Exhibit 10 (l)
PURCHASE AND SALE AGREEMENT FOR CERTAIN ASSETS
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THIS PURCHASE AND SALE AGREEMENT FOR CERTAIN ASSETS (this "Agreement")
is entered into this ___ day of May, 2004, by and among BAYSHORE RESTAURANT
MANAGEMENT CORP., a Florida corporation ("Bayshore"), MONTY'S IN THE GROVE,
INC., a Florida corporation, f/k/a, Terremark Stone Crabs, Inc. ("Monty's
Upstairs"), and HOCUS-POCUS, INC., a Florida corporation ("Hocus-Pocus")
(Bayshore, Upstairs and Hocus-Pocus are sometimes collectively referred to
herein as, "Seller"), and BAYSHORE LANDINGS, LLC, a Florida limited liability
company ("Landings"), its successors and/or assigns and HMG BAYSHORE, LLC, a
Florida limited liability company ("HMG", its successors and/or assigns and
together with Landings, collectively, "Buyer"). The "Effective Date" of this
Agreement, shall be the day in which the last of Seller, Buyer or any joinder
party signs this Agreement and a fully executed copy delivered to Buyer.
RECITALS:
A. The City of Miami, Florida, a municipal corporation of the State of
Florida (the "City"), entered into that certain Lease Agreement with Bayshore
Properties, Inc. ("BPI") dated September 20, 1985 (the "Lease") for certain
premises described on Exhibit "A", attached hereto and made a part hereof (the
"Leased Premises").
B. BPI assigned all of its rights and obligations under the Lease to
Grove Marina Market, Ltd., a Florida limited partnership ("Master Tenant") by
virtue of that certain Assignment of Lease dated March 16, 1986, that certain
Acceptance of Assignment of Lease, dated March 14, 1986, and that certain
Consent by and between the City and BPI dated March 13, 1986 (the Lease together
with the foregoing agreements is collectively referred to as the "Master
Lease"). Pursuant to the terms of the Master Lease Master Tenant constructed
certain improvements on the Leased Premises (collectively, the "Improvements")
including but not limited to approximately 20,000 rentable square feet of
office/retail space ("Retail Space"); approximately 20,000 rentable square feet
of restaurant space located on the second floor of the Retail Space ("Restaurant
Space"); and approximately 15,000 rentable square feet of space comprising the
raw bar ("Raw Bar Space") and approximately 3.7 acres of submerged land and
approximately 132 dock slips comprising the marina portion of the Leased
Premises (the "Marina Space").
C. Master Tenant entered into that certain Sublease dated as of March
14, 1986 (the "Original Sublease") with Marina Restaurant, Ltd. ("Master
Subtenant"), under which Master Subtenant subleased the entire Leased Premises.
The Original Lease was subsequently amended by that certain Amendment to
Sublease dated as of June 30, 1986 and that certain Second Amendment to Sublease
(the Original Sublease as modified by the foregoing amendments is collectively
referred to herein as the "Master Sublease").
D. Master Tenant, Master Subtenant and Bayshore, entered into that
certain Assignment of Sublease effective as of March 1, 1991 whereby the Master
Sublease was assigned by Master Subtenant to Bayshore, as subtenant. Bayshore
desires to assign to Buyer all of its rights under the Master Sublease and sell
its ownership of the Improvements to Buyer pursuant to the terms and conditions
contained in this Agreement.
E. Subsequent to the assignment of the Master Sublease to Bayshore,
Bayshore entered into an agreement with Monty's to operate the Raw Bar Space and
in connection therewith Monty's owns certain equipment, inventory and other
personal property that it desires to sell to Buyer pursuant to the terms and
conditions contained in this Agreement.
F. The Restaurant Space was further subleased by Bayshore to Terremark
Stone Crabs, Inc., (now known as Monty's in the Grove, Inc., and defined herein
as "Monty's Upstairs"), pursuant to that certain Sub-Lease Agreement dated
effective as of April 28, 1991 (the "Upstairs Restaurant Sublease"). Monty's
Upstairs and Bayshore desire to assign to Buyer all of their respective rights
under the Upstairs Restaurant Sublease. Monty's Upstairs currently operates a
restaurant in the Restaurant Space and in connection therewith owns certain
equipment, inventory and other personal property that it desires to sell to
Buyer pursuant to the terms and conditions contained in this Agreement.
G. Master Tenant has leased certain submerged land contained within the
Leased Premises from the Trustees of the Internal Improvement Fund ("TIIF") by
virtue of Sovereign Submerged Land Lease No. 130288206 (the "Tenant Submerged
Land Lease") and Seller has the right to use the Submerged Land and the
improvements constructed thereon by virtue of the terms of the Master Lease. By
its joinder to this Agreement, Master Tenant shall assign its rights under the
Tenant Submerged Land Lease and its ownership of the improvements constructed on
the land demised therein to Buyer pursuant to the terms and conditions contained
in this Agreement.
H. The City is in the process of leasing certain submerged land
contained within the Leased Premises from TIIF by virtue of a sovereign
submerged land lease ("City Submerged Land Lease") and Seller has the right to
use the submerged land referenced therein by virtue of the Master Lease. The
remaining portion of the submerged land within the Leased Premises is owned by
the City and the Seller has the right to use it by virtue of the Master Lease.
(The Tenant Submerged Land Lease and the City Submerged Land Lease are sometimes
collectively referred to herein as the "Submerged Land Lease"). The Seller owns
certain improvements within the area demised under the City Submerged Land Lease
and shall transfer its ownership of such improvements to Buyer.
I. Hocus-Pocus is the current registered owner of the trademarks and
service marks commonly known as "Xxxxx Trainer's," Monty's Stone Crab," "Monty's
Conch," "Monty's" and Monty's Marina, together with certain other trademarks,
trade secrets, unique features, concepts, designs operating procedures recipes
and materials used in connection with the Restaurant Space and the Raw Bar Space
(collectively, the "Trademarks and Other Rights"). Hocus-Pocus desires to permit
Buyer to use the Trademarks and Other Rights on a non-exclusive basis in
connection with its business operations at the Project (as defined below)
pursuant to the terms and conditions and conditions contained in this Agreement.
J. Buyer desires to purchase all of Seller's rights to use the Leased
Premises, own the Improvements, own certain personalty used in connection with
and operate two restaurants, a marina and retail and office facility located at
the Leased Premises and use the Trademarks and Other Rights on a non- exclusive
basis (collectively, the "Project"). Seller desires to sell and
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assign to Buyer the assets of the Project pursuant to the terms and conditions
contained in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Sole and Purchase. Upon the terms and subject to the conditions set
forth in this Agreement, Seller (and/or each individual party comprising Seller,
as appropriate) shall sell, transfer, convey, assign and deliver to Buyer, and
Buyer shall purchase and acquire from Seller (and/or each individual party
comprising Seller, as appropriate), free and clear of all liens, ~ pledges,
mortgages, charges and encumbrances of any nature whatsoever, at the Closing on
the Closing Date (as such terms are defined below), all of Seller's right, title
and interest in and to the following assets (collectively the "Acquired
Assets"):
1.1 The Master Sublease, Master Lease, the Upstairs Restaurant
Sublease, the Tenant Submerged Land Lease and the City Submerged Land Lease
(collectively, the "Master Lease Agreements") to be conveyed at the Closing by
assignment of Seller's interest in the Master Lease Agreements and by an
assignment of Master Tenant's interest in the Master Lease and the Tenant
Submerged Land Lease;
1.2 Any and all Improvements located on, in or about the
Leased Premises (including, but not limited to the buildings, awnings, walkways,
docks, piers, fences, chickee huts, signage and light fixtures located in the
Retail Space, the Raw Bar Space, the Restaurant Space and the Marina Space);
1.3 All tangible personal property of any kind owned by Seller
and located on, attached to or used in connection with the Project and/or the
Improvements, including, but not limited to, all furniture, fixtures, equipment,
appliances, tools, kitchen and bar supplies, food and liquor inventory, linens,
glassware, menus, recipes, signage, silverware, pots and pans, carts, cleaning
supplies and materials, telephone numbers and exchanges, computers, computer
software, menus, signs and other tangible personalty, all to the extent owned by
Seller, located at the Leased Premises and used in connection with the Project,
some of which are specifically listed in Exhibit "C" attached hereto
(collectively the "Personalty");
1.4 Any and all leases, licenses, concessionaire's agreements
and all other similar agreements relating to the use or occupancy of the Retail
Space, the Marina Space or any other portion of the Project (collectively, the
"Tenant Leases"), and all security deposits and other similar deposits if any
("Tenant Security"), made by licensees, tenants, concessionaires or other users
at the Project (collectively, the "Tenants") under such Tenant Leases;
1.5 If and to the extent transferable, any and all
governmental licenses and permits for the operation of the Property
(collectively, the "Operating Permits"), including but not limited to the 4COP
SRX Liquor License No. XXX 2300929 ("Liquor License") used at the Restaurant
Space and the Raw Bar Space;
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1 .6 Any and all of Seller's rights, easements, licenses and
privileges at the Leased Premises or appertaining to the Project; and
1 .7 Any and all of the leases and the maintenance, service,
advertising and other like contracts and agreements with respect to the
operation of the Project listed in Exhibit "C" attached to this Agreement (the
"Operating Contracts"); unless Buyer provides written notice to Seller during
the Due Diligence Period that it does not elect to assume certain Operating
Contracts then Buyer shall only acquire the Operating Contracts it so elects.
2. Purchase Price. The Purchase Price for which Seller agrees to sell
and assign the Acquired Assets to Buyer, and which Buyer agrees to pay to
Seller, subject to the terms and conditions hereof and subject to adjustments,
credits and prorations as hereinafter provided, is Thirteen Million Five Hundred
Thousand and No/100 Dollars ($13,500,000.00) (the "Purchase Price"). The
Purchase Price shall be paid in accordance with the following terms and
conditions:
2.1 One Hundred Thirty-Five Thousand and No/100 Dollars
($135,000.00) (the "Initial Escrow Deposit") will be deposited with Bilzin
Xxxxxxx Xxxxx Price & Xxxxxxx LLP ("Escrow Agent") within two (2) business days
after the Effective Date;
2.2 In the event that this Agreement is not terminated by
Buyer on or before the expiration of the Due Diligence Period (as defined in
Section 4 below), on the first business day thereafter, Buyer shall deposit and
additional Three Hundred Sixty-Five and No/100 ($365,000.00) (the "Additional
Escrow Deposit") with Escrow Agent (once the Additional Escrow Deposit is made,
the Initial Escrow Deposit and the Additional Escrow Deposit shall collectively
be referred to as, the "Escrow Deposit"). After the Additional Escrow Deposit is
made, the Escrow Deposit shall be non-refundable to Buyer, except in the event
of a Seller default or failure of a condition precedent in Section 3.1 , but
shall be applicable against the Purchase Price at Closing. The Initial Escrow
Deposit and if paid the Additional Escrow Deposit shall be held by Escrow Agent
in accordance with the provisions set forth in Exhibit "B" attached hereto. In
the event that Buyer terminates this Agreement on or before the expiration of
the Due Diligence Period or fails to timely deliver the Additional Escrow
Deposit, the Initial Escrow Deposit shall be refunded to Buyer by Escrow Agent,
and thereafter the parties to this Agreement shall have no other obligations to
each other, except for this obligations that expressly survive such early
termination.
