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EXHIBIT 10.47
AGREEMENT FOR PURCHASE AND SALE
OF MEMBERSHIP INTEREST
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This Agreement is made as of the 15th day of December, 1997,
by and between Boca Roadhouse, Inc., a Florida corporation ("Buyer"), Roadhouse
Grill, Inc., a Florida corporation ("Seller"), and Boca Roadhouse, L.C., a
Florida limited liability company (the "Company").
WITNESSETH:
WHEREAS, Buyer and Seller are the sole members of the Company which
owns and operates a Roadhouse Grill franchised restaurant located at 00000 Xx.
Xxxxxxx Xxxx., Xxxx Xxxxx, Xxxxxxx 00000 (the "Restaurant"); and
WHEREAS, Buyer desires to purchase and Seller desires to sell Seller's
fifty percent (50%) membership interest in the Company (the "Membership
Interest") upon the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the sum of ten dollars ($10.00) and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereby agree as follows:
1. RECITALS CONFIRMED. The foregoing recitals are true and correct and
are incorporated herein by reference.
2. PURCHASE AND SALE OF MEMBERSHIP INTEREST. Buyer hereby agrees to buy
from Seller and Seller hereby agrees to sell to Buyer the Membership Interest
free and clear of all claims, liens, obligations and encumbrances except as
explicitly provided for herein.
3. PURCHASE PRICE. The purchase price shall be One Hundred Dollars
($100.00) payable in full at closing.
4. REPRESENTATIONS AND WARRANTIES BY SELLER. The parties acknowledge
that notwithstanding Buyer's ownership of fifty percent (50%) of the membership
interests of the Company, Seller has: managed all of the operations of the
Restaurant pursuant to the Management Agreement (as hereinafter defined);
managed and controlled all of the operational activities of the Company, as
Operating Manager thereof pursuant to the Operating Agreement (as hereinafter
defined); and controlled all of the operations of the overall Roadhouse Grill
franchise system in accordance with the Franchise Agreement (as hereinafter
defined). Subject to and in light of the foregoing, Seller hereby represents and
warrants that:
DETAIL OF PAYABLE TO ROADHOUSE GRILL, INC.
Vouchers paid by RHG, Inc. $ 66,569.89 See attached schedule for breakdown
Instore Transfers $ 188.98
Payroll $ 9,450.69
Services paid by RHG, Inc. $ 75,429.97 See attached schedule for breakdown
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$151,639.50
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(a) Seller is duly organized, validly existing and in good
standing under the laws of the State of Florida, and has all the necessary
powers to own its properties and carry on its business as now owned and operated
by it.
(b) The Company is duly organized, validly existing and in
good standing under the laws of the State of Florida and has all the necessary
powers to own its properties and carry on its business as now owned and operated
by it.
(c) The Company's articles of organization were filed December
16, 1996, and have not been modified or amended. A copy of the Company's
Operating Agreement dated December 12, 1996, by and among Buyer and Seller (the
"Operating Agreement") has been provided to Buyer. Said Operating Agreement has
not been revoked, modified or amended. Seller's Membership Interest is validly
issued and outstanding, fully paid and non-assessable, and was issued in
compliance with all applicable federal and state securities laws.
(d) Except for the Membership Interest and the membership
interests in the Company owned by Buyer, no membership interests in the Company
have ever been or as of closing will be issued. There are no options, warrants,
conversion privileges or other rights presently outstanding to purchase or
transfer with respect to the Membership Interest or any other membership
interests in the Company except for rights created by this Agreement.
(e) Seller has full power and authority to enter into, execute
and deliver this Agreement and all other documents and instruments to be
executed and delivered by Seller pursuant to or in furtherance of this Agreement
and to consummate the transactions contemplated hereunder. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been or shall be duly authorized by all
necessary corporate action on the part of Seller and by all necessary action on
the part of the Company. Seller and the Company each have the right, power,
legal capacity, and authority to enter into and perform their respective
obligations under this Agreement and this Agreement constitutes, and each
document or instrument to be executed by Seller and/or the Company pursuant to
the terms hereof upon its execution and delivery will have been duly executed
and delivered and will constitute, the valid and legally binding obligations of
the Seller and the Company enforceable in accordance with their terms.
