EXHIBIT 2.6
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made March 29, 1995, by
and between FOOD FACTS, INC. ("Food Facts"), a Louisiana corporation, XXXXXX X.
XXXXXX, XXXXXXX XXXXXX, and XXXXXXX XXXXXX XXXXXX, the sole stockholders of
Food Facts (collectively referred to as "Seller"), and U. S. RESTAURANT
PROPERTIES OPERATING L. P. ("Buyer"), a Delaware limited partnership.
EXPLANATORY STATEMENT
Seller is engaged in the operation of three (3) Burger King restaurants
(the "Business") doing business in El Dorado (the "El Dorado location"), Camden
(the "Camden location"), and Magnolia (the "Magnolia location"), Arkansas,
hereinafter sometimes referred to as the "Business".
Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx Xxxxxx hold a franchise agreement from
Burger King authorizing them to operate a Burger King Restaurant at the El
Dorado location. Some of the personal property used as operating assets of the
El Dorado location are owned by Xxxxxx X. Xxxxxx, who has leased them to Food
Facts. The remainder of the personal property used as operating assets of the
El Dorado location are owned by Food Facts. The building at the El Dorado
location was originally leased by Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx from
Burger King Operating Limited Partnership. U. S. Restaurant Properties
Operating L. P. has acquired from Burger King Operating Limited Partnership all
of its rights under the lease agreement of the El Dorado location. Xxxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxx have subleased the building at the El Dorado
location to Food Facts. The parties desire to effect the sale to Buyer of
certain of the assets of Seller used in connection with operating the El Dorado
location, and for the Buyer and Seller to terminate the lease of the building at
the El Dorado location so that Buyer can operate the business at the El Dorado
location it owns.
Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx Xxxxxx hold a franchise agreement from
Burger King authorizing them to operate a Burger King Restaurant at the Camden
location. The land, building and some of the personal property used as
operating assets of the Camden location are owned by Xxxxxx X. Xxxxxx, who has
leased them to Food Facts. The remainder of the personal property used as
operating assets of the Camden location are owned by Food Facts. The parties
desire to effect the sale to Buyer of certain of the assets of Seller used in
connection with operating the Camden location, and for the Buyer to purchase the
land and the building at the Camden location from Xxxxxx X. Xxxxxx, in
accordance with this Agreement.
Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx Xxxxxx hold a franchise agreement from
Burger King authorizing them to operate a Burger King Restaurant at the Magnolia
location. The land upon which the Magnolia location sits is leased by S. Xxxx
Xxxxxx and Xxxxxxx Xxxxxx Xxxxxx from X. X. Xxxxxx
ASSET PURCHASE AGREEMENT - PAGE 1
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
and Xxxxx X. Xxxxxxx d/b/a University Plaza Shopping Center. S. Xxxx Xxxxxx
and Xxxxxxx Xxxxxx Xxxxxx constructed the building for the Magnolia location
on this leased land, and in turn leased the land and building to Food Facts.
Some of the personal property used as operating assets of the Magnolia
location are owned by Xxxxxx X. Xxxxxx, who has leased them to Food Facts.
The remainder of the personal property used as operating assets of the
Magnolia location are owned by Food Facts. The parties desire to effect the
sale to Buyer of certain of the assets of Seller used in connection with
operating the Magnolia location, and for the Buyer to purchase the building
at the Magnolia location from S. Xxxx Xxxxxx and Xxxxxxx Xxxxxx Xxxxxx, and
for the Buyer to enter into a lease of the Magnolia location directly with X.
X. Xxxxxx and Xxxxx X. Xxxxxxx d/b/a University Plaza Shopping Center.
ARTICLE I
PURCHASE AND SALE OF ASSETS
On the Closing, and upon the terms and subject to the conditions contained
herein, Seller shall sell, assign, transfer and deliver to the Buyer, and Buyer
shall purchase, accept and acquire from Seller by appropriate bills of sale,
assignments and other instruments acceptable to Buyer, the assets owned by
Seller related to the Business of the El Dorado, Camden and Magnolia locations
more specifically described below:
1.1 INVENTORY. All of Seller's inventory ("Inventory") on hand at the
date of the Closing.
1.2 FURNITURE, FIXTURES AND EQUIPMENT. All of the items of furniture,
fixtures and equipment and used in connection with the Business, which are
listed and described on Schedule 1.2 attached to this Agreement together with
such non-material additions and deletions as shall occur in the ordinary course
of business.
1.3 DECOR. All of the Items of Seating and Decor used in connection with
the Business, which are listed and described on Schedule 1.3 attached to this
Agreement together with such non-material additions and deletions as shall occur
in the ordinary course of business.
1.4 SIGN. Each of the Seller's signs used in connection with the Business
which are listed and described on Schedule 1.4.
1.5 CASH REGISTER. All of the Seller's cash registers used in connection
with the Business which are listed and described on Schedule 1.5.
