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EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT"), dated the 2ND day of
February, 1999 by and between ATLANTIC PREMIUM BRANDS, LTD, a Delaware
corporation ("SELLER") and Master Distributors, Inc., a Maryland corporation
(collectively, "BUYER").
R E C I T A L S:
WHEREAS, Seller is engaged in the business (the "BUSINESS") of the
distribution of non-alcoholic beverages;
WHEREAS, Buyer desires to acquire, and Seller desires to sell, certain
assets of Seller, all upon the terms and conditions hereinafter set forth; and
WHEREAS, Buyer desires to assume, and Seller desires to assign to
Buyer, certain liabilities of Seller, all upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, and in consideration of the mutual premises and
representations, warranties and covenants and other good and valuable
consideration, the receipt and sufficiency of which being acknowledged, the
parties agree as follows:
1. PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF CERTAIN LIABILITIES.
A. Purchase and Sale of Assets. Subject to the conditions set
forth in this Agreement, at the Closing (as defined hereinafter), Seller shall
assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from
Seller, all of Seller's right title and interest in and to only the property and
assets which relate to the Seller's beverage division expressly as set forth on
SCHEDULE I attached hereto (collectively, the "ASSETS"). The Assets shall be
sold "As Is, Where Is" and without any other warranty or representation, except
as otherwise explicitly provided herein. Notwithstanding the foregoing, Seller
shall not deliver title to the Assets to Buyer until the Seller has fully and
finally extinguished its payment obligations under the Note.
B. Assumption of Liabilities. At the Closing, Buyer shall
assume only those liabilities (collectively, the "ASSUMED LIABILITIES"), if any,
pursuant to those contracts (the "CONTRACTS") as are both set forth on SCHEDULE
II, attached hereto, and Buyer agrees to assume, pay and perform the Assumed
Liabilities after the Closing Date, when and as such assumption, payment and
performance obligations come due and in conformity with the assumption agreement
to be entered into at the Closing as is contemplated by Section 2(E) hereof.
C. Post-Closing Responsibilities. Buyer and Seller agree that
from and after the Closing Date, as between Buyer and Seller, Buyer shall have
the sole and absolute responsibility to perform, pay and otherwise discharge the
Assumed Liabilities and, subject to Section 1(A), to own and use the Assets.
Accordingly, Buyer shall indemnify and hold harmless Seller against any and all
liabilities, costs, expenses, actions, demands, charges, or other claims which
relate to or arise out of, directly or indirectly, any Assumed Liability or to
any Asset. The obligations contained in this Section 1(C) shall survive Closing.
2. CONSIDERATION; CLOSING.
A. Purchase Price. The purchase price ("PURCHASE PRICE") to be
received by Seller in exchange for the Assets shall be the sum of (i)
thirty-five thousand six hundred dollars ($35,600) for the Assets, plus (ii) an
amount equal to the Inventory Cost, as determined pursuant to Section 2(B)
hereof, less a credit in the amount of one-hundred thousand dollars ($100,000),
for Buyer's prior payment of that amount pursuant to the terms of that certain
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letter agreement regarding "Purchase of Beverage Inventory" between Buyer and
Seller, dated January 22,1999 (the "DEPOSIT"), plus (iii) the Accounts
Receivable Amount, as determined pursuant to Section 2(C) hereof less (iv)
one-hundred thirty-five thousand dollars ($135,000) which Buyer and Seller agree
is a credit amount which relates to Buyer's assumption of the Ryder truck
leases.
B. Payment of Purchase Price. The Purchase Price shall be paid
as follows: (i) At Closing, Buyer and its four principals shall deliver to
Seller a Promissory Note in the amount of three hundred thousand dollars
($300,000) in of EXHIBIT 0X, xxxxxxxx xxxxxx (xxx "XXXX"), (xx) at Closing,
Buyer shall deliver cash, in an amount equal to the net sums set forth in
Sections 2(A)(i) and 2(A)(ii) above less the sum set forth in 2(A)(iv), and
(iii) to the extent that, as ultimately calculated, the actual Purchase Price
varies from the face value of the Note plus the cash delivered at Closing, then
the parties agree and covenant that after the final payment has been made under
the Note to pay to the other such party any additional amounts or rebate any
paid amounts (as the case may be) so that the aggregate amounts paid by Buyer
equal the Purchase Price, plus interest under the Note.
