ASSET PURCHASE AGREEMENT
This Agreement is made as of the 18th day of October, 2000 by and
between Uno Restaurant, Inc, a corporation organized and existing under the laws
of the Commonwealth of Massachusetts, having its principal place of business at
000 Xxxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX 00000 ("Purchaser") and Uno Concepts of
New Jersey, Inc, a corporation organized and existing under the laws of the
State of New Jersey, having its principal place of business at 00000 Xxx
Xxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000 ("Seller")
WITNESSETH
WHEREAS, Seller, as a franchisee of Pizzeria Uno Corporation
("Franchisor"), operates a fuII service restaurant, including the retail sale of
alcoholic beverages at 0000 Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx, XX 00000 (the
"Business"), and in connection therewith is the owner of certain assets utilized
in the conduct of said Business, and
WHEREAS, Seller has determined to sell the Business and divest itself
of certain assets and the Leases utilized in connection with the Business, and
WHEREAS, Purchaser desires to purchase certain of such assets and to
assume and occupy the Business premises under that certain Lease made as of
December 28, 1983 by and between Xxxxxx X Xxxxx and Xxxxxx X Xxxxxx, as
Landlord, and Steak and Ale of New Jersey, Inc, as Tenant, (the "Primary Lease")
and that Sublease made as of August 18, 1986 by and between Steak and Ale of New
Jersey, Inc, as Sublessor, and Seller, as Subtenant, (the "Sublease", both
collectively, the "Facility Leases"), and
WHEREAS. Purchaser and Seller have, on date even herewith, entered into
an Agreement of Sale" (annexed hereto) providing for the Seller's consent to
transfer to Purchaser of the Plenary Retail Consumption License ("Beverage
Alcohol License") used at the Business premises (the "Licensed Premises").
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows
1. Sale of Assets Subject to the terms and conditions set forth in this
Agreement, Seller agrees to sell, convey, transfer, assign and deliver to
Purchaser, and Purchaser agrees to purchase or assume from Seller, the following
assets of the Business (all of which collectively are referred to in this
Agreement as the " Assets "), as hereinafter set forth.
A. At the option of the Purchaser, to be exercised within two (2) business
days after approval of the regulatory transfer of the Beverage Alcohol License,
Purchaser may purchase at the price hereinafter set forth, the saleable
quantities of unopened alcoholic and nonalcoholic beverages and food products
(the "Inventory") which have been paid for by Seller and are on hand at the
Licensed Premises as of the Closing Date ( as defined in Clause 5, herein
below). The parties shall conduct a joint physical inventory immediately prior
to the Closing on the Closing Date and, upon completion, shall agree with
respect to physical count of the inventory If the Purchaser fails or declines to
notify Seller in writing of its intention to purchase the Inventory within the
two day period set forth above, Purchaser shall be deemed to have rejected its
option to purchase the Inventory. The Inventory purchased shall be valued at
Seller's actual laid-in cost on a first-in- first-out basis ("Cost"), in
conformity with previous inventory records furnished to Purchaser Seller will
make available to Purchaser documentation reasonably necessary for Purchaser to
verify Cost, including current price lists and supplier invoices, as available,
of each of Seller's suppliers, such lists to be furnished to Purchaser prior to
Closing.
Purchaser will assume the obligation to pay suppliers and other
vendors, at actual cost, for all alcoholic and non-alcoholic beverages and food
products which, as of the date of Closing, are on order in the ordinary course
of business, but not delivered or paid for, pursuant to purchase orders approved
in writing by Purchaser after the execution of this Agreement
B. Purchaser will purchase from Seller that goodwill associated with the
Business which already does not accrue to the benefit of the Franchisor
C. Purchaser will purchase from Seller the Seller's right, title and
interest to leasehold improvements (the "Leasehold Improvements"), as more
particularly described in Exhibit " A" appended hereto, located at or upon the
Licensed Premises
D. Seller will assign to Purchaser, all of its right, title and interest in
and to the "Facility Leases" (Exhibit "B", appended hereto) at Closing and
Purchaser shall agree to perform the tenant's obligations thereunder in
accordance with its terms pursuant to Assignment and Assumption Agreements
executed by the Landlord and Sublessor, respectively
E. Purchaser will purchase that furniture, fixtures, equipment, telephones,
computers, and other personal property (the "Persona] Property") used in
connection with the Business, as is more particularly described in Exhibit "C",
appended hereto; provided that such items are not property included within the
Furniture Fixtures and Equipment lease annexed to Exhibit "D' hereto
F. Purchaser shall assume those furniture, fixture and equipment leases and
related service and utility contracts that Purchaser approves and agrees to
assume and are in use and in force in connection with the Business as of the
Closing Date and any contracts with consumers for restaurant services, (the
"Leases and Contracts", as more particularly described in Exhibit "D", appended
hereto) The consideration for said Leases and Contracts shall be their
assumption by Purchaser and its performance of Seller's obligations in
accordance with their terms.
