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ORDER (A) APPROVING THE SALE OF SUBSTANTIALLY 

ALL OF THE DEBTORS’ ASSETS FREE AND CLEAR OF LIENS 

AND LIABILITIES, (B) AUTHORIZING THE DEBTORS TO ASSUME

AND ASSIGN EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN 

CONNECTION WITH THE SALE, AND (C) GRANTING RELATED RELIEF

Upon the Debtors’ Emergency Motion for Entry of (I) an Order (A) Approving Bidding 

Procedures and Designating A Stalking Horse Bidder, (B) Scheduling a Bid Deadline, Auction, 

1 The Debtors in these chapter 11 cases and the last four digits of each Debtors’ federal tax identification number are 

as follows: BUCA Texas Restaurants, L.P. (3262); BUCA Texas Beverage, Inc. (3995); BUCA C, LLC (8220); BUCA 

Sales & Marketing, LLC (4258); BUCA Investments, Inc. (5575); BUCA Restaurants, Inc. (9725); BUCA Restaurants 

2, Inc. (2187); BUCA (Celebration), LLC (3412); BUCA (Ex), LLC (3092); BUCA (Minneapolis), Inc. (2474). The 

Debtors’ principal offices are located at 4700 Millenia Boulevard, Suite 400, Orlando, Florida 32839. 

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

§

In re: § Chapter 11

§

BUCA TEXAS RESTAURANTS, L.P., et al.,1 § Case No. 24-80058 (SGJ)

§

Debtors. § (Jointly Administered)

§

Signed November 4, 2024

______________________________________________________________________

The following constitutes the ruling of the court and has the force and effect therein described.

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and Sale Hearing and Approving the Form and Manner of Notice Thereof, and (C) Approving 

Cure Procedures and the Form and Manner of Notice Thereof; and (II) an Order Approving the 

Sale of Substantially All of the Debtors’ Assets Free and Clear of Liens, Claims, and Interests and 

Granting Related Relief [Docket No. 100] (the “Sale Motion”),2

 filed by the above captioned 

debtors and debtors in possession (collectively, the “Debtors” or the “Sellers”), seeking entry of 

this order (this “Sale Order”) for, among other things, approval of: (a) the sale of substantially all 

of the Debtors’ assets pursuant to the APA (as defined below) free and clear of Liens,3 Claims (as 

defined in section 101(5) of the Bankruptcy Code), and interests, (b) the assumption and 

assignment of executory contracts and unexpired leases of the Debtors as may be requested by the 

Purchaser (as defined below) and the proposed cure amounts with respect thereto (the “Cure 

Costs”), and (c) the assumption of certain liabilities, all as more fully set forth in the Sale Motion; 

2

 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Sale Motion 

or the APA, as applicable. 

3 The term “Lien” as used in this Sale Order shall include all liens, interests, rights encumbrances, rights of offset, 

restrictions, leases, option rights or claims, obligations, liabilities, indentures, loan agreements, guaranties, demands, 

contractual commitments or interests in respect of the Debtors or any property of the Debtors, equity interests, licenses, 

instruments, conditional sale rights or other title retention agreements, rights of first refusal, consent rights, contract 

rights, rights of recovery, reimbursement rights, contribution claims, indemnity rights, regulatory violations, 

judgments, decrees of any court or foreign or domestic governmental or quasi-governmental entity, debts arising in 

any way in connection with any agreements, acts or failures to act and reclamation rights whether choate or inchoate, 

filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected 

including the following: (1) any “Lien” as such term is used in the APA; (2) employment or labor agreements; (3) all 

mortgages, deeds of trust, hypothecations, pledges, security interests or charges of any kind or nature; (4) any pension, 

welfare, compensation or other employee benefit plans, agreements, practices and programs, including any pension 

plan of the Debtors; (5) any other employee, workers’ compensation, occupational disease or unemployment or 

temporary disability related claim, including claims that might otherwise arise under or pursuant to (a) ERISA, Pub. 

L. No. 93-406, 88 Stat. 829 (1974); (b) the FLSA, 29 U.S.C. §§ 201 et seq., as amended; (c) Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended; (d) the Federal Rehabilitation Act of 1973, 

29 U.S.C. §§ 701 et seq., as amended; (e) the NLRA, 29 U.S.C. §§ 151 et seq., as amended; (f) the Worker Adjustment 

and Retraining Act of 1988, 28 U.S.C. §§ 2101 et seq.; (g) the Age Discrimination in Employment Act of 1967, 29 

U.S.C. §§ 621 et seq., as amended; (h) the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., as 

amended; (i) state discrimination laws; (j) state unemployment compensation laws or any other similar state laws; or 

(k) any other state or federal benefits or claims relating to any employment with any of the Debtors or any of their 

respective predecessors; (6) any bulk sales or similar laws; (7) any tax statutes or ordinances, including the Internal 

Revenue Code of 1986, as amended; (8) any theories of successor liability, including any theories on product liability 

grounds; and (9) any environmental or other liens, Claims, encumbrances, obligations, liabilities, contractual 

commitments or interests of any kind or nature arising from existing conditions on or prior to the Closing Date.

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and the U.S. Bankruptcy Court for the Northern District of Texas (Dallas Division) (the “Court”)

having entered the Order (A) Approving Bidding Procedures and Designating a Stalking Horse 

Bidder, (B) Scheduling a Bid Deadline, Auction, and Sale Hearing and Approving the Form and 

Manner of Notice Thereof, and (C) Approving Cure Procedures and the Form and Manner of 

Notice Thereof [Docket No. 177] (the “Bidding Procedures Order”); and the Court having entered 

the Order Granting Debtors’ Emergency Motion to Continue Sale Hearing [Docket No. 316] 

(the “Extension Order”); and the Court being satisfied that the relief requested in the Sale Motion 

is necessary and in the best interests of the Debtors and their estates; and it appearing that sufficient 

notice of the Sale Motion has been given, and that no other or further notice is required; and this 

Court having reviewed the Sale Motion and having considered the evidence and arguments 

presented at a hearing on November 1, 2024 (the “Sale Hearing”); and this Court having 

determined that the legal and factual bases set forth in the Sale Motion and at the Sale Hearing 

establish just cause for the relief granted herein; and after due deliberation and sufficient cause 

appearing therefor; 

It is hereby FOUND, CONCLUDED, AND DETERMINED THAT:

4

A. Jurisdiction and Venue. The Court has jurisdiction to hear and determine the Sale 

Motion pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 

157(b)(2)(A), (N), and (O). Venue in this district is proper under 28 U.S.C. § 1408 and 1409. 

B. On August 4 and 5, 2024 (August 4, 2024, the “Petition Date”), the Debtors each 

filed a voluntary petition under chapter 11 of the Bankruptcy Code. Since the Petition Date, the 

Debtors have continued to operate their business and manage their property as debtors in 

4 The findings of fact and conclusions of law herein constitute the Court’s findings of fact and conclusions of law for 

the purposes of rule 7052 of the Federal Rules of Bankruptcy Procedures (the “Bankruptcy Rules”), made applicable 

pursuant to Bankruptcy Rule 9014. To the extent any findings of facts are conclusions of law, they are adopted as 

such. To the extent any conclusions of law are findings of fact, they are adopted as such.

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possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. No trustee or examiner 

has been appointed in these Chapter 11 Cases.

C. Notice. As evidenced by the certificates of service filed with the Court, proper, 

timely, adequate, and sufficient notice of (a) the Sale Motion, (b) the sale of the Purchased Assets 

(as defined below) to the Purchaser (as defined below) pursuant to (i) the bidding procedures 

authorized by the Court in the Bidding Procedures Order (the “Bidding Procedures”) and (ii) the 

APA and the transactions contemplated in connection therewith (the “Sale”), (c) the assumption 

and assignment to the Purchaser of certain executory contracts and unexpired leases as described 

and identified more fully in the APA (collectively, the “Assumed Contracts”), (d) the Cure Costs, 

(e) the Successful Bidder, (f) the Sale Hearing, and (g) all deadlines related thereto has been 

provided by the Debtors to each party entitled thereto in accordance with the Bidding Procedures 

Order and the Extension Order. A reasonable opportunity to object or be heard regarding the relief 

requested in the Sale Motion has been afforded to all interested persons and entities. 

D. The Debtors filed with the Court and served upon the non-Debtor counterparties to 

the Assumed Contracts a Notice of Executory Contracts and Unexpired Leases Subject to Possible 

Assumption and Assignment and Proposed Cure Amounts [Docket No. 218], a Notice of Assumed 

Contract Schedule and Amended Cure Amounts [Docket No. 325], and Notice of Supplemented 

and Amended Assumed Contract Schedule and Amended Cure Amounts [Docket No. 381]

(collectively, the “Cure Notice”), identifying, among other things, the Cure Costs in accordance 

with the Bidding Procedures Order and Extension Order. The service of the Cure Notice was 

sufficient under the circumstances and in full compliance with the Bidding Procedures Order and 

the Extension Order, and no further notice need be provided in respect of the Debtors’ assumption 

and assignment to the Purchaser of the Assumed Contracts, the Cure Costs, if any, or the Sale. All 

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non-Debtor counterparties to the Assumed Contracts have had an adequate opportunity to object 

to the assumption and assignment of the Assumed Contracts and the Cure Costs. 

E. The disclosures made by the Debtors concerning the Sale Motion, the APA, the 

Sale, the Purchaser, and the Sale Hearing were good, complete, and adequate. A reasonable 

opportunity to object or be heard regarding the requested relief has been afforded to all of the 

Debtors’ creditors and other parties in interest in these Chapter 11 Cases.

F. The notice described in the foregoing paragraphs is good, sufficient, and 

appropriate under the circumstances, and no other or further notice of the Sale Motion, the Sale 

(and the transactions contemplated in connection therewith), the assumption and assignment to the 

Purchaser of the Assumed Contracts, the Cure Costs, the Sale Hearing, and all deadlines related 

thereto is or shall be required.

G. APA. The assets being sold to the Purchaser (the “Purchased Assets,” as defined 

in the APA as the “Assets”), as more fully described in that certain Asset Purchase Agreement, 

attached hereto as Exhibit 1 (the “APA”) between the Debtors and BDB Intermediate, LLC

(the “Purchaser”), pursuant to which the Sellers have agreed to sell the Purchased Assets to the 

Purchaser, constitute property of the Sellers’ bankruptcy estates and title thereto is vested in the 

Sellers’ estates within the meaning of section 541 of the Bankruptcy Code. The Debtors are the 

sole and lawful owners of the Purchased Assets.

H. The Sale Process. The Sale is duly authorized pursuant to sections 102(1), 105, 

363, 365, and 541 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, 6006, 9007, and 

9014. As demonstrated by (i) the testimony and other evidence adduced at the Sale Hearing, (ii) 

the representations of counsel made on the record at the Sale Hearing, and (iii) the docket of this 

case, the Debtors have marketed the Purchased Assets and conducted all aspects of the Sale process 

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at arms’-length, in good faith, and in compliance with the Bidding Procedures, the Bidding 

Procedures Order, and the Extension Order. The marketing process undertaken by the Debtors and 

their professionals, agents, and other representatives with respect to the Purchased Assets has been 

adequate and appropriate and reasonably calculated to maximize value for the benefit of all 

stakeholders. The Bidding Procedures were duly noticed, were substantively and procedurally fair 

to all parties, and the Sale was conducted in a diligent, non-collusive, fair, and good faith manner, 

in accordance with the Bidding Procedures. The APA constitutes the highest and best offer for the 

Purchased Assets.

I. The deadline for submitting a bid for the Debtors’ assets passed on October 2, 2024,

at 4:00 p.m. (prevailing Central Time) (the “Bid Deadline”) in accordance with the Bidding 

Procedures and Bidding Procedures Order. No qualified bids, other than the APA, were received 

by the Bid Deadline. After the Bid Deadline, the Debtors, after consultation with the Official 

Committee of Unsecured Creditors (the “Committee”), determined in a valid and sound exercise 

of their business judgment that the transactions contemplated by the APA were the highest or 

otherwise best bid and, therefore, Purchaser’s bid was designated as the successful bid 

(the “Successful Bid”). On October 4, 2024, the Debtors filed their Notice of (I) Cancellation of 

Auction, and (II) Designation of Main Street Capital Corporation as Successful Bidder, Including 

the Proposed Form of the Asset Purchase Agreement [Docket No. 296] (the “Notice of Successful 

Bidder”), identifying the Purchaser as the Successful Bidder for the Purchased Assets in 

accordance with the Bidding Procedures Order. As established by the record of the Sale Hearing, 

the Bidding Procedures Order and Extension Order have been complied with in all material 

respects by the Debtors and the Purchaser. The Bidding Procedures afforded a full, fair, and 

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reasonable opportunity for any entity or person to make a higher or otherwise better offer to 

purchase the Purchased Assets.

J. Through marketing efforts and a competitive sale process conducted in accordance 

with the Bidding Procedures Order, the Debtors: (a) afforded interested potential purchasers a full, 

fair, and reasonable opportunity to qualify as bidders and submit their highest or otherwise best 

offer to purchase the Purchased Assets; (b) provided potential purchasers, upon request, sufficient 

due diligence information to enable them to make an informed judgment on whether to bid on the 

Purchased Assets and to submit the materials required under the Bidding Procedures Order by the 

Bid Deadline; (c) considered any Qualified Bids submitted on or before the Bid Deadline; and 

(d) conducted the sale process in a diligent, non-collusive, fair, and good faith manner. 

K. Business Justification. The Debtors have articulated good and sufficient business 

reasons for the Court to: (i) approve the APA, and, subject to the terms of this Sale Order, authorize 

the Debtors’ consummation of the Sale, including the sale of the Purchased Assets to the Purchaser

and its permitted assigns pursuant to the terms of the APA; (ii) authorize and approve the 

assumption, assignment, or assumption and assignment of the Assumed Contracts and Assigned 

Postpetition Contracts as set forth herein and in the APA on the Closing Date (defined below); and 

(iii) authorize and approve the assumption of the Assumed Liabilities as set forth in the APA. Entry 

into the APA and consummation of the Sale are sound exercises of the Debtors’ business judgment, 

and such acts are in the best interests of the Debtors, their estates and creditors, and all parties in 

interest. 

L. The Debtors have demonstrated compelling circumstances and a good, sufficient, 

and sound business purpose for: (i) the sale of the Purchased Assets outside of the ordinary course 

of business pursuant to Bankruptcy Code section 363(b) prior to and outside of a plan of 

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reorganization because of the Debtors’ current financial position; (ii) a restriction on the Debtors 

pursuing, considering, or accepting any further offers for the Purchased Assets from and after the 

entry of this Sale Order through the earlier of the consummation of the Sale or termination of the 

APA in accordance with its terms; and (iii) the immediate consummation of the APA. Such 

circumstances and purposes include: (a) the Debtors conducted a robust marketing process to sell 

the Purchased Assets and the APA constitutes the highest and best offer for the Purchased Assets; 

(b) the APA and the closing of the Sale present the best opportunity to realize the highest value for 

the Purchased Assets; (c) there is risk of deterioration of the value of the Purchased Assets if the 

Sale is not consummated in accordance with the terms of the APA and this Sale Order; (d) the APA 

and the sale of the Purchased Assets to the Purchaser provide greater value to the Debtors’ estates 

than would be provided by any other presently available alternative; (e) the Bidding Procedures 

utilized were designed to yield the highest or otherwise best bids for the Purchased Assets; and 

(f) the Purchaser would not agree to purchase the Purchased Assets pursuant to the terms of the 

APA and this Sale Order if the Purchased Assets remained subject to higher or better offers after 

the entry of this Sale Order. To maximize the value of the Purchased Assets and preserve the 

viability of the operations to which the Purchased Assets relate, it is essential that the Sale occur 

within the time constraints set forth in the APA and this Sale Order and that the Purchaser be 

protected against any further offers for the Purchased Assets.

M. Good Faith. The APA was negotiated, proposed, and is undertaken by the Debtors 

and the Purchaser at arms’-length, without collusion or fraud, and in good faith within the meaning 

of Bankruptcy Code section 363(m). The Purchaser is a good-faith purchaser under 

section 363(m) of the Bankruptcy Code and, as such, is entitled to all of the protections afforded 

thereby, including in the event that this Sale Order or any portions thereof is appealed, or is 

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reversed or modified on appeal. The Purchaser recognized that the Debtors were free to deal with 

any other party interested in acquiring the Purchased Assets, and agreed to, and did, subject its bid 

to the competitive Bidding Procedures. As established by the record of the Sale Hearing, the 

Debtors and the Purchaser have complied with the Bidding Procedures and the Bidding Procedures 

Order in all material respects. The Bidding Procedures afforded a full, fair, and reasonable 

opportunity for any entity or person to make a higher or otherwise better offer to purchase the 

Purchased Assets. Neither the Debtors, nor the Purchaser, nor any affiliate of the Purchaser has 

engaged in any conduct that would cause or permit the APA to be avoided under section 363(n) of 

the Bankruptcy Code. As a result of all of the foregoing, the Purchaser is entitled to the protections 

of Bankruptcy Code section 363(m), including in the event this Sale Order or any portion thereof 

is reversed or modified on appeal, and otherwise has proceeded in good faith in all respects in 

connection with these cases. The APA was not entered into for the purpose of hindering, delaying, 

or defrauding creditors under the Bankruptcy Code or under the laws of the United States, any 

state, territory, possession or the District of Columbia.

N. An injunction against creditors of the Debtors and third parties pursuing the 

Purchaser for Excluded Liabilities is necessary to induce the Purchaser to close the Sale; the 

issuance of such an injunction is therefore necessary to avoid irreparable injury to the Debtors’ 

estates, and will benefit all of the Debtors’ creditors.

O. Authority. The Debtors (i) have full corporate power and authority to execute the 

APA, and the Sale by the Debtors to the Purchaser has been duly and validly authorized by all 

necessary corporate action, (ii) have all of the corporate power and authority necessary to 

consummate the Sale and all transactions contemplated by the APA, (iii) have taken all corporate 

action necessary to authorize and approve the APA and the consummation by the Debtors of the 

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Sale and all transactions contemplated thereby, and (iv) require no consents or approvals that have 

not been obtained, other than the Court’s entry of this Sale Order and those expressly provided for 

in the APA, to consummate such transactions.

P. Highest and Otherwise Best Offer. The total consideration provided by the 

Purchaser for the Purchased Assets represents the highest and best offer received by the Debtors, 

and the amount of aggregate consideration provided by the Purchaser to the Debtors pursuant to 

the APA constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code, 

applicable state laws, including the Uniform Voidable Transactions Act, the Uniform Fraudulent 

Transfer Act, the Uniform Fraudulent Conveyance Act and any other such applicable laws, and 

may not be avoided under Bankruptcy Code section 363(n) or any provision of chapter 5 of the

Bankruptcy Code or under any other law of the United States, any state, territory, possession 

thereof, or the District of Columbia, or any other applicable law. No other person or entity or 

group of persons or entities has offered to purchase the Purchased Assets for an amount of 

aggregate consideration that would provide greater value to the Debtors’ estates than the Purchaser. 

The Debtors’ determination that the APA constitutes the highest and best offer for the Purchased 

Assets constitutes a valid and sound exercise of the Debtors’ business judgment. Such business 

reasons include the facts that (i) there is substantial risk of deterioration of the value of the 

Purchased Assets if the Sale is not consummated quickly given limited cash on hand and access to 

additional funding; (ii) the Sale set forth in the APA constitutes the highest and best offer for the 

Purchased Assets; and (iii) the APA and the Closing will present the best opportunity to realize the 

value of the Debtors’ business on a going concern basis and to avoid decline and devaluation of 

the Debtors’ business. The Court’s approval of the Sale Motion, the Sale, and the APA, and the 

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immediate consummation thereof, is in the best interests of the Debtors, their estates and creditors, 

and all other parties in interest. 

Q. Valid Transfer. As of the Closing, pursuant and subject to the terms of the APA, 

the transfer of the Purchased Assets and the Sale will effect a legal, valid, enforceable, and effective 

transfer of the Purchased Assets and will vest the Purchaser with all of the Debtors’ right, title, and 

interest in the Purchased Assets, free and clear of all Liens (except for Permitted Liens), Claims, 

encumbrances, and other interests of any kind or nature whatsoever (other than Assumed 

Liabilities). 

R. Free and Clear. The Purchaser would not have entered into the APA and would

not have consummated the Sale, thus adversely affecting the Debtors, their estates, and their 

creditors, unless both (i) the Sale and (ii) the assumption and assignment of the Assumed Contracts 

to the Purchaser were free and clear of all Liens (except for Permitted Liens), Claims, 

encumbrances, and other interests of any kind or nature whatsoever (other than Assumed 

Liabilities), except as specifically set forth in paragraph 25 of this Sale Order. Claims shall include 

Excluded Liabilities, all debts arising under, relating to, the Purchased Assets, or in connection 

with any act of any Debtor or claims, liabilities, obligations, demands, guaranties, options, rights, 

contractual commitments, restrictions, restrictive covenants, covenants not to compete, rights to 

refunds, escheat obligations, interests and matters of any kind and nature, whether arising prior to 

or subsequent to the commencement of the Debtors’ chapter 11 cases, and whether imposed by 

agreement, applicable law, equity, or otherwise (including rights with respect to claims and 

encumbrances (i) that purport to give to any party a right of setoff or recoupment against, or a right 

or option to effect any forfeiture, modification, profit sharing interest, right of first refusal, 

purchase or repurchase right or option, or termination of, any of the Debtors’ or Purchaser’s 

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interests in the Purchased Assets, or any similar rights, (ii) in respect of taxes owed by the Debtors 

for periods prior to the Closing Date, including sales, income, use or any other type of tax; or 

(iii) in respect of restrictions, rights of first refusal, charges or interests of any kind or nature, if 

any, including any restriction of use, voting, transfer, receipt of income or other exercise of any 

attributes of ownership) relating to, accruing or arising any time prior to the Closing Date. 

S. Satisfaction of 363(f) Standards. The Debtors may sell the Purchased Assets free 

and clear of all Liens (except for Permitted Liens), Claims, encumbrances, and other interests of 

any kind or nature whatsoever (other than Assumed Liabilities), because, in each case, one or more 

of the standards set forth in section 363(f)(l)–(5) of the Bankruptcy Code has been satisfied. All 

parties in interest, including any holders of Liens, Claims, encumbrances, and other interests and 

any non-Debtor counterparties to the Assumed Contracts, that did not object, or who withdrew 

their objection, to the Sale, the Sale Motion, the assumption and assignment of the applicable 

Assumed Contract, including the associated Cure Cost, have consented to the relief granted herein 

pursuant to section 363(f)(2) of the Bankruptcy Code. Those (i) holders of Liens and (ii) nonDebtor parties to Assumed Contracts who did object fall within one or more of the other 

subsections of section 363(f) of the Bankruptcy Code.

T. If, except with respect to Assumed Liabilities and Permitted Encumbrances 

provided herein or under the APA, the Sale was not free and clear of all Excluded Liabilities, or if 

the Purchaser would, or in the future could, be liable for any of the Excluded Liabilities, the 

Purchaser would not have entered into the APA and would not consummate the Sale, thus adversely 

affecting the Debtors and their bankruptcy estates and creditors.

U. No Successor Liability. By consummating the Sale, the Purchaser is not a mere 

continuation of the Debtors or their estates, and there is no continuity, no common identity, and no 

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continuity of enterprise between the Purchaser and the Debtors. The Purchaser is not holding itself 

out to the public as a continuation of the Debtors. The Purchaser is not a successor to the Debtors 

or the Debtors’ estates by reason of any theory of law or equity, and the Sale does not amount to a 

consolidation, merger, or de facto merger of the Purchaser or the Debtors. The Purchaser will not 

assume or in any way be responsible for any obligation or liability of the Debtors and/or the 

Debtors’ estates except in respect of the Assumed Liabilities, and as expressly provided in this Sale 

Order or the APA. The Purchaser would not have acquired the Purchased Assets but for the 

foregoing protections against potential claims based upon “successor liability” or similar theories.. 

V. Assumed Contracts and Cure Costs. The Debtors have demonstrated that the 

assumption and assignment of the Assumed Contracts and Assigned Postpetition Contracts (as 

defined in the APA) to the Purchaser in connection with the consummation of the Sale is an 

exercise of the Debtors’ sound business judgment and is in the best interests of the Debtors, their 

estates and creditors, and other parties in interest. The Assumed Contracts and Assigned 

Postpetition Contracts being assigned to the Purchaser are an integral part of the APA and the Sale 

and, accordingly, the assumption and assignment of the Assumed Contracts and Assigned 

Postpetition Contracts is reasonable and enhances the value of the Debtors’ estates. Any objections 

to the assumption and assignment of any of the Assumed Contracts by the Purchaser in accordance 

with the APA that have not been resolved or adjourned by agreement of the parties, are hereby 

overruled. Any non-Debtor counterparty to an Assumed Contract that has not actually filed with 

the Court an Assumption Objection (as defined below) in accordance with the terms of the Bidding 

Procedures Order and Cure Notice is deemed to have consented to such assumption and 

assignment on the terms set forth in this Sale Order and the APA.

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W. The Debtors and the Purchaser (including any designees), as applicable under the 

APA, have, including by way of entering into the APA, and agreeing to the provisions relating to 

the Assumed Contracts therein, (i) cured, or provided adequate assurance of cure, of any default 

existing prior to the date hereof under any of the Assumed Contracts, within the meaning of 

section 365(b)(l)(A) of the Bankruptcy Code, and (ii) provided compensation or adequate 

assurance of compensation to any party for any actual pecuniary loss to such party resulting from 

a default prior to the date hereof under any of the Assumed Contracts, within the meaning of section 

365(b)(1)(B) of the Bankruptcy Code, and the Purchaser (including any designees) has, based upon 

the record of these proceedings, provided adequate assurance of future performance of and under 

the Assumed Contracts, within the meaning of sections 365(b)(1) and 365(f)(2) of the Bankruptcy 

Code. No default exists in the Debtors’ performance under the Assumed Contracts as of the 

Closing Date other than the failure to pay Cure Costs or defaults that are not required to be cured 

as contemplated in section 365(b)(1)(A) of the Bankruptcy Code. The Purchaser’s promise under 

the APA to perform the obligations under the Assumed Contracts after Closing shall constitute 

sufficient adequate assurance of future performance under the Assumed Contracts being assigned 

to the Purchaser within the meanings of sections 365(b)(1)(C) and (f)(2)(B) of the Bankruptcy 

Code. The Cure Costs are hereby found to be the sole amounts necessary to cure any and all 

defaults under the Assumed Contracts for amounts that have become due and owing under the

Leases under section 365(b) of the Bankruptcy Code.

X. Allocation of Purchase Price. The Credit Bid shall be comprised solely of the 

DIP Obligations. 

Y. No Sub Rosa plan. The Sale does not constitute a sub rosa chapter 11 plan. The 

sale and assignment of the Purchased Assets and Assumed Liabilities outside of a plan of 

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reorganization pursuant to the APA neither impermissibly restructures the rights of the Debtors’ 

creditors nor impermissibly dictates a chapter 11 plan for any of the Debtors.

Z. Opportunity to Object. A fair and reasonable opportunity to object or be heard 

with respect to the Sale Motion and the relief requested therein has been afforded to all interested 

persons and entities.

