ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is made as of January ___,
1997, by and between FAST FOOD OPERATORS, INC., a New York
corporation with a business office at 00-00 Xxxx Xxxxxxxxx,
Xxxxxxx, Xxx Xxxx 00000 (hereafter "Seller") and
_____________________________, a _______________ corporation with
a business office at ___________________________________
(hereafter "Purchaser").
This Agreement sets forth the terms and conditions
pursuant to which Purchaser will acquire from Seller certain fixed
assets relating to one (1) Popeye's Famous Fried Chicken and
Biscuits Restaurant presently operated by Seller, and located at
000xx Xxxxxx xxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx (the "Store").
In consideration of the representations, warranties,
covenants and agreements contained herein, intending to be legally
bound, the parties hereto agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND LIABILITIES
1.01. Assets to be Conveyed. Subject to the terms and
conditions of this Agreement, Seller will, at the closing provided
for in Section 1.04 hereof (the "Closing"), sell, convey, assign,
lease, transfer or deliver to Purchaser the fixed assets, tangible
and intangible, used in or associated with the Stores, free and
clear of all liens and encumbrances, except those created on behalf
of the Seller, including, but not limited to, the following (the
"Assets"):
(a) the real estate, building and related improvements
used in the operation of the Store (the "Leased Property") which
Leased Property will be leased to Purchaser at Closing on the same
terms and conditions as are presently set forth in the lease
agreement for such Store location (the "Lease Agreement") pursuant
to an assignment of such Lease Agreement;
(b) furniture, trade fixtures and equipment owned by
Seller and used in the operation of and located at the Store as of
the date hereof (the "Equipment");
(c) subject to the approval of America's Favorite
Chicken Company ("AFC"), the assignment of the Franchise Agreement
pertaining to the Store;
(d) Seller's rights, if any, under the contracts,
agreements and commitments of Seller listed in Schedule 1.01(d)
hereto relating to the business conducted at the Store, but only to
the extent provided in Section 2.05;
(e) the prepaid items, deposits, customary cash "bank"
for the Store, and other special items listed on Schedule 1.01(e)
hereto; and
(f) all of Seller's inventory of goods and supplies
which are useable in the ordinary course of business which are
typically characterized as inventory and which are located at the
Store as of the Closing Date (as defined in Section 1.04 below)(the
"Inventory").
1.02. Liabilities to be Assumed. Subject to the terms and
conditions of this Agreement, in partial consideration of the
transfer, conveyance and assignment to Purchaser of the Assets,
Purchaser will assume the following liabilities and obligations of
Seller that arise from and after the Closing Date in respect of and
to the extent related to the business conducted at the Store, and
will assume no other liabilities or obligations of Seller:
(a) all liabilities arising under the Lease Agreement
for the Leased Property; and
(b) all of Seller's obligations and liabilities under
service contracts, licenses and concessions, if any, referred to in
Section 2.05 and listed in Schedule 1.01(d) hereto.
1.03. Consideration.
(a) Subject to the terms and conditions of this
Agreement, in consideration of the transfer, conveyance and
assignment of the Assets, Purchaser will deliver to Seller at the
Closing, by certified or official bank check, or by wire transfer
of immediately available federal funds, cash in the amount of
Thirty Thousand ($30,000.00) Dollars (the "Purchase Price").
(b) The Purchase Price for the Assets set forth herein
shall be allocated in accordance with Schedule 1.03 hereto.
(c) In addition, at Closing, Purchaser will deliver to
Seller a sum equal to the value of the Assets described in Section
1.01(e), plus a sum representing the Inventory for the Store as of
the date of Closing as described in Section 1.01(f).
(d) To the extent that after Closing, either Seller or
Purchaser shall receive any payments from any third parties
relating to the operations at the Store and attributable to the
period prior to (in the case of receipt by Purchaser) or after (in
the case of receipt by Seller) the Closing Date, the party
receiving the same shall promptly make delivery thereof to the
other party hereto who was entitled to such payment from such third
party.
1.04. Closing. The Closing of the transactions contemplated
in this Agreement shall take place at the offices of counsel for
the Seller and Purchaser, by wire transfer, fax and telephone, on
or about January 31, 1996, or on such later date when all
conditions precedent to the Closing shall have been met or waived,
but in no event later than February 28, 1997. (The date on which
the Closing occurs shall be referred to as the "Closing Date.")
Purchaser shall be entitled to possession of the Assets and to
begin operating the Stores as of the beginning of business on the
Closing Date if Closing is consummated by 10:00 a.m., New York City
time, on such date. If Closing is not consummated by such time,
Purchaser shall be entitled to possession of the Assets and to
begin operating the Store as of the beginning of business on the
next business day following the Closing Date.
