Exhibit 10.1
ASSET PURCHASE
AGREEMENT
Dated as of
February 5, 2008,
By
and among
Barnhill’s Buffet, Inc.
as
Seller
And
Starlite Holdings, Inc.,
as
Buyer
ASSET PURCHASE AGREEMENT (this “
Agreement ”), dated as of February 5, 2008, is by
and among BARNHILL’S BUFFET, INC., a Tennessee corporation
(the “ Seller or the Company ”) and
STARLITE HOLDINGS, INC., a wholly owned subsidiary of Star
Buffet, Inc., a Delaware corporation, (together with any
successor and assigns, the “ Buyer
”).
RECITALS
A.
The Seller is engaged in
the business of operating a chain of restaurants known as
Barnhill’s Buffet that specialize in Southern-style buffet
dining and catering.
B.
On the terms and subject
to the conditions set forth in this Agreement, the Seller desires
to sell, and the Buyer desires to acquire certain assets and assume
certain liabilities of Seller’s restaurants listed on
Exhibit A attached hereto (collectively, the “
Restaurants ”), and to assume certain real property
and personal property leases as well as certain contracts related
thereto necessary for the operation of the Restaurants.
C.
On or about
December 3, 2007, the Seller commenced a proceeding (the
“ Bankruptcy Case ”) in the United States
Bankruptcy Court for the Middle District of Tennessee (the “
Bankruptcy Court ”) by filing a voluntary petition for
relief under Chapter 11 of Title 11 of the United States Code (the
“ Bankruptcy Code ”) (the date of such filing
being the “ Petition Date ”).
D.
The Seller and the Buyer
have agreed that the transactions contemplated hereby shall be
accomplished through a sale and assignment of assets to the Buyer
pursuant to Sections 363 and 365 of the Bankruptcy Code.
E.
The Seller and the Buyer
contemplate a closing of the transactions on the Target Date (as
defined in Section 2.3 herein) following the entry of
the Sale Order (as defined in Section 7.2 ), which Sale
Order shall not be subject to any stay, as of the Closing Date (as
defined in Section 2.3 ).
F.
All disclosure schedules
and exhibits referred to herein are hereby incorporated by
reference and, taken together with this Agreement (including the
foregoing Recitals) shall constitute but a single
agreement.
ARTICLE 1
PURCHASE AND
SALE
1.1
Assets
. Subject to the terms of this
Agreement and pursuant to Sections 363 and 365 of the Bankruptcy
Code, Seller agrees to sell, transfer, convey and/or assign to
Buyer, and Buyer agrees to purchase and acquire from Seller at the
Closing (as defined in Section 2.3 ), all of
Seller’s right, title and interest, whatsoever, in and to the
assets described below and in the following manner (collectively,
the “ Assets ”) free and clear of all
Encumbrances (as defined in Article 10 ):
(a)
Store Inventory
. At the Closing but effective as of
the Effective Time (as defined in Section 2.6 ), Seller
shall sell, transfer and assign to Buyer all of Seller’s
right, title and interest in and to all of the inventory on hand
(including raw materials, work in process and finished goods) at
the Restaurant Sites.
(b)
Real Property Lease
Assignments . Described in Exhibit A are
locations of certain restaurant sites leased by Seller (the “
Restaurant Sites ”) that constitute all of the sites
on which the Restaurants are located. Subject to
Section 1.6 , at the Closing but effective as of the
Effective Time, Seller shall transfer, sell and assign to Buyer all
of Seller’s right, title and interest in and to the leases
for the Restaurant Sites (the “ Assumed Leases
”) free and clear of all Encumbrances.
(c)
Tangible Personal
Property . At the Closing but effective as of the
Effective Time, Seller shall sell, transfer and assign to Buyer,
free and clear of all Encumbrances, all of Seller’s right,
title and interest in and to all tangible personal property owned
or leased by Seller and located at the Restaurant Sites, including,
without limitation, certain leasehold improvements and fixtures
located at the Restaurant Sites and further including, without
limitation, the items described on Exhibit B (the
“ Tangible Personal Property ”).
