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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") dated this 14th day of
November, 1997, by and between FIESTA RESTAURANTS, INC., an Oklahoma
corporation (the "Buyer") and FAMOUS RESTAURANTS, INC., a Delaware corporation
("Famous"), XXXXXX'X RESTAURANTS, INC., a Colorado corporation ("Xxxxxx'x"),
FIESTA ENTERPRISES, INC., an Arizona corporation ("Fiesta"), FAMOUS MEXICAN
RESTAURANTS OF ARIZONA, INC., an Arizona corporation ("Famous of Arizona"),
FAMOUS MEXICAN RESTAURANTS OF IDAHO, INC., an Idaho corporation ("Famous of
Idaho"), FAMOUS MEXICAN RESTAURANTS OF UTAH, INC., a Utah corporation ("Famous
of Utah"), FAMOUS FISH RESTAURANTS, INC., a California corporation ("Famous
Fish") (with Famous, Xxxxxx'x, Fiesta, Famous of Arizona, Famous of Idaho,
Famous of Utah and Famous Fish collectively referred to as the "Sellers").
W I T N E S S E T H :
WHEREAS, Sellers own and operate, among other things, seventeen (17)
Xxxxxx'x Mexican Restaurants, Casa Xxxxxx Restaurants and Xxxxxx Xxxxxx'x
Restaurants as described on Exhibit A hereto (the "Restaurants"); and
WHEREAS, Buyer desires to purchase from Sellers, and Sellers desire to
sell to Buyer, subject to the terms and conditions of this Agreement,
substantially all of the business, assets, properties and rights related to the
Restaurants and Sellers' corporate headquarters located at 0000 Xxxx Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx (the "Corporate Headquarters");
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1 Sale of Assets. On the Closing Date, Buyers shall assume
the Assumed Obligations (as defined below) and Sellers shall sell, assign,
transfer and convey to Buyer, and Buyer shall purchase and acquire from
Sellers, all assets, properties, rights, or claims owned by Sellers or used by
Sellers in connection with the operation, ownership, or maintenance of the
Restaurants and the Corporate Headquarters, of every kind and description,
whether tangible or intangible, real, personal or mixed (the "Assets") (but
excluding the Excluded Assets as defined below), including without limitation
the following:
(a) The real property described in Schedule 1.1(a) hereto
together with all buildings and improvements located thereon (the "Real
Property") and all easements, rights-of-way, tenements, rights of egress
and ingress and all other rights in real property related to or used in
connection with the ownership, operation or maintenance of the
Restaurants, the Corporate Headquarters or the Assets;
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(b) All equipment, fixtures, communication and office
equipment, materials, supplies, inventories, furniture and furnishings,
interior and exterior signage and decor, leasehold improvements, menus,
paper goods, flatware, glassware, utensils, garments, linens,
advertising materials, vehicles, and all other personal property of each
Seller, whether owned, leased or used by Sellers, associated in any way
with the ownership, operation or maintenance of the Restaurants, the
Corporate Headquarters or the Assets, including without limitation the
items listed in Schedule 1.1(b) hereto;
(c) All of each Seller's rights under the agreements and
contracts listed in Schedule 1.1(c) hereto (the "Contracts");
(d) All of each Seller's rights under the real estate leases
listed in Schedule 1.1(d) hereto (the "Leases");
(e) All of each Seller's rights under all licenses, permits,
orders, certificates, trademarks, service marks, trade names, prospect
lists, proprietary information and all other intangible property,
necessary or incidental to the ownership, operation or maintenance of
the Restaurants, the Corporate Headquarters or the Assets, including
without limitation the right to the use of the names "Xxxxxx'x Mexican
Restaurants," "Casa Xxxxxx Restaurants" and "Xxxxxx Xxxxxx'x
Restaurants" but subject to Section 1.2(b) hereof;
(f) All books and records, customer lists, contract files,
software programs, supplier lists, invoices and all other documents and
information relating to the ownership, operation or maintenance of the
Restaurants, the Corporate Headquarters or the Assets;
(g) All xxxxx cash related to the operation of the Restaurants
(not to exceed $2,500 per Restaurant), all receivables generated in
connection with the business of the Restaurants and all deposits,
pre-paid expenses and similar items of each Seller;
(h) All claims, refunds, causes of action, choses in action,
rights of recovery, rights of recoupment and other rights of action of
each Seller related to the Assets or the Restaurants; and
(i) All goodwill associated with the Restaurants.
Section 1.2 Excluded Assets. Notwithstanding anything to the contrary
contained in this Agreement, excluded from the sale to Buyer pursuant to this
Agreement shall be the following (the "Excluded Assets"):
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(a) all cash, cash equivalents and securities in the
possession of Sellers on the Closing Date except for the amounts
described in Section 1.1(g) above; and
(b) the right to use of the name "Xxxxxx Xxxxxx'x," "Xxxxxx'x"
or "Casa Xxxxxx" in the areas described on Schedule 1.2(b) and Schedule
3.13(b ).
(c) all rights, property and assets of Sellers which shall
have been transferred or disposed of by Sellers in the ordinary course
of business prior to the Closing;
(d) the rights of Sellers under this Agreement;
(e) Sellers' corporate seals, certificates and articles of
incorporation, minute books, stock records, financial statements,
journals and ledgers;
(f) the rights to any of Sellers' claims for any federal,
state or local tax refunds; and
(g) insurance policies of Sellers.
Section 1.3 Assumption of Liability. In connection with the
acquisition of the Assets, Buyer shall not assume any debt, expense, liability
or obligation of the Sellers or heretofore arising out of the Restaurants,
except that at the Closing Buyer shall assume and agree to pay, perform or
otherwise discharge the following obligations and liabilities (the "Assumed
Obligations"):
(a) Those (and only those) accounts payable and accruals of
Sellers set forth on Schedule 1.3(a); provided, that, Buyer's aggregate
liability assumed pursuant to this Section 1.3(a) shall not exceed One
Million Six Hundred Thousand Dollars ($1,600,000). Buyer acknowledges
that the exact dollar amount of the accruals and payables incurred by
Sellers through Closing may differ to an immaterial extent from those
set forth in Schedule 1.3(a) due to the inherent delay in reporting such
items in Sellers' accounting systems. The parties agree that Buyer
shall assume and pay such additional accruals and payables of the kind
set forth in Schedule 1.3(a); provided, that, Buyer's total aggregate
assumed liability under this Section 1.3(a) shall not in any event
exceed One Million Six Hundred Thousand Dollars ($1,600,000).
(b) Sellers' duties and obligations arising from and after the
Closing Date under the Leases and Contracts and provided, that, Buyer
shall assume no liability or obligation under a Lease until such time as
all necessary consents to the assignment of the same to Buyer are
obtained.
Section 1.4 Closing. Closing of the purchase and sale provided for
herein (the "Closing") shall take place at 10:00 a.m., local time, on November
14, 1997 at the offices of Hall, Estill, Hardwick, Gable, Golden & Xxxxxx in
Oklahoma City, Oklahoma or at such other time, date and place as may be
mutually agreed upon in writing by Buyer and Famous (such time and date being
referred to herein as the "Closing Date").
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(a) At the Closing, Sellers shall deliver to Buyer the
following:
(i) duly executed deeds, bills of sale, assignments and
other instruments of conveyance conveying the Assets to Buyer in
such form and substance as Buyer shall reasonably request;
(ii) certified copies of resolutions duly adopted by
each Seller's Board of Directors and shareholders approving this
Agreement, any related agreements or documents and the sale of
the Assets to Buyer as contemplated hereby;
(iii) an opinion of counsel to Sellers on such matters as
Buyer shall reasonably request;
(iv) possession of all Assets, which possession shall
take the form of physical possession of an Asset capable of such
possession and an instrument of transfer with respect to other
Assets;
(v) a duly executed assignment of each of the Contracts
and Leases together with the consent to the assignment of each
Lease by lessors (and sublessors) having a right to consent to
such assignment and certification by the assigning Seller that
such Seller is not in default under the Contracts and Leases, and
setting forth the terms of the Contracts and Leases subject to
Section 5.7(c) hereof;
(vi) duly executed releases of all liens held by Xxxxxx
Financial, Inc. and NCMR, Inc. against the Assets as set forth on
Schedule 3.16 hereof; and
(vii) a duly executed guaranty by Xxxxxx Financial, Inc.
