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HomeMy WebLinkAboutAgreement between Amika and Tulga Demir AGREEMENT THIS AGREE:MENT, made and entered this /5 day of September, 2006, by and between Brilor, LLC, d/b/a Amika ("Seller"), a Florida limited liability company, and Tulga Demir or assignee ("Buyer"), at Miami-Dade County, Florida, and WHEREAS, the Seller is the sole owner of the business known as "Amika" ("Business") and has clear title, except as herein described, to all tangible and intangible assets of said business and the right to sell and alienate them, and WHEREAS, the Seller is desirous to sell its rights and interest in the business assets owned by" Amika", located at 1532 Washington Avenue, Miami Beach, Florida 33139, including its name, telephone number, leasehold interest, state alcoholic beverage license No. 23-01638, series 4-COP, and all equipment, tangible personal property, furniture, chattels, inventory, tradename, copyrights, domain names, websites, trademarks, customer lists, fixtures, improvements and supplies more specifically described as per a list attached hereto as Exhibit "A," and WHEREAS, the Buyer is willing to purchase the aforementioned business, name, alcoholic beverage license, furniture, equipment, inventory, and all other assets subject to the terms of this agreement, and WHEREAS, the Seller warrants that the business and its assets are free from any lieus and encumbrances except as may be noted hereinafter, and that the business has no debts except as may be otherwise disclosed hereinafter, pursuant to paragraph No. 11 hereunder, and that there are no violations of any law, administrative rule, state statute, or county or municipal ordinance or code arising from the operation of the business, and that the carrying on of the present business at its present location is permissible under existing zoning laws, and e \1) tp NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the sum and sufficiency of which is hereby acknowledged, the parties hereto agree and covenant as follows: 1. Seller shall sell and Buyer shall purchase Seller's business assets, including the alcoholic beverage license presently issued to Seller, that being State Alcoholic Beverage LiceuseNo. 23-01638, Series 4-COP. 2. The consummation of the transaction contemplated hereby, the "Closing", shall take place at the law offices ofTERMlNELLO & TERMlNELLO, f.A., 2700 S.W. 37th Avenue, Miami, Florida, on or before thirty (30) days after the expiration of the due diligence period or notice of early acceptance of the transaction by the Buyer to the Seller, as provided for in Paragraph No.3. 3. The parties agree to a due diligence period from date of contract through 5:00 P.M. Friday, September 29, 2006. In the event that the Buyer, in its sole discretion, shall deem the Business assets unsuitable for any reason, then the Buyer may terminate this Agreement by written notice to the Seller's attorney sent by certified U.S. Mail, return receipt requested or via Federal Express, not later than 5:00 p.m. on the 20th day following the date of this Agreement. Upon termination of this Agreement within the above-stated time period, the Escrow Agent shall return the deposit to the Buyer whereupon both Seller and Buyer shall be released from all further obligations hereunder. 4. The purchasep'rice will be -2- w ,-1) ? the balance of the purchase price to be paid by attorney's trust account check at Closing. 5. It is hereby expressly agreed that this transaction is and shall be strictly contingent upon the Seller, at its cost, obtaining a new Lease or a valid assignment of the existing Lease in favor of the Buyer containing no additional terms or conditions that are not reasonably acceptable to the Buyer. 6. The Seller warrants that the annual license fee for the above described alcoholic beverage license has been or will timely be paid for the 2006-2007 license year. 7. The Seller further warrants that on the date of Closing, the above described alcoholic beverage license will be in good standing and readily transferrable to the Buyer upon the Buyer qualifying for same. The Seller will deliver, at time of Closing, standard closing documents including but not limited to an executed Bill of Sale Absolute to the Buyer, the appropriate Beverage Department transfer forms executed by the Seller, and a No-Lien Affidavit, in exchange for the consideration recited herein. The Seller will further execute and cooperate and do any acts necessary or required of it including the execution of all other documents necessary to be executed by the Seller for the completion of the transfer of the alcoholic beverage license to the Buyer, and agrees to cooperate in that process as necessary. 