AMENDMENT TO ASSET PURCHASE AGREEMENT
Execution
Version
AMENDMENT TO ASSET PURCHASE
AGREEMENT
This
Amendment (the “Amendment”) to the
Asset Purchase Agreement, entered into and dated as of June 23, 2010 (the “Asset Purchase
Agreement”), by and among Xxxx’x, Inc., a Delaware corporation (“Xxxx’x”), Fuddruckers,
Inc., a Texas corporation (“Fuddruckers”), Magic
Brands, LLC, a Delaware limited liability company (“Magic”, and together
with Fuddruckers, collectively, the “Company”), Atlantic
Restaurant Ventures, Inc., a Virginia corporation (“ARVI,” and together
with each of Magic and Fuddruckers, the “Debtors”), R. Xxx,
Inc., a Texas corporation (“R. Wes”),
Fuddruckers of Xxxxxx County, LLC, a Maryland limited liability company (“Xxxxxx County”), and
Fuddruckers of White Xxxxx, LLC, a Maryland limited liability company (“White Xxxxx,” and
together with R. Wes and Xxxxxx County, the “Non-Debtor Sellers,”
and the Non-Debtor Sellers together with the Debtors, each a “Seller” and,
collectively, the “Sellers”), is entered
into as of July 26, 2010, by and among Xxxx’x Fuddruckers Restaurants, LLC,
a Texas limited liability company (the “Purchaser”), and the
Sellers. Capitalized terms used and not defined in this Amendment
shall have the meanings given to them in the Asset Purchase
Agreement.
RECITALS
WHEREAS,
Luby’s has assigned all of its rights and obligations under the Asset Purchase
Agreement to the Purchaser pursuant to and subject to Section 12.10 of the Asset
Purchase Agreement;
WHEREAS,
the Sellers have agreed in Section 8.2(B) of the Asset Purchase Agreement to not
sell gift certificates and gift cards at any Seller-owned or -operated Acquired
Location after the Petition Date (as more fully set forth in said Section
8.2(B)) and the Sellers and the Purchaser desire to amend Section 3.1 of the
Asset Purchase Agreement to provide the Purchaser with a credit of $12,000 as
compensation for gift certificates and gift cards sold by the Sellers after the
Petition Date;
WHEREAS,
the Sellers have agreed in Section 8.3 of the Asset Purchase Agreement to
reasonably cooperate with the Purchaser in connection with the Purchaser’s
efforts to obtain any Liquor License Approvals and the Purchaser has determined
that acquiring Fuddruckers’ equity interests in R. Wes and Xxxxxx County
would help facilitate the Purchaser’s efforts in obtaining the Liquor License
Approvals;
WHEREAS,
the Sellers and the Purchaser desire to amend the Asset Purchase Agreement to
provide that, on the Closing Date, the Sellers will transfer all cash, cash
equivalents, bank deposits or similar cash items of R. Wes to the
Sellers;
WHEREAS,
the Sellers and the Purchaser desire to amend the process set forth in Section
8.10 of the Asset Purchase Agreement for the payment of utility charges relating
to the Acquired Locations incurred prior to the Closing Date;
WHEREAS,
the Sellers desire to use the corporate office after the Closing and the
Purchaser will allow such use on the terms set forth herein;
WHEREAS,
the Sellers and the Purchaser desire to amend the Asset Purchase Agreement to
provide that the intercompany receivables owing from any of the Seller Parties
(as defined below) to one or more of the other Seller Parties are not Purchased
Assets and that intercompany Liabilities owing from any of the Seller Parties to
one or more of the other Seller Parties are not Assumed
Liabilities;
WHEREAS,
the Sellers and the Purchaser have agreed that the Pearland/Oceanside Personal
Property (as defined below) should be Purchased Assets; and
WHEREAS,
the parties hereto wish to amend the Asset Purchase Agreement with respect to
the matters set forth herein.
