ASSET PURCHASE AGREEMENT
BETWEEN
AMERICAN CONSUMERS, INC.
AND
XXXXXXX'X FOOD STORES, INC.
DATED DECEMBER 20, 2003
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ASSET PURCHASE AGREEMENT
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This Agreement, made as of this 20 th day of December, 2003 by and between ACI
(hereinafter referred to as "Purchaser") and Xxxxxxx'x Food Stores, Inc.,
(hereinafter referred to as "Seller")
W I T N E S S E T H
WHEREAS, Seller is the owner and operator of a grocery business in Tunnel Hill,
Whitfield County, Georgia, formerly known as Piggly Wiggly Supermarket
(hereinafter known as "Supermarket"); and
WHEREAS, Seller desires to sell and Purchaser desires to purchase certain of the
operating assets of the supermarket upon the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, for and in consideration of the premises, and intending to be
legally bound hereby, the parties hereto covenant, stipulate, represent, warrant
and agree as follows:
1. DEFINITIONS
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1.1 "Closing Date" means December 20, 2003 or such other date as may
be agreed upon by the parties for the closing of the transactions
contemplated by this Agreement.
1.2 "Business" means the operation of the Supermarket by Seller prior
to the Closing Date.
1.3 Purchased Assets" means:
(a) Certain furniture, machinery, fixtures and equipment used or
usable in connection with the Supermarket as described in Exhibit
1.3(a) hereto (hereinafter referred to as the "Fixed Assets");
and inventory valued per Exhibit 1.3(b).
2. TRANSFER OF AND PURCHASE PRICE OF PURCHASED ASSETS
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2.1 Transfer. Subject to the terms and conditions hereinafter set
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forth, Seller shall sell, transfer and convey to purchaser and
Purchaser shall purchase, receive and accept the Purchased Assets on
the Closing Date, as described in this Agreement, as follows:
(a) On or before Closing Date, all Fixed Assets will be inventoried
and inspected by Purchaser as provided in Section 6.1.
(b) Anything to the contrary herein not withstanding, the parties
hereto acknowledge and agree that Purchaser is purchasing only the
Purchased Assets only in this transaction and is in no way, manner or
respect continuing the business of Seller or any predecessors in interest
thereof or purchasing any goodwill associated therewith.
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2.2 Purchase Price.
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(a) Fixed Assets . . . . . . . . . . . . . . . . . . . . $150,000.00
(b) Inventory and supplies (valued per exhibit 1.3(b)2.______________
Total ==============
2.3 Payment of the Purchase Price. Purchaser shall pay the
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purchase price to Seller as follows:
The purchase price will be paid to Seller at closing by way of a check in
good funds drawn on an account of the Purchaser that may be replaced with a
certified or cashier's check at 9:00 A.M. Tunnel Hill, Georgia on Monday,
December 22, 2003.
2. LIABILITIES NOT ASSUMED; INDEMNIFICATION.
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2.1 Liabilities Not Assumed. Purchaser expressly assumes no
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liabilities or obligations of Seller or the supermarket or of the Business
whatsoever, except for the assumption of those equipment and fixtures
leases set forth in Exhibit 3.1 if any. Without limiting the foregoing,
Purchaser specifically does not assume any liability of Seller with respect
to (i) obligations for any federal, foreign, state or local taxes, (ii)
obligations for pension, profit-sharing or other employee or welfare
benefit programs or termination or unemployment benefits, whether funded or
unfunded, or (iii) any other liability which may hereafter be asserted as
the result of acts or omissions on the part of Seller or any of Seller's
predecessors in interest, prior to the Closing Date, including but not
limited to any liability arising from products liability, slip and fall
accidents and automobile accidents occurring prior to the Closing Date.