1.05. Condition Precedent to Closing. The transaction
contemplated in this Agreement is specifically conditioned upon
written approval by AFC of the transactions contemplated by the
parties pursuant to the provisions of this Agreement and of the
assignment of the franchise rights and agreements, which approval
may consist of the forwarding by AFC to the parties of the
documentation necessary to effectuate the transfer of the franchise
rights to the Purchaser; and
1.06. Deliveries by Seller. At the Closing, Seller will
deliver the following to Purchaser:
(a) a duly executed and acknowledged Xxxx of Sale
substantially in the form of Exhibit A hereto (the "Xxxx of Sale")
transferring to Purchaser all of the Assets being transferred
hereunder as of the Closing Date;
(b) a duly executed and acknowledged agreement for the
assignment and assumption of the Lease Agreement for the Leased
Property;
(c) the officers' certificate referred to in Section
8.03 hereof; and
(d) such other documents as may be reasonably necessary
to effect the transactions contemplated hereby.
1.07. Deliveries by Purchaser. At the Closing, Purchaser
will deliver the following:
(a) to Seller, cash in the amount of Thirty Thousand
($30,000.00) Dollars by certified or official bank check, or by
wire transfer in immediately available federal funds;
(b) to Seller, cash in an amount equal to the value of
the Assets described in Section 1.01(e), plus a sum representing
the Inventory for the Store as of the date of Closing as described
in Section 1.01(f), by certified or official bank check, or by wire
transfer in immediately available federal funds.
(c) to Seller, the duly executed and acknowledged
agreement for the assignment and assumption of the Lease Agreement
for the Leased Property;
(d) to Seller, the officers' certificate referred to in
Section 7.03 hereof; and
(e) to Seller, such other documents as may be necessary
to effect the transactions contemplated hereby.
1.08. Contingent Increase of Purchase Price. In the
event that Purchaser obtains an extension of the term of the Lease
Agreement (the "Extension"), the Purchaser shall be obligated to
remit to the Seller, upon obtaining such Extension, the additional
funds described herein. An extension in the term of the Lease
Agreement for any period of time, including, but not limited to,
holdover periods and month-to-month tenancies, and in any form,
whether written or verbal, by amendment or addendum of the Lease
Agreement or by the execution of a new lease, shall constitute an
Extension for the purposes of this Section 1.08 and require the
payment of additional funds to the Seller. In the event of any
Extension which is accepted by the Purchaser, the Purchaser shall
be obligated to remit to the Seller the greater of: (i) Fifty
Thousand ($50,000) Dollars, or (ii) the product achieved by
application of the following formula - number of years (including
partial years and option periods granted to Purchaser) constituting
the Extension multiplied by Ten Thousand ($10,000) Dollars, up to
a maximum of One Hundred Thousand ($100,000) Dollars. The
provisions of this Section 1.08 shall be applied to any Extension
received by the Purchaser, whether immediately following the
conclusion of the current term of the Lease Agreement or
thereafter, until such time as the Store is no longer being
operated as an AFC franchised location or the Seller has received
an aggregate of One Hundred Thousand ($100,000) Dollars pursuant to
this Section 1.08; upon the occurrence of either such event, the
liability of Purchaser to make payment to Seller under this Section
1.08 shall cease. The provisions of this Section 1.08 shall be
binding upon any and all successors, assigns or other transferrees
of the Purchaser. It is accepted and agreed by the Seller that the
Purchaser shall have the authority, exercisable in the Purchaser's
sole discretion, to accept or reject any Extension, and if
Purchaser elects to cease operating the Store as an AFC franchised
location at the end of the current term of the Lease Agreement,
Purchaser shall have no obligation to make additional payments to
Seller under this Section 1.08. Furthermore, notwithstanding
anything else herein to the contrary, in the event that the
Purchaser does not extend the current term of the Lease, the
Purchaser shall have no liability to Seller under this Section
1.08.
ARTICLE II
RELATED MATTERS
2.01. Physical Inventories. A physical count shall be taken
of the Inventory at the Store immediately prior to the close of
business on the day preceding the Closing Date.
2.02. Franchise Documents. At the Closing, Seller shall
assign to Purchaser the executed Franchise Agreement for the Store,
including the addenda thereto, if any, all substantially in the
form attached hereto as Exhibit B (collectively, the "Franchise
Documents") following approval of Purchaser's application for a
franchise by AFC.
2.03. Apportionments.
(a) On the Closing Date, Purchaser and Seller shall
apportion the following expenses with regard to the Store:
(i) Seller's pro rata share of ad valorem taxes,
real estate taxes, assessments and fees payable for the Store on
such tax year or fiscal year basis, as the case may be;
(ii) Seller's pro rata share of fees, charges,
parking lot and shopping center expenses or similar expenses, if
any, as prescribed by all operating agreements, easements, leases
or other instruments;
(iii) if arrangements cannot be made for separate
billing, any apportionable utility charges and any other charges
which are properly apportionable in accordance with the terms of
this Agreement; and
(iv) Seller's pro rata share of payments under all
contracts, agreements and concessions assumed by Purchaser pursuant
to the terms of this Agreement.
