ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (this “Agreement”) is entered into as of July 1, 2006,
by and among Theater Xtreme Entertainment Group, Inc., a Florida corporation
(the “Buyer”); Theaters 4U, LLC, a Pennsylvania limited liability company (the
“Seller”); and Xxxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxxxx (collectively, the
“Principals). The Buyer, the Seller and the Principals are collectively referred
to in this Agreement as the “Parties.”
WHEREAS,
TX Expansion Group, Inc., a Delaware corporation, and the Seller were parties
to
a certain Franchise Agreement dated as of August 21, 2004 (the “Franchise
Agreement”), pursuant to which TX Expansion Group, Inc. granted to Seller the
right to operate a Theater Xtreme® home theater and furnishings store (the
“Business”); and
WHEREAS,
on February 11, 2005, TX Expansion Group, Inc. assigned all of its rights and
obligations under the Franchise Agreement to the Buyer, all in accordance with
Article XXII(B) of the Franchise Agreement; and
WHEREAS,
the Seller desires to terminate the Franchise Agreement, and, in connection
therewith, the Seller desires to sell, and the Buyer desires to purchase, all
assets of the Seller that are used by the Seller as part of the Business, all
as
described in this Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual promises herein
made,
and in consideration of the representations, warranties, and covenants herein
contained, the Parties, intending to be legally bound, agree as
follows:
SECTION
1. Termination
of Franchise Agreement.
1.1 Termination.
For
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Buyer and the Seller agree that
the
Franchise Agreement
shall be terminated (the “Termination”) effective as
of the
Closing Date (as defined in Section 5.1 below).
1.2 Survival
of Portions of Franchise Agreement.
Following the Termination, the Franchise Agreement shall no longer have any
force or effect; provided, however, that those terms, conditions and provisions
of the Franchise Agreement that, by their terms, survive any termination of
the
agreement, shall survive the Termination, including, without limitation, the
following provisions of the Franchise Agreement: Article V (Franchise Grant),
Article X (Other Fees), Article XVI (Specific Obligations of the Franchisee
Relating to Confidentiality of Proprietary Information), Article XVIII (Specific
Obligation of Franchisee Relating to Indemnification), Article XIX
(Miscellaneous Covenants of Franchisee, Article XXIV (Franchisee’s Obligations
Upon Termination or Expiration) and Article XXV (Enforcement).
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1.3 Survival
of Guaranty.
Each of
the Principals entered into a Guaranty dated August 21, 2004 (the “Guaranty”),
pursuant to which the Principals have guaranteed the payment and performance
of
the Seller’s obligations to the Buyer, as the assignee of TX Expansion Group,
Inc.’s rights under the Franchise Agreement. Following the Closing Date,
the
Guaranty shall remain in full force and effect in accordance with its
terms.
SECTION
2. Assets
to be Purchased.
2.1 Description
of Purchased Assets.