1.6 PLAYGROUNDS. All of the Seller's playground equipment at the Camden
and Magnolia locations which are listed and described on Schedule 1.6.
ASSET PURCHASE AGREEMENT - PAGE 2
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
1.7 FRANCHISE AGREEMENT. All of Seller's interest in any Franchise
Agreement with Burger King for the El Dorado, Camden, and Magnolia locations.
1.8. LEASES AND SUBLEASES. All interests of Xxxxxx X. Xxxxxx, Xxxxxxx
Xxxxxx Xxxxxx and Food Facts in leases and subleases of personal property with
respect to the El Dorado, Camden, and Magnolia locations, and all interests of
Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx Xxxxxx and Food Facts in real property leases
and subleases in the El Dorado, Camden and Magnolia locations.
1.9. CAMDEN REAL ESTATE. Good and indefeasible title in fee simple to the
land in __________ County, Arkansas, described in Exhibit 7 (the "Camden Land"),
together with all rights and interests thereto, including Seller's right, title
and interest in and to all (i) adjacent streets, alleys, rights-of-way and any
adjacent strips or gores of real estate; and (ii) buildings, structures and
other improvements located on the Land (the "Camden Improvements"). The Camden
Land and Camden Improvements shall also include, without limitation all
additions and improvements to the real property not otherwise specifically
included in the Business Assets described in Article 1.1 hereof, including,
without limitation, fixtures, fittings, apparatus and other items of tangible
personal property and replacements thereof, if any, affixed or attached to or
used in connection with the operation, maintenance, or management of the Camden
location.
1.10. MAGNOLIA REAL ESTATE. All of Seller's interest in the Lease between
S. Xxxx Xxxxxx and Xxxxxxx Xxxxxx Xxxxxx from X. X. Xxxxxx and Xxxxx X. Xxxxxxx
d/b/a University Plaza Shopping Center (the "Magnolia Lease") and fee simple
title to the buildings, structures and any other improvements located on the
Magnolia Lease described in Exhibit 6 (the "Magnolia Improvements"). The
Magnolia Lease and Improvements shall also include without limitation all
additions and improvements to the real property not otherwise specifically
included in the Business Assets described in Article 1.1 hereof, including,
without limitation, fixtures, fittings, apparatus and other items of tangible
personal property and replacements thereof, if any, affixed or attached to or
used in connection with the operation, maintenance, or management of the
Magnolia location.
1.11 GOODWILL. All of the Seller's Goodwill associated with the El Dorado,
Camden, and Magnolia locations, including tradenames, trademarks and any other
items of intangible property used in the Business.
All of the assets described in Paragraph 1.1 through 1.11 are collectively
referred to as the "Purchased Assets".
ASSET PURCHASE AGREEMENT - PAGE 3
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
ARTICLE II
EXCLUDED ASSETS
This sale excludes all assets owned by Seller except those specifically
described in Article I.
ARTICLE III
EXCLUSION OF LIABILITIES
Except as specifically set forth on Schedule 3, the Purchased Assets are
not subject to any liability for money owed or any other claim, demand or
offset.
ARTICLE IV
PURCHASE PRICE
4.1 DETERMINATION OF PURCHASE PRICE. The purchase price ("Purchase
Price") for the Purchased Assets shall be $2,000,000.00, plus the value of the
saleable inventory on the date of closing, and subject to adjustment pursuant to
Article X.
4.2 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
among the Purchased Assets and among the various Sellers as set forth in
Schedule 4.2. Buyer shall have no responsibility for the allocation of the
Purchase Price among the Sellers or the payment of the Purchase Price to any of
the Sellers, and each Seller hereby waives any right or claim against the Buyer
with respect thereto.
4.3 PAYMENT OF THE PURCHASE PRICE. At Closing, the entire Purchase Price
shall be paid by Buyer to Seller in cash or by certified or bank cashier's check
immediately convertible into cash upon presentation to a bank reasonably
acceptable to Seller, or by wire transfer of such funds in accordance with
Seller's written instructions to Buyer.
ARTICLE V
RIGHT OF ENTRY, INSPECTION, TERMINATION
5.1 INSPECTION PERIOD. From the date hereof to the Closing Date (as
hereafter defined), Seller shall afford Buyer and its representatives a
continuing right to inspect, at reasonable hours, the Purchased Assets, and all
other documents or data pertaining to the Purchased Assets. During such period,
Seller shall provide Buyer with financial statements from the operation of the
Business. Buyer shall indemnify and hold Seller harmless from and against any
loss, claim or liability arising or resulting
ASSET PURCHASE AGREEMENT - PAGE 4
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
from the inspections made by Buyer. If for any reason Buyer is not satisfied
with the physical condition of the Purchased Assets or any matter in the
information provided to Buyer concerning the Purchased Assets, Buyer may
terminate this Agreement in accordance with Article 5.5 by delivering written
notice to Seller prior to 5:00 p.m. on the date that is forty-five (45) days
after the date of execution of this Agreement (such period, the "Inspection
Period").