(d)
Personal Property Leases and
Executory Contract Assignments . Described in Exhibit C are
certain personal property leases (“ Personal Property
Leases ”) as well as certain licenses (including, without
limitation, licenses relating to computer hardware and software),
contracts, third-party warranties, arrangements and other
agreements that may constitute executory contracts under
Section 365 of the Bankruptcy Code (“ Executory
Contracts ” and together with the Assumed Leases and the
Personal Property Leases, the “ Assigned Agreements
”) to which the Seller is a party, relating to the business
conducted at the Restaurant Sites.
(e)
Books and
Records . At the Closing, Seller shall sell,
convey, transfer and assign to Buyer all of Seller’s right,
title and interest in and to all “Books and Records”
(including the right of possession) located at the Restaurants
and/or Seller’s corporate headquarters that relate to the
business conducted at the Restaurant Sites and/or the ownership of
the Assets. Following the Closing, Seller shall have the
right to retain copies of any Books and Records transferred to
Buyer. “ Books and Records ”
means all sales records, purchase records, customer lists, supplier
lists, advertising and promotional materials, health inspection
records including
all records regarding the Occupational Safety and Health Act and
similar government examinations and clearances , correspondence and other
records, real
estate and developmental data, blueprints.
(f)
Perpetual License of Trade
names . At the Closing but effective as of the
Effective Time, Seller shall grant to Buyer a perpetual license to
use any trade names, trademarked names, or graphics owned by Seller
for purposes of operating the Restaurants (the “
License ”).
1.2
Excluded Assets
. Except for the
Assets set forth in Section 1.1 , all other assets of
Seller are excluded from the purchase and sale contemplated by this
Agreement. For the
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avoidance of doubt, subject to
Section 9.3 , a ll security deposits, refunds, deposits and
prepaid expenses of Seller, whether or not they relate to a
property subject to an Assignment Agreement, are not Assets to be
transferred to Buyer (the “ Prepaid Charges
”).
1.3
Assumed
Liabilities . On the Closing Date, but effective as
of the Effective Time, Buyer shall assume and agree to discharge
only the following specifically enumerated obligations and
liabilities of Seller (the “ Assumed Liabilities
”):
(a)
All liabilities and
obligations arising after the Closing Date with respect to or
arising under the Assets;
(b)
All liabilities,
obligations and commitments under the Assigned Agreements accruing
with respect to any periods after the Effective Time or requiring
payment of an obligation which becomes due and payable after the
Effective Time and which, in any event, is attributable to the
period after the Effective Time; and
(c)
All liabilities,
obligations and commitments accruing with respect to any periods
after the Effective Time requiring payment of an obligation which,
in any event, becomes due and payable after the Effective Time
resulting from, caused by or arising out of, directly or
indirectly, the conduct by Buyer in operating the business at the
Restaurant Sites.
1.4
Retained
Liabilities . Notwithstanding anything contained in
this Agreement to the contrary, Buyer does not assume or agree to
pay, satisfy, discharge or perform, and shall not be deemed by
virtue of the execution and delivery of this Agreement or any
document delivered at the Closing pursuant to this Agreement, to
have assumed, or to have agreed to pay, satisfy, discharge or
perform, any liability, obligation or indebtedness of Seller,
whether primary or secondary, direct or indirect, other than the
Assumed Liabilities. Seller shall retain all liabilities and
obligations of Seller other than the Assumed Liabilities to the
extent specifically provided in Section 1.3
subject to the prorations set forth in Section 9.3 (all
such liabilities and obligations retained by Seller being referred
to herein as the “ Retained Liabilities
”). By way of illustration, and not of limitation,
Retained Liabilities include:
(a)
All liabilities,
obligations and commitments of Seller or any predecessor(s) or
Affiliate(s) of Seller relating to Taxes (as defined in
Article 10 ) with respect to the Assets or otherwise,
for all periods, or portions thereof, on or prior to the Closing
Date, subject to the prorations set forth in
Section 9.3 ;
(b)
All liabilities,
obligations and commitments for any legal, accounting, investment
banking, brokerage or similar fees or expenses incurred by Seller
in connection with, resulting from or attributable to the
transactions contemplated by this Agreement;
(c)
Liabilities, obligations
and commitments for which Buyer does not expressly assume an
obligation or liability as described in Section 1.3
;
(d)
Liabilities, obligations
and commitments for any borrowed money incurred by Seller or any
predecessor(s) or Affiliate(s) of Seller; and
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(e)
All liabilities,
obligations and commitments of Seller, whether known or unknown,
disclosed or undisclosed, resulting from, caused by or accruing out
of, at any time, directly or indirectly, the conduct of its
business or ownership or lease of any of its properties or assets
or any properties or assets previously used by Seller at any time
prior to or on the Closing Date.
