EXHIBIT 10.10
AGREEMENT FOR SALE AND PURCHASE OF ASSETS
THIS AGREEMENT, made and entered into this _____ day of February, 2002, by and
between BMR Restaurants, LLC, hereinafter referred to as "Seller", and Fox &
Hound of Virginia, Inc., a Virginia corporation, hereinafter referred to as
"Purchaser."
WHEREAS, Seller desires to sell and Purchaser desires to purchase certain assets
in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein and other valuable consideration, the parties hereto agree as follows:
1. Seller shall sell, convey, transfer, assign and deliver to Purchaser, and
Purchaser shall purchase, the following assets of Seller (the Assets):
A. All right, title and interest in and to a certain Shopping Center
Lease, as amended and subsequently assigned, entered into between
Broadstar Associates, a Virginia Limited Partnership, as assigned to
River Company Limited Partnership, an Ohio limited partnership, as
further assigned to HILLSBORO CENTER ASSOCIATES, LTD., AN OHIO
LIMITED LIABILITY COMPANY (as "Landlord") and The Tobacco
Company-West, Inc., a Virginia corporation, as assigned to Xxxxxxx
X. Xxxxx, as further assigned to BMR-Richmond, LLC, a Virginia
limited liability company, as further assigned to BMR RESTAURANTS,
LLC, (as "Tenant") dated June 22, 1991 for the property located at
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx. A copy of the Lease,
including subsequent amendments and assignments, shall be attached
hereto as Exhibit "A".
B. All right, title and interest in and to all improvements located on
the premises described in 1.A. above.
C. All right, title and interest in and to all furniture, fixtures and
equipment, including pole and monument signs currently located on
the premises, including transfer of any warranties.
2. Purchase Price: The price for the assets listed in 1.A., B., and C shall
be Three Hundred Thousand Dollars ($300,000.00) payable in cash or
certified funds at closing.
Notwithstanding any provision in this Agreement to the contrary, the
parties acknowledge and agree that F & H does not assume and shall have no
liability or obligation whatsoever, whether accrued, absolute, contingent,
or otherwise, and whether due or to become due, with respect to the
following liabilities and obligations of Seller: (i) any federal, state or
local taxes of Seller; (ii) any liability arising prior the Closing Date
resulting from or claimed to have been incurred by reason of an alleged
defect in any of the Assets or the operation of the business by Seller
prior to the Closing Date; (iii) any existing, pending or threatened
litigation against Seller, whether or not disclosed to Purchaser; and (iv)
any other liability not specifically assumed hereunder. Seller will be
responsible for the payment of all taxes, including local or state real
and personal property taxes, up to and through the Closing Date. All
personal property taxes for 2002 assessed to the Assets shall be prorated
as of the Closing Date, and paid by Purchaser when due. Seller shall be
responsible for all personal property taxes related to the Assets that are
due and unpaid with respect to any year prior to 2002. If taxes for 2002
are not known as of the Closing Date, the prorataion shall be based on the
taxes for the year 2001.
In the event the Purchaser shall fail to fulfill its obligation hereunder,
the Seller shall, as its sole remedy, cancel this Agreement. Provided,
however, that in the event the Seller is unable to furnish title
acceptable to Purchaser or the contingencies set forth herein are not
satisfied this Agreement shall be null and void and of no further force
and effect. If Seller fails to perform in accordance with this Agreement,
Purchaser shall be entitled to xxx for specific performance and/or
damages.
3. Closing: The sale provided for in this Agreement shall close on or before
March 1, 2002 at the offices of Fox & Hound of Virginia, Inc., or such
other time and place as the parties shall mutually agree. Purchaser shall
have the right to waive any or all contingencies and accelerate closing
upon written notice to Seller. At closing:
A. Purchaser shall pay to Seller the full amount of the purchase price
described in paragraph 2 above;
B. Seller shall execute and deliver to Purchaser a Xxxx of Sale for the
leasehold improvements, furniture, fixtures and equipment free and
clear of all liens and encumbrances;
C. Seller shall execute and deliver to Purchaser whatever other
documents may reasonably be necessary to perfect Purchaser's title
in the assets;
D. Seller shall deliver to Purchaser vacant possession and keys to the
premises at closing;
E. All necessary prorations, including rent, real estate taxes,
personal property taxes, insurance, CAM charges, utilities, if any,
shall be made as of the date of closing.
3. Contingencies: This Agreement and closing hereunder are subject to and
conditioned upon Purchaser receiving on or before closing the following:
A. An Amendment to the Lease on terms and conditions solely acceptable
to Purchaser.