C. Inventory Valuation. The inventory to be purchased is
quantified and valued by case as is set forth on the list attached hereto as
SCHEDULE I(c) (the "INVENTORY LIST") on hand as of such time. The Inventory List
shall be segregated by beverage brand and number of cases of each such brand.
The price of each such case is also listed on SCHEDULE I(c). Buyer shall take
delivery of all of such brands described on SCHEDULE I(c) (the "ACQUIRED
INVENTORY"), which shall be valued as, the sum of (i) each case of Acquired
Inventory, multiplied by (ii) the price for each such case (the "INVENTORY
COST").
D. Accounts Receivable Valuation. Buyer shall purchase
Seller's accounts receivable as of 5:01p.m. on February 1, 1999 for an amount
(the "ACCOUNTS RECEIVABLE AMOUNT") equal to sixty-four and ten one hundreths
percent (64.10%) of the book value of such accounts receivable, as determined by
Buyer in accordance with GAAP and consistent with Seller's past practice. To
determine such Accounts Receivable Amount, the parties agree that on or about
February 3, 1999, Seller shall provide Buyer with the precise Accounts
Receivable Amount, an accounts receivable trial balance and, upon request,
supporting documentation, utilized by Seller to determine such Accounts
Receivable Amount.
E. Time of Closing. The closing (the "CLOSING") for the sale
and purchase of the Assets shall be held at the offices of Seller in Jessup,
Maryland (or such other place as may be agreed upon by the parties in writing)
on February 1, 1999 at 9:00 a.m. local time (the "CLOSING DATE"). The Closing
shall be deemed to be effective as of 5:01 p.m. on the Closing Date.
F. Delivery and Transport of Assets.
(i) Upon consummation of the transactions described
herein, the Assets and Inventory shall be deemed delivered to Buyer
f.o.b. Seller's premises in Jessup, Maryland, and Buyer shall bear sole
responsibility for the risk, cost and effort attendant to the storage
and transportation of the Assets and Inventory from Seller's premises.
Seller shall provide no personnel or equipment in connection with such
storage and transportation. Buyer's ability to occupy such premises,
and store the Assets at such facility shall be governed by a Sublease
Agreement in the form of EXHIBIT 2D(i), attached hereto (the
"SUBLEASE").
(ii) Buyer shall be solely responsible to remove
those leased Ryder truck vehicles, the leases for which Buyer is
assuming as are identified on SCHEDULE II attached hereto.
(iii) From and after the Closing, Buyer shall have
the use and operation of the Assets pursuant hereto as if title for
such Assets had transferred, provided that Seller shall not release to
Buyer the title to the Assets until Seller has fully and finally
extinguished its payment obligations under the Note.
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G. Closing Procedure. At the Closing, Seller shall deliver to
Buyer the Inventory List, a xxxx of sale, and similar documents as Buyer shall
reasonably request. Against such delivery, Buyer shall (a) issue and deliver to
Seller the purchase price in accordance with Section 2A above and (b) execute
and deliver assumption agreements with respect to the Assumed Liabilities, as
Seller shall reasonably request. All actions taken at the Closing shall be
deemed to have been taken simultaneously at the time the last of any such
actions is taken or completed.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Buyer, as follows:
A. Organization; Good Standing; Due Authorization. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Delaware, and has all requisite power and authority to own and
lease its properties and carry on its business as currently conducted. Seller
has full power and authority to enter into and perform this Agreement and to
carry out the transactions contemplated hereby. Seller has taken all necessary
action to approve the execution and delivery of this Agreement and the
transactions contemplated hereby. This Agreement constitutes the legal, valid
and binding obligation of Seller, enforceable against it in accordance with its
terms, except as may be limited by the availability of equitable remedies or by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally.
B. Execution and Delivery. Neither the execution and delivery
by Seller of this Agreement nor the consummation by it of the transactions
contemplated hereby will: (i) conflict with or result in a breach of the
Articles of Incorporation or Bylaws of Seller; (ii) violate any statute, law,
rule or regulation or any order, writ, injunction or decree of any court or
governmental authority, which violation, either individually or in the
aggregate, might reasonably be expected to have a material adverse effect on the
Business or operations of Seller or Buyer's ownership of the Assets; or (iii)
conflict with or constitute a default under (or give rise to any right of
termination, cancellation or acceleration under), or result in the creation of
any lien on any of the Assets pursuant to any material agreement, indenture,
mortgage or other instrument to which Seller is a party or by which it is bound
or affected.
