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EXHIBIT 10.103
EQUIPMENT PURCHASE AGREEMENT
AND
BILL OF SALE
THIS EQUIPMENT PURCHASE AGREEMENT AND BILL OF SALE (this "Agreement")
is made this 3rd day of July, 1996, by and between LH LEASING COMPANY, INC., an
Arizona corporation ("Buyer"), and BLACK-EYED PEA U.S.A., INC., a Texas
corporation ("Seller").
RECITALS
A. On May 31, 1996, DenAmerica Corp. entered into a Stock Purchase
Agreement for the purchase of all of the stock of Black-eyed Pea U.S.A., Inc.
(the "Purchase Agreement").
B. In conjunction with the Purchase Agreement, DenAmerica Corp., its
subsidiaries and LH Leasing Company, Inc., desire to transfer and lease certain
assets used in the operation of the restaurants acquired by DenAmerica Corp. as
a result of the Purchase Agreement.
C. Seller desires to sell, and Buyer desires to buy, all of the
appliances, furniture, fixtures, equipment and other personal property, if any,
owned by Seller and situated on or at the restaurants located at the restaurant
locations identified on Schedule A attached hereto (the "Equipment"), pursuant
to the terms and conditions of this Agreement, which shall also serve as a bill
of sale for the Equipment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
SECTION 1. SALE AND PURCHASE.
1.1 EQUIPMENT AND RIGHTS TO BE SOLD AND PURCHASED. Seller hereby sells
and Buyer hereby purchases, subject to the terms and conditions of this
Agreement, the Equipment owned by Seller, located at the restaurant locations
identified on Schedule A, together with all rights of Seller under express or
implied warranties from manufacturers, wholesalers and distributors with respect
to the Equipment.
SECTION 2. PURCHASE PRICE; BILL OF SALE.
2.1 AMOUNT AND PAYMENT OF PURCHASE PRICE. As full and complete payment
for the Equipment, Buyer has paid to Seller $_____________________, and other
good and valuable consideration (the "Purchase Price").
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2.2 BILL OF SALE. This Agreement is intended to, and shall, be
evidence of the transfer of the Equipment as provided for herein, and such
transfer is made with the representations and warranties provided for herein. In
exchange for the Purchase Price paid by Buyer at or before the execution and
delivery hereof, the receipt and sufficiency of which is hereby acknowledged by
Seller, Seller hereby conveys, grants, bargains, sells, transfers, sets over,
assigns, aliens, remises, releases, delivers and confirms unto Buyer, its
successors and assigns forever, all right, title and interest in and to all of
the Equipment, wherever situated and located.
If the conveyance of any of the Equipment attempted to be made
hereunder would be ineffective as between Buyer and Seller without the consent
of any third person, or would serve as a cause for terminating, invalidating or
materially altering the rights of Seller, or of Buyer as a transferee thereof,
arising under any agreement, lease, permit, license, right, claim or otherwise,
or would cause or serve as a cause for the loss of ownership thereof by either
Seller or Buyer, then such Equipment is temporarily excluded from the aforesaid
conveyance and assignment and no assignment or conveyance of such Equipment
shall be deemed to have occurred. However, Seller shall, to the greatest extent
permitted, hold such Equipment for the exclusive use and benefit of the Buyer
and its successor or assigns until such consent has been obtained. After
consummation of the transaction contemplated by this Agreement (the "Closing"),
Seller shall use good faith best efforts to obtain all consents and approvals
necessary or required to transfer title to the Equipment to Buyer, which
obligation shall survive the Closing and continue in effect. Upon the obtaining
of such consent, no further conveyance or assignment shall be required, but full
and complete title to such Equipment shall automatically become vested in Buyer
by virtue of this Agreement.
SECTION 3. SELLER'S REPRESENTATIONS AND WARRANTIES. To induce Buyer to
enter into this Agreement, Seller represents and warrants to Buyer as of the
date of this Agreement as follows:
3.1 CORPORATE STATUS AND AUTHORITY. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation, has the requisite corporate power and authority to
own and operate the Equipment and to carry on its business as now being
conducted and is duly qualified to conduct its business in all jurisdictions in
which the nature of its business requires such qualification. The execution and
delivery of this Agreement, the consummation of the transactions contemplated
hereby and the fulfillment of the terms hereof have been validly authorized by
all necessary corporate action of Seller partner, and this Agreement constitutes
the valid and binding obligation of Seller enforceable in accordance with its
terms.