G. Purchaser shall purchase and Seller shall convey all of the Seller's
right, title and interest in and to the trademarks, tradenames and copyrights
used, licensed or owned in connection with the Business (the "Intellectual
Property"), whether owned by Seller or licensed to Seller by Franchisor, as set
forth on Exhibit "E", annexed hereto
H. Sel1er shall convey all of the Seller's right, title and interest in and
to the deposits and prepaids established in connection with the Business and
necessary to the continuation of the Business (the "Deposits/Prepaids") as are
set forth on Exhibit "F", annexed hereto. Purchaser shall purchase books and
records of Seller (and other documents, certificates and instruments) pertaining
specifically to the Assets, as set forth on Exhibit "G" annexed hereto, but
excluding general ledgers and cash disbursement books of Seller and regulatory
required original records relating to the receipt, purchase, storage and
disposition of alcoholic beverages
J. The Purchaser shall purchase and the Seller shall convey all of the
Seller's right, title and interest in and to all of the licenses, permits and
governmental consents (the "Licenses/Contracts") used or necessary in connection
with the Business, as set forth on Exhibit "H", annexed hereto, or surrender
them to the authorities for Purchaser's benefit.
K. The Purchaser shall not purchase or assume and the Seller shall not see,
transfer, assign or convey those assets used in the Business as are set forth on
Exhibit "I", annexed hereto (the "Expressly Excluded Assets").
2. Seller's Considerations. The Purchaser agrees, subject to the provisions
of this Agreement, to assume certain obligations and purchase certain assets to
pay to Seller the following sums, which the Seller agrees to accept as full and
complete consideration for the Assets (the "Purchase Price"):
A. The sum of $35,000 upon the mutual execution of this Agreement, which
shall be held in Seller's attorney's trust account pending Closing:
B. At Closing: the $35,000 held in escrow, plus a sum equal to the value of
the Inventory, if purchased, plus the sum of $665,000.00, less such amounts as
may be held in a "Closing Escrow," as set forth in Clause 6H below and less such
sums disbursed at or prior to Closing by Purchaser, with Seller's or Seller's
counsel's written approval, to satisfy creditors of Seller.
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3. Purchaser shall have no obligation to employ or retain any employee of
Seller, and it is expressly agreed that Purchaser does not hereby, and shall not
assume any obligations whatsoever which in any manner relates to Seller's
employees, including without limitation, obligations with respect to employee
compensation, accured vacation pay, retirement, pension and benefit plans,
compensation or incentive programs, continuation or severance pay programs,
labor agreements, collective bargaining agreements, employment contracts, union
pension withdrawal liability , or any other obligations of whatsoever kind or
nature related to Seller's labor force, its employees, agents, or any labor
organization doing business or affiliated in any manner with Seller Purchaser
acknowledges that it has been provided a list of the current employees of the
Business and that it will notify Seller in writing in the event, that prior to
Closing or for thirty (30) days thereafter, it offers new employment to any of
said employees Seller agrees to hold harmless and indemnify Purchaser for any
and all liability, costs, expenses or damages including reasonable court costs
and attorneys fees incurred by Purchaser arising out of any monies due or to
become due to Seller's employees as a result of their employment by Seller prior
to Closing and any termination thereof, to any labor organization or
governmental unit or others as a result of the sale herein, the cessation of
Seller's business operations in New Jersey or elsewhere, or Seller's termination
of such employee's employment and employee benefits, irrespective of whether
such employees are hired by Purchaser Seller assumes no liability for
Purchaser's hiring of Seller's employees subsequent to the Closing, where such
liability arises solely as a result of Purchaser's hiring of such employees or
as a result of such employment
4. Actions Prior to Closing
A. Purchaser agrees that promptly after execution of this Agreement, it
will make application to the issuing authority for the transfer of the Beverage
Alcohol License Purchaser will use its best efforts to secure said License as
quickly and as reasonably practicable and, in connection therewith, will comply
with and carry out any and all of the requirements, demands, requests, rules,
and regulations of the local issuing authority and State Division of Alcoholic
Beverage Control, so as to expedite the approval of such application and
transfer of said License to Purchaser
B. Seller covenants and agrees that it shall provide Purchaser with any and
all cooperation and assistance reasonably requested by Purchaser in connection
with the application for the Beverage Alcohol License and any other
Licenses/Consents.