(f) Except as listed on Exhibit 4(f) attached hereto and
incorporated herein by reference, there are no liens, mortgages, restrictions,
pledges, encumbrances or charges on the Membership Interest or on any of the
assets of the Company.
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(g) Exhibit 4(g) lists all contracts and agreements, verbal
and written, to which the Company is a party or to which its assets are subject,
which will not be terminated or otherwise satisfied contemporaneously with
closing. Except as set forth on Exhibit 4(g), neither the execution nor the
delivery of this Agreement, nor the consummation of the transactions
contemplated by it, will result in a breach of, or give rise to termination of,
or accelerate the performance required by any terms of, any agreement to which
the Company is a party, or constitute a default thereunder or result in the
creation of any lien, charge, or encumbrance upon any of the assets of the
Company.
(h) Except as listed on Exhibit 4(h) attached hereto and
incorporated herein by reference, no consent, authorization, approval,
exemption, or other action by, and no filing, registration, or qualification
with, any third party, including, without limitation, any governmental
authority, will be necessary in connection with the execution and delivery of
this Agreement and all documents to be entered into in connection therewith, and
the consummation of the transactions contemplated hereby and thereby, or the
performance by Seller of its obligations hereunder and thereunder.
(i) The Company has operated its business in compliance with
all laws, rules, regulations and ordinances of governmental authorities
affecting the business and has paid all taxes required to be paid by it. The
Company has accurately prepared and timely and properly filed all United States
income tax returns and all state and local tax returns that are required to be
filed by it, and has paid or made provision for the payment of all taxes that
have become due pursuant to such returns. The federal income tax returns of the
Company have not been audited by the Internal Revenue Service. No deficiency,
assessment or proposed adjustment of the Company's federal, state or local tax
returns is pending.
(j) Except for the Cairo action described in paragraph 11(c)
of this Agreement, there are no judgments, actions, suits or proceedings pending
or threatened against the Company, or affecting any of its properties or rights,
and Seller is not aware of any facts which might result in any such action,
suit, or proceeding. The Company is not in default with respect to any order or
decree of any court or of any governmental agency or instrumentality.
(k) None of the representations and warranties made by Seller
in any certificate, exhibit or memorandum furnished or to be furnished by it or
on its behalf, and information contained and statements made therein, contains
or will contain any untrue statement or a material fact, or omits any material
fact, the omission of which would be misleading.
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5. REPRESENTATIONS AND WARRANTIES BY BUYER. Buyer hereby represents and
warrants that:
(a) Buyer is duly organized, validly existing and in good
standing under the laws of the State of Florida, and has all the necessary
powers to own its properties and carry on its business as now owned and operated
by it.
(b) Buyer has full power and authority to enter into, execute
and deliver this Agreement and all other documents and instruments to be
executed and delivered by Buyer pursuant to or in furtherance of this Agreement
and to consummate the transactions contemplated hereunder. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been or shall be duly authorized by all
necessary corporate action on the part of Buyer. Buyer has the right, power,
legal capacity, and authority to enter into and perform its obligations under
this Agreement and this Agreement constitutes, and each document or instrument
to be executed by Buyer pursuant to the terms hereof upon its execution and
delivery will have been duly executed and delivered and will constitute, the
valid and legally binding obligations of the Buyer enforceable in accordance
with their terms.
(c) No consent, authorization, approval, exemption or other
action by, and no filing, registration or qualification with, any governmental
authority is or will be necessary in connection with the execution and delivery
by Buyer of this Agreement and all documents to be entered into in connection
herewith, the consummation of the transactions contemplated hereby and thereby,
or the performance by Buyer of its obligations hereunder and thereunder.
(d) Buyer represents that the Membership Interest is being
acquired for investment for its own account, not as a nominee or agent, and not
with a view to the sale or other transfer thereof, and that it has no present
intention of selling or otherwise transferring the same.
(e) None of the representations and warranties made by Buyer
in any certificate, exhibit or memorandum furnished or to be furnished by it or
on its behalf, and information contained and statements made therein, contains
or will contain any untrue statement or a material fact, or omits any material
fact, the omission of which would be misleading.
