EXHIBIT 2.7
ASSET PURCHASE AGREEMENT
Dated as of July 29, 1998
between
▇▇▇. ▇▇▇▇▇▇' ORIGINAL COOKIES, INC.
as Buyer,
and
NORTHPARK COOKIES, INC.
as Seller
TABLE OF CONTENTS
Page
1. Purchase, Sale and Assumption....................................... 1
2. Closing; Transactions to be Effected................................ 4
3. Conditions to Closing............................................... 5
4. Representations and Warranties of the Seller........................ 6
5. Representations and Warranties of the Buyer......................... 7
6. Payment of Taxes and Liabilities.................................... 7
7. Employment of Employees............................................. 8
8. Assignment.......................................................... 9
9. No Third-Party Beneficiaries........................................ 9
10. Expenses............................................................ 9
11. Amendments; Waiver.................................................. 9
12. Notices............................................................. 9
13. Interpretation...................................................... 10
14. Counterparts........................................................ 10
15. Entire Agreement.................................................... 10
16. Fees................................................................ 10
17. Severability........................................................ 11
18. Attorney's Fees..................................................... 11
19. Joint and Several Obligations....................................... 11
20. Governing Law....................................................... 11
21. Remedies............................................................ 11
22. Release of the Seller............................................... 12
Exhibits:
A -........▇▇▇▇ of Sale
Disclosure Schedules:
?1(c)(ii).........Assumed Liabilities
?4(b) .........Title to Acquired Assets
?4(c) .........Litigation
ASSET PURCHASE AGREEMENT
▇▇▇. ▇▇▇▇▇▇' ORIGINAL COOKIES, INC.
ASSET PURCHASE AGREEMENT ("Agreement"), dated as of July 29, 1998, by
and between ▇▇▇. ▇▇▇▇▇▇' ORIGINAL COOKIES, INC., a Delaware corporation
("Buyer"), and NORTHPARK COOKIES, INC., an inactive Iowa corporation ("NCI"),
and Hot ▇▇▇▇▇▇ & Northpark Cookies, Inc., a Georgia corporation ("HBNCI"), the
sole shareholder of and successor in interest to Northpark Cookies, Inc.
(collectively, the "Seller"); each a "party" in the singular and "parties" in
the plural.
A. The Seller is a franchisee of Great American Cookie Company, Inc., a
Delaware corporation ("Franchisor").
B. The parties desire that the Buyer purchase from the Seller, and that the
Seller sell to the Buyer, the Acquired Assets (defined below), and that the
Buyer assume the Assumed Liabilities (defined below), upon the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto hereby agree as follows:
1. Purchase, Sale and Assumption.
(a) Purchase and Sale. On the terms and subject to the
conditions of this Agreement, the Seller agrees to sell, transfer,
assign and deliver to the Buyer, and the Buyer agrees to accept and
purchase from the Seller, at the Closing (defined below), free and
clear of Liens (defined below), the assets of Seller used and employed
by the Seller in the operation of its retail cookie business, and any
related carts and kiosks, located at Northpark Mall, Davenport, Iowa
(the "Store") as follows (such assets and properties being herein
called, collectively, the "Acquired Assets"): (i) all leasehold rights,
interests, improvements, fixtures and signage, including without
limitation those governed by the lease for the Store which at the
Closing shall be assigned by the Seller to the Buyer (or its designated
affiliates) and assumed by the Buyer; (ii) all tangible personal
property, such as machinery, equipment, supplies, inventories (unless
designated by the Buyer on or before the Closing as an Excluded Asset),
furniture and tools; (iii) all agreements, contracts and instruments
(but excluding the Franchise Agreement, dated August 12, 1981, between
the Seller and Great American Cookie Company, Inc. ("Franchisor"), and
any related license, development and guarantee agreements, as amended
(collectively, the "Franchise Agreements")), that are assumed in
writing by the Buyer at the Closing; (iv) all customer and vendor
lists; (v) all recipes, techniques, processes, methods of production
and commercialization, training methods and know-how owned by the
Seller; (vi) store change funds in the aggregate amount of $251.00 per
Store (the "Store Cash"); (vii) deposits made in connection with lease,
utility service and other similar agreements; (viii) rebates and
prepaid expenses; (ix) all inventory of batter and other ingredients,
paper wares and other items on hand or on order and all cookies, other
baked goods, completed goods and work in process (collectively, the
"Inventory"). The Acquired Assets shall be transferred and conveyed to
the Buyer at the Closing, free and clear of all Liens (as defined
below), pursuant to a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially
in the form of Exhibit A.