C. Seller covenants and agrees that it and its principals will continue
until the Closing to conduct the Business in the same manner as heretofore
conducted and will not hire any new or additional employees (excepted as may
otherwise be expressly agreed between Seller and Purchaser) or fail to fully
compensate employees for all pay (vacation or other benefits) due, and, without
limiting the generality of the foregoing will continue in force and effect and,
as applicable, renew, the existing Beverage Alcohol License and all other
Licenses/Consents; will perform all contracts in relation to the Business which
by their terms require performance by Seller; will not remove or sell, or cause
to be removed or sold, any Assets of the Business, except such merchandise as
may be consumed or disposed of in the regular course of the business; will not
materially increase the compensation payable to any officer, director or
employee of the business; and will not enter into any contract or agreement,
written or oral, in relation to the Business potentially binding Purchaser after
the transfer of the Business to it, except normal and ordinary commitments for
the purchase of merchandise and supplies, unless otherwise expressly approved in
writing by Purchaser.
D. Seller shall make available for inspection by Purchaser the books and
records of the Business (including, without limitation, payroll records, tax
returns, insurance policies, equipment and service contracts) upon reasonable
notice during normal business hours.
E. Seller shall provide to Purchaser a) the Landlord's and Sublessor's
written consents to the Purchaser as assignee of the Facility Leases (subject to
Closing and execution by Seller and Purchaser of the Assignment and Assumption
Agreement) and b) the Landlord's and Sublessor's Estoppel Certificates in favor
of Purchaser Seller shall use its best efforts to provide to Purchaser a
Subordination, Non-disturbance and Attornment Agreement with any lender
financing the Landlord All such instruments shall be in a form satisfactory to
Purchaser's counsel.
F. The Seller shall prepare and execute under oath or affirmation a list of
all creditors and tender the same to Purchaser's counsel and, with the
assistance of Purchaser's counsel, shall in all respects comply with the Bulk
Transfer provisions of New Jersey law relating to creditors. Seller shall be
responsible to satisfy any Bulk Transfer obligations to the New Jersey Division
of Taxation.
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5. Closing. The Closing of the transactions contemplated hereby (the
"Closing") will take place at the offices of Xxxxxxx & X'Xxxxx, LLP, 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxx Xxxxxx 00000, on a date, and time, as
soon as is possible within two (2) weeks after the local issuing authority
notifies Purchaser that the transfer to it of the Beverage Alcohol License has
been approved and the obligations under the Bulk Transfer provisions of New
Jersey law have been satisfied The date of Closing is herein referred to as the
"Closing Date" Except as may otherwise be provided herein, all of the
transactions contemplated by this Agreement will occur at the Closing and will
be deemed to have occurred simultaneously, and no such transaction will be
effective until all such transactions have been completed.
6. Action To Be Taken At Closing Subject to the provisions of this
Agreement, and in reliance upon the mutual representations, warranties,
agreements and undertakings of Seller and Purchaser; the following shall take
place at Closing:
A. Subject to amounts placed in "Closing Escrow", as described below,
Purchaser shall pay any portion of the Purchase Price payable at the
Closing as provided for herein; and
B. Seller shall execute and deliver to Purchaser such instrument or
instruments of transfer conveyance and assignment as shall be necessary in
the reasonable opinion of Purchaser's counsel to (i) vest in Purchaser good
title to the Inventory, any Licensed Premises Leasehold Improvements, the
Personal Property, the Intellectual Property, the Deposits/Prepaids,
records of the Business: and (ii) duly and validly assign to the Purchaser
all of the Seller's right, title and interest in and to the Facility
Leases, Licenses/Consents, and any Leases and Contracts which are to be
assumed by Purchaser.
