EXHIBIT 10.7
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of September 16, 1998, by and between Windsor Capital Corp., a Delaware
corporation ("Seller"), Tropical Republic, Inc., a Florida corporation (" Buyer
"), and Xxxxx Xxxxxx ("Guarantor").
W I T N E S S E T H:
In consideration of the mutual covenants, conditions and agreements
herein contained, the parties do hereby agree as follows:
1. ASSETS TO BE PURCHASED. The Seller agrees to sell and the Buyer
agrees to buy, upon the terms and conditions hereinafter set forth, the
following described assets (the "Assets"):
All contract rights, furniture, fixtures, transferable licenses, files,
equipment, trade names, customer lists and goodwill of the going
business known as "Simply Cigars", operating at the locations (the
"Locations") described on Exhibit "A" attached hereto (the "Business").
Notwithstanding the foregoing, the Assets shall not include any bank accounts,
cash, inventory, deposits (lease, utility or otherwise) or accounts receivable
of the Business, which shall be retained by Seller.
2. PURCHASE PRICE. The Purchase Price for the sale, conveyance and
delivery of the Assets (the "Sale") shall be $260,000, of which $130,000 is
represented by Buyer's assumption of Seller's lease obligations at the
Locations. The Purchase Price shall be paid by Buyer pursuant to a $10,000
nonrefundable deposit (the "Deposit") payable immediately upon execution of this
Agreement, which shall be credited to Buyer at the closing of the Sale (the
"Closing"), a further cash payment of $34,000 due at Closing, and an $86,000
promissory note (the "Note") bearing interest at 8% per year requiring payments
of $43,000 plus accrued interest on March 31, 1999, and March
31, 2000, which shall be executed and delivered by Buyer at the Closing, and
which shall be unconditionally and personally guaranteed by Guarantor. The Note
shall be secured as provided in paragraph 3 below. At Closing, Buyer shall pay
all documentary stamp taxes due on the Note.
3. SECURITY DOCUMENTS. At Closing, the Note will be secured by the
following described documents:
A. Security Agreement (the "Security Agreement").
B. Collateral Assignment of Premises Leases (the "Collateral
Assignment").
C. Uniform Commercial Code Financing Statement (the "UCC-1").
D. Personal Guaranty executed by the Guarantor (the "Guaranty").
The aforementioned documents (the "Security Documents") provide certain
collateral and security for the payment of the Note to Seller when and as due.
The Security Documents and all related documents described or contemplated
therein as determined to be appropriate by counsel for Seller shall encumber the
Assets being transferred pursuant hereto and the Business' other assets during
such time as any amounts remain outstanding under the Note. The Security
Documents shall prohibit the transfer of such assets by Buyer during the term
thereof and shall not be assumable by any third party. The Security Documents
shall contain such other additional terms and provisions as shall be reasonably
required by counsel for Seller.
4. CONVEYANCE OF ASSETS. At the Closing, Seller shall deliver to Buyer
all such bills of sale, endorsements, assignments, acknowledgments, certificates
and other good and sufficient instruments of transfer as shall be effective to
vest in Buyer good title to the Assets to the reasonable satisfaction of counsel
for Buyer. The furniture, fixtures and equipment included in the Assets sold
-2-
to Buyer hereunder (collectively, the "Equipment") is being sold on an "AS IS,
WHERE IS" basis. Seller has made no representations or warranties concerning the
condition or quality of such Equipment, and Buyer is relying solely on its own
inspection of the Equipment.
5. LIABILITIES; OPERATING AGREEMENT. Except as otherwise provided
herein, it is agreed between the parties that Buyer is not assuming any
liabilities or obligations, actual or contingent, of Seller or the Business
which exist at the time of the Closing; provided, however, that Buyer shall
assume all of Seller's obligations accruing after the Closing under the leases
described on Exhibit "B" attached hereto (the "Lease Obligations"). Guarantor
and Buyer shall use their best efforts to cause the relevant landlords to
release Seller from the Lease Obligations. Pursuant to the Operating Agreement
executed by Buyer and Seller simultaneous with execution of this Agreement,
Buyer is assuming control and all operating expenses of the Business prior to
Closing, with the control and operating expenses of each Location being assumed
by Buyer on the date set forth for such Location on Exhibit "A." Such date, for
each Location, shall be referred to hereafter as its "Transfer Date." For each
Location, all accounts payable and other liabilities as shall accrue before the
Transfer Date shall belong to, and be the responsibility of, Seller. The parties
acknowledge that certain adjustments must be made between them subsequent to the
Transfer Date for items of income and expense which will have accrued as of the
Transfer Date but will not be able to be reduced to a liquidated sum by the
Transfer Date. The parties agree to adjust such items of income and expense in
good faith at the Closing. Seller hereby indemnifies and agrees to hold harmless
Buyer for, from, against, and in respect of (a) any claim, debt, liability or
other obligation arising against Buyer after the relevant Transfer Date relating
to matters accrued prior to the Transfer Date; and (b) any and all
-3-
acts, suits, proceedings, judgments, liens, costs and expenses, including
reasonable attorneys' fees incident to any of the foregoing.
