EXHIBIT 10.1
AGREEMENT OF SALE dated April __, 2006 by and among Benihana Lincoln
Road Corp., a Florida corporation, with an address at 0000 XX 00xx Xxxxxxx,
Xxxxx, Xxxxxxx 00000 ("Seller"), Benihana National Corp., the sole shareholder
of Seller and a Delaware corporation ("Benihana"), and Doraku Lincoln Road LLC,
a Delaware limited liability company, having an address at 00000 XX 00xx Xxxx,
Xxxxx, Xxxxxxx 00000 (the "Purchaser") and Aoki Group LLC, a Delaware limited
liability company.
P R E A M B L E
A. Seller owns and operates the Sushi Doraku restaurant
("Restaurant") located at 0000 Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxx 00000
("Premises") pursuant to a Lease dated as of January 11, 1999, as modified by
Modification of Lease, dated as of July 1, 1999 (as so amended, the "Major
Lease"), between LRI of South Florida, Ltd. (predecessor-in-interest to 0000
Xxxxxxx Xxxx L.P., as landlord ("Major Landlord"), and Seller, as tenant.
Seller's interest in the Major Lease is herein referred to as Seller's Leasehold
Interest.
B. Seller owns all of the chattels, fixtures, inventory and
equipment ("Chattels") located at the Premises which are listed on EXHIBIT A
annexed hereto.
C. Seller is the owner of Florida Liquor License No. XXX 2305423
(the "Liquor License") covering the Premises.
D. Benihana currently owns all copyrights, trademarks, trade and
service marks and names and other intellectual property pertaining to the
"Doraku" name and concept (the "Intellectual Property") and desires to sell,
transfer and assign the Intellectual Property to Aoki Group LLC, an affiliate of
Purchaser, pursuant to this Agreement.
E. Benihana Inc. ("BI"), the ultimate parent of the Seller, and
Xxxxx Xxxx, the managing member of the Purchaser, desire to enter into a
restrictive covenant and agreement not to disclose confidential information (the
"Restrictive Covenant Agreement") pursuant to which BI will agree to modify
certain of the provisions of Section 6 of the Employment Agreement (the
"Employment Agreement") between BI and Xxxxx Xxxx dated as of September 1, 2003,
to permit Purchaser and its affiliates to operate the Restaurant and such other
businesses as therein described.
F. Seller desires to sell and Purchaser desires to purchase, for
the price and on the terms and conditions hereinafter set forth, Seller's
Leasehold Interest, the Chattels, the Liquor License and any and all other
right, title and interest in the leasehold improvements located at the Premises
(hereinafter collectively referred to, together with the Intellectual Property,
as the "Assets").
NOW, THEREFORE, it is agreed:
1. SALE OF ASSETS. Seller and Benihana agree to sell and Purchaser
agrees to purchase the Assets upon and subject to the terms and conditions
hereinafter set forth.
2. PURCHASE PRICE. The purchase price is $536,000.00 (subject to
the adjustments hereinafter described in Section 3 hereof), payable as follows:
(a) $50,000.00 on the execution of this Agreement by check
subject to collection, the proceeds of which shall be held in escrow subject to
the provisions of this Agreement by Xxxxxxxx Xxxxxxxxx Xxxxxxxx & Xxxxxxxx, LLP
("Escrow Agent") in a
separate non-interest bearing XXXX account acceptable to Seller and Purchaser
and held subject to the provisions of this Agreement ("Escrow Fund").
(b) $462,000.00 on the Closing Date (as hereinafter defined)
by good certified or bank check payable to the order of Seller with a credit to
the purchase price in the amount of any adjustments determined as of the Closing
Date described in Section 3.
(c) Twelve monthly payments of $2,000 (inclusive of
interest) to Benihana on the first business day of each month, commencing with
the first month after the month in which the Closing Date occurs.
(d) The purchase price of the Assets shall be allocated as
follows:
(i) Chattels: $80,000.00;
(ii) Leasehold Interest and Improvements: $375,000.00;
(iii) Liquor License: $45,000.00;
(iv) Intellectual Property: $36,000.00
(e) On the Closing Date, Seller shall pay all transfer taxes
due on the sale hereunder and Purchaser shall pay any sales or other taxes
required to be paid by a purchaser of the Assets. Aoki Group LLC shall be
responsible for any costs, filing fees and expenses incurred in connection with
the assignment of the Intellectual Property to Aoki Group LLC.