8. The Buyer shall be solely responsible for any transfer fees which may be charged by the Division of Alcoholic Beverages and Tobacco. In this regard, the Seller will provide the Buyer with true copi~s ~f the sales tax returns for the thirty-six (36) montlf' period immediately preceding the Closing, if applicable and further warrants that its sales tax account with the State of Florida, Department of Revenue, in addition to all other federal, state, county a'nd municipal taxes, if any, shall be current on the day of Closing and paid up- -3- ff) 1j) fP to-date. The Seller-shall cause its principals, Ken Percy and Larissa Percy, to personally guarantee all debt, including but not limited to Florida sales and use tax liability and surcharge liability, and all penalties and interest thereon. 9. From and after the date of this Agreement and until the earlier of the Closing date or the termination of this Agreement, Seller shall afford to Buyer and to Buyer's accountants, consultants, and other authorized representatives full access to the property, Business and books and records of the Seller pertaining to the foregoing and shall permit the Buyer and such representatives to conduct such examination of the Business as Buyer and such representatives shall deem necessary and advisable to familiarize the Buyer with the Business, property, books, records, condition and affairs of the Business, provided that the investigation shall not unreasonably interfere with the operations of the Seller. The Seller shall cause Seller's attorneys, accountants and employees to furnish such additional financial and operating data and other information relating to the Business as the Buyer shall from time to time reasonably request including but not limited to the Lease, all business records, the subject alcoholic beverage license being sold hereunder, the Seller's occupational license and certificate of use and occupancy and any participation and training records, etc. In the event that the Closing does not occur, the Buyer shall return all such written data and information then in its or its representative' possession, if any, to the Seller, without retaining copies thereof. 10. All equipment, furniture and fixtures, as perth~ inventory to ~e agreed upon prior to Closing, along with all county, municipal, federal and state licenses, including but not limited to State Alcoholic Beverage License No. 23-01638, Series 4-COP, are included in this transaction as are any and all existing assigns as well as any right the Seller may have to the trade name -4- 0)~ and telephone number of the business. All personalty shall be conveyed to the Buyer by an absolute bill of sale setting forth such personalty with specificity. The Seller warrants and represents that all of the to be listed assets are located in the above described business, that none of the listed assets shall be removed from the location without the written consent of the Buyer, and that all of the equipment, furniture, fixtures and supplies included will be in the same condition as agreed upon by the parties, at the conclusion of the due diligence period, except for normal wear and tear, and paid for in full, with no liens and no debts, on the date of the Closing. 11. Seller further agrees to furnish Buyer with a list of creditors, if any, by way of sworn affidavit, fifteen (15) days before the Closing, containing the address of the creditor and the amount due. Seller further agrees to furnish the Buyer, at Closing, an affidavit that it is not a party in any judgment that may appear in the public records against any person or corporation with the same or similar names. -5- \& ~1) ~ 14.' As further assurance, the Buyer shall deposit an additional with the Escrow Agent prior to commencing the renovation. Said deposit shall be drawn down upon to finance all renovations, and any remaining deposit shall be credited towards the purchase price at the time of Closing. If Buyer defaults under the terms of this agreement after renovation begins, the Seller shall be entitled to retain less any amount the Escrow Agent can account as being paid towards renovation, as liquidated damages. a. Buyer shall, at some time before the end of the due diligence period, deliver to seller a "construction budget". If said budget is estimated Buyer shall deposit with Escrow Agent an amount in excess of said budget amount. 15. The parties agree that at the time the Buyer enters onto the premises to begin renovation before closing, as provided for in Paragraph 13 herein, he shall, from that date forward, be responsible for closing all existing and open buildingpennits, through the Buyer's building permit process. It will be Buyer's responsibility to obtain all necessary building permits; to perform all work in accordance with approved plans and specifications and according to all county and municipal code( s) in effect; to engage only licensed and insured contractors or individuals; and to close or otherwise dispose of all existing open pennits. 