2.3 The balance of the Purchase Price, subject to the
prorations set forth in Section 10, shall be paid by Buyer at Closing.
3 . Buyer's Conditions Precedent to Closing. Buyer's obligation to
purchase the Acquired Assets pursuant to this Agreement shall be subject to
unconditional completion of the following (collectively, the "Conditions
Precedent");
3.1 Seller obtaining a memorandum of understanding and/or
estoppel letter(s), in form and content acceptable to Buyer, by and among
Seller, Buyer, the City and Master Tenant containing, among other things, the
following provisions: (i) all required approvals by the
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City, the Trustees of the Internal Improvement Fund ("TIIF") and any applicable
governmental authority to the Assignment of the Master Lease Documents to Buyer;
(ii) conceptual approval by the City and any applicable governmental authority
of the proposed conversion of a portion of the Restaurant Space into office
space and the expansion of a portion of Restaurant Space to include a second
floor outdoor eating area and bar (such conceptual approval does not include
formal site plan approval and/or the issuance of building permits), (iii)
certification by the City, TIIF and any applicable governmental authority that
all obligations of the Master Tenant under the Master Lease have been met as of
the Closing Date, and that no additional liabilities under the Master Lease that
accrued before the Closing Date shall be the obligation of Buyer; (iv)
certification by the Master Tenant and any other applicable person or entity
that all obligations of Master Subtenant and Bayshore under the Master Sublease
have been met as of the Closing Date, and that no additional liabilities under
the Master Sublease that accrued before the Closing Date shall be the obligation
of Buyer; (v) confirmation from the City, TIIF and the Master Tenant that, as of
the Closing Date, no default exists under any of the Master Lease Documents or
with the passage of time or the giving of notice would constitute default
thereunder; and (vi) a general consent by the City and any applicable
governmental authority of the assignment of the other Acquired Assets to Buyer.
3.2 A certification by Buyer that the Personalty remains on,
attached to or available for Buyer's use in connection with the continued
operation of the Project as of the Closing Date.
3.3 Delivery of all of the Seller's Closing Documents (defined
below).
3.4 The City, TIIF and any applicable governmental authority
shall have: (i) executed and delivered the City Submerged Land Lease and any
necessary amendments thereto to provide for a term of no less than 10 years, the
legal description of the City Submerged Land Lease shall, at a minimum, describe
the land upon which the current docks are located and (ii) the Buyer shall have
the express right to use the submerged land demised under the City Submerged
Land Lease and any deed or other restriction preventing the same shall have been
waived. The Tenant Submerged Land Lease shall have been assigned to Buyer and
all necessary governmental consents and/or approvals shall have been obtained.
3.5 Buyer shall have received appropriate approvals from the
applicable governmental authorities to transfer the Liquor License to Buyer. In
the event Buyer fails to obtain such approvals but is confident that such
approvals will be forthcoming, Buyer shall close provided that the applicable
Seller agrees to enter into a concession agreement whereby the Seller holding
the Liquor License sells liquor at the Project at no additional charge until
such time as the Liquor License is transferred to Buyer. Buyer shall use
diligent efforts to obtain such approvals prior to Closing.
3.6 All representations and warranties of Seller contained in
this Agreement shall be true and correct as of the Closing Date in all material
respects.
3.7 Seller shall have obtained from the "New Shareholders" as
defined in that certain Second Amendment to Shareholders' Agreement of Monty's
Holdings, Inc. ("Holdings")
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dated August 27, 2003 among Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxx, Xxxxxx Xxxxxx,
Xxxxx Xxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxx Xxxxxxx, Xxxxxx
Xxxxx, Hayment Sauma, Xxxxx Xxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxx X. Xxxxxx and
Aradelyses Xxxxxx, a binding payoff letter which upon payment of such sums shall
satisfy any and all claims and/or disputes arising amongst any of the
shareholders of Holdings and/or Holdings, consent to the sale of the Acquired
Assets to Buyer, release all claims of each New Shareholder, and provide a
general release, substantially in the form of the estoppel letter and general
release attached hereto as Exhibit "F" ("Estoppel and Release"). The fully
executed Estoppel and Release shall be obtained by Seller within 15 days after
the Effective Date ("Estoppel and Release Delivery Date") and copies delivered
to Buyer. The original executed Release(s) shall be held in escrow by Escrow
Agent. At Closing the Escrow Agent shall pay the New Shareholders the amounts
set forth in the Estoppel(s) from the Closing proceeds and deliver the Releases
to the parties being released therein.
4. Title and Due Diligence Period.
4.1 Due Diligence Period. Buyer shall have until 5:00 p.m.
(Eastern time) on the thirtieth (30th) day following the Estoppel and Release
Delivery Date (the "Due Diligence Period") within which to inspect the Project.
Seller shall allow Buyer and its agents reasonable access to the Project during
normal business hours to conduct such review as Buyer deems appropriate. Within
three (3) business days after the Effective Date, Seller shall deliver to Buyer
all documents, records and other information relating to the Project which are
in Seller's possession, including, but not limited to:
4.1.1 The Master Lease Documents and the Tenant Leases
(including any and all amendments, assignments, memoranda or other agreements
related thereto (i.e. the waiver(s) of the deed restriction(s) by TIIF with
respect to the use of the submerged land by a private entity and the calculation
of all fees and or payments due in connection with such waiver(s));
4.1.2 A list of all Tenants, with terms of the Tenant Leases
(the "Rent Roll") including amount of rent, the amount of the security deposit,
if any, whether a brokerage commission, if any, is due and the duration of the
lease.
4.1.3 Copies of all Trademarks and Other Rights;
4.1.4 A video tape containing the Personalty not expressly set
forth on the attached Exhibit "C"
4.1.5 Copies of the inventory lists for the Raw Bar and
Restaurant for March 2004 and April 2004;
4.1.6 Copies of all Operating Permits, certificates of
occupancy, licenses, permits and other governmental approvals used by Seller in
connection with its business operations at the Project or the construction of
any improvements at the Project;
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4.1.7 Copies of all Operating Contracts and similar agreements
currently affecting the Leased Premises and/ or the Project;
4.1.8 A list of all of Seller's employees together with a
description of their work duties, experience and current compensation;
4.1.9 Copies of all surveys, plans and specifications,
engineering, environmental, property condition and similar type reports
regarding the Leased Premises and/ or the Project;
4.1.10 Copies of all settlement agreements and correspondence
with the Florida Department of Revenue and the Internal Revenue Service and
other taxing authorities concerning any delinquent tax payments and/or
settlement agreements or payment plans with respect thereto.
In the event the foregoing information is not timely delivered Buyer in an
orderly fashion, the Due Diligence Period shall be extended one day for each day
the Seller is late in delivering the same.
4.2 Inspection Rights. Buyer's right of inspection shall be
subject to the rights of Tenants under the Tenant Leases. Seller shall have the
right to be present at any or all inspections but Seller's unavailability shall
not delay such inspections. Buyer shall be entitled to contact Tenants without
the consent of Seller. Buyer shall be responsible for restoring the Leased
Premises or any portion thereof to the condition in which it was prior to
Buyer's inspection and for repairing any damage thereto resulting from such
inspections performed by Buyer, its agents, engineers or inspectors.
Notwithstanding anything to the contrary contained in this Agreement, Buyer
shall indemnify and hold Seller harmless from and against any and all losses,
costs, damages, liabilities and other expenses (including, without limitation,
attorneys' fees incurred in connection therewith) arising out of or resulting
from Buyer's inspections as provided for herein. Within seven (7) days prior to
the expiration of the Due Diligence Period Seller shall obtain on Buyer's behalf
and deliver to Buyer, estoppel letters in form and content reasonably acceptable
to Buyer, from all Tenants at the Project for any Retail Space, for any slip
users that are associated with any Leases for the Retail Space and any
additional estoppel letters required by any lender of Buyer.
4.3 Termination Right. Buyer shall have the right to terminate
this Agreement for any reason whatsoever in its sole and absolute discretion on
or prior to the expiration of the Due Diligence Period by delivering notice to
Seller during the Due Diligence Period, whereupon the Escrow Deposit shall be
returned to Buyer, and then neither party shall have any further rights or
obligations under this Agreement. Buyer's failure to deposit the Additional
Escrow Deposit with the Escrow Agent on or before the expiration of the Due
Diligence Period as provided for in Section 2 shall also serve as Buyer's
election to terminate the Agreement. In the event Buyer does not terminate the
Agreement, the Buyer, its agents and employees shall have access to the Leased
Premises and Project through Closing for inspection purposes. . 7
4.4 Evidence of Title. Seller shall, within three (3) days
after the date of this Agreement, deliver to Buyer a copy of an existing title
insurance policy for the Leased Premises and a survey. Seller shall at least
five (5) business days prior to the expiration of the Due Diligence Period,
deliver to Buyer a current ALTA Survey dated within 90 days of the Closing Date,
certified to the Escrow Agent, Title Insurer (as defined below), Buyer and any
lender selected by Buyer (the "Survey"). Buyer shall, prior to the expiration of
the Due Diligence Period, obtain a current title insurance commitment for the
Leased Premises from a nationally recognized title insurance company, issued by
and through the Escrow Agent (the "Title Insurer"). If the Title Commitment
discloses exceptions that are objectionable to Buyer, then Buyer shall have ten
(10) days after its receipt of the Title Commitment and the Survey within which
to notify Seller of any such exceptions to title to which Buyer objects. If any
such exceptions to title arise between the date of the Title Commitment and the
Closing, Buyer shall have five (5) days after its receipt of notice of same
within which to notify Seller of any such exception to title to which it
objects. Any such exceptions not objected to by Buyer as aforesaid shall become
Permitted Exceptions. If Buyer objects to any such exceptions to title, Seller
shall have until Closing (but in any event at least fifteen (15) days after it
receives notice of Buyer's objection(s)) to remove such exceptions as instructed
by the Title Insurer. As of the Closing Date, if Seller fails to remove any such
exceptions or cure any of Buyer's title objections, Buyer may, as its sole and
exclusive remedy, terminate this Agreement and obtain a return of the Initial
Escrow Deposit. If Buyer does not elect to terminate this Agreement, Buyer shall
consummate the Closing and accept a leasehold interest in the Leased Premises
subject to all such exceptions to title (in which event, all such exceptions to
title shall be deemed "Permitted Exceptions"). If the Title Commitment shows any
pending liens against the Project, Seller shall pay the amount of such liens at
or prior to Closing. In addition, Seller shall cure all outstanding financial
obligations relating to the Acquired Assets, including, but not limited to, any
mortgage or other liability, delinquent taxes (of any kind), employee wages or
related expenses, equipment lease liabilities, shareholder suits or related
claims, or any other item contained on Part 1 of Schedule B of the title
commitment on or before Closing. All such liens and encumbrances shall be paid
through escrow at Closing. Notwithstanding the foregoing, nothing contained in
this Section 4.4 shall limit Buyer's right to terminate this Agreement in its
sole discretion in accordance with and pursuant to the provisions of Section 4.3
hereof.