3. ADJUSTMENTS. (a) The following shall give rise to an adjustment
of the purchase price in favor of the Seller on the Closing Date:
(i) Prepayments by the Seller of rent, additional rent and
other charges due under the Major Lease with respect to any
period after the Closing Date and the transfer of any security
deposit to the name of the Purchaser;
(ii) Prepayments of real property taxes and utility charges
with respect to any period after the Closing Date;
(iii) Such other items agreed upon by Seller and Purchaser.
(b) The following shall give rise to an adjustment
of the purchase price in favor of the Purchaser on the
Closing Date:
(i) Amounts owing in respect of rent, additional rent and
other charges due under the Major Lease with respect to any
period prior to the Closing Date which are assumed by the
Purchaser;
(ii) Amounts owing in respect of real property taxes and
utility charges with respect to any period prior to the Closing
Date which are assumed by the Purchaser;
(iii) Trade payables, if any, with respect to pre-Closing Date
periods which are assumed by the Purchaser; and
(iv) Such other items agreed upon by Seller and Purchaser.
If the net adjustment is in Seller's favor, the same shall be
paid for by good certified or bank check on the Closing Date and, if the net
adjustment is in Purchaser's favor, the same shall be effected by reducing the
amount payable pursuant to Section 2(b).
In the event that certain adjustment items cannot be finally
determined on the Closing Date, the parties agree to make any remaining
adjustment payments when determined as soon as practicable but in any event
within 30 days after the Closing Date. In the event the parties cannot agree on
any such adjustment within the foregoing 30-day
period the parties shall appoint an independent accounting firm to make such
determination within the next 30 days.
4. XXXX OF SALE AND ASSIGNMENT OF TRADEMARK. On the Closing Date,
Seller and Benihana shall execute and deliver to Purchaser: Xxxx of Sale, in the
form of EXHIBIT B, transferring title to the Chattels; and an Assignment of
Trademark, in the form of Exhibit C transferring title to the Intellectual
Property, free and clear of all debts, taxes, liens and violations of record.
Purchaser agrees to accept the Chattels "as is" and acknowledges and agrees that
Seller makes no warranty or representation as to their condition.
5. MAJOR LEASE AND ASSIGNMENT OF LEASE. Seller warrants and
represents it is in possession of the Premises pursuant to the Major Lease, the
Major Lease is in full force and effect and there are no defaults thereunder on
the part of either Major Landlord or Seller. Purchaser acknowledges it has
examined the Major Lease. On the Closing Date, Seller and Purchaser shall
execute and deliver an Assignment and Assumption of Lease (the "Assignment of
Lease") in the form annexed hereto as EXHIBIT D. Pursuant to the Assignment of
Lease, Seller shall assign Seller's Leasehold Interest to Purchaser, and
Purchaser shall assume Seller's obligations as tenant under the Lease.
6. CONDITIONS PRECEDENT TO CLOSING OF TRANSACTION.
(a) Each and every obligation of Seller to be performed on
the Closing shall be subject to the satisfaction, prior to or concurrently with
the performance of such obligation of the following conditions, unless waived in
writing by Seller in its sole discretion:
(i) Purchaser shall have performed and complied with
all of its obligations under this Agreement which are to be performed or
complied with by it prior to the Closing.
(ii) The State of Florida Department of Alcoholic
Beverage Control ("ABC") shall have approved the transfer of the Liquor License
to Purchaser.
(iii) The representations and warranties made by
Purchaser in this Agreement shall be true on and as of the Closing Date with the
same force and effect as though they had been made or given on and as of the
Closing Date and Purchaser shall have delivered a certificate to such effect
signed by a principal officer of the Purchaser dated the Closing Date.
(iv) Seller, Purchaser and the Major Landlord under
the Major Lease shall have executed and delivered the Consent to Assignment and
Modification of Lease Agreement in substantially the form annexed thereto as
EXHIBIT E.
(v) BI and Xxxxx Xxxx shall have executed and
delivered the Restrictive Covenant Agreement in the form annexed hereto as
Exhibit K.
