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EXHIBIT 10.26
OPTION AND ESCROW AGREEMENT
AGREEMENT dated as of August , 1996, between CFT RESTAURANT
CORP. ("CFT"), LAND AND BUILDING GROUP ("LBG"), RATTLESNAKE OF
MILFORD, INC. ("RMI"), RATTLESNAKE HOLDING CORP. ("RHC"), ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ("FT"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("CT") and ▇▇▇▇▇▇ ▇. ▇▇▇▇
("TD") and PRYOR, CASHMAN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, ("Escrow Agent").
STATEMENT OF FACTS:
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The parties to this Agreement have agreed upon the form and content of
that certain (a) Assets Sale/Purchase Agreement between RMI and CFT (the "Assets
Agreement"), (b) First Amendment and Restated Lease between LBG and RMI (the
"Lease"), (c) Consulting Agreement among FT, CT, TD, RMI and RHC, and (d) Common
Stock Purchase Warrant made by RHC that are attached to this Agreement. The
foregoing described documents contain all of the material terms of the
transaction contemplated by the parties hereto.
CFT, RMI and LBG have executed two (2) counterparts of each of the
Assets Agreement and the Lease (collectively, the "Documents") and delivered
same to Escrow Agent to be held and disbursed in accordance with terms and
conditions of this Agreement.
The parties now desire to set forth the terms and conditions pursuant
to which the Documents shall be held in escrow and disbursed by Escrow Agent,
and CFT, LBG, FT, CT and TD (collectively, the "Optionors") desire to grant RMI
and RHC (collectively, the "Optionees") the right to cause the Documents to be
released from escrow upon, and subject to, the terms and conditions herein
contained.
NOW, THEREFORE, for $10.00 and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. CFT, LBG and RMI have executed and delivered the Documents to Escrow
Agent, and Escrow Agent agrees to hold and disburse the same in accordance with
the terms of this Agreement.
2. Optionors hereby grant Optionees the option (the "Option") to cause
the Escrow Agent to date and release the Documents from Escrow in accordance
with paragraph 3 below. Optionees shall exercise the Option by giving written
notice to Escrow Agent and to Optionors attorney, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("▇▇▇▇▇▇") at any time
within the Option Period (as hereinafter defined). For purposes hereof, the
"Option Period" shall mean the period between the date hereof and September 1,
1996 provided, however, that Optionor shall have the right to extend the Option
Period for an additional month to October 1, 1996 by paying the amount of
$15,000 to Optionors' at any time on or prior to September 1, 1996, and the
right to further extend the Option Period for an additional month to November 1,
1996 by paying the
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amount of $15,000 to Optionors at any time on or prior to October 1, 1996. If
Optionees shall not give written of the exercise of the Option on or before the
end of the Option Period or if Optionees shall fail to deliver any payment to
Optionors on or before the date herein required, the Option shall be deemed null
and void, and of no further force or effect, and Escrow Agent shall destroy the
Documents. All payments under this Option shall be made payable to CFT on behalf
of the Optionors. Optionors acknowledge that the amount of $15,000 has been paid
to CFT at the execution of this Agreement representing Option consideration for
the period prior to September 1, 1996.
3. If Optionees shall give written notice of the exercise of the Option
in accordance with paragraph 1 above, Escrow Agent is authorized and directed to
date the Documents as of the date the notice of Option is received by Escrow
Agent and disburse one original counterpart of each of the Documents to ▇▇▇▇▇▇,
on behalf of Optionors, and to RMI, on behalf of Optionees. Upon the
disbursement of the Documents as hereinabove provided, the same shall be deemed
fully effective in accordance with their respective terms.
4. Each of the parties hereto represent and warrant to the other that
they have the full right, power and authority to execute this Agreement and the
Documents, and the individuals executing this Agreement on behalf of each entity
have the full right, power and authority to do so.
5. It is agreed that the duties of the Escrow Agent are only as herein
specifically provided, and subject to the provisions of this Section, are purely
ministerial in nature, and the Escrow Agent shall incur no liability whatsoever
except for willful misconduct or gross negligence, as long as the Escrow Agent
has acted in good faith. The parties hereto each release the Escrow Agent from
any act done or omitted to be done by the Escrow Agent in good faith in the
performance of its duties hereunder. The Escrow Agent is acting as a stakeholder
only with respect to the Documents. The parties hereto each agree, jointly and
severally, to fully indemnify and hold the Escrow Agent harmless from and
against all liabilities, damages, costs and expenses (including, without
limitation, reasonable attorneys fees) incurred by the Escrow Agent with respect
to the performance of its duties hereunder. Upon making delivery of the
Documents in the manner herein provided, the Escrow Agent shall have no further
liability hereunder. In the event there is any dispute under this Agreement, the
Escrow Agent shall (i) continue to hold the Documents until the Escrow Agent has
received written notice from all parties hereto directing the disbursement of
the Documents, in which case the Escrow Agent shall then disburse the Documents
in accordance with such direction, or (ii) in the event of litigation between
the parties, deliver the Documents to the clerk of the court in which said
litigation is pending, or (iii) take such affirmative steps as
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the Escrow Agent may, at the Escrow Agent's option, elect in order to terminate
the Escrow Agent's duties including, but not limited to, depositing the
Documents in any court which the Escrow Agent shall select in Connecticut, and
commencing an action for interpleader, the costs thereof to be borne by
whichever of Seller or Buyer is the losing party. Escrow Agent shall have the
right to represent RMI and RHC in any litigation arising out of this Agreement.