AA. Final Order. This Sale Order constitutes a final order within the meaning of 

28 U.S.C. § 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), and to the extent 

necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as 

made applicable by Bankruptcy Rule 7054, the Court expressly finds that there is no just reason 

for delay in the implementation of this Sale Order, and, sufficient cause having been shown, waives 

any such stay. The Debtors have demonstrated compelling circumstances and a good, sufficient, 

and sound business purpose and justification for the immediate approval and consummation of the 

Sale contemplated by the APA. The Purchaser may consummate the Sale subject to the terms of 

this Sale Order. 

BB. Automatic Stay. The automatic stay pursuant to section 362 of the Bankruptcy 

Code is hereby modified with respect to the Debtors to the extent necessary, without further order 

of the Bankruptcy Court, to allow the Purchaser to deliver any notice provided for in the APA and 

allow the Purchaser to take any and all actions permitted under the APA, in each case in accordance 

with the terms and conditions thereof.

CC. Time is of the Essence. Time is of the essence in consummating the Sale. The 

consummation of the Sale as soon as practicable is necessary both to preserve and maximize the 

value of the Debtors’ assets for the benefit of the Debtors, their estates, their creditors, interest 

holders and all other parties in interest in these chapter 11 cases, and to provide the means for the 

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Debtors to maximize creditor and interest holder recoveries. Accordingly, there is cause to waive 

the stays contemplated by Bankruptcy Rules 6004 and 6006. 

NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED 

THAT:

1. The Sale Motion is granted as set forth herein, and the Sale contemplated thereby 

and by the APA is approved as set forth in this Sale Order, with the APA being incorporated in this 

Sale Order as if fully set forth herein.

2. All objections to the Sale Motion or the relief granted herein that have not been 

withdrawn, waived, or settled, and all reservations of rights included therein, are hereby overruled 

on the merits with prejudice.

3. Notice of the Sale Motion, and the assumption and assignment of the Assumed 

Contracts and Leases (including proposed Cure Amounts related thereto), the Sale Hearing, and 

the Sale was fair and equitable under the circumstances and complied in all respects with the 

Bidding Procedures, sections 102(1), 363 and 365 of the Bankruptcy Code, and Bankruptcy Rules 

2002, 6004, 6006, 9006, and 9007. 

Approval of the APA

4. The APA and all other ancillary documents, including all of the terms and 

conditions thereof, and the Sale contemplated thereby, are hereby approved in all respects and the 

Debtors and the Purchaser are hereby authorized and empowered to fully perform under, 

consummate, and implement the terms of the APA.

5. Pursuant to section 363(b) of the Bankruptcy Code, the Debtors, acting by and 

through their existing agents, representatives, and officers, are authorized and directed to execute 

and deliver, perform under, consummate, implement, comply with, and close the APA, together 

with all additional instruments and documents that may be reasonably necessary or desirable to 

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implement the APA and the Sale, and consummate the Sale pursuant to and in accordance with the 

terms and conditions of the APA and this Sale Order. The Debtors are further authorized to pay, 

without further order of this Court, whether before, at, or after Closing, any expenses or costs that 

are required to be paid in order to consummate the transactions contemplated by the APA or 

perform their obligations under the APA.

6. The Debtors are authorized and directed to execute and deliver, and empowered to 

perform under, consummate, and implement, the APA, together with all additional instruments, 

documents, and other agreements that may be reasonably necessary or desirable to implement the 

APA, and to take all further actions as may be reasonably requested by the Purchaser for the 

purpose of assigning, transferring, granting, conveying and conferring to the Purchaser or reducing 

to possession, the Purchased Assets, or as may be reasonably necessary or appropriate to the 

performance of the obligations as contemplated by the APA, this Sale Order, and any such other 

ancillary documents, without any further corporate action or orders of this Court. 

7. The Debtors, their estates, and their respective officers, members, managers, 

partners, agents, representatives, and attorneys, are authorized, subject to the terms and conditions 

contained in the APA and this Sale Order to carry out all of the provisions of the APA and any 

related agreements or instruments; to issue, execute, deliver, file, and record, as appropriate, the 

documents evidencing and consummating the APA and any related agreements or instruments; to 

take any and all actions contemplated by the APA, any related agreements or instruments, or this 

Sale Order; and to issue, execute, deliver, file, and record, as appropriate, such other contracts, 

instruments, releases, termination statements, indentures, mortgages, quitclaim deeds, deeds, bills 

of sale, assignments, leases, or other agreements or documents and to perform such other acts and 

execute and deliver such other documents, as are consistent with, and necessary, desirable or 

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appropriate to implement, effectuate, and consummate, the APA, any related agreements or 

instruments and this Sale Order, all without further application to, or order of, this Court or further 

action by their respective officers, members, managers, partners, agents, representatives, and 

attorneys. The Debtors and their estates are further authorized and empowered to cause to be filed 

with the secretary of state of any state or other applicable officials of any applicable Governmental 

Unit (as defined in the Bankruptcy Code) any and all certificates, agreements, or amendments 

necessary or appropriate to effectuate this Sale Order and the APA, and all such other actions, 

filings, or recordings as may be required under appropriate provisions of the applicable laws of all 

applicable Governmental Units or as they may determine are necessary, desirable or appropriate. 

The execution of any such document or the taking of any such action shall be, and hereby is, 

deemed conclusive evidence of the authority of such person to so act. Without limiting the 

generality of the foregoing, this Sale Order shall constitute all approvals and consents, if any, 

required by the corporate laws of the State of Delaware and all other applicable business, 

corporation, non-profit, limited liability partnership, trust, and other laws of the applicable 

Governmental Unit with respect to the implementation and consummation of the APA, any related 

agreements or instruments and this Sale Order.

8. This Sale Order shall be binding in all respects upon the Debtors and their estates, 

successors, and assigns, all creditors of and equity holders in any Debtor, and any and all other 

parties in interest, including any and all holders of Liens (except for Permitted Liens), claims, 

encumbrances, and other interests of any kind or nature whatsoever (other than Assumed 

Liabilities), including holders of any rights or claims based on any putative successor or transferee 

liability, of any kind or nature whatsoever in the Purchased Assets, all non-Debtor parties to the 

Assumed Contracts and Assigned Postpetition Contracts, and any trustee or successor trustee or 

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administrator appointed in these chapter 11 cases or upon a conversion. The APA and the Sale are 

not subject to rejection or avoidance (whether through any avoidance or recovery, claim, action, 

or proceeding arising under chapter 5 of the Bankruptcy Code or under any similar state or federal 

law or any other cause of action) by the Debtors, any chapter 7 or chapter 11 trustee of the Debtors’ 

bankruptcy estates, or any other person or entity. The APA, this Sale Order, and the Debtors’ 

obligations therein and herein shall not be altered, impaired, amended, rejected, discharged, or 

otherwise affected by any chapter 11 plan proposed or confirmed in these bankruptcy cases, any 

order confirming any chapter 11 plan, or any subsequent order of this Court without the prior 

written consent of the Purchaser. In furtherance of the foregoing, any estate representative, 

including a trustee or administrator appointed in this case under any chapter 11 plan confirmed in 

these chapter 11 cases or upon a conversion to chapter 7 under the Bankruptcy Code, shall be 

obligated to comply with the preservation and production obligations of the Debtors set forth in 

the APA. Nothing contained in any chapter 11 plan confirmed in these chapter 11 cases or the 

confirmation order confirming any such chapter 11 plan shall conflict with or derogate from the 

provisions of the APA or this Sale Order. This Sale Order and the APA shall inure to the benefit 

of the Debtors, their estates, their creditors, the Purchaser, and their respective successors and 

assigns.

9. Subject to the terms of the APA, the APA and any related agreements, documents, 

or other instruments may be modified, amended, or supplemented by the parties thereto in a writing 

signed by all parties, after consultation with the Committee with respect to material modifications, 

and in accordance with the terms thereof, without further order of this Court, provided that any 

such modification, amendment, or supplement does not have a material adverse effect on the 

Debtors’ estates.

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Transfer of the Purchased Assets

10. Except as expressly permitted or otherwise specifically provided for in the APA or 

this Sale Order, pursuant to sections 105(a), 363(b), 363(f), 365(b), 365(f), and 541 of the 

Bankruptcy Code or any other applicable section of the Bankruptcy Code, upon Closing, the 

Purchased Assets shall be transferred to the Purchaser, and such transfer shall constitute a legal, 

valid, binding, and effective transfer of the Purchased Assets free and clear of all Excluded 

Liabilities, including Liens (except for Permitted Liens), Claims, encumbrances, and other 

interests of any kind or nature whatsoever (other than Assumed Liabilities), pursuant to section 

363(f) of the Bankruptcy Code. Upon Closing, the Purchaser shall take title to and possession of 

the Purchased Assets subject only to the Assumed Liabilities and Permitted Liens.

11. On the Closing Date, this Sale will be construed to and will constitute for any and 

all purposes a full and complete general assignment, conveyance, and transfer of all of the 

Purchased Assets or a bill of sale transferring good and marketable title in such Purchased Assets 

to the Purchaser pursuant to the terms and conditions set forth in this Sale Order and the APA.

12. Except for Assumed Liabilities and Permitted Encumbrances provided herein or 

under the APA, all persons and entities, including the Debtors, employees, former employees, all 

debt holders, equity holders, administrative agencies, Governmental Units, tax and regulatory 

authorities, secretaries of state, federal, state, and local officials, lenders, contract parties, bidders, 

lessors, and other parties in possession of any of the Purchased Assets at any time, trade creditors, 

and all other creditors holding or asserting Liens, Claims, or Excluded Liabilities of any kind or 

nature whatsoever against or in the Debtors or in the Debtors’ interests in the Purchased Assets 

(whether known or unknown as of the Closing Date, now existing or hereafter arising, legal or 

equitable, matured or unmatured, contingent or noncontingent, liquidated or unliquidated, whether 

imposed by agreement, understanding, law, equity, or otherwise), shall be and hereby are forever 

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barred, estopped, and permanently enjoined from asserting, prosecuting, commencing, continuing, 

or otherwise pursuing in any manner any action, claim, or other proceeding of any kind, directly 

or indirectly, against the Purchaser or any of its affiliates, predecessors, successors, or assigns or 

any of their respective current and former members, managers, officers, directors, managed funds, 

investment advisors, attorneys, employees, partners, principals, affiliates, shareholders (or 

equivalent), financial advisors, and representatives (each of the foregoing in its individual 

capacity), their property, or the Purchased Assets in respect of Liens, Claims, or Excluded 

Liabilities that arise under or out of, in connection with, or in any way relate to, the Debtors, the 

Purchased Assets, the Assumed Contracts, the operation of the Debtors’ business on or prior to the 

Closing Date, the sale, or the transfer of the Purchased Assets or the Assumed Contracts to the 

Purchaser. Actions that are barred include: (i) the commencement or continuation of any action or 

other proceeding, (ii) the enforcement, attachment, collection, or recovery of any judgment, award, 

decree or order, (iii) the creation, perfection, or enforcement of any Lien, Claim, Interest, or 

encumbrance, except for Assumed Liabilities or Permitted Encumbrances provided herein or under 

the APA, (iv) the assertion of any right of setoff, not asserted prepetition, or subrogation claims 

against the Purchaser, (v) the commencement or continuation of any action that does not comply 

with, or is inconsistent with, the provisions of this Sale Order, any actions contemplated or taken 

in respect hereof, or the APA, and (vi) the revocation, termination, or failure or refusal to renew 

any governmental authorization or to acknowledge/accept assignment of any license, permit, 

registration, or governmental authorization or approval to operate any of the Purchased Assets or 

conduct the businesses associated with such Purchased Assets; provided that, for the avoidance of 

doubt, nothing in this paragraph shall limit the enforcement of the APA or rights in connection 

with Assumed Liabilities or Permitted Encumbrances. On or before the Closing Date, each of the 

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Debtors’ creditors is directed to execute such documents and take all other actions as may be 

deemed by the Purchaser to be reasonably necessary or desirable to release Liens (except for 

Permitted Liens), Claims, encumbrances, and other interests (other than Assumed Liabilities) on 

the Purchased Assets, if any, as provided for herein, as such Liens or liabilities may have been 

recorded or may otherwise exist.

13. The Purchaser has given substantial consideration under the APA for the benefit of 

the Debtors, their estates, and creditors. The consideration given by the Purchaser shall constitute 

valid and valuable consideration for the releases of any potential interest or Claims pursuant to this 

Sale Order.

14. The transfer of the Purchased Assets to the Purchaser pursuant to the APA shall 

constitute a legal, valid, and effective transfer of the Purchased Assets on the Closing Date, and 

shall vest the Purchaser with all of the Debtors’ rights, title, and interests in the Purchased Assets 

free and clear of all Liens (except for Permitted Liens), Claims, encumbrances, and other interests 

of any kind or nature whatsoever (other than Assumed Liabilities), whether known or unknown as 

of the Closing Date, now existing or hereafter arising, whether fixed or contingent, whether 

derivatively, vicariously, as transferee or successor or otherwise, of any kind, nature, or character 

whatsoever, including those Liens (except for Permitted Liens), Claims, encumbrances, and other 

interests of any kind or nature whatsoever (other than Assumed Liabilities) arising out of or on 

account of: (a) any employment, collective bargaining, or other labor agreements or the 

termination thereof; (b) any defined benefit, multiemployer, defined contribution, retirement, 

medical benefit, or any other employee pension, welfare, compensation, or other employee benefit 

plans, agreements, practices, or programs, including any pension plan of or related to any of the 

Debtors or any of Debtors’ Affiliates or predecessors or any current or future employees of any of 

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the foregoing, or the termination of any of the foregoing; (c) the Debtors’ Business operations or 

the cessation thereof; (d) any litigation involving one or more of the Debtors; (e) any employee, 

benefit, worker’s compensation, occupational disease, or unemployment or temporary disability 

related claims or interests, including claims and interests that might otherwise arise under or 

pursuant to (i) the Employee Retirement Income Security Act of 1974, as amended, (ii) the Fair 

Labor Standards Act, (iii) Title VII of the Civil Rights Act of 1964, (iv) the Federal Rehabilitation 

Act of 1973, (v) the National Labor Relations Act, (vi) the Worker Adjustment and Retraining Act 

of 1988, (vii) the Age Discrimination and Employee Act of 1967 and Age Discrimination in 

Employment Act, as amended, (viii) the Americans with Disabilities Act of 1990, (ix) the 

Consolidated Omnibus Budget Reconciliation Act of 1985, (x) the Multiemployer Pension Plan 

Amendments Act of 1980, (xi) any other federal or state discrimination laws, (xii) state 

unemployment compensation laws or any other similar state and local laws, (xiii) state workers’ 

compensation laws, or (xiv) any other state, local, or federal employee benefits laws, regulations, 

or rules, or other state, local, or federal laws, regulations, or rules relating to any employment with 

any of the Debtors or any of their respective predecessors; (f) any antitrust laws; (g) any product 

liability or similar laws, whether state or federal or otherwise; (h) any bulk sales or similar laws; 

(i) any federal state, or local tax statutes, regulations, or ordinances, including the Internal Revenue 

Code of 1986, as amended; and (j) any common law doctrine of de facto merger or successor or 

transferee liability, successor-in-interest liability theory, or any other theory of or related to 

successor liability; and the Debtors hereby waive and release the Purchaser from any such Liens,

Claims, encumbrances, and other interests.

15. All persons and entities that are in possession of some or all of the Purchased Assets 

on the Closing Date are directed to immediately surrender possession of such Purchased Assets to 

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the Purchaser or its assignee. Nothing herein shall prejudice the rights of the Purchaser to seek 

turnover from any and all Entities presently in possession, or on or after the Closing Date in 

possession, of some or all of the Purchased Assets.

16. Unless otherwise ordered by the Court in a prior order, to the extent provided for in 

the APA, any and all deposits (including maintenance deposits, and security deposits for rent, 

electricity, telephone or otherwise) or prepaid or deferred charges and expenses, including all lease 

and rental payments, that have been prepaid by any of the Debtors under the Assumed Contracts 

are being transferred and assigned to, and shall be the property of, the Purchaser from and after 

the Closing, which transfer and assignment of security deposits or other deposits shall satisfy in 

full the requirements of section 365(l) of the Bankruptcy Code for all contracts, leases, and licenses 

assumed and assigned pursuant to this Sale Order or the APA. Nothing herein shall require 

landlords holding security deposits to transfer such security deposits to the Purchaser, and 

landlords shall continue to hold all such security deposits pursuant to the terms of their Leases.

17. If any person or entity that has filed financing statements, mortgages, mechanic’s 

liens, lis pendens, or other documents or agreements evidencing Liens in the Purchased Assets 

conveyed pursuant to the APA and this Sale Order has not delivered to the Debtors, prior to the 

Closing, in proper form for filing and executed by the appropriate parties, termination statements, 

instruments of satisfaction, releases of all Liens which the person or entity has with respect to the 

Purchased Assets or otherwise, then (a) the Debtors and the Purchaser are hereby authorized to 

execute and file such statements, instruments, releases and other documents on behalf of the person 

or entity with respect to the Purchased Assets, and (b) the Purchaser is hereby authorized to file, 

register, or otherwise record a certified copy of this Sale Order, which, once filed, registered, or 

otherwise recorded, shall constitute conclusive evidence of the release of all Liens in the Purchased 

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Assets of any kind or nature whatsoever. For the avoidance of doubt, to the extent necessary, upon 

consummation of the transactions set forth in the APA, the Purchaser is authorized to file 

termination statements, lien terminations, or other amendments in any required jurisdiction to 

remove and record, notice filings, or financing statements recorded to attach, perfect, or otherwise 

notice any Lien that is extinguished or otherwise released pursuant to this Sale Order under section 

363 of the Bankruptcy Code. 

Ad Valorem Taxes 

18. Except as otherwise provided in paragraph 19, below, the Sale of the Purchased 

Assets approved herein shall vest the Purchaser with all of the Debtors’ right, title, and interest in 

the Purchased Assets free and clear of ad valorem, property, and similar tax liens for any preClosing period. 

19. The 2024 ad valorem taxes of the Texas Taxing Authorities 5 are Permitted 

Liens. The Purchaser assumes full responsibility for the 2024 ad valorem taxes and shall be 

responsible for paying the ad valorem taxes in full, in the ordinary course of businesses, when 

due. If not timely paid, the Texas Taxing Authorities may proceed with their nonbankruptcy 

collection rights against the Purchaser or the Assets, without leave or approval of the Court. Any 

proration to the Debtors shall be credited to the Purchaser at closing or on terms agreed upon by 

the Debtors and Purchaser. Any dispute regarding the proration of the ad valorem taxes between 

the Debtors and Purchaser shall have no effect on Purchaser’s responsibility to pay the 2024 ad 

valorem taxes. The Texas Taxing Authorities shall retain their respective liens against the taxable 

Assets, as applicable, until paid in full, including any applicable penalties or interest. 

5 The term “Texas Taxing Authorities” shall refer to: Dallas County, City of Frisco, Montgomery County and Tarrant 

County, and Frisco Independent School District.

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20. Undisputed secured 2023 ad valorem personal property taxes owing by the Debtors 

to the Texas Taxing Authorities shall be paid in full, including any statutory penalties or interest, 

by the Debtors within ten calendar days following the Closing Date. The Texas Taxing Authorities 

shall retain their statutory liens against the taxable property and their existing lien priority, until 

the delinquent tax claims are paid in full, including statutory penalties or interest, if applicable, as 

provided by the Texas Tax Code. All parties’ rights and defenses under applicable law and the 

Bankruptcy Code with respect to the foregoing, including their right to dispute or object to the 

validity or enforcement of the Tax Liens under applicable non-bankruptcy law, are fully preserved. 

Assumption and Assignment of Assumed Contracts and Assumed Liabilities

21. The Debtors are hereby authorized to and shall, in accordance with sections 105(a) 

and 365 of the Bankruptcy Code, (a) assume the Assumed Contracts, (b) assign the Assumed 

Contracts to the Purchaser, effective upon and subject to the occurrence of the Closing, and except 

as specifically set forth in paragraph 25 of this Sale Order, free and clear of all Liens (except for 

Permitted Liens), Claims, encumbrances, and other interests of any kind or nature whatsoever

(other than Assumed Liabilities), which Assumed Contracts by operation of this Sale Order shall 

be deemed assumed and assigned effective as of Closing, and (c) execute and deliver to the 

Purchaser such documents or other instruments as may be necessary to assign and transfer the 

Assumed Contracts to the Purchaser. The Purchaser’s assumption of the Assumed Contracts on 

the terms set forth in the APA is hereby approved, and all requirements and conditions under 

sections 363 and 365 of the Bankruptcy Code for the assumption and assignment of the Assumed 

Contracts by the Debtors to the Purchaser have been satisfied, or, upon Closing and payment of 

the Cure Costs, shall be satisfied; provided, however, that pursuant to the APA, the Purchaser and 

the Debtors shall be permitted, subject to the terms of the APA, to modify the list of Assumed

Contracts after the entry of this Sale Order. 

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22. Any provisions in any Assumed Contract that prohibit or condition the assignment 

of such Assumed Contract on the consent of the non-Debtor counterparty thereto or allow the 

non-Debtor party to such Assumed Contract to terminate, recapture, impose any penalty, declare 

an event of default, condition on renewal or extension, or modify any term or condition upon the 

assignment of such Assumed Contract, shall constitute unenforceable anti-assignment provisions 

that are void and of no force and effect for the purposes of the assumption and assignment of the 

Assumed Contracts to the Purchaser pursuant to this Sale Order only. 

23. Upon assignment to the Purchaser, (a) the Assumed Contracts shall remain in full 

force and effect for the benefit of the Purchaser in accordance with their respective terms, 

notwithstanding any provision in any such Assumed Contract (including those of the type 

described in sections 365(b)(2) and (f) of the Bankruptcy Code) that prohibits, restricts, limits, or 

conditions such assignment or transfer; and (b) in accordance with sections 363 and 365 of the 

Bankruptcy Code, the Purchaser shall be fully and irrevocably vested in all right, title, and interest 

of the Debtors in each Assumed Contract free and clear of Liens (except for Permitted Liens), 

Claims, encumbrances, and other interests of any kind or nature whatsoever (other than Assumed 

Liabilities). 

24. The Purchaser is hereby substituted for all purposes as a party to all Assumed 

Contracts in the place of any applicable Debtor or Debtors party to any such Assumed Contracts, 

and the Purchaser shall have any and all rights and benefits of the respective Debtor or Debtors 

under all such Assumed Contracts without interruption or termination of any kind, and all terms 

applicable to such Debtor or Debtors shall apply to the Purchaser as if such Assumed Contracts 

were amended to replace such Debtor or Debtors with the Purchaser.

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25. Notwithstanding anything in the APA to the contrary, from and after the assumption 

and assignment of an Assumed Contract that constitutes a Lease, the assignee shall comply with 

the terms of each such Lease in its entirety (as may be modified in any written agreement between 

an assignee and the applicable contract counterparty), including (a) any accrued and unbilled rent, 

common area maintenance, insurance, taxes, or similar charges and any indemnification 

obligations that come due or are asserted on or after the effective date of the assumption and 

assignment of such assumed Lease regardless of whether such amounts relate to the period prior 

to or after the assignment date, and (b) any repair and maintenance obligations relating to the 

conditions at the premises subject to the assumed Lease that may exist as of the assignment date. 

Nothing in this Sale Order or the APA shall impair or prejudice an applicable landlord’s rights with 

respect to the Debtors’ available insurance coverage with respect to third-party claims asserted in 

connection with the Debtors’ use and occupancy of the applicable premises subject to the assigned

Lease with regard to events that occurred prior to the assignment date.

26. Any postpetition amendments to Assumed Contracts entered into between one or 

more of the Debtors and the applicable counterparties, which the Purchaser elects to accept, are 

hereby approved and the relevant Assumed Contracts are deemed to include such amendments. 

Notwithstanding anything herein to the contrary, to the extent that any of the provisions of this 

Sale Order conflict with the provisions of any such amendments, the respective amendments shall 

govern. Any postpetition amendments to Assumed Contracts entered into between one or more of 

the Debtors and the applicable counterparties, which the Purchaser elects not to accept, shall have 

no force or effect.

27. Except for the Assumed Liabilities or as otherwise specifically set forth in 

paragraph 25 of this Sale Order, defaults or other obligations of the Debtors under the Assumed 

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Contracts arising prior to the Closing (without giving effect to any acceleration clauses or any 

default provisions of the kind specified in section 365(b)(2) of the Bankruptcy Code) as to which 

no objections were filed and remain pending as of the date of this Sale Order are deemed satisfied 

by the payment of the proposed amount necessary, if any, to cure all monetary defaults, if any, 

under such Assumed Contract in those amounts set forth in the Cure Notice, which was served in 

compliance with the Bidding Procedures Order, and which were satisfied, or shall be satisfied as 

soon as practicable, as provided in the APA. 

28. For all Assumed Contracts for which a Cure Notice was served, the Debtors or the 

Purchaser, as applicable under the APA, are authorized and directed to pay all Cure Costs listed in 

the Cure Notice, or in an amount agreed to by the Assumed Contract counterparty, upon the later 

of (a) seven days after Closing, (b) the time agreed to by the Assumed Contract counterparty, or 

(c) for any Assumed Contract for which (i) a timely filed and served objection or (ii) both the 

Debtors’ counsel and the Purchaser’s counsel have agreed to accept an informal objection as an 

objection (an “Assumption Objection”) to the assumption and assignment of such agreement or 

the Cure Costs relating thereto remains pending as of the date of this Sale Order, the resolution of 

such Assumption Objection by settlement or order of this Court. If no out-of-court resolution can 

be reached, either party may request a hearing on no less than 14 days’ notice to the other party.

29. With respect to Assumed Contracts that constitute unexpired Leases (as defined in 

the APA), payment of the applicable Cure Cost designated in the Cure Notice or as otherwise 

agreed to by the Purchaser and the counterparty in writing shall constitute the cure of all defaults 

arising under the Lease that are required to be cured by section 365(b)(1)(A) of the Bankruptcy 

Code (after giving effect to section 365(b)(2) of the Bankruptcy Code). For the avoidance of doubt 

and notwithstanding anything to the contrary herein, the Debtors shall remain liable for any 

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additional obligations under the Leases that arise under section 365(d)(3) of the Bankruptcy Code 

between the date of the entry of this Sale Order and the Closing. 

30. All contract counterparties to the Assumed Contracts must cooperate with, and 

expeditiously execute and deliver on, any reasonable request of the Purchaser, and shall not charge 

the Debtors or the Purchaser for, any instruments, applications, consents, or other documents which 

may be required or requested by any public or quasi-public authority or other party or entity to 

effectuate the applicable transfers in connection with the Sale.

31. Nothing herein shall impair or prejudice the counterparty’s right to recover from 

the Debtors’ available insurance coverage with respect to third-party claims asserted in connection 

with the Debtors’ use and occupancy of the leased premises on account of events that occurred 

prior to the effective date of assumption and assignment of such Lease to the Purchaser. Except 

as specifically set forth in paragraph 25 of this Sale Order, the Purchaser shall not have any liability 

or obligation, including any indemnification obligation to the counterparty in relation to or in 

connection with any default, action, liability or other cause of action under the Lease existing, 

arising, accruing or based upon events occurring prior to the Closing, whether asserted or not.