6. CLOSING. The transfer of the Membership Interest by Seller to Buyer
(the "Closing") shall take place on or before December 14, 1997 at such time and
place as the parties agree (the "Closing Date").
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(a) At the Closing, Seller shall deliver or cause to be
delivered to Buyer, the following instruments and documents, in form and
substance satisfactory to Buyer, against delivery of the items specified in
Section 6(b):
(i) Assignment of Membership Interest and
Certificate(s) representing the Membership
Interest being acquired in connection with
this transaction;
(ii) Company resolution(s) approving the
transaction on the part of the Company;
(iii) Corporate resolution(s) approving the
transaction on the part of the Seller;
(iv) Termination of the Company's Operating
Agreement between Buyer and Seller.
(v) Termination of the Franchise Agreement;
(vi) Termination of the Management Agreement;
(vii) Deleted;
(viii) Assignments and assumptions of executory
contracts, if any; and
(ix) Such other documents and instruments as
shall be necessary or convenient to
effectuate this transaction, including,
without limitation, all books and records of
the Company.
(b) At the Closing, Buyer shall deliver or cause to be
delivered to Seller, the following instruments and documents, in form and
substance satisfactory to Sellers, against delivery of the items specified in
Section 6(a):
(i) A check in the amount of the purchase price;
(ii) Corporation resolution(s) approving the
transaction;
(iii) Termination of the Company's Operating
Agreement between Buyer and Seller.
(iv) Termination of the Franchise Agreement;
(v) Termination of the Management Agreement;
(vi) Deleted;
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(vii) Assignments and assumptions of executory
contracts, if any; and
(viii) Such other documents and instruments as
shall be necessary or convenient to
effectuate this transaction.
Each party at any time after the Closing Date, will execute,
acknowledge, and deliver any further deeds, assignments, conveyances, and other
assurances, documents and instruments of transfer, reasonably requested by the
other party, and will take any other action consistent with the terms of this
Agreement that may reasonably be requested by the other party for the purpose of
complying with the terms of this Agreement.
7. Intentionally Deleted.
8. COSTS.
(a) Each of the parties represents and warrants that it has
dealt with no broker or finder in connection with any of the transactions
contemplated by this Agreement and, insofar as it knows, no broker is entitled
to any commission or finder's fee in connection with any of these transactions.
Seller and Buyer each agree to indemnify and hold harmless one another against
any loss, liability, damage, cost, claim or expense incurred by reason of any
brokerage, commission, or finder's fee alleged to be payable because of any act,
omission, or statement of the indemnifying party.
(b) Except as may otherwise be provided in this Agreement,
each of the parties shall pay all costs and expenses incurred or to be incurred
by it in negotiating and preparing this Agreement and in closing and carrying
out the transactions contemplated by this Agreement.
(c) If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and expenses, court costs and all expenses even if
not taxable as court costs (including, but not limited to, all attorneys' fees
and expenses incident to any appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
8.A. LIABILITIES, COSTS, EXPENSES, PAYABLES AND ADJUSTMENTS. Exhibit
8A-1 lists all costs, expenses, liabilities and obligations owed by the Company
as of December 7, 1997, which are known or reflected on the Company's books and
records ("Contract Date Payables"). Seller represents that the Contract Date
Payables are accurate, to the best of the Company's knowledge,
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information and belief, and represent legitimate obligations of the Company
consistent with the Company's books and records and prior accounting practices.
Exhibit 8A-2 lists all cash, cash equivalents and any other assets owned by the
Company which may be used to satisfy Company obligations ("Contract Date Cash
and Equivalents"). Seller represents that the Contract Date Cash and Equivalents
are accurate, to the best of the Company's knowledge, information and belief,
and represent legitimate assets of the Company consistent with the Company's
books and records and prior accounting practices. The parties shall utilize the
Contract Date Cash and Equivalents and otherwise satisfy the Contract Date
Payables, as well as costs, expenses, liabilities, obligations and Cash and Cash
Equivalents arising subsequent to December 7, 1997, and prior to the Closing
Date (or arising after the Closing Date, but proratable to a period prior to the
Closing Date) in the following manner:
(a) The Contract Date Payables shall be reduced by the sum of
the Seller's Credit and the Affiliate's Credit (as described in paragraph 11
herein) in the total amount of $206,639.50, leaving a "Reduced Contract Date
Payables" of $125,628.00.