6. This Document may be executed in counterpart.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day above written.
CFT Restaurant Corp.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
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Rattlesnake of Milford, Inc.
By: /s/
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Rattlesnake Holding Corp.
By: /s/
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Individual and
for Land & Building Group
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and for Land &
Building Group
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, and for Land &
Building Group
Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
By:
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ASSETS SALE/PURCHASE AGREEMENT
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The parties to this Agreement (this "Agreement"), dated as of June ,
1996, are RATTLESNAKE OF MILFORD, INC., a Connecticut corporation (hereinafter
referred to as the "Buyer"), and CFT RESTAURANT CORP., a Connecticut corporation
(hereinafter referred to as the "Seller").
RECITALS OF FACT:
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WHEREAS, the Seller is the owner/operator of a restaurant located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Premises");
WHEREAS, the Seller desires to sell, and the Buyer desires to purchase,
certain assets of the Seller as more particularly described herein, upon the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Buyer and Seller hereby agree
as follows:
1. PURCHASE AND SALE OF ACQUIRED ASSETS
Subject to the terms and conditions set forth in this Agreement, at the
Closing referred to in Section 3 hereof, the Seller shall sell, assign, transfer
and deliver to Buyer, and the Buyer shall purchase, acquire and take assignment
from the Seller of, all of the fixtures, furnishings, equipment and personal
property owned by Seller and located on, or used in connection with, the
Premises including, without limitation, the items listed on EXHIBIT A attached
hereto and made a part hereof (hereinafter collectively called the "Acquired
Assets"), free and clear of any mortgage, pledge, lien, security interest,
encumbrance, restriction or charge of any kind ("Encumbrances"). In addition,
the Seller and the Buyer shall execute and deliver an assignment of lease with
respect to the Premises in substantially the form attached hereto as EXHIBIT B
and made a part hereof (the "Assignment of Lease") whereby the Seller shall
assign to the Buyer, and the Buyer shall assume from the Seller, all of the
Seller's right, title and interest in and under that certain lease dated July 7,
1988 (the "Lease") with respect to the Premises between Land & Building Group
("LBG"), as landlord, and the Seller, as tenant.
2. PURCHASE PRICE; PAYMENT; ADJUSTMENTS
2.1 PURCHASE PRICE. The aggregate consideration payable to the Seller
for the Acquired Assets and the Assignment of Lease (the
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"Purchase Price") shall equal Three Hundred Forty Five Thousand ($345,000.00)
Dollars, which shall be allocated as follows:
(a) $295,000.00 payable in respect of the Assignment of
Lease; and
(b) $50,000.00 payable in respect of the Acquired Assets.
2.2 PAYMENT. The Purchase Price shall be payable as follows:
(a) Within 3 days after the full execution and delivery of this
Agreement, $34,500.00 by check, subject to collection, of the Buyer to the order
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, as Escrow Agent (hereinafter called the "ESCROW AGENT"),
to be deposited in a Trustee (IOLTA) Account and held in escrow in accordance
with Section 10 of this Agreement. Such amount is hereinafter collectively
called the "DEPOSIT";
(b) upon the Closing (as such term is defined below), by the Buyer
executing and delivering to Seller a promissory note in the principal amount of
One Hundred Thousand ($100,000.00) Dollars in the form, and upon the terms,
covenants and conditions, set forth on EXHIBIT C annexed hereto and made a part
hereof (hereinafter called the "NOTE") ; and
(c) upon the Closing, an amount (hereinafter called the "BALANCE OF THE
PURCHASE PRICE") equal to the amount by which the Purchase Price exceeds the sum
of (i) the Deposit (including, without limitation, all interest on the Deposit,
which interest shall be credited against the Purchase Price at Closing), plus
(ii) the principal amount of the Note, by certified or bank check of Buyer or by
wire transfer of immediately available federal funds.
2.3 ADJUSTMENTS. The following items shall be prorated and adjusted
as of 11:59 p.m. of the day preceding the Closing Date:
(a) the fixed rent and all other charges payable under the Lease; and
(b) all other items typically adjusted between a purchaser and a seller
in a similar transaction in the Connecticut area.
In addition, the parties shall adjust all items of unopened liquor and
alcoholic beverage inventory at Seller's cost on a dollar for dollar basis (not
to exceed $15,000.00)
3. CLOSING
3.1 TIME AND PLACE. The closing of the transfer and delivery of the
documents and instruments necessary to consummate the purchases and sales
contemplated by this Agreement (the "Closing") shall be held at the offices of
Buyer, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Connecticut, at 10:00 a.m. on the date that
is forty (40) days following the date of this Agreement, or at such other time
and place as the Buyer and the Seller may agree subject to the
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provisions of Section 8.8 and the other terms and conditions of this Agreement.
The date on which the Closing is actually held hereunder is sometimes referred
to herein as the "Closing Date".
3.2 TRANSACTIONS AT CLOSING. At the Closing hereunder:
(a) The Buyer shall pay to the Seller the Balance of the Purchase Price
by (i) delivery of a certified bank check payable to the order of the Seller or
by wire transfer of immediately available federal funds, and (ii) by execution
and delivery to Seller of the Note. The Deposit shall be dispersed in accordance
with the provisions of Section 10 below.