C. Governmental and Other Consents. No approval,
authorization, consent, order or other action of, or filing with, any
governmental authority or administrative agency is required in connection with
the execution and delivery by Seller of this Agreement or the consummation of
the transactions contemplated hereby or thereby. No approval, authorization or
consent of any other third party is required in connection with the execution
and delivery by Buyer of this Agreement and the consummation of the transactions
contemplated hereby, except as may have been previously obtained by Buyer. Buyer
takes the full risk and responsibility of procuring all consents appropriate for
the distribution of any items of inventory acquired by Buyer hereunder.
D. Title to Personal Property Assets. Except for leased or
licensed property, Seller is the sole and exclusive legal owner of all right,
title and interest in, and when delivered to Buyer, the Assets constituting
personal property shall be free and clear of liens, claims and encumbrances
except liens for taxes not yet payable, and liens permitted or incurred by
Buyer.
E. Finders and Brokers. No person has, as a result of any
agreement entered into by Seller, any valid claim against any of the parties
hereto for a brokerage commission, finder's fee or other like payment.
F. No Other Representations. Except for the express
representations and warranties contained in this Section 3, Seller makes no
other representations or warranties of any nature whatsoever, and Seller hereby
disclaims any and every other representation and warranty of any nature
whatsoever.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants to Seller as follows:
A. Organization and Good Standing; Due Authorization. Buyer
is a corporation duly organized,
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validly existing and in good standing under the laws of Maryland and has all
requisite power and authority to own and lease its properties and carry on its
business as currently conducted. Buyer has full power and authority to enter
into and perform this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes the legal, valid and binding obligation of
Buyer, enforceable against it in accordance with its respective terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally or general equitable
principles.
B. Execution and Delivery. Neither the execution and delivery
by Buyer of this Agreement nor the consummation by it of the transactions
contemplated hereby will: (a) conflict with or result in a breach of the
Articles of Incorporation or Bylaws of Buyer; (b) violate any law, statute, rule
or regulation or any order, writ, injunction or decree of any court or
governmental authority; or (c) violate or conflict with or constitute a default
under (or give rise to any right of termination, cancellation or acceleration
under) any indenture, mortgage, lease, contract or other instrument to which
Buyer is a party or by which it is bound or affected.
C. Consents. No consent, approval, authorization, license,
exemption of, filing or registration with any court, governmental authority,
commission, board, bureau, agency or instrumentality, domestic or foreign, is
required by Buyer in connection with the execution and delivery of this
Agreement or the consummation by it of any transaction contemplated hereby or
thereby. No approval, authorization or consent of any other third party is
required in connection with the execution and delivery by Buyer of this
Agreement and the consummation of the transactions contemplated hereby, except
as may have been obtained by Buyer prior to Closing.
D. Finders and Brokers. No person has, as a result of any
agreement entered into by Buyer, any valid claim against any of the parties
hereto for a brokerage commission, finder's fee or other like payment.
E. Buyer Acknowledgments. Buyer acknowledges that no other
representations or warranties except the express warranties and representations
in Section 3 hereof have been made by Seller, or any of Seller's agents and
representatives, and Buyer has not relied, and will not rely, on any statements
made by Seller or its representatives or agents other than those expressly set
forth herein. In furtherance of the foregoing, Buyer acknowledges that: (i)
Buyer takes the Assets with the full risk of operating, owning and managing
same; (ii) except with respect to the representation contained in Section 2D,
all of the Assets are being sold as-is, where-is, and Buyer will take the Assets
exclusively on an as is-where-is basis; (iii) Seller has made absolutely no
representation or warranty (a) concerning the future performance of the
Business, (b) that any inventory acquired hereunder is saleable in any respect,
(c) that Buyer will have the right to sell any inventory without the consent of
the supplier thereof, (d) that Buyer will have the right to place any Inventory
in any Visi-Coolers or other glass door coolers, or any other similar beverage
dispensing assets previously owned by Seller and sold to Canada Dry Potomac
Corporation, or (e) concerning the quality of any of the items of Acquired
Inventory; (iv) sales and profitability of "new age" and other beverages sold by
Seller have decreased materially in recent years. Buyer hereby represents and
warrants that the failure to obtain any consent shall not serve as a
justification for Buyer not consummating the transactions contemplated hereby,
and shall not serve in any means as a failure to satisfy any of the conditions
described in Section 6 hereof. Buyer takes the full risk and responsibility of
procuring all consents appropriate for the distribution of any items of
inventory acquired by Buyer hereunder.