(b) The foregoing, however, shall not operate to relieve
Seller of its obligations to pay its rightful share of any taxes,
assessments or other fees, utility charges or other charges that
are properly payable by Seller as apportioned as of the Closing
Date. Real estate taxes, personal property and other taxes, and
all other expenses and charges relating to the ownership or
operation of the Store, shall be shared on a pro rata basis in
proportion to the period of occupancy of each party.
(c) The parties agree that any payments due to each
other as a result of the apportionments made on the Closing Date
shall be paid within twenty (20) days after the Closing Date.
(d) The parties agree to make payments to each other on
a timely basis with respect to adjustments not correctly
ascertainable on the Closing Date when the correct amount of any
amounts to be adjusted or apportioned pursuant to this Section are
ascertained.
2.04. Cash and Cash Equivalents. Immediately prior to the
Closing Date, Seller shall remove all cash and cash equivalents
(including scrip and gift certificates) from the Store, other than
the cash constituting the Store's "bank." The Store's bank shall
be ________________ ($_______) Dollars and shall be purchased on
a dollar for dollar basis.
2.05. Contracts and Commitments. Seller has delivered to
Purchaser copies, where available, of all service contracts,
licenses and concessions referred to in Schedule 1.01(d) relating
to the business conducted at the Store. Purchaser shall assume all
of Seller's obligations, arising from and after the Closing Date,
with respect to said service contracts. Each such assignment and
assumption may, if required by Seller, be pursuant to a written
instrument, in form reasonably satisfactory to the parties.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, covenants and warrants to
Purchaser the following:
3.01. Corporate Organization, Etc. Seller is a corporation
duly incorporated and in good standing under the laws of the State
of New York.
3.02. Authority. Seller has full corporate power and
authority, in accordance with its Articles of Incorporation and By-
Laws, to carry on its business in connection with the Store as it
is now being conducted, and to enter into and perform its
obligations under this Agreement and to carry out the transactions
contemplated hereby.
3.03. Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement nor the consummation of
the transactions contemplated hereby will violate any provision of
the Articles of Incorporation or By-Laws of Seller, or, to the best
knowledge of Seller, violate, or conflict with, or constitute a
default (or constitute an event which, with notice or lapse of time
or both, would constitute a default) under, or give rise to any
right of termination, cancellation or acceleration under, any note,
bond, mortgage, indenture, license, agreement, lease or other
instrument or obligation to which Seller is a party or by which it
or any of the Assets may be bound, or violate any statute or law of
any judgment, decree, order, regulation or rule of any court or
governmental authority applicable to either Seller or any of the
Assets.
3.04. Title to Assets; Encumbrances. With respect to all
Assets, Seller represents that: (i) it has good and marketable
title to all such Assets related to the operation of the Store
which it purports to own; and (ii) all such Assets shall be
conveyed free and clear of title defects, liens, claims, charges,
security interests or other encumbrances.
3.05. Compliance with Applicable Law. To the best of
Seller's knowledge, Seller possesses all permits, consents and
licenses of every kind required by the jurisdiction in which the
Store is located which are necessary to carry on its business at
the Store as presently conducted, to own or lease and operate the
Assets, the failure of which possession would have a material
adverse effect on the operation of the Store. Seller represents
that it has complied with all laws, regulations and orders
applicable to its business at the Store, including, but not limited
to, those relating to zoning, health, safety and employment, and
the present operation of the Store does not violate any such laws,
regulations or orders in any material respects.
3.06. Leased Property. Seller has delivered to Purchaser
copies of the Lease Agreement, with all supplements, amendments and
modifications thereof, if any; such Lease Agreement has not been
further modified or amended nor assigned, and is in full force and
effect; there is no existing default by Seller under such Lease
Agreement and to the best knowledge of Seller no event has occurred
nor does any circumstance exist which (whether with or without
notice, lapse of time or the happening or occurrence of any other
event) would constitute any default thereunder. Seller hereby
agrees that it shall not modify, extend nor amend the Lease
Agreement without the prior written consent of Purchaser in each
instance.
3.07. Contracts. Schedule 1.01(d) contains an accurate and
complete list of all material contracts relating to the Store, the
Assets and/or the equipment located within the Store (the
"Contracts"). Seller has delivered to Purchaser copies of all such
Contracts and any amendments or modifications thereto. The
Contracts are in full force and effect; there is no existing
default by Seller under any of the Contracts and to the best of
Seller's knowledge no default has occurred nor does any
circumstance exist which (whether with or without notice, lapse of
time or the happening or occurrence of any other event) would
constitute any default thereunder.
