EXHIBIT INDEX
10.1 Membership Interest Sales and Purchase Agreement
MEMBERSHIP INTEREST SALES AND PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST SALES AND PURCHASE AGREEMENT is entered into
this 28 day of December, 2007 (the "Effective Date"), by and between MONARCH
SERVICES, INC., a Maryland corporation, (the "Seller"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇., an individual, or his assigns ("Purchaser").
WHEREAS, Seller owns a hundred percent (100%) of the Membership Interest in
PEERCE'S PLANTATION GL, LLC, a Maryland limited liability company, and
PEERCE'S PLANTATION LIQUOR LICENSE, LLC, a Maryland limited liability company
(collectively the "Companies"); and
WHEREAS, PEERCE'S PLANTATION GL, LLC, formed on July 7, 2001 and formerly
known as Girls' Life Plantation Restaurant, LLC, is the owner of a parcel of
land situate in the 10th District of Baltimore County and identified on Map 53
as Parcel 327 in the Tax Maps of Baltimore County with an address of ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (hereinafter "Business Property"), on which a restaurant
known as Peerce's Plantation formerly operated its business; and
WHEREAS, the Business Property contains certain fixtures, furniture, and other
assets within the building known as the Business Assets and listed in Exhibit
A; and
WHEREAS, PEERCE'S PLANTATION LIQUOR LICENSE, LLC is the owner of a Class B
liquor license (hereinafter the "Liquor License") used in conjunction with
the restaurant business known as Peerce's Plantation on the Business Property;
and,
WHEREAS, Seller desires to sell and the Purchaser desires to purchase the
Liquor License, the Business Property, and the Business Assets, by purchasing
all of the Membership Interest of the Companies as set forth herein;
NOW THEREFORE, in consideration of Five Dollars ($5.00) and the mutual promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
it is mutually agreed between the parties hereto as follows:
1. Sale of Membership Interest. The Seller agrees to sell, transfer,
grant and assign and the Purchaser promises to buy Seller's 100% Membership
Interest of the Companies, constituting all of the outstanding Membership
Interest, free and clear, without encumbrances, liens or hindrances of any
kind.
2. Purchase Price. The agreed Purchase Price of the above described
Membership Interest is One Million Six Hundred Thousand Dollars ($1,600,000.00)
(hereinafter referred to as the "Purchase Price").
2.1Deposit. Purchaser has heretofore paid to Seller a good faith
deposit of Twenty Five Thousand Dollars ($25,000.00) (the "Initial Deposit").
In the event settlement does not occur for any reason, the Initial Deposit
shall be refunded to the Purchaser. Within five (5) days of the execution
of this Agreement, Purchaser shall pay to Seller an additional deposit of Fifty
Thousand Dollars ($50,000.00) (the "Second Deposit") for a total of Fifty
Thousand Dollars ($50,000.00) (collectively the "Deposit"). The Second Deposit
shall be non-refundable, unless the Seller shall default hereunder in which
even the Purchaser shall be entitled to the return of said Deposit.
3. Payment of Purchase Price. Purchaser shall pay the Purchase Price
less the Deposit by cashier's check or bank check at Settlement.
4. Expenses. The parties agree to each bear its own costs, including,
but not limited to attorney fees and accountant fees, relating to this
transaction.
5. Broker. All parties agree that there is and has been no broker or
agent involved in this Agreement and there are no agency, or brokerage or
finder fees to be paid to anyone. Should any broker claim a fee due as the
result of this transfer, the party who employed or contracted with such broker
shall be liable for all of said fee and shall indemnify and hold harmless the
other party.
6. Settlement. The Settlement on this Agreement shall take place on or
before February 15, 2008. At the time of settlement, the Seller shall deliver
to the Purchaser, Assignments of Membership Interest for each entity being
transferred herein, a ▇▇▇▇ of sale acceptable to the Purchaser and all other
instruments of sale, conveyance and assignment for the proper transferring by
the Seller to the Purchaser of the Membership Interests being transferred
herein.
6.1 Apportionments. All taxes, general or special, and all other
public or governmental charges or assessments against the portion of the
Property being conveyed or the improvements thereon which are or may be payable
on an annual basis (including metropolitan district, sanitary commission, or
other benefit charges, assessments, liens, or other encumbrance for sewer,
water, drainage, or other public improvements completed or commenced on or
prior to the date hereof or subsequent thereto) (collectively, the
"Impositions") are to be adjusted and apportioned as of the date of the
settlement and are to be assumed and paid thereafter by the Purchaser,
whether assessments have been levied or not as of such date.
