AGREEMENT OF SALE
BETWEEN
GOURMET ASSOCIATES,
A NEW JERSEY LIMITED PARTNERSHIP,
SELLER
AND
CHEFS INTERNATIONAL, INC.
A DELAWARE CORPORATION,
PURCHASER
DATED: AUGUST , 1998
FOR
0 XXXXX XXXX XXXXXXXXX
XXXX XXXXX, XXXXXXX
PREPARED BY: XXXXXX X. DEL XXXXXXX, ESQ.
XXXXXXX & XXXXXX, P.C.
000 XXXXXXX XXXXXX
XXXXXXXXXX, XXX XXXXXX 00000-0000
TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT............................................... 1
ARTICLE 1 SALE OF PROPERTY; PURCHASE PRICE;
PAYMENT TERMS; ESCROW............................. 1
1.1 Sale of Property......................... 1
1.2 Price.................................... 1
1.3 Payment Terms............................ 1
1.4 Escrow................................... 2
1.5 Federal Tax Identification Number........ 4
1.6 Continued Representation of Seller....... 4
ARTICLE 2 TITLE TO PROPERTY; DEFECTS........................ 5
2.1 Title Insurance.......................... 5
2.2 Right to Pay Off Monetary
Encumbrances............................. 6
2.3 Affidavits............................... 6
ARTICLE 3 CONTINGENCIES..................................... 7
3.1 Bankruptcy Court Approval................ 7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER;
LIMITATION ON SELLER'S REPRESENTATIONS AND
WARRANTIES........................................ 7
4.1 Representations and Warranties........... 7
4.2 Survival................................. 9
4.3 Limitation on Seller's
Representations, Warranties,
Covenants and Agreements................. 9
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER....... 9
5.1 Purchaser's Representations and
Warranties............................... 9
5.2 Survival of Purchaser's
Representations and Warranties........... 9
ARTICLE 6 DAMAGE, DESTRUCTION AND CONDEMNATION.............. 10
6.1 Risk of Loss............................. 10
6.2 Condemnation............................. 10
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TABLE OF CONTENTS
(Continued)
PAGE
ARTICLE 7 CLOSING DATE AND DELIVERY OF DOCUMENTS, ETC....... 11
7.1 Closing Date............................. 11
7.2 Closing Costs............................ 11
7.3 Deliveries by Seller..................... 11
7.4 Deliveries by Purchaser.................. 12
ARTICLE 8 CLOSING ADJUSTMENTS............................... 13
8.1 Adjustment Time.......................... 13
8.2 Description of Items to be Adjusted...... 13
8.3 Bulk Transfers........................... 13
ARTICLE 9 DEFAULT; REMEDIES................................. 13
9.1 Defaults; Remedies....................... 13
ARTICLE 10 MISCELLANEOUS............................................ 14
10.1 Brokerage Commission and Finder's Fee.... 14
10.2 Notices.................................. 14
10.3 Attorney's Fees.......................... 15
10.4 Assignment............................... 15
10.5 Successors and Assigns................... 16
10.6 Governing Law............................ 16
10.7 Incorporation of Prior Agreements........ 16
10.8 Modification of Agreement................ 16
10.9 Further Assurances....................... 16
10.10 No Recordation........................... 16
10.11 Interpretation........................... 16
10.12 Counterparts............................. 17
10.13 Acceptance of Deed....................... 17
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AGREEMENT OF SALE
AGREEMENT OF SALE (this "Agreement"), dated August __, 1998, between
GOURMET ASSOCIATES, a New Jersey limited partnership ("Seller") and CHEFS
INTERNATIONAL, INC., a Delaware corporation ("Purchaser" or "Buyer").
PRELIMINARY STATEMENT
Seller is the owner of land lying and the building and improvements
thereon located in Indian River County, Florida, more particularly described on
Exhibit A (the "Property") annexed hereto.
Seller desires to sell and convey to Purchaser, and Purchaser desires
to purchase and acquire from Seller, the Property, subject, nevertheless, to the
contingencies set forth herein.
NOW, THEREFORE, for and in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
SALE OF PROPERTY; PURCHASE PRICE; PAYMENT TERMS; ESCROW
1.1 SALE OF PROPERTY. Seller hereby agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase and acquire from Seller, the
Property upon the terms and conditions herein contained.
1.2 PRICE. The purchase price for the Property shall be
$1,100,000.00 (the "Price").
1.3 PAYMENT TERMS. The Price shall be payable as follows:
(a) upon execution of this Agreement by Purchaser, One Hundred Thousand
Dollars ($100,000.00) (the "Deposit") shall be paid by Purchaser to
Xxxxxxx & Xxxxxx, P.C., 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000-0000 (the "Escrow Agent") by a certified check or wired funds to
be held pursuant to the provisions of SECTION 1.4 hereof;
(b) on the Closing Date, the balance of the Price (plus or minus any
net closing adjustments provided herein), by attorney trust account
check.