B. An Assignment of the Lease, together with the written consent and
approval of the Landlord of the above referenced Lease and to the
assignment of said Lease from Seller to Purchaser and approving the
new use of the premises, including new
tradename, approving alteration of the premises, and further
warranting that Purchaser's use is not in violation of any current
exclusive use restriction in any deeds, leases or covenants; and
estoppel certificates certifying the Lease is in full force and
effect with no existing defaults;
C. Purchaser obtaining all necessary approvals, licenses (including a
full service liquor license and late hours permit), permits for the
operation of a minimum of eight (8) pool tables at the Premises, and
permits for the remodeling/renovation/signage and operation of a
typical Fox and Hound Smokehouse & Tavern on the premises.
D. Purchaser obtaining any third party approvals.
E. Purchaser's receiving approval of its Real Estate Committee within
thirty (30) days after the date of Seller's execution hereof. If the
Purchaser does not deliver written notice to Seller within said
thirty (30) days this provision shall be deemed waived;
F. Purchaser reviewing the terms and conditions contained in the
existing Lease and determining that such are acceptable to
Purchaser.
G. Purchaser obtaining Subordination, Non-Disturbance and Attornment
Agreements from any existing lenders and ground lessors.
H. Seller shall obtain estoppel certificates from the Landlord
affirming that the Lease is in full force and effect and that no
default exists;
I. Seller shall execute and deliver to Purchaser an Assignment of the
above referenced Lease together with consents of the Landlord to
such assignment and further consenting to our use of the Premises.
Further both Landlord and Tenant shall
warrant that Purchaser's use is not in violation of any current
exclusive use restriction or other restriction in any deeds, leases
or covenants;
J. Purchaser determining that no hazardous materials are in the
Premises. Further, Seller shall provide a copy of any environmental
documentation in Seller's possession.
Purchaser reserves the right to waive any or all contingencies and
accelerate closing by giving Seller fifteen (15) days written notice.
In the event all of the contingencies contained in this Section 4 have not
been fulfilled or waived by Purchaser by March 1, 2002, this Agreement
shall be deemed null and void and neither party shall have any obligation
to the other. However, provided Purchaser is using due diligence in
attempting to satisfy its contingencies, Purchaser shall be allowed to
extend the contingency period by thirty (30) days.
5. Seller's Warranties: The Seller hereby warrants to Purchaser as follows:
A. Seller warrants that as of closing of this transaction, all bills,
debts and claims due by the Seller which were incurred in the
operation of the Seller's business which would prevent transfer of
the property free and clear will have been paid and the Seller
agrees to submit an affidavit attesting to said fact and further
agrees to indemnify, hold harmless and provide at Seller's expense
reasonable attorney's fees to defend the Buyer against any claim for
debts or taxes incurred by Seller in the operations.
B. Seller is the current tenant under the above described Lease and
that as of the effective date of this Agreement, and at closing,
shall not be in default under the terms of said Lease;
C. Seller is the owner of all leasehold improvements, personal
property, furniture, fixtures and equipment located on the premises.
D. Seller warrants that all of the leasehold improvements, personal
property, furniture, fixtures and equipment located on the premises
shall become the property of the Purchaser upon Closing.
E. Seller warrants that there are no material violations of any kind,
pending or threatened regarding the premises including health
department, building code, or zoning violations, and that the
premises are in compliance with all codes and ordinances and Seller
is not aware of any contemplated eminent domain proceedings;
F. Seller is not a defendant in any litigation, pending or threatened,
regarding any of the assets being conveyed herein;
G. That at the time of closing, Seller shall assign to Purchaser all
warranties which it may have relating to assets being conveyed to
Purchaser;
H. Seller has not deposited nor disposed of any hazardous materials or
wastes on the premises, and has no knowledge of any. Seller shall
pay for an asbestos survey of the Premises and shall further be
responsible for any asbestos abatement required.
I. Seller shall comply with all bulk sales or similar laws, if
applicable, and indemnify and hold Purchaser harmless from any and
all loss, expense, or damage resulting from the failure to comply
with any such laws; and
All warranties and representations made herein shall survive
closing.
6. A copy of all plans and specifications, current surveys, site plans, and
environmental tests currently in the possession or control of Seller shall
be provided to Purchaser within ten (10) days of the date of last
execution of this Agreement;
7. Risk of Loss: Seller assumes all risk of loss prior to the date of
closing.
