Exhibit 10.28
ASSET PURCHASE AGREEMENT
BETWEEN
THE QUIZNO'S ACQUISITION COMPANY
AND
▇▇▇▇'▇ DELI CORPORATION
Dated as of February 1, 1999
TABLE OF CONTENTS
Page
1. PURCHASE AND SALE OF ASSETS...............................1
1.1 Conveyance of Assets.................................1
2. CONSIDERATION FOR ASSETS..................................2
2.1 Purchase Price and Payment...........................2
2.2 Promissory Note Payment..............................3
2.3 Security.............................................4
3. ALLOCATION................................................4
4. OTHER COVENANTS...........................................4
4.1 Right of First Refusal...............................4
4.2 License Agreement....................................5
4.3 Financial and other Reports..........................5
4.4 Audit Rights.........................................6
5. CLOSING...................................................6
6. CLOSING OBLIGATIONS.......................................6
6.1 Seller's Obligations.................................6
6.2 Buyer's Obligations..................................7
7. EMPLOYEES AND EMPLOYMENT MATTERS..........................7
7.1 No Obligations Assumed...............................7
8. REPRESENTATIONS AND WARRANTIES OF SELLER..................7
8.1 Organization, Good Standing, and Qualification.......7
8.2 Authorization; Binding Obligation....................7
8.3 Assets...............................................8
8.4 No Violation.........................................8
8.5 Government Consents..................................8
8.6 No Brokers...........................................8
8.7 Taxes................................................8
8.8 Contracts and Other Agreements.......................9
9. REPRESENTATIONS AND WARRANTIES OF BUYER...................9
9.1 Familiarity and Assets...............................9
9.2 Organization, Good Standing and Qualification........9
9.3 Authorization; Binding Agreement.....................9
9.4 No Violation........................................10
9.5 Consents............................................10
9.6 Brokers.............................................10
9.7 Taxes...............................................10
10. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS..............10
10.1 Accuracy of Seller's Representations and Warranties.10
10.2 Performance by Seller...............................10
10.3 Delivery of Documents...............................11
10.4 Governmental and Other Consents.....................11
10.5 Closing Obligations.................................11
11. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.............11
11.1 Accuracy of Buyer's Representations and Warranties..11
11.2 Performance by Buyer................................11
11.3 Delivery of Documents...............................11
11.4 Closing Obligations.................................11
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES...............11
13. INDEMNIFICATION..........................................12
13.1 Indemnification by Seller...........................12
13.2 Indemnification of Buyer............................12
13.3 Other Indemnification Provisions....................12
14. CONFIDENTIALITY..........................................12
15. MICELLANEOUS.............................................13
15.1 Expenses............................................13
15.2 Entire Subject Matter; Amendment....................13
15.3 Successors and Assigns..............................13
15.4 Counterparts........................................13
15.5 Notices.............................................13
15.6 Headings............................................14
15.7 Governing Law Jurisdiction..........................14
15.8 Attorneys' Fees.....................................14
15.9 Schedules and Exhibits..............................14
15.10Further Assurances..................................15
SCHEDULES
1.2(a) Excluded Franchise Agreements
4 Allocation of Purchase Price
EXHIBITS
Exhibit A Form of Promissory Note
Exhibit B Form of Security Agreement
Exhibit C Form of License Agreement from Seller to Buyer
Exhibit D Form of License Agreement from Buyer to Seller
Exhibit E Form of Letter from Seller to Franchisees Regarding Assignment
ASSET PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 1st day of
February, 1999, in Denver, Colorado by and between THE QUIZNO'S ACQUISITION
COMPANY, a Colorado corporation ("Seller"), and ▇▇▇▇'▇ DELI CORPORATION, a
Pennsylvania corporation, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual (collectively called
"Buyer").
