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Exhibit 99.1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is entered into this
20th day of October, 1995, ("FINAL EXECUTION DATE") by and between GMRI, Inc., a
Florida corporation (formerly known as General Xxxxx Restaurants, Inc., prior to
name change and hereinafter referred to as "Seller"), having its principal place
of business at 0000 Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxx 00000; and Cooker Restaurant
Corporation, an Ohio corporation ("Buyer"), having its principal office at 0000
Xxxxxxx Xxxxxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000
BACKGROUND
A. Seller is the owner of the parcels described in Exhibits A-1
through A-6 referred to individually and collectively as the "Premises" and
commonly known as:
CC#6039 0000 Xxxxxxxx Xxxx Xx.
Xxxxxx, Xxxxxxx 00000
CC#6023 000 Xxxx Xxxxx Xxxx.
Xxxxxxxx, Xxxxxxx 00000
CC#6044 00000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
CC#6022 0000 Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxx 00000
CC#6015 0000 Xxxxxxxx Xxxxxx Xx.
Xxxxxxxx, Xxxx 00000
CC#6014 0000 Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
B. Seller desires to sell the Premises and other hereinafter defined
"Property", to Buyer, and Buyer desires to acquire the Premises and said other
"Property", from Seller under the terms and conditions hereinafter set forth.
PROVISIONS
NOW, THEREFORE, in consideration of the foregoing BACKGROUND (which is
hereby incorporated), and the mutual covenants hereinafter contained, the
parties intending to be legally bound, agree as follows:
1. PROPERTY
Seller agrees to sell to Buyer and Buyer agrees to acquire from Seller,
the following "Property" (collectively the Premises "FF&E" and "Licenses"
respectively described and identified in subparagraphs a., b., and c. of this
Paragraph 1.) on the terms and conditions hereinafter set forth:
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a. PREMISES
The fee simple interests in all of the Premises described on Exhibits
A-1 through A-6, including all building and site improvements located thereon
(together with appurtenant rights and easements thereto).
b. FURNITURE, FIXTURES AND EQUIPMENT
The furniture, fixtures and equipment to the extent located at each of
the Premises ("FF&E"), which FF&E includes furniture, booths, non-food
inventory, smallwares, kitchen equipment, appliances, wallcoverings and
decorations, lighting and lighting fixtures, telephone systems, PC based
point-of-sale systems, office equipment, walk-in coolers, hoods and exhaust fans
and systems, sound systems where owned by Seller, panic and emergency lighting,
HVAC systems, wiring, pipes, flues, cables and related connections to utility
services, water systems (water tanks and heaters) including sprinkler systems,
pylon standards and sign monuments, and all other personal property, fixtures
and improvements located on the Premises except for trade dress items of China
Coast.
c. ALCOHOLIC BEVERAGE LICENSES
The on-premises alcoholic beverage licenses identified below
("Licenses"). Buyer will pursue applications with the applicable alcoholic
beverage commissions for transfer of the Licenses; Seller will cooperate with
Buyer in effectuating the transfer of Licenses to Buyer. The Licenses will not
be subject to suspension or revocation for any violations which may have
occurred prior to Seller's cessation of business at the relevant Premises. Buyer
will bear any applicable transfer costs. In the event any License cannot be
transferred to Buyer, Buyer will use reasonable, good faith efforts to obtain an
alternate, alcoholic beverage license permitting on-premises consumption, seven
(7) days a week, at the applicable Premises.
Location License
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CC#6022 D5/D6 #3238512-0015
CC#6014 D5/D6 #3106675-0560
CC#6015 D1/D2/D3/D6 #3106675-0555
CC#6044 Class C#04220
2. PURCHASE PRICE
The purchase price for the Property is Eleven Million Two Hundred Fifty
Thousand Dollars ($11,250,000.00) ("Purchase Price") allocated between each
Property as follows:
CC#6039 $2,000,000.00
CC#6023 $2,200,000.00
CC#6044 $2,000,000.00
CC#6022 $1,750,000.00
CC#6015 $1,800,000.00
CC#6014 $1,500,000.00
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The Purchase Price is to be paid as follows:
a. $600,000.00 in cash, certified check or wire transfer of funds on the
FINAL EXECUTION DATE as xxxxxxx money, to be deposited with and held in escrow
by the title company used pursuant to Paragraph 6 hereof (the "Escrow Agent") in
an interest bearing account for the benefit of the parties, in accordance with
Paragraph 10 of this Agreement.
b. The balance in cash, certified check made payable to Seller or wire
transfer of funds at "Closing" which will take place on the "CLOSING DATE"
(defined in Paragraph 7).