32. Except as set forth in this Sale Order, the Purchaser’s assumption of obligations and 

liabilities under the Leases shall be limited to obligations arising from and after the Closing Date 

and which relate to periods from and after the Closing Date.

33. In accordance with the APA, the Purchaser may remove or add any executory 

contract or unexpired lease to or from the Contract and Cure Schedule at any time up to the Closing 

Date. The counterparty, and its counsel if known, to any such added or removed contract or 

unexpired lease will be notified by written notice via electronic mail, if possible, or first-class or 

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overnight U.S. mail, postage prepaid, where electronic delivery is unavailable, no later than two

(2) business days following such determination. 

34. Each counterparty to an Assumed Contract as to which no Assumption Objection 

remains pending as of the date of this Sale Order is hereby forever barred, estopped, and 

permanently enjoined from asserting against the Debtors, the Purchaser, or any of their affiliates 

(including any designees), or the property of any of them, any default, breach, claims of pecuniary 

losses existing as of the Closing or by reason of Closing, action, liability, or other cause of action 

existing as of the date of the Sale Hearing whether asserted or not, or, against the Purchaser or any 

of its affiliates (including any designees), any counterclaim, defense, setoff, or any other Claim 

asserted or assertable against the Debtors. Each non-Debtor party to an Assumed Contract as to 

which no Assumption Objection remains pending as of the date of this Sale Order is hereby forever 

barred, estopped, and permanently enjoined from asserting any objection to the assumption and 

assignment of such non-Debtor party’s Assumed Contract including that its consent is necessary 

for such assumption and assignment. 

Assigned Postpetition Contracts 

35. The Debtors are hereby authorized to and only upon consent of the applicable 

counterparty to an Assigned Postpetition Contract, shall, in accordance with sections 105(a) and 

363 of the Bankruptcy Code, (a) assign the Assigned Postpetition Contracts to the Purchaser, 

effective upon and subject to the occurrence of the Closing, free and clear of all Liens (except for 

Permitted Liens), Claims, encumbrances, and other interests of any kind or nature whatsoever 

(other than Assumed Liabilities), and (b) execute and deliver to the Purchaser such documents or 

other instruments as may be necessary to assign and transfer the Assigned Postpetition Contracts 

to the Purchaser. The Purchaser’s assumption of the Assigned Postpetition Contracts on the terms 

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set forth in the APA is hereby approved, and all requirements and conditions under section 363 of 

the Bankruptcy Code for the assignment of the Assigned Postpetition Contracts by the Debtors to 

the Purchaser have been satisfied. 

36. Upon assignment to the Purchaser, (a) the Assigned Postpetition Contracts shall 

remain in full force and effect for the benefit of the Purchaser in accordance with their respective 

terms; and (b) in accordance with section 363 of the Bankruptcy Code, the Purchaser shall be fully 

and irrevocably vested in all right, title, and interest of the Debtors in each Assigned Postpetition 

Contracts free and clear of Liens (except for Permitted Liens), Claims, encumbrances, and other 

interests of any kind or nature whatsoever (other than Assumed Liabilities). 

37. Upon assignment to the Purchaser, the Purchaser is substituted for all purposes as 

a party to all Assigned Postpetition Contracts in the place of any applicable Debtor or Debtors 

party to any such Assigned Postpetition Contracts, and the Purchaser shall have any and all rights 

and benefits of the respective Debtor or Debtors under all such Assigned Postpetition Contracts

without interruption or termination of any kind, and all terms applicable to such Debtor or Debtors 

shall apply to the Purchaser as if such Assigned Postpetition Contracts were amended to replace 

such Debtor or Debtors with the Purchaser. 

Additional Provisions

38. The Purchaser shall not be deemed to be a joint employer, single employer, coemployer, or successor employer with the Debtors for any purpose or under the laws of the United 

States, any state, territory, or possession thereof, and the Purchaser shall not have any obligation 

to pay any past wages, benefits, or severance pay or extend or make any benefits or benefit 

programs, including the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar 

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laws or regulations, to any of the Debtors’ employees or former employees, including any such 

employees who may become employees of the Purchaser.

39. Notwithstanding anything to the contrary in this Sale Order or the APA, the rights 

of insured persons and entities, if any, to access any insurance policies or the proceeds thereof 

(collectively, the “Policies”) in their respective capacities as insureds thereunder, including those 

under which the Debtors are insured, shall not be affected or diminished by this Sale Order, and 

the rights, defenses and claims of the Debtors, their Estates, any representative of the Estates, and 

insurers are reserved with respect thereto; provided that nothing in the Sale Motion, APA, or this 

Sale Order alters or amends the terms and conditions of the Policies, enjoins insurers or relieves 

the Debtors or any insurers of any of their obligations thereunder. 

40. Notwithstanding anything to the contrary in the Motion, the APA, any lists of 

executory contracts to be assumed and assigned and/or any Cure Notices or supplemental Cure 

Notices, the Assumed Contract Schedule, this Order, or any documents relating to any of the 

foregoing: nothing shall permit or otherwise effect a sale, an assignment or any other transfer, 

without the express written consent of either the Zurich Companies6 or the Chubb Companies,7 as 

applicable, of (a) any insurance policies issued by the Zurich Companies to or that provide 

coverage to the Debtors (or their predecessors) and all agreements, documents or instruments 

relating thereto (collectively, the “Zurich Insurance Contracts”) or any insurance policies issued 

by the Chubb Companies to or that provide coverage to the Debtors (or their predecessors) and all 

agreements, documents or instruments relating thereto (collectively, the “Chubb Insurance 

6 The “Zurich Companies” are defined, collectively, as Zurich American Insurance Company, American Zurich 

Insurance Company, American Guarantee & Liability Insurance Company and/or any of their affiliates and 

predecessors. 

7 The “Chubb Companies” are defined, collectively, as ACE American Insurance Company and Federal Insurance 

Company and each of their U.S.-based affiliates and predecessors. 

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Contracts” and, together with the Zurich Insurance Contracts, the “Zurich/Chubb Insurance 

Contracts”) and/or (b) (i) any rights, proceeds, benefits, interests, claims, rights to payments and/or 

recoveries under the Zurich/Chubb Insurance Contracts to the Successful Bidder; provided,

however, that to the extent any claim with respect to the purchased Assets arises that is covered by 

the Zurich/Chubb Insurance Contracts, the Debtors may pursue such claim in accordance with the 

terms of the Zurich/Chubb Insurance Contracts, and, if applicable, turn over to the Successful 

Bidder any such insurance proceeds (each, a “Proceed Turnover”), provided, further, however, that 

the neither the Zurich Companies nor the Chubb Companies shall have any duty to effectuate a 

Proceed Turnover or liability related to a Proceed Turnover. 

41. Notwithstanding anything to the contrary in the Motion, the APA, this Sale Order, 

or any documents relating to any of the foregoing: (i) subject to a further Court order, Sysco 

Corporation, Edward Don & Company, and/or any of their respective affiliates and subsidiaries 

(collectively, “Sysco/DON”) shall not be required to return the deposit they are holding in the 

collective amount of $560,000 (the “Deposit”) to the Debtors or to transfer the Deposit to the 

Purchaser; (ii) Sysco/DON’s rights in the Deposit shall not be affected or diminished by the 

Motion, the APA, this Sale Order, or any documents relating to any of the foregoing; and (iii) 

Sysco/DON, the Debtors, and the Purchaser retain all rights and arguments with respect to 

Sysco/DON’s ability to apply the Deposit to any amounts owed to Sysco/DON, and to 

Sysco/DON’s rights to assert offset with respect to the Deposit, in each case as if the Sale had not 

occurred. 

42. This Sale Order (a) shall be effective as a determination that, upon the Closing, all 

Liens (except for Permitted Liens), Claims, encumbrances, and other interests of any kind or nature 

whatsoever (other than Assumed Liabilities) existing as to the Purchased Assets, prior to the 

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Closing have been unconditionally released, discharged, and terminated and that the conveyances 

described herein have been effected, and (b) shall be binding upon and shall govern the acts of all 

entities including all filing agents, filing officers, title agents, title companies, recorders of 

mortgages, recorders of deeds, registrars of deeds, administrative agencies, governmental 

departments, secretaries of state, federal, state, foreign, and local officials, and all other persons 

and entities who may be required by operation of law, the duties of their office, or contract, to 

accept, file, register, or otherwise record or release any documents or instruments, or who may be 

required to report or insure any title or state of title in or to, the Purchased Assets, including the 

Purchased Actions.

43. Each and every federal, state, and governmental agency or department, and any 

other person or entity, is hereby authorized to accept any and all documents and instruments in 

connection with or necessary to consummate the Sale transaction contemplated by the APA.

44. To the greatest extent available under applicable law, the Purchaser shall be 

authorized, as of the Closing Date, to operate under any license, permit, registration, and 

governmental authorization or approval of the Debtors with respect to the Purchased Assets, and 

all such licenses, permits, registrations, and governmental authorizations and approvals are 

deemed to have been transferred to Purchaser as of the Closing Date. 

45. Possession of any and all alcohol inventory shall be surrendered to the Purchaser at 

the earliest of (a) immediately following Closing where allowed by applicable law; (b) receipt by 

the Purchaser of authorization from the applicable Governmental Entity where required by 

applicable law; or (c) receipt by the Purchaser of the applicable liquor license; provided that 

possession of such inventory shall not be surrendered to the Purchaser if doing so would violate 

applicable law in each applicable jurisdiction.

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46. To the extent any license or permit necessary for the operation of the Business is 

not an assumable and assignable executory contract, the Purchaser shall make reasonable efforts 

to apply for and obtain any such license or permit promptly after the Closing Date, and the Debtors 

shall cooperate reasonably with the Purchaser in those efforts. All existing licenses or permits, 

including the liquor licenses identified in the APA shall remain in place for the Purchaser’s benefit 

until either new licenses and permits are obtained or existing licenses and permits are transferred 

in accordance with applicable administrative procedures.

47. With regard to the sale of alcohol at the premises subject to Assumed Contracts that 

constitute unexpired Leases, the Debtors and all other parties in interest shall cooperate fully with 

and support the Purchaser in executing such applications and furnishing such documents as are 

necessary for the Purchaser to obtain, in its name, a temporary new alcohol beverage license or 

transferred liquor license. To the fullest extent allowed by applicable law, the Purchaser may 

continue to operate at such locations under existing ABC Licenses, state food service licenses, 

local occupational licenses, and any other licenses needed to operate at such premises, with no 

interruption of the business conducted at the premises, until the ABC Licenses and other licenses 

and permits have been transferred to the Purchaser, or new alcohol beverage licenses and other 

licenses and permits have been issued to the Purchaser.

48. To the maximum extent permitted by section 525 of the Bankruptcy Code, no 

governmental unit may revoke or suspend any right, copyright, patent, trademark or other 

permission, permit or license, including liquor licenses, relating to the use or operation of the 

Purchased Assets, due to the filing or pendency of the Debtors’ chapter 11 cases or the 

consummation of the Sale of the Purchased Assets. Each and every federal, state, and local 

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governmental agency or department is hereby authorized and directed to accept any and all 

documents and instruments necessary and appropriate to consummate the Sale.

49. At any time prior to the Closing, the Purchaser may assign the APA, portions 

thereof, and any or all of its rights thereunder, to one or more of its affiliates or subsidiaries, each 

of which shall be entitled to assume and accede to the APA and to purchase and acquire any or all

of the Purchased Assets and assume any or all of the Assumed Liabilities in lieu of the Purchaser, 

and such affiliate(s) and designee(s) shall be deemed to be the Purchaser for all purposes under 

this Sale Order and shall be, jointly with Purchaser and each other, entitled to all rights and benefits 

conferred upon Purchaser pursuant to this Sale Order .

50. Neither the Purchaser nor any of its affiliates, subsidiaries, or designees are or shall 

be deemed, as a result of the consummation of the Sale contemplated herein, to: (a) be legal 

successors to the Debtors or their estates by reason of any theory of law or equity; (b) be an affiliate 

of any of the Debtors; (c) have, de facto or otherwise, merged with or into the Debtors; (d) be an 

alter ego or a mere continuation or substantial continuation or successor of the Debtors in any 

respect; or (e) be a joint employer or co-employer with, or successor employer, of the Debtors. 

Except as expressly provided for in the APA or this Sale Order, neither the Purchaser nor any of 

its affiliates or designees shall (y) assume or in any way be responsible for any Liens, Claims, 

encumbrances, or other interests of any kind or nature whatsoever against, or obligation of, any of 

the Debtors and/or their estates or (z) have any liability or responsibility for any Liens, Claims, 

encumbrances, or other interests of any kind or nature whatsoever against, or other obligation of,

the Debtors’ arising under or related to the Purchased Assets or otherwise. Without limiting the 

generality of the foregoing, and except as otherwise specifically provided herein and in the APA, 

neither the Purchaser nor its affiliates or designees shall be liable for any Claims against the 

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Debtors or any of their predecessors or affiliates, and neither the Purchaser nor its affiliates or 

designees shall have any successor or vicarious liabilities of any kind or character, including any 

theory of warranty, product liability, successor or transferee liability, labor law, de facto merger, or 

substantial continuity, whether known or unknown as of the Closing, now existing or hereafter 

arising, whether fixed or contingent, with respect to the Debtors or any obligations of the Debtors, 

including, liabilities on account of any taxes arising, accruing, or payable under, out of, in 

connection with, or in any way relating to the operation of the Debtors’ Business prior to the 

Closing.

51. Following Closing, no holder of a Lien (except for Permitted Liens), Claim, 

encumbrance, or other interest of any kind or nature whatsoever (other than Assumed Liabilities) 

in the Purchased Assets (including the Purchased Actions) shall interfere with the Purchaser’s title 

to or use and enjoyment of the Purchased Assets based on or related to such Lien, Claim, 

encumbrance, or interest, or any actions that the Debtors may take in these chapter 11 cases or any 

successor cases.

52. The Purchaser is a good faith purchaser and is hereby granted and is entitled to all 

of the benefits and protections afforded by section 363(m) of the Bankruptcy Code to a good faith 

buyer, including with respect to the transfer of the Assumed Contracts and Assigned Postpetition 

Contracts as part of the Sale of the Purchased Assets.

53. Pursuant to section 363(m) of the Bankruptcy Code, if any or all of the provisions 

of this Sale Order are hereafter reversed, modified, or vacated by a subsequent order of the Court 

or any other court, such reversal, modification, or vacatur shall not affect the validity and 

enforceability of any transfer under the APA or obligation or right granted pursuant to the terms of 

this Sale Order (unless stayed pending appeal), and, notwithstanding any reversal, modification, 

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or vacatur, the validity and enforceability of any transfer under the APA or obligation or right 

granted pursuant to the terms of this Sale Order shall be governed in all respects by the original 

provisions of this Sale Order and the APA, as applicable.

54. The so-called “bulk sale” laws or any similar law of any applicable state or other 

jurisdiction are waived or inapplicable to the Sale.

55. Except as otherwise expressly provided in the APA, the Purchaser shall have no 

liability to pay wages, bonuses, severance pay, benefits (including contributions or payments on 

account of any under-funding with respect to any and all pension plans), or any other payment 

with respect to employees or former employees of the Debtors. Except as otherwise expressly 

provided in the APA, the Purchaser shall have no liability with respect to any collective bargaining 

agreement, employee pension plan, employee welfare or retention, benefit, and/or incentive plan 

to which any Debtor is a party and relating to the Purchased Assets (including arising from or 

related to the rejection or other termination of any such agreement), and the Purchaser shall in no 

way be deemed a party to or assignee of any such agreement, and no employee of the Purchaser 

shall be deemed in any way covered by or a party to any such agreement, and except as otherwise 

expressly provided in the APA, all parties to any such agreement are hereby enjoined from 

asserting against the Purchaser any and all Claims arising from or relating to the APA. 

56. The failure to specifically include any particular provisions of the APA or any of 

the documents, agreements, or instruments executed in connection therewith in this Sale Order 

shall not diminish or impair the effectiveness or force of such provision, document, agreement, or 

instrument, it being the intent of the Court, the Debtors, and the Purchaser, that the APA and each 

provision, document, agreement, and instrument be authorized and approved in its entirety with 

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such amendments thereto as may be made in conformity with this Sale Order prior to the Closing 

Date.

57. To the extent of any conflict between the APA and this Sale Order, the terms and 

provisions of this Sale Order shall govern.

58. Nothing contained in any chapter 11 plan confirmed in these chapter 11 cases, the 

order confirming any chapter 11 plan, or any order in these chapter 11 cases (including any order 

approving a wind-down or dismissal of these chapter 11 cases or any order entered as part of or 

after any conversion of the these chapter 11 cases to cases under chapter 7 of the Bankruptcy Code) 

shall alter, conflict with, or derogate from the provisions of the APA or this Sale Order, and to the 

extent of any conflict or derogation between this Sale Order or the APA and such future chapter 11 

plan or order, the terms of this Sale Order and the APA shall control.

59. The Purchaser shall reasonably cooperate with the Debtors, the Committee, and any 

liquidating trustee appointed under a chapter 11 plan by providing reasonable access to documents 

and information purchased and/or controlled by the Purchaser as reasonably necessary to facilitate 

a wind-down of the estates, confirmation of a chapter 11 plan, distribution to creditors, 

reconciliation of claims, or other function as reasonably requested by the Debtors, the Committee, 

or any liquidating trustee; provided, however, that nothing in this paragraph requires the Purchaser 

to cooperate with the Committee or any liquidating trustee pursuant to this paragraph unless such 

party provides reasonable compensation to the Purchaser for the work necessary to comply with 

this paragraph (including for the time spent by the Purchaser’s employees and outside 

professionals).

60. This Court shall retain exclusive jurisdiction to enforce the terms and provisions of 

the APA and each of the agreements executed in connection therewith, this Sale Order, and the 

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Bidding Procedures Order in all respects and to decide any disputes concerning this Sale Order 

and the APA, or the rights and duties all Entities hereunder or thereunder, as applicable, or any 

issues relating to this Sale Order or the APA, including the interpretation of the terms, conditions, 

and provisions hereof and thereof, the status, nature, and extent of the Purchased Assets and any 

Assumed Contracts or Assigned Postpetition Contracts, and all issues and disputes existing in 

connection with the relief authorized herein, inclusive of those concerning the transfer of the 

Purchased Assets free and clear of all Liens, claims, encumbrances, and other interests of any kind 

or nature whatsoever.

61. Notwithstanding anything to the contrary herein, nothing contained in this Sale 

Order shall affect, alter, or impair the rights and remedies or defenses of the Debtors, their estates, 

or the Purchaser with regard to (i) the APA, including with respect to any purported breach of the 

APA, or (ii) any purported breach of this Sale Order.

62. Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), this Sale Order shall be 

effective and enforceable immediately upon entry and its provisions shall be self-executing. In the 

absence of any entity obtaining a stay pending appeal, the Debtors and the Purchaser are free to 

close the Sale under the APA in accordance with its terms at any time.

# # # END OF ORDER # # #

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Submitted by:

Jason S. Brookner (TX Bar No. 24033684)

Amber M. Carson (TX Bar No. 24075610)

Emily F. Shanks (TX Bar No. 24110350)

GRAY REED

1601 Elm Street, Suite 4600

Dallas, TX 75201

Telephone: (214) 954-4135

Facsimile: (214) 953-1332

Email: jbrookner@grayreed.com

acarson@grayreed.com

eshanks@grayreed.com

Counsel to the Debtors

and Debtors in Possession

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4883-2571-2118

Exhibit 1

APA

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Execution Version 

15604874v4 

ASSET PURCHASE AGREEMENT 

by and among 

BUCA C, LLC, 

BUCA TEXAS RESTAURANTS, L.P., 

BUCA TEXAS BEVERAGE, INC., 

BUCA SALES & MARKETING, LLC, 

BUCA INVESTMENTS, INC., 

BUCA RESTAURANTS, INC., 

BUCA RESTAURANTS 2, INC., 

BUCA (CELEBRATION), LLC, 

BUCA (EX), LLC, 

and 

BUCA (MINNEAPOLIS), INC. 

and 

BDB INTERMEDIATE, LLC 

October 31, 2024 

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i 

15604874v4 

TABLE OF CONTENTS 

 DEFINITIONS ......................................................................................................... 5

 PURCHASE AND SALE ..................................................................................... 16

Section 2.1 Purchase and Sale of Purchased Assets ............................................................ 16

Section 2.2 Excluded Assets ................................................................................................ 19

Section 2.3 Assumption of Assumed Liabilities .................................................................. 20

Section 2.4 Excluded Liabilities .......................................................................................... 21

Section 2.5 Consideration .................................................................................................... 21

Section 2.6 Assignment and Assumption of Contracts; Excluded Locations ...................... 22

Section 2.7 Closing .............................................................................................................. 24

Section 2.8 Deliveries at Closing ......................................................................................... 24

Section 2.9 Allocation .......................................................................................................... 26

 SELLERS’ REPRESENTATIONS AND WARRANTIES ............................... 26

Section 3.1 Organization of Sellers; Good Standing ........................................................... 26

Section 3.2 Authorization of Transaction ............................................................................ 27

Section 3.3 Noncontravention .............................................................................................. 27

Section 3.4 Compliance with Laws ..................................................................................... 27

Section 3.5 Title to Purchased Assets .................................................................................. 28

Section 3.6 Contracts .......................................................................................................... 28

Section 3.7 Intellectual Property .......................................................................................... 29

Section 3.8 Litigation ........................................................................................................... 30

Section 3.9 Employees and Employment Matters ............................................................... 30

Section 3.10 Employee Benefit Plans .................................................................................... 31

Section 3.11 Real Property .................................................................................................... 32

Section 3.12 Permits .............................................................................................................. 32

Section 3.13 Environmental ................................................................................................... 33

Section 3.14 Taxes ................................................................................................................. 33

Section 3.15 Brokers’ Fees .................................................................................................... 34

Section 3.16 No Other Representations or Warranties .......................................................... 34

 BUYER’S REPRESENTATIONS AND WARRANTIES ................................. 35

Section 4.1 Organization of Buyer....................................................................................... 35

Section 4.2 Authorization of Transaction ............................................................................ 35

Section 4.3 Noncontravention .............................................................................................. 35

Section 4.4 Financial Capacity ............................................................................................ 36

Section 4.5 Adequate Assurances Regarding Executory Contracts ..................................... 36

Section 4.6 Good Faith Purchaser ........................................................................................ 36

Section 4.7 Brokers’ Fees .................................................................................................... 36

Section 4.8 Condition of Business ....................................................................................... 36

 PRE-CLOSING COVENANTS ........................................................................... 37

Section 5.1 Certain Efforts; Cooperation ............................................................................. 37

Section 5.2 Notices and Consents ........................................................................................ 37

Section 5.3 Bankruptcy Actions .......................................................................................... 39

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15604874v4 

Section 5.4 Conduct of Business ......................................................................................... 40

Section 5.5 Certain Restricted Conduct ............................................................................... 42

Section 5.6 Notice of Developments ................................................................................... 43

Section 5.7 Access ............................................................................................................... 43

Section 5.8 Press Releases and Public Announcements ...................................................... 43

Section 5.9 Bulk Transfer Laws........................................................................................... 44

Section 5.10 Contracts ........................................................................................................... 44

Section 5.11 Casualty, Condemnation, Loss of Lease ........................................................... 44

 OTHER COVENANTS ...................................................................................... 45

Section 6.1 Cooperation ....................................................................................................... 45

Section 6.2 Further Assurances............................................................................................ 45

Section 6.3 Availability of Business Records ...................................................................... 46

Section 6.4 Employee Matters ............................................................................................. 46

Section 6.5 Recording of Intellectual Property Assignments .............................................. 49

Section 6.6 Transfer Taxes .................................................................................................. 49

Section 6.7 Wage Reporting ................................................................................................ 49

Section 6.8 Collection of Accounts Receivable ................................................................... 49

Section 6.9 Use of Name and Marks ................................................................................... 50

Section 6.10 Liquor License Approvals................................................................................. 50

Section 6.11 Data Privacy Protection .................................................................................... 51

 CONDITIONS TO CLOSING .......................................................................... 52

Section 7.1 Conditions to Buyer’s Obligations.................................................................... 52

Section 7.2 Conditions to Sellers’ Obligations .................................................................... 52

Section 7.3 No Frustration of Closing Conditions ............................................................... 53

 TERMINATION .............................................................................................. 53

Section 8.1 Termination of Agreement ................................................................................ 53

Section 8.2 Procedure Upon Termination ............................................................................ 55

Section 8.3 Effect of Termination ........................................................................................ 55

 MISCELLANEOUS ........................................................................................... 55

Section 9.1 Remedies ........................................................................................................... 55

Section 9.2 Expenses ........................................................................................................... 56

Section 9.3 Entire Agreement ............................................................................................. 56

Section 9.4 Incorporation of Schedules, Exhibits and Disclosure Schedule ....................... 56

Section 9.5 Amendments and Waivers ................................................................................ 56

Section 9.6 Succession and Assignment .............................................................................. 57

Section 9.7 Notices .............................................................................................................. 57

Section 9.8 Governing Law; Jurisdiction............................................................................. 58

Section 9.9 Consent to Service of Process ........................................................................... 58

Section 9.10 WAIVERS OF JURY TRIAL .......................................................................... 58

Section 9.11 Severability ....................................................................................................... 58

Section 9.12 No Third Party Beneficiaries ............................................................................ 59

Section 9.13 No Survival of Representations, Warranties and Agreements .......................... 59

Section 9.14 Construction ...................................................................................................... 59

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Section 9.15 Computation of Time ........................................................................................ 59

Section 9.16 Mutual Drafting ................................................................................................ 59

Section 9.17 Disclosure Schedule .......................................................................................... 60

Section 9.18 Headings; Table of Contents ............................................................................. 60

Section 9.19 Counterparts; Facsimile and Email Signatures ................................................. 60

Section 9.20 Time of Essence ................................................................................................ 60

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ASSET PURCHASE AGREEMENT 

This ASSET PURCHASE AGREEMENT (as amended or modified, this “Agreement”) is 

entered into as of October 31, 2024 (the “Execution Date”), by and among BUCA C, LLC, a Florida 

limited liability company (“Parent”), BUCA Texas Restaurants, L.P., a Texas limited partnership 

(“Texas Restaurants”), BUCA Texas Beverage, Inc., a Texas corporation (“Beverage”), BUCA Sales 

& Marketing, LLC, a Florida limited liability company (“Marketing”), BUCA Investments, Inc., a 

Minnesota corporation (“Investments”), BUCA Restaurants, Inc., a Minnesota corporation 

(“Minnesota Restaurants”), BUCA Restaurants 2, Inc., a Minnesota corporation (“Minnesota 

Restaurants Two”), BUCA (CELEBRATION), LLC, a Florida limited liability company 

(“Celebration”), BUCA (EX), LLC, a Florida limited liability company (“Ex”), and BUCA 

(Minneapolis), Inc., a Minnesota corporation (“Minneapolis” and, together with Parent, Texas 

Restaurants, Beverage, Marketing, Investments, Minnesota Restaurants, Minnesota Restaurants Two, 

Celebration, and Ex, “Sellers”, and each are individually a “Seller”), and BDB Intermediate, LLC, 

a Delaware limited liability company (together with its permitted successors, designees and 

assigns, “Buyer”). Sellers and Buyer are referred to herein collectively as the “Parties”. 

Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them 

in ARTICLE I. 

RECITALS 

WHEREAS, Sellers are engaged in the business of owning, operating and franchising a 

chain of family-style Italian-American restaurants under the trade name of “Buca di Beppo” in 

fourteen (14) states and two international locations (collectively, the “Business”); 

WHEREAS, Sellers were previously, but are no longer, Controlled (as defined herein) by 

BUCA, LLC, a Minnesota limited liability company (“BUCA PHI”); 

WHEREAS, Sellers have each commenced proceedings (collectively, the “Chapter 11 

Cases”) under Title 11 of the United States Code, 11 U.S.C. § 101 et seq. (the “Bankruptcy Code”), 

in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division (the 

“Bankruptcy Court”); 

WHEREAS, subject to approval of the Bankruptcy Court and on the terms and subject to 

the conditions set forth herein and pursuant to an anticipated Sale Order and Sale Procedures Order, 

Sellers wish to sell, transfer and assign to Buyer or one or more of its Permitted Designees (as 

defined below), and Buyer wishes to purchase, acquire and assume from Sellers, pursuant to 

Sections 105, 363, 365, and other applicable provisions of the Bankruptcy Code, the Purchased 

Assets and the Assumed Liabilities as of the Closing; 

WHEREAS, on the Closing Date, Buyer will acquire certain assets and assume certain 

liabilities of the Business of Sellers in accordance with the terms of this Agreement; 

WHEREAS, in accordance with this Agreement, on or before the Closing Date, Buyer 

intends to form a series of Affiliated limited liability companies, each of which will be an assignee 

of certain of the Purchased Assets (the “Permitted Designees”); 

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WHEREAS, Sellers intend to seek the entry of an order by the Bankruptcy Court approving 

this Agreement and authorizing Sellers to consummate the Contemplated Transactions upon the 

terms and subject to the conditions set forth herein and in the Sale Order; and 

WHEREAS, the Contemplated Transactions are subject to the approval of the Bankruptcy 

Court and will be consummated only pursuant to the Sale Order to be entered by the Bankruptcy Court. 

NOW, THEREFORE, in consideration of the mutual promises herein made, and in 

consideration of the representations, warranties and covenants herein contained, and other good 

and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the 

Parties, the Parties agree as follows: 

AGREEMENT 

DEFINITIONS 

“Accounts Receivable” means (a) all accounts, accounts receivable, Credit Card 

Receivables, contractual rights to payment, notes, notes receivable, negotiable instruments, chattel 

paper, and vendor rebates of Sellers, and (b) any security interest, claim, remedy or other right 

related to any of the foregoing, but excluding any Accounts Receivable related to Ecolab Inc. 

“Affiliate” when used with reference to another Person means any Person, directly or 

indirectly, through one or more intermediaries, Controlling, Controlled by, or under common 

Control with, such other Person, including those Persons defined and described as an Affiliate or 

Insider in the Bankruptcy Code. 

“Agreement” has the meaning set forth in the preamble. 

“Alternate Transaction” means a transaction or series of related transactions pursuant to 

which Sellers, pursuant to the Sale Procedures Order, (a) accept a Qualified Bid other than that of 

Buyer, as the highest and best offer, or (b) sell, transfer, lease or otherwise dispose of, directly or 

indirectly, including through an asset sale, stock sale, merger, reorganization or other similar 

transaction (by Sellers or otherwise), including pursuant to a Plan or refinancing, all or 

substantially all of the Purchased Assets or the equity interests of any Seller (or agrees to do any 

of the foregoing) in a transaction or series of transactions to a Person or Persons other than Buyer. 

“Assigned Contracts” means the Assigned Prepetition Contracts and the Assigned 

Postpetition Contracts. 

“Assigned Prepetition Contracts” has the meaning set forth in Section 2.6(b). 

“Assigned Postpetition Contracts” has the meaning set forth in Section 2.6(c)(iii). 

“Assignment and Assumption Agreement” has the meaning set forth in Section 2.8(a)(ii). 

“Assumed Contracts” has the meaning set forth in Section 2.6(a)(ii). 

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“Assumed Liabilities” has the meaning set forth in Section 2.3. 

“Assumed Permits” means all Permits relating to the Business that are transferable in 

accordance with their terms, but excluding all Permits to the extent related to any Excluded Asset 

(including any Lease that is not an Assumed Contract). 

“Bankruptcy Code” has the meaning set forth in the recitals. 

“Bankruptcy Court” has the meaning set forth in the recitals. 

“Bill of Sale” has the meaning set forth in Section 2.8(a)(i). 

“BUCA PHI” has the meaning set forth in the recitals. 

“BUCA PHI Customer Programs” means those certain customer gift card program(s) 

offered and managed by BUCA PHI or its Affiliates (other than Sellers) on behalf of certain 

restaurant businesses, including the Business owned and conducted by Sellers, referred to 

collectively as the “Taste of Italy Program”. 

“Business” has the meaning set forth in the recitals. 

“Business Day” means any day other than a Saturday, a Sunday or a day on which banks 

located in Houston, Texas shall be authorized or required by Law to close. 

“Buyer” has the meaning set forth in the preamble. 

“Cash” means all cash and cash equivalents of Sellers as of the Closing. 

“Casualty” has the meaning set forth in Section 5.11(b). 

“Casualty Proceeds” has the meaning set forth in Section 5.11(b). 

“Chapter 11 Cases” has the meaning set forth in the Recitals. 

“Claim” or “claim” means a “claim” as defined in Section 101(5) of the Bankruptcy Code, 

whether arising before or after the Petition Date. 

“Closing” has the meaning set forth in Section 2.7. 

“Closing Date” has the meaning set forth in Section 2.7. 

“Closing Payment” means the Cure Costs that Buyer shall pay at Closing in accordance 

with the terms of this Agreement. 

“COBRA” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the IRC, and 

any similar state Law. 

“Committee” means the Official Unsecured Creditors’ Committee appointed in the 

Chapter 11 Cases. 

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“Condemnation” has the meaning set forth in Section 5.11(a). 

“Condemnation Proceeds” has the meaning set forth in Section 5.11(a). 

“Consent” means any approval, consent, ratification, permission, clearance, designation, 

qualification, waiver or authorization, or an order of the Bankruptcy Court that deems or renders 

unnecessary the same. 

“Contemplated Transactions” means the sale by Sellers to Buyer, and the purchase by 

Buyer from Sellers, of the Purchased Assets. 

“Continuing Restaurant” means any of Sellers’ restaurant locations with respect to which 

the associated Leases are Assigned Contracts. 

“Contract” means any written or oral agreement, contract, lease, sublease, indenture, 

mortgage, instrument, guaranty, loan or credit agreement, note, bond, customer order, purchase 

order, sales order, sales agent agreement, supply agreement, development agreement, joint venture 

agreement, promotion agreement, license agreement, contribution agreement, partnership 

agreement, collective bargaining agreement, or other arrangement, understanding, permission or 

commitment that, in each case, is legally binding. 

“Contract and Cure Schedule” has the meaning set forth in Section 2.6(a)(i). 

“Control” means, when used with reference to any Person, the power to direct the 

management or policies of such Person, directly or indirectly, by or through stock or other equity 

ownership, agency or otherwise, or pursuant to or in connection with any Contract; and the terms 

“Controlling” and “Controlled” shall have meanings correlative to the foregoing. 

“Credit Bid” has the meaning set forth in Section 2.5(a). 

“Credit Card Receivables” means all accounts receivable and other amounts owed to 

Sellers (whether current or non-current) in connection with any customer purchases from any 

Continuing Restaurants operated by Sellers that are made with credit cards or any other related 

amounts owing (including deposits or holdbacks to secure chargebacks, offsets or otherwise) from 

credit card processors to Sellers, including all Credit Card Receivables generated with respect to 

sales occurring during the three days immediately prior to the Closing Date, including any amounts 

received by or payable to Sellers with respect to such sales occurring during such three days 

immediately prior to the Closing Date. 

“Cure Costs” means, for only the Assumed Contracts, all amounts that are determined by 

a final and nonappealable order of the Bankruptcy Court must be paid, pursuant to Sections 

365(b)(1)(A) and (B) of the Bankruptcy Code, in connection with the assumption and/or 

assignment of the Assumed Contracts to Buyer as provided herein. 

“Current Employees” means all employees of Sellers employed as of the day before the 

Closing Date, whether active or not (including those on short-term disability, leave of absence, 

paid or unpaid, or long-term disability). 

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“Debtors” means Sellers, as debtors and debtors in possession in the Chapter 11 Cases. 

“Decree” means any judgment, decree, ruling, decision, opinion, injunction, assessment, 

attachment, undertaking, award, charge, writ, executive order, judicial order, administrative order 

or any other order of any Governmental Entity. 

“Deposits” has the meaning set forth in Section 2.1(g). 

“DIP Credit Agreement” shall have the same meaning given such term in the DIP Order. 

“DIP Lenders” shall have the same meaning given such term in the DIP Order. 

“DIP Obligations” means all “DIP Obligations” as defined in the DIP Order. 

“DIP Order” means (a) the interim order entered by the Bankruptcy Court on or about 

August 7, 2024, approving the DIP Credit Agreement (Docket No. 77, the “Interim Order”); and 

(ii) the order of the Bankruptcy Court approving the DIP Credit Agreement on a final basis on or 

about August 30, 2024 (Docket No. 206, the “Final Order”). 

“Disclosure Schedule” has the meaning set forth in ARTICLE III. 

“Employee Benefit Plan” means any (a) “employee benefit plans” (as defined in Section 

3(3) of ERISA) and any bonus, stock option, stock purchase, restricted stock, equity based, 

incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, 

severance, change in control or other benefit plans, programs or arrangements, and all 

employment, termination, severance, any cafeteria plan or any holiday or vacation plan or practice 

or other contracts or agreements, to which any Seller or any Seller’s ERISA Affiliates is a party, 

with respect to which any Sellers or any Seller’s ERISA Affiliates has any obligation to or which 

are maintained, contributed to or sponsored by any Seller or any Seller’s ERISA Affiliates for the 

benefit of any Current Employee or Former Employee, officer, manager or director of any Seller, 

(b) employee benefit plan, policy or program for which any Seller or any Sellers’ ERISA Affiliates 

could have any liability. 

“Employee Transfer Date” has the meaning set forth in Section 6.4(a). 

“ERISA” means the United States Employee Retirement Income Security Act of 1974. 

“ERISA Affiliate” of any entity means any other entity which, together with such entity, 

would be treated as a single employer under Section 414 of the Internal Revenue Code or Section 

4001 or ERISA. 

“Excalibur Funds” means (a) the Western UNITE HERE and Employers Pension Fund 

established pursuant to that certain Agreement and Declaration of Trust dated as of October 26, 

2023, among the Sacramento Independent Hotel, Restaurant and Tavern Employees Pension Trust, 

the San Diego UNITE-HERE Pension Fund, the San Francisco Culinary Bartenders and Service 

Employees Pension Trust Fund, the Southern Nevada Culinary and Bartenders Pension Trust, and 

the UNITE HERE Northwest Pension Trust Fund, as successor by merger to, among others, the 

Southern Nevada Culinary and Bartenders Pension Trust established pursuant to that certain 

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Agreement and Declaration of Trust dated as of December 2, 1971, as amended, between the 

Nevada Resort Association (or its successor) and the Unions, (b) UNITE HERE HEALTH 

established pursuant to the Seventh Amended and Restated Declaration of Trust dated as of 

October 18, 2012, among the Employer Trustees party thereto, (c) the Southern Nevada Joint 

Management and Culinary and Bartenders Training Fund established pursuant to that certain 

Restated and Amended Declaration of Trust dated as of July 1993, between the Employers party 

thereto under the terms of the applicable Collective Bargaining Agreements, and the Local Joint 

Executive Board of Las Vegas (Culinary Workers Union, Local 226 and Bartenders Union, Local 

165), (d) the Culinary and Bartenders Housing Partnership established pursuant to that certain 

Declaration of Trust dated as of July 23, 2008, between the Employers party thereto under the 

terms of the applicable Collective Bargaining Agreements, and the Local Joint Executive Board 

of Las Vegas (Culinary Workers Union, Local 226 and Bartenders Union, Local 165), and (e) the 

Culinary and Bartenders Legal Service Fund established pursuant to that certain Declaration of 

Trust dated as of July 1, 2019, between the Employers party thereto under the terms of the 

applicable Collective Bargaining Agreements, and the Local Joint Executive Board of Las Vegas 

(Culinary Workers Union, Local 226 and Bartenders Union, Local 165). 

“Excluded Assets” has the meaning set forth in Section 2.2. 

“Excluded Claims” means all causes of action, lawsuits, claims, rights of recovery and 

other similar rights of each Debtor and its bankruptcy estate (a) arising under Chapter 5 of the 

Bankruptcy Code or under any applicable state Law providing for the avoidance and recovery of 

preferential transfers or fraudulent claims, or both, against any party (other than those causes of 

action, lawsuits, claims, rights of recovery and other similar rights of each Debtor that are included 

in the definition of “Purchased Actions”), including all claims and causes of action of the Debtors 

arising under Sections 544 to 550 of the Bankruptcy Code, (b) against any current or former 

officer, member, manager, or director of any of the Debtors or any Affiliate or Subsidiary of any 

of the Debtors (including those causes of action, lawsuits, claims, rights of recovery and other 

similar rights of each Debtor and its bankruptcy estate arising under the PHI MSA), or (c) to the 

extent related to any Excluded Asset or Excluded Liability. 

“Excluded Employee” has the meaning set forth in Section 6.4(b). 

“Excluded Liabilities” has the meaning set forth in Section 2.4. 

“Excluded Restaurants” means any of Sellers’ restaurant locations that are not Continuing 

Restaurants. 

“Former Employees” means all individuals who have been employed by Sellers who are 

not Current Employees. 

“Governmental Entity” means any United States federal, state or local or non-United States 

governmental or regulatory authority, agency, commission, court, body or other governmental 

entity. 

“Health Plans” means all health plans of Sellers including, but not limited to, health, dental, 

life, disability and long-term care insurance. 

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“Insurance Policy” means each primary, excess and umbrella insurance policy, bond and 

other form of insurance owned or held by or on behalf of Sellers and their operations, properties 

and assets, or providing insurance coverage to the Business. 

“Intellectual Property” means any and all rights, title and interest in or relating to 

intellectual property of any type, which may exist or be created under the Laws of any jurisdiction 

throughout the world (including, without limitation, all common-law rights, statutory rights and 

contractual rights related to the following), including: (a) patents and patent applications, together 

with all reissues, continuations, continuations-in-part, divisionals, extensions and reexaminations 

in connection therewith, (b) trademarks, service marks, trade dress, logos, slogans, trade names, 

service names, brand names, Internet domain names and all other source or business identifiers 

and general intangibles of a like nature, along with all applications, registrations and renewals in 

connection therewith, and all goodwill associated with any of the foregoing, (c) rights associated 

with works of authorship, including exclusive exploitation rights, mask work rights, copyrights, 

database and design rights, whether or not registered or published, all registrations and 

recordations thereof and applications in connection therewith, along with all extensions and 

renewals thereof, (d) trade secrets and Recipes and menus, and (e) all other intellectual property 

rights related to the Business, including all social media accounts related to the Business. 

“Intellectual Property Assignments” has the meaning set forth in Section 2.8(a)(iii). 

“Inventory” means all of Sellers’ consumable food, alcoholic beverages, and other 

beverages and raw materials and work-in-process therefor and all of Sellers’ tangible property 

used in the preparation of, serving, and cleaning up from, food and drinks, including napkins, 

silverware, plates and dining ware, cups, glassware, mugs, cooking and cleaning utensils, 

packaging materials, paper products, ingredients, miscellaneous consumables, materials, supplies, 

inventories and other related items or that are otherwise included in the Purchased Assets and are 

permitted to be sold and transferred under applicable Law. 

“IRC” means the United States Internal Revenue Code of 1986, as amended. 

“Law” means any federal, state, provincial, local, municipal, foreign or other law, statute, 

legislation, constitution, principle of common law, resolution, ordinance (including with respect 

to zoning or other land use matters), code, treaty, convention, rule, regulation, requirement, edict, 

directive, pronouncement, determination, proclamation or Decree of any Governmental Entity. 

“Leased Real Property” means all leasehold or sub-leasehold estates and other rights to use 

or occupy any land, buildings, structures, improvements, fixtures or other interest in real property 

of Sellers which is used in the Business. 

“Leases” means all leases, subleases, unexpired leases, unexpired subleases, licenses, 

concessions and other Contracts, including all amendments, extensions, renewals, guaranties and 

other agreements with respect thereto, in each case pursuant to which any Seller holds any Leased 

Real Property. 

“Liability” means all indebtedness, losses, claims, damages, expenses, fines or other 

penalties, costs, royalties, proceedings, deficiencies, duties, obligations, and other liabilities 

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(including those arising out of any Litigation, such as any settlement or compromise thereof or 

judgment or award therein) of a Person (whether absolute, accrued, contingent, fixed, liquidated 

or unliquidated, or otherwise, and whether known or unknown, and whether due or to become due, 

and whether in contract, tort, strict liability, or otherwise, and whether or not resulting from thirdparty claims). 

“Lien” means any mortgage, deed of trust, hypothecation, contractual restriction, pledge, 

lien (statutory or otherwise, including PACA/PASA Claims), encumbrance, interest, charge, 

security interest, put, call, other option, right of first refusal, right of first offer, servitude, right of 

way, easement, conditional sale or installment contract, finance lease involving substantially the 

same effect, security agreement or other encumbrance or restriction on the use, transfer or 

ownership of any property of any type (including real property, tangible property and intangible 

property and including any “Lien” as defined in the Bankruptcy Code). 

“Liquor License Approvals” has the meaning set forth in Section 6.10(a). 

“Liquor Licenses” has the meaning set forth in Section 3.12(b). 

“Litigation” means any action, cause of action, suit, claim, investigation, mediation, audit, 

grievance, demand, hearing or proceeding, whether civil, criminal, administrative or arbitral, 

whether at law or in equity and whether before any Governmental Entity or arbitrator. 

“Main Street Obligations” means, individually or collectively, the DIP Obligations under 

the DIP Credit Agreement and the Prepetition Obligations under the Prepetition Loan Agreement. 

“Management Agreement” means an agreement in the form as shall be reasonably 

acceptable to Buyer and Sellers, and which provides that all costs of operations of the Purchased 

Assets from and after the Closing Date shall be paid on a current basis by Buyer and the economic 

benefit of the operations of the Purchased Assets accrues to Buyer. 

“Material Adverse Effect” means any change, event, effect, development, condition, 

circumstance or occurrence (when taken together with all other changes, events, effects, 

developments, conditions, circumstances or occurrences), that has or could reasonably be expected 

to have a materially adverse effect on (a) the condition (financial or otherwise), business, 

properties, assets or results of operations of Sellers, the Business, or the Purchased Assets, in each 

case taken as a whole, (b) the ability of Sellers or the Debtors, as applicable, to conduct the 

Business consistent with recent history, or (c) the ability of Sellers or the Debtors, as applicable, 

to perform their obligations under this Agreement and the Related Agreements in material 

compliance with the requirements thereof or to consummate the Contemplated Transactions, but 

excluding (i) any change or effect to the extent that it results from or arises out of (A) the 

consequences of the filing of the Chapter 11 Cases and the impact thereof on the condition 

(financial or otherwise), business, properties, assets, or results of operations of Sellers, the 

Business or the Purchased Assets, (B) the execution and delivery of this Agreement or the 

announcement thereof or consummation of the Contemplated Transactions, (C) changes in (or 

proposals to change) Law, generally accepted accounting principles, or other accounting 

regulations or principles, or (D) any action contemplated by this Agreement or taken at the request 

of Buyer, (ii) any change or effect generally applicable to economic or political conditions or the 

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securities or financial markets in any country or region, (iii) any outbreak or escalation of hostilities 

or war or any act of terrorism, or (iv) any failure by the Business to meet any internal or published 

projections, forecasts or revenue or earnings predictions (provided that the underlying causes of 

such failures (subject to the other provisions of this definition) shall not be excluded), in the case 

of clauses (ii) through (iv), which do not disproportionately affect Sellers relative to other industry 

participants. 

“Material Contracts” has the meaning set forth in Section 3.6. 

“Offeree” has the meaning set forth in Section 6.4(a). 

“Ordinary Course of Business” means the ordinary course of business of Sellers consistent 

with past custom and practice and subject to any modifications of such practice as a result of the 

filing of the Chapter 11 Cases. 

“PACA/PASA Claims” means any valid claims against Sellers under the Perishable 

Agricultural Commodities Act of 1930 or any similar state statutes of similar effect or the Packers 

and Stockyards Act of 1921, as amended, 7 U.S.C. § 181, et seq. timely filed and served pursuant 

to an order of the Bankruptcy Court issued in the Chapter 11 Cases. 

“Parties” has the meaning set forth in the preamble. 

“PEO” means any professional employer organization, which is not an Affiliate of Sellers 

and not an Affiliate of BUCA PHI, that employs or directly engages certain Current Employees. 

“Permit” means any franchise, approval, permit, license, order, registration, certificate, 

variance, Consent, exemption or similar right issued, granted, given or otherwise obtained from or 

by any Governmental Entity, under the authority thereof or pursuant to any applicable Law. 

“Permitted Liens” means: (a) Liens for Taxes not yet delinquent or which are being 

contested in good faith by appropriate proceedings, with any such contests and the amounts at 

issue with respect thereto described on Schedule PL, (b) with respect to leased or licensed personal 

property, the terms and conditions of the lease or license applicable thereto to the extent 

constituting an Assigned Contract, (c) mechanics Liens and similar Liens for labor, materials or 

supplies provided with respect to real property incurred in the Ordinary Course of Business or 

otherwise approved by the Bankruptcy Court for amounts which are not delinquent or which are 

being contested in good faith by appropriate proceedings in an aggregate amount not to exceed 

$50,000, (d) with respect to real property, zoning, building codes and other land use Laws 

regulating the use or occupancy of such real property or the activities conducted thereon which are 

imposed by any Governmental Entity having jurisdiction over such real property which are not 

violated by the current use or occupancy of such real property or the operation of the Business, 

except where any such violation would not, individually or in the aggregate, materially impair the 

use, operation or transfer of the affected property or the conduct of the Business thereon as it is 

currently being conducted, and (e) with respect to Leases that constitute Assigned Contracts for 

each Continuing Restaurant, easements, covenants, conditions, restrictions and other similar 

matters affecting such real property and other encroachments that do not or would not materially 

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impair the use or occupancy of such real property or materially interfere with the operation of the 

Business at such real property. 

“Person” means an individual, a partnership, a corporation, a limited liability company, an 

association, a joint stock company, a trust, a joint venture, an unincorporated organization or any 

other entity, including any Governmental Entity or any group or syndicate of any of the foregoing. 

“Petition Date” means the date of the filing of the Chapter 11 Cases. 

“PHI MSA” means the Accounting, Management and Administrative Services Agreement 

dated as of June 30, 2014, between Parent and PB Restaurants, LLC, a Delaware limited liability 

company f/k/a Planet Hollywood International, Inc., as amended, modified or supplemented from 

time to time. 

“PII” has the meaning set forth in Section 6.11. 

“Plan” means a plan of reorganization or liquidation proposed by Sellers and/or any party 

in interest. 

“Postpetition Contract Assignment Agreement” has the meaning set forth in Section 

2.8(a)(vii). 

“Postpetition Contract Schedule” has the meaning set forth in Section 2.6(c)(i). 

“Postpetition Contracts” means all Contracts to which any Seller is a party that were 

entered into on or after the Petition Date, excluding modifications or amendments to any 

Prepetition Contracts entered into on or after the Petition Date. 

“Prepetition Contracts” means all Contracts to which any Seller is a party that were entered 

into prior to the Petition Date, including modifications or amendments to any such Contracts 

entered into on or after the Petition Date. 

“Prepetition Loan Agreement” has the meaning given such term in the DIP Order. 

“Prepetition Obligations” has the meaning given such term in the DIP Order. 

“Purchase Price” has the meaning set forth in Section 2.5. 

“Purchased Actions” means all causes of action, lawsuits, claims, rights of recovery of each 

Debtor and its bankruptcy estate that are not Excluded Claims, including those (a) arising under 

any Assigned Contract, (b) against any current vendor of the Business for goods or services 

provided or performed on, prior to, or after the Petition Date with respect to Continuing 

Restaurants, including those of each Debtor and its bankruptcy estate arising under Chapter 5 of 

the Bankruptcy Code or under any applicable state Law against any such vendor, or (c) arising 

under any Seller Customer Program. 

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“Purchased Assets” has the meaning set forth in Section 2.1; provided, however, that, 

notwithstanding the foregoing or anything contained in this Agreement to the contrary, the 

Purchased Assets shall not include any Excluded Assets. 

“Qualified Bid” means competing qualified bids in accordance with the Sale Procedures 

Order. 

“Qualified Bidder” has the meaning set forth in Sale Procedures Order. 

“Recipes” has the meaning set forth in Section 2.1(g). 

“Records” means the books, records, information, ledgers, files, invoices, documents, work 

papers, correspondence, lists (including customer lists, supplier lists and mailing lists), plans 

(whether written, electronic or in any other medium), drawings, designs, specifications, creative 

materials, advertising and promotional materials, marketing plans, studies, reports, data and 

similar materials related to the Business. 

“Registered” means issued by, registered with, renewed by or the subject of a pending 

application before any Governmental Entity or domain name registrar. 

“Rejected Contracts” has the meaning set forth in Section 2.6(a)(ii). 

“Related Agreements” means the Management Agreement(s), if necessary, the Bill of Sale, 

the Assignment and Assumption Agreement, the Intellectual Property Assignments, the Transition 

Services Agreement, and any other instruments of transfer and conveyance as may be required 

under applicable Law to convey valid title of the Purchased Assets to Buyer. 

“Representative” of a Person means such Person’s Subsidiaries and the officers, directors, 

managers, employees, advisors, representatives (including its legal counsel and its accountants) 

and agents of such Person or its Subsidiaries. 

“Sale Hearing” means the hearing scheduled with the Bankruptcy Court to consider the 

sale portion of the Sale Motion. 

“Sale Motion” means a motion filed by Sellers with the Bankruptcy Court in connection 

with the Chapter 11 Cases requesting the entry of the Sale Procedures Order and the Sale Order. 

“Sale Order” means an order of the Bankruptcy Court entered in the Chapter 11 Cases 

approving the sale to Buyer consistent with the terms of this Agreement and otherwise acceptable 

to Buyer and Sellers. 

“Sale Order Deadline” means November 4, 2024. 

“Sale Procedures” means the procedures approved pursuant to the Sale Procedures Order, 

and satisfactory, in form and substance, to Buyer in its reasonable discretion. 