("Xxxxxx") of Sellers' obligations under Article VIII hereof (the
"Xxxxxx Guaranty").
(b) At the Closing, Buyer shall deliver to Sellers the
following:
(i) an amount equal to each Seller's share of the
Purchase Price payable at closing as described in Section 2.1 via
wire transfer of immediately available funds to an account
identified by each Seller;
(ii) certified copies of resolutions duly adopted by the
Board of Directors of Buyer approving this Agreement, any related
agreements and documents and the purchase of the Assets by Buyer
as contemplated hereby;
(iii) the opinion of counsel to Buyer on such matters as
Sellers shall reasonably request; and
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(iv) an agreement of assumption (the "Assumption
Agreement") regarding the assumption of the Assumed Obligations
in such form and substance as Sellers shall reasonably request;
(c) At the Closing, the parties shall execute and deliver the
following:
(i) Management Agreement(s) (the "Management
Agreements") among Buyer and Famous (or other appropriate Seller
entity) pertaining to the management of Famous' restaurants
located in Schaumburg, Illinois and Davie, Florida and pertaining
to the management of any Restaurants as to which all necessary
consents to assignment of the Leases of the Restaurants have not
been obtained at Closing; and
(ii) a Non-Solicitation Agreement between Buyer, Sellers
and Xxxxxx Financial, Inc.
ARTICLE II
PRICE AND ALLOCATION
Section 2.1 Purchase Price and Payment Terms. The purchase price for
the Assets (the "Purchase Price") shall be Nine Million Two Hundred One
Thousand Four Hundred Fourteen Dollars ($9,201,414) less those Known
Liabilities (as defined in Section 3.6 hereof) which are to be credited to the
Purchase Price under Schedule 3.6. The entire Purchase Price shall be payable
in full at Closing. The Purchase Price shall be paid to Famous on behalf of
all the Sellers or as otherwise directed by Famous.
Section 2.2 Risk of Loss. The risk of loss or destruction or damage to
any or all of the Assets from any cause whatsoever at all times prior to the
date of Closing, shall be borne by Sellers. Subsequent to the date of Closing,
the risk of loss or destruction of or damage to any or all the Assets from any
cause whatsoever shall be borne by Buyer, including but not limited to those
Leases and associated Assets for which the required landlord consent has not
been obtained prior to or at the Closing Date.
Section 2.3 Allocation of Purchase Price. An allocation of the
Purchase Price in accordance with Section 1060 of the Internal Revenue Code of
1986, as amended ("Code"), and regulations thereunder, is attached as Schedule
2.3 hereto. After the date of Closing, Sellers and Buyer shall each file Form
8594 as required under Code Section 1060. Sellers and Buyer shall prepare
their respective federal, state and local tax returns in a manner consistent
with such allocation.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS
Each Seller hereby jointly and severally represents and warrants to
Buyer, and covenants with Buyer, as follows:
Section 3.1 Corporate Existence; Authority. Each Seller is a
corporation, duly organized, validly existing and in good standing under the
laws of the state of its formation. The execution, delivery and performance of
this Agreement by each Seller has been duly authorized by all necessary
corporate and other action; and no further corporate or other action is
necessary for each Seller to execute and deliver this Agreement and to
consummate and perform its obligations hereunder.
Section 3.2 Consents. Except as described on Schedules 1.1(c) and
1.1(d) hereto, no material consent, approval, waiver or authorization of, or
the making of any declaration or filing with, any governmental authority or any
other person is necessary in connection with the execution, delivery or
performance by each Seller of this Agreement, including without limitation the
assignment of any material contract right of each Seller to Buyer, and the
consummation of the transactions contemplated by this Agreement will not
require the approval of any entity or person in order to prevent the breach or
termination of any material agreement or other material right, privilege,
license or agreement of each Seller.
Section 3.3 No Conflicting Agreements. Neither the execution and
delivery of this Agreement by Sellers nor the fulfillment of or compliance with
the terms or provisions hereof will:
(a) result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in a violation of, (i) the
Certificate of Incorporation or Bylaws of any Seller, or (ii) any other
agreement, mortgage, lease, (other than leases which require the consent
of the landlord for transfer and for which consent has not been
obtained), license or other instrument or obligation to which any Seller
is a party or by which the Assets are bound, or (iii) any provision of
any applicable law, rule, regulation or ordinance or any order, decree,
writ or injunction of any court, administrative agency or governmental
authority by which any Seller is bound; or
(b) result in the creation or imposition of any lien, charge,
restriction, security interest or encumbrance of any nature whatsoever
upon any of the Assets or render void or ineffective the execution,
delivery or performance of this Agreement or the transactions
contemplated hereunder.
Section 3.4 Validity and Binding Effect. Each Seller has all requisite
power and authority to enter into this Agreement, to sell the Assets to Buyer
and to consummate the transactions contemplated by this Agreement. This
Agreement has been duly executed and delivered by or on behalf of each Seller
and constitutes the legal, valid and binding obligation of each Seller,
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enforceable against each Seller in accordance with its terms, except as the
same may be limited by insolvency, bankruptcy or other laws of general
application affecting the enforcement of creditors' rights and by general
equitable principles.
Section 3.5 Financial Statements. The financial statements of Sellers
attached hereto as Schedule 3.5 have been prepared based on the information
contained in Sellers' books and records, are true and complete in all material
respects as of their respective dates, have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods indicated, and fairly present the financial position of Sellers as of
the respective dates of such balance sheets and the results of the operations
of Sellers for the fiscal periods ended on such dates.
Section 3.6 Liabilities. To the best of Sellers' knowledge, all
liabilities or obligations of each Seller of any nature (whether absolute,
accrued, contingent or otherwise) other than (i) the Assumed Obligations, and
(ii) all liabilities in any way related to Sellers' Restaurants located in
Schaumburg, Illinois and Davie, Florida are set forth on Schedule 3.6 hereto
(the "Known Liabilities"). Sellers shall pay or otherwise satisfy the Known
Liabilities which are to be paid by Sellers under Schedule 3.6 (the "Known
Liabilities to be Paid by Sellers"). The Purchase Price shall be reduced by
the amount of the Known Liabilities which are to be credited to the Purchase
Price under Schedule 3.6 and Buyer shall pay and assume such liabilities to the
extent of such reduction. Sellers shall be wholly responsible for any
penalties, late fees or charges related to its failure to pay the Known
Liabilities to be Paid by Sellers. Sellers acknowledge that the exact dollar
amount of the accruals and payables incurred by Sellers through Closing may
differ from those set forth in Schedule 3.6 due to an inherent delay in
reporting such items in Sellers' accounting systems. Sellers shall pay and
discharge such additional liabilities either through direct payment or through
reimbursement to Buyer in which event Buyer shall assume and pay any such
additional accruals or payables including, but not limited to, those related to
the purchase of food or beverage (including liquor) inventories, credit card
commission charges or sales taxes through Closing to the extent of such
reimbursement.
Section 3.7 Taxes.
(a) As used in this Agreement, the term "Taxes" shall refer to
all (or any) of the following: All federal, state, county, local and
foreign income, gross receipts, excise, import, ad valorem, property,
franchise, license, sales, use, payroll, severance and windfall profits
taxes, including any penalty, addition to tax, interest, assessment or
other charge imposed thereon.
(b) All ad valorem, property, sales, use or payroll taxes,
including any penalty, interest, assessment or other charge imposed
thereon due and payable by any Seller for any period ending prior to the
Closing Date have been paid (or will prior to Closing be paid by each
Seller) in full.