1.4 ESCROW.
(a) The Deposit shall be held in escrow in an interest bearing account
by Escrow Agent until delivered as herein provided. Any interest earned
on the Deposit shall be paid to whichever party is entitled thereto.
Such interest shall not be credited against the Aggregate Price. The
Deposit shall be held and disbursed by Escrow Agent in the following
manner:
(i) to Seller at the Closing Date upon consummation of the
closing; or
(ii) to Seller upon receipt of written demand therefor,
stating that Purchaser has defaulted in the performance of
Purchaser's obligations under this Agreement and the facts and
circumstances underlying such default; provided, however, that
Escrow Agent shall not honor such demand until at least five
(5) days after it has sent a copy of such demand to Purchaser,
nor thereafter if Escrow Agent shall have received written
notice of objection from Purchaser in accordance with the
provisions of clause (b) of this SECTION 1.4; or
(iii) to Purchaser upon receipt of written demand therefor,
stating that either (x) this Agreement has been terminated and
certifying the basis for such termination, or (y) Seller has
defaulted in performance of Seller's obligations and the facts
and circumstances underlying such default or that Purchaser is
otherwise entitled to the Deposit under the provisions of this
Agreement; provided, however, that Escrow Agent shall not
honor such demand until at least five (5) days after it has
sent a copy of such demand to Seller, nor thereafter if Escrow
Agent shall have received written notice of objection from
Seller in accordance with the provisions of clause (b) of this
SECTION 1.4.
(b) Upon receipt of written demand for the Deposit by Purchaser or
Seller pursuant to clause (ii) or (iii) of SECTION 1.4(A), Escrow Agent
shall promptly send a copy thereof to the other party. The other party
shall have the right to object to the delivery of the Deposit by
sending written notice of such objection to Escrow
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Agent within five (5) days after Escrow Agent sends a copy of the
written demand to the objecting party but not thereafter. Such notice
shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of such notice, Escrow Agent shall promptly send a copy
thereof to the party who made the written demand.
(c) In the event of any dispute between the parties, Escrow Agent, at
its option, may disregard all instructions received and may hold the
Deposit until the dispute is mutually resolved and Escrow Agent is
advised of this fact in writing by both Seller and Purchaser, or Escrow
Agent is otherwise instructed by a final judgment of a court of
competent jurisdiction.
(d) In the event Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive conflicting instructions, claims or
demands from the parties hereto, or instructions which conflict with
any of the provisions of this Agreement, Escrow Agent shall be entitled
(but not obligated) to refrain from taking any action other than to
keep safely the Deposit until Escrow Agent shall be instructed
otherwise in writing signed by both Seller and Purchaser, or by final
judgment of a court of competent jurisdiction.
(e) Escrow Agent may rely upon, and shall be protected in acting or
refraining from acting upon, any written notice, instruction or request
furnished to it hereunder and believed by it to be genuine and to have
been signed or presented by the proper party or parties, provided that
any modification of this Agreement shall be signed by Escrow Agent,
Purchaser and Seller.
(f) Seller and Purchaser shall jointly and severally hold Escrow Agent
harmless against any loss, damage, liability or expense incurred by
Escrow Agent not caused by its willful misconduct or gross negligence,
arising out of or in connection with its entering into this Agreement
and the carrying out of its duties hereunder, including the costs and
expenses of defending itself against any claim of liability or
participating in any legal proceeding. Escrow Agent may consult with
counsel of its choice, and shall have full and complete authorization
and protection for any action taken or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel.
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(g) Escrow Agent may resign at will and be discharged from its duties
or obligations hereunder by giving notice in writing of such
resignation specifying a date when such resignation shall take effect;
provided, however, that prior to such resignation a substitute escrow
agent is approved in writing by Seller and Purchaser, which approval
shall not be unreasonably withheld or delayed. After such resignation,
Escrow Agent shall have no further duties or liability hereunder.
(h) Purchaser and Seller, together, shall have the right to terminate
the appointment of Escrow Agent hereunder by giving to it notice of
such termination, specifying the date upon which such termination shall
take effect and designating a replacement escrow agent, who shall sign
a counterpart of this Agreement. Upon demand of such successor escrow
agent, the Deposit shall be turned over and delivered to such successor
escrow agent, who shall thereupon be bound by all of the provisions
hereof.
(i) Seller and Purchaser shall be jointly and severally responsible for
the reimbursement to Escrow Agent of all expenses, disbursements and
advances (including reasonable attorneys' fees) incurred or made by
Escrow Agent in connection with the carrying out of its duties
hereunder.