3. CORPORATE APPROVAL/BOARD APPROVAL
a. This Agreement is conditional upon the approval of this transaction by
the officers of Seller ("Corporate Approval") within five (5) days after the
FINAL EXECUTION DATE. In the event the approval is not obtained within that time
period, this Agreement will be null and void and of no further force and effect.
The date on which such approval is communicated to Buyer in writing is the
"EFFECTIVE DATE" of this Agreement.
b. This Agreement is conditional upon the approval of this transaction by
the appropriate Board of Directors of Buyer ("Board Approval") within five (5)
days after the FINAL EXECUTION DATE. In the event the approval is not obtained
within that time period, this Agreement will be null and void and of no further
force and effect.
c. Each party will provide the other with a certificate of good standing
from its respective State of incorporation and a certified resolution of its
Board of Directors reflecting approval for that corporation to enter into the
transaction contemplated by this Agreement.
4. SELLER'S REPRESENTATIONS AND WARRANTIES
Seller represents to Buyer as follows, which representations will be deemed
reaffirmed by Seller to Buyer as of the CLOSING DATE, and will survive the
Closing:
a. There are no parties in possession of any portion of the Premises or
the FF&E;
b. There are no pending or, to the best of Seller's knowledge and belief,
threatened condemnation or similar proceedings affecting the Premises, or any
part thereof;
c. With the exception of Seller's need to secure Corporate Approval of
this transaction as provided above, Seller has the present full authority and
power to execute this Agreement and to close the sale of the Premises;
d. Seller will provide good faith cooperation to Buyer in determining the
matters set forth in Paragraph 6 of this Agreement;
e. Based solely upon title insurance policies previously obtained by
Seller, Seller owns the Premises in fee simple and Seller's title to the
Premises is marketable; and
f. Seller owns title to the FF&E which is unencumbered as reflected in the
"Unconditional Xxxx of Sale" marked Exhibit "C" and attached hereto.
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5. BUYER'S REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT
Buyer represents and warrants to Seller as follows, which representations
and warranties will be deemed reaffirmed by Buyer to Seller as of the CLOSING
DATE and will survive the Closing:
a. With the exception of Buyer's need to secure Board Approval of this
transaction as provided above, Buyer has the present full authority and power to
execute this Agreement and to close the purchase of the Premises;
b. Buyer will in good faith diligently proceed to obtain all required
reports, licenses, permits and approvals to construct, remodel and operate the
improvements herein referenced;
c. Buyer warrants and represents that its use of the Premises will not
violate Paragraph 12;
d. Buyer acknowledges and agrees that the Property will be conveyed and
transferred to Buyer "as is, where is, and with all faults", if any, and, except
as expressly set forth in this Agreement (including exhibits annexed hereto and
identified herein), Seller does not warrant as to the merchantability, quantity,
quality, condition, suitability or fitness of the Property for any purpose
whatsoever and will be under no obligation whatsoever to undertake any repairs,
alterations or other work of any kind with respect to any portion of the
Property. Buyer also acknowledges and agrees that the provisions in this
Agreement for inspection and investigation of the Property are adequate to
enable Buyer to make Buyer's own determination with respect to the
merchantability, quantity, quality, condition and suitability or fitness of the
Premises for any purpose. At the closing, Seller will be deemed released by
Buyer of and from all liabilities, obligations and claims, known or unknown,
that Buyer may have against Seller including those that arise in the future
based in whole or in part upon the presence of toxic or hazardous substances or
other environmental contamination on or within the Premises as such terms or
conditions may now or hereafter be defined or regulated by any federal, state or
local law, ordinance, order, rule, regulation, code or other governmental
restriction or requirement including, but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
Sec. 9601 et seq. ("CERCLA") and the Resource Conservation Act, as amended, 42
U.S.C. Sec. 690 et seq. ("RCRA"), or otherwise.
6. SUITABILITY DUE DILIGENCE
a. Buyer, using good faith, diligent efforts, will have thirty (30) days
from the FINAL EXECUTION DATE to determine whether the Premises and Licenses are
suitable for its use as follows:
i. Buyer may, at its sole risk, cost and expense conduct or cause to
be conducted soil engineering tests and/or environmental assessments of the
Premises and in this connection, it or its designated agents may enter upon the
Premises for purposes of inspection, soil analysis, core drilling or other tests
that may be deemed necessary by Buyer or its engineer. Buyer will restore or
repair any damage caused, related to or arising out of Buyer's conducting of
these tests. Buyer will indemnify, hold harmless and, at Seller's option, defend
Seller against any and all claims, actions, causes of action, expenses, costs,
penalties and liabilities arising out of its work or that of its employees,
agents or contractors on the Premises, which indemnity will also include the
payment of attorneys' fees and other costs;
ii. Buyer will obtain (or be reasonably satisfied that it can obtain)
all necessary governmental or quasi-governmental permits, licenses and approvals
for the construction or renovation of all intended improvements;
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iii. Buyer will determine whether the improvements and the use as a
Cooker Bar and Grille Restaurants contemplated by Buyer for each of the Premises
are prohibited by any governmental or quasi-governmental authority;
iv. Buyer will determine whether the utility services required for
Buyer's development will be available in capacities and at costs reasonably
acceptable to Buyer.