1.5
Sale and Assignment Pursuant
to Bankruptcy Code . All the sales, assumptions and
assignments contemplated by this Article 1 shall be
subject to Bankruptcy Court approval pursuant to, among other
things, Sections 363 and 365 of the Bankruptcy Code.
1.6
Assigned
Agreements .
Seller shall assume and
assign to the Buyer all of the Assigned Agreements.
Set forth on Exhibits
A and C is certain information describing the monetary
obligations associated with the Assigned Agreements and any
monetary defaults there under as of the Petition Date (the “
Cure Amounts ”). To the extent required by the Bankruptcy Court
under the Bankruptcy Code in order to permit the assumption and
assignment of the Assigned Agreements to the Buyer pursuant to this
Agreement, (i) the Buyer hereby agrees to pay the Cure Amounts
listed in Exhibits A and C , (ii) the Buyer
shall provide adequate assurances of future performance as required
by the Bankruptcy Code with respect to each Assigned Agreement and
(iii) at the Closing, any obligations that have accrued but
are not yet due for payment under the Assigned Agreements shall be
pro-rated between the Seller and Buyer as of the Closing in
accordance with Section 9.3 .
ARTICLE 2
CONSIDERATION; ALLOCATION;
PAYMENT
2.1
Assumption; Purchase;
Consideration . In consideration of the sale,
conveyance, transfer and/or assignment of the Assets as provided in
Article 1, and subject to the provisions of this Agreement, at
the Closing Buyer shall:
(a)
assume the Assumed
Liabilities; and
(b)
purchase the Assets for
the Purchase Price (as defined below).
2.2
Purchase Price
. The purchase price for the sale of
the Assets shall be $1,000,000.00 in cash (the “Purchase
Price”).
2.3
Closing
. The “ Closing ”
of the transactions contemplated herein, including payment of the
Purchase Price, shall take place at the offices of the Company or
such other location in Nashville, TN as may be agreed upon, no
later than five (5) days following the entry of the Sale Order
(the “ Target Date ”) (or such earlier date as
Buyer and Seller may mutually agree, the “ Closing
Date ”); provided, that no stay of the Sale Order shall
be in effect and provided, further, that the Sale Order shall
contain a waiver of the automatic ten (10) day stay under
Rule 6004(h) of the Federal Rules of Bankruptcy
Procedure; provided , further , however , that in no
event unless otherwise agreed in writing shall the Closing take
place on a date which is after February 14, 2008 (the “
Termination Date ”) . At the Closing, Buyer shall pay the
Purchase Price to Seller by wire transfer of immediately available
funds to one or more bank accounts of Seller, or as
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directed by Seller in accordance with the terms
of the Sale Order approved by the Bankruptcy Court.
2.4
Allocation
. On or before the date that is five
(5) days before the Closing Date, the Seller and the Buyer
will agree upon an allocation of the Purchase Price covering the
Assets for federal, state and local Tax purposes. The Seller
and the Buyer will implement, report and accept such allocation for
federal, state and local Tax purposes. The parties agree that
such allocations will not in any way limit their respective rights
and obligations under the Sale Documents (as defined in
Section 3.2 ) in respect of representations,
warranties, covenants and agreements and the breach thereof or
damages therefore.
2.5
Transfer Taxes
. Buyer shall pay all sales, transfer
and use taxes, if any, that arise from the
Transaction. The parties will reasonably cooperate to
minimize any such taxes.
2.6
Effective Time
. The effective time
of the transactions contemplated hereby shall be 12:01 a.m.
(Nashville, Tennessee time) on the first day following the Closing
(the “ Effective Time ”), notwithstanding the
fact that the actual physical exchange of documents shall take
place at the Closing.
2.7
Deposit
. Upon the execution
of this Agreement, Buyer shall place in escrow with Seller’s
counsel a refundable purchase price deposit of $1,000 in
cash. One day prior to the Sale Hearing, an additional
refundable purchase price deposit in the amount of $99,000 in cash shall be placed
in escrow with Seller’s counsel (all such cash placed in escrow hereinafter
referred to as the “ Deposit ”), all of which
shall be placed in an interest-bearing account. Upon Closing,
the Deposit will be applied against the Purchase Price.