6.2 Transfer Taxes; Allocations. In the event Seller is required
to convey the Property by fee simple Deed rather than by a membership interest
transfer, the Purchaser shall bear the costs of any state or county documentary
stamps, transfer and recordation taxes and recording fees payable in connection
with the recordation of the Deed among the Land Records of Baltimore County,
Maryland. The Seller shall solely bear the costs of any agricultural land
transfer tax that may be assessed against the Property as a result of the
conveyance of title to the Property to the Purchaser.
7. Books and Records. Seller shall cooperate with the turnover of any
books and records of the Companies upon request by Purchaser. To the extent
requested by Purchaser, Seller agrees to provide assistance in transition
with respect to payroll, tax accounts and the books and records of the
Companies.
8. Intentionally Deleted.
9. Seller's Covenants and Warranties. Seller makes the following
covenants and warranties to Purchaser. Purchaser's obligations are conditioned
upon the Seller's covenants and warranties being true on the date of the
Settlement.
9.1. Seller has full power and authority to sell the Membership
Interest being sold herein. The Membership Interest being conveyed pursuant
to Section 1 of this Agreement is free and clear of all liens, encumbrances,
pledges and restrictions of any kind whatsoever.
9.2. This Agreement constitutes, and the settlement documents
delivered hereunder, upon execution and delivery thereof in accordance herewith
constitute, the legal, valid and binding obligation of Seller enforceable in
accordance with their respective terms.
9.3. The Membership Interest being purchased by Purchaser is owned
solely by the Seller and the Seller has good and marketable title to all of
the Membership Interest, free and clear of any and all liens, pledges, security
interests, encumbrances and adverse claims of any nature.
9.4. Neither the execution and delivery of this Agreement nor the
consummation of the sale and other contemplated transactions will conflict
with, or result in a breach of, any of the terms, conditions or provisions
of any law or regulation, order, writ, injunction or decree of any court or
governmental instrumentality, or the articles of organization or operating
agreements of the Companies or any agreement or other instrument to which
the Companies and/or the Seller is a party or by which it is bound, or
constitute a default thereunder, or result in any lien or encumbrance on
any of the assets owned the Companies and/or the Seller.
9.5. Seller shall pay all real estate taxes, assessments, and licenses
and registration fees (which shall be adjusted as of the date of settlement)
accruing while Seller is in operational control of the Companies as well as
subsequent to the date of this Agreement to the date of Purchaser's possession
or the date of Closing, whichever shall first occur
9.6. Intentionally deleted.
9.7. Between the time of this Agreement and the Settlement Date,
Seller covenants and agrees that Seller shall not remove any tools, equipment,
machinery, inventory, supplies and or furniture without the express written
consent of the Purchaser, except a ▇▇▇▇ Deere tractor and two (2) pictures
(a photograph of Pimlico race track and a picture of a shepherd with his
sheep).
9.8. Encumbrances.
9.8.1. Membership Interest and Liquor License. The Seller
covenants and agrees that from the date of this Agreement to the Settlement
Date, it shall not: (i) voluntarily convey, transfer, mortgage or encumber
any part of the Membership Interest or Liquor License; or (ii) become a party
to any contracts, leases, options or agreements affecting the Membership
Interest or Liquor License that would in any way affect the Purchaser's
rights and obligations hereunder without the Purchaser's prior written
consent.
9.8.2. Business Property. The Seller shall not allow the
Companies, after the date hereof, to enter into any deed, contract of sale,
option agreement, right of way, easement, grant, lease or other writing or
instrument with respect to the Business Property, nor take any action or
permit to be imposed any easement, existing reservation, right of way, lien
or encumbrance upon the Business Property, which would constitute an additional
exception under the Title Commitment. The Companies are the legal, record and
beneficial owner of the aforesaid properties and have good and marketable title
thereon. As of Settlement, the Business Property will not be subject, in whole
or in part, to any leasehold interest of any person, corporation or entity or
any claim, right or interest of any tenant or party in possession and there
will be no parties in possession of any part of the Business Property as
lessees or tenants at sufferance.
9.9. Litigation. There are no actions, suits or proceedings
(including, without limitation, condemnation and eminent domain proceedings)
which have been instituted or, to Seller's knowledge, threatened against or
affecting the Membership Interest, the Companies, the Business Property, or
the Liquor License, or the Companies' title to the Business Property and Liquor
License, at law or in equity, or before any governmental authority.