5. "AS-IS" Condition. Except as expressly provided for herein, Seller
is selling the Acquired Assets in their respective "As-Is" condition, however,
Seller agrees that on or after the Effective Date Seller shall not remove any of
the Acquired Assets from the Leased Premises without the written consent of the
Buyer, except for routine consumption of inventory and the replacement of like
Personalty in the normal course of Seller's business operations.
6. Seller's Covenants. Seller, jointly and severally, agrees to the
following:
6.1 Seller's Pre-Closing Covenants. From the Effective Date
until the Closing Date, Seller shall operate, maintain and manage the Project in
substantially the same manner as it is presently being operated (but in
compliance with all applicable laws and governmental regulations), such that at
the Closing Date the Acquired Assets shall be in substantially the same physical
condition as on the date hereof, normal wear and tear, damage or destruction by
fire or
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other casualty or damage caused by Buyer during the Due Diligence Period and
consumption of inventory in the normal course of business excepted.
6.1.1 Seller shall continue in effect all applicable insurance
coverage for the Project existing as of the Effective Date, and Seller shall not
enter into any new agreements except those, which are cancelable upon thirty
days' prior written notice.
6.1.2 Seller shall not take any action that would make any of
Seller's representations and warranties herein untrue or incorrect. Seller shall
notify Buyer promptly if Seller becomes aware of any transaction or occurrence
prior to the Closing which would make any representation and warranty made by
Seller herein untrue or incorrect in any material respect. Seller shall not
modify or terminate, or waive or release any rights, exercise any options or
grant any consents under the Leases, the Operating Contracts or Operating
Permits.
6.1.3 Seller shall not modify or terminate, or waive or
release any rights, exercise any options or grant any consents under the Tenant
Leases. Seller shall not enter into any new lease or other agreement or
arrangement that would or could remain binding on Buyer after the Closing;
except that the Seller shall have the right, prior to the Closing, to continue
(and shall continue) to enter into licenses with boat owners for boat slips
provided the term is 30 days or less and the terms and conditions thereof are at
market rates and substantially the same as (or more favorable to Seller than)
the boat slip licenses that have been entered into by Seller within the
three-month period immediately prior to the date hereof.
6.1.4 Seller shall keep all Operating Permits in full force
and renew any of the same which expire prior to the Closing. In the event that
any Operating Permit is suspended or revoked, Seller will promptly notify Buyer
of that fact, and, if such suspension or revocation is based on the actions (or
inaction) of Seller, Seller, at its sole expense, shall use commercially
reasonable efforts to have such Operating Permit reinstated without limitation
or condition.
6.1.5 Seller shall maintain at the Property normal and
customary quantities of supplies for the use, operation and maintenance of the
Property. Seller shall maintain the Inventory in the Raw Bar Space to the
standards necessary to continue the routine operation of the Raw Bar Space
without interruption.
6.1.6 Seller shall perform and observe in all material
respects all of the covenants and conditions required to be performed and
observed by them under the Master Lease Documents, the Leases, the Operating
Contracts, and Operating Permits and shall promptly deliver to Buyer copies of
any notices given or received by any Seller to or from any other party thereto.
6.1.7 Seller shall pay for when due all goods and supplies
delivered to, and services performed at, the Leased Premises prior to the
Closing Date.
6.1.8 Seller shall pay all brokerage commissions in connection
with the current term of all Leases and any expansions, modifications,
amendments, renewals or
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extensions to the Leases that are due and payable prior to the Closing Date.
Seller shall not apply any Lease Security to cure a default by a tenant, unless
such application is permitted thereunder and such tenant either has vacated, or,
with Buyer's prior written consent, has been evicted or dispossessed from, the
Project.
6.1.9 Seller shall not alter the Project except to make
necessary non-structural repairs to the Project. Seller shall not perform or
permit any excavation, construction or removal of any improvements upon or about
the Project.
6.1.10 Seller shall pay when due all sales taxes, employee
taxes and other payments due to any governmental authority.
6.2 Seller's Post-Closing Covenants.
6.2.1 Seller shall, jointly and severally, remain solely
liable for all liabilities related to the Leased Premises, the Project and the
Acquired Assets accruing on or before the Closing Date regardless as to when
Seller is notified or becomes aware of such liabilities. Except for the Acquired
Assets, Buyer does not assume, and shall not in any manner become responsible or
liable for, and Seller, jointly and severally, shall retain, pay, discharge, and
perform in full, all other debts, obligations or liabilities of Seller of any
nature whatsoever, whether known or unknown, fixed, contingent or otherwise,
including, without limitation, any debts, obligations or other liabilities
directly or indirectly arising out of, or resulting from, the Seller's lease,
ownership or use of the Leased Premises, the Acquired Assets and/or the Project
prior to the Closing Date. Seller, jointly and severally, also agree to pay:(i)
for all sales tax; (ii) all income tax, withholding tax, payroll tax, Social
Security tax, unemployment tax and other tax of any employees of Seller arising
prior to the Closing Date; (iii) all workers' compensation and other insurance
premiums due with respect to the employees of Seller for the period ending as of
the Closing Date, (iv) real estate taxes and assessments (even if charged
subsequent to Closing but applicable to the time period prior to the Closing
Date); and (v) all other costs and expenses incurred by Seller in connection
with the use of the Leased Premises, the ownership of the Acquired Assets and
the operation of the Project prior to or on the Closing Date. The
indemnification provisions of this Section 6.2.1 shall expressly survive
Closing.
6.2.2 For as long as the Master Lease is in effect, none of
Seller, Monty's Holdings, Inc. or any of their respective principals shall
operate, own or control any raw bar type restaurant or casual seafood restaurant
within a two mile radius of the Project.
7. Representations and Warranties of Seller. Seller hereby represents
and covenants to Buyer that each of the following representations and warranties
is true and correct as of the Effective Date and shall be true and correct as of
the Closing Date in all material respects. Each of the representations and
warranties contained herein shall survive the Closing.
7.1 Authority. Each of the entities comprising Seller: (i) is
an entity, duly formed validly existing and in good standing under the laws of
the State of Florida, and (ii) has full and absolute power and authority to
enter into this Agreement and all documents to be delivered pursuant hereto, and
to assume and perform all of their respective obligations
10
hereunder. The execution and delivery of this Agreement and the performance by
the each of the entities comprising Seller of their respective obligations
hereunder: (i) has been duly authorized by all requisite action and no further
action of approval is required to consummate the transactions herein; (ii) do
not and will not cause any of the entities comprising Seller to be in violation
of any law, ordinance, order or requirement or of any agreement or contract to
which each or any of the entities comprising Seller is a party. The undersigned
individual(s) is/are authorized to sign on behalf of each of the entities
comprising Seller and no additional signatures are required to bind Seller. This
Agreement constitutes, and such other documents will each constitute, the legal,
valid and binding obligations of Seller, enforceable in accordance with their
respective terms.
7.2 Legal Action Against Seller. Except as expressly disclosed
on Schedule 7.2, there are no judgments, orders, or decrees of any kind against
Seller unpaid or unsatisfied of record, nor any legal action, suit or other
legal or administrative proceeding pending before any court or administrative
agency relating to the Leased Premises, the Acquired Assets or the Project, nor
are there any threatened legal action, suit or other legal administrative
proceeding relating to the Leased Premises, the Acquired Assets or the Project.
If there are any insurance claims or lawsuits (hereinafter a "Claim") handled by
Seller's insurance company, a list of such claims shall be provided by Seller to
Buyer within 3 business days of the Effective Date of this Agreement. Otherwise,
Seller has received no other notice of any Claim or action against Seller or any
entity comprising Seller that affects the Leased Premises, the Acquired Assets
or the Project.
7.3 Intellectual Property. Hocus-Pocus is the legal owner of
the Trademarks and Other Rights, such Trademarks and Other Rights are fully
assignable, on a non-exclusive basis, and there are no other intellectual
property, trade or service marks that are currently used at or in connection
with the current business operations at the Project.
7.4 Liens. Except as expressly disclosed on Schedule 7.4,
there are no claims for labor, services, profit or materials furnished for
constructing, repairing or improving the same, nor does Seller anticipate any
such claims, except in the normal course of Seller's business, which will be
paid as of the Closing Date. Sellers have good and marketable title (a leasehold
right with respect to the Leased Premises) to all of the Acquired Assets, free
and clear of all mortgages, liens, pledges, charges or encumbrances of any
nature whatsoever, except for those certain first and second leasehold mortgages
in favor of Ocean Bank.
7.5 Hazardous Materials. To the best of Seller's knowledge,
(i) the Leased Premises is not in violation of any law, rule, order, regulation,
ordinance or other legal requirement pertaining to or imposing liability or
standards of conduct concerning environmental regulation, contamination or
clean-up, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery
Act, the Emergency Planning and Community Right-to-Know Act of 1986, the
Hazardous Substances Transportation Act, the Solid Waste Disposal Act, the Clean
Water Act, the Clean Air Act, the Toxic Substance Control Act, the Safe Drinking
Water Act, the Occupational Safety and Health Act, any state super-lien and
environmental clean-up statutes and all amendments to and regulations in respect
of the foregoing laws (collectively,
11
"Environmental Laws"); (ii) the Leased Premises is not subject to any private or
governmental lien or judicial or administrative notice of violation, action or
inquiry, investigation or claim relating to hazardous, toxic, dangerous and/or
regulated substances, wastes, materials, raw materials which include hazardous
constituents, pollutants or contaminants, including, but not limited to,
asbestos, asbestos containing materials, petroleum, tremolite, anthlophylite,
actinolite, polychlorinated biphenyls, solvents, and any other substances or
materials which are included under or regulated by Environmental Laws or which
are considered by scientific opinion to be otherwise dangerous in terms of the
health, safety and welfare of humans (collectively, "Hazardous Substances");
(iii) no Hazardous Substances are or have been discharged, generated, treated,
disposed of or stored on, incorporated in, or removed or transported from any of
the Leased Premises in violation of Environmental Laws; (iv) no Hazardous
Substances are present in, on or under any of the Leased Premises, except for
substances commonly used in the operation and maintenance of the Project which
have been and are used, stored and disposed of in accordance with Environmental
Laws; and (v) no underground storage tanks exist in the Leased Premises.