Upon
the terms and subject to the conditions of this Agreement, at the Closing (as
defined in Section 5), Seller shall sell, assign, transfer, convey and
deliver to Buyer, and Buyer shall acquire, accept and purchase from Seller,
all
of Seller’s right, title and interest in and to all assets, properties and
rights (except for Excluded Assets, as defined in Section 2.2) whether tangible
or intangible, whether real, personal or mixed, and wherever located, used
or
usable in the operation of the Business (collectively the “Purchased Assets”),
including:
(a) The
Seller’s leasehold interest in that certain real property lease between the
Seller, as lessee, and Andretti Global Development LLC, as lessor, (the “Lease”)
with respect to the Seller’s lease of the real property located at 0000
Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 (the “Seller’s Premises”) and all other
interests of the Seller in other land, structures, buildings and improvements,
and all rights and appurtenances belonging or appertaining thereto, used in
the
Business and listed on Schedule 2.1(a);
(b) All
equipment, fixtures, furniture, furnishings, leasehold improvements, goods
and
other tangible personal property, whether located on the Seller’s Premises or
not, as more fully described on Schedule 2.1(b);
(c) All
customer deposits and all prepaid items, including all deposits made with
respect to the Seller’s Premises, and unbilled costs and fees as set forth on
Schedule
2.1(c)
(the
“Deposits”);
(d) All
accounts, accounts receivable, notes and notes receivable, including any
security therefor, and all other receivables listed on Schedule 2.1(d)
(the
“Receivables);
(e) All
good,
usable and merchantable inventories, finished goods, raw materials, work in
process, supplies, packaging materials, parts and similar items listed on
Schedule
2.1(e);
(f) To
the
extent assignable, all rights under each written or oral contract, agreement,
lease, plan, instrument, registration, license, certificate of occupancy, other
permit or approval of any nature, or other document, commitment, arrangement,
undertaking, practice or authorization listed on Schedule 2.1(f)
(the
“Contracts”);
(g) All
computer
programs (other than off-the-shelf computer programs) and software, including
all documentation and related
object
and source codes, owned, licensed or otherwise used by the Seller in connection
with the operation of the Business listed
on
Schedule 2.1(g);
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(h) All
causes of action, demands, rights against third parties and choses in action
arising out of occurrences before or after the Closing relating to the Purchased
Assets, including without limitation all rights under express or implied
warranties relating to the Purchased Assets and other intangible rights and
assets, including the goodwill associated with the Seller, the Purchased Assets
and the Business;
(i) All
information, files, records, data, plans, contracts and recorded knowledge
related to the foregoing;
(j) All
rights of Seller to its customer base with respect to the Business (the
“Customer Base”) and all outstanding purchase orders, agreements of sale and
related documentation as of the Closing Date with respect to the Business (the
“Customer Contracts”) and all rights of Seller in and to the Customer Contracts,
and, to the extent available, copies or originals of all material documents
relating to the Customer Base and the Customer Contracts, including names and
addresses, invoices and purchase orders for the last three years, purchasing
history, credit history and payment terms; and
(k) Any
other
asset or right of the Seller of every kind and description, real and personal,
tangible and intangible, related to the Business not referred to in clauses
(a)
through (j) hereof, other than the Excluded Assets.
2.2 Excluded
Assets.
Notwithstanding anything contained in Section 2.1 to the contrary, Seller
is not selling, and Buyer is not purchasing, any of the following assets,
properties or rights, all of which shall be retained by Seller
(the “Excluded Assets”): (a) cash or cash equivalents in transit, in hand or in
bank accounts, (b) any books and records of Seller that pertain to its corporate
existence or capitalization and
(c)
those assets listed on Schedule 2.2.
SECTION
3. Liabilities.
3.1 Assumed
Liabilities.
At the
Closing, the Seller shall assign, and the Buyer shall assume, only those
obligations of Seller arising or to be paid or performed after the Closing
Date
under the Lease, the Contracts and the Customer Contracts included within the
Purchased Assets (the “Assumed Contracts”)
as
listed on Schedule
2.1(f)
and
specified liabilities with regard to the Business as listed on Schedule
3.1
(collectively, the “Assumed Liabilities”).
3.2 Excluded
Liabilities.
Buyer
shall not assume, nor shall Buyer be obligated to pay, perform or discharge,
any
debt, liability, obligation or commitment of Seller
or
relating to the Purchased Assets or the Business (the “Excluded Liabilities”),
unless set forth in Section 3.1 as an Assumed Liability. Seller shall
remain unconditionally liable for all obligations, liabilities and commitments,
fixed or contingent, of Seller, other than the Assumed Liabilities. Without
limiting the generality of the immediately foregoing sentence, Buyer shall
not
be deemed by anything contained in this Agreement or otherwise to have assumed
any of the following (each of which is an Excluded Liability):
(a) any
secured or unsecured debt of Seller, (b) any current liabilities or accrued
expenses of Seller including trade accounts payable and accrued accounts
payable, as of the Closing Date, or (c) any liabilities of Seller for taxes,
whether incurred in the ordinary course of business or otherwise, with respect
to any period or partial period, ending on or prior to the Closing
Date.