(c) All Tax returns and reports required to be filed prior to
the date hereof by or on behalf of any Seller are correct and complete,
have been duly and timely filed in accordance with all applicable laws,
and such returns and reports required to be filed on or before the
Closing Date will be duly and timely filed or extensions of time within
which to file such
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returns will have been obtained, and the income, activities, operations,
and transactions of each Seller has been or will be properly included
and correctly reflected thereon.
(d) No agreements, waivers, or other arrangements exist
providing for an extension of time or statutory periods of limitations
with respect to payment by, or assessment against any Seller for any Tax
for which any Seller may be directly or indirectly liable and no written
request for any such agreement, waiver or other arrangement has been
made and is currently outstanding.
(e) No suits, actions, claims, or proceedings have been
asserted as of the date hereof against any Seller in respect of any Tax
for which any Seller may be directly or indirectly liable. Except as
described in Schedule 3.7(e), no Seller is the subject of any audit or
other proceeding in respect of payment of Taxes for which a Seller may
be directly or indirectly liable and no such proceeding has been
threatened.
(f) No Seller nor any of its respective predecessors or
affiliates has at any time filed a consent under Section 341(f)(1) of
the Internal Revenue Code of 1986, as amended (the "Code") or agreed
under Section 341(f)(3) of the Code to have the provisions of Section
341(f)(2) of the Code apply to a sale of any of its assets.
(g) As of November 1, 1997, there were no federal, state or
local Tax liens upon any of the Assets, except for statutory Liens for
Taxes not yet due or delinquent.
(h) No Seller is nor has it ever been a United States real
property holding corporation (as defined in Section 897(c)(2) of the
Code) during the applicable period specified in Section 897(c)(1)(A)(ii)
of the Code.
(i) No Seller nor its shareholder is a person other than a
United States person within the meaning of the Code.
(j) The amounts of Taxes withheld by or on behalf of any
Seller with respect to all compensation paid to employees of any Seller
for all periods ending on or before the date hereof and the Closing Date
have been (or will be, as the case may be) proper and accurate, and all
deposits required with respect to compensation paid to such employees
have been (or will be) made in compliance with the provisions of all
applicable Tax laws.
(k) None of the Assets is "tax-exempt use property" within the
meaning of Section 168(h) of the Code.
(l) None of the Assets directly or indirectly secures any debt
the interest on which is tax-exempt under Section 103(a) of the Code.
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(m) No Seller is a party to or bound by any tax indemnity, tax
sharing or tax allocation agreement.
Section 3.8 Records. To the best of each Seller's knowledge, all books
of account and other records of each Seller are complete and correct in all
material respects, and there have been no transactions involving the
Restaurants of each Seller which properly should have been set forth therein
and which have not been accurately so set forth.
Section 3.9 Compliance with Applicable Law. Except with respect to the
transfer of liquor licenses associated with each of the Restaurants, to the
best of each Seller's knowledge after due investigation, (i) each Seller is in
full compliance with every applicable law, rule, regulation, ordinance,
license, permit and other governmental action and authority and every order,
writ, and decree of every court, administrative agency or other governmental
authority in connection with the ownership, operation and maintenance of its
Assets and the Restaurants; (ii) no violation exists in respect of any such
governmental authorization; (iii) no claim or proceeding is pending or
threatened against any Seller with respect thereto; and (iv) there is no basis
known to any Seller, after due investigation, for any such claim or proceeding.
Section 3.10 Litigation. Except as disclosed on Schedule 3.10 hereto,
as of the Closing Date (i) there are no claims, actions, proceedings, orders
or investigations before any court or governmental or other regulatory or
administrative agency or commission pending or, to any Seller's knowledge,
threatened against any Seller; (ii) to each Seller's knowledge, there is no
valid basis for the assertion of any claim for damages of any kind against any
Seller relating to a product sold, or services rendered, by any Seller; (iii)
no Seller is in default with respect to any judgment, order, writ, injunction,
decree, or award from any court or other governmental instrumentality or
arbitrator having jurisdiction over any Seller; and (iv) to the best of each
Seller's knowledge after due investigation, no Seller is in default with
respect to any material rule or regulation of any governmental department or
other instrumentality having jurisdiction over any Seller.
Section 3.11 Insurance. Schedule 3.11 hereto is a complete and correct
list of each insurance policy maintained by any Seller on its Assets and with
respect to its operations together with the coverage amounts and expiration
dates of each such policy. Such insurance policies are in full force and
effect on the date hereof. No Seller is in default with respect to any
provision contained in any insurance policy identified on Schedule 3.11, and no
Seller has knowingly failed to give any notice or present any claim under any
insurance policy in due and timely fashion.
Section 3.12 Employee Matters. Schedule 3.12 hereto is a complete and
correct list of all personnel currently employed by each Seller including each
employee's name, title or position, current compensation, vacation earned, and
years of service. To the best of each Seller's knowledge after due
investigation, each Seller is in full compliance with all laws relating to the
employment of labor, including without limitation provisions thereof relating
to wages, hours, equal opportunity, the employment of aliens, the Worker
Adjustment and Retraining Notification Act, the Americans with Disabilities
Act, and the payment of Social Security and other Taxes, and is not engaged in
any
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unfair labor practice. No Seller has received written notice alleging that it
is not in full compliance with all laws relating to the employment of labor.
No Seller is a party to a collective bargaining agreement and is not aware of
any union organization effort, strike, walk-out, boycott, slow-down, sick-out,
work-stoppage or similar labor relations problem relating to a Restaurant.
Section 3.13 Patents, Copyrights, Trademarks, Licenses, Etc.
(a) Schedule 3.13(a) hereto is a complete and correct list of
all patents, trademarks, service marks, trade names, and copyrights used
in connection with the business of the Restaurants, which together with
all know-how, processes, trade secrets and other intangible assets used
in connection with the business of the Restaurants are referred to
herein as the "Intangible Assets". Other than the Intangible Assets
listed in Schedule 3.13(a), there are no patents, trademarks, service
marks, trade names, copyrights, and other registrable intangible assets
which are necessary for the conduct of the Restaurants. The present
conduct of the Restaurants does not conflict with, infringe upon or
violate the patents, trademarks, servicemarks, trade names, copyrights,
know-how, processes, licenses or trade secrets or other intangible
assets of any other person or entity, and no Seller has received any
notice of any infringement or violation thereof. Each Seller agrees
that it will make any filings and take any action reasonably requested
by Buyer in order to assist Buyer in obtaining and/or maintaining the
patents, trademarks, servicemarks, trade names, copyrights, know-how,
processes, licenses or trade secrets or any other intangible assets
transferred, sold or assigned to Buyer hereunder.
(b) Sellers and their affiliates and predecessors have
assigned rights to the names "Xxxxxx'x Mexican Restaurants," "Casa
Xxxxxx Restaurants" and "Xxxxxx Xxxxxx Restaurants" only as set forth in
Schedule 3.13(b) hereto. To the knowledge of Sellers, no persons other
than Sellers and the persons identified on Schedule 3.13(b) have or
claim any right to such names.
Section 3.14 Contracts and Agreements.