(vi) The Board of Directors of each of Seller,
Benihana and BI shall have approved the execution and delivery of this Agreement
and the Restrictive Covenant Agreement, as applicable, and the transactions
contemplated hereunder and thereunder.
(b) Each and every obligation of Purchaser to be performed
on the Closing Date shall be subject to the satisfaction, prior to or
concurrently with the performance of such obligation of the following conditions
unless waived, in writing, by Purchaser in its sole discretion:
(i) Seller and Benihana shall have performed and
complied with all obligations under this Agreement and the Major Lease which are
to be performed or complied with by Seller and Benihana prior to or on the
Closing Date.
(ii) The ABC shall have approved the transfer of the
Liquor License to Purchaser.
(iii) Seller, Purchaser and the Major Landlord shall
have executed and delivered the Consent to Assignment and Modification of Lease
Agreement.
(iv) The representations and warranties made by
Seller and Benihana in this Agreement shall be true in every respect on and as
of the Closing Date with the same force and effect as though they had been made
or given on and as of such date and Seller shall have delivered to Purchaser a
certificate to such effect signed by a principal officer of Seller dated the
Closing Date.
(v) BI and Xxxxx Xxxx shall have executed and
delivered the Restrictive Covenant Agreement.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
BENIHANA. Each of Seller and Benihana represents, warrants and covenants,
jointly and severally. that:
(a) Seller is in possession of the Premises pursuant to the
Major Lease and the Major Lease is in full force and effect and on the Closing
Date shall be free from any liens or encumbrances. Seller makes no warranty or
representation as to the condition of the Premises or the Chattels, and
Purchaser agrees to accept the same "as is".
(b) Seller is the owner and has good and marketable title to
the Assets (other than the Intellectual Property). Seller will on the Closing
deliver the Assets free and clear of any liens and encumbrances.
(c) Seller and Benihana have the power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereunder and this Agreement constitutes a valid and binding
agreement of Seller and Benihana enforceable against Seller and Benihana in
accordance with its terms, except as limited by applicable bankruptcy and
insolvency laws and general equitable principles.
(d) Seller has conducted, and up until the Closing Date will
continue to conduct, the business of the Restaurant in accordance with all laws
and regulations applicable to the Seller, the Restaurant and the Premises.
(e) There are no actions, suits or proceedings pending and
there are no violations posted against or affecting the Restaurant, the
Chattels, the Liquor License or the Premises before any federal, state,
municipal or other governmental agency or body or before the Board of Fire
Underwriters.
(f) Purchaser shall not be obligated to assume any executory
contracts or service agreements, other than those set forth in EXHIBIT F. Except
as expressly set forth herein, Purchaser is assuming no liabilities of Seller or
Benihana.
(g) Seller has not received any notice from the Major
Landlord or any mortgagee of the Premises setting forth a requirement with which
it has not complied to do or refrain from doing anything and to the best of
Seller's knowledge, there exists no event that, but for the passage of time or
giving of notice or both, would constitute a
default under the Major Lease or any mortgage affecting the Premises, the
Chattels or the Restaurant.
(h) Seller is the owner and has good title to the Liquor
License free from all liens, claims and encumbrances.
(i) All tax returns required to be filed with respect to the
Seller and the Restaurant have been timely filed and all taxes shown on such
returns have been timely paid; there are no outstanding subpoenas or requests
for information with respect to any such tax returns or the periods
corresponding thereto; there are no pending or threatened actions or proceedings
for the assessment or collection of taxes against the Seller or the Restaurant
and all taxes required to be withheld, collected or deposited by the Seller,
including without limitation on account of gratuities received by employees of
the Seller, have been timely withheld, collected and deposited and, to the
extent required, have been paid to the relevant taxing authority.