“Sale Procedures Order” means an order of the Bankruptcy Court, entered at Docket 

No. 177, that, among other things, (a) establishes a date for the Sale Hearing, and (b) establishes 

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procedures for the bidding process, including: (i) the receipt by Sellers of a qualified bid by the 

applicable bid deadline, (ii) the amount of the cash bid required for a qualified bid, (iii) the nature 

of the financial information that potential bidders must submit to consummate a qualified bid, (iv) 

the requirement that for a qualified bid a duly authorized and fully executed purchase agreement 

must be included, with terms that are substantially the same as, not more burdensome in any 

material way than, and no more conditional than, the terms of Buyer’s proposed transaction under 

the terms of this Agreement, and (v) the nature of the information that potential bidders must 

submit to demonstrate their ability to provide adequate assurance of future performance with 

respect to potential Contracts and Leases that may be assumed and assigned. 

“Seller” or “Sellers” has the meaning set forth in the preamble. 

“Seller Customer Programs” means those certain customer gift card programs offered and 

managed by Sellers with respect to the Business. 

“Seller Transaction Expenses” means the collective amounts payable by Sellers (or for 

which any Seller could become liable to pay) for all out-of-pocket fees and expenses incurred in 

connection with the preparation, negotiation, execution and consummation of the Contemplated 

Transactions, including any (a) “Sale Transaction Fee” owing to Stout Capital, LLC under and as 

defined in that certain Letter Agreement between Stout Capital, LLC and Parent, dated as of July 

30, 2024, and (b) “Lease Transaction Fee” owing to Gordon Brothers Realty Services, LLC under 

and as defined in that certain Real Estate Consulting and Advisory Services Agreement, between 

Gordon Brothers Realty Services, LLC and Parent, dated effective as of August 12, 2024. 

“Sellers’ Knowledge” (or words of similar import) means the actual knowledge (after good 

faith inquiry of current employees of Sellers and employees of BUCA PHI and its Affiliates, in 

each case primarily responsible for the subject matter in question) of William Snyder and Soegiono 

Hadiwijaya. 

“Specified Accounts” has the meaning in the definition of Accounts Receivable set forth 

above. 

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, 

partnership, association or other business entity of which (a) if a corporation, a majority of the 

total voting power of shares of stock entitled (without regard to the occurrence of any contingency) 

to vote in the election of directors thereof (or other persons performing similar functions with 

respect to such corporation) is at the time owned or controlled, directly or indirectly, by that Person 

or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited 

liability company, partnership, association or other business entity (other than a corporation), a 

majority of partnership or other similar ownership interest thereof is at the time owned or 

controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a 

combination thereof. A Person or Persons own a majority ownership interest in a business entity 

(other than a corporation) if such Person or Persons shall be allocated a majority of such business 

entity’s gains or losses or shall be or control any managing director, managing member, or general 

partner of such business entity (other than a corporation). The term “Subsidiary” shall include all 

direct or indirect Subsidiaries of such Person, but with respect to Sellers, shall not include 

Restaurant Opportunities, LLC, a Florida limited liability company. 

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“Tax” or “Taxes” means any United States federal, state or local or non-United States 

income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, 

premium, windfall profits, environmental (including taxes under Section 59A of the IRC), customs 

duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, 

real property, personal property, ad valorem, escheat, sales, use, liquor, cigarette, transfer, value 

added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, whether 

computed on a separate or consolidated, unitary or combined basis or in any other manner, 

including any interest, penalty or addition thereto, whether or not disputed. 

“Tax Return” means any return, declaration, report, claim for refund or information return 

or statement relating to Taxes, including any schedule or attachment thereto, and including any 

amendment thereof. 

“Transfer Tax” has the meaning set forth in Section 6.6. 

“Transferred Employee” has the meaning set forth in Section 6.4(a). 

“Transition Services Agreement” means an agreement in the form attached hereto as 

Exhibit G and which provides for the performance by Sellers for the benefit of Buyer and its 

Permitted Designees of certain transition services with respect to the Business following the 

Closing. 

“Unions” means, collectively, Culinary Workers Union, Local 226 and Bartenders Union, 

Local 165. 

“WARN” has the meaning set forth Section 5.4(f). 

PURCHASE AND SALE 

Section 2.1 Purchase and Sale of Purchased Assets. Pursuant to Sections 105, 363 

and 365 of the Bankruptcy Code, on the terms and subject to the conditions set forth in this 

Agreement, at the Closing, Buyer shall purchase, acquire and accept from Sellers, on an “as is, 

where is” basis (except with respect to the representations and warranties made in ARTICLE III) 

and without any representation or warranty on the part of Sellers as to fitness, merchantability, or 

otherwise, and Sellers shall sell, transfer, assign, convey and deliver to Buyer, all of Sellers’ rights, 

title and interests in and to tangible and intangible real and personal property assets used or held 

for use by Sellers in the operation of the Business (the “Purchased Assets”), free and clear of all 

Liens (other than Permitted Liens) and Liabilities (other than Assumed Liabilities), for the 

consideration specified in Section 2.5. Without limiting the generality of the foregoing, the 

Purchased Assets shall include, without limitation, the following (except to the extent it is included 

in the definition of Excluded Assets): 

(a) all Accounts Receivable of Sellers for all Continuing Restaurants as of the 

Closing; 

(b) all Credit Card Receivables for all Continuing Restaurants; 

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(c) all Inventory of Sellers as of the Closing, including all rights of Sellers to 

receive such Inventory, supplies and materials which are on order as of the Closing, but 

excluding: (i) alcoholic beverage Inventory in jurisdictions where the Law does not permit 

Buyer to take title to such Inventory through an asset purchase arrangement, (ii) alcoholic 

beverage Inventory in jurisdictions where the Law does not permit Buyer to take title to 

such Inventory until it obtains the requisite Liquor License Approvals from the pertinent 

Governmental Entity; provided, however, Sellers shall transfer, assign, convey and deliver 

to Buyer such alcoholic beverage Inventories in each instance upon issuance of the relevant 

Liquor License Approval or other authorization from the Bankruptcy Court or relevant 

Governmental Entity, and (iii) Inventory located at a restaurant that is covered by a Lease 

that does not constitute an Assigned Contract; 

(d) (i) all deposits under the Leases at each Continuing Restaurant, (ii) all 

deposits under all Assigned Contracts that are not Leases, and (iii) other prepaid deposits 

(including those made to Sysco Corporation or its Affiliates by or on behalf of Sellers), 

charges and expenses of Sellers with respect to each Continuing Restaurant, including, but 

not limited to, all deposits for electricity, telephone, cable television, internet, Wi-Fi 

services, satellite television and other utilities (collectively, “Deposits”); 

(e) to the maximum extent permitted by the Bankruptcy Code, all Assigned 

Contracts, the rights and benefits accruing thereunder, and all documents related thereto; 

(f) all Intellectual Property owned by Sellers; 

(g) all of Sellers’ recipes, methods, procedures, cooking/preparation/mixing 

publications, guidelines, or standards, knowhow, ingredient lists, menus, price lists, 

nutritional, health, or dietary information, publications, or disclosures, and promotional or 

informational materials, in each case whether related to food, beverages (whether alcoholic 

or non-alcoholic), or otherwise (in each case, written or oral or in any other form 

whatsoever) (collectively, “Recipes”); 

(h) all open purchase orders with suppliers related to the Continuing 

Restaurants; 

(i) all tangible personal property, including all machinery, equipment, tools, 

point of sale systems, computers, mobile phones, personal digital assistants, computer 

equipment, hardware, peripherals, information technology infrastructure, telephone 

systems, furniture, fixtures, furnishings, cutlery, office supplies, production supplies, pots, 

pans, kitchen equipment, other miscellaneous supplies, and other tangible personal 

property of any kind owned by Sellers (including any of the foregoing property that is 

subject to a personal property lease, but only to the extent that Buyer assumes such lease 

as an Assigned Contract), other than tangible personal property located at a restaurant that 

is covered by a Lease that does not constitute an Assigned Contract; 

(j) all rights under leases for all cars, trucks, or other motor vehicles set forth 

on Schedule 2.1(j); 

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(k) all Records, including Records related to Taxes paid or payable by any 

Seller related to the Continuing Restaurants (provided that Sellers are entitled to retain 

copies of all Records and Buyer will make all such Records available to Debtors upon 

reasonable request and at such Debtor’s expense); 

(l) all goodwill associated with the Business and the Purchased Assets, 

including all goodwill associated with the Intellectual Property owned by Sellers and all 

rights under any confidentiality agreements executed by any third party for the benefit of 

any Seller to the extent relating to the Purchased Assets and/or the Assumed Liabilities (or 

any portion thereof); 

(m) all rights of Sellers under non-disclosure or confidentiality, noninterference, 

inventions assignment, non-compete, or non-solicitation agreements with current or former 

employees, directors, consultants, independent contractors and agents of Sellers to the 

extent relating to the Purchased Assets and/or the Assumed Liabilities (or any portion 

thereof); 

(n) all of the Assumed Permits or all of the rights and benefits accruing under 

any Permits relating to the Continuing Restaurants, including all Liquor Licenses to the 

extent transferrable and held by Sellers, other than alcohol permits (including Liquor 

Licenses) in jurisdictions where the Law does not permit Buyer to take title to such Permits 

until it obtains the requisite approvals from the pertinent Governmental Entity, in which case 

Sellers shall transfer, assign convey and deliver to Buyer such Permits, in each instance upon 

issuance of the requisite approvals from the relevant Governmental Entity; 

(o) the amount of, and all rights to any, insurance proceeds received by any of 

Sellers after the Execution Date in respect of (i) the loss, destruction or condemnation of any 

Purchased Assets occurring prior to, on or after the Closing or (ii) any Assumed Liabilities; 

(p) the Purchased Actions; 

(q) all rights under or pursuant to all warranties, representations and guarantees 

made by suppliers, manufacturers, contractors and any other Person to the extent relating 

to equipment purchased, products sold, or services provided, to Sellers, to the extent 

affecting any Purchased Assets and/or Assumed Liabilities; 

(r) the right to receive and retain mail relating to Accounts Receivable 

payments and other communications of Sellers and the right to bill and receive payment 

for services performed but unbilled or unpaid as of the Closing, in each case relating to the 

Continuing Restaurants; 

(s) all telephone numbers, fax numbers, e-mail addresses, websites, URLs and 

internet domain names owned by Sellers or otherwise utilized by Sellers in conducting the 

Business; 

(t) all assets, rights and claims arising from or with respect to Taxes of any 

Seller, including all rights arising from any refunds due from federal, state and/or local 

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Governmental Entities with respect to Taxes paid by Sellers, all deferred tax assets, Tax 

deposits, Tax prepayments and estimated Tax payments; 

(u) the Excalibur Funds; 

(v) all rights, interests or claims with respect to or arising under any Seller 

Customer Program; and 

(w) all other assets that are related to or used in connection with the Business 

(but excluding all of the Excluded Assets). 

Section 2.2 Excluded Assets. Notwithstanding Section 2.1, Buyer expressly 

understands and agrees that Buyer is not purchasing or acquiring, and Seller is not selling or 

assigning, any of the following assets, properties and rights of Sellers (the “Excluded Assets”): 

(a) all Cash; 

(b) all of Sellers’ articles of incorporation, articles of organization, bylaws, 

operating agreements and other organizational documents, qualifications to conduct 

business as a foreign entity, arrangements with registered agents relating to foreign 

qualifications, taxpayer and other identification numbers, seals, minute books, stock 

transfer books, stock certificates and other documents relating to the organization, 

maintenance and existence of any Seller as a corporation, limited liability company, limited 

partnership or other entity; 

(c) all equity securities of any Seller and all net operating losses of any Seller; 

(d) all Rejected Contracts and all Postpetition Contracts designated by Buyer 

as “Excluded” pursuant to Section 2.6(c)(ii) below; 

(e) the Excluded Claims; 

(f) all rights, interests or claims with respect to or arising under the BUCA PHI 

Customer Programs, including any Accounts Receivable with respect thereto; 

(g) any loans or notes payable to any Seller or any of its Affiliates from any 

employee of any Seller or any of its Affiliates (other than Ordinary Course of Business 

employee advances and other than loans or notes from any Transferred Employees); 

(h) any (1) confidential personnel and medical Records pertaining to any 

Current Employees or Former Employees to the extent the disclosure of such information 

is prohibited by applicable Law, (2) other Records that Sellers are required by Law to retain 

and (3) any Records or other documents relating to the Chapter 11 Cases that are protected 

by the attorney-client privilege; provided that Buyer shall have the right to make copies of 

any portions of such retained Records referenced in subsection (2) to the extent that such 

portions relate to the Business or any Purchased Asset; 

(i) all Permits other than the Assumed Permits; 

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(j) any Employee Benefit Plan, including all assets maintained or held 

(including all deposits) pursuant to or in connection with the Health Plans or the 401(k) 

plan(s) of Sellers (except with respect to the Excalibur Funds and as specifically provided 

in Section 6.4(c)(ix) below), and any other employee benefit plan or program of any 

Affiliate of Seller or any Seller’s ERISA Affiliate; 

(k) all Insurance Policies (including with respect to directors and officers 

liability insurance) and all rights, claims and proceeds payable thereunder, except to the 

extent included in the Purchased Assets, including rights to discounts, credits and refunds 

arising from such Insurance Policies; 

(l) the rights of Sellers under this Agreement and the Related Agreements and 

all cash and non-cash consideration payable or deliverable to Sellers under this Agreement; 

and 

(m) any asset owned by BUCA PHI. 

Section 2.3 Assumption of Assumed Liabilities. On the terms and subject to the 

conditions of this Agreement, at the Closing (or, with respect to Assumed Liabilities under 

Assigned Contracts or Assumed Permits that are assumed by Buyer after the Closing, such later 

date of assumption as provided in Section 2.6), and provided that the following shall not include 

any Excluded Claims, as of the Closing, the following obligations of Sellers related to the 

Purchased Assets acquired in respect of such Closing, and no others shall be assumed by Buyer 

(or, in the case of clause (g) below, Buyer’s wholly-owned Subsidiary, BDB Excalibur, LLC, a 

Delaware limited liability company (“BDB Excalibur”) (the “Assumed Liabilities”):

(a) all Liabilities arising under the Assigned Contracts existing from and after 

the Closing (but not arising out of any breach or default thereof prior to the Closing and 

not with respect to any obligations thereunder that are required to be performed by Sellers 

on or prior to the Closing); 

(b) all Liabilities of Sellers under the Seller Customer Programs; 

(c) all Liabilities of Sellers with respect to utilities for the Continuing 

Restaurants, whether arising prior to, on or after the Petition Date; 

(d) all Liabilities as of the Closing with respect to trade payables incurred by 

Sellers in the ordinary course of business and arising from and after the Petition Date, 

which, after application of applicable Deposits, aggregates no more than $300,000.00; 

(e) all Liabilities as of the Closing for accrued but unpaid base wages, base 

salary and benefits owing to Transferred Employees and Excluded Employees and arising 

from and after the Petition Date, in an aggregate amount not to exceed $1,950,000.00; 

(f) all Liabilities as of the Closing for accrued but unpaid sales Taxes arising 

from and after the Petition Date, in an aggregate amount not to exceed $970,000.00; 

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(g) all Taxes owed to any Tax authority assessed with respect to the Purchased 

Assets for any period ending after the Closing Date; provided that to the extent any Taxes 

relate to a Tax period that begins prior to the Closing Date and ends after the Closing Date, 

Sellers and Buyer agree to work in good faith to pro rate the amounts payable by each Party 

pursuant to the terms of this Agreement; 

(h) all Liabilities of Ex under the Excalibur Funds and the Unions, but with 

respect to any unfunded Liabilities of Ex owed to (i) the Excalibur Funds as of the Closing, 

such unfunded Liabilities assumed by BDB Excalibur shall not exceed an aggregate 

amount to be agreed upon between Sellers and Buyer prior to the Closing, and (ii) the 

Unions as of the Closing, such unfunded Liabilities assumed by BDB Excalibur shall not 

exceed $15,000 in the aggregate; and 

(i) all Cure Costs payable with respect to Assigned Prepetition Contracts, 

including Cure Costs for Assigned Prepetition Contracts that are Leases. 

Section 2.4 Excluded Liabilities. Notwithstanding anything herein to the contrary, 

except for the Assumed Liabilities, the Parties expressly acknowledge and agree that Buyer shall 

not assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable 

or responsible for any Liabilities of Sellers whatsoever associated with the Purchased Assets, the 

Business or with respect to any other properties, rights, contracts or other assets of Sellers, existing 

on the Closing Date, including but not limited to any of the following Liabilities which, in each 

case, Sellers shall expressly retain (a) all Taxes owed by Sellers to any Tax authority for any period 

ending on or prior to the Closing Date, (b) all Liabilities of Sellers related to the Excluded Assets, 

whether such Liabilities arise before or after the Closing Date, (c) all Liabilities of Sellers owing 

to Parent or any of its Affiliates, (d) all Liabilities of Sellers under the PHI MSA, (e) all Liabilities 

of Sellers under the BUCA PHI Customer Programs, (f) all Liabilities with respect to any current 

or former employee of or other individual service provider providing services to any Seller, any 

Seller’s ERISA Affiliate or any Affiliate of any Seller or arising at any time except for obligations 

incurred by Buyer with respect to Transferred Employees due to events occurring with Buyer after 

Closing, (g) all Liabilities with respect to Seller Transaction Expenses, and (h) all Liabilities or 

obligations with respect to any Employee Benefit Plan (other than as provided under Section 

2.3(e)) and any other employee benefit plan, program or policy of any Affiliate of Seller or any 

Seller’s ERISA Affiliate (all such liabilities that Buyer is not assuming being referred to 

collectively as the “Excluded Liabilities”).

Section 2.5 Consideration. In consideration of the sale of the Purchased Assets to 

Buyer, and in reliance upon the representations, warranties, covenants and agreements of Sellers 

set forth herein, and upon the terms and subject to the conditions set forth herein, the aggregate 

consideration for the sale and transfer of the Purchased Assets (the “Purchase Price”) shall be 

composed of the following:

(a) a credit bid, on a dollar-for-dollar basis, of $27,000,000.00 with respect to 

the Main Street Obligations (the “Credit Bid”); 

(b) all Cure Costs payable in cash with respect to Assigned Prepetition 

Contracts, including Cure Costs for Assigned Prepetition Contracts that are Leases; and 

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(c) the assumption by Buyer of the Assumed Liabilities (other than the Cure 

Costs). 

Section 2.6 Assignment and Assumption of Contracts; Excluded Locations. 

(a) Assignment and Assumption of Prepetition Contracts at Closing. 

(i) Schedule 2.6(a)(i) attached hereto sets forth (x) each Prepetition 

Contract (including each Lease) to which any Seller is a party or by which any 

Seller is bound and that is used in or related to the Business or any of the Purchased 

Assets, (y) all Cure Costs (if any) for each such Prepetition Contract and (z) a 

detailed description of each such Prepetition Contract (such schedule is referred to 

herein as the “Contract and Cure Schedule”). 

(ii) By October 16, 2024, Buyer shall have delivered notice to Sellers 

(including by e-mail notice from Buyer’s counsel to Sellers’ counsel), which Sellers 

shall then file with the Bankruptcy Court, designating each Prepetition Contract on 

the Contract and Cure Schedule as “Assumed” or “Rejected.” Each Prepetition 

Contract so designated as “Assumed” is referred to herein as an “Assumed 

Contract”; and each Prepetition Contract so designated as “Rejected” is referred to 

herein as a “Rejected Contract.” Notwithstanding the foregoing, Buyer shall have 

the right (in its sole and absolute discretion) to change any such designation and to 

notify the Sellers in writing of any such change until Closing in which case such 

Prepetition Contract shall become an Assumed Contract or a Rejected Contract as 

indicated by such changed designation. 

(iii) Sellers shall provide timely and proper written notice of the 

procedures for the assumption and assignment of Prepetition Contracts to parties to 

all Prepetition Contracts and will take all other actions necessary to cause all 

Assumed Contracts to be assumed by Sellers (to the extent not already assumed 

pursuant to prior Bankruptcy Court order(s)) and assigned to Buyer. Buyer shall, 

at or prior to Closing, comply with all requirements under Section 365 of the 

Bankruptcy Code necessary to assign to Buyer the Assumed Contracts. 

(iv) Sellers shall be responsible for the verification of all Cure Costs for 

each Assumed Contract and shall use commercially reasonable efforts to correctly 

calculate the proper Cure Costs, if any, for each Assumed Contract prior to the 

filing of the Contract and Cure Schedule. To the extent that any Assumed Contract 

requires the payment of Cure Costs in order to be assumed pursuant to Section 365 

of the Bankruptcy Code, whether determined prior to or after the Closing, the Cure 

Costs related to such Assumed Contract, or any portion thereof, shall be paid by 

Buyer (if the Cure Costs are Assumed Liabilities) on such date that the Assumed 

Contract is assumed by the applicable Seller and assigned to Buyer or on such other 

date as agreed to between Buyer and the counterparty to such Assumed Contract. 

Buyer shall be responsible for providing adequate assurances of future performance 

and any other cure of a nonmonetary nature (in addition to any Cure Cost) with 

regard to an Assumed Contract that requires any action other than the payment of 

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money, and shall be confirmed and agreed to by Buyer at or before the Closing or 

at such subsequent time when such Assumed Contract is assumed by Sellers and 

assigned to Buyer. 

(v) At Closing, Sellers shall, pursuant to the Sale Order and the 

Assignment and Assumption Agreement(s) and other transfer and assignment 

documents requested by Buyer, assign to Buyer (the consideration for which is 

included in the Purchase Price), and Buyer shall assume from Sellers (to the extent 

not already assumed pursuant to prior Bankruptcy Court order(s)), each of the 

Assumed Contracts. 

(b) Assigned Prepetition Contracts. Unless otherwise agreed by Sellers and 

Buyer, at the Closing, Sellers shall promptly cause all Rejected Contracts to be rejected 

pursuant to Section 365 of the Bankruptcy Code or as soon after Closing as practicable. 

On each date that each Assumed Contract is assumed and assigned to Buyer pursuant to 

this Section 2.6 (including, without limitation, the approval of the assumption and 

assignment thereof by the Bankruptcy Court), such Assumed Contract shall constitute an 

“Assigned Prepetition Contract” and shall be an Assigned Prepetition Contract for all 

purposes under this Agreement; provided that no Assumed Contract shall be assigned or 

transferred pursuant to this Agreement unless the Bankruptcy Court has previously 

approved the assumption and assignment thereof to Buyer. 

(c) Assignment of Postpetition Contracts at Closing. 

(i) Schedule 2.6(c)(i) attached hereto sets forth (x) each Postpetition 

Contract to which any Seller is a party or by which any Seller is bound and that is 

used in or related to the Business or any of the Purchased Assets, and (y) a 

description of each such Postpetition Contract (such schedule is referred to herein 

as the “Postpetition Contract Schedule”). 

(ii) No later than two (2) days prior to the Sale Hearing, Buyer shall, by 

delivering written notice to Sellers, designate each Postpetition Contract on the 

Postpetition Contract Schedule as “Purchased” or “Excluded.” Notwithstanding 

the foregoing, Buyer shall have the right (in its sole and absolute discretion) to 

change any such designation and to notify the Sellers in writing of any such change 

until Closing in which case such Postpetition Contract shall become an Assigned 

Postpetition Contract (as defined below) or an Excluded Asset as indicated by such 

changed designation. 

(iii) At Closing, or at such later date upon which Sellers obtain any 

necessary consent of a counterparty to a Postpetition Contract, Sellers shall, 

pursuant to the Sale Order and the Postpetition Contract Assignment Agreement(s) 

and other transfer and assignment documents requested by Buyer, assign to Buyer 

(the consideration for which is included in the Purchase Price), and Buyer shall 

assume from Sellers, each of the Postpetition Contracts designated by Buyer as 

“Purchased” pursuant to Section 2.6(c)(ii), and each such Postpetition Contract 

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shall constitute an “Assigned Postpetition Contract” and shall be an Assigned 

Postpetition Contract for all purposes under this Agreement. 

(d) Non-Assignment of Postpetition Contracts and Permits. Notwithstanding 

anything contained in this Agreement to the contrary, this Agreement shall not constitute 

an agreement to assign or transfer any Postpetition Contract or any Permit, if an attempt at 

assignment or transfer thereof, without the consent or approval required or necessary for 

such assignment or transfer, would constitute a breach thereof or in any way adversely 

affect any of the rights of Buyer (unless the restrictions on assignment or transfer 

thereunder would be rendered ineffective pursuant to Bankruptcy Code Sections 363 or 

365 or Sections 9-406 through 9-409, inclusive, of the Uniform Commercial Code, as 

amended), as the assignee or transferee of such Postpetition Contract or Permit (as the case 

may be) thereunder. From and after the Execution Date, including through and after the 

Closing, Sellers shall use their respective reasonable best efforts to obtain all consents or 

approvals that are required with respect to Assigned Postpetition Contracts and Permits for 

Sellers to assign to Buyer such Assigned Postpetition Contracts and Permits. For the 

avoidance of doubt, nothing in this Section 2.6(d) shall be deemed to (x) limit the Liability, 

if any, of Sellers pursuant to this Agreement for failing to have obtained any required 

consent or approval or (y) alter or limit any rights of Buyer under Section 8.1. 

(e) Excluded Locations. As of the Closing, (i) any of Sellers’ restaurant 

locations with respect to which the associated Leases have been designated by Buyer as 

Assumed Contracts shall be deemed to have been classified as Continuing Restaurants, and 

(ii) any of Sellers’ restaurant locations with respect to which the associated Leases have 

been classified as Rejected Contracts shall be deemed to have been classified as Excluded 

Restaurants. 

Section 2.7 Closing. The closing of the Contemplated Transactions (the “Closing”) 

shall take place remotely by electronic exchange of counterpart signature pages on the first 

Business Day on which all conditions to the obligations of Sellers and Buyer to consummate the 

Contemplated Transactions set forth in ARTICLE VII shall have been satisfied or waived (other 

than conditions with respect to actions Sellers and/or Buyer will take at the Closing itself, but 

subject to the satisfaction or waiver of those conditions) (the “Closing Date”). The Closing shall 

occur at 11:00 a.m. Central Time on the Closing Date, but shall be deemed to have occurred at 

12:01 a.m. (prevailing time at each Continuing Restaurant) on the Closing Date, or at such other 

time or on such other date as shall be mutually agreed upon by Sellers and Buyer prior thereto, 

subject to Section 8.1(e). 

Section 2.8 Deliveries at Closing. 