WHEREAS, Seller owns certain assets, property and other matter as
described in this Agreement ("Assets") that it has the right to, and does,
operate, utilize and possess on an ongoing basis in conducting the franchise
system represented by the Franchise Agreements (as defined below) other than the
Excluded Agreements (as defined below) ("Franchise System") and restaurant
business known as "▇▇▇▇'▇ Deli"(collectively, the "Business"); and
WHEREAS, Seller is willing to grant Buyer a right of first refusal to
purchase such of the Excluded Agreements as are sold or transferred to a person
or entity that is not owned or controlled by, under control of, or under common
control with Seller ("Affiliate"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, subject to the terms and conditions set forth in this Agreement and
for the consideration as hereinafter specified, certain but not all of the
Assets and Business of Seller as hereinafter set forth; and
WHEREAS, the parties acknowledge the existence of liens against the Assets
("Existing Liens"), which liens may encumber certain of the assets being
transferred hereunder, and shall enter into an indemnification agreement
("Indemnification Agreement") in which Seller will agree to protect Buyer with
respect to such liens.
NOW, THEREFORE, the parties agree as follows:
1 PURCHASE AND SALE OF ASSETS
1.1 Conveyance of Assets. At the "Closing" (as defined below), Seller
agrees to convey, transfer, assign and sell to Buyer and Buyer agrees
to acquire, accept, and purchase from Seller, those Assets
specifically listed below (collectively called the "Assets"). Seller
will convey to Buyer at the Closing good and marketable title to all
of the Assets, free and clear of all liens except as provided in the
Indemnification Agreement. The Assets shall include:
(a) The rights of Seller under any ▇▇▇▇'▇ Deli franchise or license
agreement between Seller and any third-party, including rights to
receive royalty payments, commencing as of February 1, 1999
("Franchise Agreements"), other than the Excluded Agreements as
defined Section 1.2.
(b) All of the Seller's claims and choses in action arising out of or
in connection with the Franchise System, and all warranties,
rights, and claims of Seller under all existing warranties
relating to any and all of the Assets, other than those related
to the Excluded Agreements.
(c) All of Seller's goodwill relating to the Business, including
goodwill relating to the Franchise System ("Goodwill") other than
goodwill associated with the Excluded Agreements or with the
Marks (as defined in Section 4.2);
(a) All of Seller's accounts receivable ("Accounts Receivable") other
than Accounts Receivable arising from the Excluded Agreements.
1.2 Status of Assets/Excluded Assets. The Assets will be all of the assets
used in or related to the ongoing business operations of the Franchise
System, excluding however the following assets:
(a) Excluded Franchise Agreements. All Franchise Agreements for the
▇▇▇▇'▇ Deli Restaurants listed on Schedule 1.2(a) ("Excluded
Agreements").
(b) Miscellaneous. Cash on hand, Accounts Receivable arising from
Excluded Agreements, office furniture or computers, office
leases, and goodwill associated with the Excluded Agreements or
the Marks.
(c) Pending Litigation. Any claims, or amounts recovered (including
settlements or judgments) that arise from the pending litigation
known as The Quizno's Corporation ▇. ▇▇▇▇'▇ Deli Franchise
Associates, LP, No. 98CV009333 (Denver District Court, State of
Colorado) ("Pending Litigation"), except to the extent such
judgment includes the removal of Liens (as defined in the
Indemnification Agreement).
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2 CONSIDERATION FOR ASSETS
As consideration for the sale, assignment, transfer and conveyance of the
Assets, Buyer hereby agrees to the following:
2.1 Purchase Price and Payment.
(a) Purchase Price: The total price to be paid by Buyer for the
Assets is Eight Hundred Fifty Thousand Dollars ($850,000.00)
("Purchase Price").
(b) Payment of Purchase Price: The Purchase Price will be paid as
follows:
(i) Cancellation of Independent Contractor Agreement: Fifty
Thousand Dollars ($50,000.00) paid at Closing in the form of
early termination of the Independent Contractor Services
Agreement between Seller and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dated February
1, 1998, and cancellation of Seller's obligations
thereunder; and
(ii) Note. A promissory note for the balance for the Purchase
Price in the amount of Eight Hundred Thousand Dollars
$800,000 ("Promissory Note") in a form substantially the
same as Exhibit A.