5.2 XXXXXXX MONEY. Within three business days of the date both Buyer and
Seller execute and deliver this Agreement, Buyer shall deliver to Lawyer's Title
Insurance Company, Attn: Xxxxx XxXxxxxx (the "Title Insurer") $50.00 (the "Non-
Refundable Xxxxxxx Money") in consideration for this Agreement and the
Inspection Period. The Title Insurer shall immediately deliver the Non-
Refundable Xxxxxxx Money to Seller and the Non-Refundable Xxxxxxx Money shall be
retained by Seller in all events. In addition, Buyer shall deposit an
additional $60,000.00 with the Title Insurer and $40,000.00 with the Seller for
a total amount of $100,000.00, which shall constitute the xxxxxxx money
("Xxxxxxx Money"). Provided, however, that the $40,000.00 Xxxxxxx Money due to
Seller shall not be payable until such time that all rental payments due under
the lease agreement between Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx Xxxxxx and U. S.
Restaurant Properties Operating L. P. with respect to the El Dorado location
(the "El Dorado Lease") are current and Seller has executed any amendments to
the El Dorado Lease required by Buyer. The Title Insurer shall deposit its
$60,000.00 share of the Xxxxxxx Money in an interest bearing federally insured
account, and the term Xxxxxxx Money shall include any interest accrued on the
amount retained by the Title Insurer. The Title Insurer and the Seller shall
deliver the Xxxxxxx Money only in accordance with the terms of this Agreement,
however the Title Insurer shall have no liability for the disposition by the
Seller of its $40,000.00 share of the Xxxxxxx Money.
5.3. CLOSING. Except as extended pursuant to the provisions of this
Agreement or as otherwise agreed to by the parties, the closing ("Closing") of
the sale and purchase of the Purchased Assets shall take place at the offices of
Xxxxxxx, Xxxxxxx, Xxxxxx and Xxxxxx, P. A., 000 Xxxxx Xxxxxxxxxx, Xx Xxxxxx,
Xxxxxxxx 00000 at the later of (i) 15 days after the expiration of the
Inspection Period, or (ii) five (5) days following the satisfaction of the
conditions set forth in Section 7.4 hereof, provided that this Agreement shall
terminate in all events not later than ninety (90) days after execution of this
Agreement if the purchase and sale of the Purchased Assets is not consummated on
or before such date.
5.4 At the Closing, the Buyer shall be credited with the Xxxxxxx Money and
any interest thereon. If Buyer fails to consummate the purchase of the
Purchased Assets pursuant to this Agreement other than termination hereof
pursuant to the right granted to Buyer in articles 5.1, VI, VII and XIV, then
Seller as its sole and exclusive remedy shall have the right to terminate this
Agreement by delivering written notice to Buyer in which event Seller shall
retain Seller's share of the Xxxxxxx Money, and the Title Insurer shall deliver
to Seller, as liquidated damages, the Title Insurer's share of the Xxxxxxx Money
whereupon neither Seller or Buyer shall have any further rights or obligations
hereunder. Seller and Buyer hereby acknowledge and agree that they have
provided the provision for payment of liquidated damages because in the event of
a breach by Buyer, the actual damages incurred
ASSET PURCHASE AGREEMENT - PAGE 5
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
by Seller can reasonably expect to approximate the amount of liquidated damages
called for, and because the actual amount of such damages would be difficult, if
not impossible to accurately measure. If Seller fails to consummate the sale of
the Purchased Assets pursuant to this Agreement for any reason other than (i)
termination hereof by Buyer pursuant to Articles 5.1, VI, VII and XIV or (ii)
Buyer's failure to perform its obligations hereunder, Buyer shall have the right
as its sole and exclusive remedy to either (a) terminate this Agreement by
notifying Seller thereof in which event Seller and Title Insurer shall deliver
the Xxxxxxx Money to Buyer whereupon neither party shall have any further rights
or obligations hereunder or (b) enforce specific performance of the obligations
of Seller hereunder and/or seek damages for breach of this Agreement by Seller.
5.5 If Buyer terminates this Agreement pursuant to Articles 5.1, VI, VII
or XIV, Seller and Title Insurer shall deliver the Xxxxxxx Money to Buyer
whereupon neither party shall have any further rights or obligations hereunder.
5.6 If Seller fails or refuses to return all or any portion of the Xxxxxxx
Money Buyer has deposited with Seller within five (5) days after Seller has
received notification provided in Articles 5.4 or 5.5, Seller shall be in
default under this Agreement and under the El Dorado Lease, and Buyer shall be
entitled to exercise all remedies available at law to recover the Xxxxxxx Money
or as provided in the El Dorado Lease upon default. Xxxxxx X. Xxxxxx and
Xxxxxxx Xxxxxx Xxxxxx agree that this Agreement amends the El Dorado Lease and
shall execute such further documents to evidence such amendment as Buyer may
request.