(b) Excluded Assets. The Acquired Assets shall include only
those assets of Seller specifically described in Section 1(a) above.
Notwithstanding anything to the contrary expressed or implied herein,
the Acquired Assets shall not include the following assets of the
Seller: (i) all cash on hand or on deposit, whether at a Store or in
bank accounts, other than the Store Cash; (ii) all rights and claims of
the Seller under the Franchise Agreements; (iii) all rights and claims
of the Seller with respect to the Excluded Liabilities (defined below);
(iv) the Seller's rights under this Agreement; (v) all of the Seller's
corporate records, books, ledgers, books of account, tax returns and
information relating thereto, files, documents, correspondence; and
(vi) any other assets of the Seller not directly used in the conduct of
the Seller's retail cookie business at the Store. The assets of the
Seller that are not included within the Acquired Assets are herein
referred to as the "Excluded Assets."
(c) Assumed Liabilities. On the terms and subject to the
conditions of this Agreement, the Buyer agrees to assume, at and
effective from the Closing, the Assumed Liabilities. The term "Assumed
Liabilities" means, collectively, the following liabilities and
obligations of the Seller: (i) all obligations under the agreements,
contracts, leases, licenses, and other arrangements referred to in the
description of Acquired Assets either (A) to furnish goods, services
and other non-cash benefits to another party after Closing, or (B) to
pay for goods, services and other non-cash benefits that another party
will furnish to the Acquired Business after Closing; and (ii) all other
liabilities of the Seller assumed in writing and listed on Schedule
1(c)(ii).
(d) Excluded Liabilities. The term "Excluded Liabilities"
means any liability or obligation of the Seller that is not an Assumed
Liability.
(e) Purchase Price. The purchase price for the Acquired Assets
(the "Purchase Price") shall be the sum of (i) One Hundred Twenty-One
Thousand Dollars ($121,000.00), plus (ii) Two Hundred Fifty-One Dollars
($251.00) representing the amount of the "Store Cash", plus (iii) the
value of the Inventory, determined as provided in Section 1(f) below,
plus (iv) the aggregate amount of all deposits and prepaid expenses
that are included in the Acquired Assets, determined as of the close of
business as of the day immediately preceding the date on which the
Closing shall occur.
(f) Determination of Inventory Value. Immediately following
the close of business on the day preceding the date on which the
Closing is to occur, the Buyer and the Seller shall jointly count and
value the Inventory. The Inventory shall be valued at Seller's cost
thereof.
(g) Proration. All utility charges, rental charges, Taxes, and
other like items assessed or payable with respect to any of the
Acquired Assets for the period in which the Closing occurs shall be
prorated as of the date of Closing between the Buyer and the Seller.
The parties shall use their commercially reasonable best efforts to
determine the amount of any such prorated items as of the Closing and
shall, to the extent of information available at the time of Closing,
prorate such items between them as herein provided. To the extent
information relating to such prorated items is not available at the
time of Closing, the parties shall, as soon as practical after the
Closing, examine all relevant books and records in order to make the
determination of the apportionments of such prorated items as herein
provided. Payment of any such items which are not apportioned and
prorated at the Closing shall be made to the appropriate party by check
within thirty (30) days after such determination. Proration of ad
valorem taxes (whether assessed against real property interests or
personal property) shall be determined based upon previous year's
taxes.