2.2 Indemnification by Seller. Seller agrees to indemnify Purchaser
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and hold it harmless from any claims, losses, damages, liabilities and
expenses (including attorney's fees) resulting from (i) any liabilities of
Seller, the Supermarket or the Business, not specifically assumed by
Purchaser under this Agreement, (ii) any and all claims, liabilities,
losses, damages or expenses, including costs of suit and counsel fees,
proximately caused by the breach by Seller of any covenant, agreement,
representation or warranty, or arising out of the inaccuracy of any
representation of Seller under this Agreement or any Exhibit hereto, Except
as provided hereinafter, and subject to the right of rescission set forth
in Section 2.5, any amount due Purchaser pursuant to this Paragraph shall
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be paid to Purchaser by check from Seller. If any equitable claim or mixed
legal an equitable claim is asserted against Purchaser or against the
Purchased Assets as a consequence of the transactions contemplated by this
Agreement or any breach by Seller of any covenant, agreement or
representation or warranty of Seller under this Agreement or any Exhibit
hereto, the effect of which could reasonably be anticipated to restrict or
encumber Purchaser's use and enjoyment of the Purchased Asset, or its
operation of a retail grocery
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business on the premises then Purchaser may elect to first proceed against
Seller, (iii) any action taken against the part of the Purchased Assets
consisting of inventory by any person to whom Seller has granted a security
interest in said inventory.
2.3 Indemnification by Purchaser. Purchaser shall indemnify and hold
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Seller harmless from and against any and all claims, liabilities, losses,
damages or expenses, including costs of suit and counsel fees, proximately
caused by the breach by Purchaser of any covenant, agreement or warranty,
or arising out of the inaccuracy of any representation of Purchaser under
this Agreement.
2.4 Indemnification procedure. In the event an action is bought
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against (or otherwise threatened against) any party and as a result thereof
a claim for indemnification under this Agreement is made, notice of such
action or threatened action shall be promptly given to the party from whom
indemnification is sought, and such party shall, at its option, have the
right to assume the defense or prosecution of such action, and the party
seeking indemnification shall cooperate fully in the defense or prosecution
of such action.
2.5 Purchaser's Right of Rescission. If prior to the closing date, in
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the event that an action is brought against (or otherwise threatened
against) Purchaser; whether legal or equitable, which would otherwise
entitle Purchaser to seek indemnification from Seller, and if in
Purchaser's reasonable opinion such action or threatened action would
materially and adversely affect Purchaser's ability to enjoy the quiet and
peaceful use of the Purchased Assets, then Purchaser may elect if prior to
the closing date to rescind this transaction, return the Purchased Assets
to Seller and Seller shall return the Purchase Price to Purchaser within
fifteen (15) days.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
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Seller represents and warrants to Purchaser that, except as set forth
in the Disclosure Schedule attached hereto as Exhibit 4:
4.1 Liabilities and Adverse Changes.
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(a) As of the date hereto and as of the Closing, Seller had and
shall have no liabilities relating to or affecting the Business, either
accrued, absolute, contingent or otherwise, and whether due or to become
due which would impair or restrict Purchaser's use and enjoyment of the
Purchased Assets once transferred or which could become a liability of
Purchaser as a matter of law after the Closing Date.
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(b) To the best of Seller's knowledge and belief without
investigation, there has not been any adverse change in the business
conditions in Xxxxxxxxx County, Georgia or its contiguous counties, or any
event, circumstance, fact or occurrence which may be reasonably expected to
result in a materially adverse impact on the operation or profitability of
a retail grocery business at the location of the Supermarket. In the event
that it is discovered that Seller had any such knowledge, prior to the
Closing Date, then Seller shall, at Purchaser's sole option, return the
Purchase Price to Purchaser along with reimbursing Purchaser for its
reasonable costs associated with this transaction other than a security
interest.
4.2 Title to the Purchased Assets. Seller has good and marketable
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title to all of the Purchased Assets, other than inventory, free and clear
of all liens, encumbrances, mortgages, easements, covenants, leases,
agreements, restrictions, security interests or pledges or any contingent
liability.