If Buyer using good faith, reasonable business judgment determines that it
is not possible to develop any of the Premises or acquire Licenses in accordance
with Buyer's intended use for reasons gathered in its investigation, Buyer may,
by giving written notice to Seller ("TERMINATION NOTICE"), terminate this
Agreement with respect to that Property. Such TERMINATION NOTICE will describe
the nature of the conditions preventing the development of the Premises or
acquisition of the Licenses in reasonable specificity. Said TERMINATION NOTICE
must be received prior to 5:01 p.m. (Florida time) on or before the next
business day following the expiration of the thirty (30) day period provided for
in this Paragraph or Buyer will be conclusively presumed to have irrevocably
waived the right to terminate under this Paragraph. Upon receipt of such proper
and timely TERMINATION NOTICE by Seller, the Deposit will be returned to Buyer
and neither party will have any obligation to the other except in accordance
with Paragraphs 6(a) and 14 herein.
b. Buyer, within the time periods specified below, may review surveys and
title as follows:
i. At least twenty (20) days prior to Closing, Seller, at its sole
cost and expense, will obtain and provide to Buyer and the Escrow Agent an
as-built survey of each of the Premises ("Survey") prepared by a licensed
surveyor in accordance with the specifications outlined in Exhibit B, which
identifies the Premises by legal description (metes and bounds or plat
reference, as the case may be)and reflects whether there are any improvements,
easements, encroachments or overlappings affecting the Premises. The surveyor
will certify to Buyer, Seller and the title company, that the Survey was made on
the ground under his/her supervision. If the Survey reflects defects which would
prevent the use of any Premises as a Cooker Bar and Grille Restaurant, Buyer may
terminate this Agreement as to that Property by written notice to Seller,
specifying the defect, within fifteen (15) days after Buyer's receipt of the
Survey. Silence will be deemed to mean that Buyer has irrevocably waived the
right to terminate under this subparagraph b(i).
ii. At least fifteen (15) days prior to Closing, Seller, at its sole
cost and expense, will obtain and provide to Buyer a title insurance commitment
for each of the Premises issued by Lawyers Title Insurance Corporation, a
Virginia corporation, which commitments shall include a complete UCC, judgment
lien and tax lien search for Seller. Within ten (10) days after receipt of the
commitments, Buyer will notify Seller in writing of any defects in the title
which would render the Premises unmarketable, uninsurable or prevent the use of
a Cooker Bar and Grille Restaurant; standard exceptions will not be considered
objectionable. Silence will be deemed to mean that Buyer has irrevocably waived
the right to terminate under this subparagraph b(ii), subject to Buyer's right
to object to any new matters appearing of record after the date(s) of the title
commitments. If Seller, after using good faith efforts, is unable to cure the
title objections in a reasonable period of time (which will, as necessary,
postpone the Closing and CLOSING DATE), Buyer, at its election, may either (i)
accept title as it is, or (ii) terminate this Agreement with respect to the
particular Property. Upon termination, Buyer will receive its Deposit and both
parties will be released from all liability and obligation under this Agreement,
except for the specific indemnification provisions in Paragraphs 6(a) and 14.
Buyer's failure to notify Seller within the 15 day period will be deemed
approval by Buyer of the condition of title.
Seller is required to remove all monetary liens and encumbrances at, or
prior to, Closing.
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c. In the event that Buyer determines that any Premises or License (or
more than one) is not suitable in accordance with Paragraph 6., of this
Agreement, upon written notice to Seller that Property found unsuitable by Buyer
shall be deleted from this Agreement (with appropriate adjustment in the
Purchase Price pursuant to Paragraph 2.) to the same extent and as fully as
though that Property(ies) was not subject to this Agreement.