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2.2 Promissory Note Payments. The Promissory Note shall be paid as
follows:
(a) Royalties or other continuing fees, however characterized, paid
to Buyer for use of the Marks, commencing as of February 1, 1999
(e.g., royalties paid pursuant to the Franchise Agreements other
than the Excluded Agreements) ("Proceeds") excluding, however,
any form of income generated by any and all ▇▇▇▇'▇ Deli
restaurants currently wholly owned by Buyer and existing as of
the date of this Agreement, will be paid to and collected by
Buyer from ▇▇▇▇'▇ franchisees on a monthly basis. Upon their
receipt, Buyer will deposit all such Proceeds into a separate
account at an institution to be selected by Buyer (subject to
Seller's prior written approval) and established by both parties,
but controlled and under the signature authority of Seller. Each
month, by the fifth day of such month, Seller will pay to Buyer
the first Three Thousand Three Hundred Thirty Three Dollars and
34/100s ($3,333.34) of the prior month's collected Proceeds. If
any Proceeds remain, Seller will pay Fifty Percent (50%) of such
remaining amount to Buyer in addition to, and at the same time as
the initial payment described above. Seller will retain the
remaining portion of each month's Proceeds as payments of
principal (and interest if applicable pursuant to subsection
2.2(b)) due under the Promissory Note.
(b) If the principal balance of the Promissory Note is not reduced by
at least Twenty Five Thousand Dollars ($25,000.00) in any one
year, interest equal to Six Percent (6%) of the outstanding
balance of the Promissory Note on December 31 of such year shall
be added to the principal balance of the Promissory Note.
(c) Other than Accounts Receivable arising from the Excluded
Agreements, Accounts Receivable prior to February 1, 1999, that
are collected after such date will be paid Fifty Percent (50%) to
Seller and Fifty Percent (50%) to Buyer upon collection; provided
that until paid in full, Buyer's portion will be applied to
reduce the principal and interest (if any) owed under the
Promissory Note. Buyer will be responsible for all efforts of
collection of the Accounts Receivable (other than efforts related
to the Accounts Receivable for Excluded Agreements), but shall
not take any action with respect to the collection of Accounts
Receivable that is inconsistent with Seller's general policy of
collection of accounts receivable, and Buyer shall indemnify and
hold Seller harmless from any claim related to the collection of
the Accounts Receivable by Buyer, its employees, agents and/or
representatives.
(d) All outstanding principal and interest if any will be deemed due
and owing on, and is to be paid in full by, the seventh
anniversary of the Closing.
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2.3 Security. The obligations of Buyer under this Agreement, the Note, and
the License Agreement shall be secured by an interest in the Assets
under a security agreement substantially in the form attached hereto
as Exhibit B ("Security Agreement").
3 ALLOCATION
The parties agree that the Purchase Price is properly allocable and shall
be allocated among the Assets in accordance with Schedule 4. The parties
agree to report this transaction for federal, state and local income and
other tax purposes in accordance with Schedule 4.
4 OTHER COVENANTS
As additional consideration for the transactions set forth herein, the
parties agree to the following additional covenants:.
4.1 Right of First Refusal. So long as Buyer is not in default under this
Agreement, the Note, the License Agreement, or the Security Agreement,
Seller will grant to Buyer a right of first refusal to purchase, on
the same terms as Seller would sell to any other third party, the
rights and/or assets under any or all of the Excluded Agreements
("Right of First Refusal"). The Right of First Refusal shall be
exercised as follows: In the event Seller determines, in its sole
discretion, that it intends to sell such rights or assets of the
Excluded Agreements to a third party, Seller will notify Buyer of such
intent by sending Buyer notice, which shall include the material terms
(including consideration) of the proposed sale. If Buyer chooses to
exercise the Right of First Refusal, Buyer must send notice to Seller
of such exercise no later than Ten (10) business days after Buyer
receives Seller's notice. If Buyer chooses not to exercise the Right
of First Refusal, Seller shall be free to sell such rights and/or
assets to any other party. If Buyer fails to respond to the Seller's
notice within Ten (10) business days, Buyer shall be deemed to have
waived the Right of First Refusal for the proposed transaction set
forth in Seller's notice. In order to exercise the Right of First
Refusal, Buyer must, at the time of such exercise, have fully
performed all of Buyer's obligations under this Agreement, the Note,
the License Agreement, and the Security Agreement. The Right of First
Refusal shall not apply to transfers to Seller's Affiliates.