(j) Since the date of this Agreement, except as set forth in
EXHIBIT G, the Restaurant has been operated in the ordinary course and
consistent with past practices. As amplification and not limitation of the
foregoing, the Seller has not:
(i) made any material changes in the customary
methods of operating the Restaurant including, without
limitation, practices and policies relating to marketing,
selling and pricing;
(ii) sold, transferred, leased, licensed or disposed
of any properties or assets, real, personal or mixed, other than
inventory and the sale or disposal of assets which have been
reasonably determined by the
Seller as obsolete, in each case in the ordinary course of the
business of the Restaurant consistent with past practices;
(iii) entered into any agreement, arrangement or
transaction with any employees of the Seller other than those
contemplated by this Agreement or granted any increase in
compensation to any employee or to its employees in general
except with the express written approval of the Purchaser.
(k) Set forth on EXHIBIT H is a true and complete list of
all employees of the Company (including persons employed full and part time)
together with the current salary or hourly wage rate and any benefits or
perquisites. Except as disclosed on EXHIBIT I, the Seller is in compliance in
all material respects with applicable federal, state and local laws affecting
employment and employment practices, including terms and conditions of
employment and wages and hours and, other than as described on EXHIBIT I, there
are no complaints against the Seller pending or threatened before the National
Labor Relations Board or any similar state or local agency.
(l) Except as set forth on EXHIBIT I, the Seller and the
Premises are in compliance with, and have no liability under any federal, state
or local law, statute or regulation, or the common law, governing or relating to
the environment ("Environmental Law"), hazardous substances or to occupational
health and safety and neither the Seller nor the Premises have been alleged by
any governmental agency or third party to be in violation of, to be liable
under, or to be subject to any administrative or judicial proceeding pursuant to
any Environmental Law.
(m) During the period from the date hereof to the Closing
Date, the Seller agrees to cooperate with Purchaser in the course of Purchaser's
due diligence, including providing Purchaser and the Purchaser's accountants,
counsel and other representatives access to such books and records, property,
contracts and personnel as the Purchaser may reasonably request.
(n) The Seller covenants and agrees that until and unless
this Agreement is terminated pursuant to its terms, Purchaser has been granted
the exclusive right to hold discussions and negotiations with the Seller with
respect to the proposed acquisition of the Restaurant. Prior to the earlier to
occur of the Closing Date and the termination of this Agreement, in no event
shall the Seller or any of its affiliates engage (either directly or through
representatives) in any discussions or negotiations with any other person with
respect to a sale of the Restaurant. Notwithstanding anything to the contrary
contained herein, if at any time prior to the Closing Date, the Board of
Directors of Seller determines in good faith, after consultation with outside
counsel and its financial advisor, that failure to do so would create a
substantial risk of liability for breach of its fiduciary duties to the
stockholders of Seller under applicable law, Seller may, in response to an
unsolicited proposal which the Board of Directors of Seller determines would, if
consummated, result in a transaction that is more favorable to the Seller's
stockholders than the transaction contemplated by this Agreement and is
reasonably capable of being completed, participate in negotiations and
discussions regarding such superior proposal. The Agreement may be terminated by
Seller prior to the Closing Date by action of the Board of Directors of the
Seller upon written notice to Purchaser that Seller intends to enter into a
binding written agreement for a superior proposal (with such
termination being effective upon the Seller entering into such binding written
agreement); provided the Purchaser shall be entitled to make a counter-offer and
provided, further that if Purchaser makes no counter-offer or if Purchaser makes
a counter-offer that Seller deems less favorable than the third party offer,
Purchaser shall be entitled to the return of the Escrow Deposit and
reimbursement of its reasonable expenses.
(o) Benihana owns or has rights to use all Intellectual
Property, free and clear of any lien. No party other than Benihana owns any of
the Intellectual Property. EXHIBIT J sets forth a list of all such Intellectual
Property owned, used, held for use or licensed by Benihana in connection with
the Assets, and any licenses or other agreements relating thereto, and, for
Intellectual Property owned by Benihana, indicates whether and where any such
Intellectual Property has been registered or filed with the United States Patent
and Trademark Office, the United States Copyright Office or the corresponding
office of any other jurisdictions. The operation of the Restaurant and the
Assets does not conflict with or infringe upon, and no one has asserted to
either of Seller or Benihana that the operation of the Restaurant or the Assets
conflicts with or infringes upon, any Intellectual Property owned, possessed,
used or claimed by any third party. Benihana has not granted any outstanding
licenses or other rights, or obligated itself to grant licenses or other rights,
in or to any of the Intellectual Property.
