EXHIBIT 10.41
AGREEMENT TO RESTRUCTURE AND UNWIND
BY AND BETWEEN
ASHEVILLE PACKING COMPANY, INC., XXXXXXXX X. XXXXXX, XXXXX X. XXXXXX AND
XXXXX XXXXXX XXXXXX
MOMENTUM FOOD SERVICES, INC.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
AND
GABY HOLDINGS II LLC
THIS AGREEMENT TO RESTRUCTURE AND UNWIND (the "Agreement") is made and effective
as of the 31st day of December, 2002, by and between Syndicated Food Service
International, Inc., a corporation established and existing under the laws of
the State of Florida, Momentum Food Service, Inc., a corporation established and
existing under the laws of the State of Florida and a wholly-owned subsidiary of
Syndicated Food Services International, Inc. (Momentum Food Services, Inc.
("Momentum") and Syndicated Food Services International, Inc. may hereinafter be
collectively referred to as "Syndicated"); Xxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxxx Xxxxxx Xxxxxx and Asheville Packing Company, Inc., a North Carolina
corporation (hereinafter collectively referred to as the "Cannons"); and Gaby
Holdings II LLC (hereinafter referred to as "Gaby"). Together, Syndicated, the
Cannons, and Gaby shall be hereinafter referred to as the "Parties".
W I T N E S S E T H :
WHEREAS, the Parties previously entered into various agreements, to
wit:
(i) The Contract to Sell Real Property entered into as of October
1, 2001 (the "Contract to Sell Real Property", attached hereto
as Exhibit "A") between Asheville Packing Company, Inc.,
Xxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxx Xxxxxx Xxxxxx
and Momentum Food Services, Inc.;
(ii) The Stock Purchase Agreement entered into as of November 28,
2001 (the "Stock Purchase Agreement", attached hereto as
Exhibit "B") between Asheville Packing Company, Inc., Xxxxxxxx
X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxx Xxxxxx Xxxxxx, and Gaby
Holdings II LLC,; and
(iii) The Guaranty Agreement entered into as of November 28, 2001
(the "Guaranty Agreement", attached hereto as Exhibit "C")
between Asheville Packing Company, Inc., Xxxxxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx and Xxxxx Xxxxxx Xxxxxx and Momentum Food
Services, Inc.
Together said agreements, i.e., The Contract to Sell Real Property, The
Stock Purchase Agreement and The Guarantee Agreement, may hereinafter be
referred to as the "Transaction Documents".
WHEREAS, the Parties have agreed, pursuant to a Letter of Intent, a
copy of which is attached hereto as Exhibit "D", to effect a restructuring and
unwinding of the Transaction Documents, and thereby restructure certain
relationships entered into through the execution of the Transaction Documents
and unwind certain matters previously agreed to in said Transaction Documents.
1
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter contained, and other good and valuable bargained for consideration,
the receipt and legal sufficiency of which is hereby acknowledged by both
parties hereto, the parties do hereby agree, intending hereby to be legally
bound, as follows:
1. UNWINDING AND CANCELLATION OF THE SALE OF REAL PROPERTY
1.1. WHEREAS in the Contract to Sell Real Property the Cannons sold
and conveyed certain real property consisting of parcels of
land and the buildings and improvements situated thereon
located in the City of Asheville, Buncombe County, North
Carolina and described as in Deed Books 1198 page 247; 2610
page 635; 1843 page 491; 2136 page 548; 1246 page 442 and 1311
page 409, Buncombe County Registry (the "Property"). See
Exhibit "A", Paragraph 1; and legal description attached
thereto.
1.2. WHEREAS the Parties agree to unwind and restructure the
transaction identified above.
THEREFORE, in order to effect the intent of this Agreement, inter alia
to restructure and unwind the prior agreements set forth in the Transaction
Documents, Syndicated shall unwind the conveyance of the Property by causing the
reconveyance by warranty deed of the Property, as described in deeds recorded in
the Office of the Register of Deeds for Buncombe County, North Carolina in Book
2669 at Pages 725, 728 and 731 to the Cannons, or their designee(s), in
satisfaction of the deed of trust recorded in said Register's Office in Book
2669 at Page 734 and said deed of trust will be cancelled of record.
2. RETENTION OF A PORTION OF THE PURCHASE PRICE.
2.1. WHEREAS in the Contract to Sell Real Property between the
Cannons and Momentum, Momentum agreed to transfer Eight
Hundred Thousand (800,000) shares of common stock of
Syndicated Food Service International, Inc. to the Cannons
pursuant to the Stock Purchase Agreement in return for the
conveyance of the Property to Momentum; See Exhibit "A",
Paragraph 2.b.