3.08. Litigation. As of the date hereof, Seller has not
received notice that as to the operation of the Store it is or may
be in violation of any material order, writ, injunction, rule,
regulation or decree of any court or of any federal, state,
municipal or other governmental authority or agency having
jurisdiction with respect to the Store. Seller is neither engaged
in nor, to the best knowledge of Seller, threatened with, any legal
action or other proceeding which, if adversely determined, would
have a material adverse effect on the business being conducted at
the Store. Seller has not received any notice of taking or
condemnation, actual or proposed, with respect to the Store.
3.09. Brokers and Finders. Neither Seller nor any of its
respective officers, directors or employees has taken any action
with respect to any broker or finder which would give rise to any
liability on the part of Purchaser or incurred any liability for
any brokerage fees, commissions or finders' fees in connection with
the transactions contemplated by this Agreement which would give
rise to any liability on the part of Purchaser. Seller hereby
indemnifies Purchaser from and against any claim, action or
proceeding by any person or entity in connection with any alleged
fee or commission arising from this transaction.
3.10. Public Utilities . All public utilities necessary for
the operation of the Store presently serve the Store and to the
best of Seller's knowledge no fact or condition exists which would
result in the permanent discontinuance of sewer, electric, gas,
telephone or other utilities presently located at the Store, which
utilities are necessary for the operation of the Store.
3.12. Franchise Rights. Seller is in material compliance
with the terms, conditions and obligations set forth in the
Franchise Agreement for the Store.
3.13 No Omission or Misrepresentation. No representation,
warranty or statement, or information furnished by Seller in
connection with the transactions contemplated by this Agreement,
contains or will contain any untrue statement of fact or will omit
any fact required to make the statements or information so
furnished not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents, covenants and warrants to Seller
the following (if applicable):
4.01. Corporate Organization, Etc. Purchaser is a
corporation duly incorporated and in good standing under the laws
of the State of __________________.
4.02. Authority. Purchaser has full corporate power and
authority, in accordance with its Articles of Incorporation and By-
Laws to, carry out its business as presently conducted, and to
enter into and perform its obligations under this Agreement and to
carry out the transactions contemplated hereby.
4.03. Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement nor the consummation of
the transactions contemplated hereby will violate any provision of
the Certificate of Incorporation or By-Laws of Purchaser, or, to
the best knowledge of Purchaser, violate, or conflict with, or
constitute a default (or constitute an event which, with notice or
lapse of time or both, would constitute a default) under, or give
rise to any right of termination, cancellation or acceleration
under, any note, bond, mortgage, indenture, license, agreement,
lease or other instrument or obligation to which Purchaser is a
party or by which it or any of the Assets may be bound, or violate
any statute or law of any judgment, decree, order, regulation or
rule of any court or governmental authority applicable to either
Purchaser or any of the Assets.
4.04. Brokers and Finders. Neither Purchaser nor any of its
officers, directors or employees has taken any action with respect
to any broker or finder which would give rise to any liability on
the part of Seller nor has incurred any liability for any brokerage
fees, commissions or finders' fees in connection with the
transactions contemplated by this Agreement which would give rise
to any liability on the part of Seller. Purchaser hereby
indemnifies Seller from and against any claim, action or proceeding
by any person or entity in connection with any alleged fee or
commission arising from this transaction.
4.05. No Further Consents and Approvals Required. No
consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority is
required by Purchaser in connection with the execution, delivery
and performance of this Agreement or the consummation of the
transactions contemplated hereby.
4.06. Litigation. As of the date hereof, Purchaser has not
received notice that it is or may be in violation of any material
order, writ, injunction, rule, regulation or decree of any court or
of any federal, state, municipal or other governmental authority or
agency having jurisdiction over Purchaser. There is no decree or
judgment of any kind in existence enjoining or restraining
Purchaser, or any of Purchaser's officers, directors or
stockholders, from taking any action required or contemplated by
this Agreement. Purchaser is not engaged in nor, to the best
knowledge of Purchaser, threatened with, any legal action or other
proceeding nor has Purchaser incurred or been charged with nor, to
the best knowledge of Purchaser, is Purchaser under investigation
with respect to any violation of any federal, state or local law or
administrative regulation with respect to which, if adversely
determined, there is a reasonable probability of a material adverse
effect on Purchaser's ability to acquire any of the Assets or to
conduct the business being conducted at the Store in substantially
the same manner as heretofore conducted.
4.07. Knowledge. Neither Purchaser nor its officers have
knowledge of any present facts or circumstances relating to
Purchaser which would materially adversely affect the ability of
Purchaser to perform its obligations under this Agreement.
4.08 No Omission or Misrepresentation. No representation,
warranty or statement, or information furnished by Purchaser in
connection with the transactions contemplated by this Agreement,
contains or will contain any untrue statement of fact or will omit
any fact required to make the statements or information so
furnished not misleading.