(b) The Seller shall duly execute and deliver to the Buyer or its
nominee or nominees such bills of sale, certificates of title and other
instruments of assignment or transfer with respect to the Acquired Assets as the
Buyer may reasonably request and as may be necessary to vest in the Buyer good
record and marketable title to all of the Acquired Assets, including, but not
limited to, the General Assignment and ▇▇▇▇ of Sale substantially in the form
attached hereto as EXHIBIT D and made a part hereof.
(c) The Seller shall provide a certificate of good standing for the
Seller in a form provided by the Secretary of State of Connecticut dated as of a
date not more than ten (10) days prior to the Closing Date.
(d) The Seller shall execute and deliver to the Buyer, and the Buyer
shall execute and deliver to Seller, the Assignment of Lease.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer that the statements
contained in this Section 4 are true, correct and complete as of the date of
this Agreement and will be true, correct and complete as of the Closing Date as
if made on the Closing Date.
4.1 ORGANIZATION OF THE SELLER; AUTHORITY. The Seller is a corporation
duly authorized, validly existing and in good standing under the laws of the
State of Connecticut. The Seller has all requisite power and authority to own
and hold the Acquired Assets, to carry on its business and to own or lease and
operate its properties, including, without limitation, the Premises, as such
business is now conducted and such properties are now owned, leased or operated.
The Seller has all requisite power, authority and capacity to execute and
deliver this Agreement and all other agreements, documents and instruments
contemplated hereby and to carry out all actions required of it pursuant to the
terms of this Agreement.
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4.2 CORPORATE APPROVAL; BINDING EFFECT. The Seller has obtained all
necessary authorizations and approvals from its Board of Directors and
stockholders required for the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable against Seller in accordance with
its terms.
4.3 NONCONTRAVENTION. Neither the execution and delivery of this
Agreement by the Seller nor the consummation by the Seller of the transactions
contemplated hereby will constitute a violation of, or be in conflict with, or
constitute or create a default under, or result in the creation or imposition of
any Encumbrance upon any property of the Seller (including, without limitation,
any of the Acquired Assets) pursuant to (a) the charter documents or Bylaws of
the Seller, each as amended to date; (b) any agreement or commitment to which
the Seller is a party or by which the Seller or any of its properties
(including, without limitation, any of the Acquired Assets) is bound or to which
the Seller or any of such properties is subject; or (c) any statute or any
judgment, decree, order, regulation or rule of any court or governmental
authority.
4.4 GOVERNMENTAL CONSENT. No consent, approval or authorization of, or
registration, qualification of filing with, any governmental agency or authority
is required for the execution and delivered of this Agreement and all other
agreements, documents and instruments contemplated hereby.
4.5 TITLE TO ACQUIRED ASSETS. The Seller is the lawful owner of, has
good and valid record and marketable title to, and has the full right to sell,
convey, transfer, assign and deliver all of the Acquired Assets, without any
restrictions of any kind whatsoever. All of the Acquired Assets are entirely
free and clear of any Encumbrances other than the Permitted Encumbrances. At
Closing, the Seller will convey the Acquired Assets to the Buyer by bills of
sale and transfer effective to vest in the Buyer, and the Buyer will have, good
and valid record and marketable title to all of the Acquired Assets, free and
clear of all Encumbrances.
4.6 THE LEASE; THE PREMISES. The Lease is in full force and effect and
neither LBG nor Seller is in default of any of their respective obligations
thereunder. Except for Seller, there are no tenants or other parties in
possession of any part of the Premises, and except for LBG there are no other
parties who have a right to possession of, or title to, any part of the
Premises. Seller is not aware of any pending or threatened condemnation or
similar proceeding affecting any part of the Premises. Except as set forth on
Schedule 4.6 hereto, there are no oral or written contracts, commitments,
understandings or agreements affecting the Premises.
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4.7 HAZARDOUS MATERIALS. To the best of Seller's knowledge, no toxic
material, pollutant, petroleum products, asbestos, hazardous waste or hazardous
substance of a kind or in a quantity prohibited or deemed unsafe under any law
or governmental rule or regulation and no hazardous or unsafe level of radon gas
(hereinafter collectively called "HAZARDOUS MATERIALS") are located upon or
within the Premises (or any portion thereof). To the best of Seller's knowledge,
the Premises have never been used for the storage, handling, manufacturing,
discharge or disposal of Hazardous Materials or for industrial purposes, and
there are not now, and there never have been, underground tanks for gasoline,
oil or any other liquid products within the Premises.
4.8 LITIGATION, ETC. No action, suit, proceeding or investigation is
pending or, to the knowledge of the Seller, threatened, relating to or affecting
the Premises or any of the Acquired Assets or relating to or affecting the
activities of the Seller carried on the Premises or with any of the Acquired
Assets, or that questions the validity of this Agreement or challenges any of
the transactions contemplated hereby, nor is there any basis for any such
action, suit, proceeding or investigation. The Seller is not aware of any
actions, suits, proceedings or claims affecting any part of the Premises, or
affecting Seller with respect to the ownership, occupancy, use or operation of
any part of the Premises pending or threatened in or before any court, agency,
commission or board. No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under Federal or State bankruptcy laws is pending or
threatened against, or contemplated by the Seller.