C. Purchaser shall execute and deliver to Seller such instrument or
instruments as shall be reasonably necessary in the opinion of Seller and
Seller's counsel to effect the assumption by Purchaser of Seller's
obligations and liabilities under the Facility Leases and any Leases and
Contracts to he assumed by Purchaser.
D. Seller and Purchaser shall deliver to each other in a form
reasonably satisfactory to their respective counsel, a Release(s) in favor
of the other from and against any Broker's Commissions or Finder's, Agency
or, if applicable under Clause 22, below, Third Party fees or claims.
E. Purchaser shall present to Seller's counsel evidence of reflecting
the payment of such taxes as may be due the State of New Jersey based
solely upon the value of the Assets transferred hereunder.
F. Both Seller and Purchaser shall execute and deliver to each other
authorization to release those sums tendered by Purchaser and held in
Seller's attorney's trust account, pending Closing.
G. Seller shall deliver to Purchaser a certified copy of an executed
agreement between the Seller and the Franchisor confirming the satisfaction
of all franchise royalty tee obligations of' Seller and the termination or
other conclusion of their franchise relationship existing in connection
with the Business.
H. Purchaser's Attorney shall hold in trust account as "Closing
Escrow" such amounts a) as are equal to any remaining unpaid tax asserted
by the NJ Division of Taxation as of the Closing until such time as Seller
documents payment or escrow funds are used to satisfy the same; and b) in
the event the Seller does not establish as of Closing, the payment of all
wages and vacation pay to its employees, an amount equal to that estimated
obligation, until such time as Seller documents that such payments were
made.
7. Further Assurances. From time to time, at or after the Closing, at the
reasonable request of either Seller or Purchaser, and without further
consideration, the other party agrees to prepare, execute and deliver at its own
expense exclusive of any license and filing fee or similar expenses, which shall
be paid by the party asking such request), such other instruments of conveyance,
transfer, assignment, assumption or indemnification, and to take such other
actions as either Seller or Purchaser may reasonably require of the other to
more properly effectuate and perfect the transactions contemplated hereby.
8. Representations and Warranties and Covenants of Seller. Seller
represents, warrants and covenants to Purchaser as follows:
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A. Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of New Jersey, and has the
corporate power and authority to own the Assets and to conduct the Business
as is now being conducted
B. Seller has the corporate power and authority to execute and deliver
this Agreement and to carry out the terms and provisions hereof The
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action of Seller. This Agreement has
been duly executed and delivered by Seller and constitutes a valid and
binding obligation of Seller enforceable in accordance with its terms,
subject to the operation of laws relating to bankruptcy and the rights of
creditors generally, and the availability of equitable remedies
C. Neither the execution nor the delivery of this Agreement, nor the
performance hereof by Seller, will violate any provision of any judicial or
administrative order , award, judgment or decree to which Seller is or has
been a party, or conflict with its Articles of Incorporation or By-Laws, or
result in the breach of any term, condition or provision of, or constitute
a default under, any indenture, mortgage, deed of trust, agreement or other
instrument to which it is a party or by which it is bound, or to the best
of its knowledge, conflict with or result in the breach of any law binding
upon Seller, which violation or conflict would have a material adverse
effect on the Business or would prevent Seller from consummating the
transaction contemplated herein.
D. Except for as set forth on Exhibit "I", the Assets disclosed by
Seller to Purchaser in Exhibits A through H, plus Inventory, constitute all
of the Assets used in connection with the Business and necessary to conduct
the Business as of this date and the Closing.
E. Except for the obligations assumed pursuant to the Facility Leases
and any assumed Leases and Contracts identified on Exhibit "D" hereto, at
the Closing, all of the Assets sold, transferred or otherwise conveyed by
Seller to Purchaser shall be free and clear of all assessments, taxes,
claims, liens and encumbrances, without limitation.