ARTICLE V
COVENANTS OF THE PARTIES
5.01. Purchaser's Rights of Inspection. From and after the
date hereof, Seller shall, from time to time, on business days,
during business hours, make the Store and its assets and business
records available to Purchaser or Purchaser's representatives for
inspection upon not less than five (5) days' notice of Purchaser's
intention to inspect the Store. Seller may have a representative
or employee of Seller accompany Purchaser's representative during
any such inspection. Purchaser shall have the right to inspect the
Store, business records and the Assets at anytime up until the
Closing Date provided herein. Purchaser recognizes and
acknowledges that the Assets are being sold in an "as is"
condition. However, such Assets shall be in good working order at
the time of Closing. In the event that upon Purchaser's inspection
of the Store and/or Assets, Purchaser determines, in good faith
that there is any deficiency with respect to the physical condition
of the Assets and/or Store, Purchaser shall provide written notice
to Seller prior to the Closing Date of the alleged deficiencies.
Upon receipt of such notice, Seller shall (i) agree to correct the
deficiency, in which case Purchaser shall cooperate with Seller in
such correction; or (ii) reduce the Purchase Price to be paid by
Purchaser by such sum or terminate the Agreement without further
obligation on the part of the Seller.
5.02. Sales and Transfer Taxes and Fees. All sales, ad
valorem, and similar taxes and fees (including any penalties or
interest) incurred in connection with this Agreement and the
transactions contemplated hereby will be borne by the Purchaser.
All transfer, recording, filing and similar taxes and fees
(including any penalties or interest) incurred in connection with
this Agreement and the transactions contemplated hereby will be
borne by the Seller. The parties will assist each other in the
filing of all necessary tax returns and other documentation with
respect to all such sales, ad valorem, transfer and recording taxes
and fees, and, if required by applicable law, will join in the
execution of any such tax returns or other documentation. Any and
all fees of any nature imposed on either party by AFC relative to
the assignment or other transfer of the franchise rights in the
Store shall be the responsibility of the Purchaser.
5.03. Expenses. Whether or not the transactions contemplated
hereby are consummated, and except as provided in Section 5.02
above, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby will be borne by
the respective parties. Any and all fees of any nature imposed by
AFC relative to the assignment of the franchise agreement shall be
the responsibility of the Purchaser.
5.04. Notices. The parties hereto shall immediately inform
the other parties hereto in writing of the occurrence of any events
or the existence of any circumstances the effect of which would
constitute a breach of any covenant or warranty in this Agreement,
or which would result in any representation in this Agreement being
or becoming untrue or misleading.
5.05. Utilities. Seller shall use its best efforts (without
obligation to incur any expenses) to make certain that gas and
electrical utilities serving the Store shall not be terminated by
the suppliers thereof on the Closing Date. Seller and Purchaser
shall notify those utility companies which service the Store that
Purchaser shall be responsible for the payment of any and all
obligations incurred therefor after the Closing Date for the
utilities serving the Store, and shall, to the extent practicable,
cause meters to be read on or immediately prior to the Closing
Date.
5.06. Conduct of Business at the Store Pending the Closing
Date. Seller agrees that from the date hereof until the Closing
Date, unless otherwise consented to by Purchaser in writing, Seller
will carry on the business at the Store in substantially the same
manner as heretofore conducted and will not enter into any
agreement or make any commitment relating to the business conducted
in the Store except in the ordinary course of business and
consistent with past practice.
5.07. Computer/Cash Register Systems. Seller agrees to
provide such cooperation to Purchaser as Purchaser may reasonably
request to enable Purchaser to program and operate the
computer/cash register systems at the Store.
ARTICLE VI
EMPLOYEES
6.01. Hiring of Seller's Employees. It is Purchaser's
intention, as of the Closing Date, to offer employment to all
employees of Seller then employed at the Store (collectively, the
"Employees"), all such offers of employment to be pursuant to
Purchaser's standard employment practices and policies.
Purchaser's intent to offer employment to such Employees as of the
Closing Date shall not create any written contractual right of
employment on the part of any such Employee.
6.02. Earned Vacation Pay. At Closing, Purchaser shall
assume the liability and obligation of Seller for the payment of
accrued vacation to all Employees hired by the Purchaser.
6.03 Medical Insurance. Purchaser covenants and agrees that
it shall obtain medical insurance covering all qualified employees
of Seller to whom it offers employment, such medical insurance to
be comparable in scope of coverage and expense to employees as that
which is currently offered by Seller to its Store employees.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF SELLER
Each and every obligation of Seller under this Agreement
to be performed at the Closing shall be subject to the
satisfaction, on or before the Closing Date, of each of the
following conditions, unless waived in writing by Seller:
7.01. Representations and Warranties True. The
representations and warranties of Purchaser contained herein shall
be true, complete and accurate in all material respects as of the
date when made and at and as of the Closing Date as though such
representations and warranties were made at and as of such date,
except for changes expressly permitted or contemplated by the terms
of this Agreement.
7.02. Performance. Purchaser shall have performed and
complied with all agreements, obligations and conditions required
by this Agreement to be performed or complied with by it on or
prior to the Closing Date.