(p) Purchaser expects to offer employment on substantially
similar terms to substantially all of Seller's employees who are employees in
good standing on the Closing Date. Seller agrees that it and its affiliates will
not make any offer of employment to any of Seller's employees for a period of
one year from the Closing Date
without the consent of Purchaser. In no event shall any employees of Seller be
entitled to enforce or make any claim under this Agreement.
Seller and Benihana each agree that the foregoing warranties and
representations shall be true and correct as of the Closing Date and on the
Closing Date, Seller and Benihana shall deliver to Purchaser a certificate
signed by a principal officer to that effect and that all requisite corporate
action has been taken to consummate this transaction. The representations and
warranties made by Seller and Benihana in this Agreement shall survive the
Closing until the first anniversary of the Closing Date; PROVIDED, that the
foregoing survival period shall be extended with respect to any claim made with
respect a particular representation and warranty made before the end of such
survival period until the resolution of such claim.
Except with respect to debts to creditors and taxing
authorities, which shall be subject to a dollar for dollar adjustment of the
Purchase Price, Seller shall be liable for damages resulting from a breach of
the foregoing warranties and representations to the extent that such damages
exceed $5,000.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser represents, warrants and covenants that:
(a) This Agreement constitutes a valid and binding agreement
of Purchaser enforceable against the Purchaser in accordance with its terms,
except as limited by applicable bankruptcy and insolvency laws and general
equitable principles.
(b) Purchaser is a limited liability company duly organized
and existing under the laws of Delaware with full power to consummate the
transactions contemplated by this Agreement.
(c) Purchaser covenants that within five (5) days of the
execution of this Agreement, Purchaser shall apply to the ABC for the transfer
of the Liquor License and to prosecute such application expeditiously.
The foregoing representations and warranties shall be true and
correct as of the date of Closing as if such warranties and representations were
made as of such time and shall survive the Closing Date until the first
anniversary of the Closing Date and, on the Closing Date, Purchaser shall
deliver to Seller a certificate executed by the Purchaser to that effect.
9. INDEMNIFICATION.
(a) Each of Seller and Benihana agrees jointly and severally
to indemnify and hold harmless Purchaser and its affiliates and each of their
members, officers, managers, directors, agents and representatives (the
"Purchaser Indemnified Parties") in respect of any loss or damages (including
attorneys fees as incurred) arising out of (i) any breach of Seller's or
Benihana's representations and warranties and covenants contained herein, and
(ii) any claims of creditors of Seller or Benihana (including taxing and other
governmental authorities) that may be asserted against Purchaser or the Assets
for the period prior to the Closing or any other liabilities of Seller or
Benihana or their affiliates not expressly assumed by Purchaser hereunder.
(b) As promptly as shall be feasible, and in any event
within a reasonable time after acquiring knowledge of any claim, demand,
obligation or liability against which Seller has agreed to indemnify and hold
Purchaser harmless hereunder, Purchaser shall give to Seller written notice
thereof; PROVIDED, that failure to give timely notice shall not adversely affect
Purchaser's and the other Purchaser Indemnified Parties'
right to indemnification hereunder. Seller shall have the duty, at its own
expense, to defend and to contest any such claim, demand, obligation or
liability against which it has agreed to indemnify and hold Purchaser and the
other Purchaser Indemnified Parties harmless. In the event that Seller or
Benihana shall, after written notice from Purchaser, fail to take timely action
to defend the same, Purchaser shall have the right to defend the same by counsel
of their own choosing, but at the reasonable cost and expense of Seller.
Purchaser shall have right to settle or compromise any claim, demand,
litigation, obligation or liability if Purchaser shall have given written notice
thereof to Seller and Seller shall have failed to take timely action to defend
the same and Seller shall thereupon indemnify Purchaser.
10. CLOSING. Upon the fulfillment (or waiver) of the conditions set
forth in Section 8, either party may upon notice to the other designate the date
for closing (the "Closing Date"), which shall be not less than three (3) nor
more than seven (7) business days after the date of such notice which closing
shall take place at the office of the Escrow Agent, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
11. NOTICES. All notices, demands or other communications hereunder
shall be by registered or certified mail, return receipt requested, postage
prepaid, addressed to Seller and Purchaser (with a copy to Purchaser's counsel
at Xxxxxxxx Xxxxx & Deutsch LLP, 000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, XX
00000 Attention: Xxxxx X. Xxxxxxxx, fax (000) 000-0000) as hereinabove set
forth, and to Escrow Agent at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any
party to this Agreement may designate a different address by notice sent to the
other parties hereto pursuant to the requirements set forth in this Section.