(h) Certain Consents. To the extent that the Seller's rights
under any agreement, contract, commitment, lease, permit, real property
lease or other Acquired Asset to be assigned to the Buyer hereunder may
not be assigned without the consent of another person which has not
been obtained prior to the Closing, and which is important to the
ownership, use or disposition by the Buyer of an Acquired Asset, this
Agreement shall not constitute an agreement to assign the same if an
attempted assignment would constitute a breach thereof or be unlawful,
and the Seller, at the Buyer's expense, shall use its commercially
reasonable efforts to obtain any such required consent(s) as promptly
as possible. If any such consent shall not be obtained or if any
attempted assignment would be ineffective or would impair the Buyer's
rights under the Acquired Asset in question so that the Buyer would not
in effect acquire the benefit of all such rights, the Seller, to the
maximum extent permitted by law and the specific Acquired Asset, and at
the Buyer's expense, shall act after the Closing as the Buyer's agent
in order to obtain for the Buyer the benefits thereunder.
(i) Further Assurances. The Seller from time to time after the
Closing, at the Buyer's request and expense, will execute, acknowledge,
and deliver to the Buyer such other instruments of conveyance and
transfer and will take such other actions and execute and deliver such
other documents, certifications, and further assurances as the Buyer
may reasonably require in order to vest more effectively in the Buyer,
or to put the Buyer more fully in possession of, any of the Acquired
Assets, or to better enable the Buyer to complete, perform, or
discharge any of the Assumed Liabilities. Each of the parties hereto
will cooperate with the other and execute and deliver to the other
parties hereto such other instruments and documents and take such other
actions as may be reasonably requested from time to time by any other
party hereto as necessary to carry out, evidence, and confirm the
intended purposes of this Agreement.
(j) Bulk Sales. The parties intend and agree that the purchase
and sale of the Acquired Assets is excluded from the requirements of
so-called "Uniform Commercial Code - Bulk Transfers" laws (the "Bulk
Sales Laws"). However, to the extent that the Bulk Sales Laws apply,
the parties hereby waive any compliance therewith. In consideration of
the Buyer's agreement to waive any such compliance:
(i) the Seller shall furnish to the Buyer before the
Closing a list, certified by a financial officer of the Seller
having knowledge thereof, setting forth the Seller's accounts
payable (and pay-off amounts therefor) as of the Closing
(including, without limitation, all accounts with and
liabilities to any persons that may have a remedy under the
Bulk Sales Laws, if applicable, with respect to the
transactions contemplated by this Agreement (collectively, the
"Vendor Accounts")); and
(ii) the Seller hereby agrees that, each of the
Vendor Accounts shall be paid in full at the Closing from the
Purchase Price, unless (A) the Seller has a good faith dispute
with respect to any Vendor Accounts, in which case a portion
of the Purchase Price sufficient to fully pay each of the
disputed Vendor Accounts will be withheld at the Closing and
deposited into and thereafter disbursed from an escrow
administered by an independent escrow agent established
pursuant to mutually agreed instructions of the Buyer and the
Seller; or (B) the payoff amount cannot be ascertained or
verified by the Closing Date, in which case the amount
reasonably estimated by the Buyer and the Seller that is
necessary to fully pay all amounts accrued through the Closing
with respect to any such Vendor Accounts shall be withheld
from the Purchase Price and deposited into and disbursed from
an escrow established in the manner specified in the preceding
clause (A) of this Section 1(f)(ii).
2. Closing; Transactions to be Effected.
(a) Closing. The closing (the "Closing") of the purchase and
sale of the Acquired Assets and the Buyer's assumption of the Assumed
Liabilities shall be held at the offices of ▇▇▇▇▇▇ & Bird, in Atlanta,
Georgia, at a time and date established by agreement of the parties
within ten (10) business days after all of the conditions to the
Closing set forth in Section 3 below are satisfied or waived. The date
on which the Closing shall occur is hereinafter referred to as the
"Closing Date".