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3.3 Prorations.
All
assessments, maintenance fees, utilities and other items relating to the
Purchased Assets and other accrued but unpaid expenses (as of the Closing Date)
that are customarily prorated shall be prorated to the extent possible at the
Closing with the Seller responsible for such expenses accruing prior to the
Closing Date and the Buyer responsible for such expenses accruing from and
after
the Closing Date. In the event that the amount of any prorated items is not
known at the Closing Date, the pro-ration shall be made as soon as possible
after the Closing Date, and in no event later than sixty (60) days after the
Closing Date, based upon actual bills (or, if not available, based upon good
faith estimates) for such prorated expenses. Either party shall pay to the
other
party any monies owed as a result of this post-Closing reconciliation within
ten
(10) days after the parties have reached a final agreement as to the prorated
items. Charges and payments of Seller due and payable with respect to a period
in which the Closing occurs under Assumed Contracts (including leases) to which
Seller is a party or by which any of the Purchased Assets are bound based on
performance over a period of time that are included, or the claims, rights
and
benefits of Seller under which are included, in the Purchased Assets shall
be
prorated between Seller and Buyer at the Closing (based on the number of days
in
the period occurring before, and on or after, the Closing Date).
SECTION
4. Purchase
Price.
In
consideration for the transfer of the Purchased Assets by the Seller to the
Buyer, at the Closing the Buyer shall pay to the Seller the aggregate purchase
price of $193,307 (the “Purchase Price”), of which (a) $10,000 shall be paid
upon the Closing Date in cash or other immediately available funds, (b)
approximately $40,000 shall be paid in-kind promptly following the Closing
Date
upon the issuance in the name of the Seller of a certain number of shares of
the
Buyer’s common stock, par value $.001 per share (the “Common Stock”), which
exact number of shares of Common Stock to be issued hereunder shall be based
on
a per-share value of the Common Stock equal to $1.00 per share (the “Shares”),
(c) assumption of the Assumed Liabilities, including the obligations under
the
Assumed Contracts listed on Schedule 2.1(f) in the amount of $2,598.00, and
(d)
the balance shall be paid pursuant to a promissory note issued by the Buyer
in
favor of the Seller dated as of the Closing Date in the principal amount of
$140,709.00,
in the
form set forth on Exhibit
A
attached
hereto (the “Note”).
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SECTION
5. Closing.
5.1 Closing
and Closing Date.
The
Closing of the transactions contemplated under this Agreement shall occur upon
the execution and delivery of this Agreement by each Party, and the Closing
Date, as used herein, shall be date first set forth above.
5.2 Deliveries
at Closing.
At the
Closing:
(a) The
Seller shall execute and deliver or cause to be delivered to the Buyer the
following: (i) a xxxx of sale in the form attached hereto as Exhibit B
transferring title to the Purchased Assets to the Buyer, (ii) an assignment
and
assumption agreement in the form attached as Exhibit
C
transferring the Assumed Liabilities, including without limitation the Lease,
all Contracts and all Customer Contracts, to the Buyer, (iii) all consents
and
approvals required under this Agreement to transfer the Purchased Assets to
the
Buyer and (iv) such other documents and instruments as may be reasonably
requested by the Buyer to effect or evidence the transactions contemplated
by
this Agreement.
(b) The
Buyer
shall deliver or cause to be delivered to the Seller the amount of cash set
forth in Section 4.1(a), the Shares and the Note.
SECTION
6. Representations
and Warranties of Seller and the Principals.
The
Seller and each Principal, jointly and severally, unconditionally represents
and
warrants to the Buyer that the following statements are true, correct and
complete as of the Closing Date:
6.1 Organization
and Good Standing.
The
Seller is a limited liability company duly organized, validly existing and
in
good standing under the laws of the Commonwealth of Pennsylvania, with the
requisite corporate power and authority to own, hold, lease and/or operate
its
properties, rights and assets and to operate and carry on its business as it
is
currently conducted.