4.9 CONFORMITY TO LAW. To Seller's knowledge, the Seller has complied
with, and is in compliance with, (a) all laws, statutes, governmental
regulations and all judicial or administrative tribunal orders, judgments,
writs, injunctions, decrees or similar commands applicable to its business, the
Premises and all of the Acquired Assets (including, without limitation, any
labor, environmental, occupational health, zoning or other law, regulation or
ordinance), (b) all unwaived terms and provisions of all contracts, agreements
and indentures to which the Seller is a party, or by which the Seller or any of
the Acquired Assets is subject, and (c) its charter documents and Bylaws, each
as amended to date. The Seller has not committed, been charged with, or been
under investigation with respect to, or does there exist, any violation of any
provision of any federal, state or local law or administrative regulation in
respect of its business, the Premises or any of the Acquired Assets.
4.10 BOOKS AND RECORDS. All accounts, books, ledgers and official and
other records of whatsoever kind material to the Business have been fully,
properly and accurately kept and
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completed in all respects, and there are no material inaccuracies or
discrepancies of any kind contained or reflected therein, and collectively they
fairly present the financial position of the Seller. The Seller does not have
any of its records, systems, controls, data or information recorded, stored,
maintained, operated or otherwise wholly or partly dependent on or held by any
means (including any electronic, mechanical or photographic process, whether
computerized or not) which (including all means of access thereto and therefrom)
are not under the exclusive ownership and direct control of the Seller. The
Seller keeps its records and books of account in conformity with generally
accepted accounting principles.
4.11 RESTRICTIVE DOCUMENTS. The Seller is not subject to, or a party
to, any charter, bylaw, mortgage, lien, lease, license, permit, agreement,
contract, instrument, law, rule, ordinance, regulation, order, judgment or
decree, or any other restriction of any kind or character, which would prevent
consummation of the transactions contemplated by this Agreement or the
compliance by the Seller with the terms, conditions and provisions hereof.
4.12 CONTRACTS AND AGREEMENTS. There are no service or other contracts
or agreements affecting Seller, the Acquired Assets, the Lease or the Premises
which will be binding upon or assumed by Buyer including, without limitation,
any employment or union agreements or obligations.
4.13 BROKERS. The Seller acknowledges that no broker or finder was
employed in connection with the transactions contemplated in this Agreement,
other than as set forth in Section 8.7 below.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER
5.1 ORGANIZATION AND GOOD STANDING OF BUYER. The Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Connecticut. The Buyer has all requisite power, authority and capacity
to execute and deliver this Agreement and all other agreements, documents and
instruments contemplated hereby and to carry out all actions required of it
pursuant to the terms of this Agreement.
5.2 CORPORATE APPROVAL; BINDING EFFECT. The Buyer has obtained all
necessary authorizations and approvals from its Board of Directors and
stockholders required for the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Buyer and constitutes the legal, valid and
binding obligation of the Buyer, enforceable against the Buyer in accordance
with its terms.
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5.3 ENVIRONMENTAL REVIEW OF PREMISES. The Buyer acknowledges that prior
to the execution of this Agreement it has had the opportunity to have an
environmental inspection or Phase I environmental audit conducted on the
Premises.
5.4 BROKERS. The Buyer acknowledges that no broker or finder was
employed in connection with the transactions contemplated in this Agreement,
other than as set forth in Section 8.7 below.
6. INDEMNIFICATION
6.1 INDEMNIFICATION BY SELLER. Seller shall defend, indemnify and hold
the Buyer harmless from and against any taxes, penalties, interest, claims,
suits, damages, liabilities, costs and other expenses, including, without
limitation, reasonable attorneys' fees and litigation costs, experts' fees and
house counsel expenses suffered or incurred by the Buyer as a result of the
inaccuracy of any representation and/or warranty contained in this Agreement or
the inaccuracy of any instrument, certification or affidavit executed pursuant
to this Agreement. The representations, warranties, covenants and agreements
made by Seller in this Agreement shall be true and correct as of the Closing and
shall survive closing for a period of one (1) year.
6.2 INDEMNIFICATION BY BUYER. The Buyer shall defend, indemnify and
hold Seller harmless from and against any taxes, penalties, interest, claims,
suits, damages, liabilities, costs and other expenses, including, without
limitation, reasonable attorneys' fees and litigation costs, experts' fees and
house counsel expenses suffered or incurred by Seller as a result of the
inaccuracy of any representation and/or warranty contained in this Agreement or
the inaccuracy of any instrument, certification or affidavit executed pursuant
to this Agreement. The representations, warranties, covenants and agreements
made by the Buyer in this Agreement shall be true and correct as of the Closing
and shall survive closing for a period of one (1) year.
7. CONDUCT OF BUSINESS BY SELLER PENDING CLOSING
7.1 CARRY ON IN REGULAR COURSE. The Seller agrees to conduct its
business in the ordinary course of business and shall maintain the Acquired
Assets and the Premises in good operating condition and repair, and make all
necessary renewals, additions and replacements thereon, and shall carry on its
respective business diligently and substantially in the same manner as
heretofore conducted. Without limiting the immediately preceding sentence,
pending the closing Date, the Seller will not permit the Premises or any of the
Acquired Assets to be subjected to any Encumbrance, will not permit to be sold,
transferred or otherwise disposed of
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any of the Acquired Assets, and will not agree, whether or not in writing, to do
any of the foregoing.