16. At Closing, in addition to the documents previously described above, the Seller shall execute and deliver to the Buyer titl~ to and warranties for the personal properties, assignments of other existing contracts, any applicable copies of satisfactions and any other instrument as may be necessary to transfer the business assets to the Buyers free and clear of alllieus and encumbrances other than noted herein. -6- iD (!!Jftf 17. The parties agree that in the event the Buyer defaults in complying with any of the terms and ,. conditions stated herein, the Seller may declare breach of this agreement and retain any actual deposit placed, as liquidated damages, as the parties agree that the amount of actual damages which the Seller would suffer cannot be ascertained with any degree of certainty. The parties further agree that in the event the Seller defaults in complying'with any of the " terms and conditions stated herein, any aforesaid deposits shall be returned to the Buyer on demand and the Buyer shall have the right to sue for specific performance and damages, in which event the Seller will pay the Buyer reasonable attomey's fees and court costs. 18. From the date of the final execution of this agreement until me Closing date, the Seller will refrain from undertaking any of the following activities: a. .:.voluntarily payor incur ~'~bliJtions or liabilities other than the obligations or liabilities incurred in the ordinary and usual course of business consistent with past business practice. b. mortgage, encumber, pledge or subject to lien any of the assets of the business. c. transfer any of its assets or cancel the lease or assign any indebtedness owed to it or any claims held by it except in the ordinary and usual course of business. d. make any material change in its insurance policies or in its contract agreements, licenses or leases or enter into any other agreement, license or lease not in the usual and ordinary course of business consistent with past business practices. e. take any action which would interfere with the ability of the Seller to perform pursuant to the terms of this agreement. 19. It is understood that all of the provisions, promises and covenants contained herein shall survive the Closing of this transaction and any of them may be enforced by either party subsequent to the date of the Closing. -7- fj 11) lP ,20. The terms and provisions contained herein shall, unless the context requires otherwise, have the meaning, and be construed, according to the Uniform Commercial Code of the State of Florida. The use of the masculine gender shall include the femiuine and the singular number shall include the plural and vice-versa. 21. This contract s~ll be binding between the parties hereto, their heirs, executors, admiuistrators and assigns. The parties agree that no representations are being made, either orally or in writing, respecting the past or future gross or net income. 22. The parties agree that this is a complete contract and no prior or simultaneous agreement is in existence. Any modification to this contract shall be made in writing with the ,same formalities as this contract. 23. The Seller assumes all risk ofloss due to fire or other casualty up to the time Buyer's entry to begin renovation In the event any such loss occurs prior to the date of Buyer's entry to begin renovation, then the Buyer shall have the right to terminate this contract, on written notice to Seller, and upon such termination there shall be no further liability on the part of the Seller or the Buyer hereunder, and the deposit placed herein shall be returned forthwith to the Buyer. a. Buyer shall pay a prorated amount of the insurance premium for the property from the date it enters said premises to begin renovation until the time of Closing. b. Buyer shall assumes all risk ofloss due to fire or other casualty during the period commencing with entry to begin renovation until the date of Closing. In the event any such loss occurs during the renovation period until the date of Closing, then the Buyer shall have the right to tenninate this contract, on written notice to Seller, and -8- ~ 11) ~ upon such termination there shall be no further liability on the part of the Seller or the Buyer hereunder, and the deposits placed herein shall be forfeited to the Seller. 24. The Seller shall cause it's principal, Larissa Percy, to personally have and hold harmless the Buyer from any liability, damages or claims arising out of any liability, damages or claims incurred by the Seller's business prior to the Buyer's entry to begin renovation, including but not limited to reasonable attorneys' fees and costs, and shall include any alleged wrongful or negligent acts of the Seller or his agents or employees, prior to the Buyer's entry to begin renovation. a. Buyer shall personally have and hold harmless the Seller from any liability, damages or claims arising out of any liability, damages or claims incurred by the Buyer during the period from entry to begin renovation until the date of Closing, including but not limited to reasonable attorneys' fees and costs, 3I)d shall include any alleged wrongful or negligent acts of the Buyer or his agents or employees, during the period from entry to begin renovation until the date of the Closing 25. In the event it is necessary for either party to seek enforcement of any provision and/or term of this agreement, then, in that event, the prevailing party shall be entitled to recover reasonable attorney's fees, costs and suit monies, at the pretrial, trial and appellate levels. Venue shall be in Miami-Dade County, Florida, for any litigation arising from this Agreement. . . 