(a) At the Closing, Sellers shall deliver to Buyer and/or its Permitted Designees 

the following documents and other items, duly executed by Sellers, as applicable: 

(i) one or more Bills of Sale substantially in the form of Exhibit A 

attached hereto (each, a “Bill of Sale”) (if requested by Buyer, Sellers shall execute 

a separate Bill of Sale with respect to each Continuing Restaurant); 

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(ii) one or more Assignment and Assumption Agreements substantially 

in the form of Exhibit B attached hereto (each, an “Assignment and Assumption 

Agreement”) (if requested by Buyer, Sellers shall execute a separate Assignment and 

Assumption Agreement with respect to each Continuing Restaurant); 

(iii) instruments of assignment substantially in the forms of Exhibit C 

and Exhibit D attached hereto for each Registered trademark and domain name, 

respectively, transferred or assigned hereby and for each pending application 

therefor (collectively, the “Intellectual Property Assignments”); 

(iv) instruments of assignment reasonably requested by Buyer pursuant 

to which each Seller assigns any right, title or interest in any other Intellectual 

Property of such Seller; 

(v) a completed and duly executed IRS Form W-9 from each Seller; 

(vi) if deemed necessary by Buyer, one or more Management 

Agreements substantially in the form of Exhibit E; 

(vii) one or more Postpetition Contract Assignment and Assumption 

Agreements substantially in the form of Exhibit F attached hereto (each, a 

“Postpetition Contract Assignment Agreement”); 

(viii) the Transition Services Agreement; 

(ix) originals (or, to the extent originals are not available, copies) of all 

Assigned Contracts (together with all material amendments, supplements or 

modifications thereto) to the extent not otherwise already made available to Buyer; 

(x) physical possession of all of the Purchased Assets capable of passing 

by delivery with the intent that title in such Purchased Assets shall pass by and upon 

delivery; 

(xi) certificates of title and title transfer documents to all titled motor 

vehicles included within the Purchased Assets; and 

(xii) all other documents, instruments and writings reasonably requested 

by Buyer to be delivered by Sellers at or prior to the Closing pursuant to this 

Agreement. 

(b) At the Closing, Buyer shall deliver to Sellers, or the designated third-party 

recipients pursuant to Section 2.5, the following documents, cash amounts and other items, 

duly executed by Buyer, as applicable: 

(i) the Bill(s) of Sale; 

(ii) the Assignment and Assumption Agreement(s); 

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(iii) the Closing Payment by wire transfer of immediately available 

funds to an account designated by Sellers; 

(iv) if deemed necessary by Buyer, one or more Management 

Agreements substantially in the form of Exhibit E;

(v) the Postpetition Contract Assignment Agreement(s); 

(vi) the Transition Services Agreement; and

(vii) all other documents, instruments and writings reasonably requested 

by Sellers to be delivered by Buyer at or prior to the Closing pursuant to this 

Agreement. 

Section 2.9 Allocation. Within 90 calendar days after the Closing Date, Buyer shall in 

good faith prepare an allocation of the Purchase Price (and all capitalized costs and other relevant 

items) among the Purchased Assets in accordance with Section 1060 of the IRC and the Treasury 

Regulations thereunder (and any similar provision of United States state or local or non-United 

States Law, as appropriate) and deliver a copy of same to Sellers. Sellers shall have 15 days 

following receipt of Buyer’s proposed allocation to review and comment on such proposed 

allocation and Buyer shall consider such comments in good faith. Thereafter, Buyer shall provide 

Sellers with Buyer’s final allocation schedule. Sellers shall also retain the right to dispute Buyer’s 

proposed and final allocations, with any unresolved dispute to be determined by the Bankruptcy 

Court. Buyer and Sellers shall report, act and file Tax Returns (including Internal Revenue Service 

Form 8594) in all respects and for all purposes consistent with such allocation. Neither Buyer nor 

Sellers shall take any position (whether in audits, Tax Returns or otherwise) which is inconsistent 

with such allocation unless required to do so by applicable Law; provided, however, that the 

foregoing shall not limit the ability of Buyer or Sellers to settle or compromise any matter with 

respect to any Tax related audit or other proceeding with any Governmental Entity.

SELLERS’ REPRESENTATIONS AND WARRANTIES 

Each Seller, jointly and severally, represents and warrants to Buyer that except as set forth 

in the disclosure schedule accompanying this Agreement (the “Disclosure Schedule”): 

Section 3.1 Organization of Sellers; Good Standing. 

(a) Except as set forth on Schedule 3.1 of the Disclosure Schedule, each Seller 

is duly incorporated or formed, validly existing and in good standing under the Laws of its 

state of incorporation or formation and has all necessary power and authority to own, lease 

and operate its properties and to conduct its business in the manner in which its Business 

is currently being conducted. A Seller’s failure to be in good standing, as reflected on 

Schedule 3.1 of the Disclosure Schedule, does not have a Material Adverse Effect nor does 

it materially adversely affect the Sellers’ ability to enter into the Contemplated 

Transactions or perform is obligations hereunder. Each Seller has all requisite corporate, 

limited liability company, limited partnership, or similar power and authority to own, lease 

and operate its assets and to carry on the Business as currently conducted. 

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(b) Each Seller is duly authorized to do business and is in good standing as a 

foreign corporation, limited liability company or limited partnership in each jurisdiction 

where the ownership or operation of the Purchased Assets or the conduct of the Business 

requires such qualification, except for failures to be so authorized or be in such good 

standing, as would not, individually or in the aggregate, have a Material Adverse Effect. 

Section 3.2 Authorization of Transaction. Subject to the Sale Order having been 

entered and still being in effect and not subject to any stay pending appeal at the time of Closing:

(a) each Seller has all requisite power and authority to execute and deliver this 

Agreement and all Related Agreements to which it is a party and to perform its obligations 

hereunder and thereunder; the execution, delivery and performance of this Agreement and 

all Related Agreements to which such Seller is a party have been duly authorized by such 

Seller and no other action on the part of such Seller is necessary to authorize this Agreement 

or the Related Agreements to which it is party or to consummate the Contemplated 

Transactions; and 

(b) this Agreement has been duly and validly executed and delivered by each 

Seller, and, upon its execution and delivery in accordance with the terms of this Agreement, 

each of the Related Agreements to which any Seller is a party will have been duly and 

validly executed and delivered by each such Seller, as applicable. Assuming that this 

Agreement constitutes a valid and legally-binding obligation of Buyer, this Agreement 

constitutes the valid and legally-binding obligations of Sellers, enforceable against Sellers in 

accordance with its terms and conditions, subject to applicable bankruptcy, insolvency, 

moratorium or other similar Laws relating to creditors’ rights and general principles of equity. 

Assuming, to the extent that a Seller is a party thereto, that each Related Agreement constitutes 

a valid and legally-binding obligation of Buyer, each Related Agreement to which any Seller 

is a party, when executed and delivered, constituted or will constitute the valid and legallybinding obligations of such Seller, as applicable, enforceable against each such Seller, as 

applicable, in accordance with their respective terms and conditions, subject to applicable 

bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and 

general principles of equity. 

Section 3.3 Noncontravention. Neither the execution and delivery of this Agreement, 

nor the consummation of the Contemplated Transactions (including the Related Agreements), will, 

subject to the Sale Order having been entered and still being in effect and not subject to any stay 

pending appeal at the time of Closing, (a) conflict with or result in a breach of the certificate or 

articles of incorporation, organization or formation, by-laws, operating agreement, or other 

organizational documents of any Seller, (b) violate any Law to which any Seller is, or its respective 

assets or properties are, subject, or (c) subject to the entry of the Sale Order, conflict with, any 

Assumed Contract, and, in the case of clause (b) or (c), for such conflicts, breaches, defaults, 

accelerations, rights or failures to give notice as would not, individually or in the aggregate, have 

a Material Adverse Effect.

Section 3.4 Compliance with Laws. Except as set forth on Schedule 3.4 of the 

Disclosure Schedule, Sellers are and have been in compliance in all material respects with all 

applicable Laws applicable to the Business or the Purchased Assets. To Sellers’ Knowledge, no 

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Seller has received any oral or written notice or other written communication from any 

Governmental Entity or other Person (a) asserting any violation of, or failure to comply with, any 

requirement of any Law, or (b) notifying such Seller that it is under governmental investigation 

with respect to the violation of any applicable Permit. 

Section 3.5 Title to Purchased Assets. Sellers, as of the Closing, will have good and 

valid title to, or, in the case of leased assets, will have good and valid leasehold interests in, the 

Purchased Assets, free and clear of all Liens (except for Permitted Liens) and Liabilities (other 

than Assumed Liabilities), subject to entry of the Sale Order. At the Closing or such time as title 

is conveyed under Section 2.7, Sellers will transfer, sell, assign and convey, subject to the Sale 

Order having been entered and still being in effect and not subject to any stay pending appeal at 

such time, good and valid title to, or valid leasehold interests in, all of the Purchased Assets, free 

and clear of all Liens (except for Permitted Liens) and Liabilities (other than Assumed Liabilities), 

to the fullest extent permissible under Section 363(f) of the Bankruptcy Code and subject to the 

rights of licensees under Section 365(n) of the Bankruptcy Code.

Section 3.6 Contracts. Schedule 3.6 of the Disclosure Schedule sets forth the 

following Contracts (all Contracts listed or required to be listed herein are referred to as “Material 

Contracts”) as of the Execution Date: 

(a) all Leases (including all amendments thereto) that pertain to each 

Continuing Restaurant; 

(b) all Contracts under which any Seller leases personal property in connection 

with the Business; 

(c) all Contracts that provide for payments in excess of $100,000 over a 12-

month period; 

(d) all Contracts that are material to the operation of the Business, in the 

reasonable discretion of Sellers, and that Sellers’ counterpart(y)(ies) may terminate without 

more than 90 days’ prior notice without a breach thereof by Sellers; 

(e) all Contracts between any Seller, on the one hand, and BUCA PHI or any 

Affiliate of BUCA PHI, on the other; 

(f) all Contracts for the sale of any Purchased Assets or for the grant to any 

Person of any option, right of first refusal or preferential or similar right to purchase any 

of the Purchased Assets; 

(g) all franchise agreements or other similar Contracts relating to the Business; 

(h) all employment, confidentiality, and/or noncompetition Contracts with 

employees of any Seller and Contracts with independent contractors or consultants (or 

similar arrangements) engaged in connection with the Business, in each case providing for 

cash compensation exceeding $25,000 per year; 

(i) all Contracts with any PEO; 

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(j) all collective bargaining agreements related to the Business; 

(k) all Contracts with any material supplier of the Business; 

(l) all Postpetition Contracts (which, for the avoidance of doubt, shall be 

separately identified on Schedule 3.6 of the Disclosure Schedule); 

(m) all Contracts with any Governmental Entity related to the Business; and 

(n) all other Contracts that are material to the operation of the Business at the 

Continuing Restaurants and not previously disclosed pursuant to this Section 3.6. 

To Sellers’ Knowledge, and except as set forth on Schedule 3.6 of the Disclosure Schedule, each 

of the Material Contracts is in full force and effect and is the legal, valid and binding obligation of 

the applicable Seller and, to Sellers’ Knowledge, of the other parties thereto, enforceable against 

each of them in accordance with its terms, and upon consummation of the Contemplated 

Transaction, shall continue in full force and effect without penalty or other adverse consequences. 

Except as set forth on Schedule 3.6 of the Disclosure Schedule, no Seller is in material default 

under any Material Contract, nor, to Sellers’ Knowledge, is any other party to any Material 

Contract in breach of or default thereunder, and no event has occurred that with the lapse of time 

or the giving of notice or both would constitute a breach or default by any Seller or any other party 

thereunder. Except as set forth on Schedule 3.6 of the Disclosure Schedule, no party to any of the 

Material Contracts has exercised any termination rights with respect thereto, and no party has given 

notice of any significant dispute with respect to any Material Contract. Sellers have and will 

transfer to Buyer at the Closing, good and valid title to the Assigned Contracts, free and clear of 

all Liens (other than Permitted Liens) and Liabilities (other than Assumed Liabilities). To Sellers’ 

Knowledge and except as set forth on Schedule 3.6 of the Disclosure Schedule, Sellers have 

delivered to Buyer true, correct and complete copies of all of the Material Contracts, together with 

all amendments, modifications or supplements thereto. 

Section 3.7 Intellectual Property. 

(a) To Sellers’ Knowledge and except for those items of Intellectual Property 

described in clause (d) of the definition thereof, Schedule 3.7 of the Disclosure Schedule 

sets forth a true and complete list of (i) all material items of Intellectual Property that are 

owned by any Seller or used in or related to the Business, (ii) all material Contracts 

pursuant to which any Seller obtains the right to use any Intellectual Property, excluding 

licenses for off-the-shelf software, and (iii) all material Contracts pursuant to which any 

Seller grants to any other Person the right to use any Intellectual Property. To Sellers’ 

Knowledge, except for any Intellectual Property owned by Buyer, Sellers own all such 

Intellectual Property free and clear of all Liens (except for Permitted Liens) and Liabilities 

(other than Assumed Liabilities) and subject to entry of the Sale Order, and all such 

Intellectual Property is valid, subsisting and, to Sellers’ Knowledge, enforceable, and is 

not subject to any outstanding Decree adversely affecting Sellers’ use thereof or rights 

thereto. 

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(b) To Sellers’ Knowledge and except as set forth on Schedule 3.7 of the 

Disclosure Schedule, none of the use of the Intellectual Property included in the Purchased 

Assets, the conduct of the Business as currently conducted, nor any of the products sold or 

services provided by Sellers or any of their Affiliates in connection therewith, infringes 

upon or otherwise violates the Intellectual Property of any other Person. To Sellers’ 

Knowledge and except as set forth on Schedule 3.7 of the Disclosure Schedule, no third 

party is infringing any Intellectual Property owned by any Seller and included in the 

Purchased Assets, except as would not reasonably be expected to have a Material Adverse 

Effect. 

Section 3.8 Litigation. Schedule 3.8 of the Disclosure Schedule sets forth all 

unresolved material Litigation brought by or against the Business, the Purchased Assets, or any 

Seller. 

Section 3.9 Employees and Employment Matters. 

(a) Schedule 3.9 of the Disclosure Schedule sets forth a list as of the Execution 

Date of all employees of Sellers and their respective (i) titles, responsibilities, and 

classification as exempt or non-exempt, (ii) dates of hire, (iii) current base salary or wages, 

and whether they are paid hourly or salary, (iv) all bonuses, commissions, and incentive 

compensation paid during 2024, (v) accrued vacation and sick leave, and (vi) the restaurant 

location at which such employee performs services. To Sellers’ Knowledge and except as 

set forth on Schedule 3.9 of the Disclosure Schedule, no Seller is a party to or bound by 

any collective bargaining agreement covering the Current Employees (as determined as of 

the Execution Date), nor is there any ongoing strike, walkout, work stoppage, or other 

material collective bargaining dispute affecting any Seller with respect to the Business. To 

Sellers’ Knowledge, there is no organizational effort being made or threatened by or on 

behalf of any labor union with respect to the Current Employees (as determined as of the 

Execution Date). 

(b) Except in any case where the failure to be in compliance would not have a 

Material Adverse Effect or as set forth on Schedule 3.9 of the Disclosure Schedule, Sellers 

are and have been in compliance with all applicable Laws relating to employment of labor, 

including all applicable Laws relating to wages, hours, overtime, collective bargaining, 

employment discrimination, harassment, reasonable accommodations, statutory leave, 

civil rights, safety and health, workers’ compensation, pay equity, and classification of 

employees and independent contractors. No individual providing services to Sellers is 

classified as an independent contractor. 

(c) To Sellers’ Knowledge, there are no (and during the three years preceding 

the date hereof, there have not been any) pending or threatened (i) unfair labor practice 

complaints against Sellers before the National Labor Relations Board or any other 

Governmental Authority, (ii) charges with respect to or relating to any Seller’s employment 

practices before the Equal Employment Opportunity Commission, any state fair 

employment practice agency or any other Governmental Authority, or (iii) employment 

claims, investigations, or actions, including, without limitation with respect discrimination, 

harassment, reasonable accommodations, statutory leave, civil rights, safety and health, 

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workers’ compensation, payment of wages, salary, overtime pay or other wage and hour 

issues with respect to any current or former employees of Sellers. To Sellers’ Knowledge, 

no Occupational Safety and Health Administration investigations have been made of any 

Seller during the past three (3) years. 

(d) Sellers have not received during the past three (3) years any written notice 

that any Seller is or has been the subject of any inspection or, to Sellers’ Knowledge, 

investigation, relating to its compliance with or violation of the Immigration Reform and 

Control Act of 1986 and all related Laws promulgated thereunder (the “Immigration 

Laws”), nor has any Seller been warned in writing, fined or otherwise penalized by reason 

of any failure to comply with the Immigration Laws, nor is any such Proceeding pending 

or, to Sellers’ Knowledge, threatened. Sellers are in compliance with all Immigration Laws. 

Each Current Employee is (A) a United States citizen; (B) a lawful permanent resident of 

the United States; or (C) an alien authorized to work in the United States either specifically 

for Seller or for any United States employer. Sellers have completed a Form I-9 

(Employment Eligibility Verification) for each Current Employee and each such Form I-9 

has since been updated as required by applicable Law and is correct and complete as of the 

Execution Date. 

Section 3.10 Employee Benefit Plans. 

(a) Except as set forth on Schedule 3.10(a) of the Disclosure Schedule, none of 

Sellers nor any of their ERISA Affiliates has ever maintained or had an obligation to 

contribute to or has, ever had or could have any Liability with respect to (i) a “single 

employer plan” (as such term is defined in Section 4001(a)(15) of ERISA) or any plan 

subject to Section 412 of the IRC or Section 302 of Title I of ERISA, (ii) any plan subject 

to Title IV of ERISA, (iii) a “multiple employer plan” (meaning a plan sponsored by more 

than one employer within the meaning of ERISA Sections 4063 or 4064 or Section 413(c) 

of the IRC), (iv) a “multiemployer plan” (as such term is defined in Sections 3(37) or 

4001(a)(3) of ERISA) (a “Multiemployer Plan”), (v) a “multiple employer welfare 

arrangement” (as such term is defined in Section 3(40) of ERISA), or (vi) a funded welfare 

benefit plan (as such term is defined in Section 419 of the IRC). 

(b) To Sellers’ Knowledge. each Employee Benefit Plan and all related trusts 

have been maintained, funded and administered, in accordance with the terms of such 

Employee Benefit Plan and applicable Law. Each Employee Benefit Plan may be amended 

or terminated without any liability to Buyers. Each Employee Benefit Plan that is a group 

health plan has at all times complied, with the requirements of IRC Section 4980H, 

including the distribution of a “summary of benefits and coverage” to employees and 

calculations of full-time employees and full-time equivalent employees, and no “Employer 

Shared Responsibility” payments described in IRC Section 4980H have been incurred. 

There are no facts or circumstances that would be reasonably likely to subject Sellers to 

any assessable penalty or payment under Section 4980H of the IRC with respect to any 

period prior to the Closing. Sellers and each Employee Benefit Plan that is a “group health 

plan” as defined in Section 733(a)(1) of ERISA (an “Employee Health Plan”) (i) are 

currently in material compliance with the Patient Protection and Affordable Care Act 

(“PPACA”), the Health Care and Education Reconciliation Act of 2010 (“HCERA”) and 

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all regulations and guidance issued thereunder (collectively, with PPACA and HCERA, 

the “Healthcare Reform Laws”), (ii) have been in material compliance with applicable 

Healthcare Reform Laws since March 23, 2010, and (iii) no event has occurred and, to any 

Sellers’ Knowledge, no condition or circumstance exists, that could reasonably be expected 

to subject Sellers or any Employee Health Plan to penalties or excise taxes under Sections 

4980D, 4980H, or 4980I of the IRC or any other provision of the Healthcare Reform Laws. 

(c) None of Sellers nor any of their ERISA Affiliates has (i) incurred or 

reasonably expects to incur, either directly or indirectly, any Liability under Title I or Title 

IV of ERISA or related provisions of the IRC or applicable local Law, (ii) failed to timely 

pay premiums to the Pension Benefit Guaranty Corporation, (iii) withdrawn from any 

Employee Benefit Plan, (iv) engaged in any transaction which would give rise to Liability 

under Section 4069 or Section 4212(c) of ERISA, (v) incurred Taxes under Section 4971 

of the IRC with respect to any Single Employer Plan, or (vi) participated in a multiple 

employer welfare arrangement (MEWA). 

Section 3.11 Real Property. 

(a) Sellers do not own any real property. 

(b) Schedule 3.11(b) of the Disclosure Schedule sets forth the address of each 

Leased Real Property, and a true and complete list of all Leases for such Leased Real 

Property. Sellers have made available to Buyer true and complete copies of such Leases, 

as amended through the Execution Date. Except as set forth on Schedule 3.11(b) of the 

Disclosure Schedule, to Seller’s Knowledge the Leased Real Property has no material 

defects that at any one location would reasonably be expected to cost Sellers $10,000 or 

more to repair, and is otherwise in good operating condition and repair and is adequate and 

suitable to conduct the business of Sellers as currently conducted. 

Section 3.12 Permits. 

(a) Schedule 3.12(a) of the Disclosure Schedule contains a list of all material 

Permits that, to Seller’s Knowledge, Sellers hold as of the Execution Date in connection 

with the operation of the Business. Sellers are in compliance with, and during the past 

three (3) years have complied with, all Permits in all material respects. No Seller has 

received any oral or written notice or other written communication from any Governmental 

Entity or other Person (i) asserting any violation of, or failure to comply with, any 

requirement of any Assumed Permit, (ii) notifying such Seller of the non-renewal, 

revocation, material modification or withdrawal of any Assumed Permit, or (iii) notifying 

such Seller that it is under governmental investigation with respect to the violation of any 

applicable Assigned Permit. As of the Execution Date, there is no Litigation pending or, to 

Sellers’ Knowledge, threatened in writing that seeks the revocation, cancellation, 

suspension, failure to renew or adverse modification of any material Assumed Permits. To 

Sellers’ Knowledge, all required filings with respect to the Assumed Permits have been 

made and all required applications for renewal thereof have been filed. 

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(b) Schedule 3.12(b) of the Disclosure Schedule sets forth a complete and 

correct list as of the Execution Date of all liquor licenses (including, without limitation, 

beer and wine licenses) held or used by Sellers, including the Seller in whose name such 

license is issued, a general description of the restaurant location to which the license relates, 

and the license number (collectively, the “Liquor Licenses”). To Sellers’ Knowledge, 

except as set forth on Schedule 3.12(b) of the Disclosure Schedule, each Seller is in 

compliance in all material respects with all applicable state, municipal and other Laws with 

respect to the sale of liquor and all alcoholic beverages and has the right to sell liquor at 

retail for consumption within each of the restaurant locations of such Seller where the 

Leases constitute Assumed Contracts, subject to and in accordance with all applicable 

provisions of the Liquor Licenses. To Sellers’ Knowledge, since December 31, 2021, (i) 

there has been no material Litigation brought or threatened in writing to be brought by or 

before a Governmental Entity in respect of any such Liquor License or the activities of any 

Seller in connection with any such Liquor License (or in connection with any other liquor 

licenses previously held or used by such Seller), (ii) no such Liquor License is subject to 

any due but unpaid Tax obligation owed to a Governmental Entity, the outstanding nature 

of which would preclude transfer of such Liquor License from any Seller to Buyer, and 

(iii) no such Liquor License has been threatened by a Governmental Entity to be revoked, 

limited or not renewed. 

Section 3.13 Environmental. To Sellers’ Knowledge and except as set forth on 

Schedule 3.13 of the Disclosure Schedule, at all times during the past five (5) years, Sellers have 

conducted the Business and operated the Purchased Assets in accordance with all applicable Laws, 

regulations, or other legal requirements relating to the protection of the environment, pollution or 

human health and safety and that are applicable to Sellers and the Business. 

Section 3.14 Taxes. 

(a) To Sellers’ Knowledge and except for delinquent franchise Taxes as set 

forth on Schedule 3.1 of the Disclosure Schedule, all material Tax Returns required to have 

been timely filed by or with respect to Sellers and the Purchased Assets have been filed 

(taking into account any extension of time to file granted or obtained) and such Tax Returns 

are true, correct and complete in all material respects. 

(b) To Sellers’ Knowledge and except for delinquent franchise taxes as set forth 

on Schedule 3.1 of the Disclosure Schedule, all material Taxes required to have been paid 

by or with respect to Sellers and the Purchased Assets have been paid, other than Taxes of 

Sellers the payment of which is prohibited or stayed by the Bankruptcy Code. 

(c) There are no Liens with respect to Taxes on any of the Purchased Assets, 

other than Permitted Liens and such Liens that will be released upon entry of the Sale 

Order, as applicable. 

(d) To Sellers’ Knowledge there are no audits, examinations, investigations, or 

other proceedings in respect of Taxes or Tax Returns of Sellers or the Purchased Assets, 

pending or threatened. 

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(e) All Inventory and similar items included in the Purchased Assets is, 

immediately prior to the sale to Buyer hereunder, located in Arizona, California, Florida, 

Georgia, Illinois, Indiana, Kentucky, Minnesota, Missouri, Nevada, New Mexico, Ohio, 

Tennessee, Texas, and Washington. 

(f) The sale of the Purchased Assets to Buyer hereunder constitutes an 

“occasional”, “isolated”, “casual” or similar sale of such Purchased Assets for sales, use 

and similar Tax purposes in each of the states in which the Purchased Assets are located 

immediately prior to their sale to Buyer hereunder, with such sale exempt from such Taxes 

in each such state. 

Section 3.15 Brokers’ Fees. Except as set forth on Schedule 3.15 of the Disclosure 

Schedule, no Seller has entered into any Contract to pay any fees or commissions to any broker, 

finder or agent with respect to the Contemplated Transactions for which Buyer could become liable 

or obligated to pay.

Section 3.16 No Other Representations or Warranties. EXCEPT FOR THE 

REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE III (AS 

QUALIFIED, AMENDED, SUPPLEMENTED AND MODIFIED BY THE DISCLOSURE 

SCHEDULE), NEITHER SELLERS NOR ANY OTHER PERSON MAKES (AND BUYER IS 

NOT RELYING UPON) ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR 

WARRANTY WITH RESPECT TO SELLERS, THE BUSINESS, THE PURCHASED ASSETS 

(INCLUDING THE VALUE, CONDITION OR USE OF ANY PURCHASED ASSET), THE 

ASSUMED LIABILITIES OR THE CONTEMPLATED TRANSACTIONS, AND SELLERS 

DISCLAIM ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY 

SELLERS, ANY AFFILIATE OF SELLERS OR ANY OF THEIR RESPECTIVE OFFICERS, 

DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES. EXCEPT FOR THE 

REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE III (AS 

QUALIFIED, AMENDED, SUPPLEMENTED AND MODIFIED BY THE DISCLOSURE 

SCHEDULE), EACH SELLER (I) EXPRESSLY DISCLAIMS AND NEGATES ANY 

REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT COMMON LAW, BY 

STATUTE OR OTHERWISE, RELATING TO THE CONDITION OF THE PURCHASED 

ASSETS (INCLUDING ANY IMPLIED OR EXPRESSED WARRANTY OF TITLE, 

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF THE 

PROBABLE SUCCESS OR PROFITABILITY OF THE OWNERSHIP, USE OR OPERATION 

OF THE BUSINESS OR THE PURCHASED ASSETS BY BUYER AFTER THE CLOSING), 

AND (II) DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY 

REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT OR 

INFORMATION MADE, COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) 

TO BUYER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, 

INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE 

PROVIDED TO BUYER BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, 

CONSULTANT OR REPRESENTATIVE OF ANY SELLER OR ANY OF THEIR 

AFFILIATES). 

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THE PROVISIONS OF THIS SECTION 3.16 SHALL SURVIVE THE CLOSING OR 

EARLIER TERMINATION OF THIS AGREEMENT AND SHALL BE INCORPORATED 

INTO THE CLOSING DOCUMENTS TO BE DELIVERED AT CLOSING.