6. REPRESENTATIONS BY SELLER. The Seller makes the following
representations and warranties to Buyer and Guarantor, all of which shall
survive the Closing:
A. Seller is a corporation duly organized and existing in good
standing under the laws of the State of Delaware. The Board of
Directors of Seller has approved the Sale and authorized the
officers executing this Agreement to do so.
B. This Agreement and all other agreements, documents and
instruments executed by the Seller pursuant hereto are and
will be the legal, valid and binding obligations of the Seller
enforceable in accordance with their terms.
B. Seller is the owner of, and has good and marketable title to,
the Assets, free and clear of all liens, claims and
encumbrances, except as otherwise reflected in this Agreement.
D. Seller has entered into no contract materially restricting the
Assets.
E. There are no existing, pending or, to the knowledge of Seller,
threatened judgments, liens, actions, suits, arbitrations,
administrative proceedings or other litigation and there is no
existing factual basis known to Seller which, now or with the
passage of time, may result in any such judgment, lien,
action, suit, arbitration, administrative proceeding or other
litigation, which could materially adversely affect the
Assets, the legality or validity of this Agreement or the
transactions contemplated hereby.
7. REPRESENTATIONS BY BUYER AND GUARANTOR. The Buyer and Guarantor make
the following representations and warranties to the Seller, all of which shall
survive the Closing:
A. TRI is a corporation duly organized and existing in good
standing under the laws of the State of Florida. The Board of
Directors of Buyer has approved the Sale and authorized the
officers of Buyer executing this Agreement to do so.
-4-
B. This Agreement and all other agreements, documents and
instruments executed by the Buyer pursuant hereto are and will
be the legal, valid and binding obligations of the Buyer
enforceable in accordance with their terms.
C. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not
constitute a violation of, and are not, and will not be, a
default under or conflict with the terms of any contract,
lease, indenture, agreement, order, judgment or decree to
which Buyer is a party or by which it is bound or to which any
of its assets are subject and do not, and will not, violate or
constitute a default under any statute, rule, regulation,
order or ordinance of any governmental, judicial or arbitral
body.
D. There is no suit, action or legal, administrative, arbitration
or other proceeding of any nature pending, or, to the
knowledge of Buyer, threatened, against Buyer which might
affect the legality or validity of this Agreement or the
transactions contemplated hereby, and there is no factual
basis known to Buyer for any such suit, action or proceeding.
8. WAIVER OF UCC BULK TRANSFER COMPLIANCE. Buyer acknowledges and
agrees that Seller will not comply with the provisions of any bulk transfer laws
of any jurisdiction in connection with the Sale and the transactions
contemplated by this Agreement.
9. CLOSING. The Closing of the Sale shall take place at 10:00 A.M. on
October 15, 1998, unless extended under the terms of this Agreement, at the
offices of Seller, 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx 00000.
Each of the parties will execute and deliver at the Closing, or as soon
thereafter as reasonably practicable, all instruments reasonably required to
carry out the terms of this Agreement, including bills of sale, endorsements,
assignments, the Note, the Security Documents, and other good and sufficient
instruments to effectively transfer to Buyer full title to the Assets and to
secure the lien of Seller therein. The parties shall provide the customary and
necessary corporate resolutions and approvals, properly executed, authorizing
this
-5-
transaction. Possession of the Assets shall be delivered to Buyer with respect
to each Location on its Transfer Date.
10. PRORATIONS. The parties agree that, at the Closing, all rents,
insurance policies, utilities, and any and all items of income and expense of a
proratable nature for each Location, shall be prorated as of the close of
business on the applicable Transfer Date, and a schedule of same shall be
included in the Closing Statement.
11. FURTHER ASSURANCES. The parties agree that at any time, and from
time to time after the Closing, at the request of the other party and without
further consideration, each party will take such action and execute, acknowledge
and deliver such documents as may be reasonably required to consummate the
transactions contemplated hereby.
12. CONDUCT OF BUSINESS PRIOR TO CLOSING. Seller agrees that,
subsequent to the execution of this Agreement and prior to each applicable
Transfer Date, except as otherwise consented to by Buyer in writing, it will
operate the Business at each Location in accordance with the following:
A. ORDINARY COURSE. The Business shall be operated only in the
ordinary course consistent with past practice. Seller will not
violate the terms of any contracts or other obligations of the
Business.