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4.2 License Agreement. Seller will grant a royalty free, non-exclusive
license to Buyer (in the form of the License Agreement attached as
Exhibit C) ("License Agreement") for the use of the ▇▇▇▇'▇ Deli
trademarks, service marks, trade dress, and other intellectual
property ("Marks") used in connection with the Franchise System. Upon
full performance of Buyer's obligations under this Agreement, the
Note, the License Agreement, and the Security Agreement, Seller will
transfer ownership of the Marks to Buyer. Upon the transfer of
ownership of the Marks and contemporaneous therewith, Buyer will grant
a royalty-free, non-exclusive license to Seller (in the form of the
License Agreement attached as Exhibit D) for use of the Marks by
Seller for any remaining Excluded Agreements not transferred to Buyer
or previously sold to a third party. So long as Buyer has fully
performed its obligations under this Agreement, the Note, the License
Agreement, and the Security Agreement, the Buyer will have the sole
right to sell additional ▇▇▇▇'▇ Deli franchises under the following
conditions:
(a) That such sales comply in all respects with applicable statutes
and regulations governing the sale of franchises in the relevant
jurisdiction, and so long as Seller has approved, in writing,
Buyer's form of Uniform Franchise Offering Circular prior to such
sale, which approval shall not be unreasonably withheld; and
(b) That no ▇▇▇▇'▇ Deli restaurant may be located within one (1) mile
of a Quizno's Classic Subs(R) restaurant.
4.3 Financial and other Reports. Buyer shall provide to Seller financial
and accounting reports in a manner and form as Seller may reasonably
require, including monthly summary reports due on the Tenth (10th)
business day of each month showing the following information:
(a) gross sales for the previous month of any restaurant or other
operations owned or controlled by Buyer using the Marks, other
than under the Excluded Agreements ("▇▇▇▇'▇ Restaurant"); and
(b) royalties or other continuing fees, however characterized,
received by Buyer from each ▇▇▇▇'▇ Restaurant in the prior month
(including any amounts that were Accounts Receivable as of
February 1, 1999, but excluding Accounts Receivable from Excluded
Agreements); and
(c) a list of any ▇▇▇▇'▇ Restaurants opened, closed, terminated
and/or operating without authorization and any new Franchise
Agreements sold in the prior month.
(d) Within Ninety (90) days after the end of Buyer's fiscal year, an
income statement and balance sheet of the Business for such
fiscal year (reflecting all year-end adjustments), and a
statement of changes in cash flow of the Business, prepared in
accordance with generally accepted accounting principles,
consistently applied. Seller reserves the right to require that
Buyer have financial statements prepared and reviewed by an
independent certified public accountant on an annual basis.
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4.4 Audit Rights. Buyer shall permit Seller and/or its representatives to
inspect and audit the books and records of the Business at any
reasonable time, and with reasonable notice, at Seller's expense. If
any audit discloses a deficiency in amounts owed to Seller, then such
amounts shall become immediately payable to Seller by Buyer, with
interest from the date such payments were due at the lesser of Two
Percent (2%) per month or the maximum rate allowed by law. In
addition, if such audit discloses that the Gross Sales of the ▇▇▇▇'▇
Restaurants have been understated by Two Percent (2%) or more during
the audit period, Buyer shall pay all reasonable costs and expenses
Seller incurred in connection with such audit, and such understatement
shall be considered a breach of this Agreement.
5 CLOSING
The closing of the sale and purchase of the Assets ("Closing") shall be
deemed to have taken place at the offices of Seller, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 9:00 a.m. local time, on March 11,
1999 ("Closing Date"), or at such other location, time or date as may be
agreed to by Seller and Buyer.