ARTICLE VI
ACTIONS PRIOR TO CLOSING
6.1 APPROVAL OF TITLE. Seller shall deliver to Buyer a standard
coverage Preliminary Title Report within ten (10) days hereof issued by the
Title Insurer, which shows the state of the title of the Real Property at the
Camden and Magnolia location (the "Preliminary Title Report").
6.2 ELIMINATION OF UNAPPROVED EXCEPTIONS TO TITLE REPORT. If Buyer
specifically disapproves of one or more exceptions indicated in the Preliminary
Title Report, Seller may cure Buyer's disapproval by agreeing, in a written
notice delivered to Title Insurer within twenty (20) days after receipt of
Buyer's notice of disapproval, either to eliminate or cause the Title Insurer to
agree to insure over such exception(s) prior to the Closing. If Seller fails to
so remove or insure over each exception to which Buyer has objected prior to the
Closing, Buyer may elect to terminate this Agreement in accordance with the
provisions of Section 5.5 hereof.
ASSET PURCHASE AGREEMENT - PAGE 6
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE BUYER
The obligations of Buyer under this Agreement are, at the option of Buyer,
subject to the satisfaction of the following conditions:
7.1 COMPLIANCE. Seller fully complies with all of its obligations set
forth in this Agreement.
7.2 REPRESENTATIONS. The representations and warranties of Seller and
Stockholder contained in this Agreement shall be true, complete, and correct in
all material respects as of the date of this Agreement and at and as of the
Closing as though such representations and warranties were made at and as of the
Closing.
7.3 COVENANT NOT TO COMPETE. That simultaneously with payment of the
Purchase Price by Buyer, Seller shall have delivered to Buyer the Covenant Not
To Compete between Buyer and Stockholders of Seller in the form attached to this
Agreement as Exhibit 5, executed by stockholders of the Seller, and all other
documents and instruments requisite to vest in Buyer title to all of the
Purchased Assets.
7.4. FRANCHISE AGREEMENT AND MAGNOLIA LEASE. Buyer shall use its best
efforts to obtain the following agreements on or before the Closing Date:
a. An assignment of the Magnolia Lease to Buyer in form and content
satisfactory to Buyer; and
b. A Franchise Agreement from Burger King Corporation with respect
to the El Dorado, Camden and Magnolia locations in form and content satisfactory
to Buyer. If Buyer cannot obtain either of such Agreements prior to the Closing
Date, Buyer shall have the right to terminate this Agreement in accordance with
Article 5.5, by delivering written notice to Seller prior to the Closing Date.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are, at the option of Seller,
subject to the satisfaction of the following conditions:
ASSET PURCHASE AGREEMENT - PAGE 7
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
8.1 COMPLIANCE. Buyer fully complies with all of its obligations set forth
in this Agreement, including but not limited to payment of the Purchase Price
due at Closing.
8.2 REPRESENTATIONS. The representations and warranties of Buyer contained
in this Agreement shall be true, complete, and correct in all material respects
as of the date of this Agreement and at and as of the Closing as though such
representations and warranties were made at and as of the Closing.
ARTICLE IX
TRANSACTIONS AT CLOSING
9.1 DELIVERY BY SELLER. At the Closing, Food Facts and its Stockholders
will deliver to Buyer the following:
a. A Xxxx of Sale executed by Food Facts and Xxxxxx X. Xxxxxx,
substantially in the form attached to this Agreement as Exhibit 1;
b. A Warranty Deed for the Camden location in the form of Exhibit 2.
c. A Warranty Deed for the Magnolia location in the form of Exhibit 2.
d. The Affidavit regarding bulk transfers referred to in Article XII
below.
e. Such other documents or instruments as Buyer or its counsel may
reasonably require to effect the Closing and the transactions contemplated by
this Agreement.
9.2 DELIVERY BY BUYER. At Closing, Buyer shall deliver to Seller:
a. The Purchase Price in the manner required under this Agreement;
b. A resale certificate executed by Buyer, in form satisfactory to
Seller, exempting the Inventory purchased by Buyer from Seller from local sales
tax;
c. A release of Seller's obligation under the lease for the Magnolia
location in the form of Exhibit 3.
d. A release of Seller's obligation under the lease for the El
Dorado location in the form of Exhibit 4.
ASSET PURCHASE AGREEMENT - PAGE 8
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
e. Such other documents or instruments as Seller or its counsel may
reasonably require to effect Closing and the transactions contemplated by this
Agreement.