7.2 EXCLUSIVE DEALING. The Seller shall not, directly or indirectly,
encourage, initiate or engage in discussions or negotiations with, or provide
any information to, any corporation, partnership, person or other entity or
group, other than the Buyer and its representatives, concerning any purchase of
Seller's business or any of the Acquired Assets.
7.3 NOTIFICATIONS BY SELLER. The Seller shall promptly advise Buyer in
writing of any facts of which the Seller becomes aware indicating the inaccuracy
of any of the representations or warranties of the Seller contained in this
Agreement, and the Seller shall promptly provide the Buyer with copies of any
written notices which Seller gives or receives relating to the Premises
including, without limitation, any notice received from or given to LBG.
7.4 MAINTENANCE OF PROPERTY. The Seller shall cause the Premises to be
kept in its present physical condition, and shall not suffer or permit any
excavation or waste upon the Premises. The Seller shall fully and timely perform
all of its obligations under the Lease and maintain the same in full force and
effect prior to Closing. The Seller shall pay all taxes and assessments imposed
against the Premises in a timely manner.
8. OTHER COVENANTS AND AGREEMENTS
8.1 CONFIDENTIAL INFORMATION. Any and all non-public information
disclosed by the Buyer to the Seller or by the Seller to the Buyer as a result
of the negotiations leading to the execution of this Agreement, or in
furtherance thereof, shall remain confidential, except to the extent that the
Buyer in its reasonable judgment, must disclose any such information to its
advisers and consultants, or to banks, venture capitalists and other
institutional lenders or investors in the process of procuring the loan or
investment of funds for the purchase contemplated herein. If the closing does
not take place for any reason, each of the Seller and the Buyer agrees not to
further divulge or disclose or use for its benefit or purposes any such
information at any time in the future unless it has otherwise become public. The
information intended to be protected shall include but not be limited to,
financial information and customer and supplier lists, and anything else having
an economic or pecuniary benefit to the Buyer or the Seller, respectively.
8.2 EMPLOYEE MATTERS. The Seller shall pay on or before the Closing
Date, all bonus, profit-sharing, severance, pension, vacation, personal and sick
day and other amounts owing and accrued
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as of such date relating to the Seller's employees and/or consultants and in no
event shall any liability for any such amounts be or be deemed to be assumed by
the Buyer. The Buyer may offer employment to some or all employees of Seller
employed on the Closing Date, as it may determine in its sole discretion, upon
such terms and conditions as it may determine in its sole discretion. It is
understood that any such offer of employment shall be for no fixed duration and
shall be terminable at the will of the Buyer and each such employee.
8.3 EXPENSES. All expenses of the preparation, execution and
consummation of this Agreement and of the transactions contemplated hereby,
including, without limitation, attorneys', accountants' and outside advisers'
fees and disbursements, shall be borne by the party incurring such expenses. In
addition, the Seller shall pay all taxes imposed with respect to this
transaction including, but not limited to, any sales taxes imposed upon the sale
of the Acquired Assets and the Assignment of Lease.
8.4 RISK OF LOSS. The risk of any loss, damage or destruction to the
Premises and the Acquired Assets from fire or other casualty or cause shall be
borne by the Seller at all times prior to the Closing.
8.5 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants hereto contained in this Agreement or
otherwise made in writing in connection with the transactions contemplated
hereby shall survive the Closing (for a period of one (1) year) and any
investigation at any time made by or on behalf of the parties hereto. If either
party shall have breached any of its representations and warranties or any
other term of this Agreement, such party shall be liable to the non-breaching
party for the fees and expenses of counsel to the non-breaching party in any
litigation arising out of such breach.
8.6 PUBLIC STATEMENTS OR RELEASES. The parties hereto each agree that
prior to the Closing no party to this Agreement will make, issue or release any
public announcement, statement or acknowledgment of the existence of the
transactions provided for herein without first obtaining the consent of the
other parties hereto. Nothing contained in this Section 8.6 shall prevent any
party from making such public announcements as such party may consider necessary
in order to satisfy such party's legal or contractual obligations.
8.7 BROKER/REALTORS FEES. The Seller and Buyer each represent and state
that the only broker/agent due any commission is ▇▇▇▇▇▇▇▇▇ Realty, Inc. and that
any fees due shall be paid by Rattlesnake Holding Company. The Seller and the
Buyer mutually agree to indemnify, defend and hold each other harmless from and
against any and all claims, suits, liabilities, damages, costs and
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expenses (including, without limitation, the reasonable attorneys' fees and
costs of suit) incurred by such party to be indemnified hereunder in the event
the other party breaches its representation contained in this Section. This
Section shall survive the Closing or any termination of this Agreement.