7. CLOSING
a. The "Closing" hereunder will be through an escrow with the Escrow
Agent, in accordance with this Agreement, and will take place within thirty (30)
days after Buyer either provides Seller with written notice that the conditions
set forth in Paragraph 6 above have been satisfied or waived or is presumed to
have satisfied or waived such conditions pursuant to Paragraph 6 above (the
"CLOSING DATE"). On or before the CLOSING DATE, Seller will deposit a limited
warranty deed for each of the Premises with the Escrow Agent using the legal
description by which Seller obtained title and a Xxxx of Sale for the FF&E at
each Premises, in form as shown on Exhibit "C". The FF&E will be transferred
free and clear of all liens and encumbrances. The Premises will be transferred
free and clear of all liens and encumbrances except for those permitted or
accepted pursuant to Paragraph 6(f). Transfer forms for the Licenses submitted
by Buyer to Seller shall be executed and delivered by Seller to Buyer at
Closing.
b. All costs and expenses of Closing the purchase and sale of the Premises
will be borne and paid at Closing unless otherwise stated herein, as follows:
By Seller: Seller's Attorneys' Fees
Title insurance premiums in the aggregate
amount of the Purchase Price
Surveys
State's Transfer Taxes, if any
Escrow Fees
By Buyer: Buyer's Attorneys' Fees
Recording Fees for Deed
Recording Fees for Covenants, if any
Title Insurance Premiums for any extended
coverage requested by Buyer
c. Seller and Buyer each represents to the other that it has not hired or
engaged any broker, finder or other agent to whom a commission is owed as a
consequence of this Agreement. Each party will indemnify and hold and save the
other party harmless from any and all claims for brokerage arising out of this
Agreement as a result of a breach of that party's representation.
d. Real Estate Taxes. Seller will pay all special assessments which exist
as of the CLOSING DATE (or if not payable, the amount thereof shall be credited
against the Purchase Price), and any due or delinquent real estate taxes (plus
applicable penalties, if any). Real estate taxes on the Premises which accrue in
the current year will be prorated to the CLOSING DATE, so that Seller bears that
portion of the accrued real estate taxes applicable for the period up to and
including the CLOSING DATE and Buyer bears that portion of the accrued real
estate taxes applicable for all periods subsequent to the CLOSING DATE. Buyer
will be responsible for all special assessments imposed after the CLOSING DATE.
At Closing, Seller will pay to Buyer Seller's share of real estate taxes and
special assessments for the year in which Closing occurs and Buyer will pay
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such real estate taxes and installments of special assessments when due and
payable for such tax year. If on the CLOSING DATE the tax rate for such year has
not been finally determined, proration will be made upon the basis of the tax
rate for the preceding tax year applied to the last officially certified rate of
valuation. The parties agree that such proration will be readjusted between the
parties, if necessary, based upon the final tax xxxx for the year in which
Closing occurs.
e. In the event Buyer terminates this Agreement with respect to any
individual Premises, the Agreement will remain in effect as to the remaining
Premises, and the Purchase Price will be adjusted in accordance with the
allocation schedule set forth in Paragraph 2.
8. RISK OF LOSS AND CONDEMNATION
Seller will bear the risk of loss due to fire or other casualty until
Closing. In the event of any condemnation of any of the Premises or any part
thereof prior to Closing which, in the reasonable opinion of Buyer, would
prevent Buyer's intended use of the Premises, Buyer may elect to terminate this
Agreement with respect to that individual Property upon written notice to
Seller, and upon Seller's receipt of such notice Buyer will have no further
duties or obligations hereunder with respect to that Property (except for the
indemnification provisions of Paragraph 6(a) and 14).
9. REMEDIES
a. In the event Buyer fails to comply with any or all of the obligations,
covenants, warranties or agreements under this Agreement and such default is not
cured within ten (10) days after notice thereof (other than Buyer's failure to
tender the Purchase Price on the date of Closing, a default for which no notice
is required), then Seller may terminate this Agreement, whereupon the Deposit
will be paid over to Seller by Escrow Agent and the parties will be released
from any further liability hereunder except for the indemnification provisions
of Paragraph 6(a) and 14 herein.
b. In the event Seller fails to comply with any or all of the obligations,
covenants, warranties or agreements under this Agreement, and such default is
not cured within ten (10) days after notice thereof, then Buyer may terminate
this Agreement, in which event the Deposit will be refunded to Buyer as its sole
and exclusive remedy and both parties will be released from any further
liability hereunder except for the indemnification provisions of Paragraph 6(a)
and 14 herein.
c. The failure of either party to act upon a default of the other in any
of the terms, conditions or obligations under this Agreement will not be deemed
a waiver of any subsequent breach or default under the terms, conditions or
obligations hereof by such defaulting party.
