forth in
that certain Brevard Foods, Inc. General Manager Employment Agreement
dated April 17, 1992, a copy of which has been furnished to the Buyer.
Seller shall procure an executed modification to the General Manager
Employment Agreement from Xxxxx Xxxxxxx prior to closing, satisfactory
to Buyer, in Buyer's sole discretion. The modification shall provide
for limitations upon geographic location, future expansion,
relocation, name appropriation and use of proprietary rights and
interests. The modification shall also provide that the limited
license to utilize trade secrets, the trade name and the logo shall
terminate upon the death of Xxxxxxx, or any sale, transfer or
conveyance of Xxxxxxx'x business interests in the existing Pensacola
restaurant location, whether said sale, transfer or conveyance shall
be effected by stock transfer, asset sale, gift, devise, lease, or any
other form or manner whatsoever.
(v) Seller shall transfer to Buyer, any and rights held by Seller in
the Trademark Registration Number 2,088,906 registered August 19,
1997, and that Trademark Registration Number 1,686,932 registered May
12, 1992, with the United States Patent and Trademark Office. Seller
shall further transfer, any rights held by Seller in the class 42
Service Xxxx number T14429, registered April 29, 1991, and as renewed
February 22, 2001, with the State of Florida. Buyer shall execute all
appropriate documents to effectuate this transfer, and Seller shall
join in, in any application for transfer, as is necessary.
(vi) Seller and Long shall execute and deliver a Covenant Not to
Compete Agreement in the form set forth in Schedule "C", and further
described herein.
(vii) Each party shall execute and deliver Corporate Resolutions
authorizing the transactions contemplated herein, and directing the
appropriate officers to close the same.
(viii) Each party shall provide a Certificate of Active Corporate
Status from the Division of Corporations, State of Florida and State
of Delaware.
(C) Seller shall keep all cash located at the business and accounted
for at midnight on March 31, 2002.
(D) Buyer shall pay the cash required to close.
(E) Seller shall deliver possession of the real and personal property
indicated in Schedules "A" (Personal Property) and "B" (Real
Property).
(F) To the extent transferrable, Seller shall transfer any applicable
business and/or occupational licenses at closing.
6. REPRESENTATIONS BY SELLER: The Seller warrants and represents, both as of
the date hereof, and as a continuing warranty the following:
(A) It is the owner of and has good and marketable title to all the
Assets, free from all encumbrances and interests of others, other than
those which shall be satisfied by the Seller at closing or those
described herein.
(B) It has complied with all laws, rules and regulations of the
county, state and federal governments.
(C) It has paid or will pay or make provision for payment of all
Social Security, withholding, sales, income and unemployment insurance
taxes to the county, state and federal governments to date which would
become a lien on the Assets.
(D) Seller has not entered in to any contract or other agreement,
whether oral or written, that will survive closing.
(E) There are no judgments, liens, actions or proceedings pending
against Seller in any court.
(F) Seller represents that all liquor charges to vendors have been
paid and that the Liquor License is free from any violations or
encumbrances.
(G) Seller is a corporation, duly organized and validly existing and
in good standing under the laws of the State of Florida, has all
requisite power and authority to consummate the transactions
contemplated by this Agreement, and has, by proper corporate
proceedings, duly authorized the execution and delivery of this
Agreement and the consummation of all transactions contemplated
herein.
(H) Seller shall take such steps as are required by Section 607.1202,
Florida Statutes, in consideration of the sale by a corporation of
all, or substantially all of its property otherwise than in the usual
and regular
course of business. Seller shall hold appropriate director/stockholder
meetings, duly noticed as required by law, or with appropriate
waiver(s) of notice, to approve the sale as contemplated herein. Each
shareholder/director shall approve the sale as contemplated herein,
closing of this transaction, release any claims against the
corporation and waive any applicable dissenter's rights under Section
607.1301 and 607.1302, Florida Statutes.
