AMENDMENT NO. 1 TO MASTER PURCHASE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 1
TO
This
Amendment No. 1 to Master Purchase Agreement (this "Amendment"),
dated as of February 14, 2008, amends
that certain Master Purchase Agreement (the "Agreement"),
dated as of August 30, 2007, by and among U.S. Dry Cleaning Corporation, a
Delaware corporation ("Parent"), USDC Fresno, Inc, a California corporation and
wholly owned subsidiary of Parent ("Fresno
Sub"), USDC Fresno 2, Inc, a California corporation and a wholly owned
subsidiary of Parent ("Fresno
2 Sub"), Team Enterprises, Inc., a New Mexico corporation ("Team
Enterprises"), Xxxx Hop Cleaners of California, Inc., a New Mexico corporation
("Xxxx Hop"), Team Equipment, Inc., a California corporation ("Team Equipment"),
Fabricare Services, Inc., a California corporation ("FSI"), Xxxxxx X. Xxxxx, as
Shareholders Agent and, solely for the purposes of ARTICLE III, ARTICLE IX,
AND ARTICLE X of this Agreement, the Shareholders (as defined
herein).
WHEREAS,
Parent, Fresno Sub, Fresno 2 Sub, Team Enterprises, Xxxx Hop, Team Equipment,
FSI, the Company and Shareholders desire to amend the Agreement as more fully
described herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Defined
Terms. All capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings given to such terms in the
Agreement.
2. Amendment
to Section 2.2a(i) Purchase Price. Section 2.2a(i) is hereby
modified in its entirety to read as follows:
"fully
paid and nonassessable shares of Parent Common Stock (collectively, the "Team
Enterprises Shares") shall be equal to 2,044,667 of Parents Common
Stock.
3. Amendment
to Section 2.2a (iii) A, B and C Purchase Price. The Section 2.2a (iii) A, B,
and C is hereby deleted in its entirety.
4. Amendment
to Section 1.1
Defined
Terms. Section 1.1 is hereby modified to add the following defined term
"Senior Debt" which shall be defined as the debt defined in the following
documents 10% Senior Secured Private Placement Memorandum, Subscription
Agreement, Security Agreement and Note attached hereto as Exhibit
A.
5.
Amendment
to Section 2.2b Purchase Price Xxxx Hop. Section 2.2b is
hereby modified in its entirety to read as follows:
"Xxxx
Hop. Subject to the terms of this Agreement, as full consideration for
the sale, assignment, transfer and delivery of the Xxxx Hop Purchased Assets and
the execution and delivery of this Agreement and the transactions contemplated
hereby, Fresno Sub 2 shall deliver to Xxxx Hop at the Closing Seventy Six
Thousand Dollars ($76,000), payable by wire
transfer of immediately available funds, and Two Hundred Seventy Six Thousand
($276,000) in the Senior Debt (the "Xxxx
Hop Purchase Price"). The Xxxx Hop Purchase Price is subject to
adjustment in accordance with Section
2.3."
6. Amendment
to Section 2.2c Purchase Price Team Equipment. Section 2.2c is hereby
modified in its entirety to read as follows:
"Team
Equipment. Subject to the terms of this Agreement, as full consideration
for the sale, assignment, transfer and delivery of the Team Equipment Purchased
Assets and the execution and delivery of this Agreement and the transactions
contemplated hereby, Fresno Sub 2 shall deliver to Team Equipment at the Closing
Eighty Seven Thousand Dollars ($87,000), payable by wire transfer of immediately
available funds, and One Million One Hundred Ninety Six Thousand Dollars
($1,196,000) in the Senior Debt (the "Team
Equipment Purchase Price"). The Team Equipment Purchase Price is subject
to adjustment in accordance with Section
2.3."