(a) Schedule 3.14(a) hereto is a complete and correct list of
all leases, contracts, agreements, and commitments or instruments,
whether written or oral, to which a Seller is a party or affecting the
ownership, operation or maintenance of the Restaurants, the Corporate
Headquarters or the Assets which relate to any of the following (a
"Material Contract"):
(i) Mortgages, loan agreements, indentures,
security agreements and other agreements and instruments relating
to the borrowing of money by, or any extension of credit to, any
Seller;
(ii) Employment, consulting, non-competition, agency
or other agreements relating to the provision of services (other
than oral employment arrangements terminable at will without
liability on the part of the employer);
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(iii) Collective bargaining agreements;
(iv) Agreements, orders or commitments for the
purchase of materials, supplies, finished products or services,
in each case involving payments or receipts in excess of $10,000
in the aggregate;
(v) Agreements or commitments for the purchase or
acquisition of any real property or for any capital expenditure
of any kind in excess of $10,000 for any single project or
related series of projects;
(vi) Brokerage or finders agreements;
(vii) Agreements or commitments to sell, lease or
otherwise dispose of any Assets other than in the ordinary course
of business;
(viii) Agreements or commitments in any way affecting
any Intangible Assets, including without limitation franchise,
license, royalty or other agreements involving the Restaurant
names used by the Sellers;
(ix) Agreements or commitments for the rendering of
services by any Seller involving payments or other consideration
having an aggregate value in excess of $10,000 or a duration in
excess of three (3) months from the date of this Agreement;
(x) Agreements, commitments or other arrangements
of any kind, including royalty agreements, service agreements or
management agreements, with a shareholder or other affiliate of a
Seller, an affiliate of a shareholder of a Seller, or with any
employee, director or officer of a Seller or of an affiliate of a
Seller;
(xi) Agreements or commitments limiting the freedom
of any Seller to conduct business in any line of business, in any
geographic area or under any of the Restaurant names used by the
Sellers;
(xii) Any partnership or joint venture agreements
involving any Seller or affecting the Assets;
(xiii) Other than this Agreement, agreements or
contracts for the sale or transfer of any of the Restaurants, for
the sale or transfer of a controlling interest in any of the
Sellers or for the merger or consolidation of any of the Sellers
since January 1, 1997;
(xiv) Leases, easements, non-disturbance agreements
or other instruments or agreements pertaining to the ownership,
possession or use of any real property or improvements thereon;
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(xv) Leases, conditional sales contracts or similar
agreements pertaining to the possession or use of personal
property; and
(xvi) Any other agreement or commitment which in any
case involves payments (or other value) having an aggregate value
in excess of $10,000 or a duration in excess of three (3) months
from the date of this Agreement.
(b) Except as described in Schedule 3.14(b) hereto, (i) each
Seller has complied in all respects with the provisions of all Material
Contracts to which it is a party; (ii) each Seller is not in material
breach or default under, and there is no valid basis for any claim of
breach or default under, and there has been no waiver of any breach or
default under, any term or provision of any Material Contract to which a
Seller is a party; (iii) all the Material Contracts are in full force
and effect and constitute legal, valid and binding obligations of the
respective parties thereto in accordance with their terms. There has
been no amendment or modification of any of the Material Contracts
except as specifically set forth on said Schedule 3.14(a). No Seller is
participating in any discussions or negotiations regarding modification
of any of the Material Contracts or entry into any agreement which would
constitute a Material Contract if it were in existence on the date of
this Agreement.
Section 3.15 Transactions Since December 29, 1996. During the period
from December 29, 1996 to the date hereof:
(a) Each Seller has operated its Restaurants only in the
ordinary and usual course and has maintained or caused to be maintained
in good repair, working order and condition consistent with industry
practice all Assets, and from time to time has made or caused to be made
all appropriate repairs, renewals and replacements thereof consistent
with industry practice.
(b) Except as described in Schedule 3.15(b) hereto, no Seller
has (i) disposed of any assets or properties related to the Restaurants
having a book value or sales value in the aggregate in excess of
$10,000; (ii) waived or released any claim or right or canceled any debt
or claim held by it related to the Restaurants in excess of $10,000;
(iii) made any change in any method of accounting or accounting
practice; (iv) done any act or omitted to do any act, or permitted any
act or omission to act, which will cause a material breach of any
contract or commitment, or any judgment, decree, award, order or
instrument, related to the Restaurants to which a Seller is a party or
is subject; (v) made any capital expenditure or commitment in excess of
$10,000 individually, or $50,000 in the aggregate for additions to
property, plant or equipment other than capital expenditures in the
Pleasant Hill, California Restaurant; or (vi) committed or agreed to
take any of such actions.
(c) Each Seller has endeavored in good faith to preserve the
Restaurants, to maintain inventory levels consistent with past practice,
and to preserve the goodwill of persons having business relations with
such Seller other than such persons with whom any Seller has a bona fide
dispute.
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(d) There has not been any material adverse change in the
financial condition, Assets, liabilities or business of any Seller.
(e) There has not been any damage, destruction or loss
(whether or not covered by insurance) having a fair market value of
$10,000 or more adversely affecting the Assets or business of any
Seller.
Section 3.16 Title to Assets. The Sellers as a group have good and
marketable title to, and are the owners of, each of the Assets and will convey
the same to Buyer at the Closing. Except as set forth on Schedule 3.16 hereto,
Sellers are not aware after performing due investigation of any liens,
mortgages, security agreements, leases, options, pledges, charges, covenants,
conditions, restrictions and other encumbrances and claims of any kind or
character whatsoever with respect to any of the Assets. The Sellers are the
current owners of the Restaurants. Other than Sellers and percentage rent
provisions with landlords under leases which have been provided to Buyer, no
party owns any interest in any of the Restaurants or has any right or interest
in the revenues or profits of any Restaurant.
Section 3.17 Affiliate Relationships. Except as otherwise provided in
Schedule 3.17 hereto, the affiliates of the Sellers do not own, nor have any of
them been furnishing, any of the properties, rights or privileges used in the
conduct of the business of the Restaurants.
Section 3.18 Tangible Personal Property. Schedule 1.1(b) attached
hereto is a complete and correct list of all items of tangible personal
property and fixtures of each Seller having a net book value in excess of One
Thousand Dollars ($1,000).
Section 3.19 Real Property. Schedule 1.1(a) hereto sets forth the
legal description of the Real Property. No Seller has received any written
notice of any (i) plan, study, or effort by any person, firm, corporation,
governmental authority, or other entity (ii) intended or proposed federal,
state, or local statute, ordinance, order, requirement, law, or regulation
(including, without limitation, zoning changes) or (iii) existing, proposed, or
contemplated public improvement plan to modify or realign any street or highway
or eminent domain proceeding, in each case that may impose a lien upon, result
in the taking of all or any part of, or adversely affect the current or planned
use of, any of the Real Property. All real estate taxes and assessments which
are due and payable with respect to the Real Property have been paid. There
are no tax certiorari or other proceedings presently pending with respect to
real estate taxes or assessments affecting the Real Property, and no such
proceedings will be commenced prior to Closing. To each Seller's knowledge,
all improvements on the Real Property and on any real property leased by a
Seller conform to all applicable state and local laws and ordinances, and each
parcel of Real Property and each parcel of real property leased by a Seller is
zoned for the purposes for which the Real Property, leased real property and
improvements thereon are presently being used.
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Section 3.20 Permits.
(a) Schedule 3.20(a) hereto is a complete and correct list of
all franchises, licenses, certificates of public convenience and
necessity, privileges, permits and other consents of governmental
authority which are related to the ownership of the Assets and the
operation of Restaurants other than liquor licenses (the "Permits"). To
the best of each Seller's knowledge, the validity and continuation of
the Permits will not be affected by the sale of the Assets to Buyer
hereunder. Each Seller has all Permits necessary for the conduct of its
Restaurants as presently conducted or operated, all Permits are in full
force and effect, all fees and charges relating thereto have been paid.
All applications for renewal of the Permits have been timely filed and
there is not required any modification of any Permit or application for
renewal of any Permit. Each Seller has conducted its Restaurants in
compliance with the terms of all Permits. There are no legal or
administrative proceedings pending or, to the best of each Seller's
knowledge, threatened which involve the validity, modification or breach
of any Permit or the entitlement of any Seller to any Permit.