7.6 Tenant Leases. Seller represents that each of the Tenant
Leases is in full force and effect in accordance with its terms and has not been
modified, amended or extended except as set forth therein, and is assignable by
the Seller to the Buyer without the need for the consent of any party. The Rent
Roll is true and correct in all material aspects and there are no additional
leases or other occupancy agreements affecting the Project that are not
contained on the Rent Roll. Unless noted otherwise set forth on Schedule 7.6 by
Seller, none of the Tenants are in default (beyond any applicable grace period
provided by such Tenant Lease) in the payment of any rent due under its
respective Tenant Lease or, to the Seller's knowledge, in the performance or
observance of any substantially material covenant or condition to be kept,
observed or performed by it under its Lease. Seller has fully performed (or
shall on the Closing Date) all of Seller's material obligations under the Tenant
Lease that are required to be performed and all tenant improvement construction
work completed by Seller has been accepted by the tenants. No brokerage
commission or other compensation is due or payable to any person, firm,
corporation or other entity with respect to or on account of any of the Leases,
or any renewals thereof.
7.7 Operating and Financial Statements. The operating
statements to be provided to Buyer for January 2004, February 2004 and March
2004 and all financial statements delivered to Buyer were prepared in accordance
with generally acceptable accounting principles consistently applied and
accurately and completely reflect the revenue, expenses add income for the
Leased Premises for the periods covered thereby, and the amount of each
individual item of revenue and expense set forth therein is true and correct in
all material aspects.
7.8 Insurance. Seller has in full force and effect fire,
extended risk liability insurance and windstorm policies covering the Leased
Premises, the Acquired Assets and the Project for the full replacement cost
thereof. Seller has not received from any insurance company carrying insurance
or that has carried insurance on the Leased Premises, the Acquired Assets and/or
the Project any notice of defect or inadequacy in connection with it or its
operation. Seller
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does not self-insure any portion of the Leased Premises, the Acquired Assets or
the Project. Seller maintains proper flood insurance coverage.
7.9 Licenses and Permits. All required certificates of
occupancy, Operating Permits, authorizations and approvals necessary for the
operation of the Project have been validly issued and are in good standing and
shall remain so as of the Closing Date. All charges and fees for such have been
paid in full through the Closing Date.
7.10 Taxes. Except as expressly disclosed on Schedule 7.10,
Seller has received no written notice that the Project or any portion thereof,
is subject to any special taxes, assessments or benefit charges except those, if
any, which are of record in the Public Records of Miami-Dade County, Florida nor
has Seller received notice of intention of any governmental authority to impose
any such special taxes, assessments or benefit charges. Except as expressly
disclosed on Schedule 7.10, the Seller has paid in full all: (i) ad valorem
property taxes and other assessments levied on their respective assets and
properties; (ii) excise taxes; (iii) franchise taxes; (iv) license fees; (v)
personal property taxes; (vi) sales and use taxes ; (vii) payroll and employment
taxes; and (viii) and income taxes which have become due and payable as of the
Closing Date. Seller shall remedy all outstanding tax matters on or before
Closing.
7.11 Inventories. The inventories of Seller to be acquired by
Buyer, shall consist of items of quality and quantity usable or saleable in the
normal course of its business and the values at which Seller's inventories are
carried reflect the normal inventory valuation policy of the Seller.
7.12 Employees. As of the Closing Date, Seller shall not have
any employees employed at the Project ("Seller's Employees"). On or prior to the
Closing Date, Seller shall pay all Seller's Employees such amounts as shall be
due and owing to them for their services through and including the Closing Date
and all Seller's Employees shall remove their personal property from the Project
as of the Closing Date. None of the entities comprising Seller are party to any
collective-bargaining agreement. There are no union organizational
representation efforts underway or any unfair labor practice claims pending or
threatened, nor any existing labor strikes, slowdowns, disputes, grievances or
disturbances.
7.13 No Material Omissions. Neither this Agreement (including
the Schedules and Exhibits) nor any other certificate, statement, document or
other information furnished to Buyer by or on behalf of Seller pursuant to or in
connection with the transaction contemplated by this Agreement contains any
material misstatement of fact, or omits to state a fact necessary in order to
make the representations, warranties and other statements herein or therein
contained not misleading.
7.14 Foreign Person. No entity comprising Seller is a foreign
person within the meaning of Section 1445(f) of the Internal Revenue Code, and
Seller agrees to execute any and all documents required by the Internal Revenue
Service in connection with such declaration(s) and the certificate required.
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7.15 Operating Contracts. Exhibit "D" attached hereto is a
correct and complete list of all Operating Contracts to which any Seller is a
party or by which it or its assets are bound, and such list sets forth with
respect to each the name of the other party(ies) thereto, the date thereof and
the dates of any modifications, amendments, extensions, or supplements thereto.
7.16 Notices. Except as set forth on Schedule 7.16, Seller has
not received any notice with respect to and has no knowledge of (i) any
violations of applicable laws, ordinances or public regulations relating to the
Leased Premises which remain uncured, or (ii) any pending or threatened
condemnation, eminent domain or similar proceedings with respect to the Leased
Premises, the Acquired Assets and/or the Project. Seller's entry into this
Agreement and the Closing of the transaction contemplated hereunder is not in
violation of any agreement to which Seller or any of its principals is a party.
7.17 Outstanding Payables. Attached hereto as Exhibit "G" is a
true, accurate and complete list of all outstanding payables with respect to the
Acquired Assets and the Project as of February 29, 2004. Seller shall provide an
updated list of payables each month until the Closing. Within five (5) business
days prior to the Closing Date Sellers shall provide to Escrow Agent binding
estoppel payoff letters from all payees who potentially have lien rights against
the Acquired Assets confirming the amount(s) due and payable to them as of the
Closing Date. In the event the appropriate estoppel payoff letters are not
timely obtained by Seller the Closing Date shall be extended until Seller
delivers the estoppel payoff letters or the parties and Title Insurer agree upon
a mutually agreeable alternative, it being the intention of the parties that all
such payables be paid in full as of the Closing Date.
8. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows, and such representations and warranties shall be
true and correct as of the Effective Date and shall be true and correct as of
the Closing Date in all material respects. Each of the representations and
warranties contained herein shall survive Closing:
8.1.1 Landings is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Florida.
8.1.2 HMG is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Florida.
8.1.3 Buyer has full power and authority to execute and
deliver this Agreement and all other documents now or hereafter to be executed
and delivered by it pursuant to this Agreement and to perform all obligations
arising under this Agreement and such other documents. The execution and
delivery of this Agreement and the performance by Buyer does not and will not
cause Buyer to be in violation of any law, ordinance, order or requirement or of
any agreement or contract to which Buyer is a party. The undersigned individual
is authorized to sign on behalf of Buyer and no additional signatures are
required to bind Buyer.
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8.1.4 This Agreement constitutes, and such other documents
will each constitute, the legal, valid and binding obligations of Buyer,
enforceable in accordance with their respective terms.
9. Closing. The transfer of the Acquired Assets (the "Closing") shall
take place on or before the date that is fifteen (15) days following the
satisfaction of all of the Conditions Precedent (the "Closing Date"). In the
event that the satisfaction of all of the Conditions Precedent has not occurred
on or before August 15, 2004 (the "Outside Closing Date"), in addition to
Buyer's remedies hereunder and at law or in equity, Buyer may elect to terminate
this Agreement by delivery of written notice of such termination to Buyer and
Escrow Agent within thirty days following the Outside Closing Date, provided
that Seller has not satisfied such outstanding conditions precedent within such
30-day period following Seller's termination notice.
9.1 At the Closing, Seller (or any of its respective
principals or affiliates as necessary) shall execute and deliver or cause to be
delivered to Escrow Agent and/or Buyer in accordance with the provisions of this
Agreement all of the following documents, the form of which shall be reasonably
agreed upon by Buyer and Seller during the Due Diligence Period;
(a) Seller's Assignment of the Master Lease Documents,
(b) a deed or xxxx of sale (at Buyer's election)
conveying the Improvements and warranting Seller's lien free title thereto,
(c) a xxxx of sale and general assignment with
warranties conveying all of the Personalty,
(d) an Assignment and Assumption of the Tenant Leases,
(e) An Assignment and Assumption of the Operating
Contracts Buyer elects to assume and evidence of Seller's termination of the
non- assumed Operating Contracts,
(f) full and complete releases of all of Seller's
liabilities concerning the Acquired Assets,
(g) if necessary, an agreement whereby Seller agrees
to act as Buyer concessionaire and operator for the Liquor License and to
continue to cooperate with Buyer until the Liquor License is actually
transferred to Buyer, in the event that Seller is unable to obtain a transfer of
the Liquor License on or before the Closing Date,
(h) an opinion given by Seller's counsel, reasonably
acceptable to Buyer confirming that: (i) the Seller has obtained all necessary
consents and/or authorization to consummate the actions contemplated hereby.
(ii) each of the Closing Documents has been duly authorized, executed and
delivered by Seller; (iii) the sale of the Acquired Assets does not constitute a
sale of substantially all of the assets of Monty's Holdings, Inc. as interpreted
by the applicable Florida Statutes,
15
(i) such evidence as Escrow Agent may reasonably
require of the due authorization, execution and delivery of this Agreement, the
Deed, the Lease Assignment and any other documentation required by such Title
Insurer such customary Seller's affidavits as the Closing Agent shall reasonably
require in order to omit standard title exceptions that may be omitted on the
basis of the confirmation of facts known to Seller such as gap, parties in
possession and Form 9 coverage,
(j) Original Files, Master Lease Documents,
Leases, Licenses, Property Contracts or copies, if originals are unavailable,
(k) Notices to all third parties such as
Tenants and all utility providers and vendors, advising them of the sale of the
Project to Buyer,
(1) An indemnity in favor of Buyer with respect
to the payment of all sales tax through the Apportionment Date,
(m) Certification that Seller is not a
foreign person under FIRPTA (ss.1445 of the Internal Revenue Code), signed by a
duly authorized representative of Seller,
(n) Seller shall deliver to Buyer (or leave
in a designated office at the Property) keys (and/or combinations or other entry
or opening mechanisms) to the Leased Premises, and to all safes and other
applicable articles of Personalty,
(o) Seller shall deliver to Buyer a release
and termination by each officer, shareholder and principal of Seller (and any
applicable affiliates of the same) of any and all agreements, arrangements,
rights and privileges that may have been entered into by it with or granted to
it by any Seller with respect to the use of any of the Property (including boat
slips at the Marina not leased on arms-length terms),
(p) A closing statement,
(q) Master Tenant's assignment of the Master Lease
and the Tenant Submerged Land Lease to Buyer,
(r) The Management Agreement defined in Section 23,
(s) The Estoppel and Release shall be disbursed from
Escrow and originals delivered to Seller, and
(t) A lease agreement between operator, as defined
in the Management Agreement, and Buyer for approximately 1 ,950 rentable square
feet of office space ("Office Lease").
9.2 At the Closing, Buyer shall execute and deliver or cause
to be delivered to Escrow Agent in accordance with the provisions of this
Agreement, the following:
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(a) Buyer shall deliver the Purchase Price in
immediately available funds (with due credit given for Deposit) after all
adjustments are made at the Closing as herein provided by Federal Reserve wire
transfer,
(b) An Assignment and Assumption of Seller's
obligations under the Master Lease Documents,
(c) An Assignment and Assumption of Seller's
obligations under the Tenant Leases,
(d) An Assignment and Assumption of the
Operating Contracts Buyer elected to assume,
(e) An Assignment and Assumption of Master
Tenant's obligations under the Master Lease an the Tenant Submerged Land Lease,
(f) A closing statement,
(g) The Management Agreement defined in
Section 23, and
(h) The Office Lease.