10. DEPOSIT
As required in Paragraph 2.a., of this Agreement, on the FINAL EXECUTION
DATE, Buyer shall deposit with Lawyers Title Insurance Corporation, a Virginia
corporation (heretofore and hereafter called "Escrow Agent") a good faith
deposit (heretofore and hereinafter referred to as the "Deposit") in the amount
of Six Hundred Thousand and No/100 Dollars ($600,000.00). By its acceptance of
the Deposit as indicated by its joinder in this Agreement, Escrow Agent hereby
agrees to hold the Deposit in accordance with the following instructions, to
wit:
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a. If the sale and purchase contemplated in this Agreement is closed in
accordance with the terms hereof, the Deposit shall be transmitted to Seller to
be applied by Seller as a credit against the total Purchase Price due from Buyer
to Seller at closing pursuant to Paragraph 2., of this Agreement;
b. If Buyer fails or refuses to close the purchase and sale in accordance
with this Agreement, or otherwise fails to comply with any of the obligations,
covenants, warranties or agreements and such failure is not cured within ten
(10) days after notice as provided in Paragraph 9, the Deposit shall be
immediately transmitted by Escrow Agent to Seller to be Seller's absolutely in
accordance with Paragraph 9.a., above;
c. In the event of either (i) Seller's inability to deliver good and
marketable title to the Property (or any of them) in accordance with this
Agreement (unless expressly waived in writing by Buyer), or (ii) issuance and
receipt of the Termination Notice as described in Paragraph 6., Escrow Agent
shall immediately return that portion of the Deposit relating to that
Property(ies) to Buyer upon Buyer's written request therefor and the Agreement
shall thereupon be deemed null, void and of no further force and effect (except
for indemnification provision of Paragraph 6.a., and 14). For the purposes of
allocating the Deposit, the sum of $100,000.00 shall be allocated toward each of
the six (6) Properties.
d. If Seller fails or refuses to close the purchase and sale in accordance
with this Agreement, or otherwise fails to comply with any of the obligations,
covenants, warranties or agreements and such failure is not cured within ten
(10)days after notice as provided in Paragraph 9, the Deposit shall be
immediately transmitted by Escrow Agent to Buyer in accordance with Paragraph
9.b., above.
Upon receipt of the Deposit, Escrow Agent shall use its best and most
diligent efforts to cause the funds received by it to be invested in a federally
insured financial institution in Atlanta, Georgia to earn a rate of interest
currently being paid in Atlanta, Georgia on Money Market Demand Accounts or in
such other form of investment specifically authorized and approved in writing by
both Buyer and Seller delivered to Escrow Agent. Upon the occurrence of any of
the foregoing events entitling either party to the Deposit and written request
to the Escrow Agent, the Deposit shall be submitted to the party entitled
thereto together with any and all interest earned thereon (less reasonable
escrow charges and/or fees imposed by the Escrow Agent, if any) which shall
belong solely to the recipient except in the instance that the Deposit is
transmitted to Seller in accordance with subparagraph a., above, in which case
the interest on the Deposit shall also be credited against the Purchase Price.
11. NOTICES
All notices, demands and communications as provided herein will be served by
registered or certified United States mail, return receipt requested, available
express mail carrier (such as Federal Express, Xxxxx, Airborne, etc.), or
facsimile capable of confirming receipt, to the following address or to such
other address(es) as Seller and Buyer may advise each other in writing pursuant
to this Paragraph 13.
Seller: GMRI, Inc.
Attn: Xxxxx X. Xxxxxx, Law Department
0000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
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Buyer: Cooker Restaurant Corporation
0000 Xxxxxxx Xxxx.
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: G. A. Xxxxxxxxxx, Chairman & CEO
Facsimile No.: (000) 000-0000
cc: Xxxxx X. Xxxxxx, Esquire
Xxxxx X. Xxxxxx Co., L.P.A.
000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Escrow Agent: Lawyers Title Insurance Corporation
Atlanta National Division
950 E. Paces Ferry Road, N. E.
Suite 2850
Atlanta, Georgia 30326-1145
Attn: Xxx Xxxxxx
Facsimile No.: (000) 000-0000
12. PROHIBITED TRANSFER
Buyer will not sell, convey, lien, or otherwise transfer any of Buyer's
interest in this Agreement without obtaining, in each and every instance, the
prior written consent of Seller. Seller will have a right of approval of any
such transferee and a right to receive 100% of the profit from any such
transfer.
13. USE RESTRICTION
Buyer represents and warrants to Seller that the Property will not be used
for the operation of any restaurant using a name the same as, or similar to,
"China Coast", which name is a registered trademark owned by Seller. This
covenant may be recorded in the deeds.
14. BUYER'S INDEMNIFICATION
In the event that this Agreement is terminated by either Buyer or Seller
prior to Closing, and notwithstanding the fact that such termination will
release Buyer from its obligation to buy the Property, nothing herein will be
deemed to release Buyer from any liability arising out of or connected with
Buyer's activities (or those of its employees, agents, or contractors) on the
Premises including, but not limited to, its actions on the Premises while
exercising its rights pursuant to Paragraph 6 hereof. This provision will
survive Closing of the transaction herein contemplated and the delivery of the
deeds.
15. MISCELLANEOUS PROVISIONS
a. All of the representations, warranties, covenants and agreements of the
parties will survive the Closing and will not be merged therein.
b. This Agreement will be construed under and in accordance with the laws
of the State where the Premises is located and according to its fair meaning and
not in favor of or against any party.