BUYER’S REPRESENTATIONS AND WARRANTIES 

Buyer represents and warrants to Sellers as follows: 

Section 4.1 Organization of Buyer. Buyer is a limited liability company duly 

organized, validly existing and in good standing under the Laws of the State of Delaware and has 

all requisite limited liability company power and authority to own, lease and operate its assets and 

to carry on its business as now being conducted.

Section 4.2 Authorization of Transaction. 

(a) Buyer has full limited liability company power and authority to execute and 

deliver this Agreement and all Related Agreements to which it is a party and to perform its 

obligations hereunder and thereunder. 

(b) The execution, delivery and performance of this Agreement and all other 

Related Agreements to which Buyer is a party have been duly authorized by Buyer, and no 

other limited liability company action on the part of Buyer is necessary to authorize this 

Agreement or the Related Agreements to which it is a party or to consummate the 

Contemplated Transactions. 

(c) This Agreement has been duly and validly executed and delivered by Buyer, 

and, upon its execution and delivery in accordance with the terms of this Agreement, each of 

the Related Agreements to which Buyer is a party will have been duly and validly executed 

and delivered by Buyer. Assuming that this Agreement constitutes a valid and legallybinding obligation of Sellers, this Agreement constitutes a valid and legally-binding 

obligation of Buyer, enforceable against Buyer in accordance with its terms and conditions, 

subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to 

creditors’ rights and general principles of equity. Assuming, to the extent that they are a 

party thereto, that each Related Agreement constitutes a valid and legally-binding obligation 

of Sellers, each Related Agreement to which Buyer is a party, when executed and delivered, 

constituted or will constitute the valid and legally-binding obligation of Buyer, enforceable 

against Buyer in accordance with their respective terms and conditions, subject to applicable 

bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and 

general principles of equity. 

Section 4.3 Noncontravention. Neither the execution and delivery of this Agreement, 

nor the consummation of the Contemplated Transactions (including the Related Agreements) will 

(a) conflict with or result in a breach of the certificate of formation or other organizational 

documents of Buyer, (b) subject to any consents required to be obtained from any Governmental 

Entity, to the knowledge of Buyer, violate any Law to which Buyer is, or its assets or properties 

are subject, or (c) conflict with, result in a breach of, constitute a default under, result in the 

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acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require 

any notice under any Contract to which Buyer is a party or by which it is bound, except, in the 

case of either clause (b) or (c), for such conflicts, breaches, defaults, accelerations, rights or failures 

to give notice as would not, individually or in the aggregate, reasonably be expected to prevent, 

materially delay or materially impair to the ability of Buyer to consummate the Contemplated 

Transactions. Buyer is not required to give any notice to, make any filing with, or obtain any 

authorization, consent or approval of any Governmental Entity in order for the Parties to 

consummate the Contemplated Transactions, except as provided in Section 6.11 and where the 

failure to give notice, file or obtain such authorization, consent or approval would not, individually 

or in the aggregate, reasonably be expected to prevent, materially delay or materially impair to the 

ability of Buyer to consummate the Contemplated Transactions.

Section 4.4 Financial Capacity. As of the Closing, Buyer (a) will have the resources 

(including sufficient funds available to pay the Cure Costs and any other expenses and payments 

incurred by Buyer in connection with the Contemplated Transactions) and capabilities (financial 

or otherwise) to perform its obligations hereunder, and (b) will not have incurred any obligation, 

commitment, restriction or Liability of any kind, that would materially impair or materially 

adversely affect such resources and capabilities.

Section 4.5 Adequate Assurances Regarding Executory Contracts. Buyer will use 

commercially reasonable efforts to assure that, as of the Closing, it will be capable of satisfying 

the conditions contained in Sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect 

to the Assigned Prepetition Contracts.

Section 4.6 Good Faith Purchaser. Buyer is a “good faith” purchaser, as such term is 

used in the Bankruptcy Code and the court decisions thereunder. Buyer is entitled to the protections 

of Section 363(m) of the Bankruptcy Code with respect to all of the Purchased Assets. Buyer has 

negotiated and entered into this Agreement in good faith. 

Section 4.7 Brokers’ Fees. Neither Buyer nor any of its Affiliates has entered into any 

Contract to pay any fees or commissions to any broker, finder or agent with respect to the 

Contemplated Transactions for which any Seller could become liable or obligated to pay.

Section 4.8 Condition of Business. Buyer is an informed and sophisticated purchaser, 

and has engaged or had the opportunity to engage advisors, experienced in the evaluation and 

purchase of properties and assets such as the Purchased Assets and assumption of Liabilities such 

as the Assumed Liabilities as contemplated hereunder. Buyer has undertaken such investigation 

and has been provided with and has evaluated such documents and information as it has deemed 

necessary to enable it to make an informed and intelligent decision with respect to the execution, 

delivery and performance of this Agreement. Buyer acknowledges that Sellers have given Buyer 

reasonable and open access to the key employees, documents and facilities of the Business. Buyer 

hereby acknowledges and agrees that notwithstanding anything expressed or implied herein to the 

contrary, except as expressly set forth in ARTICLE III of this Agreement, Sellers (including each 

of their directors, officers, employees, agents, stockholders, Affiliates, consultants, counsel, 

accountants and other representatives) make no express or implied representations or warranties 

whatsoever, including, without limitation, any representation or warranty as to physical condition 

or value of any of the Purchased Assets or the future profitability or future earnings performance 

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of the Business. Buyer will accept the Purchased Assets and assume the Assumed Liabilities at the 

Closing “AS IS,” “WHERE IS” AND “WITH ALL FAULTS”.

PRE-CLOSING COVENANTS 

The Parties agree as follows with respect to the period between the execution of this 

Agreement and the Closing (except as otherwise expressly stated to apply to a different period): 

Section 5.1 Certain Efforts; Cooperation. 

(a) Subject to the terms and conditions of this Agreement, each of the Parties 

shall use its commercially reasonable efforts, subject to the orders of the Bankruptcy Court, 

to make effective the Contemplated Transactions (including satisfaction, but not waiver, 

of the conditions to the obligations of the Parties to consummate the Contemplated 

Transactions set forth in ARTICLE VII), except as otherwise provided in Section 5.2; 

provided, however, Sellers shall be entitled to take such actions as are required in 

connection with the discharge of their fiduciary duties during the Chapter 11 Cases. 

(b) On and after the Closing, Sellers and Buyer shall use their commercially 

reasonable efforts to take, or cause to be taken, all appropriate action, to do or cause to be 

done by Sellers and Buyer all things necessary under applicable Law, and to execute and 

deliver such documents, ancillary agreements and other papers as may be required to carry 

out the provisions of this Agreement and consummate and make effective the 

Contemplated Transactions, including in order to more effectively vest in Buyer all of 

Sellers’ right, title and interest to the Purchased Assets, free and clear of all Liens (other 

than Permitted Liens) and Liabilities (other than Assumed Liabilities) expressly 

contemplated by the Sale Order; provided, however, that Sellers’ obligations hereunder 

shall only continue until the later of the day that (i) all Liquor Licenses have been 

transferred to Buyer and/or replacements thereof have been obtained by Buyer, as 

determined by Buyer in its reasonable discretion, and (ii) the Chapter 11 Cases are closed 

or dismissed. Buyer shall at all times take all appropriate actions necessary to permit, and 

shall refrain from taking any action that would prevent, the Bankruptcy Court to make 

findings in the Sale Order that (i) Buyer is a good-faith buyer under Section 363(m) of the 

Bankruptcy Code, (ii) that the sale of the Purchased Assets contemplated hereby did not 

involve any improper conduct, including collusion, and cannot be avoided under grounds 

set forth under Section 363(n) of the Bankruptcy Code, and (iii) Buyer is not a successor 

to Sellers with respect to the Purchased Assets. 

Section 5.2 Notices and Consents. 

(a) To the extent required by the Bankruptcy Code or the Bankruptcy Court, 

Sellers shall give any notices to third parties, and each Seller shall use its commercially 

reasonable efforts to obtain any third party Consents or sublicenses; provided, however, 

that (i) Sellers shall not incur any costs associated with the obligations hereunder, other 

than such ordinary and reasonable professional fees and other costs as described in this 

Agreement as are required for Sellers to comply with the obligations hereunder and (ii) 

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Sellers’ obligations hereunder shall only continue until the later of the day that (A) all 

Liquor Licenses have been transferred to Buyer and/or replacements thereof have been 

obtained by Buyer, as determined by Buyer in its reasonable discretion, and (B) the Chapter 

11 Cases are closed or dismissed. 

(b) Sellers and Buyer shall cooperate with one another in promptly determining 

whether any filings are required to be or should be made or consents, approvals, permits or 

authorizations are required to be or should be obtained under any applicable Law in 

connection with this Agreement and the Contemplated Transactions and in promptly 

making any such filings, furnishing information required in connection therewith and 

seeking to obtain timely any such consents, permits, authorizations, approvals or waivers; 

provided, however, that (i) Sellers shall not incur any costs associated with the obligations 

hereunder, other than such ordinary and reasonable professional fees and other costs as 

described in this Agreement as are required for Sellers to comply with the obligations 

hereunder and (ii) Sellers’ obligations hereunder shall only continue until the later of the 

day that (A) all Liquor Licenses have been transferred to Buyer and/or replacements thereof 

have been obtained by Buyer, as determined by Buyer in its reasonable discretion, and (B) 

the Chapter 11 Cases are closed or dismissed. 

(c) Subject to the terms and conditions set forth in this Agreement and 

applicable Law, Buyer and Sellers shall (i) promptly notify the other Party of any 

communication to that Party from any Governmental Entity in respect of any filing, 

investigation or inquiry concerning this Agreement or the Contemplated Transactions, 

(ii) if practicable, permit the other Party the opportunity to review in advance all the 

information relating to Sellers and their respective Subsidiaries or Buyer and its 

Subsidiaries and/or Affiliates, as the case may be, that appears in any filing made with, or 

written materials submitted to, any third party and/or any Governmental Entity in 

connection with the Agreement and the Contemplated Transactions and incorporate the 

other Party’s reasonable comments, (iii) not participate in any substantive meeting or 

discussion with any Governmental Entity in respect of any filing, investigation, or inquiry 

concerning this Agreement and the Contemplated Transactions unless it consults with the 

other Party in advance, and, to the extent permitted by such Governmental Entity, gives the 

other Party the opportunity to participate in and/or attend such meeting and/or discussion, and 

(iv) furnish the other Party with copies of all correspondences, filings, and written 

communications between them and their Subsidiaries and/or Affiliates and Representatives, 

on the one hand, and any Governmental Entity or its respective staff, on the other hand, with 

respect to this Agreement and the Contemplated Transactions; provided, however, that any 

materials or information provided pursuant to any provision of this Section 5.2(c) may be 

redacted before being provided to the other Party (A) to remove references concerning the 

valuation of Buyer, Sellers, or any of their Subsidiaries, (B) to remove references concerning 

financing arrangements, (C) as necessary to comply with contractual arrangements, and (D) 

as necessary to address reasonable privilege or confidentiality issues. Sellers and Buyer may, 

as each deems advisable and necessary, reasonably designate any competitively sensitive 

material provided to the other under this Section 5.2(c) as “outside counsel only.” Such 

materials and the information contained therein shall be given only to the outside legal counsel 

and any retained consultants or experts of the recipient and shall not be disclosed by such 

outside counsel to employees, officers or directors of the recipient, unless express written 

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permission is obtained in advance from the source of the materials (Sellers or Buyer, as the 

case may be). Each of Sellers and Buyer shall promptly notify the other Party if such Party 

becomes aware that any third party has any objection to the Agreement on antitrust or anticompetitive grounds. 

Section 5.3 Bankruptcy Actions. 

(a) Sale Procedures. Buyer shall have filed the Sale Motion on or before 

August 14, 2024, which motion shall seek approval of the Sale Procedures Order in a form 

of order attached as Exhibit H hereto. 

(b) Sale Order. The Sale Order shall be entered no later than the Sale Order 

Deadline. The Sale Order shall be in a form acceptable to Buyer in its reasonable discretion 

and provide, among other things, that: 

(i) this Agreement is valid and enforceable; 

(ii) this Agreement and the Contemplated Transactions are approved; 

(iii) the Purchase Price may be paid Buyer by way of the Credit Bid; 

(iv) on the Closing Date, the Purchased Assets shall be sold to Buyer 

free and clear of any and all Liens (except for Permitted Liens), including any Liens 

granted during the Chapter 11 Cases, and Liabilities (other than Assumed 

Liabilities); 

(v) on the Closing Date, the Assigned Prepetition Contracts shall be 

assumed by Sellers and assigned to Buyer pursuant to Section 365 of the Bankruptcy 

Code, and, unless a counterparty to an Assigned Prepetition Contract has agreed 

otherwise in writing, the Buyer shall pay the Cure Costs that are Assumed Liabilities 

due in connection with the assumption and assignment of Assigned Prepetition 

Contracts; 

(vi) all causes of actions against any counterparty to the Assigned 

Contracts, related in any way to the Assigned Contracts, shall be forever released 

and waived by Sellers. Sellers, however, shall be entitled to assert any defenses 

against any claim asserted by any counterparty to the Assigned Contracts; and 

(vii) all persons and entities, including, governmental, tax and regulatory 

authorities, lenders, trade and other creditors holding interests or claims of any kind 

or nature whatsoever against Sellers or their assets (whether legal or equitable, 

secured or unsecured, matured or unmatured, contingent or noncontingent, 

liquidated or unliquidated, senior or subordinated), arising under or out of, in 

connection with or in any way relating to Sellers, the Business, the Purchased 

Assets, or the operations of Sellers prior to the Closing shall have no claims against 

Buyer, its Affiliates, or their respective successors or assigns, the Business, or the 

Purchased Assets, subject to rights of parties or individuals for claims arising out of 

Assumed Liabilities. 

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(c) Sale Order Findings. The Sale Order shall contain findings by the 

Bankruptcy Court that (i) Buyer is a good-faith buyer under Section 363(m) of the 

Bankruptcy Code, (ii) Buyer is not a successor to Sellers, and (iii) the sale of the Purchased 

Assets contemplated hereby did not involve any improper conduct, including collusion, 

and cannot be avoided under grounds set forth under Section 363(n) of the Bankruptcy 

Code, unless in the reasonable judgment of Sellers’ professionals, after consultation with 

Buyer, Sellers believe there exists a factual basis that would preclude the Bankruptcy Court 

from making such a finding. 

(d) Cooperation. Sellers and Buyer agree to use commercially reasonable 

efforts to cooperate, assist and consult with each other to obtain the issuance and entry of 

the Sale Order and Sale Procedures Order, including furnishing affidavits, declarations or 

other documents or information for filing with the Bankruptcy Court. The Sale Order shall 

also indicate that the transactions set forth in this Agreement may be consummated 

immediately upon entry of the Sale Order and pursuant to Fed. R. Bankr. P. 6004(h), the 

sale of the Purchased Assets is not stayed pending the expiration of 14 days from the date 

of entry of the Sale Order. In the event the Sale Order is appealed, Sellers shall use their 

commercially reasonable efforts to oppose any such appeal. 

(e) Bankruptcy Court Approval of Sale. Sellers and Buyer shall cooperate, 

assist and consult with each other and each use commercially reasonable efforts, to secure 

the entry of the Sale Order. In connection with the assumption and assignment of the 

Assumed Contracts pursuant to Section 365 of the Bankruptcy Code, Buyer shall take all 

actions reasonably required in the discretion of Buyer or otherwise as directed by the 

Bankruptcy Court to provide “adequate assurance of future performance” by Buyer under 

the Assumed Contracts after the Closing. 

(f) Liquor Licenses. Sellers shall seek to have included in the Sale Order a 

provision that immediately upon the Closing, Buyer shall be entitled to continue to sell 

alcoholic beverages at the premises included in the Purchased Assets upon the same terms 

as Sellers were selling such alcoholic beverages until such time as Buyer has had the time 

and opportunity to obtain its own Liquor Licenses.

Section 5.4 Conduct of Business. From the Execution Date until the earlier of the 

termination of this Agreement pursuant to Section 8.1 or the Closing Date, except (i) as disclosed 

on Schedule 5.4, (ii) as may be required by the Bankruptcy Court, (iii) for the consequences 

resulting from the continuation of the Chapter 11 Cases, or (iv) as may be required or contemplated 

by this Agreement, subject to the terms of the DIP Credit Agreement, each Seller shall conduct, 

and shall cause its Affiliates to conduct, the Business and maintain the Purchased Assets in the 

Ordinary Course of Business and use its commercially reasonable efforts to preserve intact the 

Purchased Assets (and all goodwill relating thereto) and all respective relationships with 

customers, vendors, creditors, employees, landlords, agents, each Governmental Entity, and others 

having business relationships with them. Without limiting the generality of the foregoing, during 

the period from the date of this Agreement to the Closing, except as otherwise contemplated by 

this Agreement or as Buyer shall otherwise consent in writing, each Seller shall, and shall cause 

each of its respective Affiliates to, do the following:

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(a) pay all post-petition bills and invoices for post-petition goods or services 

when due, including rent, CAM, Taxes and other amounts due under the Leases that may 

become part of the Purchased Assets; 

(b) notify Buyer of any material adverse change in its condition (financial or 

otherwise), business, properties, assets or liabilities, or of the commencement of or any 

material development or disposition with respect to any material governmental complaints, 

investigations, or hearings (or any written threats thereof); 

(c) in the Ordinary Course of Business, maintain and repair all of the material 

equipment on the premises and the premises themselves; 

(d) maintain in the Ordinary Course of Business customary amounts of cash, 

cash equivalents and similar cash items at the location of each restaurant in cash registers, 

safes, strongboxes and lock boxes; 

(e) maintain in the Ordinary Course of Business customary amounts and quality 

of Inventory; 

(f) comply in all material respects with all Laws applicable to it or having 

jurisdiction over the Business or any Purchased Asset and will not incur the Worker 

Adjustment and Retraining Notification Act or any similar Law (“WARN”); 

(g) use its commercially reasonable efforts to keep and maintain possession of 

and compliance with the terms of all Permits (including Liquor Licenses) necessary or 

required by Law to own, lease and operate its respective properties (and the Purchased 

Assets) and to carry on the Business or that are material to the operation of the Business or 

the Purchased Assets, including by taking all actions and submitting all payments, 

applications, and filings necessary to renew any such Permit due to expire at any time 

before the Closing Date (or 60 days thereafter); 

(h) use commercially reasonable efforts to (i) conduct the Business in 

substantially the same manner as conducted as of the Petition Date and only in the Ordinary 

Course of Business, (ii) preserve the existing business organization and management of the 

Business intact, (iii) use commercially reasonable efforts to keep available the services of 

the current Employees, to the extent reasonably feasible, (iv) use commercially reasonable 

efforts to maintain the existing relations with customers, carriers, centers, distributors, 

suppliers, creditors, business partners, Current Employees and others having business 

dealings with the Business, and (v) refrain from changing in any material respect any of its 

product or service prices or pricing policies (e.g., discount policies) for any of its products 

or services; and 

(i) maintain insurance coverage with financially responsible insurance 

companies duly licensed in the states in which Sellers are then operating, substantially 

similar in all material respects to the insurance coverage maintained by the Business and 

Sellers on the Petition Date. 

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Section 5.5 Certain Restricted Conduct. Except as set forth on Schedule 5.5 or as 

Buyer shall otherwise consent in advance in writing, during the period from the date of this 

Agreement to the Closing, no Seller shall, and each Seller shall cause each of its respective 

Affiliates not to, with respect to the Purchased Assets:

(a) sell, lease, license, transfer, or dispose of other than in the Ordinary Course 

of Business any Purchased Assets; 

(b) directly or indirectly, (i) enter into any Contract, or (ii) assume, amend, 

modify, supplement or terminate, or waive any rights under, any Contract to which Seller 

is a party or by which it is bound and that is used in or related to the Business or the 

Purchased Assets (including any Assumed Contract) or take any affirmative action not 

required by the terms of any such Contract; 

(c) dispose of or permit to lapse any rights in, to or for the use of any material 

Intellectual Property right; 

(d) other than in the Ordinary Course of Business, including maintenance and 

repair, authorize, undertake, make, or enter into any commitments obligating any Seller to 

(i) make or accelerate any capital expenditures that cannot reasonably be substantially 

completed prior to the Closing or (ii) undertake or approve any material renovation, repair 

or rehabilitation of any Leased Real Property that cannot reasonably be substantially 

completed prior to the Closing, except pursuant to a budget approved by the DIP Lenders 

under the DIP Credit Agreement; 

(e) (i) increase any compensation or enter into or amend, in a way that increases 

benefits, any employment, severance or other agreement with any of its officers, directors or 

Current Employees, (ii) adopt any new Employee Benefit Plan or amend or terminate or 

increase the benefits under any existing Employee Benefit Plan, except for changes which are 

required by Law and changes which are not more favorable to participants than provisions 

presently in effect, (iii) hire any employee or individual independent contractor with annual 

compensation in excess of $75,000 (except to the extent such hire is in replacement of a 

Current Employee with comparable compensation), or enter into any new employment or 

severance agreements that would result in post-termination payments that in the aggregate 

would exceed $5,000 becoming due or payable upon termination of employment or of the 

individual independent contractor, or (iv) assume or enter into any labor or collective 

bargaining agreement relating to the Business, any Current Employee or future employee, or 

any Purchased Asset; 

(f) take any action which, if taken, or omit to take any act which, if omitted to 

be taken, would constitute or result in an “Event of Default” or “Default” under the 

Prepetition Loan Agreement, the DIP Credit Agreement or the DIP Order, as applicable; 

(g) permit, offer, agree or commit (in writing or otherwise) to permit, any of 

the Purchased Assets to become subject, directly or indirectly, to any Lien, except for 

Permitted Liens; 

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(h) directly or indirectly, cancel, forgive, settle, or compromise any debt or 

claim or waive or release any right of Sellers (i) under the PHI MSA, or (ii) that constitutes 

a Purchased Asset; 

(i) do any other act that would, to Sellers’ Knowledge, cause any representation 

or warranty of any Seller in this Agreement to be or become untrue in any material respect 

or intentionally omit to take any action necessary to prevent any such representation or 

warranty from being untrue in any material respect; or 

(j) authorize or enter into any Contract, agreement, or commitment with 

respect to any of the foregoing. 

No Seller nor any of its Affiliates shall: (i) renew any Lease nor suffer any Person other than such 

Seller, its employees, agents, servants and invitees to occupy or use the premises or any portion 

thereof, without in any case the express written consent of Buyer, which consent shall not be 

unreasonably withheld, or (ii) terminate, amend, extend, renew, modify, breach, waive or allow 

any rights to lapse under any Lease. If Sellers request such a consent from Buyer, the request shall 

be in writing specifying the terms of the renewal, termination, amendment, extension, modification 

and/or waiver, the identity of the proposed third party, assignee or sub-lessee; the duration of said 

desired sublease or renewal, the date same is to occur, the exact location of the space affected 

thereby and the proposed rentals on a square foot basis chargeable thereunder. Such request for 

Buyer consent shall be submitted to Buyer at least five (5) days in advance of the date on which 

Sellers desire to make such event occur. 

Section 5.6 Notice of Developments. From the Execution Date until the Closing Date, 

each of Sellers (with respect to itself), as the case may be, shall promptly disclose to Buyer, on the 

one hand, and Buyer shall promptly disclose to Sellers, on the other hand, in writing (in the form 

of an updated Disclosure Schedule, if applicable) after attaining knowledge (as applicable to each 

of Sellers and Buyer) of any material failure of any of Sellers or Buyer to comply with or satisfy 

any of their respective covenants, conditions or agreements to be complied with or satisfied by it 

under this Agreement in any material respect; provided, however, that the delivery of any notice 

pursuant to this Section 5.6 shall not limit or otherwise affect the remedies available to the party 

receiving such notice under this Agreement if such party objects to the disclosures contained in 

such notice within five (5) days of receipt of such notice.

Section 5.7 Access. Upon reasonable advance written request by Buyer, Sellers shall 

permit Buyer and its Representatives to have reasonable access during customary business hours, 

and in a manner so as not to interfere unreasonably with the regular business operations of Sellers, 

to all premises, properties, personnel, Records and Contracts related to the Business, in each case, 

for the sole purpose of evaluating the Business; provided, however, that, for avoidance of doubt, 

the foregoing shall not require any Party to waive, or take any action with the effect of waiving, 

its attorney-client privilege or any confidentiality obligation to which it is bound with respect 

thereto or take any action in violation of applicable Law.

Section 5.8 Press Releases and Public Announcements. Provided that Sellers shall 

provide notice to and consult with Buyer in advance, to the extent permitted by Law or the order 

of the Bankruptcy Court, Sellers shall be entitled to disclose, if required by applicable Law or by 

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order of the Bankruptcy Court, this Agreement and all information provided by Buyer in 

connection herewith to the Bankruptcy Court, the United States Trustee, the Committee, parties in 

interest in the Chapter 11 Cases and other Persons bidding on assets of Sellers. Other than 

statements made in the Bankruptcy Court (or in pleadings filed therein), Sellers shall not issue 

(prior to, on or after the Closing) any press release or make any public statement or public 

communication regarding Buyer without the prior written consent of Buyer, which shall not be 

unreasonably withheld or delayed; provided, however, Sellers, without the prior consent of Buyer, 

may issue such press release or make such public statement as may, upon the advice of counsel, 

be required by applicable Law or any Governmental Entity with competent jurisdiction. Buyer, 

without the prior consent of Sellers, may issue such press release or make such public statement, 

filing or disclosure (x) prior to Closing, as may, upon the advice of counsel, be required by 

applicable Law or any Governmental Entity with competent jurisdiction and (y) after Closing, as 

it may wish.

Section 5.9 Bulk Transfer Laws. The Parties intend that pursuant to Section 363(f) of 

the Bankruptcy Code, the transfer of the Purchased Assets shall be free and clear of any Liens on 

the Purchased Assets (other than Permitted Liens) and Liabilities (other than Assumed Liabilities), 

including any Liens arising out of the bulk transfer Laws, and the Parties shall take such steps as 

may be necessary or appropriate to so provide in the Sale Order.

Section 5.10 Contracts. If at any time Sellers become aware, on or before the Closing, 

of any heretofore unrejected Contract to which any of Sellers is a party that satisfies the conditions 

of Section 3.6, but has not been included on Schedule 3.6 of the Disclosure Schedule, Sellers shall 

promptly thereafter advise Buyer of the existence of such Contract and provide Buyer with a copy 

thereof. Buyer shall have the right, for a period of five (5) Business Days following the delivery 

of any such Contract, to review such Contract and during such period Sellers shall refrain from 

modifying, terminating or rejecting such Contract without Buyer’s express prior written consent. 

Buyer shall have the option, exercisable by written notice to Sellers given within such five (5) 

Business Day period, to request that Sellers assume (if applicable), assign and sell such Contract 

to Buyer. If Buyer timely exercises such option, Sellers shall use commercially reasonable efforts 

to assume (if applicable), assign and sell such Contract to Buyer, as promptly as reasonably 

practicable, on the same terms and conditions as would be applicable under this Agreement to the 

Assumed Contracts or the Prepetition Contracts to be acquired hereunder, as applicable; provided, 

however, that Buyer shall be responsible for the payment of any Cure Cost in connection with the 

assumption and assignment of such Assumed Contract (if applicable), except as otherwise 

provided in Section 2.6 and provided such Cure Cost is an Assumed Liability. If Buyer fails or 

declines to exercise such option, Sellers shall reject such Contract upon five (5) Business Days’ 

notice to Buyer.