Otherwise, the deposit will either be returned to Buyer or paid to
Seller as specified in Section 8.2 .
ARTICLE 3
REPRESENTATIONS AND
WARRANTIES OF SELLER
Except (i) as set forth in the schedules
referenced herein, to the extent (ii) it would not reasonably
be expected to result in a Material Adverse Effect, (iii) the
Bankruptcy Court determines otherwise, and (iv) the Bankruptcy
Code provides otherwise, as an inducement to Buyer to enter into
and perform its obligations under this Agreement, Seller hereby
represents and warrants to Buyer as follows:
3.1
Organization and Good
Standing . Seller is a corporation duly
organized, validly existing and in good standing under the laws of
the state of Tennessee and has full organizational power and
organizational authority to conduct its business as it is now being
conducted and to own, operate or lease the properties and assets it
currently owns, operates or holds under lease.
3.2
Power and
Authorization . Subject to approval by the Bankruptcy
Court, Seller has full power and authority to execute and deliver
this Agreement and any agreement, document, certificate or
instrument being delivered pursuant to or in connection with the
transactions contemplated by this Agreement (collectively, the
“ Sale Documents ”) to perform its obligations
hereunder and there under and to consummate the transactions
contemplated hereby and thereby. The execution and delivery
of this Agreement and the other Sale Documents, and the
performance
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by
Seller of its obligations hereunder and there under, and the
consummation of the transactions contemplated hereunder and there
under, have been duly authorized by Seller. This Agreement
and the other Sale Documents upon execution and delivery by Seller
and upon approval of the Bankruptcy Court will constitute the
legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms.
3.3
No
Violation . Except as set forth on Schedule
3.3 hereto, the execution, delivery and performance by Seller
of this Agreement and the other Sale Documents and the consummation
or performance of the transactions contemplated herein and therein
do not and will not:
(a)
conflict with, result in
the breach, modification, termination or violation of, or loss of
any benefit under, constitute a default under, accelerate the
performance required by, result in or give rise to a right to amend
or modify the terms of, result in the creation of any lien upon any
assets or properties, or in any manner release any party thereto
from any obligation under, any material mortgage, note, bond,
indenture, contract, agreement, lease, license or other instrument
or obligation of any kind or nature by which Seller, or any of its
properties or assets, may be bound or affected;
(b)
contravene or conflict
with, or result in a violation of, result in any loss of benefit
under, or give any Person the right to challenge any of the
transactions contemplated by this Agreement and the other Sale
Documents or to exercise any remedy or obtain any relief under, any
permit, concession, franchise, order, judgment, writ, injunction,
law, rule, ordinance, regulation, statute or decree applicable to
Seller; or
(c)
conflict with or violate
any provision of the certificate of incorporation, bylaws or
resolutions adopted by the board of directors or stockholders, each
as heretofore amended, of Seller.
3.4
No
Consent Required . Except for Bankruptcy Court
approval or as otherwise contemplated by this Agreement [or as set
forth on Schedule 3.4 hereto], no consent, approval, order
or authorization of, or declaration, filing or registration with,
any Person, entity or governmental authority is required to be made
or obtained by Seller in connection with the authorization,
execution, delivery or performance of this Agreement, the other
Sale Documents or the transactions contemplated hereby and
thereby.
3.5
Compliance with Laws;
Permits . To the Knowledge of the Seller,
Seller is in material compliance with all laws, regulations, rules,
ordinances, orders and other requirements applicable to the
operation, conduct or ownership of the business conducted at the
Restaurant Sites. Seller holds all of the required permits,
licenses, approvals and authorizations of any Governmental Unit (as
defined in Article 10 ) or third parties (collectively,
“ Permits ”) necessary or appropriate for the
conduct of its business at the Restaurant Sites.
To the Knowledge of the
Seller, all such
Permits are in full force and effect, and will remain with Seller
upon, and will not be affected by, the Closing; there is no
condition, nor has any event occurred, which constitutes or with
the giving of notice or passage of time or both would constitute a
violation of the terms of any Permit and no cancellation,
modification or revocation of any of the Permits is pending or
threatened.
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3.6
Property
.
