1
EXHIBIT 2.1
ASSET SALE AND PURCHASE AGREEMENT
This ASSET SALE AND PURCHASE AGREEMENT (hereinafter, the "Agreement")
is entered on the 26th day of February 2001 between Xxxxxxxx Xxxxxx, Inc., a
Massachusetts corporation ("Buyer") and Wall Street Deli, Inc., a Delaware
corporation ("WSDI"), and Sandwich Chef of Illinois, Inc., an Illinois
corporation and wholly-owned subsidiary of WSDI ("SCII") (each of WSDI and SCII
individually referred to as a "Seller" and collectively referred to as
"Sellers") for the assignment and assumption of rights and duties under certain
leases, and the sale and purchase of certain assets. Xxxxxxxx Xxxxxx Group
Limited, joins in the execution of this Agreement solely to confirm its
obligations pursuant to Paragraph 8.f of this Agreement.
RECITALS
WHEREAS, WSDI is the lessee under certain leases and is the owner of
certain assets located at those certain premises identified on Schedules "X-0,"
"X-0," "X-0," "X-0," and "A-5" hereto; and
WHEREAS, SCII, is the lessee under certain leases and is the owner of
certain assets located at those certain premises identified on Schedules "A-6"
and "A-7" hereto; and
WHEREAS, WSDI is currently operating a delicatessen and sandwich shop
and catering business at each of the respective premises identified on Schedules
"A-1" through "A-7" (each "a Leased Premise" and collectively "the Leased
Premises") under the trade name Wall Street Deli (R); and
WHEREAS, WSDI is the lessee of certain equipment, furniture and
fixtures under leases identified on Schedules "D-1" through "D-7" hereto
(hereinafter referred to collectively as the "Equipment Leases") with respect to
equipment, furniture and fixtures used in the conduct of the Sellers' business
on the Leased Premises and WSDI is the purchaser of certain goods and services
under contracts identified on Schedules "E-1" through "E-7" (collectively, the
"Supply Contracts"), which goods and services are used in the conduct of
Sellers' business on the Leased Premises; and
WHEREAS, WSDI and SCII are the owners of leasehold improvements,
furniture, fixtures, furnishings, equipment, spare parts, packaging and loose
tools identified on Schedules "B-1" through "B-7" hereto, and inventory used in
the conduct of the Sellers' business on the Leased Premises, (collectively such
leasehold improvements, furniture, fixtures, furnishings, equipment, inventory,
spare parts, packaging, loose tools and all other items of tangible property
used by Seller in the conduct of its business at any of the Leased Premises and
not sold in the ordinary course of business are referred to as the "Tangible
Assets"); and
WHEREAS, Sellers desire to assign the Premises Leases, the Equipment
Leases and the Supply Contracts and sell the Tangible Assets to Buyer and the
Buyer desires to accept Sellers' assignment of the Premises Leases, the
Equipment Leases and the Supply Contracts (which Buyer elects to assume pursuant
to Paragraph 1.b(6) of this Agreement) and to purchase the Tangible Assets from
the Sellers on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the payment of the Purchase
Price set forth herein, along with the mutual covenants, representations and
warranties set forth in this Agreement, the Buyer and the Sellers hereby agree
as follows:
Page 4 of 15
2
1. Sale and Purchase of Assets.
a. At the Closing as herein below provided, Sellers shall assign to the
Buyer for each respective Leased Premises the Premises Lease, Equipment
Leases and such of the Supply Contracts designated by Buyer in writing
at least five (5) days prior to Closing. Sellers shall sell the
Tangible Assets, located in or on each respective Leased Premises to
Buyer. Buyer shall assume the Sellers' obligations under the Premises
Leases, Equipment Leases, and such designated Supply Contracts. Buyer
shall purchase the Tangible Assets located in or on each respective
Leased Premises from the Seller, free of all liabilities and
encumbrances, upon the terms and conditions set out in this Agreement.
b. The assets to be sold and transferred by Sellers and acquired by Buyer
as to each Leased Premises are:
(1) Premises Lease. The rights of the Seller under the lease to
the respective Leased Premises;
(2) Equipment Leases. The rights of the Seller as the lessee under
any and all operating leases or capital leases of equipment,
furniture and fixtures located within the respective Leased
Premises;
(3) Fixtures, etc. All furniture, fixtures, furnishings, and other
equipment used by Seller in the conduct of the business (these
assets are included in the Tangible Assets);
(4) Leasehold Improvements. Any additions to or customer build-out
of the Leased Premises (these assets are included in the
Tangible Assets);
(5) Inventory. All inventory consisting of all food and non-food
items, consumables and supplies located on the respective
Leased Premises as of Closing.