AGREEMENT
NOW,
THEREFORE, the Purchaser and the Sellers agree as follows:
1. Amendment
of Section 2.1(b). Section 2.1(b) of the Asset Purchase
Agreement is hereby amended to add new subparagraphs (xviii) and (xix) as
follows:
“(xviii) all
of Fuddruckers’ right, title and interest in the outstanding capital stock or
other equity interest of R. Wes and Xxxxxx County; and
(xix) subject
to the procedures required by the Bankruptcy Court (including, to the extent
applicable, the procedures set forth in the Final Order Authorizing and
Approving Expedited Procedures for the Sale of De Minimis Assets (the “De Minimis Sale Procedures
Order”)), all of the Furniture and Equipment (other than fixtures or
fixed assets) owned by the Sellers and located at the Sellers’ restaurant #432
located at 0000 Xxxxxxxxxx Xxxxxxx Xx., #000, Xxxxxxxx, Xxxxx 00000 (the “Pearland Location”)
and at the Sellers’ restaurant #434 located at 0000 X. Xx Xxxxxx Xxxx,
Xxxxxxxxx, XX 00000 (the “Oceanside Location”)
(such Furniture and Equipment, the “Pearland/Oceanside Personal
Property”).”
2. Amendments
of Section 2.2.
(a) Section 2.2(m)
of the Asset Purchase Agreement is hereby amended to delete the existing
Section 2.2(m) in its entirety and to replace such provision with the
following:
“(m) all
shares of capital stock or other equity interest of any Seller (other than
R. Wes and Xxxxxx County), and of ARVI of Pikesville, Inc., a Maryland
corporation, A.R.I.V. – Rockville, Inc., a Maryland corporation, and 8725
Xxxxxxx II, Inc., a Kansas corporation (collectively, the “Excluded Entities”),
or any securities convertible into, exchangeable or exercisable for shares of
capital stock or other equity interest of any Seller (other than R. Wes and
Xxxxxx County) or any Excluded Entity;”
(b) Section 2.2(o)
of the Asset Purchase Agreement is hereby amended to delete the existing Section
2.2(o) in its entirety and to replace such provision with the
following:
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“(o) (i)
all credit card accounts receivable, deposits and other holdbacks being held by
credit card companies, in each case as of the Closing Date, in connection with
credit cards accepted by the Sellers, (ii) that certain receivable owing from
X.X. Management LLC to one or more of the Sellers with respect to obligations
under that certain Restaurant Management Agreement dated April 30, 2007; and
(iii) all intercompany receivables owing from any of the Sellers or their
Affiliates (including, without limitation, KCI, LLC, King Xxxxxx, Inc. and
Fuddruckers International, LLC) (collectively, the “Seller Parties”) to
one or more of the other Seller Parties (including, without limitation, any
intercompany receivables under that certain Restaurant Management Agreement,
dated as of December 30, 1998, by and between Fuddruckers and Magic, as amended
and that certain Intellectual Property Licensing Agreement, dated as of December
30, 1998, by and between Fuddruckers and Magic, as amended);”
3. Amendment
of Sections 2.3 and 2.4. Sections 2.3(a), 2.3(b), 2.3(c),
2.4(h) and 2.4(i) of the Asset Purchase Agreement are hereby amended to delete
the term “Closing Date” as used therein and to replace such term with the word
“Closing”.
4. Amendment
of Section 2.4. Section 2.4 of the Asset Purchase
Agreement is hereby amended to add a new subparagraph (k) as
follows:
“(k) all
intercompany Liabilities owing from any of the Seller Parties to one or more of
the other Seller Parties (including, without limitation, any intercompany
Liabilities under that certain Restaurant Management Agreement, dated as of
December 30, 1998, by and between Fuddruckers and Magic, as amended and that
certain Intellectual Property Licensing Agreement, dated as of December 30,
1998, by and between Fuddruckers and Magic, as amended).”