5. CERTAIN COVENANTS AND AGREEMENTS.
A. Reasonable Efforts. Each of Seller and Buyer shall take all
reasonable action necessary and cooperate in good faith to consummate the
transactions contemplated hereby. Each of Seller and Buyer acknowledges and
agrees that each shall pay all costs, fees and expenses incurred by it in
obtaining any consents and approvals.
B. Public Announcements. Prior to the Closing Date, all
notices to third parties and other publicity relating to the transactions
contemplated hereby shall be made only after joint planning and agreement by
Seller and
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Buyer. Additionally, Buyer agrees to abide by all of the terms and provisions of
that certain Confidentiality Letter Agreement dated December 16, 1998 between
Seller and Xxxxxx Xxxxxxxx.
C. Use of the Atlantic Beverage Name. Seller agrees that
within seven (7) business days of the Closing, and in conjunction with Buyer,
Seller shall file with the State of Maryland documentation which releases the
Seller's right, title and interest in the name "Atlantic Beverage" and/or
"Atlantic Beverage Company." Seller consents hereby to Buyer's use of such name
after Closing when and if it becomes available.
D. Bulk Transfer Compliance. Buyer and Seller agree that the
sale as contemplated hereby shall be conducted in accordance with Title 6 of the
Commercial Law Article of the Maryland Code (the "BULK TRANSFER ACT"). Buyer and
Seller agree to submit to the State of Maryland such affidavits and other
documents as are required to comply with such Bulk Transfer Act.
E. Post-Closing Lock-Box and Access Covenants. From and after
Closing, Buyer and Seller agree that all funds collected under those accounts
receivable purchased by Buyer from Seller hereunder, shall be deposited into a
"lock-box" account under the sole and exclusive control of Seller. Seller's
employee shall supervise such collection and shall assist Buyer in complying
with the terms of this Section 5(E). Seller shall have the right to apply
amounts received from the accounts receivable against amounts then owed by
Buyer, and others, under the Note. Additionally, Buyer agrees to afford Seller,
and its employees, agents and representatives, full, complete and unfettered
access to the Jessup, Maryland facility and any and all books and records
(including computer and database records) of the Business or which relate to the
Assets or Assumed Liabilities or other commercially reasonable matters for which
Buyer requires such access. Buyer and Seller agree to cooperate and work in good
faith to implement the provisions of this Section 5(E).
6. CONDITIONS TO BUYER'S CLOSING. Subject to Buyer's acknowledgment in
Section 4(E) hereof, all obligations of Buyer under this Agreement shall be
subject to the fulfillment at or prior to the Closing of the following
conditions, it being understood that Buyer may, in its sole discretion, waive
any or all of such conditions in whole or in part:
A. Representations, Etc. Seller shall have performed in all
material respects the covenants and agreements contained in this Agreement that
are to be performed by it as of the Closing, and the representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects as of the Closing Date with the same effect as though made
at such time (except as contemplated or permitted by this Agreement).
B. No Adverse Litigation. No order or temporary, preliminary
or permanent injunction or restraining order shall have been entered and no
action, suit or other legal or administrative proceeding by any court or
governmental authority, agency or other person shall be pending or threatened on
the Closing Date which may have the effect of (i) making any of the transactions
contemplated hereby illegal, or (ii) making Buyer liable for the payment of
damages to any person in respect of the Business or the Assets.
C. Closing Deliveries. Buyer shall have received each of the
documents or items required to be delivered to it pursuant to Section 8A hereof.