(I) No further action is necessary by Seller to make this Agreement
valid and binding upon Seller and enforceable in accordance with the
terms hereof, or to carry out the actions contemplated hereby. The
execution, delivery, and performance of this Asset Purchase Agreement
by the Seller will not (i) constitute a breach or a violation of the
Sellers Certificate of Incorporation, By-Laws, or of any law,
agreement, indenture, deed of trust, mortgage, loan agreement or other
instrument to which it is a party, or by which it is bound; (ii)
constitute a violation of any order, judgment or decree to which it
is a party or by which its Assets or properties is bound or affected;
or (iii) result in the creation of any lien, charge, or encumbrance
upon its Assets or properties, except as stated herein.
(J) Seller shall deliver to Buyer copies of the preceding three (3)
years Tax returns and financial statements of the business, all of
which are true and complete and have been prepared in accordance with
generally accepted accounting principles, consistently followed
throughout the period indicated.
(K) No representation or warranty by the Seller in this Agreement, nor
any statement or certificate furnished or to be furnished to the
Buyer, pursuant to it, or in connection with the transaction
contemplated by it, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact
necessary to make the statements contained in it not misleading.
(L) Seller Shall deliver to Buyer copies of all proceedings to which
Seller is or was a party as they pertain to violations of the
Americans With Disabilities Act, 42 U.S.C. Section 12181.
7. COVENANTS OF SELLER: Seller covenants and represents, both as of the date
hereof, and as a continuing warranty the following:
(A) Seller shall, by Xxxx of Sale, convey all of the Assets set forth
free and clear of all encumbrances and interest of others (except as
otherwise herein provided) and will contain the usual warranties and
covenants of title.
(B) Seller hereby agrees, from the date of execution of this Agreement
to the date of Closing, to carry on the business activities and
operations Of the business diligently and in substantially the same
manner as has been customary in the past, and shall not remove any
item with exception of (i)
product inventory sold in the normal course of business; and (ii)
equipment and other tangible personal property which is retired in the
normal course of business provided same is replaced with new equipment
or tangible personal property. The business of the Seller will be
conducted up to the date of closing in accordance with all laws, rules
and regulations of the county, state and federal governments.
(C) All Social Security, withholding, sales, income and unemployment
insurance taxes to the county, state and federal governments will be
paid or provided for up to the date of closing.
(D) At the time of closing, Seller shall have no unpaid creditors
including federal, state and local tax liabilities which would create
a lien on the Assets or a claim against Buyer for the amount of their
debt. Buyer assumes no liability, responsibility or obligations of
Seller.
(E) No judgments or liens will be outstanding at the time of closing
against the Seller or against the Assets.
(F) The Seller, up to the date of closing, will operate and maintain
its business in the regular course, will not violate any contract
connected with the business and will not remove any stock-in-trade
(except as it may be consumed in the regular course of business) and
Seller's equipment and other fixed Assets shall be maintained in
their present condition, reasonable wear and tear excepted. No
employee or owner salaries may be increased, or bonuses taken, prior
to closing.
(G) The Seller will use its best efforts (without making any
commitment on Buyers behalf) to preserve the Seller's business
organization intact; and to preserve the good will, of its customers
and others having business relations with the Sellers business.
(H) The Seller shall give to the Buyer and to the Buyer's counsel,
accountants, or other representatives full access, during normal
business hours, throughout the period prior to the closing, to all of
the Seller's books, contracts, commitments and records, and shall
furnish the Buyer during that period all information concerning the
Seller's business operation as the Buyer may reasonably request.
(I) Seller covenants with Buyer it will not divulge any confidential
information, or make available to others any documents, files or other
papers concerning the Seller's business or financial affairs, or
remove any such documents, files, or other papers from the Sellers
premises except with the prior consent and approval of Buyer.
(J) Seller warrants to best of its knowledge there exist: no pending
or threatened judgment, lien, suit, claim or proceeding against Seller
not disclosed herein; no condition, act, or event which (with the
giving of notice, passage of time, or both) would constitute a breach
or default by the Seller under any contract executed by it; no other
basis for the assertion against the Seller of any claim or liability
not fully reflected or reserved against in its books. Further, there
is no unfulfilled contract,
agreement, or commitment made by Seller which pertains to the Assets
or the Real Property and which is not disclosed herein.
(K) Seller warrants the business and premises meet, at the time of
Closing, all government regulations as to health, fire, zoning and
other licensing laws, including all statutes, ordinances, rules,
orders, regulations and requirements of the federal, state, county and
city government and of any and all other agencies, departments and
bureaus applicable to the use of the premises as intended by Buyer.