4.3 Condition of Purchased Assets. To the best of Seller's knowledge
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and belief without investigation all of the Fixed Assets, are in good,
serviceable and functional condition and are without presently known need
for repair or replacement other than routine maintenance required in the
ordinary course of business. Except for the foregoing representation and
the representation in section 4.2 of this Agreement concerning Seller's
title to the Purchased Assets, the Purchased Assets are sold AS IS, WHERE
IS.
4.4 Compliance with Laws.
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(a) Seller holds all licenses, certificates, permits, franchises
and rights, from all appropriate federal, state and other public
authorities, necessary for the conduct of the Business, the failure to hold
which might create a lien or encumbrance of the Purchased Assets.
(b) As of the Closing Date, the Business has been operated so as
to comply, and has complied in all respects with, and there is no existing
violation of or default under any applicable federal, state, local or
foreign statues, laws, regulations, ordinances, orders and rules, including
without limitation, occupational safety and health and those relating to
the protection of public health and the environment, the failure to comply
with which might create a lien or encumbrance on the Purchased Assets.
(c) To the best of Seller's knowledge and belief without
investigation Seller and its predecessors in interest are not charged with
nor are they under governmental investigation relating to or involving the
Business with respect to any actual or alleged violation of any statue,
law, regulation, ordinance, order of rule, nor are they the subject of any
pending or threatened adverse proceeding by any regulatory authority
concerning the Business which might create a lien or encumbrance on the
Purchased Assets.
4.5 Litigation. To the best of Seller's knowledge and belief without
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investigation there is no court action pending or threatened against Seller
or her predecessors in interest
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which may directly or indirectly involve or affect any of the Purchased
Assets or the Business and there are to the best of Seller's knowledge, no
grounds or bases for any such action. To the best of Seller's knowledge and
belief without investigation there are no proceedings pending or threatened
against Seller relating to or affecting or involving the Business or any of
the Purchased Assets by or before any governmental board, department,
commission or agency, and there are no grounds or bases for any such
proceeding which, in the case of any such action relating to the Business,
might create a lien or encumbrance on the Purchased Assets. Seller is not
in violation of any order, decree, or judgment of any court or governmental
board, department, commission or agency relating to or involving the
Business which might create a lien or encumbrance on the Purchased Assets.
4.6 Material Contracts. Except as set forth in Exhibit 4.6 hereto
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(hereinafter referred to as the "Material Contracts"), Seller is not a party to
or bound by any contract, lease, license, agreement, permit, plan, commitment or
binding arrangement, oral or written, express or implied which may affect the
Purchased Assets. None of the Material Contracts requires any consent or other
approval to the transactions contemplated in this Agreement.
1. Lease by and between Xxxxxxx'x Food Stores, Inc., v. Tunnel
Properties, LLC;
2. Agreement allowing Xxxxxxx Companies, Inc., to obtain a security
interest in Seller's inventory at the Premises.
4.7 Provisions for Taxes of Business. Seller has filed all federal
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state and local tax and information returns and reports required to be
filed by it with respect to the Business or its employees and reports
required to be filed by it with respect to the Business and the Purchased
Assets, and such returns and reports were timely, true, complete and
correct in all respects; and Seller will timely and properly file all
federal and state and local tax returns and reports, including those with
respect to Ad valorem taxes and other taxes levied on real and personal
property, and all other filings and reports, required to be filed by it and
will pay all taxes including penalty and interest and fines, if any, which
become due pursuant thereto or pursuant to any assessments received by it
with respect to the Business and its employees through the Closing Date.
All taxes, fees and assessments of whatsoever nature upon the Business and
the Purchased Assets which are due and payable have been paid. Seller has
no knowledge of any additional amounts to be asserted against the Purchased
Assets prior to the Closing Date and has not waived or extended any
applicable statues of limitations for taxes, fees or other governmental
charges relating to the Business.