7. CONDITIONS TO SELLER'S CLOSING. All obligations of Seller under this
Agreement shall be subject to the fulfillment at or prior to the Closing of the
following conditions, it being understood that Seller may, in its sole
discretion, waive any or all of such conditions in whole or in part:
A. Representations, Etc. Buyer shall have performed in all
material respects the covenants and agreements contained in this Agreement that
are to be performed by Buyer as of the Closing, and the representations and
warranties of Buyer contained in this Agreement shall be true and correct in all
material respects as of the Closing Date with the same effect as though made at
such time (except as contemplated or permitted by this Agreement).
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B. No Adverse Litigation. No order or temporary, preliminary
or permanent injunction or restraining order shall have been entered and no
action, suit or other legal or administrative proceeding by any court or
governmental authority, agency or other person shall be pending or threatened on
the Closing Date which may have the effect of (i) making any of the transactions
contemplated hereby illegal, or (ii) making Seller liable for the payment of
damages to any person in respect of the Business or the Assets.
C. Closing Deliveries. Seller shall have received each of the
documents or items required to be delivered to it pursuant to Section 8B.
8. DOCUMENTS TO BE DELIVERED AT CLOSING. At the Closing, there shall
be delivered:
A. To Buyer:
(i) Thebulk sales affidavit, the bills of sale,
agreements of assignment and similar instruments of transfer to the
Assets contemplated by Section 2D hereof.
(ii) All other items reasonably requested by Buyer.
B. To Seller:
(i) The Note, validly executed by the makers
thereto.
(ii) An assumption agreement pursuant to which Buyer
shall assume the Assumed Liabilities, if any.
(iii) All other items reasonably requested by Seller.
C. To one another, the Sublease, validly executed.
9. SURVIVAL. The representations, warranties, covenants and agreements
made by any party to this Agreement or pursuant hereto shall be deemed to have
been relied upon by the parties hereto and shall not survive the Closing for any
length of time whatsoever, except for the representations and warranties
contained in Section 3 hereof, which will shall survive the Closing for a period
of three (3) months, and notice of any claim of any nature hereunder seeking
reimbursement or any other remedy must be given within three (3) months from the
Closing Date, and if not, shall be deemed waived and forfeited. No
representation or warranty contained herein shall be deemed to be made at any
time after the date of this Agreement or, if made in a certificate, the date of
such certificate. Notwithstanding the foregoing, the covenant contained in
Section 1(C) shall survive the Closing indefinitely.
10. INDEMNIFICATION RULES. Except as otherwise provided herein, if any
claim(s) for indemnity or other remedy is made arising out of any matter
hereunder, such claim must be made within three (3) months after the Closing,
and, if it appears likely that such claims might also be covered by the
insurance policies of the party asserting such claim(s), such party shall make a
timely claim under such policies and to the extent that such party obtains any
recovery from such insurance, such recovery shall be offset against any sums due
from the other party (or shall be repaid to the other party by the claiming
party to the extent that the claiming party has already paid any such amounts).
In addition, any claim(s) hereunder shall be reduced by any tax-related benefit
reasonably expected by Buyer to be received or actually received by Buyer,
viewing such claim without being affected by any of Buyer's other activities. In
any respect, Buyer, shall not make any claim unless and until it has incurred
indemnified losses, damages and expenses in the cumulative aggregate amount of
$25,000, and then only in respect of the excess over such $25,000 minimum. All
claims for indemnification and liability pursuant thereto shall not, in any
event, exceed $100,000.
11. TERMINATION. This Agreement may be terminated prior to Closing by
either Buyer or Seller (as set
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forth below), if either such party is not then in Default upon written notice to
the other upon the occurrence of any of the following:
A. By the non-Defaulting party, if the other party Defaults
and such Default has not been cured within 30 days of written notice of such
Default by the other party; or
B. Subject to the provisions of Sections 6 and 7 hereof, by
Seller or Buyer if on the Closing Date any of the conditions precedent to the
obligations of Seller or Buyer, respectively, set forth in this Agreement have
not been satisfied in all material respects or waived by such party; or
C. By mutual consent of Seller and Buyer.
In the event that this Agreement is validly terminated by the Buyer, and Buyer
is not then in Default hereunder, then Seller shall promptly refund to Buyer the
Deposit.