F. At the Closing, any Leasehold Improvements or alterations to of the
premises subject to the Facility Leases made by or on behalf of Seller
shall conform in all material respects to all applicable building,
construction, fire, zoning, sanitation and other Codes, without limitation,
and the condition of the premises shall conform in all material respects to
all applicable fire and sanitation codes; the Personal Property (except as
expressly disclosed in Exhibit "C" hereto) shall be transferred in "as is,
but good working order" condition and the third party.
G. At the Closing, the Assets of the Seller to be sold to Purchaser
have not been adversely affected in an material way as a result of any
strike, lock-out, accident or other casualty or act of God or the public
enemy, or any judicial, administrative or governmental proceeding
Intellectual Property shall not infringe upon common law or statutory
rights or claims of any judicial, administrative or governmental
proceeding.
H. Except as set forth on Exhibit" J" attached hereto, Seller has made
no alteration to the premises that is the subject of the Facility Leases,
nor is any other action required by the Tenant to conform the Leasehold to
the requirements of the Facility Leases, as of the Closing.
I. The Business has been and is being conducted in accordance with all
Federal, State and local laws and regulations and, except as set forth on
Exhibit "K" annexed hereto, there are no governmental investigations,
actions or proceedings pending against the Beverage Alcohol License, the
Licensed Premises, Licenses/Consents, Seller or the Business. The Beverage
Alcohol License and the Licenses/Consents are in good standing and any
renewal or application necessary to maintain good standing as obtained or
filed.
J. To the best of Seller's knowledge, during its tenancy under the
Facility Leases, Seller has not received any notice requiring or calling
attention to the need for any repairs or clean-up in order to comply with
any environmental obligation, nor has it created any environmental
condition or situation on said premises, Further, Seller has no knowledge
of any such existing or pre-existing condition, regardless of causation.
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K. To the best of Seller's knowledge, except as set forth on Exhibit
"L" annexed hereto, there is no third party litigation, claim or action
pending against the Seller or the Assets of the Business.
L. There are no written, oral or implied employment contracts
affecting the Business
M. Except as set forth on Exhibit "M", annexed hereto, all taxes, fees
or imposts due to any authority, agency or governmental body with respect
to the conduct of the Business have been paid.
N. The list of creditors and claims tendered by Seller to Purchaser
for Bulk Transfer Provisions compliance shall be true and complete in all
respects, when tendered as provided hereunder.
O. To the best of Seller's knowledge, the seven (7) page September 7,
1986 Inventory incorporated within the Furniture Fixtures and Equipment
Lease annexed hereto in Exhibit "D" ("FF&E Inventory") is complete and
accurate as of that date and, except for normal wear and tear and
replacements due to breakage, as of the Closing the FF&E Inventory~ remains
intact at the Business and is in good working condition Seller's
representation and warranty contained in this Clause 80 shall not survive
the Closing.
9. Representations, Warranties and Covenants of Purchaser. Purchaser
represents, warrants and covenants to Seller as follows:
A. Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts, and has
the corporate power and authority to own its property and conduct its
business as such business is now being conducted.
B. Purchaser has the corporate power and authority to execute and
deliver this Agreement and to carry out the terms and provisions hereof The
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action of Purchaser. This Agreement
has been duly executed and delivered by Purchaser, enforceable in
accordance with its terms, subject to the operation of laws relating to
bankruptcy and the rights creditors generally, and the availability of
equitable remedies.
C. Neither the execution nor the delivery of this Agreement by
Purchaser nor the performance hereof by Purchaser, will violate any
provision of any judicial or administrative order, award, Judgment or
decree to which Purchaser is or has been a party, or conflict with its
Articles of Incorporation or By-Laws, or result in the breach of any term,
condition or provision of, or constitutes a default under, any indenture,
mortgage, deed of trust, agreement or other instrument to which Purchaser
is a party or by which it is bound, or to the best of its knowledge,
conflict with or result in the breach of any law binding upon Purchaser.
10. Conditions Precedent to Obligations of Purchaser. The Obligations of
Purchaser under this Agreement are subject to the fulfillment of each of
the following conditions prior to or at the Closing:
A. The representations and warranties of Seller contained in this
Agreement or in any certificate or document delivered to Purchaser pursuant
thereto shall in all material respects be true on and as of the Closing
Date, and Seller shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by
it prior to or at the Closing Seller shall, at the Closing, deliver to
Purchaser an officer's certificate to such effect.