4.8 Insurance Policies. All insurance policies including all policies
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of theft, casualty and general liability are, and up to the Closing Date
will be, in full force and effect. Seller has timely paid or made provision
for, and will make timely payment of all sums due or which become due from
Seller on or prior to the Closing Date for premiums or other payments with
respect to all such policies or obligations relating to the Supermarket for
all periods prior to and including the Closing Date. All such policies are
on an
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"occurrence" basis and the general liability insurance policy is in an
amount not less than $1,000,000.00.
4.9 Consents. No approval, authorization, consent or other order of
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action of or filings with any court, administrative agency or governmental
authority is required to be obtained by Seller for the execution and delivery or
performance by Seller of this Agreement, or such other agreements or instruments
necessary for the consummation of the transactions contemplated hereby or
thereby.
4.10 Full Disclosure. To the best of Seller's knowledge and belief without
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investigation there are no matters involving Seller, which are likely to have a
material adverse effect upon the Purchased Assets, or which are necessary for a
full understanding of the physical condition of the Purchased Assets, except as
set forth in this Agreement or the Exhibits hereto. None of the representations
or warranties made by Seller herein and none of the information provided by them
in any Exhibit or certificate delivered pursuant to this Agreement by Seller
contains or will contain any untrue statement of a material fact or omits or
will omit any material fact the omission of which would be misleading.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
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5.1 Authority of Purchaser. Purchaser represents and warrants to Seller
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that Purchaser is duly organized and existing and in good standing under the
laws of the state of Georgia and will continue to be so on the Closing Date;
that all action necessary to authorize the execution and delivery of this
Agreement has been taken by Purchaser; that it has the power to enter into and
carry out this Agreement, there being no contractual or other restrictions upon
it so doing; and that this Agreement will be duly executed and delivered and
will constitute the binding obligation of Purchaser in accordance with their
terms.
5.2 Taxes, Etc. Purchaser represents and warrants that all sales and use
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taxes, federal and state withholding taxes, federal and state unemployment taxes
and FICA withholding taxes, which are incurred pursuant to Purchaser's Georgia
business operations, are paid by Purchaser in a current and timely manner, that
Purchaser has not received any over due notices regarding such taxes and that
such taxes shall continue to be paid in a current and timely manner until Seller
has received full payment of the purchase price, including payment of any
promissory note or notes executed pursuant to this Agreement.
5.3 Noncontravention: Neither the execution and the delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby will
violate any constitution, statute, regulation , rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency, or court to which the Purchaser is subject or any provision
of its charter or bylaws, or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which the Purchaser is a party or by which it is bound or to which any of its
assets is subject. The Purchaser does not need to give nay notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or
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governmental agency, in order for the parties to consummate the transactions
contemplated by this Agreement.
6. OBLIGATIONS PRIOR TO CLOSING.
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Seller agrees to carry out the following obligations prior to and through
the Closing Date. In the event any of the following are unsatisfied at the
Closing Date, Purchaser may terminate this Agreement without further obligation
to Seller.
6.1 Inspection. Purchaser shall be permitted, through his authorized
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representatives, to examine any and all sales tax returns, properties, machinery
and operations of the Business and the Purchased Assets on or before the Closing
Date so that Purchaser may have full opportunity to make such legal and business
review or investigations as it may desire. On or before the Closing Date,
Purchaser, or its authorized representatives, shall also be permitted to take a
physical inventory of the Purchased Assets. In the absence of bad faith or
fraud on the part of Purchaser, no such inspection shall limit or modify in any
respect any of the representations and warranties of Seller set forth in this
Agreement.
6.2 Maintenance of Insurance. Seller will continue to maintain its
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insurance coverage as specified in Paragraph 4.8, on an occurrence basis,
subject to variations in amounts required by the ordinary operations of the
Business through the Closing Date or any extension thereof.
6.3 Removal of Property. As of the Closing Date, Seller shall have
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removed all property other than the Purchased Assets from the of the Supermarket
( the "Premises".