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c. This Agreement will be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives, successors and
assigns.
d. If any term, provision or condition contained in this
Agreement will, to any extent, be held to be invalid, illegal or unenforceable
in any respect, the remainder of this Agreement (or the application of such
term, provision or condition to persons or circumstances other than those in
respect of which it is invalid, illegal or unenforceable) will not be affected
thereby, and each and every other term, provision and condition of this
Agreement will be deemed valid, legal and enforceable.
e. This Agreement constitutes the sole and only agreement of the
parties hereto and supersedes any prior understandings or written or oral
agreements between the parties respecting the within subject matter. This
Agreement cannot be amended or modified except by written agreement signed by
Buyer and Seller.
f. All parties hereto pledge their good faith efforts to act in a
timely and reasonable manner to consummate the transaction herein contemplated.
g. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be
held to include the plural, and vice versa, unless the context requires
otherwise.
h. The paragraph headings herein are for reference purposes only
and are not intended in any way to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any part hereof. The failure by
either party to enforce against the other any term or provision of this
Agreement will not be deemed a waiver of such party's right to enforce against
the other party the same or any other such term or provision.
i. This Agreement may be executed in multiple originals or
counterparts, each of which will be an original and, when all of the parties to
this Agreement have signed at least one (1) copy, such copies together will
constitute a fully executed and binding Agreement.
j. No representation, warranty, or recommendation is made by
Seller or its agents, employees or attorneys regarding the legal sufficiency,
legal effect, or tax consequences of this Agreement or the transaction, and each
signatory is advised to submit this Agreement to his/her attorney before signing
it.
k. If either party files any action or brings any proceeding
against the other arising out of this Agreement, or is made a party to any
action or proceeding brought by a third party arising out of this Agreement,
then as between Buyer and Seller, the prevailing party will be entitled to
recover, as an element of its costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court. The "PREVAILING PARTY" will be the
party who is entitled to recover its costs of suit, whether or not the suit
proceeds to final judgment. A party not entitled to recover its costs will not
recover attorneys' fees.
l. If either party hereto will be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, fires, acts of God, natural disasters,
inability to procure material, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war, or other reason of a like nature not
the fault of the party delayed in performing work or doing acts required under
this agreement, the period for the performance of any such work or act will be
extended for a period equivalent to the period of such delay.
m. This Agreement will not be recorded in part or in whole by
either party hereto.
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n. Use of the term "business day" or "business days" is hereby
defined as a day or days which are neither a Saturday, Sunday or a holiday
observed by the United States Postal Service.
16. COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of such counterparts together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GMRI, Inc.
a Florida corporation
("Seller")
BY: /s/ Xxxxxxx X. Xxxxxxxxx
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/s/ WITNESS TITLE: Senior Vice President
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/s/ WITNESS DATE: October 20, 1995
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Cooker Restaurant Corporation
an Ohio corporation
("Buyer")
BY: /s/ Xxxxxxx X. Xxxxxxxxx
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/s/ G. Xxxxxx Xxxxxxxxxx TITLE: President and C.O.O.
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CEO & Chairman DATE: October 18, 1995
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Exhibits:
A-1 Legal Description -#CC6039 Duluth/Gwinnett, Georgia
A-2 Legal Description -#CC6023 Kennesaw/Town Center, Georgia
A-3 Legal Description -#CC6044 Sterling Heights, Michigan
A-4 Legal Description -#CC6022 Beavercreek, Ohio
A-5 Legal Description -#CC6015 Xxxxxxxx, Ohio
A-6 Legal Description -#CC6014 Vandalia, Ohio
B Survey Specifications
C Xxxx of Sale Form
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JOINDER OF ESCROW AGENT
LAWYERS TITLE INSURANCE CORPORATION, a Virginia corporation, referred
to in the preceding Agreement as "Escrow Agent", hereby accepts appointment as
"Escrow Agent" pursuant to Paragraph 10., of the foregoing agreement and agrees
to comply with the terms and conditions imposed upon it in Paragraph 10., of the
foregoing Agreement. Provided, however, in no event shall Escrow Agent be liable
or obligated to either the Seller or Buyer for any of the following should they
occur:
(a) A Failure of any financial institution in which the Escrow
Agent has deposited funds received pursuant to said paragraph 10.;
(b) The collectability of any check or draft submitted by the
Buyer to Escrow Agent and comprising a part of the Deposit; or
(c) Any loss incurred by either Seller or Buyer for Escrow Agent's
failure to perform the duties and responsibilities imposed upon it
pursuant to said Paragraph 10., if such error or mistake was made by
Escrow Agent in good faith upon and in compliance with advice of Escrow
Agent's counsel.