(b) Seller shall cause the Company to apply the total Contract
Date Cash and Equivalents (and shall be given a credit for the Lease and sales
tax deposits, as reflected in Exhibit 8A-2) to arrive at a "Net Contract Date
Payables" of $50,701.04. The Seller shall pay to the Company the sums of $20,247
and $30,000 for the food and liquor inventory and the small wares, respectively
(as reflected on Exhibit 8A-2). Company hereby transfers title (upon receipt of
payment) to such assets, as well as to all proprietary items and assets which
require de-identification under the Franchise Agreement, to Seller, and Seller
is hereby authorized to remove such items from the Company's business premises.
(c) Within ten (10) days after Closing, Buyer shall pay to the
Company an amount equal to fifty percent (50%) of the Net Contract Date Payables
in the amount of $25,351.00, plus $11,680.00 representing the aforedescribed
deposits.
(d) The Contract Date Payables constitute all known
obligations of the Company through December 7, 1997, and Seller is unaware of
any additional obligations which may arise prior to Closing, or which are
properly proratable to a period prior to Closing other than normal operating
expenses which Seller anticipates will be covered by additional cash and cash
equivalents generated through the Closing Date.
(e) Accordingly, subject to payment by Buyer to Seller in
accordance with paragraph 8A(c), Seller shall satisfy all Reduced Contract Date
Payables, at its sole cost and expense, utilizing the Contract Date Cash and
Equivalents therefor.
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(f) In the event that the Company incurs costs, expenses,
liabilities and obligations in excess of cash and cash equivalents attributable
to any period through the Closing Date or properly proratable through the
Closing Date (excluding any amounts payable to Seller or affiliates of Seller
which amounts Seller expressly waives), up to a total deficit of $10,000.00
(specifically including, but not limited to a xxxx for roof repair from Xxxxxxxx
Xxxx in the approximate amount of $5,700), such deficit shall be divided evenly
among the parties. Seller shall pay any portion of the deficit in excess of
$10,000. Because Seller maintains the Company's existing bank account, and Buyer
anticipates establishing a new bank account for the Company within which to
conduct operations, Seller shall account for all costs, expenses, liabilities,
obligations, cash and cash equivalents of the Company arising subsequent to
December 7, 1997, and attributable any period prior to the Closing. On January
30, 1997 ("Adjustment Date"), Seller shall provide Buyer with an accounting for
all of such items through the Adjustment Date. Subject to a reasonable review,
Buyer shall pay its share of the deficit, if any, shown thereon, subject to the
limitations described in paragraph 8A(f) above.
(g) Seller acknowledges that Buyer has relied upon Seller's
preparation of the financial statements supporting exhibits 8A-1 and 8A-2 in
entering into this Agreement.
9. OBLIGATIONS OF THE PARTIES AND CERTAIN OTHER TRANSACTIONS
AFTER CLOSING.
(a) Seller hereby agrees to indemnify Buyer and Company from
and hold them harmless against claims, damages, liabilities and losses incurred
by Buyer and/or Company and resulting from any materially inaccurate
representation made by the Seller in or under this Agreement or breach or
default in the performance by the Seller of any of the covenants or obligations
to be performed by it hereunder.
(b) From and after the Closing Date, Buyer shall immediately
notify Seller of any claim made for which Buyer or Company seeks indemnification
from Seller pursuant to Section 9(a) or otherwise in this Agreement. With
respect to any such liability, Buyer shall not, except with the prior written
consent of Seller, make or accept, as the case may be, any payment of, or settle
or offer to settle or consent to any compromise with respect to, any such
liability.
(c) Buyer hereby agrees to indemnify Seller from and hold it
harmless against claims, damages, liabilities and losses incurred by Seller and
resulting from any materially inaccurate representation made by Buyer in or
under this Agreement or breach or default in the performance by Buyer of any of
the covenants or obligations to be performed by it hereunder.