2.2. WHEREAS pursuant to the Stock Purchase Agreement between the
Cannons and Gaby, the Cannons agreed to transfer the Eight
Hundred Thousand (800,000) shares of common stock of
Syndicated Food Service International, Inc. to Gaby in return
for a payment of $1,600,000;
2.3. WHEREAS pursuant to the Stock Purchase Agreement, the Cannons
did in fact transfer said 800,000 shares of common stock of
Syndicated Food Service International, Inc. to Gaby in return
for Gaby's promise to pay the Cannons the amount of $1,600,000
(the "Purchase Price") to be payable as follows: (i) $200,000
payable on the date of the Stock Purchase Agreement and (ii)
the balance, in seven equal, consecutive and bi-monthly
installments in the amount of $200,000 each, commencing on
January 28, 2002;
2.4. WHEREAS pursuant to the Stock Purchase Agreement, Gaby did pay
the Cannons $200,000 of the Purchase Price at the closing of
the Stock Purchase Agreement.
2.5. WHEREAS the Parties agree to unwind and restructure the
transaction identified above.
THEREFORE, in order to effect the intent of this Agreement, inter alia
to restructure and unwind the prior agreements set forth in the Transaction
Documents, the Cannons shall retain the two hundred thousand dollars ($200,000)
received pursuant to the Stock Purchase Agreement and consider said monies as
payment in full for the purchase by Momentum of the operating assets as
identified in Exhibit A of the Contract to Sell Real Property, plus additional
items as scheduled in Exhibit 1 of the Xxxx of Sale, which is attached hereto
and
2
incorporated herein by reference as Exhibit "E" to this Agreement and Momentum
shall retain ownership of the assets identified in Exhibit A of the Contract to
Sell Real Property, plus the additional item as scheduled in Exhibit 1 of the
Xxxx of Sale; and the Cannons shall waive their right(s) to any payment of the
outstanding amount of the Purchase Price as set forth in Exhibit "B",
Paragraph 1 of the Contract to Sell Real Property and any other consideration
owed to the Cannons in the Transaction Documents.
3 EXCHANGE OF SHARES
3.1. WHEREAS in the Contract to Sell Real Property between the
Cannons and Momentum, Momentum agreed to transfer Eight
Hundred Thousand (800,000) shares of common stock of
Syndicated Food Service International, Inc. to the Cannons
pursuant to a Stock Purchase Agreement. See Exhibit "A",
Paragraph 2.b.
3.2. WHEREAS pursuant to paragraph 1.2 of the Stock Purchase
Agreement between the Cannons and Gaby, the Cannons
transferred the Eight Hundred Thousand (800,000) shares of
Syndicated stock to Gaby in return for the promised payment of
the $ 1,600,000 Purchase Price.
3.3. WHEREAS pursuant to the Stock Purchase Agreement, the Cannons
did in fact transfer said shares of Syndicated to Gaby in
return for the promise to pay $ 1,600,000 (the "Purchase
Price");
3.4. WHEREAS pursuant to the Stock Purchase Agreement, Gaby did in
fact pay the Cannons $200,000 of the Purchase Price at the
closing of the Stock Purchase Agreement;
3.5. WHEREAS the Parties agree to unwind and restructure the
transaction identified above.
THEREFORE Syndicated Food Service International, Inc. shall enter into
an Exchange Agreement (the "Exchange Agreement" attached to this Agreement as
Exhibit "F") with Gaby wherein Syndicated Food Service International, Inc. shall
issued to Gaby, or Gaby's designee, a promissory note in the amount of two
hundred thousand dollars ($200,000) (the "Promissory Note", attached as Exhibit
"G") in exchange for the transfer and delivery by Gaby to Syndicated of the
Eight Hundred Thousand (800,000) shares of Syndicated Food Service
International, Inc.'s $0.001 par value common stock issued to Gaby pursuant to
the Transaction Documents.
4. THE GUARANTY AGREEMENT
4.1. WHEREAS, as an inducement to the Cannons to enter into the
Stock Purchase Agreement, Momentum guaranteed and mortgaged to
the Cannons certain Real Estate, referenced in Exhibit "B" to
the Guaranty Agreement;
4.2. WHEREAS the Parties have unwound and restructured The Contract
to Sell Real Property as set forth in Paragraph 1 of this
Agreement;
THEREFORE Momentum is released of its obligations as Guarantor
in the Guaranty Agreement.