(j) Escrow Agent's agreements and obligations hereunder shall terminate
and Escrow Agent shall be discharged from further duties and
obligations hereunder upon final payment of the Deposit in accordance
with the terms of this Agreement.
1.5 FEDERAL TAX IDENTIFICATION NUMBER. Purchaser represents that its
federal identification number is 00-0000000. Seller agrees that its tax
identification number shall be used by the Escrow Agent when the escrow account
is opened. In the event the interest on the Deposit is paid to Purchaser, the
Escrow Agent is authorized and directed to file a revised Form 1099 identifying
Purchaser as the recipient thereof.
1.6 CONTINUED REPRESENTATION OF SELLER.Notwithstanding that Escrow
Agent is acting as an escrow agent for the Deposit, and, further,
notwithstanding any subsequent dispute which arises between the parties related
to this Agreement or otherwise, Purchaser agrees that Escrow Agent may continue
to represent Seller as legal counsel in connection with this Agreement and the
transactions contemplated hereby and/or with respect to any dispute or
litigation concerning the same.
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ARTICLE 2
TITLE TO PROPERTY; DEFECTS
2.1 TITLE INSURANCE.
(a) Within twenty (20) days after the Date of this Agreement, Buyer
shall obtain, at Buyer's expense, with a title insurance commitment (the
"Commitment") committing a title insurance company to insure Buyer's title to
the Subject Property, together with copies of all documents listed in the
Commitment as exceptions or matters required to be corrected prior to Closing.
The Commitment and resulting title insurance policy (the "Policy") shall be in
the amount of the Purchase Price. All costs of the Commitment and Policy shall
be paid by Buyer. The Commitment and Policy shall be in an ALTA standard form as
currently authorized and approved by the Insurance Commissioner of the State of
Florida. The Policy shall insure marketable title. The Commitment shall be
delivered to Seller's attorney, unless Seller directs otherwise. Buyer's
attorney shall have ten (10) business days before Closing to give written notice
to the Seller of any objections by the Buyer to the title. Failure of Buyer's
attorney to deliver such written notice of disapproval to Seller within the said
time period shall be conclusive evidence that the Buyer has approved each and
every matter contained in the Commitment and that Buyer will accept title in
that condition subject to the other terms hereof relating to the status of such
title at Closing. The Buyer shall not be required to make objection to the
existence of any mortgage lien, materialmen or mechanic's lien, assessment lien
or any other lien encumbering all or any part of the Subject Property, all of
which are hereby deemed to be title objections. After due notice, Seller shall
have a reasonable time, not to exceed fifteen (15) days, to cure any title
defect and, if necessary, the Closing shall be delayed for that period. If
Seller fails to cure any title defect as to which due notice is given, Buyer
shall have the option to terminate this Agreement and to notify Seller that
Buyer will not proceed with the purchase, whereupon this Agreement shall
terminate and the Buyer shall be entitled to the return of the Xxxxxxx Money
deposited with the Escrow Agent. In the alternative, Buyer shall have the right
to accept the title in its then existing condition and proceed to Closing as
otherwise provided herein. Seller agrees to use its best efforts, in good faith
to cure all title defects.
(b) Within fifteen (15) days prior to the date of Closing, Buyer shall
deliver to Seller's attorney a written endorsement (the"Endorsement") to the
Commitment. The Endorsement shall revise the effective date of the Commitment to
a date not earlier than fifteen (15) days prior to the date of Closing. If the
Endorsement shows any new exceptions to title, Buyer shall have until Closing to
object thereto and in the event of objection, the
5
preceding terms of this Section 2.1 shall apply. The commitment must be endorsed
at Closing to provide that the Policy will insure against adverse matters
arising between the effective date of the Commitment and the recording of the
deed given to Buyer.
2.2 RIGHT TO PAY OFF MONETARY ENCUMBRANCES. Seller shall have the right
to pay off any monetary encumbrances against the Properties on the Closing
Dates, as hereinafter defined, out of the cash then payable provided recordable
instruments of release or discharge of such encumbrances in form and substance
reasonably satisfactory to Purchaser's counsel are then delivered to Purchaser.
2.3 AFFIDAVITS. At Closing, Seller shall provide Buyer with an
Affidavit of No Lien and such additional documentation as is required in such
form as is necessary to enable the Title Insurance Company issuing said
Commitment to remove the mechanics lien and parties in possession exceptions
thereto, which affidavit shall (i) run to the benefit of Buyer and said Title
Insurance Company, (ii) be in form acceptable to Buyer and the Title Insurance
Company and (iii) contain without limitation the following information:
(a) That there are no outstanding unrecorded contracts for sale,
option, lease or other arrangement with respect to the Subject Property
to any person other than Buyer.
(b) That the Subject Property is being conveyed unencumbered except for
the Permitted Exceptions.