B. Purchaser shall have obtained all permits, licenses, orders, consents,
and other approvals of any federal, state or local regulatory agency which may
be required in order to effectuate the transactions contemplated hereby,
specifically including the Beverage Alcohol License
C. Purchaser shall have received a copy of the resolution of the Board of
Directors of the Seller authorizing the Seller's execution, delivery and
performance under this Agreement, certified by an officer of the Seller to be
true, correct and unrevoked as of the Closing Date.
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D. Purchaser shall have received Landlord's and Sublessor's consents to
assignment and Estoppel Certificate and Seller's executed assignment of the
Facility Leases and, if applicable, have entered into a Subordination,
Non-disturbance, and Attornment Agreement with the Landlord's financing
institution.
E. Purchaser shall have received lessor's or other party's consent to the
assignment and assumption of the Leases and Contracts, including, without
limitation, the Furniture, Fixtures and Equipment lease between Seller and Steak
and Ale of New Jersey, Inc.
F. Seller shall have consummated compliance with the Bulk Transfer
Provisions.
G. There shall not have been any fire theft or environmental occurrence
affecting the Assets of an aggregate value or cost of $l 00,000 or which will
require sixty ( 60) days or more to repair, restore or otherwise satisfy by
Seller
11. Conditions Precedent to the Obligations of Seller All obligations of
Seller under this Agreement are subject to the fulfillment of each of the
following conditions prior to or at the Closing:
A. The representations and warranties of Purchaser contained in this
Agreement or in any certificate or document delivered to Seller pursuant
thereto shall in all material respects be true on and as of the Closing
Date with the same force and effect as though such representations and
warranties have been made on and as of the Closing Date Purchaser shall
have performed and complied with all agreements and conditions required by
this Agreement to be performed or complied with by it prior to or at
Closing, Purchaser shall, at the Closing, deliver to Seller an officer's
certificate to such effect.
B. Seller shall have received a copy of the resolution of the Board of
Directors of Purchaser authorizing Purchaser's execution, delivery and
performance of this Agreement, certified by an officer of Purchaser to be
true, correct and unrevoked as of the Closing Date.
C. Seller shall have received evidence that the local issuing
authority approved the transfer of the Beverage Alcohol License to the
Purchaser.
D. As of the Closing, Purchaser shall have assumed the Furniture,
Fixtures and Equipment Lease between Seller and Steak and Ale of New
Jersey, Inc (the "FF&E Lease") and the Facility Leases Purchaser shall
indemnify and hold Seller harmless from any and all liability, claims
damages, costs or expenses relating to the FF&E Lease or the Facility
Leases from and after the Closing
12. Closing and post Closing Adjustments.
At the Closing, adjustments to the Purchase Price will be made as follows:
A. To the extent of any fire, theft, casualty or other loss to the Assets
to be purchased or assigned, the Purchase Price as to such Assets shall be
reduced, dollar for dollar, based upon the amount of any insurance recovery by
Seller or, if none, then the fair market value agreed upon by the parties or an
appraisal process, The appraisal process shall involve three appraisers; one
selected by each party and one mutually agreed upon. The average of their
appraisals shall be the fair market value The parties agree to meet to discuss
the value of any loss within five business days of its occurrence and, if the
value has not been agreed upon by the tenth business day after the loss, to
designate all appraisers on the eleventh day Each party agrees to cooperate
fully with the appointment and valuation process and instruct that the
appraisers valuation report be submitted within ten business days.
B. As applicable and pro rata to the Closing, amounts paid or due pursuant
to the Facility Leases, any assumed Leases and Contracts, and any Deposits/
Prepaid.
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13. Indemnification. Seller and Purchaser will defend, indemnify, and hold
harmless the other from and against any and all claims, damages, losses,
liabilities, costs or expenses (including, without limitation, reasonable
attorney's fees), which either of them may suffer or become liable for as a
result of or in connection with any breach of any covenant, representation,
warranty, undertaking, obligation or agreement by the other contained in this
Agreement, or any other agreement, certificate, document or instrument executed
and delivered at Closing.