9.10. INTENTIONALLY DELETED.
9.11. Mechanics' Liens. As of the Settlement, all bills and claims
for labor performed and material supplied to or for the benefit of the Business
Property, other than work authorized by Purchaser, at any time prior to the
Settlement will have been paid in full, and no mechanics' or materialmen's
liens will be outstanding on or pending or threatened against the Business
Property.
9.12. U.C.C. Lien. The Seller covenants and agrees that there are
no outstanding liens encumbering the business assets as shown on Exhibit A and
being transferred, or if there are outstanding liens, that these will have been
satisfied by the Seller prior to the Settlement Date.
10. Purchaser's Covenants, Duties and Warranties. Purchaser makes the
following covenants, representations and warranties to Sellers. Sellers'
obligations are conditioned upon the Purchaser's covenants, representations
and warranties begin true on the date of the settlement.
Purchaser is an individual and has full power and authority to own its assets
and properties and to carry on its business as it will be conducted.
Neither the execution and delivery of this Agreement nor the consummation of
the sale and other contemplated transactions will conflict with, or result in
a breach of, any of the terms, conditions or provisions of any law or
regulation, order, writ, injunction or decree of any court or governmental
instrumentality, or the corporate charter or by-laws to the Purchaser or any
agreement or other instrument to which the Purchaser is a party or by which
it is bound, or constitute a default thereunder, or result in any lien or
encumbrance on any of the assets owned by the Purchaser.
11. Title Commitment/Environmental Inspection. The Purchaser shall have
a period of twenty (20) days from the date hereof to obtain and review a title
insurance commitment issued by a reputable title insurance company for the
Business Property, together with a survey which indicates the location of the
improvements, encroachments, easements, rights of way and other exceptions as
set forth in such title insurance commitment (the "Title Commitment"), which
Title Commitment must be satisfactory in all respects to the Purchaser, in its
sole discretion. If the Title Commitment discloses any matters affecting title
that are not acceptable to the Purchaser, then the Purchaser shall notify the
Seller of such objectionable title matters prior to the expiration of such
twenty (20) day period. The Seller may, but shall be under no obligation to,
cure all such title defects. Should Seller elect to cure such title defects,
these defects must be cured within fifteen (15) days of Seller's receipt of
notice from Purchaser of the objectionable title matter. Seller must notify
Purchaser in writing of its election to cure the title defects ("Cure Notice")
within five (5) days of its receipt of written notice of the defects from
Purchaser. In the event Seller elects not to cure the title defects, fails
to notify Purchaser that it will cure the title defects or fails to cure such
defect, Purchaser may either terminate this Agreement and receive a refund of
the entire Deposit or waive its objection and proceed with the terms of this
Agreement. In the event the Purchaser elects to terminate this Agreement
pursuant to this Section, the Deposit shall be returned to the Purchaser, and
upon such return, this Agreement shall be null and void and of no further
force and effect. At Settlement, the Purchaser shall secure a bring-to-date
of the Title Commitment, which bring-to-date shall reveal no new exceptions
of record after the date hereof, unless such exceptions have been requested
by Purchaser.
12. Intentionally Deleted.
13. Conditions Precedent. The obligations of the Purchaser to purchase
the Membership Interest and to perform the other covenants and obligations to
be performed by the Purchaser under this Agreement shall be subject to and
contingent upon the following conditions (collectively, the "Condition
Precedent") to be fulfilled, satisfied and/or resolved to the satisfaction
of the Purchaser on the Settlement Date, unless another date is specifically
noted. If for any reason there is a failure to satisfy any of the Conditions
Precedent, then the Purchaser may terminate the Agreement and receive a refund
of the Deposit or waive the Condition Precedent, in whole or in part in
writing.
13.1. Covenants and Warranties. The representations made by the
Seller in Section 9 shall be true and correct in all material respects on and
as of the Settlement Date with the same force and effect as though such
warranties had been made on and as of such date; the Seller shall have
performed all covenants and obligations and complied with all conditions
required by this Agreement to be performed or complied with on or before
the Settlement Date.
13.2. Intentionally Deleted.
14. Risk of Loss. In the event that prior to the Settlement date the
Business Property, or any buildings or structures thereon, shall be damaged
by fire or any other casualty not fully covered by insurance and not repaired
or replaced by the time of settlement, Purchaser shall have the right, at its
election, either to terminate this Agreement or proceed to settlement.
15. Termination; Default. Any termination of this Agreement pursuant to
any provision hereof shall only be accomplished by written notice sent by the
terminating party to the other party in accordance with the provisions of
Section 19 of this Agreement. Upon any default by Purchaser, the Deposit shall
be forfeited to the Seller as full liquidated damages in accordance with the
provisions of this Agreement. Upon any default by Seller, Purchaser shall be
entitled to pursue an action for specific performance or shall be entitled to
the return of the Deposit and reimbursement for actual monetary damages.