(6) Supply Contracts. As to each of the Supply Contracts which
Buyer elects to acquire by written notice to the Sellers not
less than five (5) days prior to the Closing, the Sellers'
rights under such Supply Contracts as are assignable to the
Buyer.
(7) Permits and Licenses. Set forth on Schedules "F-1" through
"F-7" hereto is a listing of all governmental permits or
licenses under which Seller is operating its business at each
Leased Premises, respectively. To the extent transferable or
assignable, any and all such licenses and permits shall be
assigned, conveyed and transferred to Buyer at Closing. To the
extent said licenses or permits are not assignable or
transferable, Seller will execute any documents necessary to
facilitate issuance of any necessary licenses to the Buyer.
Application for the transfer and/or issuance of any licenses
necessary for the Buyer to operate businesses on the Leased
Premises shall be the responsibility and expense of the Buyer.
(8) Instruments of Transfer. At the Closing:
(i) Sellers will sell to Buyer and Buyer will purchase
from Sellers the respective Tangible Assets of the
Sellers, said sale and purchase to be evidenced by a
Blanket Xxxx of Sale and Conveyance in substantially
the form annexed hereto as Exhibit "1" for each
Leased Premises;
Page 5 of 15
3
(ii) Sellers will assign to Buyer and Buyer will assume
each respective Premises Lease pursuant to an
Assignment and Assumption Agreement in substantially
the form annexed hereto as Exhibit "2"; and
(iii) Sellers will assign to Buyer, and Buyer will assume
each respective Seller's Equipment Leases and Supply
Contracts (which Buyer has elected to acquire)
pursuant to an Assignment and Assumption Agreement of
the form Annexed as Exhibit "3" hereto.
2. License of Seller's Trade Name, Trademarks or Service Marks. At the
Closing, Buyer and Seller shall enter into a Trademark Licensing
Agreement in substantially the form attached hereto as Exhibit "4"
pursuant to which the Buyer shall have use of Seller's Trademarks and
Tradename as set forth in the Trademark Licensing Agreement. The
execution and delivery of the Trademark Licensing Agreement is a
condition precedent to the Buyer's obligations to close under this
Agreement.
3. Purchase Price. The total Purchase Price for the assignment of the
rights pursuant to the Premises Leases, Equipment Leases and Supply
Contract and for the sale and purchase of the of the Tangible Assets,
all as described in Paragraph 1.b shall be Eight Hundred Fifty Thousand
and 00/100 Dollars (US $850,000.00), adjusted as provided in Paragraph
4 below, and will be paid to Sellers at Closing by cashier's check or
other good funds.
4. Adjustments to Purchase Price. At the Closing, the Purchase Price shall
be adjusted for the items listed below. If the amount of any of these
items are not known or cannot be determined as of the Closing, the
parties will effect such payment promptly upon the determination
thereof.
a. all Rent shall be pro-rated between the Buyer and the Sellers,
with the Buyer being responsible for all Rent accruing after
the date of the Closing;
b. any Percentage Rent accrued but not yet paid under any of the
Premises Leases as of the Closing Date will be credited to the
Buyer;
c. personal property taxes shall be prorated between the Buyer
and Sellers as of the date of Closing, based upon the most
recent available business property tax xxxx or statement;
d. deposits with utilities, security deposits, and other deposits
assumed by the Buyer (if any) shall be credited to the
applicable Seller;
e. any utilities separately metered and paid by the Seller will
be transferred to the account of the Buyer as of the date of
Closing, with Sellers responsible for the payment of charges
incurred prior to the Closing date;
f. any insurance reimbursement due Sellers for any loss or damage
caused by fire, wind, flood, water damage or other natural
calamity at any Leased Premises (any such event hereinafter
referred to as a "Casualty Event") occurring between the date
of this Agreement and the Closing as to which Buyer in its
discretion has determined as not sufficiently severe to
Page 6 of 15
4
terminate or interrupt the business being conducted at such
Leased Premises shall be credited to the Buyer;
g. any escrows pursuant to Paragraph 8.c or Paragraph 17.b. of
this Agreement; and
h. any amount required to be spent by Buyer to bring any Leased
Premise into compliance with the requirements of applicable
law or regulation following any governmental inspection or
investigation prior to Closing or with the requirement of the
relevant Lease.