(a)
Seller has good and
marketable title or rights as lessee to all real, personal, mixed,
tangible and intangible property of any kind or nature owned or
used by Seller at the Restaurant Sites, constituting the Assets, in
each case free and clear of all Encumbrances, except for
Encumbrances identified on Schedule 3.6(a) hereto on
the date hereof. The Assets located at the Restaurant Sites
(a) constitute all the assets, of any nature whatsoever,
necessary at the Restaurant Sites in order for Seller to operate
its business at the Restaurant Sites in the manner such business is
presently operated by Seller, and (b) include all of the
operating assets of Seller at the Restaurant Sites. Upon the
execution of this Agreement, Buyer shall have the right to
communicate with landlords (and other parties in the leasehold
chain) regarding the leaseholds related to the Restaurant
Sites.
(b)
Seller has a valid
leasehold interest to all of the Assumed Leases. Each of the
Assumed Leases is the subject of a written lease agreement and
there are no oral terms inconsistent with the written terms
thereof. Except as set forth on Schedule 3.6(b) , to
the Knowledge of the Seller, no work has been performed on, or
materials supplied to, any of the Assumed Leases within the
applicable statutory period which would give rise to any
mechanic’s or materialmen’s liens for any amount in
excess of $1,000.
3.7
Condition of Property and
Related Matters .
(a)
All buildings, machinery,
equipment and other tangible assets constituting the Assets and
used by Seller in the conduct of its business at the Restaurant
Sites, including but not limited to the Tangible Personal Property,
are in fair or good operating condition and repair, reasonable wear
and tear excepted, are usable in the ordinary course of business
and are adequate and suitable for the uses to which they are being
put. All such assets and property are located at real
property locations constituting the Restaurant Sites.
3.8
Material
Contracts . With respect to the business
conducted at the Restaurant Sites, Seller has not entered into nor
is it bound by any contract, agreement or commitment of an amount
or value in excess of $50,000 in the aggregate, written or oral,
including without limitation any obligations for money borrowed
(the “ Material Contracts ”); true, correct and
complete copies of all written Material Contracts previously have
been furnished to Buyer. Except as set forth on Schedule
3.8 , to the Knowledge of the Seller, Seller is not in default,
and no event has occurred or circumstances exists that, with or
without which, the giving of notice or the passage of time or both,
may contravene, conflict with, result in a breach of or constitute
a default by Seller, or any other party under any Material Contract
or any other obligation owed by Seller, and no event has occurred
which, with the giving of notice or the passage of time or both,
would constitute a default by any other party to any such Material
Contract or obligation. The consummation of the transactions
contemplated by the Sale Documents will not result in a breach of
or constitute a default under, any Material Contract or the right
of any other party to the Material Contract to terminate the same
and there are no negotiations pending to revise the terms of any
such Material Contracts.
3.9
Employee
Matters .
(a)
Seller is not a party to
or bound by any collective bargaining agreement and there are no
labor unions or other organizations representing, purporting to
represent or, to the
7
Knowledge of Seller, attempting to represent
any employees employed in the operation of the business conducted
at the Restaurant Sites. Since February 11, 2005, there
has not occurred or, to the Knowledge of Seller, been threatened
any material strike, slowdown, picketing, work stoppage, concerted
refusal to work overtime or other similar labor activity with
respect to any employees employed in the operation of the business
conducted at the Restaurant Sites. There are no labor
disputes currently subject to any grievance procedure, arbitration
or litigation and there is no representation petition pending or,
to the Knowledge of Seller, threatened with respect to any employee
employed in the operation of the business conducted at the
Restaurant Sites. The Seller has complied with all provisions
of all Legal Requirements (as defined in Article 10 )
pertaining to the employment of employees, including, without
limitation, all such Legal Requirements relating to labor
relations, equal employment, fair employment practices,
entitlements, prohibited discrimination or other similar employment
practices, entitlements, prohibited discrimination or other similar
employment practices or acts, except for any failure so to comply
that, individually or together with all such other failures, has
not and will not result in a material Liability or obligation on
the part of the Buyer, and has not had or resulted in, and is not
expected to have or result in, a Material Adverse Effect (as
defined in Article 10 ).