26. This contract shilll be governed by and construed under the laws of the State of Florida, and can be executed in duplicate, each counterpart ofwbich shall be regarded as an original for all purposes. -9- (9 'tl tp 27. It is hereby further agreed that the Closing of this transaction is and shall be contingent upon the Buyer being issued a temporary transfer of the alcoholic beverage license being sold hereunder by the Division of Alcoholic Beverages & Tobacco. . 28. The parties herein acknowledge that the Seller shall payany commission which becomes due and payable to any brokerregarding this transaction and shall be fully responsible for paying same and further will indemnify and hold harmless the Buyer from any liability arising thereto, including reasonable attorney's fees "and court costs. Specifically, Seller is responsible for paying Barclays a broker commission 29. Except as modified herein, the following items shall be apportioned as of midnight of the day preceding the Closing date. (a) rent, under the Lease (b) real estate taxes and ad valorem taxes to the extent payable by the tenant under the Lease (c) license prorations for the alcoholic beverage license being sold hereunder. New accounts for water and sewer, electricity, gas, and fuel as necessary, are to be opened by the Buyer, together will all required deposits. The Seller will close all such existing accounts and any deposits will thereby be returned to the Seller. Any errors or omissions in computing apportionments shall be corrected after the Closing. 30. Seller represents and warrants to Buyer as follows: a. Seller is a limited liability company duly authorized and validly existing under the laws of Florida and'is duly qualified to do business in Florida. Seller has full authority to conduct its business as now carried on, and to carry out and perform its undertakings and obligations as provided herein. The execution and delivery by Seller of this agreement and the consummation of the transactions contemplated herein have been duly authorized by the Board of Directors and Members of Seller 1"1) -10- ~ 'Jf and will not conflict with or breach any provision of the Articles of Organization or Bylaws of Seller. b. Seller is the owner of and has good and marketable title to the Assets, free of all liens, encumbrances, except as may be set forth herein. c. There are no violations of any law or govemmentalrule orregulation pending against Seller or the Assets. d. There are no judgments, liens, suits, actions, or proceedings pending or threatened or pending against Seller or the assets, except as may be noted hereinafter. e. Seller has not entered into, and the Assets are not subject to, an: (i) written or oral agreement for the employment of any employee of the business; or in respect of the Assets or the business (ii) contract with any labor union or guild; (iii) pension, profit- sharing, retirement, bonus, insurance, or similar plan with respect to any employee of the business; or (iv) similar contract or agreement affecting or relating to the Assets. f. At the time of the Closing, there will be no creditors of Seller and the Assets of the Seller shall not be subject to any claim or liability (contingent or otherwise) except as provided herein with respect to the Lease, and which creditors will be paid at Closing by the Seller. g. At Closing, the Lease will be in full force and effect without any default by the Seller hereunder; the Lease shall not have been modified or amended in any respect and there shall been no default by the Landlord under the Lease prior to or as of the date of Closing. Seller has not received any notice of any violation or investigation with respect to the business or any license or proceedings with respect to any such license and if Seller has it shall be cured prior to or as of the date of ClOSinf7i\ -11- ff ,1) f h. Seller has received no written notice from any governmental agency with respect to any hazardous material contamination of the Assets or with respect to any investigation, administrative order, consent, order, agreement, litigation or settlement with respect to hazardous material contamination that is in existence with respect to the Assets. As used herein "hazardous material" means