6.2 Corporate
Authority; No Default.
The
Seller has the requisite corporate power and authority to execute and deliver
this Agreement and the instruments of transfer related to the Purchased Assets
and to consummate the transactions contemplated hereby and thereby and has
taken
all steps and will do all things appropriate and necessary to consummate the
transactions contemplated herein. This Agreement and all documents to be
delivered hereunder by the Seller have been duly authorized by all necessary
corporate action of the Seller and constitutes the valid and binding obligations
of the Seller enforceable in accordance with their respective terms. Neither
the
execution, delivery or performance of this Agreement or any documents to be
delivered hereunder, nor the consummation of the transactions contemplated
hereby, will violate, conflict with, result in the breach of, or accelerate
the
performance required by any of the terms, conditions or provisions of the
Certificate of Organization or Operating Agreement of the Seller or any
agreement to which the Seller is a party or any order, ruling, decree, judgment,
arbitration award or stipulation to which the Seller is subject, or constitute
a
default thereunder, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the Purchased Assets.
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6.3 Title.
The
Seller has good and marketable title to the Purchased Assets, and at the Closing
the Seller will transfer and convey the Purchased Assets to the Buyer free
and
clear of all liens, encumbrances, pledges, title retention, rights of third
parties, security agreements and other restrictions.
6.4 Lease,
Contracts and Other Agreements.
With
respect to the Lease, each Contract and each Customer Contract, (i) such
agreement is in full force and effect and is valid, and the Seller has no
knowledge that such agreement is not a valid and binding agreement of the other
parties thereto, (ii) there exists no material default under such agreement
on the part of the Seller, (iii) neither the Seller nor any Principal has
any knowledge that any event has occurred which, with the giving of notice
or
the lapse of time or both, would constitute any material default under any
agreement, (iv) there are no outstanding material disputes under any such
agreement, (v) the Seller has provided complete copies of the agreement to
the
Buyer, and (vi) except as set forth in Schedule
6.4(a),
the
agreement is assignable (subject to receipt of certain third party consents)
to
the Buyer, and upon Closing the agreement will be validly assigned to Buyer
and
enforceable by Buyer in accordance with its material terms, except to the extent
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights generally and
is
subject to general principles of equity. The Seller’s Premises are in good
operating condition and repair for buildings, structures, fixtures, and
improvements of their age and usage, ordinary wear and tear excepted. To the
best of Seller’s knowledge and the knowledge of each Principal, the Seller’s
Premises are operated and used in conformance, in all material respects, with
all setback requirements, easements, covenants, restrictions, and all material
applicable building, fire, zoning, health and safety codes and other similar
laws and regulations.
6.5 Receivables
and Deposits.
All
Receivables and Deposits of Seller have arisen in the ordinary course of the
Business and, to the extent not already collected, have not been and, to the
knowledge of Seller, are not subject to, any set-off or
counter-claim.
6.6 No
Outstanding Payments.
As of
the Closing Date, the Seller has made all payments that are due and payable
to:
(a) the Buyer in full satisfaction of the Seller’s obligations under the
Franchise Agreement and all other agreements entered into with, or in favor
of,
the Buyer, including, without limitation, all royalties and other fees and
(b)
all suppliers, vendors and all other persons to whom the Seller owed trade
payables. As of the Closing Date, the Seller has no outstanding liability with
respect to any of its obligations in the foregoing sentence. As set forth in
the
Note, the Buyer shall be entitled to a right of set-off for any and all damages,
including reasonable attorneys’ fees, incurred by the Buyer as a result of any
breach by the Seller of any representation made in this Section
6.6.
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6.7 No
Consents.
Except
as set forth in Schedule
6.7,
no
third-party consent or approval is required to be obtained by the Buyer in
connection with its execution, delivery or performance of this Agreement or
the
other agreements contemplated hereby.
6.8 Condition
of Purchased Assets.
