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Document Preview Acquisition Agreement |
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Title: |
Acquisition Agreement |
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Date: |
2003 |
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Size: |
Preview shows 7KB of 117KB total |
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Price: |
$42 |
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ID: |
#840633 |
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ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT (this "Agreement") is entered into this 16th day of December, 2002, to be effective as of December 16, 2002 (the "Effective Date"), by and among FIESTA, L.L.C., an Oklahoma limited liability company ("Buyer"), FIESTA RESTAURANTS, INC., an Oklahoma corporation ("Seller"), and EATERIES, INC., an Oklahoma corporation ("Eateries").
W I T N E S S E T H:
WHEREAS, Seller owns and operates, among others, those certain seven (7) restaurants under the trade name "Garcia's Mexican Restaurants" (collectively, the "Garcia's Restaurants");
WHEREAS, Buyer desires to acquire from Seller, and Seller desires to sell to Buyer, the Operating Assets, as more particularly defined herein, located at, pertaining to, or used in connection with the ownership and operation of those certain seven (7) Garcia's Restaurants and one (1) concession located in Arizona as more particularly identified on attached Schedule 1 (the "Restaurants"), subject to the terms and conditions set forth herein;
WHEREAS, Seller is a wholly owned subsidiary of Eateries;
WHEREAS, Eateries has entered into certain franchise and license agreements (collectively, the "Franchise Agreements") with certain third parties, as more particularly identified on Schedule 3.24.1 (the "Franchisees"), for the development and operation of restaurants operating under the Garcia's trade name, as more particularly identified on Schedule 3.24.1 (the "Franchise Restaurants");
WHEREAS, Buyer desired to acquire from Eateries, and Eateries desires to sell to Buyer, all of Eateries' right, title and interest in and to the Franchise Agreements and the Operating Assets, if any, owned, leased or licensed by Eateries and located at, pertaining to, or used in connection with the ownership and operation of the Restaurants, subject to the terms and conditions set forth herein;
WHEREAS, contemporaneously with and as a condition precedent to the consummation of the transaction contemplated by this Agreement, Eateries and Buyer shall enter into the Management Agreement, as more particularly defined herein, whereby Eateries shall provide management and operational services to Buyer and/or Buyer's designated Affiliate(s), as defined herein, on the terms and conditions as set forth herein; and
WHEREAS, the parties hereto desire to set forth certain representations, warranties and covenants made by each to the other as an inducement to the consummation of the transactions, contemplated by this Agreement, all as more fully set forth below.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained in this Agreement and other good and valuable consideration not recited in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1:
"Affiliate" shall mean any person, estate or entity (including, without limitation, an individual, a corporation, a partnership, a trust, unincorporated association or limited liability company), which has a relationship with a Person whereby such Person directly or indirectly controls or is controlled by or is under control with the other, or holds or beneficially owns five percent (5%) or more of the equity interest in the other.
"Applicable Contracts" shall mean (i) the contracts and agreements of Seller and Eateries related to the operation of the Restaurants as set forth in Schedule 3.14 attached hereto, including, without limitation, any capital leases of any fixtures, furniture and/or equipment and any licenses to serve alcoholic beverages, to the extent assignable; (ii) contracts and agreements relating to goods or services for the operation of the Restaurants which by their terms are cancelable on thirty (30) days notice or less and provide for payments over the life of the contract of less than $1,000 per month in the aggregate for each Restaurant ("Immaterial Contracts)"; and (iii) all undelivered purchase orders for Inventory purchased in the ordinary course of business.
"Assets" shall mean the Operating Assets, the Applicable Contracts, the Leases, and the Franchise Agreements.
"Assignment Agreement" shall mean the assignment and assumption of Applicable Contracts in the form of Assignment and Assumption Agreement attached hereto as Exhibit 1.
"Assignment of Franchise Agreement" shall mean the assignment and assumption of the Franchise Agreements in the form of Assignment of Franchise Agreement attached hereto as Exhibit 2.
"Assignment of Lease Agreement" shall mean the assignment and assumption of each of the Leases in the form of Assignment of Lease Agreement attached hereto as Exhibit 3.
"Assumed Contracts" shall mean the Applicable Contracts to be assigned and assumed as set forth on the attached Schedule 2.1.3, pursuant to the Assignment Agreement.
"Balance Sheet" shall mean the unaudited balance sheet of Seller as of September 30, 2002 attached as Exhibit 4.
"Balance Sheet Date" shall mean September 30, 2002.
"Bill of Sale" shall mean the Bill of Sale in the form attached hereto as Exhibit 5.
"Buyer" shall mean Fiesta, L.L.C., an Oklahoma limited liability company.
"Buyer's Closing Documents" is defined in Section 4.2.1.
"Buyer's Financing" shall mean that financing from GE Capital to Buyer and/or its designated Affiliates for the purchase of the Restaurants and other assets as contemplated by this Agreement.
"Closing" is defined in Section 2.3.
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