12. DISPOSITION OF ESCROW FUND.
(a) Escrow Agent shall deliver the Escrow Fund to Seller (i)
on the Closing Date on the consummation of the transactions contemplated herein,
or (ii) following receipt of written demand therefor from Seller stating that
Purchaser has defaulted in the performance of this Agreement, setting forth the
nature of such default (and payment of the same shall be deemed liquidated
damages and Purchaser shall have no further liability hereunder) provided,
however, Escrow Agent shall not make any such payment to Seller until the
expiration of ten (10) days from the date of mailing a copy of Seller's demand
to Purchaser; and if Escrow Agent shall receive written notice of objection from
Purchaser to the payment of the Escrow Fund to Seller, the Escrow Fund shall be
disposed of pursuant to the provisions of subsection (c).
(b) Escrow Agent shall deliver the Escrow Fund to Purchaser
following receipt of written demand therefor from Purchaser stating that (i)
Seller has defaulted in the performance of this Agreement setting forth the
nature of such default or (ii) the conditions precedent set forth in Section 8
have not been fulfilled and, after payment of same, this Agreement shall be of
no force and effect and neither party shall have any claim against the other by
reason of anything herein contained; provided, however, that Escrow Agent shall
not make any payment to Purchaser until the expiration of ten (10) days from the
date of mailing a copy of Purchaser's demand to Seller and if Escrow Agent shall
receive written notice of objection from Seller to the payment of the Escrow
Fund to Purchaser, the Escrow Fund shall be disposed of pursuant to provisions
of subsection (c).
(c) In the event Escrow Agent shall receive an objection to
the payment of the Escrow Fund as aforesaid, Escrow Agent shall retain the
Escrow Fund until Escrow Agent (i) receives instructions executed by Seller and
Purchaser advising it as to the manner in which the Escrow Fund is to be
disbursed, or (ii) file an interpleader action in the appropriate Court in the
State of New York, New York County, naming Purchaser and Seller as defendants
and setting forth their respective adverse claims to the Escrow Fund, in which
event such Escrow Fund shall not be disposed of except in accordance with an
order issued by said Court.
(d) Escrow Agent may act upon any instrument or other
writing believed by them to be genuine, and shall not be liable in connection
with the performance of any duties imposed upon it by the provisions of this
Agreement except for its own willful misconduct or gross negligence. Escrow
Agent shall have no duties or responsibilities except those set forth herein.
(e) Escrow Agent shall be entitled to reasonable attorneys'
fees and costs, to be paid by the Seller, in connection with any legal action
hereunder or in the event it incurs any attorneys' fees or other costs in
connection with the administration of its duties hereunder. Escrow Agent shall
be entitled to act as counsel for Seller in connection with this Agreement or
otherwise, notwithstanding that it is acting as escrowee hereunder, and the
value of time spent by attorneys and paralegals of the Escrow Agent on such
matters shall constitute "attorneys' fees".
13. ACCEPTANCE OF ESCROW. By joining in the execution of this
Agreement at the foot hereof, Escrow Agent hereby accepts the escrow created
hereunder and agrees to
hold and dispose of the proceeds of the escrow fund in accordance with the
provisions of this Agreement.
14. NO RELIANCE. All understandings and agreements heretofore had
between the parties hereto are merged into this Agreement, which alone fully and
completely expresses this Agreement. Purchaser represents and agrees that in the
making and execution of this Agreement, Purchaser has not relied upon or been
induced by any statements or representations, other than those expressly set
forth in this Agreement, or of any person in respect of the property, income,
expenses, profit or loss from the operations of the Restaurant.
15. FURTHER ACTS. The parties shall, prior to or after the Closing
Date, at the request of any one of them execute and deliver such other
instruments and do and perform such other reasonable acts and things as may, in
the reasonable opinion of counsel for the requesting party, be necessary or
desirable for effecting complete consummation of this Agreement and the
transactions herein contemplated.