Escrow Agent hereby acknowledges receipt from Buyer of the Deposit in
the amount of Six Hundred Thousand and No/100 Dollars ($600,000.00) which
comprises the entire Deposit required pursuant to in Paragraph 10., of this
Agreement.
In the event demand for payment of the Deposit is made to Escrow Agent
pursuant to Paragraph 10., of the foregoing Agreement, Escrow Agent will
immediately advise the other party to the foregoing Agreement in writing
delivered in accordance with Paragraph 11., of the foregoing Agreement. If
Escrow Agent has not received conflicting instructions from said notified party
within five (5) business days of the receipt of said notice by the notified
party, Escrow Agent may in good faith pay the Deposit (less Escrow Agent's
reasonable charges and fees, if any) in accordance with said original demand. In
the event Escrow Agent receives conflicting instructions from the notified
party, Escrow Agent shall retain the Deposit until it has received instructions
signed by both parties or pursuant to an order or decree of a court competent
jurisdiction.
So acknowledged and agreed in Atlanta, Georgia, this _____day of
___________________, 1995.
LAWYERS TITLE INSURANCE CORPORATION,
a Virginia corporation
("Escrow Agent")
By:_________________________________
Print Name:_________________________
Print Title:________________________
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XXXXXXX "X-0" - "X-0"
Legal Description
[Legal Descriptions Omitted]
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EXHIBIT "B"
Survey Specifications
Survey shall be made by a Registered Land Surveyor or Engineer who
shall promptly prepare and furnish a drawing of the survey.
The boundary survey shall close by latitude and departure with an error
not to exceed 1:5000. Calculations, closure sheets or other evidence to be
provided.
The surveyor shall set permanent markers at all property corners which
are not marked.
Elevation datum shall be U.S.G.S. Mean Sea Level Datum (M.S.L.) or
municipal datum. Indicate equation between municipal and M.S.L. if available.
Assumed datum shall only be used when specified datum is not available. Bench
xxxx reference shall be made on or adjacent to the site.
The drawing of the survey shall be made on a sheet size of 30 x 42 to a
scale of 1" = 20', unless specified otherwise. The surveyor shall furnish to
_______________ 1 reverse sepia and 6 blue line copies.
The drawing shall show all data pertaining to the site and shall
include, but shall not necessarily be limited to the following:
1. The scale of the drawing.
2. North arrow.
3. All dimensions, angels, or courses and bearings of boundaries.
4. Boundary of described property shall be clearly labeled and indicated by a
bold line.
5. Corner monuments.
6. Name of sub-division, xxx xxxxxx, xxx xxxxx, xxxxx xxxxxx, xxxx, xxxxxx
and state.
7. Assessor's Parcel number - APN (where applicable).
8. Streets and alleys, public or private, including dedicated, but unopened
streets or alleys.
9. Existing physical boundaries, such as fences, walls, etc., indicating any
deviation from true boundary lines.
10. All buildings and other improvements with descriptions, dimensions and
location.
11. All encroachments, from or on said property, easements or right-of-ways
public or private, recorded, unrecorded, or established by usage.
12. Any deficiencies between deed description and boundary lines.
13. Side walk width and distance to curb and property line and condition of
walk.
14. Curb and curb-cut locations and type of curb.
15. Name of streets and width and type of pavement. Indicate any safety
islands.
16. If inside lot, give distance and direction to nearest street
intersections.
17. Bench xxxx reference.
18. Show spot elevations on adjacent streets at centerline, edge of pavement
(or gutter line) at 50' intervals. Show elevations of all walks, building
floors on adjacent properties IF PERMISSIBLE, ditch lines, railroad rails,
and adjacent property at least 10' from property lines. Show surface
elevation of any body of water within 100' of property.
19. Contours at one-foot intervals of elevation change, including enough
adjacent property to show unusual conditions with existing elevations.
20. General direction of surface drainage and disposal of storm drainage.
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21. Provide drainage area information indicating existing offsite drainage
areas which drain onto or through subject site.
22. Location of any test borings evident.
23. Utility poles. (Company servicing). Name.
24. Underground cables and depth. (Company servicing). Name.
25. Storm and sanitary sewers - locations, size, direction of flow, inverts -
fall per ft. and location of stubs.
26. Manholes and catch basins, top and invert elevations.
27. Water main - location, size and depth. (Company servicing). Name.
28. Fire hydrants.
29. Gas main - location, size and depth. (Company servicing). Name.
30. Street lights. (Company servicing). Name.
31. Trees - location, size and type, including decorative landscaping on site.
32. Furnish the following information, if available, to the best of your
knowledge.
33. Names of owners of adjacent properties within 20 feet from any property
line, and on opposite side of fronting street.
