PURCHASE AND SALE AGREEMENT
Avado Brands, Inc.
("Seller")
SKYLINE-FRI 12, ▇▇▇▇▇▇▇▇, ▇.▇.
("Buyer")
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("Agreement") is entered into as of August
29, 2003, by and between Avado Brands, Inc, a Georgia corporation, ("Seller"),
and SKYLINE-FRI 12, ▇▇▇▇▇▇▇▇, ▇.▇., a Texas limited partnership ("Buyer").
W I T N E S S E T H:
In consideration of the mutual covenants set forth herein, Seller and Buyer
agree as follows:
1. Conveyance of Property. On the terms and subject to the conditions set
forth in this Agreement, at Closing, as hereinafter defined, Seller shall sell,
convey and assign to Buyer, and Buyer shall buy and accept from Seller, subject
to the Permitted Encumbrances, as hereinafter defined, the restaurant property(a
"Property" or "Real Property") more particularly described as follows:
(a) good and indefeasible title in fee simple to the land described on
Schedule ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇▇, "▇▇▇▇"), together with all rights and
interests appurtenant thereto, including, without limitation, Seller's right,
title, and interest in and to all (i) adjacent streets, alleys, rights-of-way
and any adjacent strips or gores of real estate; (ii) buildings, structures and
other improvements located on the Land ("Improvements"); and (iii) the fixtures
located at or in the Land or Improvements.
(b) all of the following relating to the Real Property (collectively, the
"Personal Property"): the coolers, walk-in freezers, HVAC equipment and
ventilation units owned by Seller and located at the Real Property on the
Closing Date.
2. ▇▇▇▇▇▇▇ Money. Within three (3) business days after the date both Buyer
and Seller execute and deliver this Agreement, Buyer shall deliver to Chicago
Title Insurance Company, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Title
Company") $50.00 ("▇▇▇▇▇▇▇ Money") in consideration for this Agreement. The
Title Company shall immediately deliver the ▇▇▇▇▇▇▇ Money to Seller and the
▇▇▇▇▇▇▇ Money shall be retained by Seller in all events.
3. Purchase Price and Prorations.
(a) Subject to the terms of this Agreement, the purchase price (the
"Purchase Price") for the Property shall be $1,500,000 payable in cash at
Closing. The Purchase Price shall be paid to the Title Company on behalf of the
parties and distributed by the Title Company as designated by the closing
statement.
(b) No proration shall be made of real estate and personal property taxes,
utility charges and maintenance expenses with respect to the Property, since
these expenses are obligations of the Lessee pursuant to the Lease Agreement (as
defined below) to be executed and delivered by Buyer (as landlord) and Seller
(as tenant) on the Closing Date. Rental payments under the Lease Agreement shall
be pro-rated as of the Closing Date such that Seller shall prepay a prorated
portion of the rent applicable to the month in which the Closing occurs, as
contemplated by the Lease Agreement.
4. Delivery of Documents by Seller. Seller has either already delivered to
Buyer, or on or before five (5) business days following the date hereof (but in
no event later than the Closing Date), Seller shall deliver to Buyer, the
documents set forth in clauses (a) through (i) hereof (collectively,
"Documents"). All information set forth in the Documents shall be held in strict
confidence by Buyer, its employees and agent until Closing (or indefinitely, if
Closing does not occur). In the event that Closing does not occur, Buyer shall
promptly return to Seller all Documents.
(a) Commitment for title insurance covering the fee estate in the Real
Property ("Title Commitment") from the Title Company, setting forth the status
of the title to the Real Property, showing all matters of record affecting the
Real Property, together with a true, complete and legible copy of all documents
referred to in the Title Commitment;
(b) Current ALTA Land Title "As Built" Survey("Survey") regarding the Real
Property, and containing the certification set forth on Exhibit C as the same
may be required to be modified to conform with requirements of the jurisdiction
in which the property is located (provided that such certification shall at all
times be reasonably acceptable to Buyer);
(c) Phase 1 site assessment for the Real Property (the "Site Assessment");
(d) Insurance binder or certificate of insurance (including blanket
policies) covering the Property (including without limitation all Improvements);
(e) Use permit regarding the Property;
(f) Certificate of occupancy regarding the Property;
(g) Profit and loss statements for the prior fiscal quarter and the
preceding two (2) fiscal years for the Property;
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(h) Any and all studies, data, reports, agreements, licenses, leases,
environmental assessments, surveys, reports, documents, plans, maps, and permits
in Seller's possession or control concerning the Property (to the extent not
already delivered to Buyer pursuant to Section 4(a) - (g), above); and
(i) Such other information regarding Seller or the Property that may
reasonably be requested by Buyer with a reasonably detailed description thereof.