7. CONDITIONS TO CLOSING BY PURCHASER.
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The obligations of Purchaser under this Agreement shall be subject to and
conditioned upon the accuracy of the representations and warranties of Seller
contained in this Agreement and the Exhibits hereto, and to the compliance by
Seller with his Agreements, covenants, warranties and stipulations, all as set
forth in this Agreement, and to the following further conditions, any or all of
which may be waived in writing by Purchaser.
7.1 Accuracy of Representations. Each of the representations and
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warranties of Seller shall be true and correct on the date hereof and shall be
true and correct on the and as of the Closing Date; and Seller shall have
executed and delivered to Purchaser on the closing Date a certificate to that
effect dated that date, in the form of Exhibit 7.1.
7.2 Performance. Each of the agreements, covenants, stipulations, terms
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and conditions hereof to be performed and complied with by Seller on or prior to
the Closing Date shall have been performed and complied with on or prior
thereto.
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7.3 Absence of Litigation. No action or proceedings, including but not
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limited to any petition filed under Title 11 of the Untied States Code by either
Seller or its predecessors in interest, shall have been instituted or threatened
(a) to set aside the transactions provided for herein or to enjoin or prevent
the consummation thereof or (b) as determined by Purchaser in its sole
discretion which could materially threaten its use, enjoyment, or operation of a
retail grocery business at the Premises as executed in connection with this
Agreement or its use of enjoyment of the Purchased Assets.
7.4 Absence of Material Loss. (a) The Purchased Assets shall not have
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been adversely affected in any material way, or sustained any material casualty
or theft loss, whether or not insured. For purposes of this Section, the term
"material" shall mean any of the following:
(i) any circumstance, occurrence or event adversely affecting or resulting
in the damage, loss or destruction of 10% or greater of the aggregate floor
square footage of the Premises.
(ii) any other circumstance, occurrence or event, the effect of which would
likely be to render Purchaser unable or incapable of ongoing operations of a
retail grocery business at the Premises or which may result in a 10% or greater
reduction in overall sales of such retail grocery business.
Under any of the foregoing circumstances, the risk of loss and /or damage solely
shall be upon Seller, and Purchaser may elect to terminate this Agreement
without liability or obligation to Seller.
(b) In the event that prior to the Closing Date the Purchased Assets shall
have been adversely affected or shall have sustained any loss of less than a
material nature, Seller and Purchaser shall mutually agree on a reduction in the
purchase price to compensate Purchaser for the loss. In the event that the
parties cannot agree on a reduced purchase price at or prior to the Closing
Date, then Purchaser shall have the option to terminate this agreement without
further liability to Seller.
7.5 Consents. All necessary agreements and consents of any third parties
to the consummation of the transactions contemplated by this Agreement, or
otherwise pertaining to the matters covered by it, shall have been obtained by
Seller.
7.6 Xxxx of Sale. Seller shall have executed and delivered to Purchaser
a Xxxx of Sale in the form of Exhibit 7.6 transferring all of the Purchased
Assets to Purchaser.
7.7 Approval of Documentation. The form and substance of all
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certificates, deeds, bills of sale, instruments, opinions, and other documents
delivered to Purchaser under this Agreement shall be reasonably satisfactory in
all respects to Purchaser and its counsel.
8. Conditions to Obligations of Seller
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The obligations of Seller under this Agreement shall be subject to and
conditioned upon the accuracy of the representations and warranties of Purchaser
contained in this Agreement, and to the compliance by it with its agreements,
covenants, warranties and stipulations, all as set forth in this Agreement, and
to the following further conditions, any or all of which may be waived in
writing by Seller.
8.1 Accuracy of Representations. Each of the representations and
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warranties of Purchaser shall be true and correct on the date hereof and shall
have executed and delivered to Seller on the Closing Date a certificate to that
effect dated that date.
8.2 Performance. Each of the agreements, covenants, stipulations, terms
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and conditions hereto to be performed and complied with by Purchaser on or prior
to the Closing Date shall have been performed and complied with on or prior
thereto.