This specifically includes compliance with the Americans With
Disabilities Act, 42 U.S.C. Section 12181.
(L) All representations and warranties made by the Seller shall be
true at closing and shall survive the closing and the execution and
delivery of any document or instrument in connection therewith.
8. INDEMNIFICATION: Seller shall indemnify, protect and hold harmless the
Buyer, without the execution of any further documents, from and against all
losses, damages, injuries, claims, demands and expenses, including
reasonable attorneys' fees, for all proceedings, trials and appeals arising
out of any breach of the representations and covenants set forth herein;
including, without limitation any damage or deficiency from any
misrepresentation, breach of warranty or nonfulfillment of any agreement on
the part of the Seller or either of them under this Agreement, or from any
misrepresentation in or omission from any certificate or other instrument
to be furnished to the Buyer.
9. ITEMIZED INVENTORY: The parties acknowledge that the list of Assets
referred to in Schedule "X" of this Asset Purchase Agreement is based upon
the best information available to Buyer at the execution hereof. The Seller
shall, within twenty (20) days of the execution of this Agreement, provide
the Buyer with a comprehensive schedule of the personal property to be
acquired, describing the same as necessary for accurate identification. The
comprehensive inventory shall be attached to the Xxxx of Sale, Absolute,
along with the merchandise inventory and transferred at closing. Buyer
shall purchase the food, liquor, retail goods and paper supplies on hand at
the time of closing for a price equal to Seller's cost. Buyer has the right
to reject any unwanted inventory. Any payment shall be over and above the
purchase price as referenced in paragraph 2 of this Agreement.
10. ALLOCATION: The undersigned agree that the allocation of the Seller's
interest in this transaction is as follows:
Covenant Not to Compete $ 60,000.00
Personal Property 125,000.00
Goodwill 555,000.00
Liquor License 60,000.00
TOTAL: $ 800,000.00
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11. LEASE/OPTION TO PURCHASE: On the Closing Date, Chefs International, Inc.,
or its assignee (hereinafter "Buyer") will purchase the Assets and execute
a five (5) year triple-net lease agreement in favor of Xxxxxx Xxxxx Xxxx
(hereinafter "Owner") to lease the premises for operation of the Business
at Royal Palm Pointe located at 00 Xxxxx Xxxx Xxxxxx, more particularly
described in Schedule "B". Rent shall be payable in the amount of $8,000.00
per month together with all applicable taxes. The lease agreement shall
include the use of any easements, boat slips or other appurtenances for the
entire lease term. Buyer will be permitted to extend/renew the lease three
additional five (5) year terms. Any renewal/extension of the lease shall
result in an increase in rent of ten (10%) percent for the additional five
(5) year term.
Buyer shall have an option and right to purchase the real property and
improvements at the end of the initial five (5) year lease term for
$1,075,000.00. Terms and conditions of the purchase/sale shall be attached
to and contained in the Commercial Lease Option Agreement attached hereto
as Schedule "D". Conveyance shall be by General Warranty Deed, free and
clear of liens, encumbrances, or defects in title, except taxes for the
year of closing.
12. DUE DILIGENCE/INSPECTION: Buyer shall have sixty (60) days extending from
the Effective Date to effect any and all inspections, investigations or
examinations of the relevant documentation, including without limitation
Business financial statements, records, tax returns, Business income and
expense data, etc. Said documentation is to be provided by Seller within
seven (7) days of execution of this Agreement and shall remain
confidential. Diligence shall also include without limitation, procuring an
environmental assessment, boundary, improvement survey, structural
engineering analysis and regulatory compliance. Buyer shall have access to
the property for performing diligence activities. In the event for any
reason Buyer finds the Assets/property not to be satisfactory, Buyer may
furnish written notice to Seller of such finding by no later than 5:00 p.m.
on the sixtieth (60th) day after the Effective Date; in such event, the
Deposit shall be immediately refunded to Buyer, and the Agreement deemed
void. In the event Buyer does not furnish such written notice to Seller by
5:00 p.m. on the sixtieth (60th) day after the Effective Date, it shall be
conclusively presumed that Buyer finds the property to be satisfactory for
inspection purposes. Buyer shall further have a right to conduct a final
compliance inspection and examination of all documents and records
mentioned herein, prior to closing. Buyer agrees to defend, indemnify and
hold harmless Seller from and against any claims, actions, damages,
expenses, liabilities or losses arising from Buyer's activities conducted
pursuant to this Section.