(b) Schedule 3.20(b) hereto is a complete and correct list of
all liquor licenses in effect with respect to each of the Restaurants,
including the registered holder of such liquor license. Each Seller has
all liquor licenses necessary for the conduct of its Restaurants as
presently conducted or operated, all liquor licenses are in full force
and effect, all fees and charges relating thereto have been paid. All
applications for renewal of the liquor licenses have been timely filed
and there is not required any modification of any liquor license or
application for renewal of any liquor license. Each Seller has
conducted its Restaurants in compliance with the terms of all liquor
licenses. There are no legal or administrative proceedings pending or,
to the best of Sellers' knowledge, threatened which involve the
validity, modification or breach of any liquor license or the
entitlement of any Seller to any liquor license.
Section 3.21 Environmental Laws and Regulations.
(a) (i) The ownership and operation of the Assets by each
Seller, and to the knowledge of each Seller, the ownership and operation
of the Assets by third parties, and any use, storage, treatment,
disposal, or transportation by or on behalf of each Seller, and to the
knowledge of each Seller, by third parties, of Hazardous Substances,
that has occurred in or on the Assets prior to the date of this
Agreement have been in compliance with all Environmental Requirements;
(ii) during the ownership, occupancy and operation of the Assets by each
Seller, and, to the best knowledge of each Seller, prior to such
Seller's ownership, occupancy or operation, no release, leak, discharge,
spill, disposal or emission of Hazardous Substances has occurred in, on,
or under the Assets in a quantity or manner that violates or requires
further investigation or remediation under Environmental Requirements;
(iii) except as set forth in Schedule 3.21, no Seller utilizes any
Hazardous Substances as of the date of this Agreement; (iv) there is no
pending or, to the best knowledge of each Seller, threatened litigation
or administrative proceeding or investigation (whether civil, criminal
or administrative) concerning the Assets involving Hazardous Substances
or Environmental
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Requirements; (v) to the best of Sellers' knowledge after due
investigation, there is no friable asbestos or asbestos containing
material ("ACM") within the Assets and there are no above-ground or
underground storage tank systems located at the Assets; (vi) no Seller
is subject to any order, permit or directive relating to the generation,
recycling, reuse, sale, storage, handling, transport or disposal of
Hazardous Substances or directing cleanup of or payment of cleanup costs
of Hazardous Substances; (vii) no Seller is aware of nor has it received
written notice of any notices, claims, orders, directives, litigation,
administrative or other proceedings, whether actual or threatened, or
judgments or orders relating to any Hazardous Substances or other forms
of pollution relating in any way to any Seller; and (viii) the execution
and delivery of this Agreement and the consummation by the each Seller
of the transactions contemplated hereby will not affect the validity or
require the transfer of any permits under Environmental Requirements,
and will not require notification, registration, reporting, filing,
investigation or remediation under any Environmental Requirement,
including without limitation, any environmental transfer law.
(b) Sellers have provided Buyer with the reports set forth on
Schedule 3.21, which Schedule sets forth all reports in their possession
with respect to the compliance status or liability of such Seller, its
operation and the Assets under Environmental Requirements.
(c) Definitions. The following terms shall have the following
meanings:
"Environmental Requirements" means all laws, statutes, rules,
regulations, ordinances, guidance documents, judgments, decrees, orders,
agreements, and other restrictions and requirements (whether now or
hereafter in effect) of any governmental authority, including, without
limitation, federal, state, and local authorities, relating to the
regulation of, imposing standards of conduct or liability regarding, or
protection of, human health and safety (including, without limitation,
employee health and safety), natural resources, conservation, the
environment or the storage, treatment, disposal, transportation,
handling, or other management of industrial or solid waste, hazardous
waste, hazardous or toxic substances or chemicals, or pollutants.
"Hazardous Substance" means (i) any "hazardous substance" as
defined in Section 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time
(42 U.S.C. Sections 9601 et seq.) ("CERCLA") or any regulations
promulgated thereunder; (ii) petroleum and petroleum by-products; (iii)
asbestos ACM; or (iv) any additional substances or materials which at
any time are classified or considered to be pollutants, hazardous or
toxic under Environmental Requirements.
3.22 Employee Benefit Plans.
(a) Set forth on Schedule 3.22 hereto is a complete list of
all "employee pension benefit plans" ("Pension Benefit Plans"), as
defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), "welfare benefit plans" as
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defined in Section 3(l) of ERISA ("Welfare Plans"), or stock bonus,
stock option, restricted stock, stock appreciation right, stock
purchase, bonus, fringe benefit, incentive, deferred compensation,
severance, or vacation plans, or any other employee benefit plan,
program, policy or arrangement sponsored, maintained or contributed to
by any Seller or to which any Seller, contributes or is obligated to
make payments thereunder or otherwise may have any liability
(collectively, the "Employee Benefit Plans").
(b) With respect to each of the Employee Benefit Plans,
correct and complete copies of the following documents have been
delivered to Buyer: (i) the plan document and any related trust
agreement, including amendments thereto; (ii) any current summary plan
descriptions and other material communications to participants relating
to the Employee Benefit Plans; (iii) Form 5500s, if applicable, for the
last three fiscal years; and (iv) any correspondence with the IRS, the
Pension Benefit Guaranty Corporation, the Department of Labor or any
other Agency, including any determination letter.
(c) None of the Welfare Plans maintained by a Seller provides
for continuing benefits or coverage for any participant or any
beneficiary of a participant following termination of employment, except
as may be required under COBRA. Each Seller has complied with the
notice and continuation requirements of Section 4980B of the Code,
COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations
thereunder.
(d) No liability under any Employee Benefit Plan has been
funded nor has any such obligation been satisfied with the purchase of a
contract from an insurance company as to which any Seller has received
notice that such insurance company is in rehabilitation or a comparable
proceeding.
(e) The consummation of the transactions contemplated by this
Agreement will not result in an increase in the amount of compensation
or benefits or accelerate the vesting or timing of payment of any
benefits or compensation payable to or in respect of any employee of any
Seller. No Seller is obligated to make any payment or transfer,
accelerate any payment or transfer, or otherwise provide any benefit
that would constitute an "excess parachute payment" under Section 280G
of the Code.
Section 3.23 Broker's Fees. Sellers shall jointly and severally
indemnify and hold harmless Buyer from any liability for brokerage fees,
finder's fees, agent's commissions, financial advisory fees or other similar
forms of compensation authorized by any Seller in connection with or in any way
related to the transaction contemplated by this Agreement.
Section 3.24 Delivery of Documents. True and complete copies of all
written instruments described or listed on the Schedules hereto have been
delivered to Buyer.
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Section 3.25 Inventory and November Rent. The inventory of Sellers as
set forth in Schedule 3.25 is correct in all material respects. Sellers have
paid all base rent for November related to the Leases.
Section 3.26 Full Disclosure. No representation or warranty by any
Seller in this Agreement or in any of the Schedules or Exhibits hereto, or
other statement in writing or certificate furnished or to be furnished to Buyer
by or on behalf of any Seller in connection with the transactions contemplated
hereby, contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained therein not misleading
in light of the circumstances in which they are made.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Except as specifically described on Schedule 4.0 hereto, Buyer hereby
represents and warrants to Sellers and covenants with Sellers as follows:
Section 4.1 Corporate Existence; Authority. Buyer is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of Oklahoma. The execution, delivery and performance of this Agreement
by Buyer has been duly authorized by all necessary corporate and other action;
and no further corporate or other action is necessary for Buyer to execute and
deliver this Agreement and to consummate and perform its obligations hereunder.
Section 4.2 Consents. No consent, approval or authorization of or the
making of any declaration or filing with, any governmental authority or any
other person is required in order for Buyer to consummate the purchase of the
Assets in accordance herewith.
