EXHIBIT 10.43
AGREEMENT TO TRANSFER ASSETS AND LIABILITIES
BY AND BETWEEN
MOMENTUM FOOD SERVICES, INC.
SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
AND
▇▇▇▇▇▇ PACK-ENTERPRISES, INC.
THIS AGREEMENT TO TRANSFER ASSETS AND LIABILITIES (the "Agreement") is made and
effective as of the 30th day of June, 2003 (the "Effective Date"), 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. (collectively referred to as "Momentum"), ▇▇▇▇▇▇ Pack-Enterprises, Inc. a
corporation established and existing under the laws of the State of North
Carolina, formerly Asheville Packing Company, Inc. ("▇▇▇▇▇▇ Pack-Enterprises"),
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (collectively
referred to as "the Cannons"). Together, Momentum and ▇▇▇▇▇▇ shall be
hereinafter referred to as the "Parties".
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., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 A) between Asheville
Packing Company, Inc., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, and Gaby Holdings II
LLC,; and
(iii) The Guaranty Agreement entered into as of November
28, 2001 (the "Guaranty Agreement", attached hereto
as Exhibit A) between Asheville Packing Company,
Inc., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 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, as of December 31, 2002 the Parties executed an
Agreement To Restructure And Unwind By And Between Asheville Packing Company,
Inc., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ And ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Momentum Food
Services, Inc., Syndicated Food Service International, Inc. and Gaby Holdings II
LLC., (the "Restructure and Unwind Agreement") a copy of which is attached
hereto and incorporated herein as Exhibit B; and
WHEREAS, the Parties now wish to transfer the remaining assets
and liabilities, owned by Momentum and associated with Momentum's Asheville
Packing operation (the "Asheville Packing Operation") which were originally
transferred from the Cannons to Momentum pursuant to the Transaction Documents,
and which were retained by Momentum in the Agreement to Restructure and Unwind,
as in Exhibit A of the Contract to Sell Real Property, plus additional items as
scheduled in Exhibit 1 of the ▇▇▇▇ of Sale.
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
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acknowledged by the Parties hereto, the Parties do hereby agree, intending
hereby to be legally bound, as follows:
1. This Agreement shall not alter nor compromise any of the terms and
conditions of the Restructure and Unwind Agreement, attached hereto as
Exhibit B, other than as specifically provided for in this Agreement;
2. That all assets as scheduled in the ▇▇▇▇ of Sale previously executed
pursuant to the Restructure and Unwind Agreement, which is attached
hereto and incorporated herein by reference specifically as Exhibit "B"
to this Agreement, shall transfer to and hereafter be owned by ▇▇▇▇▇▇
Pack-Enterprises;
3. That in addition to the ownership transfer of certain assets as
provided for in Paragraph 2 above, all assets and liabilities, except
for inter-company loans owning by Momentum to Syndicated, as detailed
in the Asheville Packing financial statements for the six months ended
June 30, 2003, a copy of which is attached hereto as Exhibit D, shall
transfer to and be assumed by ▇▇▇▇▇▇ Pack-Enterprises;
4. That any check(s) written on the Momentum bank account(s) which are
being held, and therefore note stated on the Momentum financial
statement, be voided and delivered to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.;
5. That Momentum and Syndicated shall forgive and bear no recourse to
▇▇▇▇▇▇ Pack-Enterprises or the Cannons for any inter-company loans made
by Syndicated to Momentum regarding the Asheville Packing Operation;
6. That the Property Lease entered into by Momentum for the use of the
Property, including the building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and the
first floor of the building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, which Property
Lease was deemed effective as of October 1, 2001 is hereby terminated
in full with no liability nor recourse to Momentum, nor Syndicated for
any and all lease payments, improvements or other obligations provided
for in said Property Lease;
7. That ▇▇▇▇▇ ▇▇▇▇▇▇ shall resign as a Director and Officer of Momentum;
8. That ▇▇▇▇▇ ▇▇▇▇▇▇ shall cause the existing Momentum bank account(s)
relative to the Asheville Packing operation to be closed and the
existing cash monies is said account be transferred to ▇▇▇▇▇▇
Pack-Enterprises, or other such arrangement acceptable to ▇▇▇▇▇▇
Pack-Enterprises;
9. That ▇▇▇▇▇▇ Pack-Enterprises, as well as ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby indemnify and hold harmless,
Momentum and Syndicated and forever assume full obligation for any and
all trade accounts payable, taxes, or any other liability of any kind
associated with the Asheville Packing Operation;
10. That Syndicated and Momentum hereby indemnify and hold harmless, ▇▇▇▇▇▇
Pack-Enterprises, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ against any liability associated with any claim or suit brought
by E.S. Bankest, LLC relating to certain third party billing
allegations;
11. That Momentum shall enter into a license and royalty agreement (the
"Tarheel License Agreement") for the non-exclusive use of the brand
name Tarheel, the recipes associated with the Tarheel products being
transferred to ▇▇▇▇▇▇ Pack-Enterprises through this Agreement, a copy
of said License Agreement, being attached hereto and incorporated here
in as Exhibit E. Further that the Tarheel License Agreement shall
provide for, among other conditions, the payment to ▇▇▇▇▇▇
Pack-Enterprises, or its designee, the sum of twenty five thousand
dollars ($25,000.00) upon terms and conditions to be agreed upon by the
Parties;
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12. That this Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of North Carolina;
13. 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;
14. 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;
15. 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
16. 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, having understood and agreed to the terms
and conditions provided for herein, have caused this Agreement to be signed and
sealed on the Effective Date.
(SIGNATURES ON NEXT PAGE)
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SYNDICATED FOOD SERVICE INTERNATIONAL, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 6/30/03
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Date
Chief Executive Officer
MOMENTUM FOOD SERVICES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 6/30/03
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Date
Secretary
▇▇▇▇▇▇ PACK-ENTERPRISES, INC.,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 6/30/03
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 6/30/03
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
Individually
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 6/30/03
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
Individually
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 6/30/03
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▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Date
Individually by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Exhibit A
MARKS
TRADEMARK APPLICATIONS AND REGISTRATIONS
COMMON LAW MARKS
REGISTRATIONS
APPLICATIONS
TARHEEL BRAND LABELS
TARHEEL PRODUCTS
1. Tarheel beef tips barbeque;
2. Tarheel minced barbeque;
3. Tarheel pulled pork barbeque;
4. Tarheel gourmet chili;
5. Tarheel regular chili; and
6. Tarheel gourmet chili sauce.
TARHEEL RECIPES
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