(b) Transactions to be Effected. At the Closing, on the terms
and subject to the conditions of this Agreement:
(i) the Seller shall deliver to the Buyer an
appropriately executed and authenticated ▇▇▇▇ of Sale and such
other instruments of sale, assignment, transfer and conveyance
to the Buyer of the Acquired Assets as the Buyer or its
counsel may reasonably request, such instruments to be
reasonably satisfactory in form to the Buyer and its counsel;
(ii) the Buyer shall deliver to the Seller the
Purchase Price by wire transfer to a bank account which shall
be designated in writing by the Seller at least two business
days prior to the Closing Date; and
(iii) the Buyer shall use its commercially reasonable
best efforts to cause the Franchisor to terminate the
Franchise Agreements as of the Closing and to release the
Seller from any and all obligations thereunder (other than the
payment of franchisee fees payable thereunder for any periods
ending on or prior to the date of Closing). The Agreement
pursuant to which such Franchise Agreements are terminated and
such obligations of the Seller thereunder are released shall
be in form and substance reasonably satisfactory to the Seller
and its counsel. The Seller agrees to pay to the Franchisor at
the time of Closing all franchise fees payable under or with
respect to such Franchise Agreements for all periods ending on
or prior to the date of Closing.
3. Conditions to Closing.
(a) Buyer's Obligation. The obligation of the Buyer to
purchase the Acquired Assets is subject to the satisfaction (or
waiver by the Buyer) as of the Closing of the following
conditions:
(i) The representations and warranties of the Seller
made in this Agreement shall be true and correct as of the
date hereof and on and as of the Closing, as though made on
and as of the Closing Date, and the Seller shall have
performed or complied in all material respects with all
obligations and covenants required by this Agreement to be
performed or complied with by the Seller by the time of the
Closing; and the Seller shall have delivered to the Buyer a
certificate dated the Closing Date, signed by an authorized
officer or representative of the Seller, confirming the
foregoing;
(ii) No injunction or order of any court or
administrative agency of competent jurisdiction shall be
threatened or in effect, and no statute, rule or regulation of
any governmental authority of competent jurisdiction shall
have been promulgated or enacted, as of the Closing which
restrains, prohibits or adversely affects the purchase and
sale of the Acquired Assets; and
(iii) The Buyer shall have completed the acquisition
of all of the stock of Cookies USA, and shall have completed
its senior notes offering in the current anticipated amount of
$40,000,000.
(b) Seller's Obligation. The obligation of the Seller to sell,
assign, transfer and deliver the Acquired Assets to the Buyer is
subject to the satisfaction or waiver as of the Closing of the
following conditions:
(i) The representations and warranties of the Buyer
made in this Agreement shall be true and correct as of the
date hereof and on and as of the Closing, as though made on
and as of the Closing Date, and the Buyer shall have performed
or complied in all material respects with all obligations and
covenants required by this Agreement to be performed or
complied with by the Buyer by the time of the Closing; and the
Buyer shall have delivered to the Seller a certificate dated
the Closing Date and signed by an authorized officer of the
Buyer confirming the foregoing;
(ii) The conditions contemplated by Section 3(a)(ii)
shall have been satisfied; and
(iii) The Franchise Agreements shall have been
terminated as of the Closing and the Seller shall have been
released from all liability thereunder (other than the payment
of franchise fees accrued and unpaid to the date of the
Closing), and the Seller shall have received a document
evidencing such termination and release in form and substance
reasonably satisfactory to the Seller and its counsel.
4. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer that the statements contained in this
Section 4 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Section 4), except as set forth in the disclosure schedule delivered by the
Seller to the Buyer on the date hereof (the "Disclosure Schedule").