ARTICLE X
CLOSING ADJUSTMENTS
10.1 PRORATIONS OF OPERATING EXPENSES. All operating expenses for or
pertaining to the Purchased Assets, including but not limited to public utility
charges, charges pursuant to any service contracts, insurance, and all other
operating charges with respect to the Purchased Assets shall be prorated between
Buyer and Seller at the closing on the basis of a thirty (30) day month and as
if all charges covered thereby were uniformly incurred over the period for which
they are payable.
Seller shall pay for all deliveries and services rendered through the
Closing Date. Any supply or inventory items on order in the ordinary course of
business, but undelivered as of the Closing Date, shall be accepted by Buyer,
and the charges for the same shall be paid by Buyer directly to the supplier.
All cash in the cash registers of the Business on the Closing Date shall belong
to Buyer.
10.2 REAL ESTATE CLOSING COSTS. Seller and Buyer shall each pay one-half
(1/2) of all fees, charges or expenses of any closing agent and any revenue
stamp transfer fees. Seller shall pay all pest control inspection and report
fees and any fees, charges or expenses with respect to the policy of title
insurance described in Article VI of this Agreement. Buyer shall pay all survey
fees relating to the Real Property acquired by Buyer hereunder and all
recordation taxes, fees or charges payable as the result of the transactions
contemplated by this Agreement with respect to the sale of the Real Property,
but specifically excluding any sales and use taxes payable by Seller on account
of sales made by Seller prior to the Closing. The charges, costs and expenses
described in this Article 10.2 are collectively referred to as the "Real
Property Closing Costs."
10.3 PRORATIONS OF REAL ESTATE EXPENSES. The following items shall be
prorated as of the Closing on the basis or a thirty (30) day month and as if all
charges covered thereby were uniformly incurred over the period for which they
are payable:
(a) County, city and special district, if any, taxes and assessments
affecting the Real Property based on the most recent information available in
the office of the taxing entity.
(b) All other unpaid but accrued operating expenses for or pertaining
to the Real Property, including but not limited to public utility charges, and
all other operating charges with respect to the Real Property shall be prorated
between Buyer and Seller at the Closing.
ASSET PURCHASE AGREEMENT - PAGE 9
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
10.4 ERRORS. If an error is made in any Closing adjustment or if certain
adjustments are estimated to facilitate Closing, the parties agree to promptly
readjust such items when the correct information becomes available.
ARTICLE XI
REPRESENTATION AND WARRANTIES
Food Facts and its Stockholders, jointly and severally, represent and
warrant to Buyer as follows:
11.1 ORGANIZATION. Food Facts: (1) is a corporation duly organized,
validly existing and in good standing under the laws of Louisiana; (2) is
qualified to do business and is in good standing in every other state in which
it transacts business; and (3) has full corporate power and authority to own and
lease its properties used in connection with its business, as such properties
are now owned or leased, and to conduct its business as and where such business
is now conducted and in the manner such business is now conducted.
11.2 AUTHORIZATIONS. Food Facts and its Stockholders have full corporate
power and authority to enter into and carry out the transactions contemplated by
this Agreement. This Agreement is a valid and binding agreement of Food Facts
and its Stockholders, enforceable in accordance with its terms, and has been
duly authorized and approved by all necessary corporate and shareholder
approval.
11.3 STOCKHOLDER. Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx Xxxxxx and Xxxxxxx
Xxxxxx are the sole stockholders of Food Facts and no other person or firm has
any option, right, or interest in any issued or unissued stock of Seller.
11.4 CONDITION OF PURCHASED ASSETS. Seller will keep and maintain the
Purchased Assets in their "as is" physical condition on the date of this
Agreement (subject to reasonable wear and tear) and will deliver the Purchased
Assets to Buyer in such condition, subject, however, to Article XIV.
11.5 TITLE; INDEBTEDNESS. Except for secured indebtedness to First
National Bank of Magnolia, Magnolia, Arkansas in the original principal amount
of $335,807.79, with an approximate unpaid principal balance of $____________
and the secured indebtedness to First Financial Bank, El Dorado, Arkansas in the
original principal amount of $500,007.60, with an approximate unpaid principal
balance of $___________ , Seller owns all or the Purchased Assets free and clear
of all liens, restrictions, charges, and encumbrances. These debts will be paid
on the Closing Date.
11.6 TITLE. Seller has good and marketable title to all of the real estate
in Camden and to the ground lease in Magnolia that those two restaurants are
being operated from; and that they have a good
ASSET PURCHASE AGREEMENT - PAGE 10
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
and marketable lease to the land and building in El Dorado from which that
restaurant is being operated, subject to the indebtedness referred to in the
preceding Article 11.5.
11.7 LITIGATION. Seller has no knowledge of any litigation, or possible
litigation, or of claims of any kind, or of any facts or circumstances which
might in any way adversely affect the Seller or their operations, including
regulations of Environmental Protection Agency and the disposal of grease,
hazardous waste, petroleum, any underground storage tanks or any other hazardous
material, or regulations of the Americans Disability Act providing for access to
the premises, dining areas and bathroom areas.
