AMENDMENT NO. 3
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT (this "Amendment") is made
and entered into this 16th day of June, 1997, among NORTH FOODS, INC., a North
Carolina corporation ("Seller"); XXXXXX XXXXXXXX, XXXXXXX XXXXXXXX and XXXXXX
XXXX XXXXXXXX (collectively referred to as the "Shareholders"), and NATIONAL
RESTAURANT ENTERPRISES, INC. d/b/a AMERIKING CORPORATION, a Delaware corporation
("Purchaser").
R E C I T A L S:
WHEREAS, Seller, the Shareholders and Purchaser are parties to an Asset
Purchase Agreement, dated March 7, 1997 (the "Original Agreement"), as amended
by Amendment No. 1 to Asset Purchase Agreement, dated April 8, 1997, and
Amendment No. 2 to Asset Purchase Agreement, dated June 16, 1997 (collectively
and with the Original Agreement, the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to further
clarify the parties' intentions.
NOW THEREFORE, in consideration of the Recitals, which shall be deemed
to be a substantive part of this Amendment, and the mutual covenants, promises,
agreements, representations and warranties contained in this Amendment, the
parties hereto do hereby covenant, promise, agree, represent and warrant as
follows:
1. Definitions of Terms. Capitalized terms used without definition herein
shall have the meanings assigned to them in the Agreement.
2. Use of Escrow for Adjustments. The parties hereby agree that all sums to
be escrowed with Xxxxxx & Xxxxxxx, L.L.P. pursuant to Section 3.20 of the
Original Agreement shall be available to reimburse Purchaser for any
overpayments at Closing made in respect of any prorations pursuant to Section
1.7. To the extent practicable, the parties shall "true-up" such amounts within
15 days following the Closing Date, and, for all other prorations, the parties
shall "true-up" such amounts as promptly as possible. Funds in respect of any
such "true-up" shall be distributed by Xxxxxx & Xxxxxxx, L.L.P. to Purchaser as
soon as practicable following receipt of instructions with respect thereto from
Seller and Purchaser, provided that no funds shall be distributed to Seller out
of such escrowed amounts pursuant to Section 3.20 of the Original Agreement so
long as any good faith claim of Purchaser against such funds shall remain
outstanding.
3. License to Use Name. Seller hereby grants to Purchaser and its assigns a
license to continue to use the name "North Foods Food Mart" and reasonable
variations thereon, in connection with the convenience store businesses located
adjacent to, and operated in conjunction with, Burger King Store Nos. 7626 and
9053. Such license shall include the right to use such name and reasonable
variations thereon on all signage, advertising and other publications incidental
to the operation of such businesses. The license granted hereby shall not
authorize Purchaser or its assigns to use the name "North Foods Food Mart" or
any variations thereon in connection with any other businesses or locations. In
the event Seller elects to dissolve its corporate existence at such time as
Purchaser and its assigns are still using the license granted hereunder, Seller
shall give to Purchaser 90 days advance notice of its intention to effect such
dissolution and cooperate with and use its reasonable efforts to assign to
Purchaser or its assign the right to continued use of the name "North Foods Food
Mart" and reasonable variations thereon.
4. Scope. To the extent not amended or modified herein, the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment, with the intention of making it a valid and binding instrument, on
the date first above written.
Seller:
NORTH FOODS, INC.
By:________________________________
___________________________, President
Shareholders:
___________________________________
Xxxxxx Xxxxxxxx
___________________________________
Xxxxxxx Xxxxxxxx
___________________________________
Xxxxxx Xxxx Xxxxxxxx
Purchaser:
NATIONAL RESTAURANT ENTERPRISES, INC.
d/b/a AMERIKING CORPORATION
By:___________________________________
Xxxx Xxxxxx, Secretary
2494-1 05201-024
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