Section 4.3 No Conflicting Agreements. Neither the execution and
delivery of this Agreement by Buyer nor the fulfillment of or compliance with
the terms or provisions hereof will:
(a) result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in a violation of, (i) the
Certificate of Incorporation or Bylaws of Buyer, or (ii) any other
agreement, mortgage, lease, license or other instrument or obligation to
which Buyer is a party, or (iii) any provision of any applicable law,
rule, regulation or ordinance or any order, decree, writ or injunction
of any court, administrative agency or governmental authority by which
any Buyer is bound; or
(b) result in the creation or imposition of any lien, charge,
restriction, security interest or encumbrance of any nature whatsoever
upon the Assets or render void or ineffective the execution, delivery or
performance of this Agreement or the transactions contemplated
hereunder.
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Section 4.4 Validity and Binding Effect. Buyer has all requisite power
and authority to enter into this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered on behalf of
Buyer and constitutes the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, except as the same may
be limited by insolvency, bankruptcy or other laws of general application
affecting the enforcement of creditors' rights or by general equitable
principles.
Section 4.5 Broker's Fees. Buyer shall indemnify and hold harmless the
Sellers from any liability for brokerage fees, finder's fees, agent's
commissions, financial advisory forms, fees or other similar forms of
compensation authorized by Buyer in connection with or in any way related to
the transactions contemplated by this Agreement.
Section 4.6 Full Disclosure. No representation or warranty by Buyer in
this Agreement, or other statement in writing or certificate furnished or to be
furnished to Sellers by or on behalf of Buyer in connection with the
transactions contemplated hereby, contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained therein not misleading in light of the circumstances in which they
are made.
Section 4.7 Compliance with Applicable Law. To the best of Buyer's
knowledge after due investigation, (i) Buyer is in full compliance with every
applicable law, rule, regulation, ordinance, license, permit and other
governmental action and authority and every order, writ, and decree of every
court, administrative agency or other governmental authority in connection with
the ownership, operation and maintenance of its assets and the business; (ii)
no violation exists in respect of any such governmental authorization; (iii) no
claim or proceeding is pending or threatened against Buyer with respect
thereto; and (iv) there is no basis known to Buyer, after due investigation,
for any such claim or proceeding.
ARTICLE V
OTHER OBLIGATIONS OF THE PARTIES
Section 5.1 Confidentiality. For a period of five (5) years after the
Closing, each Seller shall use its best efforts to hold all confidential or
non-public information or data with respect to the Restaurants in confidence
and not directly or indirectly use such information or data to the detriment of
Buyer. In the event that the provisions of this Section 5.1 should ever be
deemed to exceed the time or other limitations permitted by the laws of any
applicable jurisdiction, then such provisions shall be deemed reformed as to
such jurisdiction so as to provide for the maximum limitations provided by such
laws. Each Seller specifically acknowledges and agrees that the remedy at law
for any breach of any covenant set forth in this Section 5.1 above, shall be
inadequate and that Buyer, in addition to any other relief available to it,
shall be entitled to temporary and permanent injunctive relief without the
necessity of proving actual damages.
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Section 5.2 Conduct of Restaurants Through Closing Date. From August
14, 1997, to the date hereof, each Seller represents and warrants to Buyer that
it has conducted the business of its Restaurants only in the ordinary course,
consistent with past practices.
Section 5.3 Intentionally left blank.
Section 5.4 Intentionally left blank.
Section 5.5 Pleasant Hill Restaurant. Sellers have commenced
remodeling of the Pleasant Hill, California Restaurant to convert the same into
a "Xxxxxx'x" restaurant in accordance with plans which have been provided to
Buyer. Sellers shall expend up to Two Hundred Fifty Thousand Dollars
($250,000) in connection with such remodeling in the following manner: the
Purchase Price has been reduced by Two Hundred Twenty-Three Thousand Five
Hundred Eighty-Six Dollars ($223,586) based on Sellers' representation that
Twenty-Six Thousand Four Hundred Fourteen Dollars ($26,414) have been expended
by Sellers for such remodeling through Closing. Buyer shall use such reduced
amount in connection with the remodel which Buyer hereby agrees to complete
within six (6) months of the Closing Date.
Section 5.6 Buyer's Due Diligence. Prior to the Closing, each Seller
will permit Buyer and its authorized officers, employees, attorneys,
accountants, and other representatives full access during normal business hours
to the Assets and the Restaurants and the books and records pertaining thereto,
and will furnish Buyer during such period with such information concerning
Sellers' Restaurants and Assets as Buyer may reasonably request. In addition,
each Seller will make its employees available during normal business hours to
answer Buyer's questions regarding the Restaurants and the Assets.
Section 5.7 Best Efforts.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use its best efforts to
take, or cause to be taken, all actions and to do, or cause to be done,
all things necessary, proper, or advisable to cause the conditions to
the parties' respective obligations hereunder to be satisfied and to
consummate and make effective the transactions contemplated by this
Agreement, and shall use its best efforts to obtain promptly all
waivers, permits, consents, and approvals of, and to effect all
registrations, filings, and notices with or to third parties or
governmental or public bodies or authorities which are necessary or
desirable in connection with the transactions contemplated by this
Agreement.
(b) In the event (i) any Contract is not assignable without
the consent of other parties thereto, (ii) such consent is not obtained,
(iii) Buyer does not waive in writing the requirement of consent, and
(iv) Buyer elects to proceed with the transaction contemplated hereby
notwithstanding such lack of consent, then, in order to vest in Buyer
the full value and benefit of such Contract from and after the Closing
Date, each Seller shall in its own name or as Buyer shall otherwise
direct (A) take all such action as reasonably required or requested so
that Buyer shall receive the full value and benefit of such Contract as
though such Contract
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had been assigned to Buyer hereunder, including any performance by each
Seller reasonably necessary to preserve to Buyer the full value of such
Contract, and (B) promptly pay over to Buyer all monies collected by or
paid to Sellers in respect of such Contract. The undertaking set forth
in this Section 5.7(b) shall not require a financial expenditure on the
part of Sellers nor shall a Seller be required to take any action which
would constitute a breach of a Contract or a violation of applicable
law.
(c) In the event (i) any Lease is not assignable without the
consent of other parties thereto, (ii) such consent is not obtained,
(iii) Buyer does not waive in writing the requirement of consent, and
(iv) Buyer elects to proceed with the transaction contemplated hereby
notwithstanding such lack of consent, then, notwithstanding anything
contained elsewhere in this Agreement, Buyer shall manage the Restaurant
subject to such Lease under the terms set forth in the Management
Agreement between Buyer and the owner of such Restaurant. Such Lease
shall be assigned to Buyer at such time, if ever, as all necessary
consents to the assignment of such Lease are obtained.
(d) The undertakings of Section 5.7(b) and of Section 5.7(c)
shall not impair or reduce in any way the parties obligations to use
their best efforts to obtain all necessary consents to the assignment to
Buyer of all the Contracts and Leases as soon as possible after Closing.
Section 5.8 Changes of Events. Each of the parties shall notify the
other promptly in the event that it becomes aware that any representation or
warranty made hereunder is untrue in any respect or that it is unlikely that
any condition to either party's obligation to consummate the transactions
contemplated by this Agreement will not be satisfied by the Closing Date.
Section 5.9 Further Assurances. Each Seller agrees that from time to
time, whether at or after the Closing Date, it will execute and deliver, and
will cause its affiliates to execute and deliver, such further instruments of
conveyance and transfer and take such other action as Buyer may reasonably
request in order to more effectively convey and transfer to Buyer the Assets
and to assist in completing the other transactions contemplated by this
Agreement. After the Closing, each Seller shall cooperate with Buyer in any
reasonable way requested by Buyer to permit Buyer (or its parent) to comply
with reporting obligations to the Securities and Exchange Commission (the
"Commission").
Section 5.10 Preservation of Business Relationships. Sellers shall
take all action reasonably requested by Buyer to attempt to preserve for Buyer
the benefit of the Restaurants and Sellers' previous business relationships
with suppliers and customers of the Restaurants. Sellers shall participate in
any reasonable notice to third parties or other publicity regarding the sale of
the Restaurants to Buyer proposed by Buyer. Each Seller shall endeavor to keep
available to such Seller and to Buyer the services of the officers and
individuals who currently are performing services for such Seller, whether or
not they are employees of such Seller.
