FOURTH ADDENDUM TO STANDARD ASSET PURCHASE
CONTRACT AND RECEIPT
This is an Addendum to that certain Deposit Receipt and Contract for
Sale and Purchase dated July 19, 2002 by and between Xxxxxxx X. Xxxxx or his
corporate assigns (hereinafter referred to as "Buyer") and Health Express USA,
Inc. (hereinafter referred to as "Seller") regarding the property legally known
as Healthy Bites Grill, 0000-X Xxxx Xxxxxxxxxx Xxxx., Xx. Xxxxxxxxxx, Xxxxxxx.
The parties hereto agree as follows:
Terms and Conditions. The terms and conditions of this Addendum shall
prevail over any conflicting terms and conditions in the contract or any other
prior Addenda thereto.
1. Paragraph 6, INDEMNIFICATION RIGHT OF SET OFF shall be changed as
follows, the sum of twelve thousand five hundred dollars ($12,500.00) from the
Seller's closing proceeds shall be held in Buyer's attorney's trust account.
Said sum shall be held for purposes of payment of any outstanding bills, sales
taxes or any other liability that might be imposed upon Buyer by virtue of
Seller's operation of the business prior to transfer of said business to Buyer.
Upon receipt of any such xxxx or notice of liability, Buyer shall immediately
notify Seller in writing. In the event that the Seller does not pay said
liability within fifteen (15) days of receipt of notice of the liability, or in
the event Seller does not provide Buyer with written notice that Seller disputes
the liability within fifteen (15) days of notice of liability, then in that
event, Buyer shall notify Seller and the funds held in escrow shall be used for
payment of the liability. In the event Seller timely disputes the liability,
Buyer shall be entitled to hold the amount in dispute in escrow until the
disputed liability is resolved.
Further, Seller shall request and submit a Seller's
application for Transferee Liability Certificate from the Florida Department of
Revenue and obtain a Transferee Liability Certificate affirming that there is no
sales tax liability for any period through closing. Until a clear Transferee
Liability Certificate is provided to Buyer, Buyer shall retain the funds set
forth herein in escrow. If a clear Transferee Liability Certificate is provided
to Buyer within ninety (90) days from the date of closing, then Buyer shall
release the funds held in escrow on the ninetieth (90th) day after closing so
long as there have been no outstanding claims or liabilities of Seller made
against Buyer. If a clear Transferee Liability Certificate is not provided to
Buyer within ninety (90) days from the date of closing, then Buyer shall retain
the funds set forth herein in escrow until the Transferee Liability Certificate
is provided to Buyer.
2. Paragraph 14, CONDITION OF EQUIPMENT, at the time of closing, all
equipment, furniture, fittings, personal property and fixtures shall be in good
working order. Buyer may conduct inspections of the equipment, furniture,
fittings, personal
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property, fixtures and business premises within three (3) days after acceptance
of this Addendum. In the event Buyer, for any reason, is not satisfied with the
inspections, Buyer may cancel this contract and obtain a full refund of Buyer's
deposit.
3. Paragraph 29, BUSINESS TELEPHONE. Buyer shall obtain its own
telephone number. Seller shall be responsible for all charges and costs
associated with the current telephone number and Yellow Pages advertising and
shall indemnify and hold the Buyer harmless from any liability thereto.
4. Paragraph 31, LEASE OF THE PREMISES. The contract shall be subject
to and contingent upon the assignment of the current lease between landlord and
Seller to the Buyer. In the event consent to assignment by the landlord is not
obtained by the time of closing, Buyer may cancel the contract and obtain a full
refund of all deposits. Any assignment fee charged by the Seller's landlord
shall be equally divided between the Buyer and the Seller.
5. Xxxxxxxxx 00, XXXXXXX XXXXX. The parties agree that the Buyer's
attorney shall be the Closing Agent. The Seller shall be responsible for one
half of the cost of the following: Judgment and lien search, Documentary Stamps,
taxes, recording, closing fee (not to exceed a total of one hundred dollars).
Seller shall not be obligated to pay any of Buyer's attorney's fees. Buyer shall
be solely responsible for payment of its own attorney's fees.
6. The parties will agree to an allocation of the purchase price among
the assets being sold within ten (10) days of the execution date of this
Addendum. In the event the parties cannot agree on the allocation of purchase
price, then either party may cancel the contract upon written notice within
three (3) days after the ten (10) day period.
7. Paragraph 31 of the contract providing for lease of the premises
shall be amended to provide that Seller will personally guarantee a lease
assignment if required by landlord for the initial lease term only which expires
on January 31, 2004 and not for any option periods.
8. Seller shall be required to produce a Certificate of
Occupancy for the business premises.
9 The parties acknowledge that the Seller in this transaction
is Health Express USA, Inc. d/b/a Healthy Bites Grill.
10. The parties agree that the closing of this transaction shall take
place on or before September 23, 2002.
11. Seller has two (2) leases with Micros Leasing for various items of
computer equipment and a cash register system. The leases are held by Xxxxx
Fargo Financial Leasing, Inc. The buyout under Lease #41228557 is four thousand
four hundred fifty six dollars and thirty three cents ($4,456.33) as of October
11, 2002. The
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buyout under Lease #41718507 is three thousand two hundred ninety seven dollars
and seventy three cents ($3,297.73) as of October 4, 2002. Seller shall
contribute two thousand dollars ($2,000.00) toward the buyout of the equipment
at the time of closing. Buyer shall pay the balance to buyout the equipment at
the time of closing. The funds shall be payable to Xxxxx Fargo Financial
Leasing, Inc. and paid at the time of closing. In the event of any overpayment
on the buyout of the leases, Buyer shall be entitled to the refund from Xxxxx
Fargo in the amount of up to one monthly payment on each lease. Seller shall
forward a check for overpayment received from Xxxxx Fargo to Buyer within five
(5) days of receipt. Within five (5) days of receipt of a Xxxx of Sale or other
evidence of ownership from Xxxxx Fargo Financial Leasing, Seller shall issue and
deliver a Xxxx of Sale for the equipment to Buyer.
12. Seller agrees to give Buyer credit in the amount of thirteen
thousand five hundred dollars ($13,500.00) toward the closing price at the time
of closing for repairs and air conditioning per Buyer's inspection report.
13. In the event of any inconsistencies in this Fourth Addendum to
Deposit Receipt and Contract for Sale and Purchase and the Asset Purchase
Agreement and the Addenda thereto, then the terms of this Fourth Addendum shall
prevail.
14. The provisions herein shall survive the closing of this
transaction.
15. Seller and Buyer agree that facsimile signatures shall be deemed
acceptable as original signatures and binding on the respective parties.
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In all other respects the Deposit Receipt and Contract for Sale and
Purchase dated July 19, 2002 and addenda thereto shall remain in full force and
effect.
SELLER: WITNESSES:
Health Express USA, Inc.
d/b/a Healthy Bites Grill
By:/s/ Xxxxxxx Xxxxx /s/
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Xxxxxxx Xxxxx, CEO
Date: 9/23/02
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BUYER:
/s/Xxxxxxx Xxxxx /s/
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Xxxxxxx X. Xxxxx
Date: 9/23/02
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