(c) That no construction or repairs have been made by Seller nor any
work done to or on the Subject Property by Seller which have not been
fully paid for, nor any contract entered into nor anything done the
consequence of which would result in a lien or a claim of lien to be
made against the Subject Property pursuant to Chapter 713, Florida
Statutes or otherwise.
(d) That there are no parties in possession of the Subject Property
being conveyed other than Seller or Buyer.
(e) That there are no filings in the office of the Clerk of the Circuit
Court of Indian River County, Florida, nor in the office of the
Secretary of State, State of Florida, which indicate a lien or security
interest in, on or under the Subject Property which will not be
released or terminated at Closing.
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ARTICLE 3
CONTINGENCIES
3.1. BANKRUPTCY COURT APPROVAL.This Agreement is contingent upon Seller
obtaining approval from the United States Bankruptcy Court, District of New
Jersey as part of the existing case titled "In re Xxxxxx X. Xxxxxxx, Debtor"
(the "Xxxxxxx Estate") currently pending as a Chapter 11 proceeding in the
United States Bankruptcy Court, District of New Jersey, Case No. 95-35502 (KCF).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER;
LIMITATION ON SELLER'S REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES. As an inducement to Purchaser to
enter into this Agreement, Seller represents and warrants to Purchaser that:
(a) Seller is a limited partnership duly organized and validly existing
under the laws of the State of New Jersey and authorized to transact
business in the State of Florida, has the power and authority to enter
into this Agreement and to consummate the transactions herein
contemplated and the execution and delivery hereof, and the performance
by Seller of its obligations hereunder will not violate or constitute
an event of default under the terms or provisions of any agreement,
document or other instrument to which Seller is a party or by which it
or the Property is bound;
(b) the execution and delivery of this Agreement and the consummation
of the transaction contemplated hereby have been duly authorized by the
general partner of Seller and this Agreement constitutes a valid and
binding obligation of Seller enforceable in accordance with its terms;
(c) the execution, delivery and performance of this Agreement by Seller
and the consummation of the transactions contemplated hereby in the
manner contemplated herein will not violate any provision of law,
statute, rule or regulation to which Seller or the Property is subject,
or violate any judgment, order, writ, injunction or decree of any court
applicable to Seller or the Property;
7
(d) Seller is not a "foreign person" under the Foreign Investment in
Real Property Tax Act of 1980 ("FIRPTA") and upon consummation of the
transaction contemplated hereby, Purchaser will not be required to
withhold from the Price any withholding tax;
(e) there are no leases or tenancies which affect the Property except
Purchaser's tenancy;
(f) That the Seller has good, insurable and marketable title to the
Property, free and clear of all liens, encumbrances and restrictive
covenants, except as otherwise set forth herein;
(g) That there are no special assessments against or relating to the
Property;
(h) That Seller has not entered into any outstanding agreements of
sale, options or other rights of third parties to acquire an interest
in the Property;
(i) That there are no encroachments upon the Property except as
disclosed in Buyer's Commitment;
(j) That Seller has full power to sell, convey, transfer and assign the
Property on behalf of all parties having an interest therein;
(k) That there is access for ingress and egress to and from the
Property to the public roads, streets, highways and avenues, in front
of or adjoining all or any part of the Property;
(l) That all utilities, including but not limited to, sewer, water,
telephone and electricity, are available to the perimeter of the
Property in such quantities and capacities as to permit operation of
the Property;
(m) That the Property has never been used as a garbage dump, landfill,
or hazardous waste dump and is not in violation of any federal or state
environmental law or regulation, including, but not limited to 42
U.S.C. ss.9601 ET Seq. (CERCLA) and 42 U.S.C. ss.6901 ET seq. (RCRA);
(n) That there are no pending or threatened condemnation or similar
proceedings affecting the Property; Seller shall notify Buyer of any
changes affecting this representation prior to the Closing.
8
4.2 SURVIVAL. The representations or warranties set forth in SECTION
4.1 shall not survive the closing of title.