3.2 NO NOTICE OF VIOLATION OF LAW. Seller has not received any
written, official notice or citation from any federal, state or local authority
or any insurance or inspection body that any of the Equipment is in
contravention of, or fails to comply in any material respect with, any
applicable federal, state or local law, ordinance, regulation, building law or
requirement of any public body, including, but not limited to, any federal,
state or local laws or regulations relating to health or safety matters or any
OSHA requirements, except for notices
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or citations as to matters which would not have a material adverse effect on the
Equipment or Seller's use of the Equipment, taken as a whole.
3.3 CONDITION OF EQUIPMENT. The Equipment used in Seller's
business as of the date hereof is in reasonable operating condition and in a
state of reasonable maintenance and repair, normal wear and tear excepted. The
Equipment located in the restaurants identified on Schedule A attached hereto is
reasonably sufficient to operate the business of the respective restaurants as
currently operated.
3.4 TITLE TO EQUIPMENT. Seller has good and marketable title
to all of the Equipment. The Equipment is not subject to any mortgage, pledge,
lien, claim, encumbrance, charge, security interest or title retention or other
security arrangement, except for liens for the payment of federal, state and
other taxes, the payment of which is neither delinquent nor subject to
penalties. All leases pursuant to which the Seller or any of its subsidiaries
leases any substantial amount of personal property that constitutes a portion of
the Equipment are valid and effective in accordance with their respective terms.
SECTION 4. BUYER'S REPRESENTATIONS AND WARRANTIES. To induce Seller to
enter into this Agreement, Buyer represents and warrants as of the date of this
Agreement that Buyer is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been validly authorized by all appropriate corporate action.
SECTION 5. NO FURTHER WARRANTIES OF SELLER. ALL SALES, CONVEYANCES,
ASSIGNMENTS, TRANSFERS AND DELIVERIES TO BE MADE HEREUNDER WILL BE MADE WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED,
EXCEPT AS EXPRESSLY SET FORTH HEREIN. ALL ASSETS AND RIGHTS SOLD, CONVEYED,
ASSIGNED, TRANSFERRED AND DELIVERED HEREUNDER ARE SOLD, CONVEYED, ASSIGNED,
TRANSFERRED AND DELIVERED "AS IS," (EXCEPT AS EXPRESSLY SET FORTH HEREIN) AND
SELLER EXPRESSLY DISCLAIMS ANY ADDITIONAL WARRANTIES OF CONDITION, OR WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This Agreement is made,
however, with full rights of substitution and subrogation of the Buyer in and to
all covenants, warranties and other rights of indemnification by others
heretofore given or made to Seller with respect to any of the Equipment.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties contained in this Agreement shall survive the
execution of this Agreement.
SECTION 7. INDEMNIFICATION. The parties hereto hereby agree to defend,
indemnify and hold harmless each other, and their respective successors and
assigns, for, from and against, any and all damages, losses, liabilities
(absolute and contingent), fines, penalties, costs and expenses (including,
without limitation, reasonable counsel fees and costs and expenses incurred in
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investigation, defense or settlement of any claim covered by this indemnity)
with respect to or arising out of any demand, claim, inquiry, investigation,
proceeding, action or cause of action which the party seeking indemnification
hereunder, its successors or assigns, may suffer or incur by reason of the
inaccuracy of any of the representations or warranties of the other party hereto
contained in this Agreement.
SECTION 8. APPOINTMENT OF ATTORNEY-IN-FACT. Seller hereby constitutes
and appoints Buyer, its successors and assigns, as Seller's true and lawful
attorney-in-fact and attorneys, with full power of substitution, in Seller's
name and stead, but on behalf and for the benefit of Buyer, its successors and
assigns, to demand and receive any and all of the Equipment, and to give
receipts and releases for and in respect of the same, and any part thereof, and
from time to time to institute and prosecute in Seller's name or otherwise, on
behalf and for the benefit of Buyer, its successors and assigns, any and all
proceedings at law, in equity or otherwise, which Buyer, its successors or
assigns, may deem proper for the reduction to possession of the Equipment and
enforcement of any claim or right of any kind hereby sold, conveyed, transferred
and assigned, or intended so to be, and to do all acts and things relating to
the Equipment that Buyer, its successors or assigns, shall deem desirable,
Seller hereby declaring that the foregoing powers are coupled with an interest
and are and shall be irrevocable by Seller. Seller shall cooperate with Buyer in
connection with realizing Buyer's rights and benefits with respect to the
Equipment.