8.8 CONDITIONS TO CLOSING. Buyer's obligation to pay the Balance of the
Purchase Price and otherwise close and consummate the transactions contemplated
by this Agreement is contingent upon the following:
(a) The representations and warranties of the Seller set forth in
Section 4 and elsewhere in this Agreement shall be true, complete and correct as
of the Closing Date as if made on such date and Seller shall have delivered to
the Buyer a certificate of its President dated the Closing Date certifying to
that effect;
(b) The Seller shall have delivered to Buyer a fully executed estoppel
certificate (hereinafter called the "ESTOPPEL") from LBG in the form annexed
hereto as EXHIBIT E and made a part hereof;
(c) LBG and the Buyer shall have entered into the First Amendment and
Restated Lease in the form attached hereto as EXHIBIT F and made a part hereof;
(d) Seller shall have delivered to the Buyer (i) a non-disturbance
agreement from ___________ , the holder of the existing mortgage affecting the
Premises dated ___________ in the original principal amount of $________ (the
"Mortgage"), and (ii) the unconditional consent of such mortgagee to (x) the
Assignment of the Lease and the sale of the Acquired Assets to Buyer and the
other transactions provided for hereunder, and (y) the alterations to the
Premises necessary or desirable for Buyer to retrofit the Premises for the
operation of a Rattlesnake restaurant, to the extent such consent is required
under the provisions of the Mortgage. Seller represents that the Mortgage is the
only mortgage affecting the Premises, and that the Lease is the only lease
affecting the Premises; and
(e) Buyer shall have obtained all permits, licenses and approvals
necessary to permit Buyer to operate its business on the Premises (including,
without limitation, a liquor license) and to retrofit such Premises for the
operation of a Rattlesnake restaurant. Buyer agrees to make prompt application
for all of the foregoing.
If the foregoing contingencies have not been satisfied on or before the date
that is forty (40) days after the date of this Agreement, either Seller or Buyer
may terminate this Agreement by giving written notice to the other, in which
event the Deposit shall promptly be returned to Buyer. Notwithstanding the
foregoing,
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however, if Seller shall exercise its right to terminate this Agreement after
such fortieth (40th) day as aforesaid, Buyer shall have the right, within five
(5) days after Seller's termination notice is given, to countermand Seller's
termination notice, in which event this Agreement shall continue in full force
and effect, Buyer shall be deemed to have waived the foregoing contingencies,
and the Closing Date shall occur within five (5) days after Buyer's countermand
notice has been given.
9. GENERAL
9.1 NOTICES. All notices, demands and other communications hereunder
shall be in writing and shall be made by hand delivery, first-class mail
(registered or certified, return receipt requested, postage prepaid), or
reputable national overnight air courier (e.g. Federal Express), addressed as
follows:
(a) If to the Seller, to:
---------------------
CFT Restaurant Corp.
c/o Mr. ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a Copy Sent Contemporaneously to:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(b) If to the Buyer. to:
--------------------
Rattlesnake of Milford, Inc.
c/o Rattlesnake Holding Corp.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a Copy Sent Contemporaneously to:
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or to such other address as the party receiving such notice shall have properly
designated by notice to the other party hereto in accordance with this Section
9.1. Notices may be given by a party's attorney.
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15
Each such notice shall be deemed given at the time delivered by hand,
if personally delivered; five (5) business days after being deposited in the
mail, postage prepaid, if mailed; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
9.2 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties, supersedes all prior agreements and understandings relating to
the subject matter hereof and shall not be amended except by a written
instrument hereafter signed by all of the parties hereto.
9.3 GOVERNING LAW. The validity and construction of this Agreement
shall be governed by the internal substantive laws of the State of Connecticut.
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon inure
to the benefit of the heirs and successors of each of the parties. Neither this
Agreement nor the obligations of any party hereunder shall be assignable or
transferable by such party without the prior written consent of the other party
hereto; PROVIDED, HOWEVER, that nothing contained in this Section 9.4 shall
prevent the Buyer, without the consent of the Seller, from transferring or
assigning this Agreement or its rights or obligations hereunder to (a) another
entity controlling, under the control of or under common control with the Buyer,
and/or (b) to its lenders as security.
9.5 NO IMPLIED RIGHTS OR REMEDIES. Except as otherwise expressly
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any person, firm or corporation, other than
the Seller and the Buyer and their respective shareholders, any rights or
remedies under or by reason of this Agreement.
9.6 AMENDMENTS. This Agreement may not be changed orally, but only by
an agreement in writing signed by the Seller and the Buyer.
9.7 FURTHER ASSURANCES, ETC. Each party shall, from time to time,
execute, acknowledge and deliver such further instruments, and perform such
additional acts, as the other party may reasonably request in order to
effectuate the intent of this Agreement. Nothing contained in this Agreement
shall be deemed to create any rights or obligations of partnership, joint
venture or similar association between the Seller and the Buyer.
9.8 MISCELLANEOUS. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or
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provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforceable to the fullest
extent permitted by law. The captions in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Agreement or the scope or content of any of its provisions.
10. ESCROW PROVISIONS
10.1 ESCROW DEPOSIT. The Deposit shall be held by the Escrow Agent, in
trust, on the terms hereinafter set forth and subject to the respective rights
of the parties as to the payment of the Deposit as set forth elsewhere in this
Agreement.
10.2 DEPOSIT IN ACCOUNT. The Escrow Agent shall, at the direction of
the Buyer, deposit the Deposit in one or more interest-bearing accounts in a
commercial bank in Connecticut.