7.03. Certificate. Purchaser shall have delivered to Seller
a certificate, dated the Closing Date, executed by a duly
authorized executive officer of the Purchaser, certifying the
fulfillment of the conditions specified in Sections 7.01 and 7.02
hereof.
7.04. No Injunction, Etc. On the Closing Date, (a) there
shall be no effective injunction, writ, preliminary restraining
order or any order of any nature issued or threatened by a court or
other governmental authority of competent jurisdiction directing
that the transactions provided for herein or any of them not be
consummated as so provided or imposing any conditions on the
consummation of the transactions contemplated hereby, and (b) no
action, suit or proceeding shall be pending before any such court
or other governmental authority seeking such relief.
7.05. Franchise Approval. AFC shall have notified Seller and
Purchaser in writing that it will grant approval of the assignment
of Seller's franchise right to operate the Store as a Popeye's
Famous Fried Chicken and Biscuits Restaurant to Purchaser and that
the Seller shall have satisfied all terms, conditions and
requirements pertaining to the granting of said franchise.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF PURCHASER
Each and every obligation of Purchaser under this Agreement to
be performed at the Closing shall be subject to the satisfaction,
on or before the Closing Date, of each of the following conditions,
unless waived in writing by Purchaser:
8.01. Representations and Warranties True. The
representations and warranties of Seller contained herein shall be
true, complete and accurate in all material respects as of the date
when made and at and as of the Closing Date as though such
representations and warranties were made at and as of such date,
except for changes expressly permitted or contemplated by the terms
of this Agreement.
8.02. Performance. Seller shall have performed and complied
with all agreements, obligations and conditions required by this
Agreement to be performed or complied with by it on or prior to the
Closing Date.
8.03. Officers' Certificate. Seller shall have delivered to
Purchaser a certificate, dated the Closing Date, executed by a duly
authorized executive officer of the Seller, certifying the
fulfillment of the conditions specified in Sections 8.01 and 8.02
hereof.
8.04. No Injunction, Etc. On the Closing Date, (a) there
shall be no effective injunction, writ, preliminary restraining
order or any order of any nature issued or threatened by a court or
other governmental authority of competent jurisdiction directing
that the transactions provided for herein or any of them not be
consummated as so provided or imposing any conditions on the
consummation of the transactions contemplated hereby, and (b) no
action, suit or proceeding shall be pending before any such court
or other governmental authority seeking such relief.
8.05. Franchise Approval. AFC shall have notified Seller and
Purchaser in writing that it will grant approval of the assignment
of Seller's franchise right to operate the Store as a Popeye's
Famous Fried Chicken and Biscuits Restaurants to Purchaser and that
the Seller shall have satisfied all terms, conditions and
requirements pertaining to the granting of said franchise.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
9.01. Survival of Representations. The representations and
warranties made by Seller under this Agreement or pursuant hereto
shall survive the Closing only to the extent provided for in this
Article IX. The representations and warranties made by Purchaser
in this Agreement shall survive Closing forever.
9.02. Agreement of Seller to Indemnify Purchaser. Subject to
the terms and conditions of this Article IX, Seller hereby agrees
to indemnify, defend and hold Purchaser harmless, at any time after
consummation of the Closing, from and against all demands, claims,
actions or causes of action, assessments, losses, damages,
liabilities, costs and expenses, including without limitation,
interest, penalties and attorneys' fees and expenses (collectively,
"Damages") asserted against, resulting to, imposed upon or incurred
by Purchaser, by reason of or resulting from (a) liabilities,
obligations or claims (whether absolute, accrued, contingent or
other) existing as of the Closing Date or arising out of facts or
circumstances existing at or prior thereto, whether or not such
liabilities or obligations were known at the time of the Closing,
relating to or arising out of the ownership, possession or use of
the Assets or the conduct of business at the Store by Seller prior
to the Closing, except those disclosed to Purchaser in connection
herewith; (b) a breach of any representation, warranty or agreement
or any facts or circumstances constituting such a breach; or (c)
the employment or termination of such employment by Seller of any
employees of Seller.
9.03. Agreement of Purchaser to Indemnify Seller. Subject to
the terms and conditions of this Article IX, Purchaser hereby
agrees to indemnify, defend and hold Seller harmless, at any time
after consummation of the Closing, from and against all Damages
asserted against, resulting to, imposed upon or incurred by Seller,
directly or indirectly, by reason of or resulting from (a)
liabilities, obligations or claims (whether absolute, accrued,
contingent or other) arising from and after the Closing Date
relating to or arising out of the ownership, possession or use of
the Assets or the conduct of business at the Store by Purchaser
following the Closing Date, except those expressly assumed or
agreed to by Seller herein; (b) a breach of any representation,
warranty or agreement of Purchaser contained in or made pursuant to
this Agreement or any facts or circumstances constituting such a
breach; or (c) the employment or termination of employment of
Employees by Purchaser.