7. Reimbursement
of Expenses. Parent shall reimburse Team Enterprises the sum of
$49,610.00 for those items paid for by Seller on behalf of Parent which are
listed on Exhibit B. Parent shall further reimburse Sellers for Seller's
attorneys' fees of $4000.00 which is Sellers' estimate of the additional
attorneys' feed incurred by Sellers in connection with the modifications
reflected by this Amendment. $50,000.00 of such reimbursement amounts shall be
payable at Closing by wire transfer of immediately available funds and the
remainder shall be reimbursed after Closing.
Certain
reimbursement items will not be known as of Closing, and Parent and Seller shall
exert their best efforts to agree on the remaining reimbursement items as
promptly as possible after Closing but in no event later than 30 days after
closing. Such additional amounts shall be reimbursed within five days after
Parent and Sellers agree on such amounts. All reimbursement amounts shall be in
addition to the Purchase Price.
8.
Amendment
to Section 2.3 Purchase Price Team Equipment. Section 2.3 is hereby
modified in its entirety to read as follows:
"(a) The
Team Enterprises Cash Amount shall be increased, dollar for dollar, by the
amount of the Additional Assets of Team Enterprises and paid subject to Section
2.3(b). The Xxxx Hop. Cash Amount shall be increased, dollar for dollar, by the
amount of the Additional Assets of Xxxx Hop and paid subject to Section 2.3(b).
The Team Equipment Cash Amount shall be increased, dollar for dollar, by the
amount of the Additional Assets of Team Equipment and paid subject to Section
2.3(b). The FSI Cash Amount shall be increased, dollar for dollar, by the amount
of the Additional Assets of FSI and paid subject to Section
2.3(b)."
(b)
No later than the day prior to Closing, the Sellers shall deliver to Parent a
draft
Closing Statement setting forth the Sellers' best estimate of the Additional
Assets as of the Closing Date. Sellers and Parent shall each exert their
reasonable best efforts to agree, within Thirty (30) days after the Closing
Date, upon a statement (a "Closing Statement") in form and substance reasonably
satisfactory to each
setting forth the Additional Assets as of the Closing Date. Parent shall pay
Seller in cash within 5 Business Days, by wire transfer of immediately available
funds, the amount due in the Closing Statement.
(c) In
the event that the parties have not agreed upon the final Closing Statement
within such 30 day period, then Parent shall pay to Sellers the undisputed
portion thereof and the parties shall exercise their best efforts in good faith
to resolve any disputes over the remaining amounts as promptly as possible. In
the event that such amounts are not resolved within 60 days of the Closing, the
parties shall submit such dispute to arbitration in accordance with the
provisions of Section 9.3.
(d) In
the event that Parent fails to pay the Closing Statement amount (or the
undisputed portion thereof) within 35 days after Closing, then Xxxx Flop and
Team Equipment shall be entitled to declare the Senior Debt held by such parties
in default.
9. Amendment to Section 10.2
(a) Notices. Section 10.2 (a) is hereby modified in its entirety to read
as follows:
"if to
Parent or the Acquirers, to:
U.S. Dry
Cleaning Corporation
0000
XxxXxxxxx Xxxx
Xxxxx
000
Xxxxxxx
Xxxxx, XX 00000
Attention:Chief
Executive Officer
Facsimile
No: (000) 000-0000
with a
copy to (not notice):
Xxxxxxxxx
Xxxxxxx, LLP
000 Xxxx
Xxx.
XX, XX
00000
Attention:
Xxxxxxx Xxxxxxx Facsimile No: (000) 000-0000"
10. Miscellaneous. Except
for the amendments expressly set forth in this Amendment, the Agreement shall
remain unchanged and in full force and effect. This Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. This Amendment shall be subject to all applicable
provisions of the Agreement including provisions relating to notices, governing
law, severability and section headings. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the
Agreement.
11.
Counterparts.
This Amendment may he executed in one or more counterparts, each of which shall
be deemed an original, but all.of which together shall constitute one and the
same agreement.
12.
Schedules.
Attached hereto are the final updated schedules to the Agreement.