The
Purchased Assets are free from material defects (patent and latent), have been
maintained in accordance with normal industry practice and are in good operating
condition and repair (subject to normal wear and tear) and are available for
immediate use by the Buyer.
6.9 Litigation.
There
are no actions, suits, proceedings or claims now pending or threatened, in
arbitration or before any governmental authority, against the Seller in
connection with or relating to the Business or any of the Purchased
Assets.
6.10 Operation
of Business.
Other
than the Purchased Assets, there are no other assets or rights owned or used
by
the Seller that are required to operate the Business or the Purchased Assets
being transferred to the Buyer hereunder.
6.11 Investment
Representations.
(a) The
Seller is not and will not be an underwriter with respect to the
Shares;
(b) The
Seller is aware that the Buyer files periodic and other reports with the
Securities and Exchange Commission and that such reports are available to Seller
at xxx.xxx.xxx and the Seller has read such reports to the extent Seller
believed them relevant and helpful in reaching a decision about whether to
enter
into the Agreement;
(c) The
Seller has not been furnished with any offering literature or prospectus except
for the reports referred to in subsection (b) and has not relied on any
information about the Buyer other than as set forth in such
reports;
(d) The
Seller: (i) maintains Seller’s principal place of business at the address shown
in Section 10.2(b) of this Agreement, and (ii) has accurately set forth Seller’s
employer identification number in Section 10.2(b) of this
Agreement;
(e) The
Seller (i) has no need for liquidity in the proposed investment in the Shares,
(ii) has investments in and commitments to non-liquid investments which are,
and
after the purchase of the Shares will be, reasonable in relation to the Seller’s
current capital needs, and (iii) is able to bear the economic risk of losing
the
entire investment in the Shares;
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(f) The
Seller understands that the Shares have not been registered under the Securities
Act of 1933, as amended;
(g) The
Seller understands that an investment in the Shares involves certain risks
(including those set forth in the Buyer’s Annual Report on Form 10-KSB included
in the reports referred to in subsection (b)) and has taken full cognizance
of
and understands such risks relating to the purchase of Shares;
(h) The
Seller understands that no federal or state agency has approved or disapproved
of the Shares, passed upon or endorsed the merits of the proposed purchase
thereof, or made any finding or determination as to the fairness of the Shares
for investment;
(i) The
Seller has either consulted with the Seller’s own investment adviser, attorney
and/or accountant about the investment and proposed purchase of Shares and
its
suitability for the Seller, or has chosen not to do so despite the
recommendation of that course of action by the Buyer; and
(j) The
Seller has been given access to, and prior to the execution of this Agreement
the Seller was provided with an opportunity to ask questions of and receive
answers from, the Buyer concerning the terms and conditions of the purchase
of
the Shares, and to obtain any other information that the Seller and its
professional advisors requested with respect to the Buyer and the Seller’s
proposed investment in the Shares for purposes of evaluating the investment
and
verifying the accuracy of all information furnished to the Seller regarding
the
Buyer; all such questions, if asked, were answered satisfactorily and all
information or documents provided were found to be satisfactory.
SECTION
7. Representations
and Warranties of Buyer.
The
Buyer unconditionally represents and warrants to the Seller that the following
statements are true, correct and complete as of the Closing Date:
7.1 Organization
and Good Standing.
The
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida, with the requisite corporate power
and
authority to purchase the Purchased Assets.
7.2 Corporate
Authority.
The
Buyer has the requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized by all necessary corporate action and
constitutes the valid and binding obligations of the Buyer enforceable in
accordance with its terms.
SECTION
8. Covenants
and Agreements of the Parties.
8.1 Taxes
and Bulk Sales.
The
Buyer and the Seller shall share equally in the payment of all transfer and
other taxes, if any, arising from the sale of the Purchased Assets, excluding
any taxes on the income of either Party. The Buyer hereby waives compliance
by
the Seller with the provisions of any and all applicable bulk sales
laws.
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8.2 Brokers.