4.3 LIMITATION ON SELLER'S REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, NEITHER SELLER, NOR ANY AGENT OR REPRESENTATIVE OF
SELLER HAS MADE, AND SELLER IS NOT LIABLE OR RESPONSIBLE FOR OR BOUND IN ANY
MANNER BY, ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, COVENANTS,
AGREEMENTS, OBLIGATIONS, GUARANTEES, STATEMENTS, INFORMATION OR INDUCEMENTS
PERTAINING TO THE PROPERTY OR ANY PART THEREOF, THE TITLE OR PHYSICAL CONDITION
THEREOF, THE QUANTITY, FITNESS AND QUALITY THEREOF, THE VALUE AND PROFITABILITY
THEREOF, THE USES WHICH CAN BE MADE THEREOF OR ANY OTHER MATTER OR THING
WHATSOEVER WITH RESPECT THERETO. PURCHASER ACKNOWLEDGES, AGREES, REPRESENTS AND
WARRANTS THAT IT HAS HAD SUCH ACCESS TO THE PROPERTY AS PURCHASER HAS CONSIDERED
NECESSARY, PRUDENT, APPROPRIATE OR DESIRABLE FOR THE PURPOSES OF THIS
TRANSACTION AND, WITHOUT LIMITING THE FOREGOING, THAT PURCHASER AND ITS AGENTS
AND REPRESENTATIVES HAVE INDEPENDENTLY INSPECTED, EXAMINED, INVESTIGATED,
ANALYZED AND APPRAISED ALL OF SAME INCLUDING THE CONDITION, ENVIRONMENTAL
CONDITION, VALUE AND PROFITABILITY THEREOF. WITHOUT LIMITING THE FOREGOING,
PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT LIABLE OR RESPONSIBLE FOR OR BOUND IN ANY MANNER BY
(AND PURCHASER HAS NOT RELIED UPON) ANY VERBAL OR WRITTEN OR SUPPLIED
REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS, OBLIGATIONS, GUARANTEES,
STATEMENTS, INFORMATION OR INDUCEMENTS PERTAINING TO THE PROPERTY OR ANY PART
THEREOF. WITHOUT LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES AND AGREES THAT
PURCHASER IS PURCHASING THE PROPERTY "AS IS" AT THE DATE HEREOF.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
5.1 PURCHASER'S REPRESENTATIONS AND WARRANTIES. As an inducement to
Seller to enter into this Agreement, Purchaser represents and warrants that:
(a) Purchaser is a duly organized and validly existing under the laws
of the State of Delaware, is in good standing, and has the power and
authority to enter into this Agreement, is authorized to do business in
Florida and to consummate the transactions herein contemplated, and the
execution and delivery hereof and the performance by Purchaser of its
obligations hereunder will not violate or constitute an event of
default under the terms or provisions of any agreement, document or
other instrument to which Purchaser is a party or by which it is bound;
9
(b) the execution, delivery and performance of this Agreement by
Purchaser and the consummation of the transactions contemplated hereby
in the manner contemplated herein will not violate any provisions of
any legal requirement to which Purchaser is subject, or violate any
judgment, order, writ, injunction or decree of any court applicable to
Purchaser; and
(c) no consent, authorization, license, permit, registration or
approval of, or exemption or other action by any governmental or public
body, commission or authority is required in connection with the
execution and delivery by Purchaser of this Agreement except as
otherwise stated herein.
(d) Purchaser shall not sell or lease the Property for a period of six
months after the closing of the sale of the Xxxxxxx Estate's 1,766,557
shares of Purchaser's common stock but not to exceed one year after
Closing.
5.2 SURVIVAL OF PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
representations, warranties and covenants set forth in SECTION 5.1 (a) through
(c) shall not survive the closing.
ARTICLE 6
DAMAGE, DESTRUCTION AND CONDEMNATION
6.1 RISK OF LOSS. In the event of loss or damage to the Property prior
to Closing by either fire or other casualty, the Buyer, at its option, may
rescind its obligations to close on this Agreement and receive an immediate
refund of the Deposit or, Buyer may elect to close on this Agreement and take
title to the Property together with whatever insurance proceeds accrue by virtue
of said loss or damage.
6.2 CONDEMNATION. In the event any proceedings or negotiations are
instituted which do or may result in a taking by condemnation or eminent domain
of the Property or any portion thereof, Seller shall promptly notify Purchaser
thereof, describing the nature and extent thereof. In the event of such
condemnation or eminent domain proceedings, Purchaser shall have the right on
notice to Seller to terminate this Agreement, whereupon, except as expressly
provided herein, neither party shall have and further rights hereunder. If this
Agreement is not so terminated, Purchaser shall close title on the Closing Date
and shall pay the entire Price, but Purchaser shall be entitled to a credit
against
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the Price for the amount of any condemnation award received by Seller on account
of such proceedings. If the award has not been paid to Seller on the Closing
Date, Seller shall then assign to Purchaser all of Seller's right, title and
interest in and to all awards payable by reason thereof.
ARTICLE 7
CLOSING DATE AND DELIVERY OF DOCUMENTS, ETC.
7.1 CLOSING DATE. The closing of the transaction contemplated hereby
(the "Closing") shall occur on or before September 30, 1998 at 4:00 p.m. local
time at the offices of Xxxxxxx x Xxxxxx, P.C., or at such other time and place
as the parties shall mutually agree (the "Closing Date"). The parties agree that
time shall be of the essence with respect to the Closing Date. In the event the
Closing does not occur by the Closing Date, Purchaser shall have the right to
cancel this Agreement and receive a return of the Deposit.