5. CANCELLATION AND UNWINDING OF THE TRANSACTION DOCUMENTS
5.1. WHEREAS the Parties have restructured certain relationships
entered into through the execution of the Transaction
Documents and unwound certain matters previously agreed to in
said Transaction Documents as detailed in paragraphs 1 through
4 of this Agreement;
THEREFORE the Parties agree that the Transaction Documents, i.e., The
Contract to Sell Real Property, The Stock Purchase Agreement and The Guarantee
Agreement shall be unwound in their entirety and the
3
obligations and duties set forth therein shall be deemed cancelled, null and
void; and this Agreement shall supercede all of the Parties respective
obligations and duties originally set forth in the Transaction Documents and
further that this Agreement shall constitute the only enforceable agreement
between the Parties with respect to the subject matter contained within the
Transaction Documents.
6. RELEASES
6.1. That the Cannons shall release Syndicated Food Service
International, Inc., Momentum and Gaby from any and all
claims, if any, arising from or related to the original
Contract to Sell Real Property, Stock Purchase Agreement and
Guarantee Agreement, including but not limited to any
consideration which may have been deemed owing to the Cannons
pursuant to the Transaction Documents. A copy of said release
by the Cannons to Syndicated and Momentum is attached hereto
and incorporated herein by reference as Exhibit "H" to this
Agreement and a copy of said release by the Cannons to Gaby is
attached hereto and incorporated herein by reference as
Exhibit "I" to this Agreement;
6.2. That Syndicated Food Service International, Inc. and Momentum
shall release Gaby and the Cannons from any and all claims, if
any, arising from or related to the original Contract to Sell
Real Property, Stock Purchase Agreement and Guarantee
Agreement, including but not limited to any consideration
which may have been deemed owing to Gaby pursuant to the
Transaction Documents. A copy of said release by Syndicated
Food Service International, Inc. and Momentum to Gaby is
attached hereto and incorporated herein by reference as
Exhibit "J" to this Agreement and a copy of said release by
Syndicated Food Service International, Inc. and Momentum to
the Cannons is attached hereto and incorporated herein by
reference as Exhibit "K" to this Agreement;
6.3. That Gaby shall release Syndicated Food Service International,
Inc., Momentum and the Cannons from any and all claims, if
any, arising from or related to the original Contract to Sell
Real Property, Stock Purchase Agreement and Guarantee
Agreement, including but not limited to any consideration
which may have been deemed owed to Syndicated Food Service
International, Inc., Momentum or the Cannons pursuant to the
Transaction Documents. A copy of said release by Gaby to
Syndicated and Momentum is attached hereto and incorporated
herein by reference as Exhibit "L" to this Agreement and a
copy of said release by Gaby to the Cannons is attached hereto
and incorporated herein by reference as Exhibit "M" to this
Agreement;
7. LEASE
7.1. That Momentum shall enter into a triple net lease (the
"Property Lease") for the use of the Property, including the
building located at 000 Xxxxx Xxxxxx and the first floor of
the building located at 000 Xxxxx Xxxxxx, which Lease shall be
deemed effective as of October 1, 2001 and continue on a month
to month basis with termination provisions to include a ninety
(90) day termination notice period for either of the Cannons
or Momentum. The amount of the monthly payments owing by
Momentum to the Cannons pursuant to the Lease shall be
$5,500.00; which shall be due and payable on the first day of
each month to Xxxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx. If said
rent is not received by said Lessor(s) by the 10th day of the
month due, a late penalty of $55.00 shall be assessed against
Momentum for each late payment. At the signing of the Lease,
the unpaid rent from October 1, 2001 shall be paid to the
Lessor(s) as designated in said Lease without penalty; a copy
of said Property Lease is attached hereto and incorporated
herein by reference as Exhibit "N" to this Agreement;
4
8. REIMBURSEMENT OF LEGAL EXPENSES
8.1. That upon presentation of invoices, Syndicated Food Service
International, Inc. shall reimburse the Cannons for the
Cannons' legal expenses associated with the Transaction
Documents, which amount is estimated to be fifteen thousand
dollars ($15,000), a copy of said invoice(s) are attached
hereto and incorporated herein by reference as Exhibit "O" to
this Agreement;
9. NOTICES
9.l. That all notices required or desired to be given with respect
to this Agreement in order to be effective shall be in writing
and shall be deemed to be given to and received by the party
intended to receive such notice when hand delivered or three
(3) days after such notice shall have been deposited, postage
prepaid, to the United States mail, certified, return receipt
requested, properly addressed to the addresses specified in
subsection 9.2 below. In the event of a change of address by
either party, such party shall give written notice thereof in
accordance with the foregoing.