Each of
the Parties represents and warrants to the other that it has dealt with no
broker or finder in connection with the transactions contemplated by this
Agreement. Each Party hereby indemnifies and agrees to hold harmless the other
against and in respect of any brokerage or finder’s fee or other commissions
incurred by the indemnifying Party relating to this Agreement or the
transactions contemplated hereby.
8.3 Further
Assurances.
From
time to time after the Closing, at the Buyer’s request, the Seller shall execute
and deliver such other and further instruments of conveyance, assignment and
transfer, and take such other action, as the Buyer may reasonably request for
the more effective conveyance and transfer of the Purchased Assets.
8.4 General
Release.
(a) In
connection with the transactions contemplated under this Agreement and for
other
good and valuable consideration, receipt of which is hereby acknowledged,
intending expressly to be legally bound hereby, the Seller and each Principal
hereby irrevocably, unconditionally and generally releases and forever
discharges the Buyer and its past, present and future officers, directors,
shareholders, employees, representatives, agents and their respective
affiliates, successors and assigns, and each of them (collectively,
“Releasees”), jointly and severally, from any and all manner of actions or
causes of action, suits, debts, dues, accounts, bonds, covenants, contracts,
controversies, promises, agreements, judgments, costs, expenses, fees,
liabilities, claims and demands whatsoever, in law or in equity, whether civil
or criminal, or otherwise, of whatsoever kind or nature, whether foreseen or
unforeseen, matured or unmatured, known or unknown, accrued or not accrued,
direct or indirect, other than any action brought by the Seller or any Principal
to enforce its rights under this Agreement and/or the Note (collectively,
“Claims”), that the Seller or any Principal or any of their respective heirs,
agents, successors or assigns (collectively, the “Releasors”) ever had, now have
or hereafter may have against Releasees arising heretofore, now or in the future
out of any matter, occurrence or event existing or occurring prior to the
Closing Date, in combination with any of themselves or others, for or by reason
of any cause, matter or thing whatsoever from the beginning of the world to
the
Closing Date, and agrees not to take or file any action, suit or proceeding
to
assert any Claims (the “Release”).
(b) Each
of
the Releasors agrees that, in the event that any Releasor, or anyone claiming
through them, subsequently breaches the terms of the Release, each Releasor
shall be jointly and severally liable to the affected Releasees for
reimbursement for all attorneys' fees, costs and expenses incurred by such
Releasees in defending the action or otherwise enforcing the provisions of
the
Release, if it is ruled that the Release bars the Claims asserted. If any
Releasee institutes any action at law or in equity against any Releasor
to
secure or protect one or more of its rights under or to enforce the terms of
this Release, in addition to any judgment entered in its favor, such Releasee(s)
shall be entitled to recover such attorneys’ fees and related court costs and
expenses of litigation as may be allowed by a court of competent
jurisdiction.
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8.5 Guaranty.
Each
Principal hereby irrevocably, absolutely and unconditionally guarantees that
the
Seller and each other Principal will perform strictly in accordance with the
terms of this Agreement. The liability of each Principal hereunder shall be
joint and several and shall continue in full force and effect until all of
the
obligations have been fully performed by the Seller and each other Principal
under this Agreement.
SECTION
9. Indemnification.
9.1 The
Seller and each Principal shall indemnify, defend and hold the Buyer, its
officers, directors, affiliates, successors, assigns and employees harmless
from
and against any and all liabilities, causes of action, claims, suits,
proceedings, losses, damages, demands, fees, expenses, fines, penalties and
costs (including reasonable attorneys’ fees) of any kind or nature whatsoever
(collectively, “Losses”) which may be sustained or suffered by any or all of
such parties in any way relating to, arising out of, or in connection with
(a) the breach of any of the Seller’s and/or any Principal’s warranties,
representations or covenants set forth in this Agreement, (b) the use of
the Purchased Assets or the conduct of the Seller’s Business prior to and on the
Closing Date, or (c) any bulk sale liability.