7.2 CLOSING COSTS.
(a) SELLER: Seller will pay all costs of (i) documentary stamps to be
affixed to the Warranty Deed; (ii) preparation and recordation of any
instruments necessary to correct title; and (iii) Seller's attorney's
fee's.
(b) BUYER: Buyer will pay all costs of (i) recording Warranty Deed;
(ii) documentary stamps, intangible tax and recording fee on any
purchase money note and mortgage; (iii) the Title Insurance premium
based on the Price; and (iv) Buyer's attorney's fees.
7.3 DELIVERIES BY SELLER. At the time of Closing, the Sellers shall
execute and delivered or cause to be delivered to Buyer executed originals of
the following documents:
(a) Statutory General Warranty Deed.
(b) Affidavit of Lien as required by Article 5.02 above.
(c) FIRPTA Affidavit in compliance with the Foreign Investment in Real
Property tax Act of 1980, as amended ("FIRPTA").
(d) Such other documents as may be required to be executed and
delivered to complete the transaction contemplated hereunder.
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(e) Originals of all leases (and any amendments thereto) and all
records and correspondence relating thereto covering any portion of the
Property, any security deposits relating thereto, and a duly executed
and acknowledged assignment of leases in the form attached hereto as
Exhibit C.
(f) An assignment of all subsisting assignable guaranties and
warranties issued in connection with the construction, improvement,
alteration and repair of the buildings and improvements located on the
Property, and the purchase and repairs of the personal property located
thereon, together with the original of each such guaranty and warranty.
(g) Any and all municipal, county and state permits or licenses
necessary for the use or occupancy of the buildings located on the
Property, including without limitation, a final certificate of
occupancy or its equivalent.
Seller shall deliver copies of all documents to be delivered at Closing
to Buyer's attorney not less than seven (7) days prior to Closing.
In the event any mortgage or lien encumbers the Property, Seller shall
provide to Buyer, prior to Closing, an estoppel certificate and/or payoff letter
from such mortgagee or lien holder stating the present unpaid balance of the
lien, including accrued interest to the proposed date of Closing, and the amount
required to satisfy and release the lien as the proposed Closing date.
7.4 DELIVERIES BY PURCHASER. At the time of Closing, Buyer shall pay
the Price to Seller and shall execute and deliver or cause to be delivered to
Seller, executed originals of any and all documents as may be required to be
executed and delivered to complete the transaction contemplated hereunder.
Buyer shall deliver copies of all documents to be delivered at Closing
to Seller's attorney not less than seven (7) days prior to Closing.
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ARTICLE 8
CLOSING ADJUSTMENTS
8.1 ADJUSTMENT TIME. All apportionments and adjustments shall be made
as of 12:00 midnight on the day immediately preceding the Closing Date for the
applicable property (all such apportionments and adjustments being herein called
the "Closing Adjustment").
8.2 DESCRIPTION OF ITEMS TO BE ADJUSTED. The following apportionments
and adjustments shall be made:
(a) Real estate taxes payable in connection with the Property based
upon the calendar year. Real estate taxes shall be prorated on the basis of the
fiscal year for which the Property has last been assessed. If the Closing Date
shall occur before the tax rate is fixed, the apportionment of taxes shall be
upon the basis of the tax rate for the next preceding year applied to the latest
assessed evaluation. The parties agree that upon receipt of the actual tax xxxx,
real property taxes shall be reprorated and readjusted within ten (10) business
days after a written request from the party seeking readjustment; and
(b) Certified, confirmed and ratified special assessment liens as of
the date of Closing shall be paid by Seller. Pending liens as of the date of
Closing shall be assumed by Buyer; provided, however, that where the
improvements have been substantially completed as of the date of Closing, such
pending liens shall be deemed certified, confirmed and ratified and Seller, at
Closing, shall be charged an amount equal to the amount of such assessment.
8.3 BULK TRANSFERS. In that event that this transaction is affected by
Chapter 676, FL. STAT. Bulk Transfers, or any similar legislation shall effect
this transaction, Seller shall comply with all applicable provisions thereon and
shall indemnify, defend and hold Buyer harmless from and against any and all
loss or damage suffered by Buyer as a result of the failure of Seller to comply
therewith.
ARTICLE 9
DEFAULT; REMEDIES
9.1 DEFAULTS; REMEDIES. In the event this transaction does not close
solely as a consequence of the default of Purchaser, Seller shall have the right
to retain the Deposit as liquidated damages. In the event this transaction does
not close solely as a consequence of a default by Seller, Purchaser shall have
the right
13
to terminate this Agreement and receive a return of the Deposit. Purchaser
acknowledges and agrees that the foregoing remedy shall be its sole and
exclusive remedy. Under no circumstances shall Purchaser be entitled to any
damages, costs or expenses (including, but not limited to, consequential
damages) in the event of a default by Seller.