Neither party shall be entitled to recover consequential damages. Upon receipt
of notice of a default, the defaulting party shall have fifteen (15) days to
remedy said default (five (5) days for a monetary default), before the other
party may pursue any of the remedies contained herein.
16. Binding Effect. This Agreement shall be binding upon, and inure to
the benefit of, the parties and their respective successors, assigns, heirs
and personal representative.
17. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland.
18. Amendment of Agreement. This Agreement may be amended only by a
written agreement of all the parties hereto.
19. Notices. Any notice or communication given by any of the parties
hereto to the other party hereto pursuant to this Agreement shall be in writing
and delivered personally or mailed by certified mail, postage prepaid, as
follows:
(1) If to Seller, to: Monarch Services, Inc.
ATTN: ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esquire
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(2) If to Purchaser, to: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Signature Catering
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, LLC
Attn: D. Dusky ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as hereafter shall be furnished in writing by any of
the parties hereto to the other parties hereto.
20. Liquor License. Although Purchaser shall receive the Membership
Interests of PEERCE'S PLANTATION LIQUOR LICENSE, LLC, which is the Liquor
License owner, the Baltimore County Liquor Board will require a transfer of
the Liquor License from the Seller as the holders of the Liquor License to
Purchaser. Therefore, Seller shall provide assistance in transition with the
transfer of the liquor license into the name of the Purchaser or its designees,
which assistance shall include, but not be limited to, the execution of any
applications or other documents necessary to effectuate the transfer, and
attendance at any necessary hearings required for the transfer. Purchaser
agrees to make all best and immediate efforts to effectuate said transfer.
In the interim between the sale and purchase of the membership interests of
Seller and the transfer of the Liquor License, Purchaser shall indemnify and
hold harmless Seller and the individual holders of the Liquor License for any
and all actions, which may arise in any way, or be connected to, Purchaser's
use of said Liquor License. This Section 20 shall survive Settlement and
the Deed conveying the Business Property to Purchaser.
21. Right of Entry. Upon execution of this Agreement, the Seller shall
permit the Purchaser to access the Property for the limited purpose of showing
the facilities to prospective customers desiring to utilize the premises for
catered events. The Purchaser shall provide the Seller with notice prior to
gaining entry to the Property. The Seller shall leave the Property in
substantially the same condition as it was prior to the Seller's exercise of
this right of entry.
22. Intentionally Deleted.
23. Intent of the Parties. It is the express intent of the parties hereto
that Seller shall convey to Purchaser the membership interests of the Companies
owning legal title to the Business Property, the Business Assets and the Liquor
License. Therefore, if it is discovered that any entity other than Peerce's
Plantation Liquor License, LLC or Peerce's Plantation GL, LLC legally owns the
Business Property, the Business Assets or the Liquor License, Seller shall
convey the membership interests of that entity or entities to Purchaser. In
the event such an entity shall own any other assets other than the Business
Property, the Business Assets or the Liquor License, such assets shall be
conveyed from that entity prior to the conveyance of the membership interests.
24. Entire Understanding. This Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements, oral or
written, with respect to the subject matter hereunder.
25. Headings. The headings herein are inserted only as a matter of
convenience and reference and in no way define, limit or describe the scope
of this Agreement or the intent of any provisions thereof.
26. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
27. Severability. In case any terms of this Agreement shall be held
invalid, illegal or unenforceable in whole or in part, neither the validity
of the remaining parts of such term or the validity of the remaining terms
of this Agreement shall in any way be affected thereby.
28. Other Documents. The parties hereto agree to sign other and further
documents to carry out the intent of this Agreement.
29. Assignment. The Purchaser and Seller shall be entitled to assign
their rights under this Agreement as provided below:
29.1. Assignment by Seller. Seller shall have the right to assign
its rights under this Agreement or transfer the Property to a trust or other
entity for estate planning purposes, provided that any assignment or transfer
is subject to the terms of this Agreement and that Seller provide Purchaser
with prior written notice of such.
29.2. Assignment by Purchaser. Purchaser shall have the right to
assign its rights under this Agreement prior to Settlement to any entity of
which Purchaser is a majority owner.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date
first written above.
WITNESS/ATTEST: SELLER:
MONARCH SERVICES, INC.
______________________________ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (SEAL)
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: President
PURCHASER:
______________________________ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇,▇▇. (SEAL)
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.