EXECUTION COPY
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as
of February 18, 1998 by and among SYBRA, INC., a Michigan corporation ("Buyer"),
and RGS ENTERPRISES OF NEW JERSEY, INC., a New Jersey corporation (the
"Seller").
WITNESSETH:
WHEREAS, the Seller currently owns certain assets relating to an
operating Arby's restaurant specified as unit 213 (the "Operating Restaurant")
and a sublease of the land and building associated with a closed Xxx Xxxxxx
restaurant located in Vineland, New Jersey (collectively, the "Restaurants");
WHEREAS, Seller also currently holds a contract to purchase the land,
building and equipment associated with a closed Arby's restaurant located in
West Berlin, New Jersey; and
WHEREAS, Buyer desires to purchase and assume from the Seller, as the
case may be, and the Seller desires to sell and assign to Buyer, as the case may
be, substantially all of the assets relating to the Operating Restaurant, the
sublease relating to the closed Xxx Xxxxxx restaurant located in Vineland, New
Jersey and the contract relating to the closed Arby's restaurant located in West
Berlin, New Jersey, and the parties hereto desire to enter into certain other
agreements, all upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and mutual
representations, warranties, covenants and agreements hereinafter contained, the
parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 Purchase and Sale of Assets. Subject to the terms and conditions of
this Agreement, at the closing provided for in Section 1.10 hereof (the
"Closing"), Seller shall sell, transfer, convey, assign and deliver to Buyer,
and Buyer shall purchase, acquire and accept from Seller, all of Seller's
rights, title and interest in and to the assets (of every type and description,
whether tangible or intangible) and properties, goodwill and business which are
owned or leased and used by the Seller in the operation of the Operating
Restaurant (collectively, the "Assets"), excluding, however, all of the Excluded
Assets (defined below). The Assets shall consist of, among other things, the
following:
(a) All of the machinery, furniture, fixtures, equipment, signs,
cash registers, uniforms and other personal property (collectively, the "FF&E")
owned and used by the Seller in the operation of the Operating Restaurant and
located on the premises thereof;
(b) All inventories of food, beverages, paper supplies and other
consumables (collectively, the "Inventory") located on the premises thereof;
(c) All of Seller's rights, title and interest in and to the
franchise agreement with Arby's, Inc. (the "Arby's License Agreement")
pertaining to the Operating Restaurant which is set forth on Schedule 1.1 (c)
attached hereto and all rights for the use of the trademarks, tradenames, and
service marks arising from such agreement (subject to Arby's, Inc.'s ownership
of all identifying marks and logos);
(d) All of the Seller's right, title and interest in and to all
of the contracts, agreements, real property leases, personal property leases,
commitments and undertakings (the "Contracts") as identified in Schedule 1.1(d);
(e) All records, technical information, price lists, marketing
information, sales information and employee records which are or have been
maintained by the Seller in connection with the operation of the Operating
Restaurant; and
(f) To the extent assignable, all of the Seller's right, title
and interest in and to all permits, licenses, authorizations and approvals
relating to the operation of the Restaurants.
1.2 Excluded Assets. There shall be excluded from the Assets being sold
and transferred hereunder the following (the "Excluded Assets"):
(a) Seller's cash on hand and bank deposits at the time of
Closing;
(b) All accounts receivable, all notes receivable, all
intercompany receivables, all interest receivables, all advances, cash value of
life insurance net of loans, prepaid interest and refundable income taxes and
any other taxes;
1.3 Assumption of Liabilities. Except as expressly provided in this
Section 1.3, Buyer shall not assume or be responsible for any liabilities,
obligations or debts of any of the Seller under or by reason of this Agreement.
Subject to the terms and conditions set forth in this Agreement, Buyer shall
assume, become fully and solely responsible for and shall timely pay, perform
and discharge in full all of the following liabilities, obligations and debts of
the Seller (collectively, the "Assumed Liabilities"):
(a) All of the Seller's liabilities, obligations and debts under
the Contracts which come due or relate to time periods from and after the
Closing Date in accordance with the respective terms thereof;
(b) All of the Seller's liabilities, obligations and debts in
respect of unpaid rent, charges or other payments for which a Purchase Price
adjustment is made pursuant to Section 1.6 hereof;
(c) Any utility and telephone bills and other similar
liabilities, obligations and debts arising in the ordinary course from the
operations of the Restaurants which relate to time periods from and after the
Closing Date; and
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(d) Any other liabilities, expenses or obligations relating to,
based on or arising out of the operations of the Restaurants by Buyer from and
after the Closing Date (it being understood that the Seller shall remain fully
and solely responsible for, shall indemnify and hold Buyer harmless with respect
to, and shall timely pay, perform and discharge in full any and all liabilities,
expenses or obligations relating to, based upon or arising out of the operations
of the Restaurants on or prior to the Closing Date).
1.4 Purchase Price. Subject only to the adjustments specified in this
Agreement and upon and subject to all other terms and conditions set forth in
this Agreement, in consideration of the sale, assignment, transfer, conveyance
and delivery of the Assets by Seller pursuant to this Agreement, Buyer shall pay
to the Seller the sum of Seven Hundred Thousand Dollars ($700,000), plus an
amount equal to the value (at Seller's cost) of the Inventory with respect to
the Operating Restaurant, (collectively, the "Purchase Price") payable pursuant
to the terms of Section 1.5 below:
1.5 Payment of Purchase Price. At the Closing, Buyer shall deliver or
cause to be delivered to the Seller the Purchase Price by wire transfer of
immediately available funds to such bank account or bank accounts as shall be
designated by Seller in writing prior to the Closing Date.
1.6 Purchase Price Adjustments. The Purchase Price shall be increased or
decreased, as the case may be, by the amount of rent, taxes, assessments,
deposits and other expenses prepaid or unpaid by the Seller as of the Closing
Date.
1.7 Allocation of Purchase Price. The Purchase Price shall be allocated
as set forth on Schedule 1.7 hereto. The foregoing allocation shall be made in a
manner consistent with Section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). Each party hereby agrees that it will not make any return,
filing, report or other submission or take any position with or before any
federal, state or local tax agency or other authority which would conflict or be
inconsistent with the allocation provided in this Section 1.7.
1.8 Taxes. All sales and use taxes arising out of the purchase and sale
of the Assets shall be paid at the Closing and shall be borne equally by Seller,
on the one hand, and Buyer, on the other hand.