5. Excluded Assets. Notwithstanding anything to the contrary contained
herein, the Tangible Assets to be conveyed at the Closing shall not
include any cash in cash registers, bank accounts, refundable deposits,
tax refunds, corporate records and accounts receivable attributable to
Sellers' operation of the Leased Premises prior to the Closing.
6. Time and Place of Closing. The Closing shall take place at 10:00 a.m.
on the later to occur of (i) February 28, 2001 and (ii) the first
business day following the satisfaction of all conditions precedent to
closing set forth in this Agreement (but in no event later than March
31, 2001). Buyer and Sellers anticipate that the transaction
contemplated by this Agreement will be closed by the use of courier,
electronic mail, facsimile transmission, wire transfer of funds and
other available means of simultaneous communication while the parties
to this Agreement are physically in different locations. The parties
may agree, by written amendment to this Agreement to instead hold an
in- person Closing at a time and place mutually agreed upon by the
parties. In the event the Closing does not occur on February 28, 2001,
the Buyer and the Sellers agree to use diligent efforts to cooperate in
obtaining any requisite third party consents and approvals including
any governmental licenses and permits. The Closing may be adjourned to
another date and/or time, or relocated to another location, but only
upon Buyer's and Sellers' written consent. The foregoing
notwithstanding, if the Closing has not occurred by March 31, 2001,
Buyer or WSDI can, by written notice to the other parties, terminate
this Agreement and in the event of such a termination, no party shall
have any further obligation or liability hereunder.
7. Disclaimer by Buyer; Mutual Indemnification.
a. THE ONLY OBLIGATIONS OF THE SELLERS BEING ASSUMED BY THE BUYER PURSUANT
TO THIS AGREEMENT ARE OBLIGATIONS OF SELLERS ARISING ON AND AFTER THE
DATE OF CLOSING UNDER THE PREMISES LEASES, THE EQUIPMENT LEASES AND
SUCH OF THE SUPPLY CONTRACTS AS BUYER EXPRESSLY ASSUMES AT THE CLOSING.
BUYER DISCLAIMS ANY RESPONSIBILITY FOR ALL OTHER OBLIGATIONS AND
LIABILITIES OF SELLERS FOR WHICH THE SELLERS ACKNOWLEDGE THEY REMAIN
LIABLE.
b. Buyer will indemnify, hold harmless and defend Sellers and Sellers'
respective successors, transferees and assigns from and against any
liability for the Buyer's non-payment or other breach of any obligation
assumed pursuant to any Premises Lease, Equipment Lease or Supply
Contract. This indemnity shall survive the Closing of the transaction
contemplated by this Agreement.
c. Each Seller will, jointly and severally, indemnify, hold harmless and
defend Buyer and Buyer's successors, transferees and assigns from and
against any loss, damage, claim or liability arising from
Page 7 of 15
5
any obligation of Sellers not expressly assumed by the Buyer pursuant
to this Agreement. This indemnity shall survive the Closing of the
transaction contemplated by this Agreement.
8. Conditions Precedent to the Parties Obligations to Close.
a. The parties' respective obligations to close the transaction
contemplated by this Agreement are contingent upon:
(1) Approval by the applicable Landlord of the assignment of the
Premises Lease for the Mercantile Exchange described on
Schedule "A-4" and at least five (5) of the other six (6)
Premises Leases along with the conveyance of the Tangible
Assets located on those Leased Premises, and the assignment of
the Equipment Leases associated with the respective Leased
Premises being assigned; and
(2) receipt of a written instrument evidencing said Landlord's
approval of the assignment of the Premises Lease in a form
reasonably satisfactory to Buyer, said approval to contain
estoppel provisions acceptable to the Buyer.
b. The form of Assignment and Assumption Agreement attached as Exhibit "2"
is deemed acceptable to Buyer, and the form of Consent and Lease
Estoppel attached as Exhibit "5" is deemed acceptable to Buyer for
purposes of this Paragraph 8.