12. MISCELLANEOUS PROVISIONS.
A. Expenses. Except as otherwise expressly provided herein,
each party shall pay the fees and expenses incurred by it in connection with the
transactions contemplated by this Agreement. Buyer shall be responsible for all
transfer taxes, fees or other charges levied as a result of the transaction
described by this Agreement.
B. Accounts Receivable. Subject to Section 5E, as of and
following Closing, Buyer, with the aid and supervision of Seller's employee,
shall collect for its own account all of Seller's accounts receivable which it
shall purchase pursuant to this Agreement. Seller makes absolutely no warranties
of any kind as to the collectibility, value or quality of such accounts
receivable. The accounts receivable shall be deemed to be an Asset hereunder.
C. Amendment. This Agreement may be amended at any time but
only by an instrument in writing signed by the parties hereto.
D. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if mailed by certified mail,
return receipt requested, or by nationally recognized "next-day" delivery
service, to the parties at the addresses set forth below (or at such other
address for a party as shall be specified by like notice), or sent by confirmed
facsimile with a cover page to the number set forth below (or such other number
for a party as shall be specified by proper notice hereunder):
If to Buyer: Master Distributors, Inc.
000-X Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: President
Fax: (000) 000-0000
With a copy to : Xxxxxx X. Xxxxxx, Esq.
Xxxxxx and Xxxxxxx
X.X. Xxx 000
00000 Xxxx Xxxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
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If to Seller: Atlantic Premium Brands, Ltd.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
With a copy to : Xxx X. Xxxxxxx, Esq .
000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E. Assignment. This Agreement may not be assigned by either
party without the prior consent of the other party. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, heirs and permitted assigns.
F. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
G. Headings. The headings of the Sections of this Agreement
are inserted for convenience only and shall not constitute a part hereof.
H. Entire Agreement. This Agreement and the documents referred
to herein contain the entire understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties, conveyances or undertakings other than those expressly set forth
herein. This Agreement supersedes any prior agreements and understandings
between the parties with respect to the subject matter.
I. Waiver. No attempted waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement, will be
effective unless evidenced by an instrument in writing by the party against whom
the enforcement of any such waiver or consent is sought.
J. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland.
K. Intended Beneficiaries. The rights and obligations
contained in this Agreement are hereby declared by the parties hereto to have
been provided expressly for the exclusive benefit of such entities as set forth
herein and shall not benefit, do not benefit and may not be relied upon by any
unrelated third parties.
L. Mutual Contribution. The parties to this Agreement and
their counsel have mutually contributed to its drafting. Consequently, no
provision of this Agreement shall be strictly construed against any party on the
ground that such party drafted the provision or caused it to be drafted or the
provision contains a covenant of such party.
M. Buyer Acknowledgment. Buyer acknowledges that Seller has
informed it that during and after Seller's sale of certain assets to the Canada
Dry Potomac corporation ("CDP") and its affiliates, that CDP was permitted broad
access to Seller's computer system, including all records and databases
contained therein. In connection with such review, CDP may have viewed and
recorded competitive business information and/or proprietary trade secrets of
the Business (including, without limitation, customer lists, distribution
routes, pricing and financial information, etc.). Accordingly, Buyer agrees that
it enters the transactions as contemplated hereby with actual knowledge of such
occurrence and expressly and irrevocably waives any and all demands, suits,
rights of action or other claims relating, directly or indirectly, to such
occurrence as described by this Section 12M.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ATLANTIC PREMIUM BRANDS, LTD.
By /s/ XXXXXX X. XXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial Officer
MASTER DISTRIBUTORS, INC.
By /s/ XXXXXX XXXXXXX
-----------------------------------------
Xxxxxx Xxxxxxx, President
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INDEX OF SCHEDULES AND EXHIBITS
Schedules:
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Schedule I Assets
Schedule I(a) Vehicles
Schedule I(c) Inventory List
Schedule I(c) Fixed Assets, etc.
Schedule II Contracts and Assumed Liabilities
Schedule III Purchase Price Allocation
Exhibits:
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Exhibit 1B Form of Note
Exhibit 2D(i) Form of Sublease
THE COMPANY AGREES TO FURNISH SUPPLEMENTALLY A COPY OF ANY OF THE
SCHEDULES AND EXHIBITS LISTED ABOVE TO THE SECURITIES AND EXCHANGE COMMISSION
UPON REQUEST.
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