8.3 Termination of Lease. Seller and Tunnel Hill Properties, LLC shall
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have entered into an agreement terminating Seller's lease of the Premises prior
to the Closing Date without further liability of Seller thereunder.
9. MISCELLANEOUS COVENANTS OF SELLER
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9.1 Covenant Not To Compete. Seller hereby agrees that for five (5) years
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from the Closing Date she will neither directly or indirectly, whether as owner,
shareholder, director, agent, employee, landlord, lessee, investor, advisor, or
in any other capacity whatsoever, compete with Purchaser or its successors or
assigns in the operations of a retail supermarket similar to that of the
Business at any location located within Xxxxxxxxx County, Georgia.
9.2 Assignment of Warranties. Seller hereby covenants that it will
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assign to Purchaser all assignable warranties and/or guarantees affecting any of
the Purchased Assets made by any manufacturer or seller of the Purchased Assets
or by any other person.
10. PRORATION OF TAXES AND UTILITIES AND COSTS AND EXPENSES.
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10.1 Proration of Ad Valorem Property Taxes. Ad valorem property taxes for
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2003 due or paid with respect to the Purchased Assets shall be prorated between
the parties.
10.2 Sales and Use Taxes. Seller represents that it is completely
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liquidating its business at the Supermarket and as a part of this transaction is
selling all of its tangible personal property at that location and upon
completion of the sale will cease business operations at that location.
Accordingly, the parties consider this sale to be a casual sale, as defined
under Regulations as published by the Georgia Sales and Use Tax Division.
10.3 Income and Other Taxes. Any income or other taxes imposed upon
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Seller as a result of the transactions contemplated by this Agreement Shall be
paid by Seller and Purchaser shall have no liability for any taxes owed by
Seller and arising from the transactions contemplated by this Agreement.
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10.4 Costs and Expenses. Seller shall pay all fees and expenses incurred
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by it in connection with this transaction, including the fees and expenses of
its counsel and accountants, if any, and Purchaser shall pay all fees and
expenses incurred by it in connection with this transaction, including the fees
and expenses of its counsel and accountants.
10.5 Brokers. Seller and Purchaser each represent to the other that no
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broker or finder, acted or is acting for them in connection herewith.
11. CLOSING
11.1 Closing. The transfer of the Purchased Assets and the related
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transactions contemplated by this Agreement shall take place at the office of
the Seller on the Closing Date.
11.2 Postponement of Termination. If a party's respective conditions for
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Closing have not been fulfilled or waived by the Closing Date the other party
may terminate this Agreement by giving written notice of such termination to the
party not fulfilling its conditions or extend the closing one or more times, but
not to a date later than December 31, 2003.
11.3 Possession. At the closing, Seller shall put Purchaser in full
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possession and enjoyment of the Purchased Assets.
11.4 Further Assurances. At any time on or after the Closing Date, Seller
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will execute, acknowledge and deliver any further deeds, assignments,
conveyances and other assurances, documents and instruments of transfer
reasonably requested by Purchaser and will take any other action consistent with
the terms of this Agreement that may reasonably be requested by Purchaser for
the purpose of transferring to Purchaser any or all of the Purchase Assets and
other rights and benefits intended to be conveyed by this Agreement. Purchaser
will also execute, acknowledge, and deliver any documents which are reasonably
requested by Seller and which relate to the purchased assets or the transfer
thereof.
12. GENERAL
12.1 Survival of Representations, Warranties, etc. The representations,
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warranties, stipulations, covenants and agreements made by the parties herein
shall survive the Closing Date (unless the party knew or had reason to know of
any misrepresentation or breach of any warranty, stipulation, contract or
agreement by the other party at the time of closing) and continue in force for a
period of six (6) months thereafter.
12.2 Entire Agreement. This agreement supercedes all prior written
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agreements, negotiations and discussions and, other than as stated in this
Agreement, there are no representations or warranties and no other stipulations,
covenants or agreements by or among the parties hereto concerning the subject
matter of this agreement.