(b)
Buyer shall have no
Liability on account or with respect to any benefits due
Seller’s employees (including without limitation any
Liability arising in connection with or with respect to any of the
following: compensation, unemployment insurance contributions,
termination payments, severance payments, retirement, pension,
profit-sharing, retirement plans, bonus, vacation, disability,
health, accrued sick leave or other employee benefit plans,
agreements or understandings). The terms and conditions
(including the scope and amount of all benefits) under which any
employment will be offered to employees of Seller by Buyer shall be
determined by Buyer in its sole discretion.
3.10
Books and
Records . All the books, records and
accounts of Seller relating to the Restaurant Sites, all of which
have been made available to Buyer, are in all material respects
accurate and complete, accurately reflect all matters normally
recorded in the books, records or accounts of Seller in accordance
with Seller’s historical practices, are in all material
respects in compliance with all laws and regulations applicable to
Seller as they relate to the business conducted at the Restaurant
Sites and accurately present and reflect in all material respects
the transactions described therein.
3.11
Taxes
. Except as set forth on Schedule
3.11 , all Tax returns, reports and declarations required by
any governmental authority to be filed in connection with
Seller’s ownership or lease of the Assets or the operation of
the business conducted at the Restaurant Sites have been timely
filed and, to the Knowledge of Seller, are complete and correct in
all material respects and all Taxes related thereto have been
paid.
3.12
Litigation
. Except as set forth in Schedule
3.12 , there is no claim, counter-claim, action, suit, order,
proceeding or investigation pending, in law or in equity, or, to
the Knowledge of Seller, threatened against or involving Seller,
with respect to the business conducted at the Restaurant Sites (or
pending or, to the Knowledge of Seller, threatened against any of
the officers, directors or key employees of Seller with respect to
business activities (including any products sold) at the Restaurant
Sites conducted on behalf of Seller) with respect to or affecting
Seller, its accounts, business, properties, assets or rights, or
relating to the transactions contemplated hereby,
8
before any court, agency, regulatory,
administrative or other governmental body or officer or before any
arbitrator; nor to the Knowledge of Seller, is there any reasonable
basis for any such claim, action, suit, proceeding or governmental,
administrative or regulatory investigation that would result in a
Material Adverse Effect. Seller is not directly subject to or
affected by any order, judgment, decree or ruling of any court or
governmental agency relating to affecting the Restaurant
Sites. Seller has not received any written opinion or
memorandum of legal advice from legal counsel to the effect that it
is exposed to any liability which may be material to the business,
prospects, results of operations, financial condition or assets of
Seller at the Restaurant Sites.
3.13
Environmental and Safety
Requirements .
(a)
To the Knowledge of
Seller, Seller is in material compliance with all applicable
Environmental and Safety Requirements (as defined below) at the
Restaurant Sites and Seller possesses all required permits,
licenses and certificates for the Restaurants, and has filed all
notices or applications, required thereby. To the
Knowledge of Seller, Seller has not received any notice or other
communication from any party with respect to Seller’s failure
to comply with Environmental and Safety Requirements. For
purposes of this Agreement, “ Environmental and Safety
Requirements ” means all federal, state, provincial,
foreign and local laws, bylaws, rules, regulations, ordinances,
decrees, orders, statutes, actions, guidelines, standards,
arrangements, injunctions, policies and requirements relating to
public health and safety, worker health and safety, disabilities,
pollution and protection of the environment (including without
limitation the handling of any polluted, toxic or hazardous
materials), all as amended;
(b)
To the Knowledge of the
Seller, the properties at the Restaurant Sites are not subject to
any, nor are there any facts or circumstances which Seller
reasonably believes could form the basis for any, Liability,
contingent or otherwise arising out of any Environmental and Safety
Requirements. There are no pending or, to the Knowledge of
Seller, threatened claims or Encumbrances for Seller’s
failure to comply with any Environmental and Safety
requirements. Seller does not have in its possession or under
its control at the Restaurant Sites any hazardous substances,
except those hazardous substances as are used in the ordinary
course of the business of Seller and are used or maintained in
compliance with the Environmental and Safety
Requirements;
(c)
To the Knowledge of the
Seller, during the period Seller has occupied the Restaurant Sites,
there has been no Release (as defined in Article 10 )
or threat of Release, of any hazardous materials at or from the
Restaurant Sites or at any other locations where any hazardous
materials were generated, manufactured, refined, transferred,
produced, imported, used, or processed from or by the Restaurant
Sites, or from any other properties and assets (whether real,
personal, or mixed) in which Seller has or had an interest or, to
the Knowledge of Seller, any geologically or hydrologically
adjoining property, whether by Seller or any other Person;
and
(d)
Seller has delivered to
Buyer true and complete copies and results of any reports, studies,
analyses, tests, or monitoring possessed or initiated by Seller
pertaining to hazardous materials or hazardous activities in, or,
or under the Restaurant Sites, or concerning compliance by Seller
or any other Person for whose conduct it is or may be held
responsible, with Environmental and Safety Requirements.