6 CLOSING OBLIGATIONS
The following obligations will be satisfied at Closing ("Closing
Obligations"):
6.1 Seller's Obligations. At Closing, Seller shall deliver to Buyer,
properly executed and acknowledged:
(a) a ▇▇▇▇ of Sale for all of the transferred Assets;
(b) resolutions of Seller approving the transactions contemplated
under this Agreement, duly adopted and authorized by the
directors thereof;
(c) assignments of the Franchise Agreements, along with a
corresponding letter from Seller to each franchisee under each
such Franchise Agreement (in the form attached as Exhibit E)
explaining such assignment to Buyer, and directing that all
obligations under each such agreement arising on or after
February 1, 1999, shall be made payable to ▇▇▇▇'▇ Deli
Corporation, and delivered to the appropriate address as set
forth in Section 15.5;
(d) such other instruments of sale, transfer, conveyance, and
assignment as are necessary to vest title in the Assets purchased
by Buyer; and
(e) Trademark License Agreement for the Marks.
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6.2 Buyer's Obligations. At Closing, Buyer shall deliver to Seller:
(a) the Purchase Price as specified in Section 2.1; and
(b) such other instruments of sale, transfer, conveyance and
assignment as Seller may reasonably request.
Satisfaction with each Closing Obligation is a condition to the
parties' obligations hereunder and under the other related closing
documents. In the event that any Closing Obligation is not satisfied
or waived by mutual agreement of the parties, this Agreement and the
related closing documents shall terminate.
7 EMPLOYEES AND EMPLOYMENT MATTERS
7.1 No Obligations Assumed. Buyer does not assume any liabilities, duties,
or obligations of Seller with respect to any current or past employees
of Seller, any of Seller's employee benefits or benefit plans, or any
other employment-related liability, duty, or obligation of Seller
whatsoever.
8 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that as of the Closing:
8.1 Organization, Good Standing, and Qualification. Seller is duly
organized, validly existing and in good standing under the laws of the
State of Colorado. Seller has all requisite power and authority to own
and operate its properties and to carry on its business as now
conducted, to enter into this Agreement and to carry out and perform
its obligations under this Agreement.
8.2 Authorization; Binding Obligation. The execution and delivery by
Seller of this Agreement and all of the documents and instruments
required hereby and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all requisite action
on the part of Seller. This Agreement and each of the other documents
and instruments required hereby have been fully executed and delivered
by Seller and constitute the valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective terms.
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8.3 Assets. Other than the Marks and the Excluded Agreements, the Assets
are all tangible and intangible personal property owned by, in the
possession of or used by Seller in connection with the Business and
such personal property constitutes all such personal property
necessary for the conduct of the Business as now conducted. Seller has
good and marketable title to each and, collectively, all of the
Assets, free and clear of any and all liens (other than as set forth
in the Indemnification Agreement), agreements, restrictions, claims,
security interest, pledges, charges, equities and other encumbrances.
8.4 No Violation. The execution, delivery and compliance with and
performance by Seller of this Agreement and each of the other
documents and instruments required hereby do not and will not (i)
violate the articles of incorporation or bylaws of Seller or any law,
statute, rule, regulation, order, judgment or decree to which Seller
is subject, (ii) conflict with or result in a breach of or constitute
a default under any contract, agreement or other instrument to which
Seller is a party or by which Seller or any of Seller's assets or
properties are bound or to which Seller or any of Seller's assets or
properties are subject (other than as referenced in the
Indemnification Agreement), (iii) result in or require the creation of
any lien upon Seller's capital stock or upon any of Seller's
properties or assets, (iv) require any approval or consent of any
person or entity under any contract, agreement or other instrument to
which Seller is a party or by which Seller or any of Seller's assets
or properties are bound or to which Seller or any of Seller's assets
or properties are subject, other than the consents specifically set
forth herein.
