EXHIBIT 2.7
ASSET SALE AND PURCHASE AGREEMENT
THIS ASSET SALE AND PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of this 26th day of September, 1997,
BY AND BETWEEN NEW YORK BAGEL ENTERPRISES, INC.,
a Kansas corporation,
hereinafter referred to as
"SELLER"
AND IL VICINO INTERNATIONAL, L.L.C.,
a Kansas limited liability company,
hereinafter referred to as
"BUYER"
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. PURPOSE. The purpose of this Agreement is to set forth the terms of a
sale and purchase of all of the assets of Seller relating to Seller's equipment,
leasehold improvements and real property lease that Seller recently acquired but
has never operated or utilized located at 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx (the "Premises"), which Premises are more particularly described in
that certain Lease dated April 18, 1995, as amended November 27, 1995, by and
between Franco, Inc., (the "Landlord"), and Expresso Real Estate Corporation
d/b/a Tuscany Premium Coffees (the "Lease"), a copy of such Lease, as amended,
is attached hereto as Exhibit "A."
2. ASSETS. Subject to the terms and conditions set forth herein, Seller
agrees to sell, and Buyer agrees to purchase, the certain equipment and
leasehold improvements as specifically set forth in Exhibit "B" attached hereto,
and Seller shall obtain and deliver to Buyer a Landlord Estoppel
Certificate/Consent to Assignment of Lease in the form of Exhibit "C" attached
hereto, at Seller's cost, related to Seller's assignment of the Lease to Buyer
and Buyer's assumption of Seller's obligations pursuant to the Lease
(collectively, the "Assets").
3. PURCHASE PRICE. The consideration which Seller agrees to accept, and
Buyer agrees to pay, for the Assets shall be (I) the delivery of a promissory
note in the principal amount of One Hundred Thirty-five Thousand Dollars
($135,000), the form of which promissory note is attached hereto as Exhibit "D"
(the "Promissory Note"), plus (II) the assumption by Buyer of the Assumed
Liabilities set forth in Paragraph 4 herein. All the above described
consideration is hereinafter referred to as the "Purchase Price."
4. ASSUMED LIABILITIES. At Closing, Buyer shall assume the certain
debts, liabilities and obligations of Seller, if any, as described in Exhibit
"E" attached hereto and made a part hereof and only those certain debts,
liabilities and obligations to the extent and only in the amount the same shall
be outstanding at Closing and listed in Exhibit "E" hereto. All of the debts,
liabilities and obligations set forth in Exhibit "E" are hereinafter referred to
collectively as the "Assumed Liabilities."
5. PURCHASE PRICE ALLOCATION. The Purchase Price shall be allocated as
set forth in Exhibit "F" hereto. The Assumed Liabilities, if any, shall be
allocated by Seller and Buyer based upon the individual debt, liability or
obligation as determined upon the date of Closing. Seller and Buyer acknowledge
that Exhibit "F" hereto is a proper allocation of the Purchase Price and of the
Assumed Liabilities and that Seller and Buyer each agree that they will not take
any position inconsistent with this allocation in preparing financial
statements, tax returns, reports to stockholders, reports to members or
governmental authorities or otherwise which relate to the transactions evidenced
by this Agreement. Seller and Buyer shall agree to the allocations required
under Section 1060 of the Internal Revenue Code of 1986, as amended, and Seller
and Buyer will each file Internal Revenue Service Form 8594 reflecting the final
agreed upon Purchase Price allocation.
6. BILLS OF SALE/ASSIGNMENTS. At the Closing, Seller and Buyer shall
execute an Assignment and Assumption Agreement relating to the Assets and the
Assumed Liabilities, the form of which is attached hereto as Exhibit "G."
7. REPRESENTATIONS AND WARRANTIES OF SELLER. As the basis upon which
this Agreement is made, Buyer hereby relies upon, and Seller hereby represents
and warrants to Buyer as of the date of this Agreement and as of the date of
Closing, as follows:
(a) ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Kansas.
(b) AUTHORIZATION. Prior to the Closing, Seller shall have duly approved
the execution, delivery and performance of this Agreement and the
transactions contemplated hereby. The execution and delivery of this
Agreement, the consummation of the transactions described herein, and
the fulfillment of and compliance with the terms and provisions hereof
have been duly authorized by Seller.