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3.14
Store Inventory
. All of the Store
Inventory is located at one or more of the Restaurant
Sites.
3.15
No
Undisclosed Liabilities . Seller has not incurred any
liabilities or obligations of any nature, whether known or unknown,
absolute, accrued, contingent or otherwise and whether due or to
become due, arising out of or related to the business conducted at
the Restaurant Sites, except (a) as set forth in Schedule
3.15 , (b) as and to the extent disclosed or reserved
against in the most recent balance sheet of Seller provided to
Buyer, and (c) for liabilities and obligations that were
(i) incurred in the ordinary course of business consistent
with past practice and (ii) individually or in the aggregate
are not material to the business conducted at the Restaurant Sites
and have not had or resulted in, and would not reasonably be
expected to result in, a Material Adverse Effect.
3.16
Disclosure
. No representation
or warranty or other statement made by Seller in this Agreement or
in connection with the transactions contemplated hereby omits to
state a material fact necessary to make any of them, in light of
the circumstances in which it was made, not misleading.
3.17
Brokers, Finders,
etc .
Other than Brookwood Associates, retained by the Seller as its
investment banker in connection with the transactions set forth in
this Agreement, all negotiations relating to this Agreement and the
transactions contemplated hereby, have been carried on without the
participation of any Person acting on behalf of Seller in such
manner as to give rise to any valid claim against the Buyer or any
of its subsidiaries for any brokerage or finder’s commission,
fee or similar compensation, or for any bonus payable to any
officer, director, employee, agent or sale representative of or
consultant to Seller upon consummation of the transactions
contemplated hereby or thereby. Buyer shall have no
obligation to pay the fees and expenses of Brookwood
Associates.
3.18
Notice of Sale
. Notice of this
Agreement and Notice of the Sale Order and the hearings therefore
will be duly and properly given to all known creditors and parties
in interest in the Bankruptcy Case, including but not limited to,
any parties holding consensual or nonconsensual liens on the
Assets, the non-Seller parties to the Assigned Agreements being
assumed pursuant to this Agreement, the employees at the Restaurant
Sites, and applicable taxing and governmental
authorities.
ARTICLE 4
REPRESENTATIONS AND
WARRANTIES OF BUYER
As
an inducement to Seller to enter into and perform its respective
obligations under this Agreement, Buyer hereby represents and
warrants to Seller as follows:
4.1
Organization and Good
Standing; Power . Buyer is a corporation duly
organized, validly existing and in good standing under the laws of
the State of [Delaware] and has full power and authority to conduct
its business as it is now being conducted and to own, operate or
lease the properties and assets it currently owns, operates or
holds under lease.
10
4.2
Authorization
. Buyer has full power and authority
to execute and deliver this Agreement and any agreement, document,
certificate or instrument being delivered pursuant to or in
connection with the transactions contemplated by this Agreement, to
perform its obligations hereunder and there under and to consummate
the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the other Sale
Documents, and the performance by Buyer of its obligations
hereunder and there under, and the consummation of the transactions
contemplated hereunder and there under, have been duly authorized
by Buyer. This Agreement and the other Sale Documents upon
execution and delivery by Buyer shall constitute the legal, valid
and binding obligations of Buyer, enforceable against Buyer in
accordance with their respective terms.
4.3
No
Violation . The execution, delivery and
performance by Buyer of this Agreement and the other Sale Documents
and the consummation of the transactions contemplated herein and
therein do not and will not:
(a)
conflict with, result in
the breach, modification, termination or violation of, or loss of
any benefit under, constitute a default under, accelerate the
performance required by, result in or give rise to a right to amend
or modify the terms of, result in the creation of any Encumbrance
upon any assets or properties, or in any manner release any party
the
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