(a) Organization and Standing of the Seller. HBNCI, a Seller,
is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation. NCI, a Seller,
is an inactive Iowa corporation not eligible for a certificate of
existence, and is not in good standing under the laws of Iowa. HBNCI is
the sole shareholder of and the successor in interest to NCI. All acts
and other proceedings required to be taken by the Seller to authorize
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
properly taken.
(b) Title to Acquired Assets. Except as set forth in Schedule
4(b), the Seller has good and marketable title to the Acquired Assets,
free and clear of all mortgages, liens, claims, security interests,
pledges, restrictions, charges or encumbrances of any nature whatsoever
(collectively, "Liens"). At the Closing, the Buyer shall acquire the
Acquired Assets free and clear of all Liens.
(c) Litigation. Schedule 4(c) sets forth a list of all
lawsuits, claims, proceedings or investigations pending, or, to the
knowledge of the Seller, threatened, as of the date of this Agreement,
against or affecting any of the Acquired Assets.
5. Representations and Warranties of the Buyer. The Buyer hereby
represents and warrants to the Seller as follows:
(a) Authority. The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. The Buyer has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby and thereby. All corporate acts and other
proceedings required to be taken by the Buyer to authorize the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby have
been duly and properly taken.
(b) Actions and Proceedings, etc. There are no actions, suits,
claims or proceedings pending or, to the best knowledge of the Buyer,
threatened against the Buyer, which are likely to have a material
adverse effect on the ability of the Buyer to consummate the
transactions contemplated hereby.
. 6. Payment of Taxes and Liabilities
(a) Taxes.
(i) The Seller shall be liable for and promptly pay
Taxes applicable to any of the Acquired Assets or the business
conducted by the Seller with the Acquired Assets, in each case
attributable to taxable years or periods (including partial
periods) ending at the time of or prior to the Closing. The
Buyer shall be liable for and shall pay all Taxes applicable
to the Acquired Assets or the business conducted by the Buyer
with the Acquired Assets that are attributable to taxable
years or periods (including partial periods) beginning
immediately after the Closing. For purposes of this Agreement,
"Taxes" shall mean federal, state, local or foreign income,
gross receipts, property, sales, use, license, excise,
franchise, employment, payroll, withholding, alternative or
add-on minimum, ad valorem, transfer or excise tax, or any
other tax, customs, duty, governmental fee or other like
assessment or charge of any kind whatsoever, together with any
interest or penalty, imposed by any governmental authority.
(ii) Notwithstanding paragraph (i), any sales Tax,
use Tax, property transfer or gains Tax, statutory transferee
liabilities arising from the purchase of the Acquired Assets,
documentary stamp Tax or similar Tax attributable to the sale
or transfer of the Acquired Assets or the business conducted
by the Seller with the Acquired Assets shall be paid by the
Seller.
(iii) The Seller or the Buyer, as the case may be,
shall provide prompt reimbursement for any Tax paid by one
party, all or a portion of which is the responsibility of the
other party in accordance with the terms of this Section 6(a).
Within a reasonable time prior to the payment of any such Tax,
the party paying such Tax shall give notice to the other party
of the Tax payable and the portion which is the liability of
each such party or parties, although failure to do so will not
relieve such party or parties from its liability hereunder
except to the extent such party is materially adversely
affected thereby.
(b) Other Liabilities.
(i) The Seller shall be liable for and shall pay all
Excluded Liabilities, Vendor Accounts and Bulk Sales
Liabilities.
(ii) The Buyer shall be liable for and shall pay all
Assumed Liabilities.