8.5 Government Consents. The execution, delivery, and performance by
Seller of this Agreement and each of the other documents and
instruments required hereby, and the consummation of the transactions
contemplated hereby and thereby, do not and will not require any
authorization, consent, approval, permit, filing, registration ,or
exemption, or other action by or notice to any court or administrative
or governmental body.
8.6 No Brokers. Seller has not employed, either directly or indirectly, or
incurred any liability to, any broker, finder or other agent in
connection with the transactions contemplated by this Agreement.
Seller agrees to indemnify Buyer for any claims brought by any broker,
finder or other agent claiming to have acted on behalf of Seller in
connection with this sale.
8.7 Taxes. Seller has duly filed or will file when due all federal, state
and local tax returns and reports, and all returns and reports of
other governmental units having jurisdiction with respect to taxes
imposed upon any of the Assets or taxes imposed on Seller which might
create a lien on any of the Assets, and Seller has paid or will pay
when due all such taxes, including without limitation ad valorem taxes
and employment taxes, for all years up to and including all periods
through the date immediately preceding the Closing Date, which the
failure to file or pay would result in a valid and subsisting lien on
the Assets after transfer thereof to Buyer. Seller will indemnify
Buyer against any claims arising from failure to comply with any Bulk
Sales Act requirement.
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8.8 Contracts and Other. There are no contracts or other agreements (other
than the Franchise Agreements and Excluded Agreements) to which Seller
is a party or to which it or its assets or properties are bound or
subject with respect to the Business, including without limitation
licenses, employment contracts, personal or real property leases, or
purchase contracts.
9 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents, warrants and covenants to Seller that as of
Closing:
9.1 Familiarity with Assets. Buyer is an existing owner of ▇▇▇▇'▇ Deli
restaurants and a former owner of the Franchise System, and is
familiar with the Franchise System, its assets, business and
operations. Buyer has had an opportunity to ask questions of and
receive satisfactory answers from Seller, or any person or persons
acting on its behalf, concerning the Assets, and all such questions
have been answered to the full satisfaction of the Buyer. Buyer
further represents and acknowledges that Buyer has not relied and is
not relying on any representations and warranties of Seller other than
the specific representations and warranties set forth in Section 8.
Buyer acknowledges that as of the date of this Agreement, there are
multiple Franchise Agreements that are in default, including without
limitation, for failure to pay royalties, and Buyer shall take such
steps as Buyer deems necessary to address such defaults. Buyer
releases Seller from any and all claims that might arise from such
defaults, and acknowledges that Seller has made no representation or
warranty whatsoever concerning the condition (financial or otherwise)
of the Assets as of Closing except those specifically stated in
Section 8.
9.2 Organization, Good Standing and Qualification. Buyer is a Pennsylvania
corporation duly organized, validly existing and in good standing.
Buyer has all requisite power and authority to own and operate each of
its properties and to carry on its business as now conducted, to enter
into this Agreement and to carry out and perform its obligations under
this Agreement.
9.3 Authorization; Binding Agreement. The execution and delivery by Buyer
of this Agreement and all of the documents and instruments required
hereby and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all requisite action on the
part of Buyer. This Agreement and each of the other documents and
instruments required hereby have been duly executed and delivered by
Buyer and constitute the valid and binding obligations of Buyer,
enforceable against Buyer in accordance with their respective terms.
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9.4 No Violation. The execution, delivery, compliance with and performance
by Buyer of this Agreement and each of the other documents and
instruments required hereby do not and will not (i) violate the
articles of incorporation or bylaws of Buyer or any law, statute,
rule, regulation, order, judgment or decree to which Buyer is subject,
or (ii) conflict with or result in a breach of or constitute a default
under any contract, agreement or other instrument to which Buyer is a
party or by which Buyer or any of its assets or properties is bound or
to which Buyer or any of its assets or properties is subject.
9.5 Consents. The execution, delivery and performance by Buyer of this
Agreement and each of the other documents and instruments required
hereby and the consummation of the transactions contemplated hereby
and thereby do not and will not require any authorization, consent,
approval, permit, filing, registration or exemption or other action by
or notice to any court or administrative or governmental body.