5. Right of Entry, Inspection.
From and including the date hereof through and including the Closing Date,
Seller shall afford Buyer and its representatives a continuing right to inspect,
at reasonable hours, the Property and the Documents and Seller hereby grants to
Buyer and Buyer's agents, employees and consultants a nonexclusive license to
enter upon the Real Property for the purpose of allowing Buyer to conduct
whatever soil and engineering tests, feasibility studies, surveys and other
physical examinations of the Real Property Buyer deems appropriate. Buyer will
not perform any invasive testing at the Property without Seller's prior written
consent, which shall not be unreasonably withheld. All tests, investigations and
studies to be performed by Buyer shall be performed at its sole cost and
expense, and Buyer shall at all times use reasonable efforts not to unduly
interfere with the conduct of Seller's business at the Property. In the event of
any damage to the Property caused by Buyer, its agents, engineers, employees or
contractors, Buyer shall pay the cost incurred by Seller to restore the Property
to the condition existing prior to the performance of such tests, investigations
or studies. Buyer shall defend, indemnify and hold Seller harmless from any and
all liability, claims, losses, costs and expenses (including, without
limitation, reasonable attorneys' fees and court costs) suffered or incurred by
Seller for injury to persons or property caused by Buyer's investigations,
studies, tests and inspections of the Property. However, Buyer shall have no
liability for any loss, claim or liability attributable to the acts or omissions
of Seller or Seller's agents, employees, invitees or licensees or resulting from
latent defects or Hazardous Materials within, on or adjacent to the Real
Property (except in the event that such latent defects are negligently
exacerbated by Buyer or its employees or contractors). As used in this
Agreement, the terms "De Minimis Amounts," "Hazardous Materials" and
"Environmental Laws" shall have the meanings set forth in the form Lease
Agreement attached hereto as Exhibit F.
6. Title, Environmental and Other Defects.
(a) Buyer shall have the right, at any time during the period ending at
5:00 p.m. CST on the date two (2) days prior to the Closing Date (as defined in
Section 8 hereof) ("Title Objection Cut-Off Date"), to object in writing to any
matters reflected in the Survey or a Title Commitment. All matters set forth in
Survey or Title Commitment to which Buyer delivers written objection ("Title
Notice Letter"), and all matters which are listed on the Title Commitment as
requirements by the Title Company to issue the title insurance policy (other
than those requirements which relate to documents or other items to be provided
by Buyer), are "Non-Permitted Encumbrances". All matters set forth in the Title
Commitment or Survey which are not Non-Permitted Encumbrances are "Permitted
Encumbrances". Seller, at its sole cost and expense, shall have the right, but
not the obligation, to cure or remove all Non-Permitted Encumbrances on or
before the Closing Date. If Seller does not cause all Non-Permitted Encumbrances
which materially adversely affect title to the Property to be removed or cured
on or before the Closing Date, Buyer may elect, in its sole discretion, to
either (i) purchase the Property subject to the Non-Permitted Encumbrance(s)
with no reduction in the Purchase Price, or (ii)terminate this Agreement by
delivery of written notice to Seller. In the event that Buyer elects to proceed
under option (i) above, notwithstanding anything in this Agreement to the
contrary, the applicable Non-Permitted Encumbrances accepted by Buyer shall
thereafter be deemed to be Permitted Encumbrances.