B. CHANGES IN COMPENSATION. No increase will be made in the
compensation or benefits payable or to become payable to any
employee or agent of the Business, except as may be approved
by Buyer in writing.
C. PRESERVATION OF ORGANIZATION. Seller will use its best efforts
to preserve the organization of the Business intact and will
make no material changes therein.
-6-
D. MAINTENANCE. Seller will maintain the tangible Assets in
substantially their present condition, subject to normal wear
and tear or replacement.
13. REMEDIES. If either party fails in any material respect to perform
any of its obligations under this Agreement, the other party shall be entitled
to all remedies at law and in equity, including the appointment of a receiver
and specific performance. In the event that the Sale fails to close by October
15, 1998, for any reason other than a breach of this Agreement by Seller, then
Seller may, at its option, terminate this Agreement and retain the Deposit as
liquidated damages, whereupon neither party shall have any further liability to
the other.
14. LITIGATION. In the event of litigation arising out of this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party its reasonable costs and attorneys' fees in connection
therewith at all levels including, but not limited to, fees and costs incurred
prior to the institution of litigation.
15. NON-WAIVER. The failure of either party to require the performance
of any term of this Agreement, or the waiver by either party of any breach of
this Agreement, shall not prevent a subsequent enforcement of such term or be
deemed a waiver of any subsequent breach.
16. NOTICES. All notices or communications given under the provisions
of this Agreement shall be in writing and shall be deemed given when delivered
by hand or by facsimile or three days after being mailed by certified mail,
return receipt requested, to the following addresses:
Seller: Windsor Capital Corp.
Attention: Xxxxxx Xxxxx, Chief Executive Officer
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
-7-
Buyer/Guarantor:
Tropical Republic, Inc.
Attention: Xxxxx Xxxxxx, General Manager
0000 Xxxxxxxxx 00 Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
17. BROKER. Seller and Buyer each represent that neither has had any
discussions or negotiations with any broker concerning the subject matter of
this Agreement. Each party agrees to indemnify the other party from and against
any claims for any brokerage commissions or fees relating to the transactions
contemplated hereby and all costs, expenses and liabilities in connection
therewith including, without limitation, reasonable attorneys' fees and
expenses, in the event of breach by the indemnifying party of the foregoing
representations.
18. ASSIGNMENT. Buyer may not assign any of its duties or obligations
under this Agreement without the prior written consent of the Seller. Seller may
assign this Agreement, or any portion thereof, at its option.
19. BENEFIT. This Agreement shall be binding upon the respective
parties, their successors, heirs, personal representatives, nominees or assigns.
All words used herein in the singular number shall extend to and include the
plural number, and all words used herein in the plural number shall extend to
and include the singular number, when the context or facts require same. All
words used herein in any gender shall extend to and include all genders. Any
pronoun will be taken to refer to the person or persons intended, regardless of
number or gender.
20. CONSTRUCTION. This Agreement shall be construed without regard to
any presumption or other rule of law requiring construction against the party
causing this Agreement to be drafted.
-8-
21. APPLICABLE LAW. This Agreement shall be governed, interpreted and
enforced in accordance with the laws of the State of Florida. In the event of
litigation arising out of this Agreement, venue shall lie in the Circuit Court
of Broward County, Florida, or the U.S. District Court for the Southern District
of Florida.
22. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
23. BINDING AGREEMENT. This Agreement and the Operating Agreement
constitute the entire and complete agreement between the parties and supersede
all prior correspondence, discussions, agreements and understandings between the
parties relating to the transactions contemplated hereby. Neither this Agreement
nor any term or provision hereof may be changed, waived, discharged or
terminated except by an instrument in writing signed by both parties.
24. CAPTIONS. Paragraph headings shall not be deemed to be a part of
the provisions of a paragraph or to have any effect upon the construction
thereof. Rather, the same are inserted for purposes of reference only.
25. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall have the effect of being an original Agreement.
26. NONCOMPETITION. Each party agrees that it will not, directly or
indirectly, operate a retail tobacconist outlet in any mall where the other
party is operating an outlet as of the Closing Date, for so long as the other
party continues to operate such existing outlet; provided,
-9-
however, that the foregoing restriction shall not apply to the Sawgrass Xxxxx
Mall in Broward County, Florida.
IN WITNESS WHEREOF, the parties have set their hands and seals as of
the day and year first above written.
WINDSOR CAPITAL CORP. a Delaware corporation
By: /S/ XXXXXX XXXXX
--------------------------------------
TROPICAL REPUBLIC, INC.,
a Florida corporation
By: /s/ XXXXX XXXXXX
--------------------------------------
Xxxxx Xxxxxx, General Manager
/s/ XXXXX XXXXXX
--------------------------------------
Xxxxx Xxxxxx, Guarantor
-10-