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(d) From and after the Closing Date, Seller shall immediately
notify Buyer of any claim made for which Seller seeks indemnification pursuant
to Section 9(c) or otherwise in this Agreement. With respect to any such
liability, Seller shall not, except with the prior written consent of Buyer,
make or accept, as the case may be, any payment of or settle or offer to settle
or consent to any compromise with respect to, any and such liability.
(e) Seller shall cause the Company to provide notice to all
parties to the Contracts of the transaction contemplated hereby. Buyer shall not
be required to assume any of such contracts to which the Company is not a party;
provided, that Seller shall reasonably cooperate to assign its rights under any
such contracts that Buyer elects to assume.
(f) Seller hereby indemnifies Buyer and Company from and holds
them harmless against any and all claims, damages, liabilities and losses
resulting from customers claiming under gift certificates sold or issued by
Seller or Company prior to Closing.
(g) Except as otherwise provided herein, all representations,
warranties, covenants, agreements and obligations hereunder or otherwise made in
writing by either party pursuant hereto shall survive the execution and delivery
of this Agreement and the closing of the transactions contemplated hereby.
10. LIMITED JOINDER/GUARANTY INDEMNIFICATION. Buyer, and Buyer's
individual shareholders, E. Xxx Xxxxxxx, Xxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxxx,
jointly and severally, hereby indemnify Seller from and hold it harmless against
(i) Seller's obligation under that certain Indemnification Agreement dated
December 12, 1996, by and between Seller and Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxx
(collectively "Xxxxxxxx"), pursuant to which Seller indemnified Xxxxxxxx for
their guaranty (the "Guaranty") under that certain Lease Agreement (the "Lease")
between Seller and TCW Fund IV Holding Co. ("Landlord"), as subsequently
assigned to and assumed by the Company, and (ii) the Cairo obligation described
in paragraph 11(c) of this Agreement. The parties agree and acknowledge, that as
of the date hereof, the Guaranty is limited to Twenty Thousand Dollars
($20,000). Buyer shall cause its shareholders to execute the limited joinder to
this Agreement.
11. SALE OF NEW BUSINESS WITHIN EIGHTEEN MONTHS. In the event Buyer, or
a Permissible transferee (as hereinafter defined) of Buyer, sells all or
substantially all of the Company's assets or all or substantially all of the
equity ownership in the Company and/or enters into any agreement to sell or
which provides any option to buy (excluding franchise and/or operating
agreements which provide for such options in the event of default and/or
transfers to related parties which own or control or are owned or controlled by
the Buyer ("Permissible transferee")), within eighteen (18) months of the date
hereof, Seller shall be entitled to a portion of the net sales proceeds (after
payment of customary
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and usual closing expenses), in accordance with the following formula:
(a) The decision to sell shall be made by Buyer in its sole
and absolute discretion.
(b) Exhibit 8A-1 contains a list of the Company's accounts
payable and payables to related parties which includes $151,639.50 which Seller
claims is owed to Seller ("Seller's Credit") and $55,000.00 Seller claims is
owed to an affiliate ("Affiliate's Credit"). Seller represents that Seller's
Credit and Affiliate's Credit are the sum of, as of the Closing Date, amounts of
costs and expenses advanced by Seller or affiliates of Seller on behalf of the
Company over and above amounts contributed equally by Seller and Buyer, and/or
owed to Seller but not paid by the Company. Seller shall not be entitled to such
Seller's Credit, or any part thereof, nor Affiliate's Credit, or any part
thereof, unless a sale occurs in accordance with this paragraph 11.
(c) Buyer represents that it has paid or will pay the sum of
One Hundred Ten Dollars ($110,000) to Xxxxxx Cairo, Sr. and Xxxxx Cairo, as
settlement in full of that certain action filed in Palm Beach County Circuit
Court styled XXXXXX CAIRO, SR. AND XXXXX CAIRO, PLAINTIFF V. BOCA ROADHOUSE,
INC., DEFENDANT, CASE, NO. CL-97-008346, and in satisfaction of all claims
brought thereunder (collectively, the "Cairo obligation"). Buyer also
anticipates that it will expend considerable sums for renovation and/or
conversion of the Company's business premises to accommodate a new business (the
"Conversion Expenses"). For purposes of this paragraph 10(b), the sum of the
Cairo obligation and the Conversion Expenses shall be referred to as "Buyer's
Credit".