9.6 Brokers. Buyer has not employed, either directly or indirectly, or
incurred any liability to, any broker, finder or other agent in
connection with the transactions contemplated by this Agreement. Buyer
agrees to indemnify Seller for any claims brought by any broker,
finder or other agent claiming to have acted on behalf of Buyer in
connection with this sale.
9.7 Taxes. Buyer shall file when due all federal, state and local tax
returns and reports, and all returns and reports of other governmental
units having jurisdiction with respect to taxes imposed upon any of
the Assets, or taxes imposed on Buyer which might create a lien on any
of the Assets, and will pay when due all such taxes, including without
limitation ad valorem and employment taxes, which arise on or after
the Closing Date.
10 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligations of Buyer under this Agreement are subject to the
satisfaction, at or prior to the Closing, of the following conditions, all
or any of which may be waived in writing by Buyer:
10.1 Accuracy of Seller's Representations and Warranties. All
representations and warranties made by Seller in this Agreement and in
any written statement delivered to Buyer by Seller under this
Agreement shall be true and correct as of the Closing.
10.2 Performance by Seller. Seller shall have performed and complied with
all its respective obligations required by this Agreement to be
performed or complied with by it at or prior to the Closing.
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10.3 Delivery of Documents. All documents required to be delivered by
Seller at or prior to the Closing shall have been properly executed by
Seller and delivered to Buyer in form and substance reasonably
satisfactory to Buyer.
10.4 Governmental and Other Consents. All necessary approvals, consents and
clearances from governmental authorities and others in connection with
the transactions contemplated by this Agreement shall have been
obtained at or prior to the Closing.
10.5 Closing Obligations. All Closing Obligations to be performed by Seller
have been satisfied or waived in writing by Buyer.
11 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller under this Agreement are subject to the
satisfaction, at or prior to the Closing, of the following conditions, all
or any of which may be waived in writing by Seller:
11.1 Accuracy of Buyer's Representations and Warranties. All
representations and warranties made by Buyer in this Agreement and in
any written statements delivered to Seller by Buyer under this
Agreement shall be true and correct as of the Closing.
11.2 Performance by Buyer. Buyer shall have performed and complied with all
obligations of Buyer required by this Agreement to be performed or
complied with by it at or prior to the Closing.
11.3 Delivery of Documents. All documents required to be delivered by Buyer
at or prior to the Closing shall have been properly executed by Buyer
and delivered to Seller in form and substance reasonably satisfactory
to Seller.
11.4 Closing Obligations. All Closing Obligations to be performed by Buyer
have been satisfied or waived in writing by Seller.
12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES20
All covenants, agreements, representations, warranties, and conditions of
the Closing contained in this Agreement that are intended to be made or
performed at or prior to the Closing shall survive after the Closing.
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13 INDEMNIFICATION
13.1 Indemnification by Seller. Seller agrees to indemnify and hold
harmless Buyer and/or any of its affiliates, officers, shareholders,
directors, agents, and representatives from and against any and all
loss, claim, liability, obligation and/or expense (including
attorneys' fees) that arises from (a) the breach by Seller of any of
its covenants, agreements, representations, or warranties as set forth
in this Agreement, or (b) any liability, obligation, or commitment of
any nature relating to the Assets or the Business based on events
and/or obligations occurring prior to Closing; provided, however, that
to qualify for such defense and indemnification, Buyer must give
Seller prompt written notice of any such claim and allow Seller, at
its sole expense, to operate and control the defense of such claim and
any related settlement negotiations. Buyer shall reasonably cooperate
with Seller in such defense.
13.2 Indemnification by Buyer. Buyer agrees to indemnify and hold harmless
Seller and/or any of Seller's affiliates, officers, managers, members,
agents, and representatives from and against any and all loss, claim,
liability, obligation and/or expense (including attorneys' fees) that
arises from (a) the breach by Buyer of any of its covenants,
agreements, representations, or warranties as set forth in this
Agreement, or (b) any liability, obligation, or commitment of any
nature relating to the Assets or the Business based on events and/or
obligations occurring on or after the Closing Date; provided, however,
that, to qualify for such defense and indemnification, Seller must
give Buyer prompt written notice of any such claim and allow Buyer, at
its sole expense, to operate and control the defense of such claim and
any related settlement negotiations. Seller shall reasonably cooperate
with Buyer in such defense.