16. TERMINATION. This Agreement may be terminated at any time prior
to the Closing Date:
(a) by the Purchaser, if between the date hereof and the
Closing Date, (i) an event or condition occurs that has resulted in or that may
be expected to result in a Material Adverse Effect with respect to the business
of the Restaurant or (ii) the Seller shall have breached a material covenant or
obligation hereunder;
(b) by the Seller or the Purchaser if the Closing Date shall
not have occurred by May 31, 2006; provided, however, that the right to
terminate this Agreement pursuant to this Section 16(b) shall not be available
to any party whose failure to fulfill
any obligation under this Agreement shall have been the cause of, or resulted
in, the failure of the Closing Date to occur on or prior to such date; or
(c) by mutual written consent of the parties hereto.
17. BROKER. Purchaser represents and warrants it has not dealt with
any broker or finder in this transaction, and will indemnify and hold Seller
harmless from and against any costs and expenses Seller may incur as a result of
any claim by any other broker or finder.
18. EXPENSES. Except as expressly contemplated herein, Purchaser, on
the one hand, and the Seller, BI and Benihana, on the other hand, will pay their
own fees, costs and expenses in connection with the transactions contemplated by
this Agreement.
19. BULK SALES ACT. Seller and Purchaser have agreed that no attempt
will be made to comply with the bulk sales laws of any state. Seller shall
indemnify and hold Purchaser harmless against any loss, claim or liability
arising out of the failure to comply with any such bulk sales laws.
20. GENERAL PROVISIONS. This Agreement constitutes the entire
agreement among the parties. It may not be changed except only by an agreement
in writing signed by the parties against whom enforcement of any such change is
sought. No representation, warranty or promise pertaining to this Agreement or
transaction has been made by or shall be binding upon any of the parties, except
as expressly stated in this Agreement. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York,
excluding any choice of law rules that may direct the application of the laws of
another jurisdiction. Each party hereby agrees to submit to the exclusive
jurisdiction of the state and Federal courts located in The City of New
York, New York with respect to any dispute arising out of or related to this
Agreement. This Agreement shall inure to the benefit of and shall bind in the
respective parties, and their successors and assigns.
21. POST-CLOSING.
(a) Seller desires to sell and Purchaser desires to purchase
the bowls, dishes and ceramic soup spoons with the Doraku logo currently in
storage outside the Premises at Seller's cost within thirty (30) days from the
Closing Date. In addition, Seller will deliver to Purchaser within thirty (30)
days from Closing Date, all other inventory (consisting primarily of coasters,
dishware not described in the preceding sentence and uniforms) pertaining to the
Restaurant previously paid for by Seller and currently in storage outside the
Premises at no additional cost to Purchaser.
(b) The Restaurant will continue to participate in the
Emperor's Club loyalty program for 120 days following the Closing such that
customers of the Restaurant will be entitled to earn Emperor's Club points for
their purchases at the Restaurant in the same manner as prior to the Closing
Date and Purchaser will honor duly issued Emperor's Club reward certificates in
the same manner as prior to the Closing Date. Seller agrees to provide Purchaser
with the records of all customers of the Restaurant who joined the Emperor's
Club through the Restaurant so that Purchaser can establish its own loyalty
program no later than 120 days from the Closing Date. The parties agree to
settle any monies owed to each other as a result of redemptions at the
Restaurant and at Benihana's locations every 28 days during this 120 day period.
IN WITNESS WHEREOF, the parties have executed this Agreement of Sale as
of the date first above written.
BENIHANA LINCOLN ROAD CORP.
By:
-------------------------------------
Xxxx X. Xxxxxxxx, President
BENIHANA NATIONAL CORP.
By:
-------------------------------------
Xxxx X. Xxxxxxxx, President
DORAKU LINCOLN ROAD LLC
By:
-------------------------------------
Xxxxx Xxxx, President
Xxxxxxxx Xxxxxxxxx Xxxxxxxx AOKI GROUP LLC
& Xxxxxxxx, LLP
(Escrow Agent)
By:
-------------------------------------
By: Xxxxx Xxxx, President
-------------------------------