IN
WITNESS WHEREOF, Parent, the Acquirors, Team Enterprises, Xxxx Hop, Team
Equipment, FSI.and the Shareholders have executed and delivered this Agreement
or have caused this Agreement to be executed and delivered by their respective
officers thereunto duly authorized, all as of the date first written
above.
U.S.
Dry Cleaning Corporation
By: /s/ Xxxxxx X.
Xxx
Name: Xxxxxx
X. Xxx
Title: CEO
|
USDC
Fresno, Inc.
By: /s/ Xxxxxx X.
Xxx
Name: Xxxxxx
X. Xxx
Title:
President
|
USDC
Fresno 2, Inc.
By: /s/ Xxxxxx X.
Xxx
Name: Xxxxxx
X. Xxx
Title:
President
|
Xxxx
Hop Cleaners of California, Inc.
By: /s/ Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: President
|
Team
Enterprises, Inc.
By: /s/ Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: President
|
Fabricare
Services, Inc.
By: /s/ Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: President
|
Team
Equipment, Inc.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: President
Contd.
Team
Enterprises Shareholders
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, Trustee of The
Xxxxxxx
X. Xxxxx Revocable Trust
U/D/T
March 19, 1991
/s/
Xxxxxxxx X. Xxxxx, Xx.
Xxxxxxxx
X. Xxxxx, Xx.
/s/
Xxxxxxxx X. Xxxxx
Xxxxxxxx
X. Xxxxx, Co-trustee of the
Xxxxx
Family Trust
/s/
Xxxx X. Xxxxx
Xxxx
x. Xxxxx, Co-trustee of the Xxxxx
Family
Trust
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx, Trustee of the
Xxxxxx
X. Xxxxx and Xxxxxxx X. Xxxxx
Family
Trust/Survivors Trust
/s/
Xxxx X. Xxxxxxx
Xxxx
X. Xxxxxxx, trustee of The 2000
Xxxx
X. Lohmnan SWP Trust U/D/T
September
28, 2000
|
Xxxx
Hop Shareholders
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, Trustee of The
Xxxxxxx
X. Xxxxx Revocable Trust
U/D/T
March 19, 1991
/s/
Xxxxxxxx X. Xxxxx, Xx.
Xxxxxxxx
X. Xxxxx, Xx
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx, Trustee of the Xxxxxx
X.
Xxxxx and Xxxxxxx X. Xxxxx Family
Trust/Survivors
Trust
/s/
Xxxx X. Xxxxxxx
Xxxx
X. Xxxxxxx, trustee of The 2000 Xxxx
X.
Xxxxxx SWP Trust U/D/T September
28,
2000
|
Contd.
Team
Equipment Shareholders
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, Trustee of The
Xxxxxxx
X. Xxxxx Revocable Trust
U/D/T
March 19, 1991
/s/
Xxxxxxxx X. Xxxxx, Xx.
Xxxxxxxx
X. Xxxxx, Xx.
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx, Trustee of the
Xxxxxx
X. Xxxxx and Xxxxxxx X. Xxxxx
Family
Trust/Survivors Trust
/s/
Xxxx X. Xxxxxxx
Xxxx
X. Xxxxxxx, trustee of The 2000
Xxxx
X. Xxxxxxx SP Trust U/D/T
September
28, 2000
|
FSI
Shareholders
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, Trustee of The
Xxxxxxx
X. Xxxxx Revocable Trust
U/D/T
March 19, 1991
/s/
Xxxxxxxx X. Xxxxx, Xx.
Xxxxxxxx
X. Xxxxx, Xx.
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx, Trustee of the
Xxxxxx
X. Xxxxx and Xxxxxxx X. Xxxxx
Family
Trust/Survivors Trust
/s/
Xxxx X. Xxxxxxx
Xxxx
X. Xxxxxxx, trustee of The 2000 Xxxx
X.
Xxxxxxx SP Trust U/D/T
September
28, 2000
|