5. Amendment
of Section 3.1. Section 3.1 of the Asset Purchase
Agreement is hereby amended to delete the existing Section 3.1 in its
entirety and to replace such provision with the following:
“3.1
Purchase
Price. The aggregate cash consideration for the Purchased
Assets (the “Purchase
Price”) shall be an amount equal to the sum of: (a) the
Asset Price, plus (b) the amount of the Register Cash, plus (c) the amount
of all security deposits (as reflected in Schedule 5.12(d))
held by the landlords under and pursuant to the Assumed Leases as of the
Closing, plus or minus (d) the aggregate amount payable by the Purchaser or the
Sellers in accordance with Sections 8.10 and
11.1 and minus
(e) $12,000.”
6. Amendment
of Section 4.1. Section 4.1 of the Asset Purchase
Agreement is hereby amended to add the following at the end of such
Section 4.1:
“Notwithstanding
anything to the contrary contained in this Agreement, (i) the Closing shall be
deemed to have occurred at 12:01 a.m. (Boston time) on the Closing Date and (ii)
as a result thereof, all sales at the Acquired Locations on or after the Closing
Date shall be for the account of the Purchaser and the Sellers shall promptly
pay to the Purchaser all amounts received by the Sellers in respect of such
sales (including amounts received from credit card purchases).”
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7. Amendment
of Section 8.10(c). Section 8.10(c) of the Asset Purchase
Agreement is hereby amended to delete the existing Section 8.10(c) in its
entirety and to replace such provision with the following:
“(c) Any
amounts payable by the Sellers in accordance with this Section 8.10 and
Section 11.1
shall be paid and fully satisfied in accordance with Section 3.1. Except
as provided in the next sentence, the Purchaser shall pay to any applicable
third party all amounts due and payable after the Closing with respect to the
items to which the proration provisions of this Section 8.10 and
Section 11.1
apply. Notwithstanding the foregoing, the Sellers and the Purchaser
shall cause all water, telephone, electricity and other utility accounts to be
transferred from the Sellers to the Purchaser effective as of the Closing Date,
and the Sellers shall pay to any applicable third party all amounts due and
payable for water, telephone, electricity and other utility accounts used prior
to the Closing Date and the Purchaser shall pay to any applicable third party
all amounts due and payable for water, telephone, electricity and other utility
accounts used on or after to the Closing Date. If the Sellers or the
Purchaser receive bills for water, telephone, electricity and other utility
accounts that relate to usage both before and after the Closing (each, a “Straddle Period Utility
Xxxx”), then the Sellers and the Purchaser shall pro rate the charges for
such usage in accordance with Section 8.10(a) and shall reimburse each other the
amount due no later than August 23, 2010; provided, however, in the event
a Straddle Period Utility Xxxx is not received for a utility account by August
20, 2010, then the Sellers and the Purchaser shall pro rate the charges for such
usage in accordance with Section 8.10(a) based on the amounts paid with respect
to the prior period as reflected on the most recent invoice received by the
Sellers for the applicable utility account and shall reimburse each other the
amount due no later than August 23, 2010.”
8. Amendments
of Article VIII.
(a) Article
VIII of the Asset Purchase Agreement is hereby amended to add a new
Section 8.16 as follows:
“8.16 Officer and Director
Resignations and Appointments. Prior to the Closing, and
effective as of the Closing, the Sellers shall cause each of the officers,
managers and directors of R. Wes and Xxxxxx County, as applicable, to
resign as officers, managers and directors of R. Wes and Xxxxxx County and
shall appoint or cause to be appointed as officers, managers and directors of
R. Wes and Xxxxxx County, as applicable, the Persons designated by the
Purchaser in a notice delivered to the Sellers prior to Closing.”