any hazardous, toxic or dangerous waste, substance or material, as defined for purposes of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any other federal, state or local law, ordinance, rule or regulation applicable to the Assets. i. As of the Closing date, the property, which is subject to the Lease, has sufficient quantities for water, sewer, gas, electric, telephone and other utilities required to conduct the business as conducted prior to the closing date. J. Except as provided herein, there are no current subleases or other occupancy agreements in respect of the Lease by which any person or entity will have rights to possess all or any part of the Lease premises under the Lease. k. The building will be in the same condition as agreed upon by the parties, at the conclusion of the due diligence period, except for normal wear and tear. 1. The Seller does not know or have reason to know of any proposed change of any law, regulation, etc. which would adversely affect the operation of the business which is being sold herein, including but not limited to its current use as a nightclub with the right to sell and serve alcoholic beverages until 5:00 a.m. However, Buyer recognizes that state statutory and county and municipal zoning laws and municipal -12- ~'Thftf ordinances can change at any time which could make the operation of a nightclub impossible or difficult, or which could create insurmountable problems. 31. The Bill of Sale shall contain a covenant by Seller and Seller shall deliver an agreement by Ken Percy or Larissa Percy not to establish, open, be engaged in, nor in any manner whatsoever become interested, directly or indirectly, either as an employee, owner, partner, agent, shareholder, director, officer, or otherwise, in any business, trade or occupation, similar to the business conducted with the Assets sold thereunder for a period of two years from the Closing date, within Miami-Dade County, Florida. 32. Concurrently with the execution of this agreement, Buyer has delivered to Paglino & Degenhardt, P.A., having an address of2131 HollywoodBoulevard, Suite 307, Hollywood, Florida 33020, ("Escrow Agent"), Buyer's check' being the amount to be paid by Buyerupon the execution of this agreement (the "down payment"). The Seller agrees that the fact Buyer's counsel is acting as Escrow Agent for this transaction does not create a legal conflict and does not preclude Buyer's counsel from representing the Buyer in any litigation that may arise from this Agreement. Buyer and Seller both acknowledge that Seller's counsel, Louis J. Terminello, Esq., Terminello & Terminello, P.A., 2700 SW 37111 Avenue, Miami, Florida 33133, has represented Seller in the past and may represent Seller or Buyer future and this does not create a legal conflict. 33. All notices, demands and other communications required orpennitted to be given hereunder shall be in writing and shall be deemed to have been properly given if delivered by hand or by registered or certified mail, return receipt requested or via F ooeral Express, with postage prepaid, to Seller or Buyer, as the case may be, at such address as they may designate by -13- Q ~ if giving notice hereunder. Copies of all such notices, demands, and other communications simultaneously shall be given in the aforesaid manner to Buyer's attorney, Joseph Paglino, Esq., Paglino & Degenhardt, P.A., at 2131 Hollywood Boulevard, Suite 307, Hollywood, Florida 33020, and to Seller's attorney, Louis J. Tenninello, Esq., TERMlNELLO & TERMlNELLO, P.A., at 2700 SW 37 Avenue, Miami, Florida 33133. IN WITNESS WHEREOF, the parties hereto have executed this contract on the day and year .first above written. Signed, sealed and delivered in our presence: SELLER: BUYER ~~~\ , ( ESCROW AGENT: Paglino & Degenhardt, P A. gyV'> aglmo . N:'\Data_A~MMlKASALE TO DEMIR\conI.racl.9.11.06.wpd -14- Exhibit " A" Furniture, Fixtures and Equipment ofBrilor, LLC d/b/aAmika 2 full office computers (screens, towers, keyboards, Etc.) I brother mfc840D copy fax printer ADT monitoring alarm system 8 video camera surveillance system. 2 video monitors I pro video auto switch unit 1 office safe 10 office file cabinets 1 water cooler 3 at&t multi line office phones 7 full station POS system with touch screens and drawers 5 spare pinnacle printers 4 manual cash registers assorted office supplies 12 rope posts 5 tensile barrier posts 1 complete AVALON sound system .6 cdj 1000 4 turn tables I complete DMX with light jockey 4 full bar setups 9 bar workstations 4 ice makers 1 walk in cooler 2 in bar dishwashers 1 stand alone commercial dishwashers 1 washer and dryer unit 1 stand alone liquor two door refrigerator 1 stand alone liquor two door freezer 11 radio walkie talkies with chargers 40 couches 40 small service tables 1 complete LED lighting system . Ass!lrted drivers and lighting replacement parts A shit load of cups, glasses, carafes and champagne buckets.