9.04. Limitation of Liability.
(a) With respect to representations and warranties of
Seller contained in Article III of this Agreement, which
representations and warranties shall survive Closing only to the
extent provided herein, no indemnification by Seller under Section
9.02 shall be required to be made:
(i) with respect to Damages resulting from claims
as to which Seller has not received written notice within one (1)
year following the Closing, (whether or not such Damages have then
actually been sustained);
(ii) unless and to the extent that the aggregate
amount of Damages sustained by Purchaser with respect to claims for
breaches of representations and warranties hereunder exceeds Five
Thousand ($5,000) Dollars in the aggregate, and then only with
respect to the amount in excess of Five Thousand ($5,000) Dollars.
(b) All Damages shall be computed net of any net
recovery under any insurance coverage with respect thereto which
reduces the Damages that would otherwise be sustained.
9.05. Procedures Relating to Indemnification. The
obligations and liabilities of the party making the indemnity
pursuant to Sections 9.02 and 9.03 (the "Indemnitor") with respect
to claims made by third parties against the party or parties being
indemnified pursuant to such Sections (the "Indemnitee") shall be
subject to the following terms and conditions:
(a) the Indemnitee will give the Indemnitor prompt
notice of any such claim, and Indemnitor shall have the right to
undertake (at the Indemnitor's sole cost and expense) the defense
thereof by representatives chosen by it and reasonably acceptable
to the Indemnitee;
(b) if the Indemnitor, within a reasonable time after
notice of any such claim, fails to defend the Indemnitee against
which such claim has been asserted, the Indemnitee will (upon
further notice to the Indemnitor) have the right to undertake the
defense, compromise or settlement of such claim on behalf of and
for the account and risk of the Indemnitor, subject to the right of
the Indemnitor to assume the defense of such claim at any time
prior to settlement, compromise or final determination thereof;
(c) Anything in this Section 9.05 to the contrary
notwithstanding, (i) if there is a reasonable probability that a
claim may materially and adversely affect the Indemnitee other than
as a result of money damages or other money payments, the
Indemnitee shall have the right, at its own cost and expense, to
defend, compromise or settle such claim, and (ii) the Indemnitor
shall not, without the written consent of the Indemnitee, settle or
compromise any claim or consent to the entry of any judgment;
(d) in connection with all claims defended hereunder,
the Indemnitee shall give the Indemnitor prompt written notice of
all material developments in connection with all claims, will
promptly supply the Indemnitor with all papers, documents and
evidence in the Indemnitee's possession and such other information
within the Indemnitee's knowledge pertinent to such claims, and
will produce at the appropriate place or places, at reasonable
times, such witnesses under the Indemnitee's control as may
reasonably be requested by the Indemnitor or its representatives.
ARTICLE X
TERMINATION
10.01. Methods of Termination. Except as otherwise provided,
this Agreement may be terminated prior to the Closing:
(a) by mutual written agreement of Purchaser and Seller;
(b) by Purchaser if the Closing has not occurred by
February 28, 1997, provided that a default by Purchaser hereunder
is not responsible for the Closing not having occurred; or
(c) by Seller if the Closing has not occurred by
February 28, 1997, provided that a default by Seller hereunder is
not responsible for the Closing not have occurred.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified and supplemented only
by written agreement of the parties at any time prior to the
Closing with respect to any of the terms contained herein.
11.02. Waiver of Compliance. Any failure of Purchaser, on
the one hand, or Seller, on the other hand, to comply with any
obligation, covenant, agreement or condition herein may be
expressly waived in writing by the Purchaser or the Seller, but
such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other
failure.
11.03. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing
and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail with postage prepaid:
(a) if to Purchaser, to:
_______________________
_______________________
_______________________
Attention: ____________________
with a copy to:
________________________
________________________
________________________
or to such other person or address as Purchaser shall furnish to
Seller in writing:
(b) if to Seller, to:
Fast Food Operators, Inc.
00-00 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxx X. Xxxxx, Esq.
000 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
or to such other person or address as Seller shall furnish to
Purchaser in writing.
11.04. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns. The parties hereto agree that neither Purchaser nor
Seller shall have the right to assign its rights and obligations as
set forth herein without prior notice and consent of other party.
11.05. Governing Law. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts made and to be performed in that state.
11.06. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument.
11.07. Headings. The headings of the Sections and Articles
of this Agreement are inserted for convenience only and shall not
constitute a part hereof or affect in any way the meaning or
interpretation of this Agreement.
11.08. Entire Agreement. This Agreement, including the
Schedules and Exhibits hereto, and the other documents and
certificates delivered pursuant to the terms hereof or referred to
herein, set forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein,
and supersede all prior agreements, promises, covenants,
arrangements, communications, representations or warranties,
whether oral or written, by any officer, employee or representative
of any party hereto.