(c) TITLE TO PROPERTY. Seller has, or will have as of the date of
Closing, good and marketable title to the equipment and leasehold
improvements portion of the Assets, free and clear of all liens,
claims and encumbrances. SELLER MAKES NO WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE CONDITION OF THE ASSETS, AND SUCH ASSETS
ARE TRANSFERRED AND SOLD TO BUYER HEREBY AS IS, WHERE IS.
8. REPRESENTATIONS AND WARRANTIES OF BUYER. As the basis upon which this
Agreement is made, Seller hereby relies upon, and Buyer hereby represents and
warrants to Seller as of the date of this Agreement and as of the date of
Closing, as follows:
(a) ORGANIZATION. Buyer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Kansas and is licensed to do business in the State of Missouri.
(b) AUTHORIZATION. Prior to the Closing, Buyer shall have duly approved
the execution, delivery and performance of this Agreement, the
Promissory Note and the transactions contemplated hereby. The
execution and delivery of this Agreement and the Promissory Note, the
consummation of the transactions described herein, and the fulfillment
of and compliance with the terms and provisions hereof have been duly
authorized by Buyer.
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9. INDEMNIFICATION. Each party (the "Indemnitor") shall indemnify the
other party (the "Indemnitee"), and shall hold it harmless from and against any
and all losses, claims, damages, liabilities, costs and other expenses
(including reasonable attorneys' fees) arising out of or connected with any
misrepresentation or breach or failure of any warranty of the Indemnitor
contained in this Agreement, or the nonfulfillment of any covenant, agreement or
obligation of the Indemnitor contained in this Agreement.
10. PRORATION OF TAXES. All taxes and assessments relating to the Assets
and Assumed Liabilities for 1996 and prior years shall be paid by Seller, and
the taxes and assessments relating to the Assets and Assumed Liabilities for
1997 shall be prorated as of the date of the Closing, the said proration to be
based on the 1996 taxes levied or assessments imposed. Buyer shall be
responsible for all taxes and assessments or installments thereof coming due
after the Closing and relating to the period after the Closing. Except as
otherwise provided herein, Seller shall pay and discharge all other taxes
relating to the Assets and Assumed Liabilities which accrue on or prior to the
Closing or which otherwise relate to Seller's business.
11. FEES AND EXPENSES. Seller and Buyer agree to bear their own expenses
for any and all attorneys' fees and other costs involved in the preparation or
negotiation of this Agreement and any other documents relating to the
implementation and consummation of this transaction.
12. CLOSING/POSSESSION. Seller and Buyer acknowledge and agree that time
is of the essence of this Agreement. As a result, the closing of this Agreement
shall take place at 10:00 a.m. on September 26, 1997, at the offices of New York
Bagel Enterprises, Inc., 300 I.M.A. Plaza, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxx, or at such other time, date and place as shall be mutually satisfactory
to the parties hereto. Such closing date and time is referred to in this
Agreement as the "Closing." Buyer shall be given possession of the Assets as of
the Closing, the Purchase Price shall be delivered to Seller and risk of loss
shall pass to Buyer as of the Closing.
13. CONDITIONS TO BUYER'S RIGHT TO RESCIND. Buyer shall have the right to
rescind this Agreement and the related transactions and agreements in the event
that the following conditions have not occurred by October 31, 1997:
(a) Buyer shall have received all necessary building/occupancy permits to
operate the Premises as an Il Vicino restaurant;
(b) Buyer shall have received a license to serve alcoholic beverages at
the Premises;
(c) Buyer shall have received all necessary signage permits concerning the
Premises;
(d) Seller, Buyer and the Landlord shall have executed and delivered to
Buyer a Landlord Estoppel Certificate/Consent to Assignment of Lease
in the form of Exhibit "C" attached hereto;
(e) Seller and Buyer shall have executed and delivered the Assignment and
Assumption Agreement in the form of Exhibit "G" attached hereto; and
(f) Seller and Buyer shall have executed and delivered the Assignment of
Lease and Assumption Agreement in the form of Exhibit "H" attached
hereto.