(b) If the Site Assessment or any other information received by Buyer with
respect to the Property reveals an environmental condition at the Property that
materially adversely affects the marketability of the Property, Buyer may in its
sole discretion, not later than the Title Objection Cut-Off Date elect by
written notice to Seller to either (i) terminate this Agreement by delivery of
written notice to Seller, or (ii) purchase the Property subject to the
environmental condition with no reduction in the Purchase Price.
7. (a) Seller Representations and Warranties. Seller hereby represents and
warrants to, and covenants with Buyer that as of the date hereof and as of the
Closing:
(i) Seller is a Georgia corporation duly organized, validly existing and in
good standing under the laws of North Carolina Seller has the right, power, and
authority to execute, deliver, and perform this Agreement, and this Agreement,
when executed and delivered by Seller and Buyer, shall constitute the valid and
binding agreement of Seller, and shall be enforceable against Seller in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
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(ii) All requisite corporate action on the part of Seller has been taken by
Seller in connection with making and entering into this Agreement and the
consummation of the purchase and sale provided for herein, and no consents or
approvals are required from any party which is not a party to this Agreement in
order to consummate such purchase and sale, except for consents or approvals
that, if not obtained, would not be reasonably likely to have a material adverse
effect. Neither this Agreement nor the consummation of any of the transactions
contemplated hereby violates or shall violate any provision of any material
agreement or document to which Seller is a party or to which Seller is bound
except for any violations that would not be reasonably likely to have a material
adverse effect.
(iii) Neither Seller nor any entity or person that directly or indirectly
owns or controls Seller is bankrupt under the Federal Bankruptcy Code, or has
filed for protection or relief under any applicable bankruptcy or creditor
protection statute or has been threatened by creditors with an involuntary
application of any applicable bankruptcy or creditor protection statute. Seller
is not entering into the transactions described in this Agreement with an intent
to defraud any creditor or to prefer the rights of one creditor over any other.
After giving effect to the transactions contemplated by this Agreement, the
Buyer and each of its subsidiaries taken as a whole, have not intentionally (i)
incurred indebtedness for borrowed money beyond their ability to collectively
repay such indebtedness as it matures or (ii) been left with unreasonably small
capital, based solely upon an assessment of anticipated liquidity and debt
maturities. Seller and Buyer have negotiated this Agreement at arms-length and
the consideration to be paid represents the fair market value for the assets to
be transferred.
(iv) To the best of Seller's knowledge, after diligent inquiry, except as
expressly disclosed in the Documents delivered to Buyer prior to the Closing
Date, Seller has not received any written notice from appropriate governmental
authorities that the Property is in violation of any applicable laws.
(v) To the best of Seller's knowledge, after diligent inquiry, Seller has
not received any written notices from any insurance company, board of fire
underwriters or similar organization regarding any defects in the Property.
(vi) Except as disclosed in the Documents delivered to Buyer prior to the
Closing Date, the Improvements and their current use with respect to the
Property are in material compliance with all applicable zoning, building,
environmental, subdivision and other laws, rules, and regulations applicable
thereto, as well as any private restrictive covenants affecting the Property,
and are ready for use and occupancy in the same manner as such use and occupancy
has heretofore been made.
(vii) Except for the Permitted Encumbrances including any matters that are
deemed to be Permitted Encumbrances pursuant to section 6(a), upon proper
recording of the Deed, Seller will own the Property free and clear of all liens,
restrictions, charges and encumbrances. From the date hereof, and until the
Closing or earlier termination of this Agreement, Seller shall not sell, assign
or create any right, title or interest whatsoever in or to the Property or
create any liens, encumbrances or charges thereon without discharging the same
at or prior to the Closing Date.
(iix) To the best of Seller's knowledge, after diligent inquiry, there is
no suit, action or arbitration, or legal, administrative, or other proceeding or
governmental investigation, formal or informal, including but not limited to
eminent domain or condemnation proceeding, proceeding to establish a new
assessment district or increase the assessments imposed by an existing
assessment district, or zoning change proceeding, pending or threatened in
writing, or any judgment, moratorium or other government policy or practice
which affects the Property.