34. Label adjacent property use (or vacant), and zoning classification.
35. Show paved areas adjacent to property.
36. Show flood plain elevation and limits, if applicable. If not applicable,
so state.
37. The survey drawing shall be certified as follows:
"I hereby certify and represent to______________________________________________
GMRI, INC.
________________________________________________________________________________
Cooker Restaurant Corporation
and_____________________________________________________________________________
(TITLE COMPANY)
that this is a true and correct Plat of a survey made under my supervision in
accordance with "Specifications for Land Survey", a copy of which has been
delivered to me, of:
(Insert legal description of property surveyed)
that said Plat correctly shows the locations of all buildings, structures and
improvements on said described property; that there are no encroachments from or
on said described property, or right-of-ways or easements on said described
property, except as shown on said Plat of survey; and that I am a registered
land surveyor or engineer in the State of _____________________________________.
Signed:_______________________________
Registration No.:_____________________
______________________________________
(SEAL)
Date:_________________________________
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EXHIBIT "C"
UNCONDITIONAL XXXX OF SALE
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by GMRI, Inc., a Florida corporation having its principal office at
0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, (hereinafter referred to as
"Seller"), Seller does hereby sell and unconditionally transfer, convey and
assign to and unto COOKER RESTAURANT CORPORATION, an Ohio corporation having its
principal office at 0000 Xxxxxxx Xxxxxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "Buyer"), its successors and assigns, all of
Seller's right, title, and interest to and unto the following:
1. All furniture, fixtures, equipment, appliances and other
personal property owned by Seller on the date hereof and located on, in, or
forming a part of the real estate and/or improvements existing on the real
estate described in EXHIBIT A, which is attached hereto and by this reference
made a part hereof (herein the "Premises").
2. This sale, transfer and assignment by and from Seller to and
unto Buyer made pursuant to Paragraph 1, next above, specifically includes, but
is not limited to: furniture, booths, non-food inventory, smallwares, kitchen
equipment, appliances, wallcoverings and decorations, lighting and lighting
fixtures, telephone systems, PC based point-of-sale systems, office equipment,
walk-in coolers, hoods and exhaust fans and systems, sound systems where owned
by Seller, panic and emergency lighting, HVAC systems, wiring, pipes, flues,
cables and related connections to utility services, water systems (water tanks
and heaters) including sprinkler systems, pylon standards and sign monuments,
and all other personal property, fixtures and improvements to the extent located
in, on or forming a part of the Premises on the date hereof.
The furniture, fixtures, equipment, appliances and other personal
property identified in numbered Paragraphs 1., and 2., next above shall
hereinafter collectively be referred to as the "Property".
Seller hereby represents and warrants to Buyer that:
A. Seller is the sole and exclusive owner of all right , title
and interest in and to the Property;
B. Seller has full right, power and authority to sell, convey,
transfer and assign the Property to Buyer; and
C. There are no security interests, pledges, liens or
encumbrances of any kind or nature upon or affecting the Property; and
D. Seller shall warrant and defend the right, title and interest
of Buyer and Buyer's successors and assigns in and to the Property against the
claims of all persons claiming by, through and under Seller.
Except for the warranties expressly set forth in Paragraphs A. through
D., inclusive, next above, the Property is sold by Seller and the Buyer accepts
the Property "AS IS", "WHERE IS', and "WITH ALL FAULTS" without any additional
warranties from Seller whatsoever including, but not limited to any implied
warranty of fitness for a particular purpose or of merchantability.
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TO HAVE AND TO HOLD the Property with all appurtenances thereto, unto
Buyer, its successors and assigns forever.
IN WITNESS WHEREOF, the Seller, GMRI, INC., has caused this
Unconditional Xxxx of Sale to be executed and delivered by its duly authorized
undersigned officer this ____ day of _______________, 1995, in Orlando, Florida.
Signed, Acknowledged and GMRI, INC., a Florida corporation
Delivered in the Presence of: ("Seller")
_______________________________ By:____________________________________
Print Name:______________________ Xxxxxxx X. Xxxxxxxxx
Senior Vice President
________________________________
Print Name:_______________________
STATE OF FLORIDA,
COUNTY OF ORANGE, SS:
On _______________, 1995, before me, the undersigned, a Notary Public
in and for said State, personally appeared Xxxxxxx X. Xxxxxxxxx, personally
known to me to be the Senior Vice President of GMRI, INC., a Florida corporation
, personally known to me to be the person who executed the within instrument for
and on behalf of said corporation, and he acknowledged tome that GMRI, INC.,
executed the within instrument pursuant to its bylaws and duly adopted and
effective resolution of its Board of Directors.
WITNESS my and Official Seal.
__________________________________
Notary Public
Print Name:_______________________
(SEAL) My Commission Expires:____________
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