1.9 License Transfer Fees. All license transfer and service or training
fees due and owing to Arby's, Inc. arising out of the purchase and sale of the
Assets shall be paid at the Closing by, and be the exclusive obligation of,
Buyer.
1.10 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Fidelity Title
Abstract located at 000 Xxxxx 00 Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx on or before
April 15, 1998 (the parties hereto making a good faith effort to close on or
before March 31, 1998), following the satisfaction of all of the conditions to
Closing set forth herein, or on such other date and at such other time or place
as the parties may agree. The date of the Closing is sometimes referred to
herein as the "Closing Date".
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1.11 Deliveries by Seller. At the Closing, the Seller shall deliver or
cause to be delivered to Buyer (unless previously delivered) the following:
(a) this duly executed Agreement;
(b) a duly executed Xxxx of Sale substantially in the form of
Exhibit A attached hereto;
(c) a duly executed Assignment and Assumption Agreement
substantially in the form of Exhibit B attached hereto (the "Assignment and
Assumption Agreement");
(d) a duly executed Lease Assignment and Assumption Agreement
substantially in the form of Exhibit C attached hereto (the "Lease Assignment
and Assumption Agreement");
(e) an opinion of counsel to the Seller substantially in the form
of Exhibit D attached hereto;
(f) a duly executed Leasehold Assignment and Assumption Agreement
substantially in the form of Exhibit E attached hereto (the "Leasehold
Assignment and Assumption Agreement");
(g) a duly executed Real Property Contract Assignment and
Assumption Agreement substantially in the form of Exhibit F attached hereto (the
"Real Property Contract Assignment and Assumption Agreement");
(h) the books and records of Seller as provided in Section 2.2
hereof;
(i) copies of all necessary consents, approvals, authorizations
and waivers of all third parties referred to in Section 5.4 hereof;
(j) copies of resolutions of Seller's Board of Directors
authorizing this Agreement and the other agreements, documents and instruments
to be executed and delivered by Seller pursuant hereto and the transactions
contemplated hereby and thereby; and
(k) all other previously undelivered documents, instruments and
writings required to be delivered by Seller on or prior to the Closing pursuant
to this Agreement or otherwise required in connection herewith.
1.12 Deliveries by Buyer. At the Closing, the Buyer shall deliver or
cause to be delivered to Seller (unless previously delivered) the following:
(a) the funds referred to in Section 1.4 hereof;
(b) this duly executed Agreement;
(c) a duly executed Xxxx of Sale substantially in the form of
Exhibit A attached hereto;
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(d) a duly executed Assignment and Assumption Agreement
substantially in the form of Exhibit B attached hereto;
(e) a duly executed Lease Assignment and Assumption Agreement
substantially in the form of Exhibit C attached hereto;
(f) a duly executed Leasehold Assignment and Assumption Agreement
substantially in the form of Exhibit E attached hereto;
(g) a duly executed Real Property Contract Assignment and
Assumption Agreement substantially in the form of Exhibit F attached hereto;
(h) copies of resolutions of Buyer's Board of Directors
authorizing this Agreement and the other agreements, documents and instruments
to be executed and delivered by Buyer pursuant hereto and the transactions
contemplated hereby and thereby; and
(i) all other previously undelivered documents, instruments and
writings required to be delivered by Buyer on or prior to the Closing pursuant
to this Agreement or otherwise required in connection herewith.
1.13 Transfer of Employees. The Seller shall, effective as of the
Closing Date, terminate the employment of all of the employees who are then
employed by the Seller at the premises of the Restaurants to be transferred as
of the Closing Date (collectively, the "Employees"). Buyer, at its discretion,
may hire any or all of the terminated Employees on or after the Closing Date.
1.14 Accrued Vacation Pay. The Seller shall pay in full the amount of
vacation pay owed to each Employee no later than the Closing Date.
ARTICLE 2
RELATED MATTERS
2.1 Additional Contracts. At the Closing, Buyer and the Seller shall
enter into the following:
(a) a Leasehold Assignment and Assumption Agreement substantially
in the form of Exhibit E attached hereto, pursuant to which Seller shall assign
and Buyer shall assume Seller's sublease with respect to the land and building
associated with a closed Xxx Xxxxxx restaurant in Vineland, New Jersey from
Hardee's Food Systems. In connection therewith, in addition to the Purchase
Price, Buyer shall pay to Seller simultaneously with the execution of this
Agreement (to the extent already paid by Seller) or promptly following payment
by Seller (to the extent paid by Seller following the date hereof) (i) the sum
of Five Thousand Dollars ($5,000), as reimbursement to Seller for deposits
previously paid and (ii) the sum of Three Thousand Seven Hundred Fifty Dollars
($3,750), as reimbursement to Seller for rents paid in March 1998, plus an
additional Three Thousand Seven Hundred Fifty Dollars ($3,750), as reimbursement
to Seller for rents paid thereon for each month (or portion thereof) thereafter
until the Closing Date; and
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(b) a Real Property Contract Assignment and Assumption Agreement
substantially in the form of Exhibit F attached hereto pursuant to which the
Seller shall assign and Buyer shall assume Seller's contract to purchase the
land, building and equipment associated with a closed Arby's restaurant located
in West Berlin, New Jersey pursuant to a contract attached hereto as Exhibit G
upon the same terms and conditions granted to Seller as set forth in such
contract. In connection therewith, and in addition to the Purchase Price, Buyer
shall pay to Seller simultaneously with the execution of this Agreement (to the
extent already paid by Seller) or promptly following payment by Seller (to the
extent paid by Seller following the date hereof) (i) the sum of One Thousand
Dollars ($1,000), as reimbursement to Seller for deposits previously paid; (ii)
the sum of One Thousand Three Hundred Thirty-Three Dollars ($1,333), as
reimbursement to Seller for utility deposits previously paid; and (iii) the sum
of Four Thousand Dollars ($4,000), as reimbursement to Seller for rents paid in
December 1997, plus an additional Six Thousand Dollars ($6,000), as
reimbursement to Seller for rents paid thereon for each month (or portion
thereof) thereafter until the closing of the transactions contemplated by the
Real Property Contract Assignment and Assumption Agreement; and (iv) the sum of
Seven Thousand Eighty-Eight Dollars and Two Cents (1,088.02), as reimbursement
to Seller for leasing fees previously paid. In addition, Buyer shall reimburse
Seller at Closing for similar reasonable expenditures incurred by Seller between
the date hereof and the Closing, such as insurance and utilities.
2.2 Books and Records of Seller. Seller agrees to deliver to Buyer on or
as soon as practicable after the Closing Date, as requested by Buyer, all books
and records of such Seller (including, but not limited to, correspondence,
memoranda, books of account, personnel and payroll records and the like)
relating to the ownership and/or operation of the Operating Restaurant. All
books and records of Seller which are not delivered to Buyer hereunder will be
preserved by Seller for a period of seven (7) years following the Closing and
made available to Buyer and its authorized representatives upon reasonable
notice during normal business hours for purposes of review and/or for purposes
of making copies or extracts therefrom (at Buyer's expense) if so desired by
Buyer. Buyer agrees to make available to Seller and its respective authorized
representatives during such period as reasonably required by Seller the
respective books and records previously delivered by Seller to Buyer for
purposes of review and/or for purposes of making copies or extracts therefrom if
so desired by Seller.
2.3 Confidentiality; Non-Competition.
(a) The Seller acknowledges that Buyer would be irreparably
damaged if confidential information about Seller's businesses with respect to
the Restaurants were disclosed to or utilized on behalf of any person, firm,
corporation or other business organization which is in competition in any
respect with the operation of the Restaurants. The Seller covenants and agrees
that it will not at any time, and will use its respective best efforts to cause
its employees, agents, affiliates and associates (as the terms "affiliate" and
"associate" are defined by the Rules and Regulations promulgated under the
Securities Act of 1933, as amended) not to at any time, without the prior
written consent of Buyer, disclose or use any such confidential information,
except to employees and authorized representatives of Buyer. In connection
therewith, Seller acknowledges that they will, prior to Closing, deliver all
such confidential information about the Restaurants and the Assets to Buyer,
without retaining any copies thereof or extracts therefrom.
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(b) In furtherance of this Section 2.3 and to secure the
interests of Buyer hereunder, Seller agrees that for a period of five (5) years
following the Closing Date (the "Non-Competition Period"), it will not, directly
or indirectly (whether as sole proprietor, partner or venturer, stockholder,
director, officer, employee or consultant or in any other capacity or employee
acting as nominee or agent):
(i) conduct or engage in or be interested in or associated
with any person, firm, association, partnership, corporation or other entity
which conducts or engages, directly or indirectly, in the ownership or operation
of any Arby's restaurant (the "Business") in the southern New Jersey region (the
"Geographic Area");
(ii) take any action, directly or indirectly, to finance,
guarantee or provide any other material assistance to any person, firm,
association, partnership, corporation or other entity which conducts or engages,
directly or indirectly, in the Business in the Geographic Area;
(iii) influence or attempt to influence any person, firm,
association, partnership, corporation or other entity who is a contracting party
with Buyer at any time during the Non-Competition Period to terminate any
written or oral agreement with Buyer;
(iv) hire or attempt to hire for employment any person who
is employed by Buyer or attempt to influence any such person to terminate
employment with Buyer; or
(v) call on, solicit or take away as a supplier or
customer or attempt to call on, solicit or take away as a supplier or customer
any person, firm, association, partnership, corporation or other entity that is
a supplier or customer of Buyer.
(c) It is agreed and understood by and among the parties to this
Agreement that the restrictive covenants set forth above are each individually
essential elements of this Agreement and that, but for the agreement of Seller
to comply with such covenants, Buyer would not have agreed to enter into this
Agreement. Further, Seller expressly acknowledges that the restrictions
contained in paragraph (b) of this Section 2.3 are reasonable and necessary to
accomplish the mutual objectives of the parties and to protect Buyer's
legitimate interests in its business and business relationships. Seller further
acknowledges that enforcement of the restrictions contained herein will not
deprive it, or any of its agents, servants or employees, or any of them, of the
ability to earn reasonable livings and that any violation of the restrictions
contained in this Agreement will cause irreparable injury to Buyer. Such
covenants of Seller shall be construed as agreements independent of any other
provision of this Agreement.
(d) The parties hereto agree that damages at law, including, but
not limited to, monetary damages, will be an insufficient remedy to Buyer in the
event that the restrictive covenants of paragraph (b) of this Section 2.3 are
violated and that, in addition to any remedies or rights that may be available
to Buyer, all of which other remedies or rights shall be deemed to be
cumulative, retained by Buyer and not waived by the enforcement of any remedy
available
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hereunder, including, but not limited to, the right to xxx for monetary damages,
Buyer shall also be entitled, upon application to a court of competent
jurisdiction, to obtain injunctive relief, including, but not limited to, a
temporary, preliminary or permanent injunction, to enforce the provisions of
this Section 2.3 as well as an equitable accounting of all profits or benefits
arising out of any such violation, all of which shall constitute rights and
remedies to which Buyer may be entitled.
(e) If any court determines that the covenant not to compete
contained in this Section 2.3, or any part hereof, is unenforceable because of
the duration or geographic scope of such provision, such court shall have the
power to reduce the duration or scope of such provision, as the case may be,
and, in its reduced form, such provision shall then be enforceable.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As a material inducement to Buyer to enter into this Agreement and to
perform its obligations hereunder, the Seller hereby represents and warrants to
Buyer with respect to itself and the Assets which it purports to own as follows:
3.1 Organization of the Seller. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey. The Seller has all necessary power and authority to own or lease,
operate and sell its properties and to carry on its business as it is now being
conducted.
3.2 Authorization and Approvals. The Seller has all necessary power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly and validly authorized by all necessary
action on the part of the Seller. This Agreement constitutes the legal, valid
and binding obligation of the Seller, enforceable in accordance with its terms,
subject to judicial discretion regarding specific performance or other equitable
remedies, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the enforcement of creditors'
rights and remedies generally. No approvals or consents by any third party,
other then Arby's, Inc. and certain lessors, or any governmental or
administrative body or agency or any court is required in connection with the
Seller's execution and delivery of this Agreement or the performance of its
obligations hereunder.
3.3 No Violation. Neither the Seller's execution and delivery of this
Agreement or the other agreements, documents and instruments to be executed and
delivered by Seller in connection herewith nor the performance of its
obligations hereunder will (a) result in a default under any of the terms,
conditions or provisions of any of the Contracts or any of the Seller's
organizational documents or (b) violate any existing order, writ, injunction,
decree, law, statute, rule or regulation of any court or governmental authority
applicable to the Seller or the Assets.
3.4 Title to Properties. The Seller has good, valid and marketable title
to all of the Assets. On the Closing Date, the Assets owned by the Seller are
free and clear of any title defects or objections, liens, mechanic's liens,
claims, charges, security interests or other encumbrances of
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any kind or nature whatsoever, except for (a) minor imperfections of title, none
of which materially detract from the value or impair the use of the Assets, (b)
liens for current real or property taxes not yet due and payable, and (c) the
liens and encumbrances approved in writing by Buyer.
3.5 Financial Statements. The Seller has delivered to Buyer financial
statements of the Operating Restaurant as prepared by Seller's accountants. The
financial statements have been prepared in accordance with generally accepted
accounting principles, practices and procedures consistently applied through the
periods reported upon. Since the date of such financial statements, there has
not been any material adverse change in the financial condition or results of
operations of the Operating Restaurant from those reflected in the latest
financial statements, or any damage, destruction or loss to any assets of the
Operating Restaurant, whether covered by insurance or not, having a material
adverse effect on the assets or businesses of the Operating Restaurant or any
other event or condition of any character relating to and materially affecting
the assets or businesses of the Operating Restaurant.
3.6 Condition of FF&E. The FF&E are, and as of the Closing Date will be,
in good working condition and repair, normal wear and tear excepted, and none of
the FF&E are in need of repairs, except for ordinary, routine maintenance and
repairs which are not in the aggregate material in cost.
3.7 Inventory. The Inventory is of a quality usable and saleable in the
ordinary course of business of the Seller in the operation of the Operating
Restaurant, and there are no obsolete item or items of below standard quality
under the standards set forth in the Arby's License Agreement. At Closing, the
inventory levels at the Operating Restaurant shall be sufficient for the
ordinary course of operation of the Operating Restaurant, consistent with past
practices.
3.8 Contracts. The Seller has delivered to Buyer complete, current and
correct copies of the Contracts, and no changes have been made thereto since the
date of delivery. Each of the Contracts is in full force and effect and is
valid, binding and enforceable in accordance with its terms with respect to the
parties thereto. There are no existing defaults by the Seller thereunder.
3.9 Compliance with Laws. The operation by the Seller of the Operating
Restaurant has been conducted in all material respects in compliance with all
applicable laws, statutes ordinances, rules, regulations, orders, decrees or
ruling of all governmental authorities or agencies having jurisdiction over the
Seller. All licenses, permits and authorizations issued or granted by a federal,
state or local governmental authority or agency which are necessary for the
conduct of the business at the Operating Restaurant are validly held by the
Seller.
3.10 Labor Issues. No strike, picketing or similar action is pending or
threatened against the Seller by their employees or any labor union. In
addition, Seller is not engaged in any unfair labor practices in connection with
the operation of the Operating Restaurant.
3.11 Litigation. There is no pending or threatened suit, action,
arbitration, proceeding, investigation or inquiry before any court or
governmental or administrative body or agency
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against the Seller or either of the Restaurants. The Seller is not in violation
of or in default under or subject to any order, judgment, writ, injunction or
decree of any court or governmental or administrative body or agency.
3.12 Leases. Each of the Restaurants' real property leases
(collectively, the "Leases" and each a "Lease") and all amendments.
modifications and/or extensions thereto or thereof are listed on Schedule 3.12
hereto. Schedule 3.12 hereto also lists, with respect to each Lease, the name of
the tenant(s) and landlord(s). With respect to the Leases, (i) the Leases are in
full force and effect, are unmodified (other than listed on Schedule 3.12
hereto), and are binding and enforceable in accordance with their terms; (ii)
all rental and other charges payable pursuant to the terms and conditions of the
Leases have been paid as of the Closing Date; (iii) the Seller has not defaulted
on any agreement, covenant or condition on the part of or to be performed by or
observed by Seller pursuant to the terms of the Leases, and no condition exists
which, with the serving of notice, passage of time, or both, will constitute
such a default; (iv) there are no actions or proceedings pending or threatened
by any lessor under any of the Leases; (v) except for the security deposits
identified on Schedule 1.1(g) hereto, no lessor holds any deposits for Seller's
account on any Lease; (vi) there are no defaults by any of the respective
lessors of any agreement, covenant or condition on the part of or to be
performed by or observed by such lessors pursuant to the terms of the Leases;
(vii) all reciprocal servitude or similar agreements benefiting any or by which
any real property leased by Seller ("Leased Property") is bound are in full
force and effect and there is no default by any party thereunder of its
obligations; and (viii) each Lease is a direct lease with the fee owner of the
real property. The current expiration dates and remaining options to extend the
Leases are as set forth on Schedule 3.12 hereto, as are the minimum monthly rent
and additional rent under the Leases.
3.13 Zoning and Land Use Matters. (a) All required licenses, permits,
certificates and approvals, including building and use permits, were obtained
and remain valid for the construction, use and occupancy and operation of the
Leased Property and the Restaurants located thereon; (b) the Leased Property and
all improvements located thereon are zoned or have a variance or conditional use
permit for the intended use by the zoning jurisdictions in which it is located;
and (c) the Leased Property is in full compliance with all conditions and
requirements of any building permit, use permits, conditional use permits or
zoning classifications, subdivision approvals, zoning restrictions, building
codes, environmental zoning and land-use laws, and other applicable local, state
and federal laws and regulations and comply with the requirements of all
conditions, covenants and restrictions applicable to the Leased Property.
3.14 Normal Use. The Seller does not know of any facts nor has the
Seller failed to disclose any fact which would prevent any of the Leased
Property from being used and operated after the Closing as Arby's restaurants in
accordance in all material respects with the operational terms of the Arby's
License Agreement.
3.15 Condemnation. The Seller has not received any written notice of any
pending or threatened exercise of eminent domain, condemnation, environmental,
zoning, other land-use regulations proceedings or any other similar action with
respect to any of the Leased Property, and the Seller has not received any
written notice of any federal, state, county, municipal or other
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governmental plans to restrict or change access from any highway or road
bounding any of the Leased Property.
3.16 Copies. All Leases, nondisturbance agreements, landlord estoppel
certificates, certificates of occupancy, sale/leaseback agreements, leasehold
mortgages and other leases in which the Seller is a lessor or sublessor and
which have been delivered or made available to Buyer pursuant to this Agreement
or otherwise in connection with the execution hereof or in connection with
Buyer's due diligence review, are true, complete and correct copies of the
originals of the same documents in the Seller's possession, and the same have
not been modified or amended, except pursuant to documents, copies of which have
been delivered to Buyer.
3.17 Parking, Easements and Related Agreements. Except as set forth in
the Leases, there are no written or oral parking leases, easements, agreements,
grants, licenses, options or any other agreement pursuant to which either Seller
is granted, for use in connection with the Restaurants, parking privileges or
rights, current or perspective, and/or rights of access of any kind or nature in
and to the Leased Property.
3.18 Water, Sewer, Gas, Etc. All water, sewer, gas, electric, telephone
and drainage facilities, and all other utilities required by applicable law or
necessary for the normal use and operation of the Leased Property and the
Restaurants located thereon or by Arby's, Inc.'s standards are available and are
adequate to service the Leased Property and the Restaurants located thereon.
3.19 Violations. All notes or notices of violations of law or municipal
ordinances, orders or requirements noted in or issued by the Department of
Housing and Building, Fire, Labor, Health or other state or municipal department
having jurisdiction over the Leased Property, against or affecting the Leased
Property on and prior to the Closing Date, shall be complied with by the Seller,
and the Leased Property shall be free of the same.
3.20 Environmental Protection.
(a) For purposes of this Section 3.20, the following definitions
shall apply:
(i) "Environmental Laws" shall mean all federal, state,
local and foreign laws imposing liability or establishing standards of conduct
for the protection of the environment and human health;
(ii) "Environmental Claim" shall mean any complaint,
summons, citation, notice, directive, order, claim, litigation, investigation,
judicial or administrative proceeding, judgment, letter or other communication
from any governmental agency, department, bureau, office or other authority
having jurisdiction or any third party, involving violations of Environmental
Laws or Releases of Hazardous Materials;
(iii)"Environmental Liabilities" shall mean any monetary
obligations, losses, damages, costs and expenses (including all reasonable
out-of-pocket fees, disbursements and expenses of counsel, out-of-pocket expert
and consulting fees and out-of-pocket costs for
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environmental site assessments, remedial investigations and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of any
Environmental Claim filed by any governmental authority or any third party which
relate to any violations of Environmental Laws or Release of Hazardous Materials
generated by any of the Restaurants;
(iv) "Hazardous Materials" shall mean (A) any element,
compound or chemical that is defined, listed or otherwise classified as a
contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely
hazardous substance or chemical. Hazardous waste, medical waste, biohazardous
waste or infectious waste, special waste, or solid waste under Environmental
Laws; (B) petroleum and its refined products; (C) polychlorinated biphenyls; (D)
any substance exhibiting a hazardous waste characteristic (as defined under
Environmental Laws), including, but not limited to, corrosivity, ignitability, .
toxicity or reactivity as well as any radioactive or explosive materials; and
(E) asbestos-containing materials;
(v) "Release" shall mean any spilling, leaking, pumping,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing of Hazardous Materials (including the abandonment or discarding of
barrels, containers or other closed receptacles containing Hazardous Materials)
into the environment.
(b) To the knowledge of the Seller, Seller has obtained all
permits, licenses or authorizations required by Environmental Laws, except where
the failure to obtain any such permit, license or authorization would not have a
material adverse effect upon the Assets or the operations of any of the
Restaurants (a "Material Adverse Effect"), and all such permits. licenses or
authorizations are in full force and effect, except for such permits, licenses
and authorizations which, if not in full force and effect, would not constitute
a Material Adverse Effect.
(c) To the knowledge of the Seller, the operations of the
Restaurants are in full compliance with all Environmental Laws, except where
such noncompliance would not have a Material Adverse Effect.
(d) To the knowledge of the Seller, there has been no Release at
any of the Leased Properties or at any disposal or treatment facility which has
received Hazardous Materials generated by any of the Restaurants which will
result in Environmental Liabilities that have a Material Adverse Effect.
(e) To the knowledge of the Seller, there are no outstanding
Environmental Claims that have a Material Adverse Effect.
3.21 License Agreements. The Seller has previously delivered or made
available to Buyer true, complete and correct copies of the Arby's License
Agreement and other agreements between Arby's, Inc. and the Seller. Set forth on
Schedule 3.21 hereto is a description of the Arby's License Agreement, including
the license agreement number, location and date of termination of the Arby's
License Agreement. The Seller has received no notice of a violation with respect
to the Arby's License Agreement and does not know of any event which would give
rise to a violation or default under the Arby's License Agreement. All renewal
notices, to the
12
extent required by the Arby's License Agreement, have been delivered by the
Seller to Arby's, Inc. on a timely basis.
3.22 Contracts for Improvements. At the time of Closing, there will be
no outstanding contracts made by the Seller for any improvements to any of the
Restaurants which have not been fully paid for, and the Seller shall cause to be
discharged all mechanic's liens or materialman's liens, if any, arising from any
labor or materials furnished to the Restaurants prior to the time of Closing.
3.23 Improvements and Structural Defects. The structural portions of the
Restaurants and the plumbing, heating, air conditioning, electrical, mechanical,
life safety and other systems therein are in sufficient operating condition and
repair to allow them to operate as "turn-key" Arby's restaurants.
3.24 Brokers and Finders. Neither the Seller nor any of its directors,
officers. employees or other representatives, as the case may be, has engaged or
employed any broker, finder or agent or has incurred any liability or obligation
to pay any brokerage fees, commissions or finder's fees in connection with the
transactions contemplated by this Agreement.
3.25 Accuracy of Representations and Warranties. Subject to the
qualifications stated herein, no representation or warranty made by the Seller
in this Agreement contains any untrue statement of material fact or omits to
state a material fact necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to the Seller to enter into this Agreement and
to perform its obligations hereunder, Buyer hereby represents and warrants to
the Seller as follows:
4.1 Authorization and Approvals. Buyer has all necessary power and
authority to deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the legal. valid and binding obligation of Buyer
enforceable in accordance with its terms, subject to judicial discretion
regarding specific performance or other equitable remedies, and except as may be
limited by bankruptcy, reorganization, insolvency, moratorium or other laws
relating to or affecting the enforcement of creditors rights and remedies
generally. No approvals or consents by any third party or any governmental or
administrative body or agency or any court is required in connection with
Buyer's execution and delivery of this Agreement or Buyer's performance of its
obligations hereunder.
4.2 No Violation. Neither the execution and delivery of this Agreement
or the other agreements, documents and instruments to be executed and delivered
by Seller in connection herewith nor the performance of the obligations
hereunder will (a) result in a default under any of the terms, conditions or
provisions of any contract, agreement, instrument, commitment or undertaking to
which Buyer is a party or is subject or any of the organizational documents of
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Buyer or (b) violate any existing order, writ, injunction, decree, law, statute,
rule or regulation of any court or governmental authority applicable to Buyer.
4.3 Brokers and Finders. Neither Buyer nor any of its employees or
representatives has engaged or employed any broker, finder or agent or has
incurred any liability or obligation to pay any brokerage fees, commissions or
finder's fees in connection with the transactions contemplated by this
Agreement.
4.4 Accuracy of Representations and Warranties. Subject to the
qualifications stated herein, to Buyer's actual knowledge, no representation or
warranty made by Buyer in this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not
misleading.
ARTICLE 5
COVENANTS OF THE SELLER AND BUYER
Pending the consummation of the transactions contemplated hereunder, the
Seller and Buyer covenant and agree as follows:
5.1 Conduct of Business. From the date hereof until the Closing Date or
the termination of this Agreement pursuant to Article 9 hereof, the Seller shall
conduct the operation of the Operating Restaurant in the ordinary course of
business consistent with prior practices and pursuant to the terms and
provisions of the Arby's License Agreement, except as may be consented to in
writing by Buyer. The Seller shall maintain the FF&E in good working condition
and repair, normal wear and tear excepted. The Seller shall continue to meet the
contractual obligations incurred by it in the ordinary course of business and to
pay all of each of its obligations as they mature in the ordinary course of the
operation of the Operating Restaurant. The Seller shall also use its good faith
best efforts to keep available the services of the Employees, to maintain the
Contracts in full force and effect and to preserve its good relations with its
suppliers, customers and others with whom it has business dealings.
5.2 Access to Buyer. Prior to the Closing Date and upon the written
request of Buyer, the Seller shall give Buyer and its counsel, accountants and
other representatives reasonable access, during normal business hours, to the
Restaurant premises, employees, customer books, contracts, records and all other
information pertaining to the Assets and the operations of the Restaurants as
Buyer may reasonably request.
5.3 Compliance with Laws; Preservation of Accuracy of Representations
and Warranties, Etc. The Seller shall duly comply with all of the laws
applicable to it, and the Seller shall conduct the operation of the Operating
Restaurant and use the Assets in such manner that on the Closing Date the
representations and warranties contained in this Agreement shall be true as
though such representations and warranties were made on and as of such date.
5.4 Consents and Approvals. The Seller and Buyer shall use their
respective best efforts to acquire all necessary consents, approvals,
authorizations and waivers of all third parties
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(including, without limitation, the consent of Arby's, Inc. to the sale of the
Restaurants as set forth herein from Seller to Buyer and the lessors under the
various leases) or governmental agencies or authorities required to be obtained
by them in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereunder.
5.5 Closing Inventory. On or prior to the Closing Date, representatives
of each of the Seller and Buyer shall jointly conduct an inventory of all the
Inventory on hand at the Operating Restaurant, together with all Inventory on
order as of the Closing Date. The results of this inventory shall be reasonably
satisfactory to the parties and shall be attached hereto as Schedule 5.5 as soon
as practicable after the Closing Date. As of the Closing Date, the Seller shall
cause all of the Inventory at the Operating Restaurant to remain at the
Operating Restaurant for operational purposes.
5.6 Bulk Sales Law. Based on the right of indemnification set forth in
Section 8.2 hereof, Buyer hereby waives compliance by Seller with the applicable
bulk transfer laws, including, without limitation, the bulk transfer provisions
of the Uniform Commercial Code of the State of New Jersey, with respect to the
transactions contemplated hereby.
5.7 Estoppel Certificates. Within two (2) business days following the
date hereof, the Seller shall send out for execution estoppel certificates in
the form of Exhibit H attached hereto (the "Estoppel Certificates") to the real
property lessors of each of the Restaurants. The Seller agrees to use its best
efforts to obtain the maximum number of executed Estoppel Certificates prior to
the Closing Date. The Seller agrees to promptly deliver to Buyer copies of
executed Estoppel Certificates as they are received by Seller prior to the
Closing Date.
5.8 Non-Disturbance Agreements. The Seller shall use its best efforts to
obtain from any holder of a superior mortgage on any of the Leased Property, for
the benefit of Buyer, an agreement (the "Non-Disturbance Agreements") which
shall provide in substance that so long as the Lease is in effect and Buyer is
not in breach or default beyond applicable grace periods thereunder: (i) Buyer
shall not be joined as a party defendant in any foreclosure action or proceeding
which may be instituted or taken by the holder of such superior mortgage and
(ii) Buyer shall not be evicted from the Leased Property nor shall Buyer's
leasehold estate under the Lease be terminated or disturbed, nor shall any of
Buyer's rights under the Lease be affected by reason of any default under such
superior mortgage, any disaffirmance of such superior mortgage or other
termination of such superior mortgage.
5.9 Other Transactions. Until the termination of this Agreement or the
consummation of the transactions contemplated hereby, the Seller shall not, and
the Seller shall cause its directors, officers, employees, agents, affiliates
and advisors not to, directly or indirectly, solicit or initiate the submission
of proposals of offers from, or solicit, encourage, entertain or enter into any
agreement, arrangement or understanding with, or engage in any discussions with,
or furnish any information to, any person or entity, other than Buyer or a
representative thereof, with respect to the acquisition of all or any part of
the Seller or any of its Restaurants. Should the Seller or any of its affiliates
or representatives, during such period, receive any offer or inquiry relating to
such a transaction, or obtain information that such an offer is likely to be
made, the
15
Seller shall provide Buyer with immediate notice thereof, which notice shall
include the identity of the prospective offeror and the price and terms of any
offer.
5.10 Supplemental Disclosure. The Seller agrees that, with respect to
the representations and warranties made by it in this Agreement, from the date
hereof until the Closing Date, it shall have the continuing obligation to
promptly supplement or amend the schedules to this Agreement with respect to any
matter hereafter arising or discovered which, if existing or known at the date
hereof, would have been required to be set forth or described in the schedules
to this Agreement; provided, however, that for purposes of the rights and
obligations of the parties hereunder, any such supplemental or amended schedules
and any matters discovered by Buyer in the course of its due diligence review
shall not be deemed to cure any breach of any representation or warranty made in
this Agreement or to have been disclosed as of the date of this Agreement.
5.11 Other Action. Each of the parties hereto shall use its reasonable
best efforts to cause the fulfillment at the earliest practicable date of all of
the conditions to their respective obligations to consummate the purchase and
sale of the Restaurants and the Assets pursuant to this Agreement.
ARTICLE 6
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer to consummate the transactions contemplated by
this Agreement are subject to the satisfaction by Seller (or waiver by Buyer) on
or prior to Closing Date of the following conditions:
6.1 Representations and Warranties. The representations and warranties
made by the Seller herein shall be true and correct in all material respects on
and as of the date hereof and as of the Closing Date with the same force and
effect as though all such representations and warranties had been made on and as
of the Closing Date.
6.2 Covenants and Agreements. All of the covenants and agreements herein
to be complied with and performed by the Seller on or prior to the Closing Date
will have been complied with and performed in all material respects.
6.3 Consents. The Seller will have obtained the consent of Arby's, Inc.
to convey, transfer or assign the Arby's License Agreement to Buyer, and the
Seller shall have obtained all other necessary consents, approvals,
authorizations and waivers of all third parties (including, without limitation,
the consents, to the extent required, of the lessors under the various Leases)
or governmental agencies or authorities required to be obtained by it in
connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereunder. Any item required
by this paragraph may be waived in writing by the Buyer.
6.4 Litigation and Claims. No action, suit, proceeding or investigation
by or before any court, administrative agency or other governmental authority
will have been instituted or
16
threatened, and no inquiry will have been received that in the reasonable
opinion of Buyer is likely to lead to any action, suit, proceeding or
investigation to restrain, prohibit or invalidate any of the transactions
contemplated by this Agreement.
6.5 Absence of Changes. There shall not have occurred prior to the
Closing Date (a) any material adverse change in the Assets or the financial
condition or results of operations of any of the Restaurants or (b) the legal
inability of the Seller to convey, assign and transfer the Assets to Buyer.
6.6 Financing. Buyer shall have obtained firm commitments for the amount
of financing necessary to enable it to pay the Purchase Price to the Seller;
provided, however, that this condition to Closing shall expire on March 20,
1998.
6.7 Estoppel Certificates. The Seller shall have obtained and delivered
to Buyer executed copies of the Estoppel Certificates referred to in Section 5.7
hereof from its lessors.
6.8 Non-Disturbance Agreements. The Seller shall have obtained and
delivered to Buyer executed copies of the Non-Disturbance Agreements referred to
in Section 5.8 hereof from each holder of a superior mortgage on any of the
Lease Property.
6.9 Additional Contracts. The Seller shall have duly executed the
Leasehold Assignment and Assumption Agreement and the Real Property Contract
Assignment and Assumption Agreement referred to in Section 2.1 hereof.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
The obligation of the Seller to consummate the transactions contemplated
by this Agreement is subject to the satisfaction by Buyer (or waiver by the
Seller) on or prior to the Closing Date of the following conditions:
7.1 Representations and Warranties. The representations and warranties
of Buyer herein shall be true and correct in all material respects on and as of
the date hereof and as of the Closing Date with the same force and effect as
though all such representations and warranties had been made on and as of the
Closing Date.
7.2 Covenants and Agreements. All of the covenants and agreements herein
to be complied with and performed by Buyer on or prior to the Closing Date will
have been complied with and performed in all material respects.
7.3 Consents. The Seller shall have obtained the consent from Arby's,
Inc. to convey, transfer or assign the Arby's License Agreement to Buyer.
7.4 Litigation. No action, suit. proceeding, or investigation by or
before any court, administrative agency or other governmental authority shall
have been instituted or threatened, and no inquiry will have been received that
in the reasonable opinion of the Seller is likely to lead
17
to an action, suit, proceeding or investigation to restrain, prohibit or
invalidate any of the transactions contemplated by this Agreement.
7.5 Additional Contracts. The Buyer shall have duly executed the
Leasehold Assignment and Assumption Agreement and the Real Property Contract
Assignment and Assumption Agreement referred to in Section 2.1 hereof.
ARTICLE 8
INDEMNIFICATION
8.1 Survival of Representations. All representations and warranties made
by any party in this Agreement or pursuant hereto shall survive the Closing and
any investigation at any time made by or on behalf of any party for the
applicable statute of limitations period and any extensions thereof.
8.2 Agreement of Seller to Indemnify. The Seller shall indemnify and
defend Buyer and its officers, directors, employees, representatives, agents,
shareholders, partners and affiliates (and their respective officers, directors,
employees. representatives, agents, shareholders, partners and affiliates) and
hold each of them harmless from and against any loss, claim, liability, cost,
damage or expense (including, but not limited to, all expenses reasonably
incurred in investigating, preparing and defending any litigation or proceeding,
commenced or threatened, or any claim or action whatsoever) (collectively,
"Losses") suffered or incurred by any such indemnified party to the extent
arising from (i) any breach of any representation or warranty of Seller
contained in this Agreement or in any schedule, certificate, instrument or other
document delivered pursuant hereto, (ii) any breach of any covenant or agreement
of Seller contained in this Agreement, (iii) any liabilities, obligations,
contracts (written or otherwise), debts, expenses or costs of Seller of any kind
or nature other than the Assumed Liabilities, (iv) any federal, state, local,
foreign or other taxes of Seller or with respect to any of the Assets that are
due and payable whether on or before the Closing Date or with respect to any
period or portion thereof ending on or before the Closing Date or (v) any
failure by Seller to comply with applicable bulk transfer laws, including,
without limitation, the bulk transfer provisions of the Uniform Commercial Code
of the State of New Jersey, with respect to the transactions contemplated by
this Agreement. Subject to the provisions of the preceding sentence, payments in
respect of the indemnification provided in this Section 8.2 shall be made
promptly as Losses shall be incurred.
8.3 Agreement of Buyer to Indemnify. Buyer shall indemnify the Seller
and each of its officers, directors, employees, representatives, agents,
shareholders, partners and affiliates (and their respective officers, directors,
employees. representatives, agents, shareholders, partners and affiliates) and
hold each of them harmless from and against any Losses suffered or incurred by
any such indemnified party to the extent arising from (i) any breach of any
representation or warranty of Buyer contained in this Agreement or in any
schedule, certificate, instrument or other document delivered pursuant hereto,
(ii) any breach of any covenant or agreement of Buyer contained in this
Agreement, (iii) any liabilities, obligations, contracts (written or otherwise),
debts, expenses or costs of Buyer of any kind or nature under the Assumed
Liabilities or (iv) any federal, state, local, foreign or other taxes of Buyer
or with respect to any of the Assets that are due and payable following the
Closing Date or with respect to any period or portion thereof
18
ending after the Closing Date. Subject to the provisions of the preceding
sentence, payments in respect of the indemnification provided in this Section
8.3 shall be made promptly as Losses shall be incurred.
8.4 Remedies Cumulative. Except as otherwise provided herein, the
remedies provided herein shall be cumulative and shall not preclude the
assertion by any party hereto of any other rights or the seeking of any other
remedies against the other party hereto.
ARTICLE 9
TERMINATION
9.1 Termination. The respective obligations of Seller and Buyer to
consummate the transactions contemplated by this Agreement may be terminated as
follows:
(a) by mutual written agreement of Buyer and Seller;
(b) by Buyer, if the condition to Closing set forth in Section
6.6 hereof has not been satisfied on or prior to March 20, 1998; or
(c) by Buyer or Seller if the Closing shall not have occurred on
or before April 15, 1998; provided, however, that the party exercising the
termination right provided in this paragraph (c) shall not have negligently,
intentionally or willfully caused the failure of any conditions to Closing set
forth in Articles 5 or 6 hereof to be satisfied prior to such date.
9.2 Effect of Termination. In the event of termination of this Agreement
as provided in Section 9.1 hereof, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto (or any of their
respective officers or directors), except (i) based upon obligations set forth
in Section 10.2 hereof; (ii) based upon Buyer's obligation to reimburse Seller
for those expenditures set forth in Section 2.1 hereof, provided that such
termination is not the result of Seller's failure to satisfy any of the
conditions to Closing set forth in Sections 6.1 through 6.5 or 6.7 through 6.9
hereof; and (iii) to the extent that failure to satisfy the conditions of
Articles 6 and 7 hereof results from the grossly negligent, intentional or
willful breach, violation or non-compliance by any party hereto of any covenant,
agreement, obligation, representation or warranty contained in this Agreement or
any other agreement referred to herein.
19
ARTICLE 10
MISCELLANEOUS
10.1 Notices. All notices. requests. demands and other communications
hereunder shall be in writing and shall be delivered personally, sent by
certified mail, postage prepaid, return receipt requested, overnight courier, or
sent by telecopier or other electronic facsimile transmission, as elected by the
party giving such notice:
(a) if to Buyer:
Sybra, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxx X. Arabia
with a copy to:
Pryor, Cashman, Xxxxxxx and Xxxxx
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxxxx, Esq.
(b) if to Seller:
RGS Enterprises of New Jersey, Inc.
000 Xxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxx
with a copy to:
Law Offices of Xxxxxxx X. Xxxx
High Ridge Commons, Suite 201
000 Xxxxxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxxxx Xxxx, Esq.
Any such notice or other communication will be deemed to have been received upon
actual receipt if personally delivered, one (1) business day following
transmission if sent by facsimile and appropriate confirmation is received or if
sent by overnight courier, or three (3) business days following mailing. Any
party hereto may change its address or facsimile number specified above by
giving written notice to the other party hereto in the same manner as specified
in this Section 10.1.
10.2 Expenses. Except as otherwise expressly provided herein, each party
shall pay all of its own expenses incidental to the negotiation and preparation
of the documentation relating to this Agreement, as well as for entering into
and carrying out the terms and conditions of this Agreement and consummating the
transactions contemplated by this Agreement, irrespective of whether such
transactions shall actually be consummated.
20
10.3 Entire Agreement. This Agreement, including the schedules and
annexes attached hereto, contains the entire understanding of the parties hereto
in respect of its subject matter. There are no other restrictions, promises,
warranties, covenants or understandings other than those expressly set forth
herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto.
10.4 Amendments; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged except by a written instrument executed by
the parties hereto. No failure to exercise and no delay in exercising any right,
power or privilege hereunder shall operate as a waiver hereto, nor shall any
single or partial exercise of any right power or privilege hereunder preclude
the exercise of any other right power or privilege (hereunder or otherwise). No
waiver of any breach of any agreement hereunder or any other agreement shall be
deemed to be a waiver of any preceding or succeeding breach of the same or any
other agreement. No extension of time of performance of any obligations or other
acts hereunder or under any other agreement shall be deemed to be an extension
of the time for performance of any other obligations or any other acts. The
rights and remedies of the parties under this Agreement are in addition to all
other rights and remedies, at law or in equity, that either party may have
against the other.
10.5 Further Assurances. From time to time, at the request of any party
hereto and without further consideration, the other party or parties shall
execute and deliver to such requesting party such documents and take such other
action (but without incurring any material financial obligation) as such
requesting party may reasonably request in order to consummate more effectively
the transactions contemplated hereby, including, without limitation, vesting in
Buyer good, valid and marketable title to the Restaurants and Assets being
transferred hereunder.
10.6 Severability. Any provision of this Agreement or any of the
agreements contemplated hereby that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or enforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
10.7 Headings. The descriptive headings of the Articles and Sections of
this Agreement are inserted for convenience and identification only and do not
constitute a part of this Agreement for purposes of interpretation.
10.8 Assignment. No party may assign its rights or delegate its duties
under this Agreement without the prior written consent of the other party
hereto. Whenever this Agreement refers to the Buyer or the Seller, such
reference will be deemed to include the permitted successors and assigns of such
party. The terms and conditions of this Agreement, the obligations imposed and
the rights conferred hereby will be binding upon and inure to the benefit of the
respective permitted successors and assigns of the parties hereto.
10.9 Attorneys' Fees. In the event of any action at law or in equity
with respect to this Agreement or any schedule, annex or other instrument or
agreement required hereunder, the
21
prevailing party in such action or suit shall be entitled to receive its
reasonable attorneys' fees and all other costs and expenses of such action or
suit.
10.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same Agreement.
10.11 Governing Law. This Agreement will be construed and interpreted
according to the laws of the State of New Jersey, without regard to conflict of
laws provisions thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SYBRA, INC.
By: /s/ Xxxxx X. Arabia
-------------------
Name: Xxxxx X. Arabia
Title: President
RGS ENTERPRISES OF NEW JERSEY, INC.
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