Promptly after receipt by the Indemnified Party of notice of the assertion
of any claim or the commencement of any action with respect to any indemnified
matter, the Indemnified Party will give written notice thereof to the
Indemnifying Party and will thereafter keep the Indemnifying Party reasonably
informed with respect thereto, provided, that failure to give the Indemnifying
Party prompt notice as provided herein shall not relieve the Indemnifying Party
of its obligations hereunder except to the extent, if any, that it shall have
been prejudiced thereby In case any such action is brought against any
Indemnified Party, the Indemnifying Party shall be entitled to participate in (
and, if it shall wish, to assume) the defense thereof (except as to any tax
matters) with counsel deemed satisfactory to the Indemnified Party If the
indemnifying Party assumes the defense of any claim or litigation as provided in
this Clause, the Indemnified Party shall be permitted to join in the defense of
such claim or litigation, with counsel of its own selection and at its own
expense, If the Indemnifying Party fails to assume the defense of any such claim
within 30 days after notice of any such claim or such shorter period of time as
is necessary to avoid adversely affecting the defense of such claim, the
Indemnified Party against whom such claim has been made shall have the right
(upon further notice to the Indemnifying Party) to undertake the defense,
compromise and settlement of such claim on behalf of and for the account and
risk and at the expense of the Indemnifying Party, (except as to any matter
related to taxes), subject to the right of the indemnifying Party to assume the
defense of such claim at any time prior to settlement, compromise or final
determination thereof Anything in this Clause to the contrary notwithstanding,
neither party shall, without the written consent of the other party:
(i) settle or compromise such claim without including as an
unconditional term thereof the giving of an unconditional release with
respect to all liability under such claim, or consent to the entry of
any judgment which does not include a dismissal with prejudice, of the
Indemnified Party and Indemnifying Party, or
(ii) settle or compromise any claim in any manner that may adversely
affect the other party other than as a result of monetary damages or
other money payments,
C. Amounts payable by the Indemnifying Party to the indemnified party in
respect of any claims under this Clause shall be payable as incurred.
14. Taxes Seller shall be responsible for the payment of any taxes arising
from the operation of the Business prior to Closing,.
15. Bulk Sales Law The parties hereto do not waive compliance with the
provisions of the Bulk Sales Law as incorporated under the Uniform Commercial
Code as enacted by the State of New Jersey.
16. Notices. Any notice, request, demand, instruction or other document to
be given hereunder or pursuant hereto shall be in writing and be deemed to be
given a) when personally delivered; b) if sent by registered or certified mail,
postage prepaid, return receipt requested, on the date of return receipt was
signed; c) if by ordinary mail, four business days after posting; and d) if by
tax or e-mail, upon written confirmation of receipt communication by recipient
(not machine or server acknowledgments), as follows:
If to Purchaser, to
Uno Restaurant, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Attn Xxxxxx X Xxxxx, Executive Vice President
8
With copies to
Xxxxxx X Xxxx, XX
Senior Vice President and General Counsel
Uno Restaurant Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx XX 02 13 2
and
Xxxxxxx & X'Xxxxx, LLP
5 00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attn Xxxxxx x X'Xxxxx, Esq
If to Seller, to:
Uno Concepts ot~New Jersey, Inc,
00000 Xxx Xxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn Xxxxxx Xxxxxx
With a copy to
Xxxxxxx X Xxxxxxx, Esq
Herzog, Fisher, Xxxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 902 12
17. Termination. This Agreement may, by notice given on or prior to the
Closing Date, in the manner hereinabove provided, be terminated and abandoned
A. By Purchaser if all of the conditions set forth in Clause 10 of this
Agreement shall not have been satisfied (or are incapable of being satisfied) in
accordance with their terms or on or before the 14th day after which Purchaser
is notified that the Beverage Alcohol License transfer is approved, or waived by
it on or before such date; or by Seller, if all of the conditions set forth in
Clause I I of this Agreement shall not have been satisfied ( or are incapable of
being satisfied) in accordance with their terms or on or before the 14th day
after which transfer to the Purchaser of the Beverage Alcohol License is
approved, or waived by it on or before such date.