(d) The net sales proceeds shall be paid to Buyer and Seller
on a pro rata basis based upon the Buyer's Credit and the sum of the Seller's
Credit and Affiliate's Credit, or any part thereof, until paid in full.
(e) After payment of the Buyer's Credit and the Seller's and
Affiliate's Credits in full, Seller shall be entitled to fifty percent (50%) of
the remaining net sales proceeds, if any; provided, that if Seller procures the
buyer, then its 50% share shall be increased to 60%; and further provided that
if Buyer procures the buyer, then Seller's share shall be decreased to 40%.
(f) Seller shall have the right to review all offers and
contracts submitted to Buyer and/or Company for the purchase and sale of the
Company and/or its assets which are subject to Seller's rights under this
paragraph 11.
12. FRANCHISE AGREEMENT. Seller and Buyer entered into that certain
Roadhouse Grill Franchise Agreement (the "Franchise Agreement") on or about
November 8, 1994 between Buyer, as franchisee, and Seller, as franchisor. The
Franchise Agreement was
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subsequently assigned to and assumed by the Company on or about December 12,
1996, which assignment and assumption was consented to by Seller, as franchisor.
The parties hereby terminate the Franchise Agreement, effective on the Closing
Date. Seller shall, in good faith, remove all proprietary items to which it is
entitled pursuant to the Franchise Agreement and shall take all other action and
do all things necessary in order to terminate the Franchise Agreement in
accordance with the terms thereof without cost to Buyer or the Company. Each
party hereby releases the other from any other obligations under the Franchise
Agreement, including, without limitation, all rights and obligations referred to
in paragraph 14 of the Franchise Agreement (except paragraph C thereof).
13. MANAGEMENT AGREEMENT. Seller and Buyer entered into that certain
Roadhouse Grill Management Agreement (the "Management Agreement") on or about
November 8, 1994 between Buyer and Seller. The Management Agreement was
subsequently assigned to and assumed by the Company on or about December 12,
1996, which assignment and assumption was consented to by Seller, as Manager.
The parties hereby terminate the Management Agreement, effective on the Closing
Date. Seller shall, in good faith, take all action and do all things necessary
in order to terminate the Management Agreement in accordance with the terms
thereof (including, without limitation, the transfer of all licenses, if any)
without cost to Buyer or the Company. Each party hereby releases the other from
any other obligations under the Management Agreement. Notwithstanding the
foregoing, the parties acknowledge that Seller's Credit (described in paragraph
11(b) herein) includes management fees, which shall be payable along with the
balance of the Seller's Credit in accordance with the terms of paragraph 11.
14. OPERATING AGREEMENT. On or about December 12, 1996, Buyer and
Seller entered into the Operating Agreement of Boca Roadhouse, L.C. (the
"Operating Agreement") as sole members of the Company. Buyer and Seller hereby
terminate the Operating Agreement and release each other from any and all
obligations thereunder effective as of the Closing Date.
15. TAX RETURNS. The parties hereby select KPMG Peat Marwick as the
accountants to prepare all required income tax returns of the Company for all
periods which include the Closing Date; provided that Buyer shall be responsible
for the tax liability attributable to any income arising between Closing and
December 31, 1997. The costs of such tax return preparation, income tax
liability, if any, and all costs, if any, which may be incurred upon audit or
other examination shall be borne equally by the parties; provided, that Buyer
shall be responsible for any tax liability of Company attributable to a period
after the Closing Date.
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16. MISCELLANEOUS PROVISIONS.
(a) This Agreement represents the entire understanding and
agreement between the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and between such parties.
(b) The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
(c) No party shall assign his or its rights and/or obligations
hereunder without the prior written consent of each other party to this
Agreement, said consent not to be unreasonably withheld.
(d) All of the terms and provisions of this Agreement, whether
so expressed or not, shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective legal representatives,
successors and permitted assigns.