(ix) Except as disclosed in the Site Assessment delivered to Buyer prior to
the Title Objection Cut-Off Date, there are no lawsuits, claims, suits,
proceedings or investigations pending or, to the best of Seller's knowledge,
threatened against or affecting Seller or the Property nor, to the best of
Seller's knowledge, is there any basis for any of the same, and there are no
lawsuits, suits or proceedings pending in which Seller is the plaintiff or
claimant and which relate to the Property, or any facts or circumstances which
may in any way adversely affect the Property. There is no action, suit or
proceeding pending or, to the best of Seller's knowledge, threatened which
questions the legality or propriety of the transactions contemplated by this
Agreement.
(x) Except as disclosed in the Documents delivered to Buyer prior to the
Closing Date, to the best of Seller's knowledge, after diligent inquiry, (A) the
Property is not in violation, nor has been or is currently under investigation
for violation of any Environmental Laws, and (B) the Property has not been
subject to a deposit of any Hazardous Materials (except in De Minimis Amounts);
(C) neither Seller nor any third party has used, generated, manufactured, stored
or disposed in, at, on, under or about the Property or transported to or from
the Property any Hazardous Materials (except in De Minimis Amounts); (D) there
has been no discharge, migration or release of any Hazardous Materials from,
into, on, under or about the Property (except in De Minimis Amounts); and (E)
there is not now, nor has there ever been on or in the Property underground
storage tanks or surface impoundments, any asbestos-containing materials or any
polychlorinated biphenyls used in hydraulic oils, electrical transformers or
other equipment except with respect to any such materials disclosed on Schedule
3, and which materials have been sealed, capped, encapsulated or otherwise
remediated in accordance with applicable Environmental Laws. Seller assigns to
Buyer, effective upon Closing, all claims, counterclaims, defenses or actions,
whether at common law, or pursuant to any other applicable federal or state or
other laws which Seller may have against any third parties relating to the
existence of any Hazardous Materials in, at, on, under or about the Property.
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(xi) To the best of Seller's knowledge, after diligent inquiry, all
Improvements comply in all material respects with all applicable requirements of
governmental authorities, and all laws, rules and regulations and building codes
in effect as of the Closing Date.
(xii) Seller has disclosed to Buyer all material information in Seller's
possession or known to Seller concerning the Property that would be reasonably
likely to be material to Seller's decision to enter into this Agreement and/or
consummate the transaction contemplated thereby.
It shall be a condition of Buyer's obligation to close that the warranties
and representations made with respect to the Property are true as of the
Closing. If Buyer discovers prior to Closing that any representation or warranty
made in this Agreement is not true in all material respects, then Buyer shall
have the right, as its sole and exclusive remedy, to either (i) terminate this
Agreement by delivering notice to Seller prior to the Closing Date, or (ii)
elect to purchase the Property subject to such untrue warranty or representation
without any reduction in the Purchase Price. If Buyer discovers after the
Closing Date that any representation or warranty made in this Agreement is not
correct in all material respects, and the breach of such representation or
warranty is also a breach of the Lease Agreement, then the remedy provisions of
the Lease Agreement shall control; if no such provision exists for a breach of a
representation or warranty under the Lease Agreement, then Buyer shall be
entitled to exercise all remedies at law or equity, provided as a condition to
Buyer's right to do so, Buyer must exercise such remedies including the filing
of any suit or other action within two (2) years after the Closing Date.
(b) Buyer Representations and Warranties. Buyer hereby represents and
warrants to, and covenants with Seller that as of the date hereof and as of the
Closing:
(i) Buyer has been duly formed, is validly existing and has taken all
necessary action to authorize the execution, delivery and performance by Buyer
of this Agreement.
(ii) The person who has executed this Agreement on behalf of Buyer is duly
authorized to do so.
(iii) Upon execution by Buyer, this Agreement shall constitute the legal,
valid and binding obligation of Buyer, enforceable against Buyer in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditor's rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
It shall be a condition of Seller's obligation to close that the
representations and warranties made by Buyer in this subsection are true as of
the Closing.