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Section 5.11 Employee Matters. Buyer may, at its sole discretion,
extend offers of employment to any employees of Sellers, and each Seller shall
not take any action to discourage any employees of Sellers from entering into
employment arrangements with Buyer or to retain any employees which Buyer
desires to hire. The extension of offers of employment by Buyer, if any, shall
be in Buyer's sole discretion. Each Seller shall, at Buyer's request, release
any employees hired by Buyer from any non-compete or confidentiality agreements
or commitments in favor of such Seller. Until and including the Closing Date,
each Seller shall retain, and shall pay and discharge, all obligations to its
current employees, former employees and participants (whether hired or not
hired by Buyer), including without limitation any severance payment
responsibilities to such current employees, COBRA responsibilities, any
obligations for vacation pay and any obligations under any Employee Benefit
Plans except that Buyer shall pursuant to the Assumption Agreement assume any
payroll obligations of Restaurant-level employees of Sellers which exist as of
the Closing Date and shall assume certain identified payroll obligations to
corporate-level employees of Sellers. Buyer shall have no liability of any
nature or description (whether or not incurred, contingent or otherwise) in
connection with or in any manner related to any current or prior Employee
Benefit Plan of Sellers or any of its ERISA Affiliates including without
limitation (a) any obligation to provide benefits or further funding
thereunder, or (b) the payment of any amounts in connection therewith,
including without limitation any tax, penalty, interest or additions to tax
arising under ERISA, the Code or any other applicable law. Buyer shall pay the
December, 1997 premium under Sellers' health insurance policy with respect to
those employees of Sellers which Buyer hires and such employees shall remain
covered by such policy through December 31, 1997.
Section 5.12 Title to Real Property. Sellers shall reasonably
cooperate in any action reasonably requested to assist Buyer in confirming the
state of title to the Real Property or in obtaining title insurance, if desired
by Buyer.
Section 5.13 Coke Agreement. Buyer shall assist Sellers in attempting
to negotiate an acceptable settlement to Sellers with Coca-Cola regarding the
current agreement between Coca-Cola and Sellers. Buyer shall have no authority
to execute or enter into any settlement agreement with Coca-Cola regarding the
termination of such agreement. Buyer shall contribute the first $25,000 of any
final settlement between Sellers and Coca Cola, Buyer and Sellers shall share
the next $25,000 of any such settlement on a 50-50 basis and Sellers shall be
responsible for any settlement amounts over $50,000.
Section 5.14 Liquor Licenses. To the extent permitted by law, Buyer
shall be permitted to operate each Restaurant under a Seller's existing liquor
license for such Restaurant until (a) Buyer has obtained a liquor license for
the Restaurant or (b) May 31, 1998. Buyer shall indemnify and hold harmless
Sellers and their respective officers, directors and shareholders from any
claims arising by reason of Buyer's violation of applicable liquor laws.
Sellers shall, jointly and severally, indemnify and hold harmless Buyer and its
respective officers, directors and shareholders from any losses, liabilities or
claims arising by reason of any Seller's failure to have a valid liquor license
in effect with respect to a Restaurant, including without limitation any
economic losses caused by any shutdown of a Restaurant. The indemnities set
forth in this Section 5.14 shall be subject to the limitations on
indemnification set forth in Article VIII of this Agreement.
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Section 5.15 Chief Financial Officer. Famous and Buyer shall pay fifty
percent (50%) of the compensation and benefits expense of Xxxxx Xxxx, Chief
Financial Officer of Famous, through March 31, 1998, and shall share the
services of Xx. Xxxx in approximately the same percentage through such date.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF BUYER
[Intentionally left blank]
ARTICLE VII
CONDITIONS TO SELLERS' OBLIGATIONS
[Intentionally left blank]
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Sellers' Indemnity. Notwithstanding any investigation made
by or on behalf of Buyer prior to or after the Closing, each Seller, jointly
and severally, agrees to indemnify and hold harmless Buyer, and its officers,
directors and shareholders, from and against and in respect of, and will
reimburse such persons for:
(a) Any and all damages, deficiencies, claims, losses,
expenses, obligations, indebtedness and liabilities (collectively,
"Losses") resulting from any misrepresentation, breach of warranty or
nonfulfillment of any covenant or agreement by or on the part of any
Seller hereunder;
(b) Any and all Losses related to Taxes imposed upon or
relating to any of the Sellers;
(c) Any and all Losses related to or arising by reason of
non-compliance with the bulk sales or transfer laws of the States of
Arizona, California or Michigan with the respect to the transaction
contemplated hereby;
(d) Any and all Losses related to liens imposed upon any of
the Assets related to work performed or materials furnished to any of
the Restaurants or the Corporate Headquarters prior to the Closing Date;
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(e) Any and all Losses related to Retention Bonuses;
(f) Any and all Losses related to the failure of any of the
Sellers to comply with the requirements of COBRA;
(g) Any and all Losses related to the distribution of the
Purchase Price among the various Sellers;
(h) Any and all Losses related to claims arising in connection
with the Sellers' bankruptcy proceedings, Case No. 92-11160-PHX-SSE or
under the bankruptcy plan approved in connection with such proceedings;
(i) Any and all Losses related to the proceedings or claims
described in Schedule 3.10 hereto; and
(j) Any and all actions, claims, suits, proceedings, demands,
assessments, judgments and costs incident to any of the foregoing,
including without limitation reasonable attorneys' fees, court costs and
interest.
Section 8.2 Buyer's Indemnity. Notwithstanding any investigation made
by or on behalf of Seller prior to or after the Closing, Buyer agrees to
indemnify and hold harmless each Seller and each Seller's officers, directors
and shareholders from and against, and in respect of, and will reimburse such
persons for:
(a) Any and all Losses resulting from any misrepresentation,
breach of warranty or nonfulfillment of any covenant or agreement by or
on the part of Buyer hereunder;
(b) Any and all Losses related to any Assumed Obligation and
the Known Liabilities (excluding the Retention Bonuses); and
(c) Any and all actions, claims, suits, proceedings, demands,
assessments, judgments and costs incident to any of the foregoing,
including without limitation reasonable attorneys' fees, court costs and
interest.
Section 8.3 Indemnity Procedure.
(a) Third Party Claims. In the event any party receives
written notice of the commencement of any action or proceeding, the
assertion of any claim by a third party or the imposition of any penalty
or assessment for which indemnity may be sought pursuant to this Article
VIII (a "Claim"), and such party intends to seek indemnity from the
other party pursuant to this Article VIII, such party (the "Indemnified
Party") shall provide the other party (the "Indemnifying Party") with
written notice of such Claim and the Indemnifying Party shall be
entitled to assume control of the defense, appeal or settlement of such
Claim, and the
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Indemnified Party will fully cooperate with the Indemnifying Party in
connection therewith. If the Indemnifying Party assumes the entire
defense of such Claim (with counsel selected by it which is reasonably
satisfactory to the Indemnified Party), the Indemnifying Party shall
bear the entire cost of defending such Claim. The Indemnifying Party
shall not have the right to settle any such Claim without the written
consent of the Indemnified Party, which consent shall not be
unreasonably withheld. In the event of the assumption of the defense by
the Indemnifying Party, the Indemnifying Party shall not be liable for
any further legal or other expenses subsequently incurred by the
Indemnified Party or person in connection with such defense unless
otherwise agreed to in writing by the parties or as herein provided;
provided, however, the Indemnified Party shall have the right to
participate in such defense, at its own cost, and the obligation to
cooperate therewith. In the event the Indemnifying Party shall fail to
defend, contest or otherwise protect in a timely manner against any such
Claim, the Indemnified Party shall have the right, but not the
obligation, thereafter to defend, contest or otherwise protect against
the same and make any compromise or settlement thereof and recover the
entire cost thereof from the Indemnifying Party, including, without
limitation, attorneys' fees, disbursements and all amounts paid as a
result of such Claim, or the compromise or settlement thereof. Failure
of a party to give prompt notice of a Claim for indemnification
hereunder shall not affect such party's right to indemnification
hereunder except to the extent that the Indemnifying Party shall have
been materially prejudiced as a result of such failure, and except that
the Indemnifying Party shall not be liable for any expenses incurred
during the period in which the Indemnified Party failed to give notice.
(b) Other Claims. A party shall be entitled to recover from
the other party for all Losses or matters described in Sections 8.1 or
8.2 even though the Loss or matter is not related to a Claim brought by
a third party.
Section 8.4 Survival of Representations, Warranties and Agreements.
The representations, warranties, covenants and agreements made in this
Agreement or in any certificate or instrument delivered in connection herewith
shall be in full force and effect notwithstanding any investigation made by or
disclosure made to any party hereto, whether before or after the date hereof,
shall survive the Closing, and shall continue to be applicable and binding for
a period of twenty-four (24) months after Closing and for a period of
thirty-six (36) months after Closing for any matter related to Taxes.
Section 8.5 Limitations on Remedies.
(a) Buyer's indemnification rights under this Agreement shall
only be for a maximum of Six Hundred Thousand Dollars ($600,000) and in
no event shall Sellers, or any of them be obligated for aggregate Losses
in excess of Six Hundred Thousand Dollars ($600,000) and Buyer's
indemnification rights hereunder shall relate only to matters of which
Buyer gives Famous written notice within twenty-four (24) months after
the Closing Date; provided, that, with respect to Sellers' obligation to
indemnify Buyer for any Seller's obligations related to Taxes, such
indemnification rights shall extend for an additional twelve (12) month
period beyond the initial twenty-four (24) month period from the Closing
Date and shall during such
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additional twelve (12) month period be for an amount equal to the
lesser of (i) that portion of the Six Hundred Thousand Dollars
($600,000) maximum indemnity still available at the end of the first
twenty-four (24) month period after Closing or (ii) Two Hundred Thousand
Dollars ($200,000). Any claim of which Famous is given written notice
prior to the end of the applicable period set forth above shall continue
and remain subject to the indemnification rights provided for herein
until the final resolution of such claim.
(b) Sellers shall be able to bring a Claim against Buyer for
breach of this Agreement at any time until twenty-four (24) months after
Closing. Any Claim of which Buyer is given written notice prior to the
end of such time period shall continue until the final resolution of
such claim.
ARTICLE IX
TAXES AND EXPENSES
Section 9.1 Transfer Taxes. Buyer and Sellers shall share equally any
sales, use, transfer, documentary and similar taxes and all other duties,
levies or other governmental charges which may become due and owing by reason
of the sale and transfer of the Assets hereunder.
Section 9.2 Recording Fees. Buyer shall pay all recording fees
relating to the filing of instruments transferring title to Buyer from Sellers.
Section 9.3 Prorations. Except for the Assumed Obligations, utility
charges and except for rentals under the Leases, those charges (including,
without limitation, water and sewer rents, ad valorem taxes, if any, and
similar items) which relate to a period beginning prior and ending subsequent
to the Closing Date and which cannot be measured otherwise, any invoices or
statements received by either party which cover such period shall be prorated
between Buyer and Sellers according to the number of days in the period covered
by such invoice or statement during which Buyer and Sellers, respectively,
owned the Assets, and each shall pay its allocable share thereof, either
directly or by way of reimbursement if the other party shall have paid the
same, upon receipt of an invoice therefor or evidence of such payments, as
applicable.
ARTICLE X
MISCELLANEOUS
Section 10.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois without
reference to the choice of law principles thereof.
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Section 10.2 Entire Agreement. This Agreement, including any Exhibits
and Schedules hereto, contains the entire agreement and understanding between
the parties hereto, and supersedes any and all prior agreements, arrangements
and understandings, relating to the subject matter hereof. There are no
written or oral agreements, understandings, representations or warranties
between the parties other than those set forth or referred to in this
Agreement. No supplement, amendment, alteration, modification or waiver of
this Agreement shall be binding unless consented to in writing by Buyer and
Sellers.
Section 10.3 Expenses. Except as otherwise provided herein, each party
hereto shall separately bear the expenses incurred by it in connection with
this Agreement and in connection with all things required to be done by it
hereunder.
Section 10.4 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given when
delivered personally or when sent by facsimile or on the third day after being
mailed by registered or certified mail, postage prepaid, addressed as follows:
To Sellers: Famous Restaurants, Inc.
000 Xxxx Xxxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
(Fax): 312/000-0000
To Buyer: Fiesta Restaurants, Inc.
0000 X. Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Xx.
(Fax): 405/000-0000
Any party may change its address for receiving notices by giving
written notice of such change to the other party in accordance with this
Section 10.4.
Section 10.5 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, this Agreement may not be assigned
by either party without the written consent of the other.
Section 10.6 Parties In Interest. Nothing in this Agreement shall
entitle any party other than Buyer or Sellers to any claim, cause of action,
remedy or right of any kind.
Section 10.7 Waiver. No waiver of any term, provision or condition
of this Agreement shall be effective unless in writing, signed by the party
against which such waiver is sought to be enforced, and no such waiver shall be
deemed to be or construed as a further or continuing waiver
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of any such term, provision or condition or as a waiver of any other term,
provision or condition of this Agreement, unless specifically so stated in such
written waiver.
Section 10.8 Severability. If any term, covenant or condition of
this Agreement or the application thereof to any person or circumstance (other
than a term, covenant, condition or application which affects the essence of
this Agreement) shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term, covenant or
condition to those persons or circumstances other than those as to which it has
been held invalid or unenforceable, shall not be affected thereby, and each
term, covenant and condition of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized representatives on the
day first above written.
"Buyer"
FIESTA RESTAURANTS, INC.
By: /S/
---------------------------------
_______________, President
"Sellers"
FAMOUS RESTAURANTS, INC.
By: /S/
---------------------------------
________________, President
XXXXXX'X RESTAURANTS, INC.
By: /S/
---------------------------------
________________, President
FIESTA ENTERPRISES, INC.
By: /S/
---------------------------------
________________, President
FAMOUS MEXICAN RESTAURANTS
OF ARIZONA, INC.
By: /S/
---------------------------------
________________, President
FAMOUS MEXICAN RESTAURANTS
OF IDAHO, INC.
By: /S/
---------------------------------
________________, President
FAMOUS MEXICAN RESTAURANTS
OF UTAH, INC.
By: /S/
---------------------------------
________________, President
FAMOUS FISH RESTAURANTS, INC.
By: /S/
---------------------------------
________________, President
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OMITTED SCHEDULES AND EXHIBITS
All schedules and exhibits to the Asset Purchase Agreement have been
omitted from this Report on Form 8-K. The following is a list of such
schedules and exhibits. Eateries will furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
Exhibit or Schedule Brief Description of Contents
------------------- -----------------------------
A List of Restaurants by location
1.1(a) Real Property
1.1(b) Personal Property
1.1(c) Contracts
1.1(d) Leases
1.2(b) Geographic limitations on use of trade names
1.3(a) Assumed Accounts Payable
2.3 Allocation of Purchase Price
3.5 Sellers' Financial Statements
3.6 Known Liabilities of Sellers
3.7(e) Tax audits
3.10 Litigation
3.11 Insurance Policies
3.12 Employees
3.13(a) Intellectual Property
3.13(b) Names
3.14(a) Material Agreements
3.14(b) Breaches of Material Agreements
3.15(b) Material Capital Expenditures
3.16 Liens
3.17 Affiliate Ownership
3.20(a) Permits
3.20(b) Liquor Licenses
3.21 Hazardous Substances
3.22 Employee Benefit Plans
3.25 Closing Inventory
4.0 Exceptions to Buyer's Representations and Warranties