9.3 Seller and Buyer shall execute and deliver to each other
such other instruments and documents, and shall pay or cause to be paid such
sums of money, to which the other party may be entitled pursuant to any of the
other provisions of this Agreement or which may be reasonably required in
connection with the Closing pursuant hereto. Each instrument and document to be
delivered at the Closing, the form of which is not attached to this Agreement as
an exhibit, shall be consistent with the applicable provisions of this
Agreement, shall be in the form or contain the information or provisions
provided for in this Agreement and shall otherwise be reasonably satisfactory in
form and substance to Seller and Buyer.
10. Closing Prorations and Adjustments. The following are to be
adjusted and prorated between Seller and Buyer as of 11:59 P.M. on the day
preceding the Closing Date (the "Apportionment Date"), and the net amount
thereof shall be added to (if such net amount is in Seller's favor) or deducted
from (if such net amount is in Buyer's favor) the payment required pursuant to
Section 2:
(a) Personal property taxes, assessments,
water and sewer rents and charges, utility fees and charges, and all other fees,
taxes and charges relating to or payable in connection with the use, occupancy,
repair and maintenance, ownership and operation of the Project, shall be
adjusted and prorated on the basis of the fiscal year for which assessed, or the
fiscal period covered by the appropriate invoice, xxxx or statement, or based on
the most recently available meter reading therefor. Metered utility charges for
the period from the last reading date prior to the Closing Date through the day
before the Closing Date shall be apportioned on the basis of such last reading,
but shall be reapportioned according to actual charges promptly after the first
reading following the Closing Date. Unmetered water charges shall be apportioned
on
17
the basis of the charges therefor for the same period in the preceding calendar
year, but applying the current rate thereto.
(b) Rents and other sums and charges (collectively,
"Rents") paid or payable by Tenants under the Tenant Leases shall be adjusted
and prorated to the extent paid by said tenants as of the Closing Date. Any
amount collected by Buyer or Seller after the Closing from tenants who owed
Rents for periods prior to the Closing shall be applied (i) first in payment of
Rents due for the period on or after the Closing Date, and (ii) second, in
payment of Rents due for the period before the Closing Date. Each such amount,
less any costs of collection (including reasonable counsel fees) reasonably
allocable thereto, shall be adjusted and prorated as provided above, and the
party who receives such amount shall promptly pay over to the other party the
portion thereof to which it is so entitled. Buyer shall use commercially
reasonable efforts to collect all such past due Rents from tenants, and shall
xxxx tenants, who owe Rents for periods prior to the Closing, on a monthly basis
following the Closing Date until amounts due are paid or such earlier date on
which Buyer ceases all xxxxxxxx to the tenant in question due to the expiration
or early termination of the subject Tenant Lease. Seller shall notify Buyer
promptly after a Seller receives any payment of Rents after the Closing. Any
payment by a tenant in an amount less than the full amount of Rents then due and
payable by such tenant shall be applied to Rents collectively in the same order
of priority as to time periods as is set forth in this section (c). Based upon
Buyer's review of the Rent Roll and the list of delinquent tenants, Buyer shall
inform Seller prior to the expiration of the Due Diligence Period which tenants,
if any, Seller shall be required to evict prior to Closing. Notwithstanding
anything contained herein to the contrary, provided the lease between Seller and
Xxxxx Xxxxxxx and/or South Florida Yachts is in good standing as of the Closing
Date and continues to be in good standing thereafter with no late rent payments,
Seller shall have the right to collect up to $100,000 in past due rent directly
from said tenant. Seller shall collect the past due rent at its sole risk and
shall not have any right to enforce the terms of the lease (i.e. eviction
rights) against said tenant after Closing.
(c) Any Lease Security held by a Seller, together with
accrued interest thereon wherever interest is provided for in the applicable
Tenant Leases or by law; provided, that any transferable non-cash security
deposits made by tenants shall be delivered to Buyer at the Closing, together
with such instruments of transfer as may be necessary to enable Buyer to succeed
to Seller's rights thereunder. Buyer shall indemnify and hold Seller harmless
from and against all claims by, and liabilities to, any tenants pertaining to
the application or return of the Lease Security paid over to Buyer or for which
Buyer receives a credit against the Purchase Price.
(d) Charges and transferable deposits under
transferable assumed Operating Contracts. Buyer shall pay the termination fee
for any Operating Contracts it elects not to assume if such agreements contain
commercially reasonable terms or if such agreements are with non-affiliates of
any Seller or of their respective principals. Seller shall pay any termination
fees for any Operating Contracts not assumed by Buyer that contain commercially
unreasonable terms or are with affiliates of any Seller or of their respective
principals.
(e) The Purchase Price includes all food, beverages,
cleaning and other restaurant supplies located at the Project at no additional
charge. To the extent that the
18
inventory is insufficient as of the Closing Date to continue the routine
operations of the Raw Bar Space without interruption, Seller shall reimburse the
Buyer for all inventory costs incurred by Buyer to achieve such level as of the
Closing Date.
(f) Any funds remaining in vending and
telephone machines shall be cleared by Seller prior to the Closing and such
amounts retained by Seller. Seller shall retain all accounts receivable and
accounts payable as of the Closing Date. Seller shall also remove all cash from
any cash registers and safes at the Project on the Closing Date.
(g) All closing and other transaction costs
shall be paid as follows: Seller shall be responsible for the payment of: (i)
all documentary stamp taxes and surtaxes due if any, (ii) the cost of the Survey
to Buyer, (iii) the cost to record any title curative instruments, and (iv) all
of Seller's attorneys fees and costs. Buyer shall be responsible for the payment
of: (i)the cost of recording the Assignment of the Master Lease Documents or
Memoranda with respect thereto, (ii) all costs associated with Buyer's due
diligence regarding the Project, (iii) any documentary stamp taxes and
intangible taxes associated with any financing of the Purchase Price, (iv)
Buyer's attorneys fees and costs, and (v) the cost of any title insurance
policy.
To expedite the closing process, the parties may use the last day of the month
immediately prior to Closing Date to calculate the estimated apportionment of
certain items and within 60 days after Closing the parties shall re-prorate such
items as of the Apportionment Date and pay any necessary adjustments. Any income
received or expense incurred by a Seller or Buyer with respect to the Project
after the Closing shall be promptly allocated in the manner described herein,
and the parties shall promptly pay or reimburse any amount due. Within ten (10)
days after a request by either party, made not later than one year after the
Closing, accompanied by a statement in reasonable detail establishing (based on
information becoming available after the Closing or the discovery of errors in
the prorations made at Closing) that such party is entitled to a credit under
this Section 9 that was not accounted for at Closing, the other party shall pay
such credit (net of any such credit to which such other party may then be
entitled) to the requesting party pursuant to the payment obligations set forth
in this Section 9. The provisions of this Section 9 shall survive the Closing.
11. Assignment. Seller shall not have any right to assign this
Agreement. Buyer may assign this Agreement without need to first obtain consent
from Seller however the consent of both Buyers shall be required. Seller further
acknowledges that Buyer may elect to have Seller assign the Acquired Assets to
various entities affiliated with any Buyer and Seller shall reasonably cooperate
in connection therewith.
12. Indemnification. The Seller, jointly and severally, shall indemnify
and hold Buyer harmless from and against the following:
12.1 Any and all losses, costs, liabilities, damages or
deficiencies resulting from: (a) any misrepresentation, breach or failure of any
warranty; or (b) not fulfilling any agreement, covenant or undertaking of the
Seller, or any of them or (c) any failure of the Settlement Agreement or any
lawsuit by any party to the Second Amended Shareholders' Agreement against any
of Buyer, its affiliates or its principals, and any and all actions, suits,
19
proceedings, demands, assessments, judgments, costs and expenses incident to any
of the foregoing including, but not limited to, reasonable attorneys' fees at
all levels of trial, on appeal and in bankruptcy.
12.2 Any and all losses, costs, liabilities or damages arising
out of or resulting from Seller's breach or failure of the representations set
forth herein or from Seller's ownership, operation or administration of the
rights sold hereunder prior to the Closing Date, and any and all actions, suits,
proceedings, demands, assessments, judgments, costs and expenses incident to any
of the foregoing including, but not limited to, reasonable attorneys' fees at
all levels of trial, on appeal and in bankruptcy.
12.3 Any taxes, charges, fees, interest or penalties relating
to or arising out of the breach of the representations contained herein or out
of the failure of Seller to pay or accrue any taxes attributable to periods
prior to the Closing Date not paid as of the Closing Date; and any and all
actions, suits, proceedings, demands, assessments, judgments, costs and expenses
incident to any of the foregoing including, but not limited to, reasonable
attorneys' fees at all levels of trial, on appeal and in bankruptcy.
The provisions of this Section 12 shall expressly survive the Closing.
13. Brokerage Commission. Seller and Buyer each represent and
warrant to the other than neither of them has employed any real estate or other
broker in connection with this transaction. Seller hereby agrees to defend,
indemnify and hold harmless Buyer from and against . any claim by third parties
arising by, through, or under Seller, for brokerage, commission, finders or
other fees relative to this Agreement for the sale of the Acquired Assets, and
any court costs, attorneys' fees, or any other costs or expenses arising
therefrom. Buyer hereby agrees to defend, indemnify, and hold harmless Seller
from and against any claim by third parties arising by, through, or under Buyer,
for brokerage, commission, finders' or other fees relative to this Agreement for
the sale of the Acquired Assets, and any other costs, attorneys' fees, or, any
other costs or expenses arising therefrom. The provisions of this Section 13
shall survive the Closing.
14. Notices. Any notice provided or permitted to be given under this
Agreement must be in writing and may be served by, (i) overnight courier
service, addressed to the party to be notified, postage prepaid (ii) by
delivering the same in person to such party; or (iii) by telecopier provided the
sender obtains a confirmation of successful transmission. Notice given in
accordance with option (i) shall be effective upon actual delivery by overnight
courier service, and notice given in any other manner shall be effective only
upon receipt at the address of the addresses. For purposes of notice, the
addresses and telecopy numbers of Seller and Buyer are as follows:
To Seller: Xxxxxxx X. Xxxxxxxx, President
000 Xxx Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
20
With a copy to: Xxxxxxxx X. Aran, Esq.
Xxxx Xxxxxx & Xxxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
To Buyer: Bayshore Landings, LLC
c/o RCI Group
000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: 000-000-0000
With a xxx to: HMG/Bayshore LLC
0000 X. Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, President
Facsimile: 000-000-0000
With copy to: Xxxxxxx X. Xxxxxxxx, P.A.
Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
If to Escrow Agent: Xxxxxxx X. Xxxxxxxx, P.A.
Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
15. Governing Law; Venue; Jury Trial Waiver. This Agreement shall be
governed by and construed and enforced in accordance with, the laws of the State
of Florida. Any action or proceeding arising directly, indirectly or otherwise
in connection with, out of, related to or from this Agreement shall be litigated
only in courts having a situs within Miami-Dade County, State of Florida. Buyer
and Seller hereby waive their respective rights to a trial by jury in any action
or proceeding based upon, or related to, the subject matter of this Agreement,
whether arising in contract, tort or otherwise.
16. Destruction, Damage or Taking Before Closing. It at any time prior
to the Closing, any portion of the Leased Premises, Acquired Assets and/or the
Project is destroyed or damaged as a result of fire or any other cause
whatsoever, or becomes subject to condemnation or eminent domain proceedings,
Seller shall promptly give notice thereof to Buyer, and Buyer shall have fifteen
(15) days after such notice in which to either: (1) accept the assignment of the
21
Master Lease Documents, and/or Acquired Assets as applicable in their respective
destroyed and/or damaged condition, or subject to such condemnation or eminent
domain proceedings, by giving written notice thereof to Seller, in which event
at Closing Seller shall assign to Buyer all proceeds of insurance or
condemnation awards for such damage or condemnation with no reduction or
abatement in the Purchase Price; or (ii) terminate this Agreement by giving
notice to such effect to Seller, and upon the giving of such notice to Buyer,
the Escrow Agent shall promptly return Escrow Deposit to Buyer.
17. Radon Gas. Pursuant to Fla. Stat. 404.056, the following disclosure
is made:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantifies, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
18. Construction; Entire Agreement; Invalid Provisions. The headings of
the Sections contained in this Agreement are for convenience only and shall not
be taken into account in determining the meaning of any provision of this
Agreement. This Agreement and any documents delivered pursuant hereto shall be
construed without regard to the identity of the person who drafted the various
provisions thereof, and each and every provision of this agreement and such
other documents shall be construed as though all parties hereto had participated
equally in the drafting thereof, so that any rule of construction that a
document is to be construed against the drafting party shall not be applicable.
This Agreement (including the Exhibits and Schedules hereto) is the entire
agreement Seller and Buyer concerning the sale of the Acquired Assets and no
modifications hereof or subsequent agreement relative to the subject matter
hereof shall be binding on either party unless reduced to writing and signed by
the party to be bound. This Agreement supersedes all prior agreements,
discussions and conversations between the parties relating to the Project.
Except for the representations, warranties and covenants expressly contained in
this Agreement. If any provisions of this Agreement (except the provisions
relating to Seller's obligations to convey the Acquired Assets and Buyer's
obligation to pay the Purchase Price, the invalidity of either of which shall
cause this Agreement to be null and void) is held to be illegal, invalid of
unenforceable under present or future laws, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision bad never comprised a part of this Agreement;
and the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision of by its severance from this Agreement.
19. Recordation. This Agreement or a memorandum of this Agreement may
be recorded at the option of either party.
20. Attorney's Fees. In the event of litigation between the parties in
connection with the Agreement, the prevailing party shall be entitled to recover
its reasonable attorney's fees and
22
costs from the non-prevailing party. The obligation in the immediately preceding
sentence shall survive any termination of this Agreement or this Closing as a
surviving obligation.
21. Confidentially. Both Seller and Buyer covenant and agree not to
disclose the terms or existence of this Agreement to any person or entity, other
than to their respective attorneys and other representatives, and to certain
third parties such as bankers, tenants, the City and others with whom they must
communicate in order to consummate the proposed transaction, unless compelled by
law.
22. Time is of the Essence. Time is of the essence in this Agreement.
23. Management Agreement. At closing, the Buyer and Xxxxxxx Xxxxxxxx or
an entity owned and controlled by him shall execute the Management Agreement in
the form attached hereto as Exhibit "E" ("Management Agreement")
24. No Third Party Beneficiaries. The provisions contained in this
Contract are for the sole benefit of the parties to this Agreement and for the
successors and assigns, if any, of Buyer and shall not give rise to any rights
by or on behalf of anyone other than such parties.
25. Relationship of Parties. Nothing contained in this Agreement or in
the activities contemplated hereby shall be construed to create the relationship
of principal and agent, partnership, joint venture, trust, tenants in common or
any other relationship between the parties hereto other than separate and
distinct entities dealing at arm's length as Seller and Buyer, respectively, for
their own separate interests and benefit.
26. Improvements. Buyer hereby agrees that it shall invest at least
$3,000,000 in connection with making improvements to the Project after Closing.
27. I-Dine. Seller hereby discloses that it is a party to an agreement
with I-Dine that has a 60 day termination period. Seller shall cancel its
agreement with I-Dine as of the Closing Date and, notwithstanding anything to
the contrary in Section 10(d) or elsewhere in this Agreement Seller shall pay
any and all termination fees, penalties, charges and the like with respect to
the I-Dine agreement at Closing. At Closing $25,000.00 shall be held in escrow
by Escrow Agent to pay for any I-Dine charges that may be assessed after Closing
or against Buyer. Seller shall remain liable for all I-Dine charges even if the
escrow amount is insufficient to pay for I-Dine charges.
28. Trademarks and Other Rights. Hocus-Pocus hereby grants to Buyer the
right to use the Trademarks and Other Rights on a non-exclusive basis for the
term of the Master Lease and any extension thereof. Hocus-Pocus hereby
acknowledges that it has received $100.00 as express consideration for such
grant. Hocus Pocus further acknowledges that the Trade Marks and Other Rights
are freely assignable to any lender of Buyer or any third party in connection
with its use of the Raw Bar Space. Hocus Pocus shall execute any reasonable
documentation necessary in connection therewith. Buyer's continued right to use
the Trade Marks and Other Rights shall be conditioned upon Buyer maintaining
menu items, prices and food quality substantially similar to other Monty's Raw
Bars in Miami-Dade County, Florida; however Buyer
23
can add up to 30% additional items to the menu ("Operating Covenant"). In order
to assist Buyer in complying with the Operating Covenant Hocus Pocus shall
provide Buyer with written notice of any change in the menu items and Buyer
shall have 30 days to implement such change. For so long as Xxxxxxx X. Xxxxxxxx
or a company owned or controlled by him operates the Raw Bar Space pursuant to
the Management Agreement or other agreement the foregoing condition shall be
deemed to meet the Operating Covenant. The failure to meet the Operating
Covenant shall be grounds for Seller revoking its grant provided in this Section
28 after notice and expiration of a 30-day period of time to cure. The Seller's
decision to revoke such rights for failure to meet the Operating Covenant shall
be subject to challenge by the Buyer whose remedy shall be to submit the dispute
to a panel of three arbitrators of the American Arbitration Association (the
"AAA") in accordance with AAA Rules and the decision shall be final and binding.
Each party will select one arbitrator (the "Party Arbitrators") and the Party
Arbitrators will select the third arbitrator. The fees of the AAA for the
arbitration and the fees of the third arbitrator shall be shared equally. Each
party shall pay its Party Arbitrators' fees and its own attorney's fees and
costs. The provisions of this Section 28 shall survive the Closing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
respective dates shown below.
WITNESSES: SELLER:
BAYSHORE RESTAURANT MANAGEMENT
CORP., a Florida corporation
/s/ Xxxxx Xxxxxxxxxx
---------------------------------------------- By: /s/ Xxxxxxx X. Xxxxxxxx 5/12/04
Name: Xxxxx Xxxxxxxxxx ---------------------------------------------------
------------------------------------------------- Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------------- Date: 5/12/04
Name: Xxxxxx Xxxxxxxxx ---------------------------------------------------
-------------------------------------------
MONTY'S IN THE GROVE, INC., a Florida
corporation
/s/ Xxxxx Xxxxxxxxxx
---------------------------------------------- By: /s/ Xxxxxxx X. Xxxxxxxx 5/12/04
Name: Xxxxx Xxxxxxxxxx ---------------------------------------------------
------------------------------------------- Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------------- Date: 5/12/04
Name: Xxxxxx Xxxxxxxxx ---------------------------------------------------
-------------------------------------------
HOCUS-POCUS, INC., Florida corporation
/s/ Xxxxx Xxxxxxxxxx
---------------------------------------------- By: /s/ Xxxxxxx X. Xxxxxxxx 5/12/04
Name: Xxxxx Xxxxxxxxxx ---------------------------------------------------
------------------------------------- Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------------- Date: 5/12/04
Name: Xxxxxx Xxxxxxxxx ---------------------------------------------------
-------------------------------------------
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited
liability company
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------ ---------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxxx, Manager
/s/ Xxxxxxx X. Xxxxxxxxx Date: May 12, 2004
------------------------------------------------ ---------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
25
HMG BAYSHORE, LLC., a Florida limited
liability company
/s/ Xxxxx Xxxxxxxxxx
---------------------------------------------- By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxxx ---------------------------------------------------
---------------------------------------- Xxxxx Xxxxxxxxx, President
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------------- Date: 5/12/04
Name: Xxxxxx Xxxxxxxxx ---------------------------------------------------
----------------------------------------
26
JOINDER
-------
The undersigned hereby executes this joinder to confirm the accuracy of
Recitals A, B, C. D and G of the Agreement to which this joinder is attached and
to confirm its obligations to deliver the executed documents required by
Sections 3.1 and 9.1(q) thereof, in form and content reasonably acceptable to
Buyer, for $100.00 of the Purchase Price set forth in the Agreement.
GROVE MARINA MARKET, LTD., a Florida
limited partnership
By: Grove Marina Market, Inc., a Florida
corporation, its general partner
By: /s/ Xxxx X. O'Naghten
-----------------------------------------
Xxxx X. O'Naghten, President
Date: May 19, 2004
The undersigned, being all of the partners of Grove Marina Market, Ltd. hereby
consent to the foregoing joinder and the actions required thereunder.
GENERAL PARTNER
(owner of 1% ownership interest)
GROVE MARINA MARKET, INC.
By: /s/ Xxxx X. O'Naghten
---------------------------------------------
Xxxx X. O'Naghten, President
Date: May 19, 2004
LIMITED PARTNER:
(owner of 99% ownership interest)
AVIATION RESTAURANT INVESTMENT,
INC.
By: /s/ Xxxx X. O'Naghten
------------------------------------------------
Xxxx X. O'Naghten, President
Date: May 19, 2004
JOINDER AND CONSENT
-------------------
The undersigned, being the sole shareholder of Bayshore Restaurant
Management Corp. and Monty's in the Grove, Inc. hereby executes this joinder to
consent to and confirm its obligations under Sections 3.7 and 9.1(s) of the
Agreement to which this joinder is attached.
Witnesses: MONTY'S HOLDINGS, INC., a Florida
corporation
/s/ Xxxxx Xxx Xxxxxxx by: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------- -------------------------------------
Name: Xxxxx Xxx Xxxxxxx Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxx Xxxxx Date: 5/12/04
------------------------------------- -------------------------------------
Name: Xxxxxx Xxxxx
JOINDER AND CONSENT
-------------------
The undersigned, being all of the shareholders of Hocus Pocus, Inc.,
hereby consent to the obligations of Hocus Pocus, Inc. in Section 28 of the
Agreement to which this joinder is attached, and agree to cause Hocus Pocus,
Inc. to comply with its obligations thereunder for $100.00 of the Purchase Price
set forth in the Agreement.