7. Employment of Employees. On the date of Closing, the Buyer shall
offer employment to substantially all of the salaried and non-salaried employees
of the Seller who are employed in the operation of the Store. The employment
offered by the Buyer shall be "at will," and the Buyer shall be under no
obligation to continue such employment following the date of Closing. The Seller
shall terminate the employment of all of its salaried and non-salaried employees
who are employed in the operation of the Store as of the close of business on
the date of Closing, and the Seller shall be responsible for all wages,
salaries, and other benefits, if any, due and owing to such Employees for all
periods ending on or prior to the date of Closing. Additionally, the Buyer shall
cause all Store managers who become employed by the Buyer to be covered,
commencing on the first day of such employment, under the Buyer's health and
medical welfare and benefit plans without any waiting period, with a waiver of
pre-existing conditions, and otherwise on the same terms as such insurance
coverages are provided generally to the employees of the Buyer.
8. Assignment. This Agreement and the rights and obligations hereunder
shall not be assignable or transferable by the Buyer or the Seller, other than
to an affiliate of either, without the prior written consent of the other party
hereto.
9. No Third-Party Beneficiaries. Except as provided for released
parties in Section 22, this Agreement is for the sole benefit of the parties
hereto and their permitted assigns and nothing herein expressed or implied shall
give or be construed to give to any person or entity, other than the parties
hereto and such assigns, any legal or equitable rights hereunder.
10. Expenses. Whether or not the transactions contemplated hereby are
consummated, except as otherwise expressly provided in this Agreement, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
11. Amendments; Waiver. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by all of the
parties. No waiver by any party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
12. Notices. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered by hand or sent
prepaid telex, cable or telecopy, or sent, postage prepaid, by registered,
certified or express mail, or reputable overnight courier service and shall be
deemed given when so delivered by hand, telexed, cabled or telecopied, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows:
(i) if to the Seller:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Buyer:
▇▇▇. ▇▇▇▇▇▇' Original Cookies
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Jones, Waldo, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
13. Interpretation. The headings contained in this Agreement, in any
exhibit or Schedule hereto and in the table of contents to this Agreement, are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
15. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, representations and understandings,
written or oral, relating to such subject matter. The exhibits, annexes and
Schedules identified in this Agreement are hereby incorporated by reference.
16. Fees. Each party hereto hereby agrees, represents and warrants that
no person has acted in connection with this Agreement or the transactions
contemplated hereby as a broker or finder and that no person is entitled to any
brokerage fee, finder's fee or commission with respect thereto. The parties
further agree to hold the other party harmless from any damages, claims or
expenses asserted against such party as a result of any person claiming a
commission or finder's fee for the transactions contemplated herein.
17. Severability. If any provision of this Agreement or the application
of any such provision to any person or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
18. Attorney's Fees. Should any litigation be commenced with respect to
any matters governed by this Agreement, the party prevailing shall be entitled,
in addition to such other relief as may be granted, to a reasonable sum for such
party's attorneys' fees and expenses determined by the court in such litigation.
19. Joint and Several Obligations. The representations, warranties,
covenants and undertakings of the Seller under this Agreement and the ▇▇▇▇ of
Sale constitute joint and several obligations of NCI and HBNCI.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Georgia applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
21. Remedies. Each of the parties acknowledges and agrees that each
other party would be damaged irreparably in the event any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the parties agrees that each other
party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof, having jurisdiction over the parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.
[Intentionally Left Blank]
22. Release of the Seller. The Buyer, and its successors and assigns,
in consideration of the benefits afforded to it in consequence of the execution
of this Agreement, does hereby release and waive, irrevocably, any and all
rights, claims, causes of action, of every kind and nature, whether or not known
or anticipated or asserted or unasserted, that they or any of them has or may
have, directly or indirectly, against the Seller and, as applicable, its
partners, officers, agents and directors (said partners, officers, agents and
directors being intended beneficiaries of this provision), but excluding rights,
claims and causes of action arising out of or in relation to the breach or
inaccuracy of any representation or warranty made by the Seller in this
Agreement or the breach of any agreement or undertaking of the Seller set forth
in the Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
SELLER: BUYER:
NORTHPARK COOKIES, INC. ▇▇▇. ▇▇▇▇▇▇' ORIGINAL COOKIES, INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇ By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: President Its:VP