11.8 GOVERNMENTAL AND OTHER COMPLIANCE. Seller shall at all times comply
with any and all applicable laws, rules, or regulations that may in any way
govern or affect the performance or its obligations under this Agreement, or
with which compliance may be required to properly effect the transactions
contemplated in this Agreement.
11.9 COMPLIANCE WITH CONTRACTS. Seller has no contracts of any kind, such
as for waste disposal, termite protection, cleaning services, paper supplies,
food supplies which will survive the Closing Date.
11.10 EMPLOYMENT OBLIGATIONS. Seller is not a party to any employment
contract or agreement, labor union agreement or agreement for the future
purchases of materials, supplies or equipment.
11.11 REAL PROPERTY IMPROVEMENTS. The location, construction, occupancy,
operation and use of the real property improvements at the Camden and Magnolia
locations (the "Real Property") do not violate any applicable law, statue,
ordinance, rule, regulation, order or determination of any governmental
authority or any board of fire underwriters (or other body exercising similar
functions) or any restrictive covenant or deed restriction or zoning ordinance
or classification affecting such Real Property improvements including, without
limitation, all building codes, flood disaster laws and health and environmental
laws (hereinafter the "Applicable Laws").
11.12 CHANGES IN APPLICABLE LAWS. Seller has no information or knowledge of
any change contemplated in any of the Applicable Laws or any judicial or
administrative action or any action by adjacent land owners or any fact or
conditions relating to the Real Property which would adversely affect, prevent
or limit the use of such Real Property in the Business.
11.13 FLOOD PLAIN. No portion of the Real Property lies within any 100-year
flood plain.
11.14 FINANCIAL INFORMATION. Attached hereto as Exhibit 7 is the profit and
loss statement of the Business for the 12-month period ending December 31, 1994,
separately identifying the sales volumes and operating expenses of the El
Dorado, Camden and Magnolia locations (the "Year-End
ASSET PURCHASE AGREEMENT - PAGE 11
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
Financials"). Additionally Seller shall provide Buyer with similar financial
information for the three month period ending March 31, 1995 on or before
April 10, 1995 (the "Quarterly Financials"). The Year End Financials and the
Quarterly Financials are and will be true, correct, accurate and complete and
will not omit to state any fact or condition, the omission of which makes any
of such statements misleading.
11.15 REPRESENTATIONS TRUE AS OF CLOSING. The foregoing representations
and warranties shall be deemed to be restated by Seller at the time of the
Closing of this sale. The representations and warranties are material, and
are made to induce Buyer to make the purchase provided for herein, and Buyer
has relied on the truth and accuracy of said representations in signing this
contract.
ARTICLE XII
BUYER'S REPRESENTATIONS AND WARRANTIES
The Buyer represents and warrants to Seller as follows:
12.1 ORGANIZATION. Buyer is a limited partnership, validly existing, and
in good standing under the laws of Delaware.
12.2 AUTHORIZATIONS. Buyer has full power and authority to enter into and
carry out the transactions contemplated by this Agreement. This Agreement
constitutes a valid and binding legal obligation of Buyer enforceable in
accordance with its terms.
12.3 NO VIOLATION. The execution, delivery, and performance of this
Agreement by Buyer does not and will not conflict with or result in any breach
or default of any of the terms or provisions of any material agreement to which
Buyer is a party or by which any of Buyer's assets or property is bound, or
violate any statutes or law or any judgements, decree, order, regulation, or
rule of any court or governmental authority.
12.4 SUFFICIENT FUNDS. Buyer has available funds sufficient to consummate
the purchase contemplated by this Agreement. Buyer agrees to provide Seller, at
Seller's request, with evidence reasonably satisfactory to Seller of such
financial capability.
12.5 COMPLETENESS OF STATEMENTS. No representation by Buyer in this
Agreement or in any statement (including the Year-End and Quarterly Financials),
exhibit, schedule, certificate document, or instrument provided to Seller
pursuant to or in connection with this Agreement and the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary to make any such statements
misleading.
ASSET PURCHASE AGREEMENT - PAGE 12
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
12.6 REPRESENTATIONS TRUE AS OF CLOSING. All of the representations and
warranties contained in this article shall be true and accurate on and as of the
Closing Date with the same force and effect as though the same had been made on
and as of such date.
ARTICLE XIII
BULK TRANSFER COMPLIANCE
At the closing, Seller will deliver to Buyer an affidavit stating that all
debts of Seller have been paid in full, and that Seller has no creditors on the
closing date, except for the debt owed by Sellers to First National Bank of
Magnolia, Magnolia, Arkansas and to First Financial Bank, El Dorado, Arkansas,
both of whom shall be paid in full from the sale proceeds. By reason of the
said affidavit, Seller and Buyer agree that notice to creditors under the bulk
sales law of Arkansas will not be required and need not be given. The debts
owed by Seller are to be paid by Seller solely, and Seller does hereby indemnify
and will hold Buyer harmless from any and all loss damage, or liability which
buyer may incur or become subject to, by reason of noncompliance with the bulk
sales law.