13. DEFAULT: In the event of a default of this Agreement by Buyer, the Seller
shall be entitled to retain all sums paid to it by Buyer as agreed upon
liquidated damages, consideration for the execution of this Agreement and
in full settlement of any claims; whereupon all parties shall be fully
released hereunder. Seller specifically waives the right to seek specific
performance of this Asset Purchase Agreement. Should Seller fail, neglect
or refuse to perform this Agreement, the Buyer may seek specific
performance or elect to receive the return of the deposit without thereby
waiving any action for damages resulting from Seller's breach.
14. CONDITION OF PERSONAL PROPERTY: All personal property included in this
sale, as per attached SCHEDULE "A," is being purchased on an "as is" basis
without warranties of merchantability or fitness for any particular
purpose. However, at the Closing of this sale, all equipment shall be in
working condition. Buyer shall be responsible for inspecting said equipment
in order to determine that, as of the date of Closing, said equipment is
in working condition and Seller shall be responsible for any cost or
expense necessary to insure all equipment is delivered in working
condition. After the date of closing, Buyer shall be responsible for the
maintenance and repair of all equipment.
15. LOSS/DAMAGE: In the event there is any material loss or damage to the
Business premises, or any of the improvements, systems, equipment or other
Assets included in this sale at any time prior to the Closing of this sale,
the risk of loss shall be upon Seller. Immediately from and after the Close
of this sale, all risk of loss or damages shall be upon Buyer. If the
destruction, loss or damage is such that the Assets are totally or
partially destroyed, Buyer shall have the right to terminate this
Agreement, and the rights of the Buyer and the Seller under this Agreement
shall thereupon terminate.
16. BUSINESS DEPOSITS: Any and all amounts currently on deposit for the benefit
of the business for utility services, leases, insurance, etc., together
with all cash located at the business and accounted for at midnight on
March 31, 2002, are and shall remain the sole property of Seller and are
not included as part of this transaction. Buyer shall, effective with the
Closing, deposit such amounts as are necessary to continue the operation of
the business.
17. BUSINESS TELEPHONE: Seller agrees to transfer to Buyer at Closing, and
Buyer agrees to accept, ownership of the Business telephone number(s) and
yellow pages or other advertising that refers to said telephone numbers.
18. BUSINESS MAIL: Seller agrees that all mail relating to the Business shall
be routed to Buyer, and Buyer agrees to promptly forward to Seller any mail
personalized to Seller.
19. BUSINESS RECORDS: At the Closing of the sale, Seller shall deliver to Buyer
copies of all documents pertinent to the operation of the Business which
Seller may have. Such records shall include copies of those documents
necessary to conduct business with suppliers and customers of the Business.
20. LICENSES AND PERMITS: Seller agrees to cooperate with Buyer in obtaining,
at Buyer's expense, any licenses, permits, approvals, or certificates
necessary for the continued operation of the Business.
21. TRANSITION: Seller shall assist Buyer in the transfer by permitting Buyer's
personnel to visit the Business site between the time the Agreement is
fully executed and the Closing Date. Seller agrees to assist in the
transition by making himself available throughout weekends and evenings
through May 30, 2002.
22. PRORATIONS: All transferrable taxes, insurance, licenses, rents, utilities,
etc., shall be prorated as of the Closing Date.
23. FINANCIAL INFORMATION: Seller warrants that the financial information
supplied to Buyer by Seller is true and correct and is a fair and accurate
representation of the financial condition and results of the operation of
the Business.
24. ACCOUNTS RECEIVABLE: It is agreed that Seller's accounts receivable, if
any, are not included in the purchase price.
25. COVENANT NOT TO COMPETE: Seller and Xxxxxx X. Xxxx shall be prevented from
competing for a period of five (5) years from the Closing Date, in a
geographical area defined as Indian River, Brevard, St. Lucie and Xxxxxx
Counties, and shall further be precluded from soliciting existing customers
or employees during said five (5) year term. Xxxxxx X. Xxxx hereby agrees
to join in this Agreement for purposes of indicating his assent and
agreement to execute and be individually bound by the Covenant Not To
Compete Agreement referred to herein, and attached hereto as Schedule "C".