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12.3 Modifications, Waiver. No supplement, modification or amendment of
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this agreement shall be binding unless executed in writing by all parties. No
waiver shall be binding unless executed in writing by the party making the
waiver. No waiver of any of the provisions of this agreement or any breach
thereof shall be deemed a waiver of any other provisions, whether or not
similar, or of any subsequent breach of this Agreement.
12.4 Headings. The subject headings of the sections of this Agreement are
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included for purposes of convenience only and shall not affect the construction
or interpretation of any of its provisions.
12.5 Assignment. This Agreement shall be binding upon and insure to the
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benefit of the successors and assigns of the parties hereto but shall not be
assigned by the party hereto without the prior written consent of the other
party hereto.
12.6 Governing Law. This Agreement shall be interpreted and construed in
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accordance with the laws of Georgia. That venue and jurisdiction for any
dispute arising under this Agreement shall rest with the appropriate court(s) in
Xxxxxxxxx County.
12.7 Attorney's Fees. If any legal action or arbitration or other
----------------
proceeding is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this agreement, the prevailing party or parties shall be
entitled to recover reasonable attorney's fees and other costs incurred in the
proceeding.
12.8 Notices, Demands and Communications. All notices, demands and other
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communications which may be required to be given hereunder or with respect
hereto shall be in writing, shall be given either by personal receipted delivery
or by registered or certified mail, return receipt requested, and shall have
been deemed to have been given or made when personally delivered and receipted
or when deposited in the mail, postage prepaid, addressed to the respective
parties as follows:
(i) If to Seller:
XXXXXXX'X FOOD STORES, INC.
P. O. Xxx 00
Xxxxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxxx, Xx.
0000 XxxXxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000
Or to such other address as Seller from time to time designate by written notice
to Purchaser; and
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(ii)
AMERICAN CONSUMERS, INC.
P. O. XXX 0000
XXXX XXXXXXXXXX, XX 00000
12.9 Execution in Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall constitute an original hereof, but all of
which shall constitute but one and the same document.
IN WITNESS WHEREOF, XXXXXXX'X FOOD STORES, INC, and ACI have caused this
Agreement to be executed as of the date first above written, each in counterpart
originals.
SELLER:
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/s/ Xxxxxx X. Xxxxxxx
____________________________
XXXXXX X. XXXXXXX, PRESIDENT
XXXXXXX'X FOOD STORES, INC.
PURCHASER
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/s/ Xxxxxxx X. Xxxxxxxxxx
________________________________
XXXXXXX X. XXXXXXXXXX, PRESIDENT
AMERICAN CONSUMERS, INC.
/s/ Xxxx X. Southern
__________________________
Attest Secretary
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PURCHASER'S
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CERTIFICATE
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AMERICAN CONSUMERS, INC. (Purchaser"), pursuant to Section 8.1 of the Asset
Purchase Agreement dated December 20, 2003 (the "Agreement") by and between
Purchaser and Xxxxxxx'x Food Stores, Inc., ("Seller"), hereby certifies that
each of the representations and warranties of Purchaser contained in the
Agreement was true and correct as of the date of the Agreement and is true and
correct on the date hereof.
AMERICAN CONSUMERS, INC.
Date: December 20, 2003
/s/ Xxxxxxx X. Xxxxxxxxxx
BY:___________________________________
XXXXXXX X. XXXXXXXXXX, PRESIDENT
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SELLER
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CERTIFICATE
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XXXXXX X. XXXXXXX, ("SELLER"), pursant to Section 7.1 of the Asset Purchase
Agreement dated December 20, 2003 (the Agreement) by and between American
Consumers, Inc., and Seller, hereby certifies that each of the representations
and warranties of Seller contained in the Agreement was true and correct as of
the date of the Agreement and is true and correct on the date hereof.
XXXXXXX'X FOOD STORES, INC.
Date: December 20, 2003
/s/ Xxxxxx X. Xxxxxxx
BY:___________________________________
XXXXXX X. XXXXXXX, PRESIDENT
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