10.3 DELIVERY OF DEPOSIT. The Escrow Agent will deliver the Deposit to
Seller or to Buyer, as the case may be, under the following conditions:
(a) to Seller on the Closing Date in the event a Closing shall occur
pursuant to this Agreement; or
(b) to Seller upon receipt of written demand therefor (hereinafter
called "SELLER'S DEMAND FOR DEPOSIT"), stating that the Buyer has failed to pay
the Balance of the Purchase Price in accordance with the terms of this
Agreement, or that Buyer has otherwise breached or defaulted in any of its
material obligations under this Agreement, and the facts and circumstances
underlying such default; PROVIDED, HOWEVER, that the Escrow Agent shall not
honor such demand until at least five (5) days after the Escrow Agent shall have
delivered a copy of Seller's Demand for Deposit to Buyer in accordance with the
provisions of Section 10.4 below, nor thereafter if the Escrow Agent shall have
received a Notice of Objection (as such term is defined in Section 10.4 below)
from Buyer within such five (5) day period; or
(c) to Buyer upon receipt of written demand therefor (hereinafter
called "BUYER'S DEMAND FOR DEPOSIT") stating that this Agreement has been
terminated in accordance with the provisions hereof, or that any of Seller's
representations or warranties are not true and correct in any material respect,
or that Seller has otherwise breached or defaulted in any of its obligations
under this Agreement, and the facts and circumstances underlying such default;
PROVIDED, HOWEVER, that the Escrow Agent shall not honor such demand until at
least five (5) days after the Escrow Agent shall have delivered a copy of
Buyer's Demand for Deposit to Seller
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in accordance with the provisions of Section 10.4 below, nor thereafter if the
Escrow Agent shall have received a Notice of Objection from Seller within such
five (5) period.
10.4 Notice of Objection.
--------------------
(a) Within two (2) business days following delivery to Escrow Agent of
Seller's Demand for Deposit or Buyer's Demand for Deposit, as the case may be,
the Escrow Agent shall deliver a copy thereof to the other party as provided in
this Section 10. The other party shall have the right to object to the delivery
of the Deposit by sending written notice (hereinafter called a "NOTICE OF
OBJECTION") of such objection to the Escrow Agent, which Notice of Objection
shall be deemed null and void and ineffective if such Notice of Objection is not
received by the Escrow Agent within the time periods prescribed in Section 10.3
above. Such notice shall set forth the basis for objecting to the delivery of
the Deposit. Upon receipt of a Notice of Objection, the Escrow Agent shall
promptly send a copy thereof to the party who sent the Demand for Deposit.
(b) In the event the Escrow Agent shall have received a Notice of
Objection within the time period prescribed in Section 10.4(a), the Escrow Agent
shall (i) continue to hold the Deposit until the Escrow Agent has received
written notice from both Seller and Buyer directing the disbursement of the
Deposit, in which case the Escrow Agent shall then disburse the Deposit in
accordance with such direction, or (ii) in the event of litigation between
Seller and Buyer, deliver the Deposit to the clerk of the court in which said
litigation is pending, or (iii) take such affirmative steps as the Escrow Agent
may, at the Escrow Agent's option, elect in order to terminate the Escrow
Agent's duties including, but not limited to, depositing the Deposit in any
court which the Escrow Agent shall select in Connecticut, and commencing an
action for interpleader, the costs thereof to be borne by whichever of SelLer or
Buyer is the losing party.
10.5 LIABILITY OF ESCROW AGENT. It is agreed that the duties of the
Escrow Agent are only as herein specifically provided, and subject to the
provisions of this Section, are purely ministerial in nature, and the Escrow
Agent shall incur no liability whatsoever except for willful misconduct or gross
negligence, as long as the Escrow Agent has acted in good faith. Seller and
Buyer each release the Escrow Agent from any act done or omitted to be done by
the Escrow Agent in good faith in the performance of its duties hereunder.
10.6 INDEMNIFICATION OF ESCROW AGENT. The Escrow Agent is acting as a
stakeholder only with respect to the Deposit. Seller and Buyer each agree,
jointly and severally, to fully indemnify and hold the Escrow Agent harmless
from and against all liabilities, damages, costs and expenses (including,
without limitation,
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reasonable attorneys fees) incurred by the Escrow Agent with respect to the
performance of its duties hereunder. Upon making delivery of the Deposit in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
10.7 EXECUTION OF AGREEMENT BY ESCROW AGENT. The Escrow Agent has
executed this Agreement in order to confirm that the Escrow Agent is holding and
will hold the Deposit in escrow, pursuant to the provisions hereof.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed and delivered by
their respective duly authorized officers, as an instrument under seal, as of
the date and year first above written.
IN THE PRESENCE OF: BUYER
RATTLESNAKE OF MILFORD, INC.
BY:
------------------------ --------------------------
------------------------
SELLER
CFT RESTAURANT CORP.
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------ --------------------------
Section 10 agreed to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, AS ESCROW AGENT
By:
---------------------
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed and delivered by
their respective duly authorized officers, as an instrument under seal, as of
the date and year first above written.
IN THE PRESENCE OF: BUYER
RATTLESNAKE OF MILFORD, INC.