26. CLOSING AGENT: The parties here appoint Xxxxxxxxxxx X. Marine, Esquire, of
Xxxxx, Cooksey, Fennell, X'Xxxxx, Marine, Xxxxxx & Xxxxxx, P.A., as Closing
Agent to receive, deposit and distribute funds for the parties and
acknowledge that Closing Agent shall prepare and obtain execution of escrow
instructions, closing documents and instruments evidencing the terms and
conditions of this transaction, as are required for the closing, conduct
the closing, and provide for recording of the documents. Buyer and Seller
agree to execute said documents as are reasonably requested by the Closing
Agent and Seller agrees to pay Closing Agent's fees and expenses. Such
expenses shall include a judgment and lien search. Such closing documents
shall include Seller(s) and Buyer(s)
Affidavits, Closing Agreement, Xxxx of Sale, and such other documents as
may be necessary, in the opinion of the Closing Agent, to effectuate the
transaction. Each party shall be responsible for their own attorneys fees.
27. PRE-CLOSING COVENANTS: Buyer and Seller agree not to divulge any business
or financial information pertaining to the business or this transaction
prior to Closing, except: (A) Such information may be divulged with the
prior written consent of the other party; and (B) to the extent necessary,
the parties may reveal such information to their attorneys and other
professionals retained by them to assist them in this transaction.
28. ASSIGNMENT: Buyer may assign this Agreement.
29. BROKERS: Seller acknowledges and affirms unto Buyer that Seller has not
contacted or dealt with a real estate broker and/or real estate salesperson
in conjunction with the sale of the Property. Buyer acknowledges and
affirms unto Seller that Buyer has not contacted or otherwise dealt with
either a real estate broker or real estate salesperson. In the event a
broker or salesperson makes a claim for a brokerage commission, finder's
fee, or similar charge, the party who has contacted such broker or
salesperson shall bear the full cost and expense of such brokerage
commission, finder's fee, or similar charge. Each party does hereby fully
indemnify and save and hold harmless the other party of and from any
liability or obligation to pay a brokerage commission, finder's fee, or
similar charge.
30. PARAGRAPH HEADLINES: Captions and paragraph headlines in this Agreement are
for convenience and reference only and do not define, describe, extend or
limit the scope or intent of this Agreement or any provision herein.
31. BINDING EFFECT: This Agreement shall bind and inure to the benefit of the
successors, assigns, personal representatives, heirs and legatees of the
parties hereto. The parties hereto acknowledge that this Agreement,
including all covenants, representations, warranties and agreements, shall
survive the Closing of this transaction.
32. NOTICE: If any party desires to give notice to the other, such notice shall
be in writing and be deemed given when deposited in the U.S. mail, postage
prepaid, certified mail, addressed to the party intended as follows,
TO SELLER: WITH COPY TO:
XXXXXX XXXXX XXXX XXXXX XXXXXXXXX, ESQ.
X.X. Xxx 0000 Xxxx, Xxxxxxxxx, et al
Xxxx Xxxxx, XX 00000-0000 000 Xxxxxxxxx Xxxx.
Xxxx Xxxxx, XX 00000
TO BUYER: WITH COPY TO:
CHEFS INTERNATIONAL INC., XXXXXXXXXXX X. MARINE, ESQ.
a Delaware corporation, Gould, Cooksey, et al
Post Office Box 1332 000 Xxxxxxxxx Xxxx.
Xxxxx Xxxxxxxx Xxxxx, XX 00000 Xxxx Xxxxx, XX 00000
33. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement and
understanding of the parties and cannot be modified except in writing
executed by all parties. All representations made herein shall survive the
closing.
34. SEVERABILITY: In the event that any of the terms, conditions, or covenants
of this Agreement are held to be unenforceable or invalid by any court of
competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, shall not be affected thereby and effect
shall give rise to the intent manifested by the provisions, or portions
thereof, held to be enforceable and valid.