8. Notices: Any notice to be given hereunder shall be in writing, mailed,
United States certified mail, postage prepaid, or sent by receipted
overnight delivery service or facsimile transmission, addressed to Seller
at 00000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, and addressed to
Purchaser at 0000 X. Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 Attn: Xxxxx X.
Xxxxxx. Any party, by written notice to the other party, may designate a
different address to which notices to that party are to be addressed.
9. Assignment: Purchaser shall have the absolute right to assign its rights
under this Agreement to any affiliated company of Purchaser.
10. Real Estate Brokers: The parties hereto agree that no real estate brokers
are involved in this transaction. Seller and Purchaser represent and
warrant, each to the other, that neither has contacted, consulted, or
become in any way connected with any broker, finder, or other such party
in connection with this Agreement or the sale contemplated herein. Seller
and Purchaser shall each defend, indemnify, and hold harmless the other,
against any and all claims of brokers, finders, or the like and against
the claims of all parties asserting the right to a commission or similar
fee through the acts of the other, the other's partners, agents, or
affiliates in connection with this Agreement. Each party's indemnity
obligation shall include all damages, losses, costs, liabilities, and
expenses, including reasonable attorney's fees, which may be incurred by
the other is indemnified hereunder. The provisions of this paragraph shall
survive the closing or other termination of this Agreement.
11. Entire Agreement: This Agreement represents the entire understanding and
agreement of the parties hereto with respect to
the subject matter hereof, supersedes all prior negotiations between the
parties, and cannot be amended, supplemented, or changed orally but only
by an agreement in writing signed by the party or parties against whom
enforcement is sought and making specific reference to this Agreement. The
parties hereto may at any time waive compliance with any of the agreements
or conditions contained herein. Any agreement on the part of the party
hereto to any such extension or waiver shall be valid if set forth in
writing and signed on behalf of such party. Waiver of any provision of
this Agreement or of any breach hereof shall be a waiver of only said
specific provision or breach and shall not be deemed a waiver of any other
provision or any future breach hereof. Time is of the essence of this
Agreement. Each party hereto agrees that it will, from time to time, as
may reasonably be requested by any party hereto, execute, acknowledge,
obtain and deliver such documents, bills of sale, assignments, consents,
and other instruments as may be required in order to complete and effect
the transactions contemplated by this Agreement. This Agreement may not be
assigned by either party without the prior written consent of the other
and shall be binding upon and shall inure to the benefit of the parties
hereto and their successors and permitted assigns. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to
be one and the same instrument.
12. Attorney's Fees: If any suit or action is brought to enforce any of the
terms of this Agreement or to enforce any of the obligations set forth
herein, the prevailing party in such suit or action, and in any appeal
therefrom, shall be entitled to recover reasonable attorney's fees and
costs. This paragraph shall survive closing.
13. Successors: This Agreement shall bind and inure to the benefit of the
parties and their respective successors and assigns.
14. This Agreement shall be governed by the laws of the state in which the
real estate is located.
15. Each party warrants to the other that they have the proper authority to
enter into this Agreement,.
16. This Agreement may be executed in counterpart, and any signature on a
document sent by facsimile shall be binding upon transmission by fax and
the fax copy can be utilized for the purposes of this Agreement.
17. This Agreement shall be null and void unless accepted by Seller on or
before _______________________, 2002.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the date
first set forth above.
SELLER:
BMR RESTAURANTS, LLC
By: /s/ Xxxxxx Xxxxxxxx Manager
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Date Executed: 2/6/02
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PURCHASER:
FOX & HOUND OF VIRGINIA, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Secretary
Date Executed:
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XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS that in consideration of Three Hundred
Thousand Dollars ($300,000.00) paid by Fox & Hound of Virginia, Inc. to BMR
Restaurants, LLC the receipt of which is hereby acknowledged, BMR Restaurants,
LLC does hereby grant, sell, transfer, convey, and deliver to Fox & Hound of
Virginia, Inc. this date, all of its rights, title and interest of (1) a below
market rate lease [$168,287], (2) the leasehold improvements [$101,713] and (3)
the furniture, fixture and equipment and other personal property [$30,000]
located at 0000 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, as set forth on Exhibit
"A".
Seller represents, warrants and covenants that Seller is the owner of
the aforesaid assets; that the assets are free from all encumbrances and liens
whatsoever; that it has the right and authority to sell the same; and that it
will warrant and defend same unto Buyer, its successors and assigns against all
claims whatsoever.
Dated this 14 day of March, 2002.
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SELLER:
BMR Restaurants, LLC
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, Managing Member