(e) All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including
telecopy or facsimile communication) and shall be (as elected by the person
giving such notice) hand delivered by messenger or courier service, or mailed
(airmail if international) by registered or certified mail (postage prepaid),
return receipt requested, addressed to such address as any party may designate
by notice complying with the terms of this Section. Each such notice shall be
deemed delivered (a) on the date delivered if by personal delivery; (b) on the
date of transmission with confirmed answer back if by telecopy or facsimile; and
(c) on the date upon which the return receipt is signed or delivery is refused
or the notice is designated by the postal authorities as not deliverable, as the
case may be, if mailed.
(f) If any part of this Agreement or any other Agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
(g) In this Agreement, the use of any gender shall be deemed
to include all genders, and the use of the singular shall include the plural,
wherever it appears appropriate from the context.
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(h) The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the rights of such party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
any party of any breach of any provision of this Agreement should not be
construed as a waiver of the provision itself, or a waiver of any right, power
or remedy under this Agreement. No notice to or demand on any party in any case
shall, of itself, entitle such party to any other or further notice or demand in
similar or other circumstances.
(i) Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any person other than the parties hereto and their respective legal
representatives, successors and permitted assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any
third persons any right of subrogation or action over or against any party to
this Agreement.
(j) No remedy herein conferred upon any party is intended to
be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. No single
or partial exercise by any party of any right, power or remedy hereunder shall
preclude any other or further exercise thereof.
(k) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(l) This Agreement and all transactions contemplated by this
Agreement shall be governed by, and construed and enforced in accordance with,
the internal laws of the State of Florida without regard to principles of
conflicts of laws.
(m) The parties hereby agree from time to time to execute and
deliver such further and other transfers, assignments and documents and do all
matters and things which may be convenient or necessary to more effectively and
completely carry out the intentions of this Agreement.
13
14
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
COMPANY: SELLER:
BOCA ROADHOUSE, L.C. ROADHOUSE GRILL, INC.
By: Boca Roadhouse, Inc., By: /s/ Xxxxxx X. Xxxxx
Member ------------------------
Its: Chief Financial Officer
-----------------------
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Its: President
-------------------
BUYER:
By: Roadhouse Grill, Inc., BOCA ROADHOUSE, INC.
Member
By: By: /s/ Xxxxxxx X. Xxxxxxx
--------------------- ----------------------
Its: Its: President
-------------------- ---------------------
LIMITED JOINDER
---------------
The undersigned, being all of the shareholders of the Buyer, execute
this Limited Joinder solely to signify their obligation, jointly and severally,
to indemnify Seller from and hold it harmless against Seller's obligation for
indemnification of Xxxxxxxx under the Guaranty and the Cairo obligation as
described in paragraph 10 of this Agreement.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxxxxx
--------------------------
Xxxxxx Xxxxxxxxxx
--------------------------
E. Xxx Xxxxxxx
14
15
EXHIBITS LIST
EXHIBIT
4(f) Liens and Encumbrances
4(g) Contracts
4(h) Consents and Approvals
8A-1 Contract Date Payables
8A-2 Contract Date Cash and Equivalents
16
EXHIBIT 4(F)
LIENS AND ENCUMBRANCES
1) Ice Machine UCC-1
17
EXHIBIT 4(G)
CONTRACTS
18
EXHIBIT 4(H)
CONSENTS AND APPROVALS
None.
19
EXHIBIT 8A-1
CONTRACT DATE PAYABLES
Accounts Payable (see attached $249,673.54
supporting schedule 8A-1.2)
Due to Related Parties $ 55,000.00
Accrued Expenses:
Marketing Bonus $ 1,000
Sales Tax Payable $12,500
Real/Personal Property Taxes $12,378
Liquor Tax $ 1,716
-------
$ 27,594.00
------------
SUBTOTAL $332,267.54
Less: Seller's Credit
(see attached supporting
schedule 8A-1.1) ($151,639.50)
Affiliate's Credit ($ 55,000.00)
------------
Reduced Contract Date Payables $125,628.04
============
20
EXHIBIT 8A-2
CONTRACT DATE CASH AND EQUIVALENTS
Cash and Cash Equivalents $13,000.00
Food and Liquor Inventory $20,247.00
Small Wares $30,000.00
Lease Security Deposit $ 5,000.00
Sales Tax Security Deposit $ 6,680.00
----------
$74,927.00
==========