35. GIFT CERTIFICATES: Seller has disclosed to Buyer that there are and will
be, at the time of Closing, outstanding and unredeemed gift certificates.
There will be no adjustment for promotional certificates and coupons. With
respect to cash sale gift certificates, Buyer shall be entitled to setoff
against the rent due under the commercial lease option, an amount equal to
sixty-five percent (65%) of the face value of any such certificates that
are redeemed within one (1) year from the date of Closing. Any reduced
rental payments shall be accompanied by copies of the redeemed and
cancelled gift certificates and a calculation of the setoff amount.
36. TYPEWRITTEN OR HANDWRITTEN PROVISIONS: Typewritten or handwritten
provisions inserted in this form and acknowledged by the parties as
evidenced by their initials shall control all printed provisions in
conflict therewith.
37. MISCELLANEOUS:
(A) This Agreement shall not become effective until it has been executed by
all of the parties hereto, but shall be dated for purposes hereof as of the
date and year first above written.
(B) This Agreement shall be construed under the laws of the State of
Florida.
(C) Time is of the essence.
(D) This Agreement shall be binding upon and inure to the benefit of,
respectively, the parties, their successors, legal representatives,
grantees and assigns, as applicable and appropriate, of all parties of this
Agreement.
(E) This Agreement shall not be construed more strongly against any party,
regardless of preparation.
(F) All rights, powers and remedies provided herein may be exercised only
to the extent that the exercise thereof does not violate any applicable
laws and are intended to be limited to the extent necessary so that they
will not render this Agreement invalid or unenforceable. If any term of
this Agreement shall be held to be invalid, illegal or unenforceable, the
validity of the other terms of this Agreement shall in no way be affected
thereby.
(G) This Agreement may be executed in any number of counterparts, each of
which, when so executed and delivered, shall be an original, but each
counterpart shall together constitute one and the same instrument.
(H) In the event it becomes necessary for either party herein to seek legal
means to enforce the terms of this Agreement, the prevailing party will be
eligible for all reasonable attorneys' fees and attorneys' fees on appeal,
travel expenses, depositions costs, expert witness expenses and fees, and
any other cost of whatever nature reasonable and necessarily incurred by
the prevailing party as a necessary incident to the prosecution or defense
of such action, plus court costs in all proceedings, trials and appeals.
(I) No waiver of any breach of this Agreement shall be held to be a waiver
of any other or subsequent breach. All remedies afforded in this Agreement
shall be taken and construed as cumulative; this is, in addition to every
other remedy provided therein or by law. The failure of either party to
enforce at any time of the provisions of this Agreement, or to exercise any
option which is herein provided, or to require at any time performance by
the other party of any of the provisions hereof, shall in no way be
construed to be a waiver or create an estoppel from enforcement of such
provisions, nor in any way affect the validity of this Agreement or any
part thereof, or the right of either party to thereafter enforce each and
every such provision, or to seek relief as a result of the prior breach.
(J) The covenants, warranties and representations herein contained shall
survive the closing of the transaction contemplated hereby.
(K) This Agreement contains the entire understanding of the parties and
supersedes all previous verbal and written agreements; there are no other
agreements, representations or warranties not set forth herein.
The undersigned Buyer expressly acknowledges fully reading, understanding and
receiving a true copy of this document. THIS IS A LEGALLY BINDING AND FULLY
ENFORCEABLE DOCUMENT. A facsimile copy of this document and any signature shall
be construed as original.
DATED AND RECEIVED this 25th day of January, 2002
Witnesses By: BUYER:
CHEFS INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- Xxxxxxx X. Xxxxxxx, President
Address: Post Xxxxxx Xxx 0000
Xxxxx Xxxxxxxx Xxxxx, XX 00000
Tel:
SELLER'S ACCEPTANCE
The undersigned accepts the foregoing offer and agrees to sell the above
described Business and Assets on the terms and conditions of the foregoing
Agreement. Seller acknowledges receipt of a true copy of this document.
DATED AND ACCEPTED on the 25th day of January, 2002.
CAUSEWAY FOODS, INC.