(b) Article
VIII of the Asset Purchase Agreement is hereby amended to add a new
Section 8.17 as follows:
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“8.17 Corporate
Office. The Purchaser expects to assume the Office Lease,
dated as of February 15, 2005, by and between Sage Monterey Oaks, Ltd., a Texas
limited liability partnership, as Landlord, and Magic Restaurants, LLC, as
Tenant, as amended by the First Amendment to Lease Agreement, dated as of August
31, 2005, by and between Sage-Monterey Oaks, Ltd., as Landlord, and Fuddruckers,
Inc., as Tenant, and the Second Amendment to Lease Agreement, dated as of
November 1, 2005, by and between Sage-Monterey Oaks, Ltd., as Landlord, and
Fuddruckers, Inc., as Tenant (the “Corporate Office
Lease”), in respect of the Debtors’ corporate office located at 0000
XxXxx Xxxxxxxxxx, #X-000, Xxxxxx, Xxxxx (the “Corporate
Office”). The Debtors shall have the non-exclusive right to
share the use of the Corporate Office with the Purchaser beginning on the
Closing Date and continuing until December 31, 2010 (the “Shared Use
Term”). The Purchaser shall not grant any other Person (other
than Affiliates of the Purchaser) the right to the use of the Corporate Office
without the consent of the Debtors. The Debtors shall promptly
reimburse the Purchaser for 50% of all rents, common area maintenance and other
costs and charges paid by the Purchaser under the Corporate Office Lease in
respect of the Shared Use Term and 50% of all real estate taxes due under the
Corporate Office Lease, water, telephone, electricity and other utility charges
for the Corporate Office in respect of the Shared Use Term. The
Debtors may use the Corporate Office for the sole purpose of winding down the
affairs of the Debtors in a manner that is consistent with the requirements and
limitations set forth in the Corporate Office Lease and for no other purpose
without the prior written consent of the Purchaser. Subject to the
Corporate Office Lease, so long as the Debtors are paying when due the amounts
required under this Section 8.17 and are otherwise in compliance with their
obligations under this Section 8.17, they shall have the non-exclusive right to
share the use of the Corporate Office with the Purchaser without interference
from the Purchaser or any party claiming by, through or under the
Purchaser. The Debtors shall vacate their space within the Corporate
Office at the end of the Shared Use Term in broom-clean condition and otherwise
as required by the Corporate Office Lease. The Debtors shall maintain
appropriate insurance covering their use of the Corporate Office and their
employees and representatives making use of such office. The Debtors
shall indemnify, defend and hold harmless the Purchaser and its Affiliates for
any and all claims, losses, damages, liabilities, settlement payments, awards,
judgments, fines, penalties, assessments, obligations, costs or expenses of any
kind or type paid by the Purchaser to a third party and arising or resulting
from the actions or omissions of the Debtors (or their employees,
representatives or guests) at the Corporate Office which are in violation of
this Section 8.17, in violation of the Corporate Office Lease or in violation of
Law. The Purchaser shall indemnify, defend and hold harmless the
Debtors and their Affiliates for any and all claims, losses, damages,
liabilities, settlement payments, awards, judgments, fines, penalties,
assessments, obligations, costs or expenses of any kind or type paid by the
Debtors to a third party and arising or resulting from the actions or omissions
of the Purchaser (or its employees, representatives or guests) at the Corporate
Office which are in violation of this Section 8.17, in violation of the
Corporate Office Lease or in violation of Law. The Debtors’ rights
under this Section 8.17 are subject and subordinate to the Corporate Office
Lease and the Debtors agree that they will abide by the terms of the Corporate
Office Lease applicable to the Purchaser.”