Witnesses:
/s/ Xxxxx Xxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxx 5/12/04
---------------------------------- ----------------------------------------
Name: Xxxxx Xxx Xxxxxxx Xxxxxxx X. Xxxxxxxx (owns 50% interest)
/s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
/s/ Xxxxx Xxx Xxxxxxx /s/ Xxxxx Trainer 5/12/04
---------------------------------- ----------------------------------------
Name: Xxxxx Xxx Xxxxxxx Xxxxx Trainer (owns 50% interest)
/s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
FOR CERTAiN ASSETS
This First Amendment to Purchase. and Sale Agreement for Certain Assets
The ("Amendment") is entered into as of this 1st day of June 2004 by and among
BAYSHORE RESTAURANT MANAGEMENT CORP., a Florida corporation ("Bayshore"),
MONTY'S IN THE GROVE, INC., a Florida corporation, f/k/a, Terremark Stone Crabs,
Inc. ("Monty's Upstairs") and HOCUS-POCUS, INC., a Florida corporation
(`Hocus-Pocus") (Bayshore, Upstairs and Hocus-Pocus are sometimes collectively
referred to herein as, "Seller"), and BAYSHORE LANDINGS, LLC, a Florida limited
liability company ("Landings"), its successors and/or assigns and HMG BAYSRORE,
LLC. a Florida limited liability company ("HMG", its successors and/or assigns
and together with Landings, collectively, "Buyer").
RECITALS
A. On or about May 24, 2004 Seller and Buyer entered into that certain
Purchase and Sale Agreement for Certain Assets ("Agreement") whereby Buyer has
the right to purchase from Seller certain assets more particularly described in
the Agreement.
B. Seller and Buyer desire to modify the Agreement as specifically set
forth herein.
NOW, THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Effective Date. The parties hereby stipulate that the Effective Date
of the Agreement is June 1, 2004.
3. Due Diligence Period. The Due Diligence Period shall commence upon
Buyer's receipt of all other documents referenced in Section 4 of the Agreement
and the Seller's deliver to Buyer of complete Schedules for Schedules 7.2, 7.4,
7.6, 7. 10 and 7.16 of the Agreement and any other incomplete schedules
referenced therein. The parties acknowledge that the Seller has received some
due diligence materials but that the information provided is incomplete and the
information has been received piecemeal. Buyer shall prepare one package of Due
Diligence materials for the Seller to pick up ('Due Diligence Package"). Upon
Buyer's receipt of the Due Diligence Package the Due Diligence Period shall
begin and the Buyer shall provide written confirmation to Seller of the date
that the Due Diligence Period began. If the Buyer discovers that materials are
missing from the Due Diligence Package, the Buyer shall promptly provide written
notice oft he missing items to Seller and the Due Diligence Period shall be
extended the same number of days it takes the Seller to deliver the missing due
diligence documents set forth in the Buyer's notice to Buyer.
4. Conditions Precedent.
a. Submerged Land Leases. To date the seller has not delivered to the
Buyer a copy of the Tenant Submerged Land Lease (as defined in Recital G) and
the Buyer's as consultants have not been able to obtain a copy of it from the
public records. In the event that it is determined that the Tenant Submerged
Land Lease (or a submerged land lease for the portion of the submerged land
within the Lease Premises and any additional lans where docks surrently exisr on
submerged land that is not owned by the City) does not existm as a condition
precendent to Closing, the seller shall obtain a submerged land lease for at
least the term of the Lease and upon such economic terms acceptable to Buyer in
its sole and absolute discretion.
5 . Outside Closing Date. The term Outside Closing Date as defined in
Section 9 of the Agreement shall be changed from August 15, 2004 to September
15, 2004.
6. Post Closing Escrow. Seller hereby unconditionally and irrevocably
guarantees to Buyer the truth and accuracy or the representations and warranties
contained herein, the Seller's obligations under the Agreement, and the
indemnification obligations under Section 12 of the Agreement (collectively,
"Guaranteed Obligatons") At Closing $300,000 of the Purchase Price (`Escrow
Amount") shall be placed in escrow with the Escrow Agent for two years to secure
the Guaranteed Obligations. The Post C1osing provisions of Exhibit "B" to the
Agreement. Holdings hereby agrees to indemnify and hold harmless Buyer from and
against the matter set forth in Section 12 of the Agreement and that the Escrow
Amount may be used by Buyer to satisfy any of Holdings's obligations hereunder.
7. Counterparts. This Amendment may be executed in any number of
counterparts each of which when taken together shall constitute one complete
document. Facsimile signature may be deemed sufficient to expedite the execution
hereof.
8. Reaffirmation. Except as specifically set forth herein, the terms
and provisions of the Agreement shall remain unchanged and in full force and
effect.
(Signatures on next page)
IN WITNESS WHEREOF the parties hereto have executed this Amendment as
of the day and year first written above.
WITNESSES SELLER
BAYSHORE RESTAURANT MANAGEMENT CORP.,
a Florida corporation
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXX X. XXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Xxxxxx X. Xxxxxxxx Date: 06/01/04
MONTY'S IN THE GROVE, INC.,
a Florida Corporation
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXX X. XXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Xxxxxx X. Xxxxxxxx Date: 06/01/04
HOCUS-POCUS, INC., Florida corporation
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXX X. XXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Xxxxxx X. Xxxxxxxx Date: 06/01/04
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited
Liability company
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXX X. XXXXXX By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: Xxxxxx X. Xxxxxxxx Date: June 1, 2004
HMG BAYSHORE, LLC, a Florida limited
Liability company
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: XXXXXXX XXXXXXX By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
/s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx Date: 06/01/04
JOINDER
-------
Monty's Holdings, Inc. hereby executes this joinder acknowledge its
obligations under Sections 4(a) and 6 of the Amendment to which this joinder
attached.
MONTY'S HOLDINGS, INC.,
Florida corporation
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXX X. XXXXXX By:------------------------------
Xxxxxxx X. Xxxxxxxx, President
Date: 06/01/04
------------------------------------
Name:
-------------------------------
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT FOR CERTAIN ASSETS
This Second Amendment to Purchase and Sale Agreement for Certain Assets
("Amendment") is entered into as of this 13 day of July 2004 by and among
BAYSHORE RESTAURANT MANAGEMENT CORP., A florida corporation ("Bayshore"),
MONTY'S IN THE GROVE, INC., a Forida corporation, f/k/a, Terremark Stone Crabs,
Inc. ("Monty's Upsatirs"), and HOCUS-POCUS, INC, a Florida corporation
("Hocus-Pocus") (Bayhsore, Upstairs and Hocus-Pocus are sometimes collectively
referred to herein as, "Seller"), and BAYSHORE LANDINGS, LLC, a Forida limited
liability company ("Landings"), its successors and/or assigns and together with
Landings, collectively, "Buyer").
RECITALS
A. On or about May 24, 2004 Seller and Buyer entered into that certain
Purchase and Sale Agreement for Certain Assets whereby Buyer has the right to
purchase from Seller certain assets more particularly describes therein, which
Agreement was amended by virtue of that certain First Amendment to Purchase and
Sale Agreement for Certain Assets between the Buyer and Seller dated as of June
1, 2004 (as modified, the "Agreement")
B Seller and Buyer desire to modify the Agreement further at
specifically set forth herein.
NOW, THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
ther parties herefo agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Due Diligence Period. The Due Diligence Period is hereby extended
until July 26, 2004.
3. Submerged Land Leases. The parties have determined that the Tenant
Submerged Land Lease (as defined in Recital G of the Agreement) does not exist,
never did exist and is not appropriate. Therefore the requirement to deliver the
Tenant Submerged Land Lease at Closing is hereby deleted. Notwithstanding the
foregoing, the parties acknowledge that as a condition precent to Closing, a
submerged land lease is required between the State of Florida, Trustees of the
Internal Improvement Fund, and the City for that portion of the submerged land
in the Project commonly known as "Parcel C-2" (the "Parcel C-2 Submerged Land
Lease"). Seller shall deliver to Buyer a fully executed copy of the Parcel C-2
Submerged Land Lease at least 10 days before Closing. The terms and conditions
of the Parcel C-2 Submerged Land Lease as well as any payments or other monetary
or other concessions the City may require of the Buyer as a result of obtaining
the Parcel C-2 Submerged Land Lease must be acceptable to Buyer in its sole and
absolute discretion.
4. Waiver of Deed Restrictions. The parties acknowledge that waivers of
existing deed restrictions (collectively, the "Waivers") eith respect to that
portion of the Project commonly know as Parcel 5, Parcels A-2 and Parcel B-2 are
required as a condition precedent to Closing."). Seller shall deliver to Buyer a
fully executed copy of the Waivers at least 10 days prior to Closing. The terms
and conditions od the Waivers as wekk as any payments or other monetary or other
concessions the City may require of the Buyer as a result of obtaining the
Waivers must be acceptable to Buyer in its sole and absolute discretion.
5. Purchase Price. The Purchase Price is hereby increased to
$18.649.807.48.
6. Counterparts. This amendment may be executed in any number of
counterparts each of which when taken together shall constitute one cpmplete
document. Facsimile signature may be deemed sufficient to expedite the execution
hereof.
7. Reaffirmation. Except as specifically set forth herein, the terms
and provisions of the Agreement shall remain unchanged and in full force and
effect.
(Signatures on next page)
IN WITNESS WHEREOF the parties hereto have executed this Amendment as
of the day and year first written above.
WITNESSES SELLER
BAYSHORE RESTAURANT MANAGEMENT CORP., a Florida
corporation
Name: XXXXXXXXX XXXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
-----------------------------------
Name: Xxxx Xxxxx Date: 07/15/04
MONTY'S IN THE GROVE, INC., a Florida Corporation
Name: XXXXXXXXX XXXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
-----------------------------------
Name: Xxxx Xxxxx Date: 07/15/04
HOCUS-POCUS, INC., Florida corporation
Name: XXXXXXXXX XXXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
-----------------------------------
Name: Xxxx Xxxxx Date: 07/15/04
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited Liability
company
Name: Xxxxxx X. Xxxxxxxxx By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: XXXXXXX X. XXXXXXXXX Date: 07/15/04
------------------------------------ ----------------------------------
HMG BAYSHORE, LLC, a Florida limited Liability company
Name: XXXXXXX X. XXXXXXXXX By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
------------------------------------
Name: XXXXXX XXXXX Date: 07/15/04
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
FOR CERTAIN ASSETS
This Third Amendment to Purchase and Sale Agreement for Certain Assets
("Amendment") is entered into as of this ____day of July 2004 by and among
BAYSHORE RESTAURANT MANAGEMENT CORP., a Florida corporation ("Bayshore"),
MONTY'S IN THE GROVE, INC., a Florida corporation, f/k/a, Terremark Stone Crabs,
Inc. ("Monty's Upstairs"), and HOCUS-POCUS, INC., a Florida corporation
("Hocus-Pocus") (Bayshore, Upstairs and Hocus-Pocus are sometimes collectively
referred to herein as, "Seller"), and BAYSHORE LANDINGS, LLC, a Florida limited
liability company ("Landings"), its successors and/or assigns and HMG BAYSHORE,
LLC, a Florida limited liability company ("11MG", its successors and/or assigns
and together with Landings, collectively, "Buyer").