14. CONDITIONS TO SELLER'S RIGHT TO RESCIND. Seller shall have the right
to rescind this Agreement and the related transactions and agreements in the
event that the following conditions have not occurred by October 31, 1997:
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(a) Seller, Buyer and the Landlord shall have executed and delivered to
Buyer a Landlord Estoppel Certificate/Consent to Assignment of Lease
in the form of Exhibit "C" attached hereto;
(b) Buyer shall have executed and delivered to Seller the Promissory Note
in the form of Exhibit "D" attached hereto;
(c) Seller and Buyer shall have executed and delivered the Assignment and
Assumption Agreement in the form of Exhibit "G" attached hereto; and
(d) Seller and Buyer shall have executed and delivered the Assignment of
Lease and Assumption Agreement in the form of Exhibit "H" attached
hereto.
15. AMENDMENT AND MODIFICATIONS. This Agreement may only be amended or
modified in writing signed by the parties at any time prior to or upon the date
of Closing with respect to any of the terms contained herein.
16. WAIVER. At any time prior to the Closing, the parties hereto may by
mutual agreement (i) extend the time for the performance of any of the
obligations or other acts of the other party hereto, (ii) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto, and/or (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by both parties hereto.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.
18. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in two (2) or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Facsimile signatures of the parties hereto shall be binding.
19. HEADINGS. The headings contained in this Agreement are for
convenience and reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Kansas. Any legal action brought to
enforce or construe this Agreement shall be brought in the courts located in
Sedgwick County, Kansas, and Seller and Buyer hereby agree to the jurisdiction
of such courts and agree that they will not invoke the doctrine of FORUM NON
CONVENIENS or other similar defenses.
21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. Neither Buyer nor Seller are permitted to assign this Agreement.
22. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS. The
obligations, covenants, agreements, representations, warranties and
indemnifications included or provided for herein or in any exhibit, certificate
or other document delivered pursuant to this Agreement shall survive the date of
Closing.
23. SALES TAXES. Buyer shall pay any and all local, city, county, state
and federal sales taxes due to or as a result of the transactions contemplated
herein.
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24. NOTICES. All notices hereunder shall be deemed if in writing and
delivered personally or sent by registered mail or certified mail, return
receipt requested, to the parties at the following addresses, or at such other
addresses as shall be specified by like notice:
If to Buyer: Il Vicino International, L.L.C.
Xxxxx X. Xxxxxx, Manager
300 I.M.A. Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Facsimile: 000-000-0000
with a copy to: Xxxxxxx X. Xxxx, XX, Esq.
Foulston & Siefkin L.L.P.
700 NationsBank Financial Center
000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Facsimile: 316-267-6345
If to Seller: New York Bagel Enterprises, Inc.
300 I.M.A. Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
ATTN: Xxxx X. Xxxxxx
Vice President-Strategic Planning
Facsimile: 000-000-0000
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Klenda, Mitchell, Xxxxxxxxx & Xxxxxxxx, L.L.C.
1600 Epic Center
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Facsimile: 316-267-0333
Any notice given by mail shall be effective two days after deposit in the United
States mail. Any notice given by facsimile or overnight delivery shall be
effective upon the day after transmission or deposit.
25. PUBLIC ANNOUNCEMENTS. The parties agree that all statements and/or
public announcements, including those to the media, concerning this transaction
shall be subject to the parties' prior written approval, which approval may be
withheld in either party's sole discretion.
26. EXHIBITS. The Exhibits hereto form an integral part of this Agreement
and are incorporated herein by reference and expressly made a part hereof.
27. TERMS AND WORDS. All terms and words used in this Agreement,
regardless of numbers and genders in which they are used, shall be deemed to
include singular or plural and all genders as the context or sense of this
Agreement or any paragraph or clause herein may require.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
IL VICINO INTERNATIONAL, L.L.C.
By /s/ XXXXXX X. XXXXX
-----------------------------------------
Xxxxxx X. Xxxxx, Manager
"BUYER"
NEW YORK BAGEL ENTERPRISES, INC.
ATTEST: By /s/ XXXXXX X. XXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
By /s/ XXX X. XXXXXX
---------------------------
Xxx X. Xxxxxx, Secretary
"SELLER"
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