c. In the event that the Buyer is obligated to close even though the
Landlord's consent for the assignment of the seventh Premises Lease has
not been delivered, $100,000.00 of the Purchase Price shall be
deposited into escrow with the Buyer's counsel pursuant to a mutually
satisfactory Escrow Agreement. The Seller agrees to continue in good
faith after the Closing to seek the remaining Landlord's consent to the
assignment of the remaining Premises Lease. This obligation shall
survive the Closing. Upon receipt of the remaining Landlord's consent,
the remaining Premises Lease and related Equipment Leases will be
assigned to the Buyer and the associated Tangible Assets will be
conveyed to the Buyer, at which time the $100,000.00 withheld from the
Purchase Price held by the Escrow Agent will be paid to the Seller.
d. Buyer agrees to cooperate and assist with the Sellers' efforts to
secure Lease Assignments and Landlord consents required to satisfy this
contingency. Buyer further agrees to provide any Landlord with such
financial statements and other information as any Landlord may
reasonably request for said Landlord's use in considering the request
for an assignment of the Premises Lease. Such information shall be
provided to said Landlord as soon as practicable following Buyer's
receipt of Landlord's request for the information.
e. The parties agree that to facilitate the approval by a Landlord, upon
request of a Landlord, an Assignment and Assumption Agreement with
respect to a Leased Premises will be executed by the appropriate Seller
and Buyer prior to the closing for submission to such Landlord's review
and consent. However, such an executed Assignment and Assumption
Agreement will be deemed as between the parties as not delivered until
all other closing conditions and deliveries have been satisfied. All
fully executed Lease Assignments and Landlord's consents will be
returned to the Buyer's attorney and held in escrow by Buyer's attorney
pending Closing.
Page 8 of 15
6
f. If required as a condition of any of the Landlord's consent to the
assignment of any Premises Lease, Xxxxxxxx Xxxxxx Group Limited,
Dublin, Ireland, (the Buyer's parent company) shall execute a guarantee
of the Buyer's performance of the obligations of the Tenant under the
Premises Lease arising on and after the Closing Date, said guarantee to
be in form and substance reasonably acceptable to Buyer and Xxxxxxxx
Xxxxxx Group Limited. Xxxxxxxx Xxxxxx Group Limited, has executed this
Agreement solely to acknowledge its responsibility under this Paragraph
8.f.
9. Additional Conditions Precedent to Buyer's Obligation to Close.
a. The Buyer's obligation to close the transaction contemplated
under this Agreement shall be further contingent upon the
Buyer's ability to hire or retain managers and employees
necessary for Buyer's operation of the business at each Leased
Premises. Sellers will deliver to Buyer, as soon as is
practicable after the execution of this Agreement, a list of
Sellers' employees employed at each of the Leased Premises,
identified by position, along with identification of the
employees' duties, wages and benefits (the "Employees").
Sellers agree that, following the execution of this Agreement
by all parties, Buyer may contact the Employees regarding
employment by the Buyer following the Closing. Buyer agrees to
use its best efforts to identify, and hire, or arrange to hire
such of the Employees as it deems reasonably necessary for the
operation of the Leased Premises. Seller agrees that, for a
period of 60 days following the closing, it will not solicit
or hire any Employees hired by Buyer.
b. The Buyer's obligation to close the transaction contemplated
under this Agreement shall be further contingent upon the
Buyer's receipt of all necessary governmental licenses or
permits which Buyer believes are necessary for the operation
of the delicatessen and sandwich shop and catering business by
Buyer at each Leased Premise on or after the Closing. Buyer
agrees to use commercially reasonably efforts to apply for and
obtain all such licenses and permits promptly following the
execution and delivery of this Agreement.
10. Catering Business. During the six-month period ended December 31, 2000,
Sellers' catering sales at the Leased Premises were, in the aggregate
$303,692.31. Set forth on Schedules G-1 through G-7 hereto is a listing
of each customer, its address and telephone number who represented at
least $1,000.00 of catering sales at the respective Leased Premises
during said six-month period and the cumulative amount of such
customer's sales during said six-month period. Seller agrees and
covenants that, for a period of one hundred and twenty (120) days
following the Closing, (i) any inquiry from any such customer
identified on Schedules G-1 through G-7 who contact the Seller through
its toll-free number to provide catering services will be referred to
the Buyer's telephone number for the Leased Premises and (ii) Seller
will not solicit, request or otherwise contact any such customer for
purposes of obtaining catering business therefrom.