SECTION 9. NO THIRD PARTY BENEFICIARIES. Notwithstanding anything
contained herein to the contrary, nothing in this Agreement, express or implied,
is intended to or shall be construed to confer upon, or give to, any person,
partnership, corporation or other entity other than Buyer and its successors and
assigns, any remedy or claim under or by reason of this Agreement or any terms,
covenants or conditions, promises and agreements hereof, and all the terms,
covenants and conditions, promises and agreements contained in this Agreement
shall be for the sole and exclusive benefit of Buyer and its successors and
assigns.
SECTION 10. FURTHER ASSURANCES. Seller and Buyer shall execute and
deliver all such other instruments and take all such other action, as any party
may reasonably request from time to time, in order to effectuate the
transactions provided for herein. The parties shall cooperate with each other
and with their respective counsel and accountants in connection with any steps
to be taken as a part of their respective obligations under this Agreement.
SECTION 11. BROKERS AND FINDERS. Each of the parties hereto represents
and warrants to the other that it has not employed or retained any broker or
finder in connection with the transactions contemplated by this Agreement, nor
has it had any dealings with any person which may entitle that person to a fee
or commission from any other party hereto. Each of the parties indemnifies and
holds the other harmless from and against any claim, demand or damages
whatsoever by virtue of any arrangement or commitment made by it with or to any
person that may entitle such person to any fee or commission from the other
parties to this Agreement.
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SECTION 12. GENERAL PROVISIONS.
12.1 NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received when delivered
against receipt or upon actual receipt by personal delivery or registered or
certified mail, postage prepaid, return receipt requested.
12.2 BINDING NATURE OF AGREEMENT; ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no party may assign or transfer
its rights or obligations under this Agreement without the prior written consent
of the other party hereto, which consent may not be unreasonably withheld or
delayed.
12.3 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of
trade inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by an agreement in writing.
12.4 CONTROLLING LAW. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement, shall be
governed by and construed, interpreted and enforced in accordance with the laws
of the State of Arizona, notwithstanding any conflict-of-law provisions to the
contrary.
12.5 SCHEDULES AND EXHIBITS. All Schedules referred to herein
or attached hereto are hereby incorporated by reference into, and made a part
of, this Agreement.
12.6 WAIVER. Neither the failure nor any delay on the part of
a party to exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor shall any waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
12.7 TITLES NOT TO AFFECT INTERPRETATION. The titles of
Sections contained in this Agreement are for convenience only, and they neither
form a part of this Agreement nor are they to be used in the construction or
interpretation hereof.
12.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof,
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individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories. Any photographic or xerox copy of this
Agreement, with all signatures reproduced on one or more sets of signature
pages, shall be considered for all purposes as of it were an executed
counterpart of this Agreement.
12.9 PROVISIONS SEVERABLE. The provisions of this Agreement
are independent and severable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
BUYER:
LH LEASING COMPANY, INC., AN ARIZONA
CORPORATION
By:
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Its:
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SELLER:
BLACK-EYED PEA U.S.A., INC., A TEXAS
CORPORATION
By:
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Its:
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Witness
In accordance with the requirements of Arizona Revised Statutes Section
14-5503, the undersigned has executed this Agreement solely for the purpose of
witnessing the grant of the powers of attorney by Seller to Buyer, as described
in this Agreement.
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Signature and Printed Name of Witness
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ACKNOWLEDGMENT
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this day
of July , 1996, by ________________________________ , the
_________________________________ of LH Leasing Company, Inc., an Arizona
corporation, on behalf of the corporation.
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Notary Public
My commission expires:
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STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this day of July ,
1996, by ______________________________________________ , the
________________________ of Black_eyed Pea U.S.A., Inc., a Texas corporation, on
behalf of the corporation.
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Notary Public
My commission expires:
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