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(c) Article
VIII of the Asset Purchase Agreement is hereby amended to add a new
Section 8.18 as follows:
“8.18 Pearland Location and
Oceanside Location. In the event a landlord objects to the
sale to the Purchaser of any of the Pearland/Oceanside Personal Property (in
each case, a “Landlord
Objection”), the Debtors and the Purchaser shall cooperate with each
other and use their commercially reasonable efforts to resolve such Landlord
Objection with the Purchaser bearing, and promptly reimbursing the Debtors for
all reasonable expenses incurred by the Debtors with Purchaser’s prior consent
in connection with the resolution of such Landlord Objection. The
Purchaser shall remove the Pearland/Oceanside Personal Property from the
Pearland Location and the Oceanside Location at its own cost and expense on or
before July 31, 2010 unless Purchaser is prohibited as a result of the Landlord
Objection from taking possession of the Pearland/Oceanside Personal Property
subject to such Landlord Objection. Nothing in this Section 8.18
requires Purchaser to proceed with the purchase of Pearland/Oceanside Personal
Property that is the subject of a Landlord Objection and, at anytime prior to
the sale of such Pearland/Oceanside Personal Property becoming effective
pursuant to the terms of the De Minimis Sale Procedures Order, Purchaser may by
written notice delivered to the Sellers in accordance with Section 12.8 of this
Agreement, designate some or all of the Pearland/Oceanside Personal Property as
an Excluded Asset.”
(d) Article
VIII of the Asset Purchase Agreement is hereby amended to add a new
Section 8.19 as follows:
“8.19 Cash of R. Wes. On
the Closing Date, the Sellers shall transfer all cash, cash equivalents, bank
deposits or similar cash items of R. Wes to the Sellers.”
9. Waiver. The
Purchaser hereby agrees to waive any failure by the Sellers to comply with the
provisions of Section 8.2(B) of the Asset Purchase Agreement.
10. No Other
Amendments or Waivers; Asset Purchase Agreement Remains in
Effect. Except as expressly amended by Sections 1, 2, 3, 4, 5,
6, 7 and 8 of this Amendment or expressly waived by Section 9 of this Amendment,
the Asset Purchase Agreement shall remain in full force and effect in the form
in which it existed immediately prior to the execution and delivery of this
Amendment.
11. Amendments. No
amendments, changes or modifications to this Amendment shall be valid unless the
same are in writing and signed by the parties hereto.
12. Applicable
Law. This Amendment shall be governed by and construed in
accordance with the Laws of the State of Delaware applicable to contracts made
and performed in such State.
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13. Counterparts. This
Amendment may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Amendment and all of which, when taken
together, will be deemed to constitute one and the same agreement.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to the Asset Purchase Agreement to be
executed in counterparts as of the day and year first above
written.
THE
PURCHASER:
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XXXX’X
FUDDRUCKERS RESTAURANTS, LLC
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By:
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Luby’s
Management, Inc., its Manager
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Senior
Vice President, Administration,
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General
Counsel and
Secretary
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THE
SELLERS:
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FUDDRUCKERS,
INC.
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R.
XXX, INC.
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By:
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/s/
Xxxxx Xxxxx
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By:
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/s/
Xxxxxxx Xxxxx
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Name: Xxxxx
Xxxxx
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Name: Xxxxxxx
Xxxxx
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Title: President
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Title: President
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MAGIC
BRANDS, LLC
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FUDDRUCKERS
OF XXXXXX COUNTY, LLC
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By: KCI,
LLC, its sole Manager
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By: Fuddruckers,
Inc., its Managing Member
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By:
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/s/
Xxxxx Xxxxx
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By:
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/s/
Xxxxx Xxxxx
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Name: Xxxxx
Xxxxx
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Name: Xxxxx
Xxxxx
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Title: Manager
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Title: President
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ATLANTIC
RESTAURANT VENTURES,
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FUDDRUCKERS
OF WHITE XXXXX, LLC
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INC.
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By: Fuddruckers,
Inc., its Managing Member
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By:
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/s/
Xxxxx
Xxxxx
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Name: Xxxxx
Xxxxx
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By:
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/s/
Xxxxx
Xxxxx
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Title: Director
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Name: Xxxxx
Xxxxx
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Title: President
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