11. Conduct of Business Prior to Closing. Sellers agree that between the
date hereof and the Closing they will conduct business at each of the
Leased Premises only in the usual course of business, consistent with
past practice and except with the prior written consent of the Buyer,
which consent will not be unreasonably withheld, the Sellers will not:
a. amend, modify or otherwise change any of the terms of any of the
Premises Leases, Equipment Leases or Supply Contracts;
Page 9 of 15
7
b. waive, consent to or agree to waive or consent to any failure of
performance by any contracting party to any of the Premises Leases,
Equipment Leases or Supply Contracts;
c. fail to maintain the physical and sanitary condition of each of the
Leased Premises;
d. take any action, or omit to take any action, which would constitute a
default on its part under any Premises Lease, Equipment Lease or Supply
Contract;
e. dispose of any equipment, furniture or fixtures located at the Leased
Premises or dispose of any Inventory except in the ordinary course of
business; or
f. fail to inform the Buyer of any of the foregoing or of any casualty
event at any of the Leased Premises.
12. Documents to Be Delivered to Buyer at the Closing. At the Closing,
Sellers shall deliver to Buyer, properly executed, the following
documents (collectively referred to as the "Sellers' Documents):
a. all Bills of Sale with warranties and affidavit of title;
b. Assignments and Assumptions of the Premises Leases for a minimum of six
(6) of the seven (7) Leased Premises, to include the Mercantile
Exchange Premises Lease described on Schedule "A-4";
c. Landlord consents for the Premises Leases being assigned;
d. all other consents of parties to Supply Contracts and Equipment Leases
and Assignments thereof as may be needed for the Leased Premises being
conveyed to Buyer, all in form and substance reasonably satisfactory to
Buyer;
e. the Trademark Licensing Agreement;
f. a certificate of an executive officer of each Seller, as applicable
that the Sellers' representations and warranties set forth in
Paragraphs 14.a through 14.n remain true and correct as of the date of
Closing and further that there have been no material adverse changes in
any of the Leased Premises between the execution of this Agreement and
Closing and that there has been no Casualty Event affecting any of the
Leased Premises between the execution of this Agreement and the
Closing.
13. When Title Passes. Upon the delivery of the Sellers' Documents to the
Buyer and payment of the Purchase Price by Buyer to Seller, this sale
shall close, and Buyer shall have possession of the Leased Premises,
possession of the equipment that is subject to the Equipment Leases
assigned to Buyer and title to the Tangible Assets.
14. Sellers' Representations. Sellers represent and warrant the following:
a. Good Title. Sellers have good and marketable title to all the Tangible
Assets to be sold pursuant to this Agreement, and they are free of any
encumbrance.
Page 10 of 15
8
b. Condition of Assets. Tangible Assets will be conveyed in good operating
condition, ordinary wear and tear excepted, and will constitute (as to
each Leased Premises) all Tangible Assets used in the conduct of
Sellers' existing delicatessen and sandwich shop and catering
operations located at the Leased Premises.
c. No Defaults. Each Premises Lease is in full force and effect in
accordance with its terms and that there are no defaults, or events
which, with the giving of notice or passage of time, would constitute
defaults, on the part of either Seller or Landlord.
d. Business Contracts. Sellers has not entered into any contracts
affecting the business operated on the Leased Premises other than those
described in Schedules "E-1" through "E-7" respectively.
e. Payment of Taxes. At the time of Closing, Sellers will have paid all
taxes, including without limitation, payroll taxes, withholding taxes,
and sales taxes, then due to all federal, state, and local taxing
authorities in respect of the operations of the Sellers' business at
the Leased Premises.
f. No Judgments, Liens, Etc. No judgments, liens, actions, or proceedings
are presently outstanding or pending against the Sellers other than in
the usual course of Sellers' business. Sellers each respectively
represent and warrant to Buyer that no pending action or proceeding
shall encumber any leasehold interests assigned or Tangible Assets
transferred pursuant to this Agreement.
g. Due Authorization. This Agreement and the transaction contemplated
hereby have been approved by the board of directors of each of the
Sellers in accordance with the requirements of the Sellers' respective
corporate documents, and the undersigned representatives are duly
authorized to execute this Agreement and all other documents necessary
to complete this transaction on behalf of the Sellers. No other
corporate approvals are required. The Agreement constitutes a valid
obligation of each Seller enforceable in accordance with its terms.
h. Due Authority of WSDI. WSDI is a Delaware corporation, in good standing
in the State of Delaware and has full corporate power and authority to
enter into this Agreement and perform its obligations thereunder.