ARTICLE 10
MISCELLANEOUS
10.1 BROKERAGE COMMISSION AND FINDER'S FEE. The parties agree that they
have dealt with each other and not through any real estate broker, investment
banker, person, firm or entity who would by reason of such dealings be able to
claim a real estate brokerage, business opportunity brokerage or finder's fee as
the procuring cause of this transaction. Each of the parties agrees to indemnify
the other and hold the other harmless of and from any and all loss, cost,
damage, injury or expense arising out of, or in any way related to, assertions,
by any other person, firm or entity, of a claim to real estate brokerage,
business opportunity brokerage or finder's fee based on alleged contacts between
the claiming party and the indemnifying party which have resulted in allegedly
providing the claiming party the right to claim such commission or finder's fee.
The provisions of this SECTION 10.1 shall survive the closing of title.
10.2 NOTICES. All notices or other communications required or permitted
to be given hereunder shall be given in writing and delivered either by (a)
certified mail, postage prepaid, (b) a reputable messenger service or a
nationally recognized priority delivery service such as Federal Express, or
facsimile or other telecopy transmission (followed by a hard copy sent as
provided in clause (b) above), addressed as follows:
To Seller:
Gourmet Associates
c/o Druker, Rahl & Fein
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Chapter 11 Trustee
Fax # (000) 000-0000
14
copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Fax # (000) 000-0000
To Purchaser:
Chefs International, Inc.
00 Xxxxxxxx
Xxxxx Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, President
Fax # (000) 000-0000
copy to:
Xxxxx X. Xxxxxx, Esq.
Tolins & Lowenfels, P.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax # (000) 000-0000
The foregoing addresses may be changed or supplemented by written notice given
as above provided. Any such notice sent by mail shall be deemed to have been
received by the addressee on the third business day after posting in the United
States mail, or, if transmitted by messenger or a priority delivery service, on
the first business day after transmittal, or, if transmitted by facsimile, upon
receipt, provided receipt occurs before 5:00 P.M. on a business day in the
jurisdiction of the recipient. Counsel for a party may give notice to the other
party with the same effect as if given by a party.
10.3 ATTORNEY'S FEES. In the event any action or proceeding is
commenced to obtain a declaration of rights hereunder, to enforce any provision
hereof, or to seek rescission of this Agreement for default contemplated herein,
whether legal or equitable, the prevailing party in such action shall be
entitled to recover its reasonable attorney's fees in addition to all other
relief to which it may be entitled therein. All indemnities provided for herein
shall include, but without limitation, the obligation to pay costs of defense in
the form of court costs and attorneys' fees.
10.4 ASSIGNMENT. Purchaser may not assign its interest under this
Agreement to any person or entity without the prior written consent of Seller
which shall not be unreasonably withheld provided, however, that Purchaser may
assign its interest under
15
this Agreement to an entity owned or controlled by it or owning or controlling
it. Purchaser agrees to notify Seller in writing of any such assignment at least
fourteen (14) days prior to the Closing Date.
10.5 SUCCESSORS AND ASSIGNS. Subject to the provisions of SECTION 10.4,
the terms, covenants and conditions herein contained shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto.
10.6 GOVERNING LAW. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New Jersey.
10.7 INCORPORATION OF PRIOR AGREEMENTS. This Agreement contains the
entire understanding of the parties hereto with respect to the subject matter
hereof, and no prior or other written or oral agreement or undertaking
pertaining to any such matter shall be effective for any purpose.
10.8 MODIFICATION OF AGREEMENT.Agreement may not be amended or
modified, nor may any obligation hereunder be waived orally, and no such
amendment, modification or waiver shall be effective for any purpose unless it
is in writing, signed by the party against whom enforcement thereof is sought.
10.9 FURTHER ASSURANCES. After the Closing Date Seller shall execute,
acknowledge and deliver, for no further consideration, all such assignments,
transfers, documents as Purchaser may reasonably request to vest title in
Purchaser.
10.10 NO RECORDATION. Neither this Agreement nor any memorandum thereof
shall be recorded by Purchaser and any such recording or attempt to record shall
be deemed to be a material breach hereof by Purchaser. Purchaser hereby waives
any right to file a LIS PENDENS or other form of attachment against the Property
in connection with this Agreement or the transactions contemplated hereby. To
the extent any such filing is made in violation of this provision, Purchaser
shall indemnify and hold Seller harmless from and against any damages incurred
by Seller in connection therewith.