B. By mutual consent of Seller and Purchaser Each party's right of
termination hereunder is in addition to and separate from any other rights it
may have hereunder or otherwise.
18. Waivers. Either Seller or Purchaser may, by written notice to the
other; (a) extend the time for the performance of any of the obligations or
other action of the other: (b) waive any inaccuracies in the representations or
warranties of the other contained in this Agreement or in any document delivered
pursuant to this Agreement; (c) waive compliance with any of the agreement of
the other contained in this Agreement; or (d) waive or modify performance of any
of the obligations of the other The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
19. Expenses of Sale, Each party to this Agreement shall bear and pay all
of its own costs and expenses (including, without limitation, legal and
accounting tees and disbursements) relating to this Agreement and the
performance of its obligations hereunder.
20. Entire Agreement and Amendments. This Agreement, including all Exhibits
hereto, which are incorporated herein by reference, contains the entire
understanding of the parties hereto with respect to the subject matter hereof,
and may be modified or amended only by a written instrument executed by each of
the parties hereto The Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9
21. Assignment. This Agreement shall be binding on and shall inure to the
benefit of the parties hereto and their respective legal representatives and
successors. This Agreement is not assignable by either party without the written
consent of the other, except that Purchaser may assign this Agreement to an
entity it owns or controls.
22. Commissions and Finder's Fees. The parties represent that the
negotiations they have conducted relative to this Agreement and the transactions
contemplated hereby have been carried on by them in such manner as not to give
rise to any valid claims against any of the parties hereto for a brokerage
commission, finder's fee or other like payment Each party agrees to indemnify
and hold the other party harmless against and in respect of any liability or
obligation (and all other expenses, including reasonable fees and disbursements
of counsel, incurred in connection therewith) arising in connection with any
claim made by any person for brokerage or finder's tees, agent's commissions, or
any other like payment based on, or arising under, any dealings or understanding
between any such third person(s) and the Indemnifying party hereto Such
indemnification shall be separate and apart from the indemnification provided
for in Clause 14 hereof and shall not be governed thereby.
In the event that a party to this Agreement discloses the existence of a
such brokerage, finder's, agency, first option or other third party obligation
("Third Party"), then prior to the execution of this Agreement, the Indemnified
Party shall be provided, by the Indemnifying Party, a writing from Third Party
acknowledging the Third Party's awareness of the transaction contemplated by
this Agreement and, further, on or prior to Closing, the Indemnifying Party
shall provide to the Indemnified Party a written Release duly executed by the
Third Party in favor of the Indemnified Party, in a form reasonably acceptable
to it and its counsel, which also shall be executed by the Indemnified Party
23. Survival of Covenants, Representations, Warranties. Agreements and
Obligations Stated Herein All the respective covenants, representations,
warranties, agreements and obligations stated herein of the Purchaser and Seller
respectively, contained in this Agreement shall survive the Closing.
24. Retention of Certain Business Records. Seller agrees that from the date
upon which the Purchaser is notified that the transfer of the Beverage Alcohol
License has been approved, until 90 days after the Closing, Purchaser shall be
provided access to and photocopies of any and all business records relating to
the Assets purchased and sold under this Agreement Thereafter, as to Purchaser,
Seller shall have no obligation to retain any such record not being purchased or
sold hereunder
25. Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of New Jersey The parties hereby consent
to the jurisdiction of any State or Federal Court located with the State of New
Jersey as the exclusive forum for enforcement or dispute resolution In the event
of any dispute or enforcement proceedings, the costs, expenses. legal fees and
disbursements of the prevailing party shall be assessed against the
non-prevailing party.
26. Headings. The subject headings of the Articles and paragraphs of this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
27. Parties of Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any
third persons any right of subrogation or action over or against any party to
this Agreement.
28. Non-Assumption of Liabilities. Purchaser is not assuming any debt,
liability or obligation of Seller, whether known or unknown, fixed or
contingent, except as specifically provided for in this Agreement
29. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed shall be deemed to be an original and
all of which, together, shall be deemed to be one and the same instrument.
10
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written
UNO CONCEPTS OF NEW JERSEY, INC UNO RESTAURANT, INC
By: By:
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Attest: Attest:
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By: By:
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