i. Due Authority of SCII. SCII is an Illinois corporation, is in good
standing in the State of Illinois, and has full corporate power and
authority to enter into this Agreement and to perform its obligations
thereunder.
j. No Violation of Other Agreements. The execution and delivery of this
Agreement and the performance of the obligations of WSDI and SCII,
respectively, does not violate (i) its charter or bylaws; (ii) any
provision of any agreement, indenture, mortgage or other instrument to
which it is a party or by which its assets are bound or (iii) any
provision of any applicable law or regulation.
k. No Litigation. There is no litigation to which the Sellers, or either
of them, is a party affecting the transaction contemplated by this
Agreement or Buyer's operation of any of the Leased Premises after
Closing.
Page 11 of 15
9
l. No Material Adverse Changes. That the Sellers will immediately notify
the Buyer of any material adverse changes in any of the Leased Premises
between the execution of this Agreement and the Closing.
m. No Casualty. That the Sellers will immediately notify the Buyer of any
Casualty Event affecting any of the Leased Premises between the
execution of this Agreement and the Closing.
n. Sales. That set forth on Schedule S is the amounts of sales and
operating profits for each Leased Premise for the twenty-six week
period ending December 30, 2000 and that since December 30, 2000 there
has been no material adverse change in the amounts of such sales and
operating profit (on an annualized basis) at each respective Leased
Premise except as set forth on said Schedule S.
15. Buyer's Representations. Buyer represents and warrants the following:
a. That the Buyer is a corporation duly organized and existing under
Massachusetts law, and that all necessary authorizations, consents,
resolutions authorizing the execution of this Agreement, and the
execution of all other documents executed by or on behalf of the Buyer
in connection with this Agreement, have been duly adopted by the Buyer
and/or the Buyer's directors or shareholders, as applicable.
b. The undersigned representative has been duly authorized to execute all
documents necessary to complete this transaction on behalf of the
Buyer.
16. Representations to Survive Closing. The representations, warranties and
indemnities contained in Paragraphs 7, 14 and 15 shall survive the
Closing of the transaction contemplated by this Agreement.
17. Compliance With Bulk Sales Law; Escrow for Tax Claims.
a. Sellers will comply with any Bulk Sales notification laws of the State
of Illinois and/or the City of Chicago or other municipality in which
any of the Leased Premises are located, and will comply with statutory
provisions requiring notification to the Illinois Department of Revenue
and/or the City of Chicago or other municipality in which any of the
Leased Premises are located upon the sale or transfer of business
assets. Buyer will comply with any statutory provisions requiring
notification of the Illinois Department of Revenue and/or the City of
Chicago or other municipality in which any of the Leased Premises are
located by a buyer of business assets subsequent to the Closing.
b. At the Closing, the Buyers shall deduct from the Purchase Price the
aggregate amount of all Illinois state and local governmental claims as
to taxes or other amounts due from Seller in respect of the operation
of its business at the Leased Premises and shall deposit such amount
deducted in escrow with an Escrow Agent (who may be counsel for Buyer)
pending receipt of releases of such claims from the respective
governmental agency.
18. Risk of Loss or Destruction. Sellers assume all risk of loss or damage
caused by any Casualty Event up to the Closing. If any of the Leased
Premises or the business conducted thereon by the Sellers is terminated
or interrupted before the closing by loss or damage caused by any
Casualty Event, at the option of the Buyer, the Closing shall proceed,
and in such instance, the Sellers will assign to
Page 12 of 15
10
Buyer at the Closing any and all insurance proceeds accruing to the
Sellers on account of said loss or damage.
19. Assignment. Buyer may assign the Buyer's rights under this Agreement to
any wholly-owned subsidiary of the Buyer (the "Designee"), provided
that the Designee shall also assume the Buyer's responsibilities under
this Agreement and satisfy the Buyer's Representations and Warranties
set forth in Paragraph 15 of this Agreement.
20. Mail Addressed to Seller. Following the closing, Buyer may open all
mail addressed to Sellers at any of the Leased Premises. Buyer shall
properly forward to Sellers any mail that does not require Buyer's
action.
21. Agreement Binding. This Agreement is binding upon and shall inure to
the benefit of the parties' transferees, successors, and assigns.
22. Applicable Law. This Agreement shall be construed in accordance with
the laws of the state of Illinois without regard to conflict of laws
principles.