ARTICLE XIV
RISK OF LOSS; CONDEMNATION PROCEEDS
14.2 PERSONAL PROPERTY. In the event that any item(s) of Personal Property
are damaged or destroyed by fire or some other casualty or event prior to
Closing, Seller shall not be obligated to repair or replace such item(s) of
Personal Property. However, in such case, the Purchase Price shall be adjusted
downward by an amount equal to the lesser of:
a. The costs to repair such item(s) and return them to their "as is"
condition on the date of this Agreement; or
b. The fair market value (and not the replacement value) of such
item(s) as of the date of this Agreement.
14.3 REAL ESTATE. If, prior to the time of Closing, all or a substantial
portion of the Peal Property at any of the three locations is (1) condemned or a
taking threatened or (2) destroyed or damaged, this Agreement, at the option of
Buyer, shall be null and void and of no further effect, and each party shall be
relieved of further liability to the other. For the purposes of this Agreement,
"damage" shall mean damage that could not, by reasonable efforts, be repaired
within forty-five (45) days or the occurrence thereof. If Buyer elects not to
exercise its right to rescind, then there shall be no diminution of the Purchase
Price, but Buyer shall be entitled to receive all condemnation proceeds and all
insurance proceeds covering such loss or damage, including both insurance
carried by Seller and
ASSET PURCHASE AGREEMENT - PAGE 13
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
insurance, if any, carried by Buyer. This right may be exercised within thirty
(30) days after the occurrence of the loss or damage, and, if such loss or
damage occurs less than thirty (30) days prior to the scheduled date of closing,
such date of closing shall be extended for such additional period or time as may
be necessary to afford Buyer a full thirty (30) days to make its election.
ARTICLE XV
CONDUCT OF THE BUSINESS PENDING CLOSING
Seller agrees that from and after the date of this Agreement and until
Closing, except as otherwise expressly consented to by Buyer in writing, (1)
Seller will carry on its business substantially in the sane manner as now
conducted and maintain inventory levels of the Inventory consistent with past
practice and (2) Seller will not enter into any agreement or make any commitment
other than in the ordinary course of business and consistent with its past
practice.
ARTICLE XVI
INDEMNIFICATION
Buyer shall indemnify Seller from and against any loss, damage, claim of
damage, liability, or expense (including reasonable attorney fees) of any kind,
and from any cause whatsoever (hereafter collectively referred to as "Claims"),
arising out of or by reason of Buyer's ownership, use, occupation, or enjoyment
of the Purchased Assets from and after the date of closing (except where such
Claim is a result of a breach by Seller of any representation or warranty
contained herein), and Seller shall indemnify Buyer from and against all Claims
arising out of or by reason of Seller's ownership, use, occupation, or enjoyment
of the Purchased Assets Prior to the date of Closing (except where such Claim
has been assumed by Buyer under this Agreement).
ARTICLE XVII
PRESS RELEASES
Buyer and Seller agree that all press releases or other public
communications relating to this Agreement or matters contemplated by this
Agreement will require the prior approval of both parties prior to Closing.
ASSET PURCHASE AGREEMENT - PAGE 14
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
ARTICLE XVIII
BROKERAGE
Each party warrants and represents that it has not retained anyone to
solicit or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee. Each party agrees to
indemnify and hold harmless the other party from any damage or injury resulting
from the breach of a party's warranty or representations under this Article.
ARTICLE XIX
ENTIRE AGREEMENT
This Agreement and the attached Exhibits and Schedules (which are fully
incorporated in this Agreement) contain the entire understanding and agreement
of the parties and may only be altered or amended by a document in writing
signed by the parties.
ARTICLE XX
BINDING EFFECT
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, executors, personal representatives,
successors, and permitted assigns, and to the benefit of no other party. Buyer
may assign this Agreement without the approval of Seller by delivery of written
notice to Seller.
ARTICLE XXI
CONFIDENTIALITY OF INFORMATION
Pending Closing, and at all times after the cancellation of this Agreement
by its terms, Buyer shall keep confidential and shall not use or disclose any
information documents or other writings of Seller that it obtained in connection
with its negotiations with Seller or under the terms of this Agreement, except
where such matters are otherwise in public domain or except where required by
law. Buyer shall also immediately return to Seller all documents and other
writings (originals and photocopies), and any notes, memos, and other writings
of Buyer that mention or summarize any confidential information of Seller. This
Agreement shall survive the cancellation of the Agreement, and Seller shall have
the right to pursue all remedies available to it, both at law and in equity
(including reasonable attorney fees) in enforcing this provision. Buyer shall
not be relieved of liability under this provision by the terms of any other
provision.