8. Closing. The closing ("Closing") of the sale of the Property by Seller
to Buyer shall occur on August 29, 2003 ("Closing Date"), with a pre-closing in
which all recordable documents will be delivered to the Title Company on August
28, 2003. Notwithstanding the foregoing to the contrary, Buyer may, by written
notice delivered to Seller on or before August 29, 2003, extend the Closing Date
to a date not later than September 12, 2003, if the Documents required to be
delivered to Buyer prior to the Closing Date pursuant to Section 4 hereof are
not delivered within the period time set forth in Section 4. Closing shall occur
in the offices of the Title Company, in escrow (the "Escrow"), or at another
place and or time as mutually agreed upon by Seller and Buyer, commencing at
10:00 o'clock a. m. on the Closing Date. Closing shall be deemed to occur when
Seller has received the Purchase Price, the Deed (as defined below) has been
tendered to the Title Company for recording in the Official Records of the
county where the Real Property is located such that title to the Property has
been conveyed to Buyer, and the deliveries at Closing contemplated by this
Section 8 shall have occurred. At Closing:
(a) Buyer shall deliver to Seller through the Escrow (i) payment of the
Purchase Price in accordance with Section 3; (ii) an executed Lease Agreement in
the form attached hereto as Exhibit F ("Lease Agreement") together with
execution copies of the Exhibits to the Lease Agreement; and (iii) evidence
satisfactory to Seller and the Title Company that the person executing documents
on behalf of Buyer has full right, power and authority to do so and (iv) any
counterparts of real estate transfer declarations required to be executed by
Buyer.
(b) Seller shall deliver or cause to be delivered to Buyer through the
Escrow the following ("Closing Documents"):
(i) Special Warranty Deed in the form of Exhibit B, or substantially
equivalent form complying with state specific recording requirements ("Deed"),
conveying to Buyer the Real Property subject to the Permitted Encumbrances; ▇▇▇▇
of Sale conveying the Personal Property in the form of Exhibit D; IRC Section
1445 Certification in the form of Exhibit E, together with execution copies of
the Exhibits to the Lease Agreement; all fully executed, sworn to, and
acknowledged, as appropriate, by Seller;
(ii) an executed Lease Agreement in the form attached hereto as Exhibit F;
and
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(iii) Title policy or irrevocable commitment to issue the title policy
regarding theReal Property in the form required pursuant to Section 8(c) below.
(c) Seller shall pay for the costs of obtaining the Title Commitment, an
Owner's Policy of Title Insurance and Mortgagee Policy of Title Insurance
(insuring Buyer's lender's mortgages) for the Property in the amount of
$1,500,000(with endorsements including Owner's comprehensive, survey, access and
zoning, and without exception for creditors' rights), the Survey and all
required updates thereof, the Site Assessment, all escrow fees, all recording
costs, (including, without limitation mortgage recording costs) and applicable
deed stamp or transfer taxes for the Property (including, without limitation,
all Personal Property relating thereto). Buyer shall coordinate with the Title
Company to obtain all title insurance policy endorsements desired by Seller or
Seller's lender, and Seller shall reasonably cooperate with Buyer in connection
therewith.
(d) Seller shall deliver to Buyer possession of the Property subject to the
Lease Agreement.
9. Notices. Any notice provided or permitted to be given under this
Agreement must be in writing and may be served by depositing same in the United
States mail, addressed to the party to be notified, postage prepaid and
certified, with return receipt requested, by delivering the same in person to
such party (including express or courier service), or by delivering the same by
confirmed facsimile. Notice given in accordance herewith shall be effective upon
the earlier of (i) receipt at the address of the addressee, (ii) the second
(2nd) day following deposit of same in the United States mail as provided for
herein, regardless of whether same is actually received, or (iii) the second
attempt at delivery, as evidenced by the regular records of the person or entity
attempting delivery, regardless of whether the same is actually received. For
purposes of notice, the addresses of the parties shall be as follows:
If to Seller: Avado Brands, Inc.
▇▇▇▇▇▇▇ at Washington
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
With copies (which shall not constitute
notice hereunder) to:
▇▇▇▇▇▇ Sieffert, P.A.
▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (29607)
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: SKYLINE-FRI 12, ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its address for notice by giving written notice
thereof to the other party in accordance with the provisions of this Section 9.
10. Commissions. Buyer shall defend, protect, indemnify and hold harmless
Seller from any claim by any party claiming under Buyer for any brokerage,
commission, finder's, or other fees relative to this Agreement or the sale of
the Property, and any court costs, attorneys' fees, or other costs or expenses
arising therefrom and alleged to be due by authorization of Buyer. Seller shall
defend, protect, indemnify and hold harmless Buyer from any claim by any party
claiming under Seller for any brokerage, commission, finder's, or other fees
relative to this Agreement or the sale of the Property, and any court costs,
attorneys' fees, or other costs or expenses arising therefrom and alleged to be
due by authorization of Seller.
11. Assigns. This Agreement shall inure to the benefit of and be binding on
the parties hereto and their respective heirs, legal representatives, successors
and assigns. This Agreement may be assigned by Buyer without the consent of
Seller by delivery of written notice of assignment to Seller. Notwithstanding
the foregoing, upon any assignment, Buyer shall not be relieved of liability for
the performance of any obligation of Buyer contained in this Agreement unless
and until Buyer's assignee shall have assumed in writing all of the duties and
obligations of Buyer hereunder.
12. Destruction, Damage or Taking Before Closing.
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(a) In the event of damage to or destruction of all or any portion of any
Property by fire or other casualty, Seller shall promptly deliver to Buyer
written notice thereof (the "Damage Notice"), which notice shall contain
reasonable detail regarding such damage or destruction, including without
limitation Seller's reasonable estimate of the amount required to be expended to
repair or restore the damaged or destroyed Property or portion thereof ("Repair
Cost"). If Seller reasonably estimates that the Repair Cost is $100,000.00 or
less, Seller shall, at its option, either (i) repair such damage or destruction,
or, if such damage or destruction has not been repaired prior to Closing, (ii)
require Buyer to take title to the Property, and the Lease Agreement shall
govern the disposition of insurance proceeds and repair of the Property. If
Seller reasonably estimates that the Repair Cost exceeds $100,000.00, Buyer
shall have, as its sole and exclusive remedy, either of the following options,
to be exercised by delivering written notice thereof to Seller within ten (10)
business days after its receipt of the Damage Notice from Seller: (x)the option
to terminate this Agreement by delivery of written notice to Seller; or (y) the
option to close the sale of the Property , in which case Buyer shall take title
to the Property, and the Lease Agreement shall govern disposition of insurance
proceeds and repair of the Property. If Buyer fails to deliver any such notice
to Seller within such ten (10) business day period, Buyer shall be deemed to
have exercised its option described in (y), above.
(b) In the event of an eminent domain taking or the issuance of a notice of
an eminent domain taking with respect to all or any portion of any Property,
Seller shall promptly deliver to Buyer written notice thereof, which notice
shall contain reasonable detail regarding such taking (the "Taking Notice").
Buyer shall have, as its sole and exclusive remedy, either of the following
options, to be exercised by delivering written notice thereof to Seller within
ten (10) business days after its receipt of the Taking Notice from Seller: (i)
the option to terminate this Agreement by delivery of written notice to Seller,
or (ii) the option to close the sale of the Property, with the disposition of
the eminent domain award to be governed by the Lease Agreement. If Buyer fails
to deliver any such notice to Seller within such ten (10) business day period,
Buyer shall be deemed to have exercised its option described in (ii), above.
13. Termination and Remedies.
(a) If Buyer fails to consummate the purchase of the Property pursuant to
this Agreement for any reason other than Seller's failure to perform its
obligations hereunder, or a termination right given to Buyer in this Agreement,
then Seller shall have the right as its sole and exclusive remedy to either (i)
terminate this Agreement by notifying Buyer thereof, in which case Buyer shall
pay Seller $150,000 as liquidated damages or (ii) enforce specific performance
of Buyer's obligations hereunder.
