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Title: |
Acquisition Agreement |
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Date: |
2003 |
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Size: |
Preview shows 6KB of 98KB total |
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Price: |
$40 |
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ID: |
#840634 |
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ACQUISITION AGREEMENT
(Shea Boulevard)
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 (SHEA BLVD.), 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, that certain restaurant located at 4925 East Shea Boulevard, Phoenix, Arizona, under the trade name "Garcia's Mexican Restaurant" ( the "Restaurant");
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 the Restaurant, subject to the terms and conditions set forth herein;
WHEREAS, Seller is a wholly owned subsidiary of Eateries; 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 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 (Shea Blvd.), L.L.C., an Oklahoma limited liability company.
"Buyer's Closing Documents" is defined in Section 4.2.1.
"Closing" is defined in Section 2.3.
"Closing Date" shall mean the date and time as of which the Closing actually takes place.
"Damages" is defined in Section 10.2.
"Eateries" shall mean Eateries, Inc., an Oklahoma corporation.
"Effective Date" is December 16, 2002.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
"Facilities" shall mean all real property, leaseholds or other interests and all buildings, structures, improvements, all trade and other fixtures, plumbing, HVAC, electrical systems, parking areas, signage, trade dress, furniture and equipment, located thereon, therein or attached thereto, upon, by and within which Seller and/or Eateries owns, leases or operates the Restaurant.
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