10.11 INTERPRETATION. This Agreement shall be construed reasonably to
carry out its intent without presumption against or in favor of either party. If
any provision hereof shall be declared invalid by any court or in any
administrative proceedings, then the provisions of this Agreement shall be
construed in such manner so as to preserve the validity hereof and the substance
of the transaction herein contemplated to the extent possible. The captions and
paragraph headings are provided for purposes of
16
convenience of reference only and are not intended to limit, define the scope
of, or aid in interpretation of any of the provisions hereof.
10.12 COUNTERPARTS. This Agreement may be executed and delivered in
several counterparts, each of which, when so executed and delivered, shall
constitute an original, fully enforceable counterpart for all purposes.
10.13 ACCEPTANCE OF DEED. The acceptance of the deed to the Property by
Purchaser shall be deemed an acknowledgment by Purchaser that Seller has fully
complied with all of its obligations hereunder and that Seller is discharged
from all obligations hereunder, except for those obligations which expressly
survive the closing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
WITNESS: GOURMET ASSOCIATES
___________________________ By:_________________________________
Name:
Title
WITNESS: CHEFS INTERNATIONAL, INC.
___________________________ By: /s/ XXXXXXX XXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
ESCROW AGENT:
XXXXXXX & XXXXXX, P.C.
By:_________________________________
Name:
Title:
17
EXHIBIT A
LEGAL DESCRIPTION
All that certain tract or parcel of Land lying and being located in Indian River
County, State of Florida and more particularly described as follows:
PARCEL 1
Lots 1 and 2, Block 1, VERO ISLES SUBDIVISION, according to the plat thereof as
recorded in Plat Book 31 Page 18, Public Records of Indian River County,
Florida.
PARCEL 2
The Northeasterly one-half of Xxx 0, Xxxxx 0, XXXX XXXXX SUBDIVISION, according
to the plat thereof as recorded in Plat Book 3, Page 18, Public Records of
Indian River County, Florida, more particularly described as follows:
Beginning at the Northernmost corner of said Lot 3, run Southwesterly along the
Northwest boundary line of said Lot, a distance of 53.5 feet to a point; thence
run Southeasterly on a straight line to a point on the Southeast boundary line
of said Lot 3, which point is located 48.5 feet from the Easternmost corner of
said Lot; thence run Northeasterly a distance of 48.5 feet to said Easternmost
corner; thence run Northwesterly along the line dividing Lot 3 from Lot 2 of
said Subdivision, to the point of beginning. Said land lying and being in Indian
River County, Florida.
PARCEL 3
Beginning at the Northwesterly corner of Xxx 0, Xxxxx 0, XXXX XXXXX XXXXXXXXXXX,
as recorded in Plat Book 3, Page 18, Public Records of Indian River County,
Florida, said point of beginning being on the South right of way and lying 70
feet Southerly of, and radially from, the centerline of Xxxxx Xxxx 000 (Xxxxx
Xxxx Xxxxxxxxx), as shown on the State of Florida, State Road Department, Right
of Way map, State Section 8803-104, and also shown on said Plat of Vero Isles,
run thence South 20E24'00" East along the Westerly line of said Lot 1, a
distance of 20 feet to the Northeasterly corner of Lot 2 of said Vero Isles
Subdivision; thence run Southwesterly along the Northerly line of Lot 2 and East
half of Lot 3 of said
Vero Isles Subdivision on a curve being concave to the Southeast having a radius
of 1342.69 feet, a central angle of 7E29'20", an arc distance of 175.50 feet to
the mid-point of the North line of said Lot 3; thence run North 36E53'20" West
along the Northerly projection of the West line of the East half of said Lot 3,
a distance of 20 feet to a point on the southerly right of way of Xxxxx Xxxx 000
(Xxxxx Xxxx Xxxxxxxxx); thence run Northeasterly on said South right of way of
Xxxxx Xxxx 000 (Xxxxx Xxxx Xxxxxxxxx) along a curve being concave to the
Southeast having a radius of 1362.69 feet, a central angle of 7E29'20", an arc
distance of 178.11 feet to the Point of Beginning.
EXHIBIT B
PERMITTED EXCEPTIONS
1. Notice of Commencement recorded May 30, 1997, in Official Records Book
1154, Page 2619, of the Public Records of Indian River County, Florida.
2. Order by the Board of Adjustment for the City of Vero Beach, as
recorded October 15, 1996, in Official Records Book 1125, Page 777, of
the Public Records of Indian River County, Florida.
3. Order by the Board of Adjustment for the City of Vero Beach, as
recorded October 15, 1996, in Official Records Book 1125, Page 780, of
the Public Records of Indian River County, Florida.
4. Satisfaction of Mortgage recorded January 28, 1992, in Official Records
Book 922, Page 355, of the Public Records of Indian River County,
Florida.
5. Affidavit of Operators Using Trade Name, by Chef's International - Palm
Beach, Inc., recorded May 19, 1981, in Official Records Book 622, Page
2946, of the Public Records of Indian River County, Florida.