/s/ Xxxxxxx X. [ILLEGIBLE] By: /s/ Xxxxxx X. Xxxx
--WITNESS-- Xxxxxx X. Xxxx, President
(CORPORATE SEAL) Address: 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Tel:
MR. MANATEE'S FRANCHISE CORPORATION
By: /s/ Xxxxxx X. Xxxx
Its:
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Tel:
JOINDER
The undersigned, XXXXXX X. XXXX, hereby joins in this Agreement to indicate
assent and agreement to be bound by the non-competition covenants contained
herein, and hereby agrees to individually execute the attached Non-Competition
Agreement
/s/ Xxxxxx X. Xxxx
----------------------------------------
Xxxxxx X. Xxxx
SCHEDULE "A"
ASSETS INCLUDED IN SALE
All items, equipment, furniture, and personal property located at 00 Xxxxx
Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx, as more particularly set forth on the
2001 Florida Tangible Personal Property Tax Return, including, but without
limitation:
Interior Signs Shelving
Miscellaneous Lighting Miscellaneous Furniture
Security System Cooler Walk-In
6 Paddle Fans Restaurant Equipment
Miscellaneous Wall Accents Air Conditioner
2 two-drawer File Cabinets Cleveland Steamer
4 Booster Seats Sign
Miscellaneous Decorations Cash Register
Decor - Frame Computer Terminal
Miscellaneous Decor Fixtures Leasehold Improvements
4 50 lb. Deep Fryers Miscellaneous Equipment
2 Stainless Hood Systems Computers
Hand Sink with Cabinet Telephone System
3 ss. Work Tables Furniture & Fixtures
6 Burner Range Picture
Fire System Kitchen Equipment
Galvanized Hood System Restaurant Equipment
Fire Extinguishers Stereo
Miscellaneous CL Equipment Xxxxxx
XX Miscellaneous Equipment Table
SM Decor Equipment Equipment 10 Yr Life
Miscellaneous Decor Equipment Beepers
MC Decor Equipment XXX Coffee Machine
Lighting Equipment Supplies
SM Decor Fixtures Table
Electrical System Music Equipment
MC Installation Computer Upgrade
MC Installation JW Prep Table
Misc Decor Prep Station and Shelving
Restaurant Equipment Supply Cooler
Miscellaneous Restaurant Equipment
Kitchen Equipment
Copy Machine
Convection Oven
SCHEDULE "B"
Beginning at the Southwest corner Of Government Xxx 0,Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 40 East, Indian River County, Florida, run N. 0 degrees 23'43" W.
along the West boundary of said Section 31, a distance of 485.66 feet to an
intersection with a non-tangent curve, said curve being the North right of way
line of State Road 502, a radial bearing to said curve bears S. 19 degrees
25'57" E. thence run N. 76 degrees 06'34" E. 198.05 feet to a point of tangency
along the chord to said non-tangent curve having a radius of 1025.37 feet, a
central angle of 11 degrees 05'02", an arc of 198.36 feet and being concave to
the South; then continue N. 81 degrees 39'05" E. along the said right of way of
State Road 502, a distance of 136.47 feet to a point of curvature; thence
continue to a point on a curve of said right of way of State Road 502, N. 67
degrees 59'26" E. 508.41 feet on the chord of a 1076.28 foot radius curve having
a central angle of 27 degrees 19'25", an arc distance of 513.26 feet and being
concave to the Northwest, said point on a curve being the true point of
beginning; thence N. 30 degrees 47/31" W. 127.49 feet to a point on the seawall
of the Yacht basin as the same now exists; thence continue on said seawall N. 59
degrees, 38'49" E. 48.48 feet to an angle point; thence continue on said seawall
N. 44 degrees 27'49" E. 196.65 feet; thence S. 56 degrees 20'46" E. 122.57 feet,
to an intersection with a non-tangent curve on the North right xx xxx xx Xxxxx
Xxxx 000; thence run 300.00 feet Southwesterly on the arc of a 1076.28 foot
radius curve Concave to the Northwest, with a central angle of 15 degrees
58'14", and having a 299.03 foot chord bearing S. 46 degrees 20'33" W. to the
true point Of beginning.
SUBJECT TO that certain fifteen (15) foot Easement recorded in Official Records
Book 581, Page 177, public records of Indian River County, Florida. As modified
by Quit-Claim Deed recorded in Official Records Book 1056, page 2920, public
records of Indian River County, Florida.