RECITALS
A. On or about May 24, 2004 Seller and Buyer entered into that certain
Purchase and Sale Agreement for Certain Assets whereby Buyer has the right to
purchase from Seller certain assets more particularly described therein, which
Agreement was amended by virtue of that certain First Amendment to Purchase and
Sale Agreement for Certain Assets between the Buyer and Seller dated as of June
1 , 2004 and that Second Amendment to Purchase and Sale Agreement for Certain
Assets between the Buyer and Seller dated as of July 13, 2004 (as modified, the
"Agreement")
B. Seller and Buyer desire to modify the Agreement further as
specifically set forth herein. S
NOW, THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1 . Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Due Diligence Period. The Due Diligence Period is hereby extended
until July 30, 2004 at 5:00 PM.
3. Counterparts. This Amendment may be executed in any number of
counterparts each of which when taken together shall constitute one complete
document. Facsimile signature may be deemed sufficient to expedite the execution
hereof. S
4. Reaffirmation. Except as specifically set forth herein, the terms
and provisions of the Agreement shall remain unchanged and in full force and
effect.
(Signatures on next page)
IN WITNESS WHEREOF the parties hereto have executed this Amendment as
of the day and year first written above.
WITNESSES SELLER
BAYSHORE RESTAURANT MANAGEMENT CORP., a Florida
corporation
Name: XXXX XXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
------------------------------------
Name: Xxxxx Xxxxxxx Date: 07/26/04
MONTY'S IN THE GROVE, INC., a Florida Corporation
Name: XXXX XXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
------------------------------------
Name: Xxxxx Xxxxxxx Date: 07/26/04
HOCUS-POCUS, INC., Florida corporation
Name: XXXX XXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
------------------------------------ ----------------------------------
Name: Xxxxx Xxxxxxx Date: 07/26/04
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited Liability
company
Name: By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: Date:
------------------------------------ ----------------------------------
HMG BAYSHORE, LLC, a Florida limited Liability company
Name: By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
Name: XXXXX XXXXXXXXXX Date: 07/26/04
------------------------------------ ----------------------------------
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited
Liability company
Name: By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: Date: 8/3/2004
------------------------------------ ----------------------------------
HMG BAYSHORE, LLC, a Florida limited
Liability company
Name: By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
Name: Date:
------------------------------------ ----------------------------------
FOURTH AMENDMENT TO
PURCRASE AND SALE AGREEMENT
FOR CERTAiN ASSETS
This Fourth Amendment to Purchase and Sale Agreement for Certain Assets
("Amendment") Is entered into as of this 20th day of July 2004 by and among
XXXXXXXX RESTAURANT MANAGEMENT CORP., a Florida corporation, f/k/a, Terremark
Stone Crabs, Inc. (Monty's Upstairs"), and ("Bayshore"). MONTY'S IN THE GROVE.
INC., a Florida corporation~ f/k/a, and HOCUS-POCUS, INC., a Florida corporation
("Hocus-Pocus") (Bayshore, Upstairs and Hocus-Pocus are sometimes collectively
referred to herein as, "Seller"), and BAYSHORE LANDINGS, LLC, a Florida limited
liability company ("Landings"), its successors and/or assigns and HMG BAYSHOR.E,
LLC, a Florida limited liability company ("HMG", its successors and/or assigns
and together with Landings, collectively, "Buyer").
RECITALS
A On or about May 24, 2004 Seller and Buyer entered into that certain
Purchase and Sale Agreement for Certain Assets whereby Buyer has the right to
purchase from Seller certain assets more particularly described therein, which.
Agreement was amended by virtue of that certain First Amendment to Purchase and
Sale Agreement for Certain Assets between the Buyer and Seller dated as of June
1, 2004 that Second Amendment to Purchase and Sale Aggrement for Certain Assets
between the Buyer and Seller dated as of July 13, 2004; and that Third Amendment
to Purchase and Sale Agreement for Certain Assets between the Buyer and Seller
dated as of July 26, 2004 (as modified, the "Agreement")
B Seller and Buyer desire to modify the Agreement further as
specifically set forth herein.
NOW, THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and.sufficiency .of which.are hereby acknowledged,
the parties hereto agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Due Diligence Period. The Due Diligence Period is hereby extended
until August 6, 2004 at 5:00 PM.
3. Closing Date. Despite the extension of the Due Diligence Period
Buyer acknowledges that it is using reasonable attempts to close the transaction
by August 13, 2004; however this acknowledgement shall not modify the express
terms of the Agreement.
4. Environmental Issues. Seller shall be obligated to close any exiting
monitoring xxxxx located at the Project In accordance with all applicable law
and regulations and provide to Buyer written confirmation thereof from the
applicable governmental entity or agency at least three(3) business days prior
to Closing.
5. Use of Monty's Trademarks. For clarification purposes only, the
rights granted in Section 28 of the Agreement shall include but not be limited
to the sale of merchandise (e.g. hats, t-oshirts, glasses). The provisions of
this Section shall survive Closing.
6. Counterparts. This Amendment may be executed in any number of
counterparts each of which when taken together shall constitute one complete
document. Facsimile signature may be deemed sufficient to expedite the execution
hereof.
7. Reaffirmation. Except as specifically set forth herein, the terms
and provisions of the Agreement shall remain unchanged and in full force and
effect.
(Signatures on next page)
IN WITNESS WHEREOF the parties hereto have executed this Amendment as
of the day and year first written above.
WITNESSES SELLER
BAYSHORE RESTAURANT MANAGEMENT CORP., a Florida
corporation
Name: XXXXX XXX XXXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Xxxxx Xxx Xxxxxxx Date: 07/29/04
------------------------------------ ----------------------------------
MONTY'S IN THE GROVE, INC., a Florida Corporation
Name: XXXXX XXX XXXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Xxxxx Xxx Xxxxxxx Date: 07/29/04
------------------------------------ ----------------------------------
HOCUS-POCUS, INC., Florida corporation
Name: XXXXX XXX XXXXXXX By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Xxxxx Xxx Xxxxxxx Date: 07/29/04
------------------------------------ ----------------------------------
(Signatures on next page)
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited
Liability company
Name: By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: Date:
HMG BAYSHORE, LLC, a Florida limited
Liability company
Name: Xxxxxx Camaroti By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
Name: Xxxxx Xxxxxxxxxx Date: 7/30/04
------------------------------------ ----------------------------------
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited Liability
company
Name: By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: Date: 8/3/2004
------------------------------------ ----------------------------------
HMG BAYSHORE, LLC, a Florida limited Liability company
Name: By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
Name: Date:
------------------------------------ ----------------------------------
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
FOR CERTAIN ASSETS
This Fifth Amendment to Purchase and Sale Agreement for Certain Assets
(`Amendment") IS entered into as of this 6th day of August 2004 by and among
BAYSHORE RESTAURANT MANAGEMENT CORP., a Florida corporation ("Bayshore"), MONTYS
IN THE GROVE, INC. a FIorida corporation, f/k/a, Terremark Stone Crabs, Inc.
("Monty's Upstairs"), and HOCUS~POCUS, INC., Florida corporation ("Hocus-Pocus")
(Bayshore, Upstairs and Hocus-Pocus are sometimes collectively referred to
herein as. "Seller"), and BAYSHORE LANDINGS, LLC, a Florida limited liability
company ("Landings"), its successors and/or assigns and HMG BAYSHORE, LLC, a
Florida limited liability company ("HMG". its successors and/or assigns and
together with Landings, collectively, "Buyer).
RECITALS
A. On or about May 24, 2004 Seller and Buyer entered into that certain
Purchase and Stile Agreement for Certain Assets whereby Buyer has the right to
purchase from Seller certain assets more particularly described therein, which
Agreement was amended by virtue of that certain First Amendment to Purchase and
Sale Agreement for Certain Assets between the Buyer and Seller dated us of June
1. 2004; that Second Amendment to Purchase and Sale Agreement for Certain Assets
between the Buyer and Seller dated as of July 13, 2004; that Third Amendment
Purchase and Sale Agreement for Certain Assets between the Buyer and Seller
dated as of July 26, 2004; and that Fourth Amendment to Purchase and Sale
Agreement for Certain Assets between the Buyer and Seller dated as of July 30,
2004 (as modified, the "Agreement").
B. Seller and Buyer desire to modify the Agreement further as
specifically set forth herein.
NOW, THEREFORE. in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged. the
parties hereto agree as follows:
1 . Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2, Due Diligence Pcriod. The Due Diligence Period is hereby extended
until August 11, 2004 at 5:00 PM.
3. Closing Date Despite the extension of the Due Diligence Period Buyer
acknowledges that it is using commercially reasonable attempts to close the
transaction by August 19, 2004; however this acknowledgement shall not modify
the express terms of the Agreement.
4. Counterparts. This Amendment may be executed in any number of
counterparts each of which when taken together shall constitute one complete
document. Facsimile signature may be deemed sufficient to expedite the execution
hereof.
5. Reaffirmation. Except as specifically set forth herein, the terms
and provisions of the Agreement shall remain unchanged and in full force and
effect.
(Signatures on next page)
IN WITNESS WHEREOF the parties hereto have executed this Amendment as
of the day and year first written above.
WITNESSES SELLER
BAYSHORE RESTAURANT MANAGEMENT CORP., a Florida
corporation
Name: By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Date: 8/06/04
------------------------------------ ----------------------------------
MONTY'S IN THE GROVE, INC., a Florida Corporation
Name: By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Date: 8/06/04
------------------------------------ ----------------------------------
HOCUS-POCUS, INC., Florida corporation
Name: By:
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name: Date: 8/06/04
------------------------------------ ----------------------------------
(Signatures on next page)
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited Liability
company
Name: By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: Date:
------------------------------------ ----------------------------------
HMG BAYSHORE, LLC, a Florida limited Liability company
Name: Xxxxxxxx Xxxxxxx By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
Name: Xxxxx Xxxxxxxxxx Date: 8/9/04
------------------------------------ ----------------------------------
BUYER:
BAYSHORE LANDINGS, LLC, a Florida limited Liability
company
Name: Xxxx Xxxxx Xxxxxx By:
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Name: Xxxxxx X. Xxxxxx Date: 8/6/04
------------------------------------ ----------------------------------
HMG BAYSHORE, LLC, a Florida limited Liability company
Name: By:
------------------------------------ ----------------------------------
Xxxxx Xxxxxxxxx, President
Name: Date:
------------------------------------ ----------------------------------