11.09. Third Parties. Except as specifically set forth or
referred to herein, nothing herein expressed or implied is intended
or shall be construed to confer upon or give to any person or
corporation other than the parties hereto and their successors or
assigns, any rights or remedies under or by reason of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals
to be affixed hereto, all as of the day and year first above
written.
FAST FOOD OPERATORS, INC.
By:__________________________
Xxxxx X. Xxxxxx, President
[PURCHASER]
By:__________________________
____________________________
Lalmir Sultanzada, Personally
EXHIBIT A
ASSIGNMENT, XXXX OF SALE AND CONVEYANCE
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
FAST FOOD OPERATORS, INC. (the "Seller"), in accordance
with the provisions of the Asset Purchase Agreement dated January
___, 1997 (the "Agreement") between Seller and
______________________ ("Buyer"), pursuant to which Buyer is
purchasing and Seller is selling the fixed assets, tangible and
intangible, used in or associated with the Store as defined in the
Agreement, including, but not limited to, the following: the real
estate, buildings and related improvements used in the operation of
the Store ("Leased Property") which Leased Property will be leased
to Purchaser at Closing on the same terms and conditions as are
presently set forth in the lease agreement for such Store location;
furniture, trade fixtures and equipment owned by Seller and used in
the operation of and located at the Store as of the date hereof;
subject to the approval of America's Favorite Chicken Company, the
assignment of the Franchise Agreement pertaining to the Store;
Seller's rights, if any, under the contracts, agreements and
commitments of Seller listed in Schedule 1.01(d) to the Agreement
relating to the business conducted at the Store but only to the
extent provided in Section 2.05 of the Agreement; the prepaid
items, deposits, customary cash "bank" for the Store, and other
special items listed on Schedule 1.01(e) to the Agreement; and, all
of Seller's inventory of goods and supplies which are useable in
the ordinary course of business and which are typically
characterized as inventory and which are located at the Store as of
the Closing Date (as defined in Section 1.04 of the Agreement)
(collectively, the "Assets"). Such Assets being granted,
bargained, sold, conveyed, assigned, transferred and delivered to
Buyer by Seller in consideration of (i) cash in the amount of
Thirty Thousand ($30,000.00) Dollars; (ii) cash in an amount equal
to the value of the Assets described in Section 1.01(e) of the
Agreement, plus a sum representing the Inventory for the Store as
of the date of Closing as described in Section 1.01(f); (iii)
assumption by Buyer of the following liabilities and obligations of
Seller that arise from and after the Closing Date (as defined in
the Agreement) in respect of and to the extent related to the
business conducted at the Store: (a) all liabilities arising under
the Lease Agreement for the Leased Property; and (b) all of
Seller's obligations and liabilities under service contracts,
licenses and concessions, if any, referred to in Section 2.05 and
listed in Schedule 1.01(d) of the Agreement; (iv) assumption buy
Buyer of the Seller's obligation for earned vacation pay to all
Employees hired by the Buyer pursuant to Section 6.02; and (v)
other good and valuable consideration, the receipt of which is
hereby acknowledged.
TO HAVE AND TO HOLD, all and singular, the foregoing unto
Buyer, its successors and assigns to use for its and their use and
benefit forever.
Except as expressly stated in the Agreement or listed on
the Schedules thereto, assets and property sold hereunder are owned
exclusively, and are sold and conveyed to Buyer by Seller, free and
clear of any lien, mortgage, pledge, encumbrance, or charge of any
kind, or interest or claim of title or right of third parties, and
Seller hereby covenants and agrees with Buyer to warrant and defend
this conveyance, transfer, sale and assignment and the title of
Buyer, its successors and assigns, hereunder against the claims and
demands of any and all persons whomever, SAVE AND EXCEPT for those
liens, encumbrances, charges, mortgages, pledges, interests, claims
or contingency items set out in the Agreement.
This Assignment, Xxxx of Sale and Conveyance is executed
and delivered pursuant to and subject to the terms and conditions
of the Agreement, and the representations and warranties contained
in the Agreement shall survive the execution and delivery hereof.
Seller agrees that at any time and from time to time on and after
the Closing Date, at Buyer's request and without further
consideration, Seller shall execute and deliver such other
instruments of conveyance and transfer and take such other action
as Buyer reasonably may request more effectively to convey to,
transfer to and vest in Buyer, or to put Buyer, or its successors
and assigns, in possession of, any or all of the assets and
property to be conveyed, transferred, sold, assigned and delivered
hereunder or intended so to be.
Capitalized terms not defined herein shall have the meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this instrument the ____ day of January, 1997.
ATTEST: FAST FOOD OPERATORS, INC.
_______________________
By:____________________________
Xxxxx X. Xxxxxx, President
ATTEST: [BUYER]
________________________ By:____________________________
, President
ATTEST:
_______________________
____________________________
Lalmir Sultanzada, Personally