ASSET PURCHASE AGREEMENT - PAGE 15
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
ARTICLE XXII
NOTICES
All notices required or permitted to be given to Seller under this
Agreement shall be addressed to:
Food Facts, Inc.
x/x Xxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxx Lane
Baton Rouge, Louisiana 70816
with a copy to:
Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, P. A.
P. O. Drawer 0000
Xx Xxxxxx, Xxxxxxxx 00000
All notices required or permitted to be given to Buyer under this Agreement
shall be addressed to:
U. S. Restaurant Properties Operating L. P.
c/o QSV Properties, Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx
with a copy to:
Xxxxxxx X. Xxxxxxxx
Middleberg Xxxxxx & Gianna
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
All notices to Buyer, to Seller, or to Stockholder shall be effectively given
and made upon hand delivery or when mailed by U. S. registered mail, return
receipt requested, postage prepaid, if addressed to the party as provided in
this Article or to any other address for such party that is provided to all
other parties in accordance with this Article.
ASSET PURCHASE AGREEMENT - PAGE 16
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
ARTICLE XXIII
WAIVER
No party shall be deemed to have waived the exercise of any right that it
holds under this Agreement unless such waiver is made in writing. No waiver
made with respect to any instance involving the exercise of any such right shall
be deemed to be a waiver with respect to any other instance involving the
exercise thereof or with respect to any other such right.
ARTICLE XXIV
SEVERABILITY
If any one or more of the provisions of this Agreement shall be held in
valid, illegal, or unenforceable in any respect, such provision shall not affect
any other provision of this Agreement, and each provision of this Agreement
shall be enforced to the full extent permitted by law.
ARTICLE XXV
SURVIVAL OF OBLIGATIONS
The terms and provisions of this Agreement and the obligations, warranties,
representations, and covenants of the parties contained in this Agreement shall
survive Closing and continue in full force and effect and shall not be merged or
extinguished by the act of Closing or the execution and/or delivery of the Deed,
Xxxx of Sale, or any other documents or instruments of transfer or assignment.
ARTICLE XXVI
FURTHER ASSURANCES
The parties agree to execute such further assurances, documents, or
instruments and take such further actions as may be necessary to confirm their
understanding with respect to the terms and provisions set forth in this
Agreement so as to be in a position to implement the same.
ARTICLE XXVII
COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and all of which together shall constitute one and the
same instrument.
ASSET PURCHASE AGREEMENT - PAGE 17
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
ARTICLE XXVIII
LIABILITY OF SELLERS
All representations, warranties, liabilities and obligations of the Seller
hereunder shall be deemed the joint and several obligation of each of the
parties identified as the Seller under the first paragraph provisions of this
Agreement.
ARTICLE XXIX
CHOICE OF LAW
This Agreement shall be construed and governed in accordance with the laws
of the State of Arkansas.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date first above written. Title Insurer has also executed
this Agreement to evidence Title Insurer's agreement to serve as such in
accordance with this Agreement and for no other purpose.
SELLER: BUYER:
FOOD FACTS, INC. U. S. RESTAURANT PROPERTIES OPERATING L. P.
By: QSV PROPERTIES, INC.
By: /s/ [NAME ILLEGIBLE]
----------------------------
, President
By: /s/ [NAME ILLEGIBLE]
---------------------------------------
Its Chairman
ATTEST: ATTEST:
/s/ [NAME ILLEGIBLE] /s/ [NAME ILLEGIBLE]
------------------------------- ------------------------------------------
, Secretary , Secretary
ASSET PURCHASE AGREEMENT - PAGE 18
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
STOCKHOLDERS OF FOOD FACTS, INC.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxxx Xxxxxx
--------------------------------
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx Xxxxxx
--------------------------------
XXXXXXX XXXXXX XXXXXX
ASSET PURCHASE AGREEMENT - PAGE 19
FOOD FACTS, INC. - U. S. RESTAURANT PROPERTIES OPERATING L.P.
SCHEDULE OF EXHIBITS
Exhibit 1 Xxxx of Sale
Exhibit 2 Release of Seller's obligation under the lease for
the Magnolia location
Exhibit 3 Purchased Assets
Exhibit 4 Release of Seller's obligation under the lease for the
El Dorado Location
Exhibit 5 Covenant Not To Compete
Exhibit 6 Magnolia Improvements
Exhibit 7 The Year-End Financials
Exhibit 8 Camden Land
SCHEDULES
Schedule 1.2 Furniture, Fixtures and Equipment
Schedule 1.3 Decor
Schedule 1.4 Sign
Schedule 1.5 Cash Registers
Schedule 1.6 Playground Equipment
Schedule 3 Purchased Assets
Schedule 4.2 Purchase Price Allocation
Schedules and Exhibits Omitted