13.3 Other Indemnification Provisions. The foregoing indemnification
provisions are in additional to, and not in derogation of, any
statutory or common law remedy any party may have for breach of
representation, warranty, covenant, or contract.
14 CONFIDENTIALITY
Except as specifically provided herein and to the extent reasonably
necessary to perform its obligations or exercise or enforce its rights
hereunder, no party shall provide or disclose to any third party (except
affiliates), or use, unless authorized in writing to do so by the other
party or properly directed or ordered to do so by public authority, any
information or matter that constitutes or concerns the terms and conditions
of this Agreement or that regards any dealings or negotiations with the
other party related to this Agreement; provided, however, that the parties
may consult with their respective counsel with respect to such information
and matter provided that said counsel agree to abide by the terms and
conditions of this Section.
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15 MISCELLANEOUS
15.1 Expenses. Each of the parties hereto shall pay its own fees, costs and
expenses incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
15.2 Entire Subject Matter; Amendment. This Agreement and the other
documents referred to herein contain the entire understanding of the
parties with respect to the subject matter hereof and supersede all
prior agreements, either oral or written. This Agreement may not be
amended, or any term or condition waived, except by a writing signed
by each of the parties hereto.
15.3 Successors and Assigns. Except as otherwise expressly provided herein,
this Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto, whether so
expressed or not. Seller may assign this Agreement and the other
closing documents without consent and in its absolute discretion so
long as the assignee assumes the obligations arising hereunder and
thereunder. Buyer may not assign this Agreement or any other closing
document without Seller's consent, which consent shall not be
unreasonably withheld.
15.4 Counterparts. This Agreement may be executed in one or more
counterparts and sent via facsimile, any one of which need not contain
the signatures of all parties, but all of which counterparts when
taken together will constitute one and the same Agreement.
15.5 Notices. Any notice and similar communications concerning this
Agreement ("Notice") shall be in writing and shall be either (a)
delivered in person (including by a nationally recognized courier
service such as Federal Express); or (b) sent to the other party by
certified mail with return receipt requested. Notices shall be
delivered or sent as follows or to such other address as a party may
hereafter establish by Notice given in the manner prescribed in this
Section.
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If to Seller:
The Quizno's Acquisition Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
If to Buyer:
▇▇▇▇'▇ Deli Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
15.6 Headings. The titles and headings herein are for convenience only. In
case of ambiguity or inconsistency, the text rather than the titles or
headings shall control.
15.7 Governing Law and Jurisdiction. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of Colorado.
The parties hereto consent to venue and jurisdiction in, and agree
that the sole venue shall be, the District Court in and for the City
and County of Denver, Colorado, or in the United States District Court
for the District of Colorado, for any action commenced relating to
this Agreement or the transactions contemplated hereby. The parties
agree that any action or proceeding arising out of this Agreement
shall be heard by a court sitting without a jury and thus hereby waive
all rights to a trial by jury.
15.8 Attorneys' Fees. In the event of any dispute hereunder, or any default
in the performance of any term or condition of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses
associated therewith, including reasonable attorneys' fees.
15.9 Schedules and Exhibits. The Schedules and Exhibits attached hereto are
incorporated by reference into this Agreement.
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15.10Further Assurances. Each of the parties hereto shall, from time to
time after the Closing, upon the request of any other party hereto,
duly execute, acknowledge and deliver all such further instruments and
documents reasonably required to further effectuate the interests and
purposes of this Agreement. IN WITNESS WHEREOF, the parties have
executed this Agreement themselves or by their authorized
representatives.
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BUYER: SELLER:
▇▇▇▇'▇ DELI CORPORATION THE QUIZNO'S ACQUISITION
COMPANY
By: By:
Its: Its:
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