23. Entire Agreement. This Agreement contains the entire agreement between
the parties, on the subject matter hereof and supercedes any other
prior understandings, agreements or arrangements whether or not in
writing.
24. Amendment and Modification. This Agreement cannot be amended or
modified except by another agreement in writing signed by the party
sought to be charged therewith or by its duly authorized agent.
25. Multiple Counterparts. To facilitate the execution of this Agreement by
persons and entities located in various physical locations, this
Agreement may be executed in numerous counterparts, all of which shall
constitute one Agreement. The execution by one party of any counterpart
shall be sufficient execution by that party whether or not the same
counterpart has been executed by any other party. This Agreement shall
be come effective when each party has signed at least one counterpart.
26. Exhibits and Schedules. Each and every exhibit and schedule referred to
in and/or attached to this Agreement or referred to in and/or attached
to another exhibit or schedule to this Agreement is hereby incorporated
by reference for all purposes as fully as if such exhibit, and all of
its contents, had been repeated verbatim in the body of this Agreement.
27. Further Instruments. The parties hereto agree that from and after the
Closing hereof each shall, without further consideration, execute,
acknowledge and deliver or cause to be executed, acknowledged or
delivered all such further instruments and documents as may be
necessary or desirable to effectuate the provisions of this Agreement.
28. Paragraph Headings. The headings above the various paragraphs of this
instrument have been included only in order to make it easier to locate
the subject covered by each provision and are not to be used in
construing this instrument or in ascertaining its meaning.
Page 13 of 15
11
29. Notices. Any notice, demand or request required or permitted to be
delivered hereunder shall be deemed to have been made when delivered in
hand or upon the second business day after delivery to a nationally
recognized overnight courier service overnight delivery charges paid
and addressed as follows:
If to: With a copy to:
Xxxxxxxx Xxxxxx, Inc. Xxxx Xxxx, Esq.
00 Xxxxxxx Xxxxxx Xxxxx, Xxxx & Xxxxx
Xxxxxx, XX 00000 1 Post Office Square
ATTN: Xxxxxxx XxXxxx, President Xxxxxx, XX 00000
Xxxxxxxx Xxxxxx Group Limited Xxxx Xxxx, Esq.
c/x Xxxxxxxx Xxxxxx, Inc. Xxxxx, Xxxx & Xxxxx
00 Xxxxxxx Xxxxxx 0 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Wall Street Deli, Inc. Xxxxxxx Xxxxxx
0 Xxxxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxx, Xxxxxx & Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 000 00xx Xxxxxx Xxxxx
Xxxxxxxxx: Xxxx Xxxxxxx, President Xxxxxxxxxx, Xxxxxxx 00000
or And a copy to:
Sandwich Chef of Illinois, Inc. Xxxxxxx X. Xxxxx
x/x Xxxx Xxxxxx Deli, Inc. Xxxxxxxxxx, Xxxxx & Xxxxxx
0 Xxxxxxxxxxxx Xxxxx, Xxxxx 000 0 Xxxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx, President
30. Waiver. Any party hereto may, at its option, waive in writing any
and/or all of the conditions herein contained of the other party,
without invalidating this Agreement, but no waiver of any such
condition shall be construed as a continuing waiver of that or any
other condition.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
their respective behalf by a duly authorized officer.
EXECUTED BY SELLER THIS THE 26th DAY OF FEBRUARY 2001.
SELLER:
WALL STREET DELI, INC., A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
SANDWICH CHEF OF ILLINOIS, INC., AN ILLINOIS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Its: President
-------------------------
Page 14 of 15
12
EXECUTED BY BUYER THIS THE 26th DAY OF FEBRUARY 2001.
BUYER:
XXXXXXXX XXXXXX, INC., A MASSACHUSETTS CORPORATION
By: /s/ Xxxxxxx XxXxxx
---------------------------
Xxxxxxx XxXxxx, President
EXECUTED BY THE UNDERSIGNED, XXXXXXXX XXXXXX GROUP LIMITED, THIS 26th DAY OF
FEBRUARY, 2001 SOLELY FOR THE PURPOSE OF ACKNOWLEDGING ITS OBLIGATIONS PURSUANT
TO PARAGRAPH 8.f OF THE AGREEMENT.
XXXXXXXX XXXXXX GROUP LIMITED
BY: /s/ Xxxx Xxxxxx
----------------------
ITS: Finance Director
Page 15 of 15