9.2. The list of addresses referenced by paragraph 9.1 are as
follows:
THE CANNONS:
Xxxxxx Enterprises LLC
000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxx Xxxxxxxx 00000
Phone: ______________________
Fax: ______________________
SYNDICATED FOOD SERVICE INTERNATIONAL, INC. AND MOMENTUM:
Hill, Xxxxxxxxx & Xxxxxx, LLP
Overlook III, Suite 750
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxx Xxxxxxxxxxxx
GABY:
00000 Xxxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
10. MISCELLANEOUS
10.1. That this Agreement constitutes and contains the sole,
exclusive and entire agreement of the Parties pertaining to
the subject matter hereof, and no prior or contemporaneous
oral or written representation, arrangement, covenant
(including but not limited to any implied covenant at law
5
or otherwise), course of dealing or agreement between the
Parties not expressly contained herein shall be binding
thereon, nor shall any waiver of the terms hereof by any party
be binding thereon, unless such modification, amendment or
waiver is in writing, is dated after the date hereof,
expressly states it is intended as an amendment, modification
or waiver of the terms hereof and is signed by the respective
party. The content of each and every exhibit which is
referenced in this Agreement as being attached hereto is
incorporated into this Agreement as fully as if set forth in
the body of this Agreement;
10.2. That if any clause or provision of this Agreement is or
becomes illegal, invalid, or unenforceable because of present
or future laws or any rule or regulation of any governmental
body or entity, effective during its term, the intention of
the parties hereto is that the remaining parts of this
Agreement shall not be affected thereby, unless such
invalidity is essential to the rights of the Parties hereto in
which event this Agreement shall terminate;
10.3. That the captions used in this Agreement are for convenience
only and do not in any way limit or amplify the terms and
provisions hereof;
10.4. That the provisions of this Agreement shall inure to the
benefit of and be binding upon the Parties, and their
respective successors, heirs, legal representatives, and
assigns;
10.5. That this Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of North
Carolina;
10.6. That the Parties hereto agree that they will each take steps
and execute such documents as may be reasonable required by
the other party or parties to carry out the intents and
purposes of this Agreement;
10.7. That in the event any provision or portion of this Agreement
is held by any court of competent jurisdiction to be invalid
or unenforceable, such holding will not affect the remainder
hereof, and the remaining provisions shall continue in full
force and effect to the same extent as would have been the
case had such invalid or unenforceable provision or portion
had never been a part hereof;
10.8. That the Parties represent, covenant and warrant that all
action necessary by their respective Board of Directors,
shareholders, partners or member/managers will have been
obtained and that they will have been specifically authorized
to enter into this Agreement and that no additional action
will be necessary by them in order to make this Agreement
legally binding upon them in all respects. The Parties
covenant to provide written evidence of compliance with this
Section prior to closing; and
10.9. That the execution of this document shall constitute
acceptance of performance of all obligations hereunder unless,
by its clear and express terms a provision provides for
performance after execution.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be signed and sealed on the day and year first above written.
(SIGNATURES ON NEXT PAGE)
6
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxxx, Xx. 12/31/02
---------------------------------- --------
Xxxxxx X. Xxxxx, Xx. Date
Chief Executive Officer
MOMENTUM FOOD SERVICES, INC.
/s/ Xxxxxx X. Xxxxx, Xx. 12/31/02
---------------------------------- --------
Xxxxxx X. Xxxxx, Xx. Date
SECRETARY
ASHEVILLE PACKING COMPANY, INC.,
/s/ Xxxxx X. Xxxxxx 12/31/02
---------------------------------- --------
Xxxxx X. Xxxxxx Date
President
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx 12/31/02
---------------------------------- --------
Xxxxx X. Xxxxxx Date
Individually
XXXXXXXX X. XXXXXX
/s/ Xxxxxxxx X. Xxxxxx 12/31/02
---------------------------------- --------
Xxxxxxxx X. Xxxxxx Date
Individually
(SIGNATURES CONTINUED ON NEXT PAGE)
7
XXXXX XXXXXX XXXXXX
/s/ Xxxxxxxx Xxxxxx P.O.A. 12/31/02
---------------------------------- --------
Xxxxx Xxxxxx Xxxxxx Date
Individually
GABY HOLDINGS II LLC
---------------------------------- --------
Xxxx Xxxxxx Date
Principal
8