(b) If Seller fails to consummate the sale of the Property pursuant to this
Agreement for any reason other than Buyer's failure to perform its obligations
hereunder, Buyer shall have the right, as its sole and exclusive remedy, to
either (x) terminate this Agreement by notifying Seller thereof, whereupon
neither party hereto shall have any further rights or obligations hereunder, or
(y) enforce specific performance of Seller's obligations hereunder.
None of Buyer's or Seller's partners, members, officers, agents or
employees shall have any personal liability of any kind or nature or by reason
of any matter or thing whatsoever, under, in connection with, arising out of or
in any way related to this Agreement and the transactions contemplated herein,
and each of Buyer and Seller waive for themselves and anyone who may claim by,
through or under such party any and all rights to recover on account of any such
alleged personal liability.
14. Miscellaneous. Buyer and Seller shall cooperate in connection with the
public announcement of the terms of this Agreement; provided, however neither
party will make such an announcement without the prior consent of the other
party, which consent will not be unreasonably withheld. Both Seller and Buyer
shall cooperate with one another and in a timely manner execute all documents
reasonably required to give effect to the purchase and sale provided for herein.
If any provision of this Agreement is adjudicated by a court having jurisdiction
over a dispute arising herefrom to be invalid or otherwise unenforceable for any
reason, such invalidity or unenforceability shall not affect the other
provisions hereof. This Agreement shall be governed and construed in accordance
with the laws of the State of Texas except in any action to specifically enforce
performance of this Agreement, in which event the law of North Carolina shall
govern. This Agreement is the entire agreement between Seller and Buyer
concerning the sale of the Property and no modification hereof or subsequent
agreement relative to the subject matter hereof shall be binding on either party
unless reduced to writing and signed by the party to be bound. The provisions of
Sections 3, 4, 7, 8, 9, 10, 11, 14 and 17 shall survive Closing (provided,
however, that the foregoing shall not affect any period of survival specified in
any such sections). Exhibits A-F attached hereto are incorporated herein by this
reference for all purposes. Time is of the essence in the performance of each
and every provision of this Agreement. In the event that the last day for taking
any action or serving notice under this Agreement falls on a Saturday, Sunday or
legal holiday, the time period shall be extended until the following business
day. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute
one and the same instrument. A facsimile or photocopy signature on this
Agreement or any notice delivered hereunder shall have the same legal effect as
an original signature.
6<
15. Date of Agreement. All references in this Agreement to "the date
hereof" or similar references shall be deemed to refer to the first date set
forth above.
16. Transaction Characterization. It is the intent of the parties that the
conveyance of the Property to Buyer be an absolute conveyance in effect as well
as form, and the instruments to be delivered at Closing are not intended to
serve or operate as a mortgage, equitable mortgage, deed of trust, security
agreement or financing or trust arrangement of any kind. After the execution and
delivery of the Deed, Seller will have no legal or equitable interest or any
other claim or interest in the Property other than as set forth in the Lease
Agreement. Furthermore, the parties intend for the Lease Agreement to be a true
lease and not a transaction creating a financing lease, capital lease, equitable
mortgage, mortgage, deed of trust, security interest or other financing
arrangement, and the economic realities of the Lease Agreement are those of a
true lease. Notwithstanding the existence of the Lease Agreement, neither party
shall contest the validity, enforceability or characterization of the sale and
purchase of the Property by Buyer pursuant to this Agreement as an absolute
conveyance, and both parties shall support the intent expressed herein that the
purchase of the Property by Buyer provides for an absolute conveyance and does
not create a joint venture, partnership, equitable mortgage, trust, financing
device or arrangement, security interest or the like, if and to the extent that
any challenge occurs.
7
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the
date first set forth above.
BUYER:
SKYLINE-FRI 12, ▇▇▇▇▇▇▇▇, ▇.▇.
a Texas limited partnership
By: ▇▇▇▇▇▇▇▇ ▇▇, LLC
By: SKYLINE PACIFIC PROPERTIES, LLC,
a Colorado limited liability company
By:
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Name:
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Title:
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SELLER:
AVADO BRANDS, INC
a Georgia corporation
By:
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Name:
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Title:
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