9.2 The
Buyer
shall indemnify, defend and hold the Seller, its officers, directors,
affiliates, successors, assigns and employees and each Principal harmless from
and against any and all Losses which may be sustained or suffered by any or
all
of such parties in any way relating to, arising out of, or in connection with
(a) the breach of any of the Buyer’s warranties, representations or covenants
set forth in this Agreement or (b) the use of the Purchased Assets or the
conduct of the Buyer’s business after the Closing Date.
SECTION
10. Miscellaneous.
10.1 Costs
and Expenses.
Each
Party shall each pay its own costs and expenses in consummating the transactions
described herein.
10.2 Notices.
Any
notices and other communications required or permitted hereunder shall be in
writing and shall be effective upon receipt if sent by facsimile (with
confirmation received), by certified or registered mail (postage prepaid and
return receipt requested) or by a nationally recognized overnight courier
service (with request for immediate confirmation of receipt in a manner
customary for communications of such respective type). Notices shall be
addressed as follows:
(a) If
to the
Buyer:
000
Xxxxxxxxx Xxxxxxxxx
Xxxxx
X
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxxx, Chairman and Chief Executive Officer
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
10
(b) If
to the
Seller:
Theaters
4U, LLC
0
Xxxxx
0xx
Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
EIN:
________________________
or
to
such other respective addresses as any of the Parties shall designate to the
other Parties hereto by like notice, provided that notice of a change of address
shall be effective only upon receipt thereof.
10.3 Entire
Agreement.
This
Agreement sets forth the entire understanding and agreement between the Parties
with respect to the subject matter hereof and supersedes any prior understanding
between the Parties. There are no representations, understandings or promises
other than as expressly set forth in this Agreement.
10.4 Amendment.
This
Agreement may not be altered, changed, modified or amended except in writing
signed by the Parties.
10.5 Assignment.
Neither
Party may assign its rights or obligations under this Agreement without the
prior written consent of the other Parties.
10.6 Severability.
If any
provision of this Agreement should be invalid or unenforceable, such invalidity
or unenforceability will not, in any manner, affect the continued validity
and
enforceability of the remaining provisions of this Agreement. In the event
that
any provision of this Agreement is determined by a court to be invalid, such
provision may be amended by the court to the extent required to cure such
invalidity.
10.7 Headings.
The
captions contained in this Agreement are not a part of this Agreement. They
are
for the convenience of the Parties only and do not in any way modify any
provision of this Agreement.
10.8 Binding
Effect.
This
Agreement will bind and inure to the benefit of the Parties and their respective
permitted successors and assigns.
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10.9 Waiver.
The
waiver by any party of a breach or violation of any provision of this Agreement
will not operate or be construed as a waiver of any other or subsequent breach
or violation hereof.
10.10 Governing
Law.
This
Agreement is governed by, and will be construed, interpreted and enforced in
accordance with, the laws of the State of Delaware, without regard to its
principles of conflicts of laws.
10.11 Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together will constitute one instrument.
10.12 Facsimile
Signature.
This
Agreement and all documents executed and delivered in connection herewith may
be
executed and delivered by facsimile and such facsimile shall be effective for
all purposes.
10.13 No
Third Beneficiaries.
This
Agreement shall not be construed as giving any person, other than the Parties
and their affiliates and their successors and permitted assigns, any legal
or
equitable right remedy or claim under or in respect of this Agreement or any
of
the provisions herein contained, this Agreement and all provisions and
conditions hereof being intended to be, and being, for the sole and exclusive
benefit of such Parties, and successors and permitted assigns and for the
benefit of no other person or entity.
[Signatures
appear on the following page]
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IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date
first above written.
THEATER
XTREME ENTERTAINMENT
GROUP,
INC.
By:
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
President
and Chief Operating Officer
THEATERS
4U, LLC
By:
/s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
President
/s/
Xxxxx X. Xxxxxx
Xxxxx
X.
Xxxxxx
/s/
Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
/s/
Xxxxx Xxxxxx
Xxxxx
Xxxxxx
13