BY:
------------------------ ------------------------------
------------------------
SELLER
CFT RESTAURANT CORP.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
------------------------ -------------------------------
Section 10 agreed to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, AS ESCROW AGENT
By:
---------------------
20
EXHIBIT B
ASSIGNMENT OF LEASE
-------------------
THIS ASSIGNMENT OF LEASE ("Assignment") dated this __ day of June,
1996, made by CFT RESTAURANT CORP., a Connecticut Corporation having an address
c/o Mr. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
"Assignor") in favor of RATTLESNAKE OF MILFORD, INC., a Connecticut Corporation
having an address at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter "Assignee").
FOR AND IN CONSIDERATION of Ten ($10.00) Dollars and other good and
valuable consideration paid by Assignee to Assignor, the receipt and sufficiency
of which is acknowledged, Assignor hereby assigns, sets over and transfers unto
Assignee all of its right, title and interest in and to that certain lease dated
July 7, 1988 (the "Lease") made between Land and Building Group, as Landlord,
and Assignor, as Tenant, subject to the covenants, conditions and limitations
therein contained.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns
forever from and after the date hereof.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
CFT RESTAURANT CORP.
By:
--------------------------
Name:
Title:
21
EXHIBIT C
PROMISSORY NOTE
$100,000.00 Stamford, Connecticut
_______________, 1996
FOR VALUE RECEIVED, the undersigned, RATTLESNAKE OF MILFORD, INC., a
Connecticut corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
CFT RESTAURANT CORP., a Connecticut corporation (the "Lender"), the principal
sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) on __________, 2001 (the
"Maturity Date"), or such lesser amount as remains outstanding under this
Promissory Note on the Maturity Date.
The Borrower may prepay all or any part of the principal of this
Promissory Note at any time prior to the Maturity Date without penalty or
premium. The Borrower shall pay interest on any and all amounts outstanding
under this Promissory Note at the rate of one percent above the prime lending
rate as announced by Citibank, N.A., New York from time to time. All accrued and
unpaid interest on this Promissory Note shall be payable semi-annually on the
last business day of [insert dates that are 6 and 12 months respectively after
date of Note] in each year, commencing [insert date that is 6 months after
date of Note], and on the Maturity Date. Both principal and interest are
payable in lawful money of the United States of America in same day funds at
the address of the Lender set forth in that certain Assets Sale/Purchase
Agreement dated as of _________, 1996 between Borrower and Lender.
Borrower also shall pay all costs associated with the enforcement and
collection of amounts due hereunder, including fees and expenses of Lender's
counsel.
Presentment, protest, notice of nonpayment and protest and all other
similar notices are hereby waived by the Borrower.
This Promissory Note shall be interpreted and the rights and
liabilities of the parties hereto determined in accordance with the laws of the
State of Connecticut applicable to agreements made and to be performed entirely
within such state. Whenever possible each provision of this Promissory Note
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Promissory Note shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Promissory Note. The
provisions of this
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Promissory Note shall be binding upon Borrower and its successors and assigns,
and shall inure to the benefit of Lender and its successors and assigns.
RATTLESNAKE OF MILFORD, INC.
By:__________________________
Name:
Title:
Rattlesnake Holding Corp. shall guaranty the full repayment of the above
Promissory Note.
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EXHIBIT D
GENERAL ASSIGNMENT AND ▇▇▇▇ OF SALE
KNOW ALL MEN BY THESE PRESENTS, that CFT RESTAURANT CORP., a
Connecticut Corporation having an address c/o Mr. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "Assignor") in consideration of
the sum of One Dollar ($1.00) and other good and valuable consideration paid,
the receipt of which is hereby acknowledged, does hereby convey and assign to
RATTLESNAKE OF MILFORD, INC., a Connecticut Corporation having an address at ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "Assignee"), its
successors and assigns, all of Seller's right, title and interest in and to all
fixtures, furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property located at, or otherwise used
in connection with the operation of, the premises commonly known as ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, including, without limitation, the items
described in EXHIBIT A annexed hereto.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns
forever.
IN WITNESS WHEREOF, the Assignor has caused these presents to be
executed this ____ day of June, 1996.
CFT RESTAURANT CORP.
ASSIGNOR
By:________________________
Name:
Title:
RATTLESNAKE OF MILFORD, INC.
ASSIGNEE
By:_________________________
Name:
Title:
24
EXHIBIT E
LAND AND BUILDING GROUP
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
June , 1996
RATTLESNAKE OF MILFORD, INC.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the
"Premises")
------------------------------------------------
Dear Sir/Madam:
The undersigned ("LANDLORD"), being the landlord under that certain
lease dated July 7, 1988 (the "LEASE") between LAND AND BUILDING GROUP, as
landlord, and CFT RESTAURANT CORP. ("CFT"), as tenant, which Lease covers the
Premises, hereby certifies to RATTLESNAKE OF MILFORD, INC. as
successor-in-interest to CFT ("Rattlesnake"), with the understanding that
Rattlesnake is relying on the representations contained herein as a material
inducement for their accepting an assignment of the Lease:
1. The Lease constitutes the entire agreement between Landlord and CFT
and is unmodified and in full force and effect.
2. There are no defaults on the part of CFT or Landlord under the
Lease.
3. All net rent and additional rent and any other charges due to
Landlord under the Lease have been paid through the date hereof.
4. No actions, whether voluntary or otherwise, are pending against
Landlord under the bankruptcy laws of the United States or any State thereof.
Signed,
LANDLORD:
LAND AND BUILDING GROUP
By:____________________
Name:
Title: