EXECUTION COPY
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as
of February 19, 1998 by and among SYBRA, INC. a Michigan corporation ("Buyer")
and WOLVERINE FOOD SYSTEMS, INC., a Michigan corporation, with respect to the
goodwill, business, assets and properties (other than real property) of the
Restaurants (as defined below) (the "Seller") and WOLVERINE PROPERTIES, G.P., a
Michigan co-partnership, with respect to the real property and capital
improvements thereto of the Restaurants (the "Real Property Seller", and
together with the Seller, the "Sellers").
WITNESSETH:
WHEREAS, the Sellers currently own those certain Arby's restaurants
specified as units 5232, 5461, 5743 and 6130 (collectively, the "Restaurants");
and
WHEREAS, Buyer desires to purchase from the Sellers, and the Sellers
desire to sell to Buyer substantially all of the Sellers' respective interests
in the assets owned and used by the Sellers in connection with the ownership and
operation of the Restaurants, 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,
other than real property and capital improvements thereto, whether tangible or
intangible) and properties, goodwill and business which are owned or leased and
used by the Seller in the operation of the Restaurants (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 Restaurants and located on
the premises thereof;
1
(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 agreements with Arby's, Inc. ("Arby's License Agreements") pertaining
to the Restaurants which are 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 agreements (subject to Arby's, Inc.'s ownership of all identifying
marks and logos);
(d) All of the Sellers' respective rights, 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 Restaurants;
and
(f) To the extent assignable, all of 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, refundable income taxes, prepaid
interest, loans and exchanges and loans receivable; and
(c) All assets, leases and other contracts and agreements owned
or utilized by the Sellers with respect to premises other than the Restaurants.
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 Sellers 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, together with all rent and
lease obligations relating to the Restaurants and the Assets occurring from and
after the Closing Date;
2
(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
(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 Two Million Eight Hundred Thousand Dollars
($2,800,000), subject to reallocation pursuant to Section 1.7 hereof, plus an
amount equal to the value (at Seller's cost) of the Inventory (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 Sellers the Purchase Price by wire transfer of
immediately available funds to such bank account or bank accounts as shall be
designated by Sellers 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 and
other expenses prepaid or unpaid by the Sellers as of the Closing Date.
1.7 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets upon mutual agreement of the parties 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
Sellers, 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 First Metropolitan
Title Company located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx on or before
April 24, 1998, following the satisfaction of
3
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".
1.11 Deliveries by Sellers. At the Closing, the Sellers 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 Sellers substantially in the
form of Exhibit D attached hereto;
(f) the books and records of Sellers with respect to the
Restaurants as provided in Section 2.2 hereof;
(g) copies of all necessary consents, approvals, authorizations
and waivers of all third parties referred to in Section 5.4 hereof;
(h) copies of resolutions of Sellers' Board of Directors or
general partners, as the case may be, authorizing this Agreement and the other
agreements, documents and instruments to be executed and delivered by Sellers
pursuant hereto and the transactions contemplated hereby and thereby; and
(i) all other previously undelivered documents, instruments and
writings required to be delivered by Sellers 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 Sellers (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;
(d) a duly executed Assignment and Assumption Agreement
substantially in the form of Exhibit B attached hereto;
4
(e) a duly executed Lease Assignment and Assumption Agreement
substantially in the form of Exhibit C attached hereto;
(f) 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
(g) 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. Each of the Sellers shall, effective as of
the Closing Date, terminate the employment of all of the employees who are then
employed by each of the Sellers 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. Each of the Sellers shall pay in full the
amount of vacation pay owed to each of their respective Employees no later than
the Closing Date.
ARTICLE 2
RELATED MATTERS
2.1 Real Property Contract of Sale. Concurrently herewith, Buyer and the
Real Property Seller shall enter into a contract of sale (the "Real Property
Contract of Sale"), which shall be substantially in the form of Exhibit E
attached hereto, pursuant to which Buyer shall purchase from the Real Property
Seller fee title to the real property underlying Xxxx 0000 xxx Xxxx 0000 (xxx
"Xxx Units") for an aggregate purchase price of Two Million Dollars ($2,000,000)
in cash, subject to reallocation pursuant to Section 1.7 hereof.
2.2 Books and Records of Sellers. Each 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 any of the Restaurants. All books
and records of each Seller which are not delivered to Buyer hereunder shall be
preserved by such 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 shall preserve all books and records of each Seller delivered to
Buyer hereunder for a period of seven (7) years following the Closing, and shall
make available to each Seller and its respective authorized representatives
during such period the respective books and records previously delivered by each
Seller to Buyer for purposes of review and/or for purposes of making copies or
extracts therefrom if so desired by such Seller.
5
2.3 Confidentiality; Non-Competition.
(a) The Sellers acknowledge that Buyer would be irreparably
damaged if confidential information about Sellers' 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 Sellers each covenant and
agree that they will not at any time, and will use their respective best efforts
to cause their respective 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.
(b) In furtherance of this Section 2.3 and to secure the
interests of Buyer hereunder, each 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") which would generate competition with
any of the Restaurants or any other restaurants owned by Buyer or any of its
affiliates on the Closing Date;
(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 and which would generate competition
with any of the Restaurants or any other restaurants owned by Buyer or any of
its affiliates on the Closing Date
(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 on the Closing Date.
(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 Sellers
to comply with such covenants, Buyer would not have agreed to enter into this
Agreement. Further, each Seller expressly
6
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. Each 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 Sellers shall be construed
as agreements independent of any other provision of this Agreement and of each
other.
(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 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.
(f) Prior to the closing of the transactions contemplated
hereunder, the Buyer and the Sellers shall keep confidential, and shall use
their best efforts to cause their directors, officers, affiliates, advisors and
employees to keep confidential, the existence of this Agreement, the
transactions described herein and all information concerning the Sellers'
respective assets, properties and business, except that this paragraph shall not
apply to any information which (i) is subsequently disclosed by a third party
which has the bona fide right to make such disclosure, (ii) subsequently becomes
known to the general public through no fault or omission on the part of the
parties or (iii) is required to be disclosed by law or a governmental agency.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
As a material inducement to Buyer to enter into this Agreement and to
perform its obligations hereunder, each of the Sellers hereby represents and
warrants to Buyer with respect to themselves and the Assets which they purport
to own as follows:
7
3.1 Organization of the Sellers. Wolverine Properties, G.P. is a
co-partnership duly organized, validly existing and in good standing under the
laws of the State of Michigan. Wolverine Food Systems, Inc. is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Michigan. Each of the Sellers 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. Each of the Sellers 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 each of the Sellers. This Agreement
constitutes the legal, valid and binding obligation of each of the Sellers,
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 Sellers' execution and delivery of this
Agreement or the performance of their respective obligations hereunder.
3.3 No Violation. Neither the Sellers' execution and delivery of this
Agreement or the other agreements, documents and instruments to be executed and
delivered by Sellers in connection herewith nor the performance of their
respective 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 Sellers'
respective organizational documents or (b) violate any existing order, writ,
injunction, decree, law, statute, rule or regulation of any court or
governmental authority applicable to either of the Sellers or the Assets.
3.4 Title to Properties. Each of the Sellers has good, valid and
marketable title to all of the Assets. On the Closing Date, the Assets owned by
each of the Sellers are free and clear of any title defects or objections,
liens, mechanic's liens, claims, charges, security interests or other
encumbrances of 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. Sellers have delivered to Buyer financial
statements of the Restaurants as prepared by Sellers' respective 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 any of the Restaurants from those reflected in the
latest financial statements, or any damage, destruction or loss to any assets of
the Restaurants, whether covered by insurance or not, having a material adverse
effect on the assets or businesses of the Restaurants or any other event or
condition of any character relating to and materially affecting the assets or
businesses of the Restaurants.
8
3.6 Condition of FF&E. Except as set forth on Schedule 3.6 hereto, the
FF&E are, and as of the Closing Date will be, in good working condition and
repair, normal wear and tear excepted, and, to the Seller's knowledge, 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 operations of the Restaurants,
and there are no obsolete item or items of below standard quality under the
standards set forth in the Arby's License Agreements. At Closing, the inventory
levels at each Restaurant shall be sufficient for the ordinary course of
operation of such Restaurant, consistent with past practices.
3.8 Contracts. Each of the Sellers 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 any of the
Sellers thereunder.
3.9 Compliance with Laws. The operation by the Seller of the Restaurants
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 each Restaurant are validly held by the Seller.
3.10 Labor Issues. No strike, picketing or similar action is pending or
threatened against Sellers 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 Restaurants.
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. The Sellers are 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 Sellers have not
defaulted on any agreement, covenant or condition on the part of or to be
performed by or observed by Sellers 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) no lessor holds any
deposits for any 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
9
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 any 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. None of the Sellers knows of any facts nor have any of
the Sellers 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 Agreements.
3.15 Condemnation. None of the Sellers has 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 none of the
Sellers has received any written notice of any federal, state, county, municipal
or other 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 one or more of the Sellers 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 Sellers' 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.
10
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
Sellers, 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 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
11
(including the abandonment or discarding of barrels, containers or other closed
receptacles containing Hazardous Materials) into the environment.
(b) To the knowledge of the Sellers, Sellers have 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 Sellers, 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 Sellers, 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 Sellers, there are no outstanding
Environmental Claims that have a Material Adverse Effect.
3.21 License Agreements. The Sellers have previously delivered or made
available to Buyer true, complete and correct copies of all Arby's License
Agreements and other agreements between Arby's, Inc. and any of the Sellers. Set
forth on Schedule 3.21 hereto is a list of all of the Arby's License Agreements,
including the license agreement number, location and date of termination of each
Arby's License Agreement. The Sellers have received no notice of a violation
with respect to any of the Arby's License Agreements and do not know of any
event which would give rise to a violation or default under any of the Arby's
License Agreements. All renewal notices, to the extent required by the Arby's
License Agreements, have been delivered by the Sellers 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 any of the Sellers for any improvements to any
of the Restaurants which have not been fully paid for, and the Sellers 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 Sellers nor any of their
directors, officers. employees or other representatives, as the case may be, has
engaged or employed any broker,
12
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, to Sellers' actual knowledge, no representation or
warranty made by any of the Sellers 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 Sellers to enter into this Agreement and
to perform their obligations hereunder, Buyer hereby represents and warrants to
the Sellers 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 Sellers 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
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 SELLERS AND BUYER
13
Pending the consummation of the transactions contemplated hereunder, the
Sellers 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, Seller shall
conduct the operations of the Restaurants in the ordinary course of business
consistent with prior practices and pursuant to the terms and provisions of the
Arby's License Agreements, except as may be consented to in writing by Buyer.
Seller shall maintain the FF&E in good working condition and repair, normal wear
and tear excepted. 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 operations of the
Restaurants. Each of the Sellers 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, each of the Sellers 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 real property, 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. Each of the Sellers shall duly comply with all of the laws
applicable to it, and each of the Sellers shall conduct the operations of the
Restaurants and use the Assets and the real property, as the case may be, 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. Each of the Sellers and Buyer shall use
their respective best efforts to acquire all necessary consents, approvals,
authorizations and waivers of all third parties (including, without limitation,
the consent of Arby's, Inc. to the sale of the Restaurants as set forth herein
from Sellers 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 the Seller and Buyer shall jointly conduct an inventory of all the Inventory
on hand at each of the Restaurants, 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 Sellers shall
cause all of the Inventory at the Restaurants to remain at the Restaurants 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 Sellers with the
applicable bulk transfer laws,
14
including, without limitation, the bulk transfer provisions of the Uniform
Commercial Code of the State of Michigan, with respect to the transactions
contemplated hereby.
5.7 Estoppel Certificates. Within two (2) business days following the
date hereof, the Sellers shall send out for execution estoppel certificates in
the form of Exhibit F attached hereto (the "Estoppel Certificates") to each of
their respective lessors. Each of the Sellers agrees to use its best efforts to
obtain the maximum number of executed Estoppel Certificates prior to the Closing
Date. Each Seller agrees to promptly deliver to Buyer copies of executed
Estoppel Certificates as they are received by Sellers 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 Sellers shall not, and
each of the Sellers shall cause its respective 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 any of the Sellers or any of their respective
Restaurants. Should any Seller or any of their respective 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, such 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. Each of the Sellers 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, and Buyer shall notify Sellers within a reasonable
time after discovering any information inconsistent with the representations and
warranties of Sellers made herein; 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, except to the extent that one or more of the executive officers of
Buyer has actual knowledge of
15
information inconsistent with the representations and warranties of Sellers made
herein, Buyer fails to notify Sellers of such information and Buyer consummates
the transactions contemplated hereby.
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 (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 each of the Sellers 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 each of the Sellers on or prior to the
Closing Date will have been complied with and performed in all material
respects.
6.3 Consents. Each of the Sellers shall have obtained the consent of
Arby's, Inc. to convey, transfer or assign the Arby's License Agreements to
Buyer, and each of the Sellers 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 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 either of the Sellers to convey, assign and transfer the Assets to
Buyer.
16
6.6 Financing. Buyer shall have obtained firm commitments for a minimum
of $4,100,000 of financing to enable it to pay the Purchase Price to the
Sellers; provided, however, that this condition to Closing shall expire on March
16, 1998.
6.7 Estoppel Certificates. The Sellers shall have obtained and delivered
to Buyer executed copies of the Estoppel Certificates referred to in Section 5.7
hereof from each of their respective lessors.
6.8 Non-Disturbance Agreements. The Sellers 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 Real Property Contracts of Sale. All conditions to the closing of
the Real Property Contract of Sale referred to in Section 2.1 hereof shall have
been satisfied or waived.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS
The obligation of each of the Sellers to consummate the transactions
contemplated by this Agreement is subject to the satisfaction (or waiver by each
of the Sellers) 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. Each of the Sellers shall have obtained the consent from
Arby's, Inc. to convey, transfer or assign the Arby's License Agreements 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 Sellers is likely to lead to an action, suit,
proceeding or investigation to restrain, prohibit or invalidate any of the
transactions contemplated by this Agreement.
ARTICLE 8
INDEMNIFICATION
8.1 Survival of Representations. All representations and warranties made
by any party in this Agreement or pursuant hereto and any investigation at any
time made by or on behalf
17
of any party shall survive for a period of two (2) years after the Closing Date;
provided, however, that those representations made pursuant to Sections 3.4 and
3.20 hereof shall survive for the applicable statute of limitations period and
any extensions thereof.
8.2 Agreement of Sellers to Indemnify. Each of the Sellers, jointly and
severally, 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 Sellers 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 Sellers contained in this
Agreement, (iii) any liabilities, obligations, contracts (written or otherwise),
debts, expenses or costs of Sellers of any kind or nature other than the Assumed
Liabilities, (iv) any federal, state, local, foreign or other taxes of Sellers
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 Sellers to comply with
applicable bulk transfer laws, including, without limitation, the bulk transfer
provisions of the Uniform Commercial Code of the State of Michigan, 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; provided,
however, that such payments shall not exceed $4,800,000 in the aggregate.
8.3 Agreement of Buyer to Indemnify. Buyer shall indemnify each of the
Sellers and each of their 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 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.
If Buyer fails to perform its obligations under a real property lease
assumed by Buyer hereunder thereby causing Sellers to make payment or have other
obligations under such lease, and if Buyer is unable to indemnify Sellers
therefor pursuant to this Section 8.3, then Buyer shall, at the written request
of Sellers, assign all of its rights in and to such leased property to Seller.
Buyer also shall assign to Seller, subject to the consent of Arby's, Inc., all
rights under the Arby's
18
License Agreement for such Restaurant. In the event that Sellers are not made
whole by the assignments contemplated by this paragraph, Buyer shall remain
liable to Sellers under this Section 8.3 until such time as Sellers are fully
compensated.
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 Sellers and Buyer to
consummate the transactions contemplated by this Agreement may be terminated as
follows:
(a) by mutual written agreement of Buyer and Sellers;
(b) by Buyer, if the condition to Closing set forth in Section
6.6 hereof has not been satisfied on or prior to March 16, 1998; or
(c) by Buyer or Sellers if the Closing shall not have occurred on
or before April 24, 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 6 or 7 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 and (ii) 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.
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
19
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 Sellers:
Wolverine Properties, G.P.
Wolverine Food Systems, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
with a copy to:
Xxxxxx, Xxxxx & Associates, P.C.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxx X. Xxxxx, 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.
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
20
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 Sellers, 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 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 Michigan, without regard to conflict of
laws provisions thereof.
21
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
WOLVERINE PROPERTIES, G.P.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
WOLVERINE FOOD SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
22