Section 5.11 Casualty, Condemnation, Loss of Lease. 

(a) If, prior to Closing, any Leased Real Property and the associated 

improvements or any part thereof shall be subject to a taking by any Governmental Entity 

through condemnation, eminent domain or otherwise (including, but not limited to, any 

transfer made in lieu of or in anticipation of the exercise of such taking) (collectively, 

“Condemnation”), Buyer shall have the option, but not obligation, to take title to the 

Purchased Assets relating to such affected Leased Real Property and improvements 

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notwithstanding such Condemnation. At the Closing, Buyer, if its elects to accept such 

Leased Real Property that is subject to a Condemnation, shall succeed to (x) the rights of 

Sellers to the Condemnation proceeds, including insurance proceeds, with respect to a 

Condemnation (“Condemnation Proceeds”), and (y) the rights to settle any such 

Condemnation proceeding, and Buyer shall, at Closing succeed to the rights of Sellers to 

all required proofs of loss, assignments of claims and similar items. If Buyer elects to 

accept such Leased Real Property in accordance with the preceding sentence, then Sellers, 

at Closing, shall assign to Buyer all right, title and interest to any claims or proceeds Sellers 

may have. Sellers shall not settle any such proceedings without the consent of Buyer, such 

consent not to be unreasonably withheld or delayed. 

(b) If, prior to Closing, any Leased Real Property and the associated 

improvements or any part thereof shall be destroyed or damaged by fire, earthquake, flood 

or other casualty (collectively, “Casualty”), Buyer shall have the option, but not the 

obligation, to take title to the Purchased Assets relating to such affected Leased Real 

Property and improvements. At the Closing, Buyer, if it elects to accept such Leased Real 

Property that is subject to a Casualty, shall succeed to (x) the rights of Sellers to the 

Casualty proceeds, including insurance proceeds, with respect to such Casualty (“Casualty 

Proceeds”), including without duplication, giving Buyer a credit against the Purchase Price 

in the amount of the Casualty Proceeds actually received by Sellers and not applied by 

Sellers to repair prior to Closing, and (y) the rights to settle after Closing any loss under all 

Insurance Policies applicable to the Casualty, and Buyer shall, at Closing and thereafter, 

succeed to the rights of Sellers to all required proofs of loss, assignments of claims and 

other similar items and Sellers shall, at Closing, assign same to Buyer. Sellers shall not 

settle any such claims without the consent of Buyer; such consent not to be unreasonably 

withheld or delayed. 

OTHER COVENANTS 

The Parties agree as follows with respect to the period from and after the Closing; provided 

that Sellers’ obligations hereunder shall only continue until the later of the day that (i) all Liquor 

Licenses have been transferred to Buyer and/or replacements thereof have been obtained by Buyer, 

as determined by Buyer in its reasonable discretion, and (ii) the Chapter 11 Cases are closed or 

dismissed: 

Section 6.1 Cooperation. Each of the Parties shall cooperate with each other, and shall 

use their commercially reasonable efforts to cause their respective Representatives to cooperate 

with each other, to provide an orderly transition of the Purchased Assets and Assumed Liabilities 

from Sellers to Buyer and to minimize the disruption to the Business resulting from the 

Contemplated Transactions.

Section 6.2 Further Assurances. In case at any time from and after the Closing any 

further action is necessary or reasonably required to carry out the purposes of this Agreement, 

subject to the terms and conditions of this Agreement and the terms and conditions of the Sale 

Order, at any Party’s request and sole cost and expense, each Party shall promptly take such further 

action (including the execution and delivery to any other Party of such other reasonable instruments 

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of sale, transfer, conveyance, assignment, assumption and confirmation and providing materials and 

information) as another Party may reasonably request as shall be necessary to transfer, convey and 

assign to Buyer all of the Purchased Assets, to confirm Buyer’s assumption of the Assumed 

Liabilities and to confirm Sellers’ retention of the Excluded Assets and Excluded Liabilities. 

Without limiting the generality of this Section 6.2, to the extent that either Buyer or Sellers discover 

any additional assets or properties which the Parties mutually agree should have been transferred or 

assigned to Buyer as Purchased Assets but were not so transferred or assigned, Buyer and Sellers 

shall cooperate and promptly execute and deliver any instruments of transfer or assignment 

necessary to transfer and assign such asset or property to Buyer. 

Section 6.3 Availability of Business Records. From and after the Closing, Buyer shall 

promptly provide to Sellers and their respective Representatives (after reasonable notice and 

during normal business hours and without charge to Sellers) access to all Records included in the 

Purchased Assets for periods prior to the Closing and reasonable access to Transferred Employees 

to the extent such access is necessary in order for Sellers (as applicable) to comply with applicable 

Law or any contract to which it is a party, for liquidation, winding up, Tax reporting or other proper 

purposes and so long as such access is subject to an obligation of confidentiality, and shall preserve 

such Records until the latest of (i) seven (7) years after the Closing Date, (ii) the required retention 

period for all government contact information, records or documents, or (iii) the conclusion of all 

bankruptcy proceedings relating to the Chapter 11 Cases. Such access shall include access to any 

information in electronic form to the extent reasonably available. Buyer acknowledges that Sellers 

have the right to retain copies of all of Records included in the Purchased Assets for periods prior 

to the Closing. Prior to destroying any Records included in the Purchased Assets for periods prior 

to the Closing, Buyer shall notify Sellers thirty (30) days in advance of any such proposed 

destruction of its intent to destroy such Records, and Buyer shall permit Sellers to retain such 

Records, at Sellers’ cost and expense.

Section 6.4 Employee Matters. 

(a) Sellers shall, effective as of December 31, 2024 (or such other day as 

mutually agreed upon between Sellers and Buyer) (the “Employee Transfer Date”), 

discharge all Current Employees. During the period from the Execution Date through the 

Employee Transfer Date (the “Interim Employment Term”): 

(i) Sellers shall continue to employ the Current Employees and 

employees of Sellers whose employment commenced on or after the Closing Date 

(collectively with the Current Employees, the “Employees”), and Sellers shall lease 

to Buyer and its Permitted Designees the Employees to continue to perform services 

for Buyer and its Permitted Designees with respect to the Business and the 

Continuing Restaurants commensurate with the work performed by such 

Employees on behalf of Sellers immediately prior to the Closing, as determined by 

Buyer in its sole discretion. 

(ii) The consideration payable by Buyer to Sellers for the Employee 

lease arrangement described in this Section 6.4(a) shall be the Services Fee for 

Operational Services, each as defined under the Transition Services Agreement. 

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(iii) During the Interim Employment Term, Buyer and its Permitted 

Designees shall have the exclusive right to direct, assign and structure work for the 

Employees. Notwithstanding the foregoing, Sellers shall retain ultimate dominion 

and control of the Employees. Sellers shall direct each of the Employees to perform 

such Employee’s duties and responsibilities on behalf of Buyer and its Permitted 

Designees. When performing duties on behalf of Buyer and its Permitted 

Designees, the Employees shall be under the supervision and direction of Buyer 

and its Permitted Designees. The right to supervise and direct the Employees with 

respect to any activities refers not only to the result to be accomplished, but also 

includes the details and means by which the result is accomplished. If, in the course 

of such supervision, Buyer and its Permitted Designees determine that any 

Employee is not performing his or her duties in an acceptable manner, Sellers shall 

promptly notify Employer in writing specifying in detail the area of concern. 

(iv) Sellers shall continue to provide all salary, benefits, workers’ 

compensation and unemployment compensation coverage for the Employees at all 

times during the Interim Employment Term on the same basis and at the same rates, 

wages and other benefit levels as were provided to the Employees immediately 

prior to the Closing. 

(v) During the Interim Employment Term, the relationship between 

Sellers and Buyer and its Permitted Designees established by this Section 6.4(a) is 

that of independent contractors, and nothing in this Agreement will be construed to 

constitute the parties as principal and agent, employer and employee, partners, joint 

venturers, co-owners, or otherwise as participants in a joint undertaking. The 

Employees shall solely be employees of Sellers for all purposes, including, without 

limitation, employee benefits and payment of federal, state, and local income, social 

security, unemployment, and other payroll and employment Taxes. 

(b) Prior to the Employee Transfer Date, Buyer may, but shall not be obligated 

to offer (or cause a designee of Buyer to offer) to employ those Employees desired to be 

employed by Buyer, in Buyer’s sole discretion, to operate the Continuing Restaurants, with 

employment commencing as of the Employee Transfer Date. For purposes of this 

Agreement, each Employee who receives such an offer of employment shall be collectively 

referred to as an “Offeree.” Prior to the Employee Transfer Date, Buyer will provide 

Sellers with a schedule setting forth a list of the names of all Offerees. Each Offeree who 

accepts such offer prior to the Closing shall be referred to herein as a “Transferred 

Employee.” Each Employee of Sellers who is not a Transferred Employee shall be referred 

to herein as an “Excluded Employee.” 

(c) Following the Execution Date: 

(i) Sellers shall allow Buyer or any of its Representatives reasonable 

access upon reasonable advance notice to meet with and interview the Employees 

who are members of executive management and other employees reasonably 

requested during normal business hours. 

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(ii) Sellers shall not, nor shall Sellers authorize or direct or give express 

permission to any Affiliate, officer, director or employee of any Seller or any 

Affiliate of any Seller, to (A) interfere with Buyer’s or its Representatives’ rights 

under Section 6.4(a) to make offers of employment to any Offeree, or (B) solicit or 

encourage any Offeree not to accept, or to reject, any such offer of employment. 

(iii) Sellers shall provide reasonable cooperation and information to 

Buyer or the relevant Representative as reasonably requested by Buyer or such 

Representative with respect to its determination of appropriate terms and conditions 

of employment for any Offeree. 

(iv) Buyer shall not assume, and Sellers shall retain, any liability or 

obligation whatsoever of Sellers relating to any of the Employee Benefit Plans 

(other than as provided under Section 2.3(e)). Buyer shall not be responsible for 

group health continuation coverage under COBRA with respect to all employees of 

Sellers and their dependents and any other individual who is an “M & A qualified 

beneficiary” within the meaning of Treasury Regulation Section 54.4980B-9, 

Q&A-4 in connection with the Contemplated Transactions and associated with the 

Purchased Assets. Sellers shall cause any Employee Benefit Plan that is maintained 

solely for the benefit of employees of Sellers and their dependents and which does 

not cover any other employees of Sellers’ Affiliates or Sellers’ ERISA Affiliates to 

be terminated immediately prior to the Employee Transfer Date and Sellers shall 

withdraw and terminate participation in all Employee Benefit Plans immediately 

prior to the Employee Transfer Date. 

(v) Sellers shall process the payroll for and pay, or cause to be paid, the 

base wages, base salary, paid time-off and benefits and any other amounts due 

under any Employee Benefit Plan or compensation arrangement or as required 

under applicable Law that are due and payable on or prior to the Employee Transfer 

Date or in connection with the Contemplated Transactions with respect to all 

Employees no later than the date such wages or salary would normally be paid. 

Seller shall withhold, fund and remit all applicable payroll Taxes as required by 

Law on or prior to the Employee Transfer Date with respect to all Employees of 

Sellers as of such date. 

(vi) Buyer shall process the payroll for and shall pay, or cause to be paid, 

base wages, base salary and benefits that accrue after the Employee Transfer Date 

with respect to all Transferred Employees. Buyer shall withhold and remit all 

applicable payroll Taxes as required by Law after the Employee Transfer Date with 

respect to Transferred Employees. In addition, as part of the wind-down expenses, 

Sellers shall (or shall cause its designee to) process all employee and Tax reporting 

covering the periods prior to the Employee Transfer Date in connection with the 

Excluded Employees and the Transferred Employees that will be required to be 

prepared and delivered after the Employee Transfer Date. Nothing herein shall be 

construed as requiring, and neither Sellers nor any of their Affiliates shall take any 

affirmative action that would have the effect of requiring Buyer to continue any 

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specific Employee Benefit Plan or any other employee benefit plan or to continue 

the employment of any specific person. 

(vii) Nothing in this Agreement shall create or be construed as creating 

any contract of employment or as conferring upon any Transferred Employee or 

upon any other person, other than the parties to this Agreement in accordance with 

its terms, any rights to enforce any provisions of this Agreement under ERISA or 

otherwise. 

(viii) Sellers shall retain all Liability for WARN incurred prior to, on 

Employee Transfer Date or otherwise in connection with the Contemplated 

Transactions, including Buyer’s failure to hire any Employee after the Employee 

Transfer Date. 

Section 6.5 Recording of Intellectual Property Assignments. All of the Intellectual 

Property Assignments shall be recorded and filed by Buyer with the appropriate Governmental 

Entities as promptly as practicable following the Closing.

Section 6.6 Transfer Taxes. To the extent not exempt under Section 1146 of the 

Bankruptcy Code, each Seller shall pay any stamp, documentary, registration, transfer, addedvalue or similar Tax (each, a “Transfer Tax”) imposed under any applicable Law in connection 

with the Contemplated Transactions. Each Seller and Buyer shall cooperate to prepare and timely 

file any Tax Returns required to be filed in connection with Transfer Taxes described in the 

immediately preceding sentence, with the Parties as required by applicable Law to file any such 

Tax Returns and the other Parties to join therein to the extent required under applicable Law.

Section 6.7 Wage Reporting. Buyer and Sellers agree to utilize, or cause their 

respective Affiliates to utilize, the standard procedure set forth in Internal Revenue Service 

Revenue Procedure 2004-53 with respect to wage reporting.

Section 6.8 Collection of Accounts Receivable. 

(a) As of the Closing Date, each Seller hereby (i) authorizes Buyer to open any 

and all mail addressed to any Seller relating to the Business or the Purchased Assets and 

delivered to the offices of the Business or otherwise to Buyer if received on or after the 

Closing Date, and (ii) appoints Buyer or its attorney-in-fact to endorse, cash and deposit 

any monies, checks or negotiable instruments received by Buyer after the Closing Date 

with respect to Accounts Receivable that are Purchased Assets or accounts receivable 

relating to work performed by Buyer after the Closing, as the case may be, made payable 

or endorsed to any Seller or Sellers’ order, for Buyer’s own account. 

(b) As of the Closing Date, each Seller agrees that any monies, checks or 

negotiable instruments received by any Seller after the Closing Date with respect to 

Accounts Receivable that are Purchased Assets or accounts receivable relating to work 

performed by Buyer after the Closing, as the case may be, shall be held in trust by such 

Seller for Buyer’s benefit and account, and promptly upon receipt by a Seller of any such 

payment (but in any event within five (5) Business Days of such receipt), such Seller shall 

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pay over to Buyer or its designee the amount of such payments. In addition, Buyer agrees 

that, after the Closing, it shall hold and shall promptly transfer and deliver to Sellers, from 

time to time as and when received by Buyer or its Affiliates (but in any event within 5 

Business Days of such receipt), any cash, checks with appropriate endorsements, or other 

property that Buyer or its Affiliates may receive on or after the Closing which properly 

belongs to Sellers hereunder, including any Excluded Assets. 

(c) As of the Closing Date, Buyer shall have the sole authority to bill and collect 

Accounts Receivable that are Purchased Assets and accounts receivable relating to work 

performed, good sold or services provided by Buyer after the Closing. 

Section 6.9 Use of Name and Marks. Neither Sellers nor any of their respective 

Affiliates or Subsidiaries shall use, license or authorize any third party to use, any name, slogan, 

logo or trademark which is similar or deceptively similar to any of the names, trademarks or service 

marks included in the Intellectual Property included in the Purchased Assets.

Section 6.10 Liquor License Approvals. 

(a) Sellers shall reasonably cooperate in a timely manner with Buyer in 

connection with Buyer’s filings or any applications or other submittals with any 

Governmental Entity or third party (including the Texas Alcoholic Beverage Commission 

(the “TABC”) and the California Department of Alcoholic Beverage Control (the 

“CDABC”)) with respect to any of the Liquor Licenses and obtaining the necessary 

consents and approvals pertaining to the transfer and/or issuance of the Liquor Licenses to 

Buyer to enable Buyer or its Permitted Designee to sell and serve alcohol at each 

Continuing Restaurant on and after the Closing Date consistent with their respective 

current service hours and days of operation as of the Execution Date (“Liquor License 

Approvals”), including if deemed necessary by Buyer, by entering into the Management 

Agreement(s) and, if reasonably requested by Buyer, initiating and/or participating, at 

Buyer’s sole cost and expense, in such legal proceedings reasonably requested by Buyer to 

obtain such Liquor License Approvals; provided, however, that (i) to the extent that the 

applicable Governmental Entity (including the TABC and the CDABC) requires that a new 

license be purchased, the purchase price for such Liquor Licenses shall be paid by Buyer, 

without an adjustment to the Purchase Price, (ii) Buyer shall be responsible for all costs 

and fees charged by any third party, including but not limited to any escrow fee and fees 

for the processing of any vendor claims submitted to Buyer related to the Liquor Licenses 

for periods prior to Closing and this obligation of Buyer shall survive the Closing, and 

(iii) Buyer shall be responsible for all costs and fees charged by any third party, including 

but not limited to any escrow fee and fees for the processing of any vendor claims submitted 

to Buyer related to the Liquor Licenses for periods from and after Closing, to the extent 

arising from or relating to the Liquor Licenses, after Closing, and these obligations of 

Buyer shall survive the Closing. 

(b) Prior to Closing, Sellers shall notify Buyer within five (5) Business Days of 

(i) the receipt from any applicable Governmental Entity, including the TABC and the 

CDABC, of any complaint or notification of violation or (ii) any event of suspended 

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operations occurring of any of the Continuing Restaurants, which in the case of either 

provision (i) or (ii), are related to the Liquor Licenses. 

(c) Sellers and Buyer acknowledge that due to the procedures established by 

the applicable Governmental Entities (including the TABC and the CDABC) for the 

transfer of Liquor Licenses, Sellers may be operating the Continuing Restaurants for the 

benefit of Buyer for an undetermined period of time following the approval of the transfer 

of the Liquor Licenses from Sellers to Buyer by the applicable Governmental Entities 

(including the TABC and the CDABC) through the Closing. 

(d) In the event that the issuance of new Liquor Licenses to Buyer or the 

suitable transfer of Sellers’ existing Liquor Licenses for each Continuing Restaurant to 

Buyer cannot be obtained by Buyer from the applicable Governmental Entities (including, 

the TABC and the CDABC) prior to Closing for one (1) or more Liquor Licenses (including 

without limitation, temporary Liquor Licenses until permanent Liquor Licenses are 

transferred to or obtained by Buyer), to the extent permitted by Law, Buyer and Seller shall 

enter into one or more Management Agreements, in form and substance substantially 

similar to Exhibit E to this Agreement in order to permit Buyer to operate the Business and 

utilize the Liquor License for each Continuing Restaurant during the period commencing 

upon the Closing Date and terminating upon the receipt of the applicable Liquor Licenses 

for each respective Continuing Restaurant as issued to Buyer or its designated Affiliate 

and/or Subsidiary by the applicable Governmental Entities (including the TABC and the 

CDABC). 

Section 6.11 Data Privacy Protection. Buyer acknowledges that the Purchased Assets 

include personally identifiable information (“PII”) within the meaning of Section 363(b) of the 

Bankruptcy Code, along with associated personal information about Sellers’ customers. In 

connection with the same, Buyer agrees to: (i) employ appropriate security controls and procedures 

(technical, operational and managerial) to protect PII and personal information, (ii) abide by all 

applicable Laws and regulations with respect to PII and (iii) take such further actions with respect 

to PII as may be agreed between the Parties. Sellers agree to take such action reasonably requested 

by Buyer, including amending their privacy policies with respect to PII, as may be necessary to 

transfer the PII to Buyer, including sending a notice to the subjects of the PII and giving each such 

subject the right to object to the transfer of the PII. Buyer agrees that it shall, absent a customer’s 

consent received after adequate notice: (a) abide by Sellers’ privacy policies and privacy-related 

covenants made in Sellers’ terms of service that were in effect as of the Petition Date, (b) respect 

prior requests of customers to opt out of receipt of marketing messages (to the extent make Buyer 

aware of such requests; provided that Buyer shall seek to obtain such information from Sellers) 

and (c) use personal information only for the purposes of continuing Business operations and 

continuing to provide similar goods and services to customers, including marketing the products 

and services related to Purchased Assets. Buyer shall use its reasonable commercial efforts to 

obtain the consent of a customer for any additional use of PII or personal information or before 

making material changes to Sellers’ privacy policies that weaken a customer’s consumer 

protection. Furthermore, to the extent PII includes any social security numbers, Buyer shall limit 

such use to Tax reporting purposes, and shall purge such information from its databases when such 

information is no longer required for that purpose. 

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CONDITIONS TO CLOSING 

Section 7.1 Conditions to Buyer’s Obligations. Subject to Section 7.3, Buyer’s 

obligation to consummate the Contemplated Transactions in connection with the Closing is subject 

to satisfaction or waiver of the following conditions:

(a) As of the Execution Date and as of the Closing Date (in each case, except 

for any representation or warranty that is expressly made as of a specified date, in which 

case as of such specified date), (i) each representation or warranty contained in Section 3.1

through Section 3.3 and Section 3.5 shall be true and correct in all respects, and (ii) each 

other representation or warranty set forth in ARTICLE III shall be true and correct in all 

respects, except where the failure of such representations and warranties referred to in this 

clause (ii) to be true and correct, individually or in the aggregate with other such failures, 

has not had, and would not reasonably be expected to have, a Material Adverse Effect; 

provided, however, that for purposes of determining the accuracy of representations and 

warranties referred to in clause (ii) for purposes of this condition, all qualifications as to 

“materiality” and “Material Adverse Effect” contained in such representations and 

warranties shall be disregarded; 

(b) Sellers shall have performed and complied with their covenants and 

agreements hereunder to the extent required to be performed prior to the Closing in all 

material respects, and Sellers shall have caused the documents and instruments required by 

Section 2.8(a) to be delivered to Buyer (or tendered subject only to Closing); 

(c) no Governmental Entity of competent jurisdiction shall have enacted, issued, 

promulgated, enforced or entered any Decree that is in effect and that has the effect of making 

the Closing illegal or otherwise prohibiting the consummation of the Closing; 

(d) the Sale Procedures Order and the Sale Order are both in form and substance 

acceptable to Buyer; 

(e) the Sale Order and Sale Procedures Order shall have been entered by the 

Bankruptcy Court, which shall include a waiver of the fourteen (14) day stay set forth in 

Rule 6004(h) of the Federal Rules of Bankruptcy Procedure, and shall be final, nonappealable orders; 

(f) from the Execution Date until the Closing Date, there shall not have 

occurred and be continuing any Material Adverse Effect; and 

(g) Sellers shall have delivered a certificate from an authorized officer of each 

Seller to the effect that each of the conditions specified in Section 7.1(a), Section 7.1(b), 

and Section 7.1(f) has been satisfied. 

Section 7.2 Conditions to Sellers’ Obligations. Subject to Section 7.3, Sellers’ 

obligation to consummate the Contemplated Transactions in connection with the Closing are 

subject to satisfaction or waiver of the following conditions: 

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(a) as of the Execution Date and as of the Closing Date (in each case, except 

for any representation or warranty that is expressly made as of a specified date, in which 

case as of such specified date), (i) each representation or warranty contained in Section 4.1 

through Section 4.3 shall be true and correct in all respects, and (ii) each other 

representation or warranty set forth in ARTICLE IV shall be true and correct in all respects, 

except where the failure of such representations and warranties referred to in this clause 

(ii) to be true and correct, individually or in the aggregate with other such failures, would 

not reasonably be expected to materially prevent, restrict or delay the consummation of the 

Contemplated Transactions or the transactions contemplated by any Related Agreement; 

provided, however, that for purposes of determining the accuracy of representations and 

warranties referred to in clause (ii) for purposes of this condition, all qualifications as to 

“materiality” contained in such representations and warranties shall be disregarded; 

(b) Buyer shall have performed and complied with its covenants and 

agreements hereunder to the extent required to be performed prior to the Closing in all 

material respects, and Buyer shall have caused the documents, instruments and payments 

required by Section 2.8(b) to be delivered to Sellers (or tendered subject only to Closing); 

(c) no Governmental Entity of competent jurisdiction shall have enacted, issued, 

promulgated, enforced or entered any Decree that is in effect and that has the effect of making 

the Closing illegal or otherwise prohibiting the consummation of the Closing; 

(d) the Sale Order entered by the Bankruptcy Court and shall not be subject to 

a stay pending appeal; and 

(e) Buyer shall have delivered a certificate from an authorized officer of Buyer 

to the effect that each of the conditions specified in Section 7.2(a) and Section 7.2(b) has 

been satisfied. 

Section 7.3 No Frustration of Closing Conditions. Neither Buyer nor Sellers may 

rely on the failure of any condition to its obligation to consummate the Contemplated Transactions 

set forth in Section 7.1 or Section 7.2, as the case may be, to be satisfied if such failure was caused 

by such Party’s failure to use its commercially reasonable efforts with respect to those matters 

contemplated by the applicable Sections of this Agreement to satisfy the conditions to the 

consummation of the Contemplated Transactions or other breach of a representation, warranty or 

covenant hereunder.

TERMINATION 

Section 8.1 Termination of Agreement. This Agreement may be terminated and the 

Contemplated Transactions abandoned at any time prior to the Closing:

(a) by the mutual written consent of Buyer, on the one hand, and Sellers, on the 

other hand; 

(b) by either Buyer or Sellers if there shall be any applicable Law that makes 

consummation of the Contemplated Transactions illegal or otherwise prohibited or if 

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consummation of the Contemplated Transactions would violate any nonappealable final 

order, decree or judgment of any Governmental Entity having competent jurisdiction; 

(c) by Buyer by giving written notice to Sellers at any time prior to Closing 

(i) in the event any Seller has breached any covenant contained in this Agreement in any 

material respect such that the conditions set forth in Section 7.1 shall become incapable of 

being satisfied without cure, Buyer has notified Sellers of the breach, and the breach has 

continued without cure for a period of ten (10) Business Days after the notice of the breach, 

or (ii) in the event that any condition set forth in Section 7.1 shall become incapable of 

being satisfied, unless such failure shall be due to the failure of Buyer to perform or comply 

with any of the covenants hereof to be performed or complied with by it prior to the 

Closing, and such condition is not waived by Buyer; 

(d) by Sellers by giving written notice to Buyer at any time prior to Closing 

(i) in the event Buyer has breached any covenant contained in this Agreement in any 

material respect such that any condition set forth in Section 7.2 shall become incapable of 

being satisfied without cure, Sellers have notified Buyer of the breach, and the breach has 

continued without cure for a period of ten (10) Business Days after the notice of the breach, 

or (ii) in the event that any condition set forth in Section 7.2 shall become incapable of 

being satisfied, unless such failure shall be due to the failure of any Seller to perform or 

comply with any of the covenants hereof to be performed or complied with by it prior to 

the Closing, and such condition is not waived by Sellers; 

(e) by Buyer, on the one hand, or Sellers, on the other hand, if the Closing shall 

not have occurred by five (5) days after the Sale Order Deadline; provided, however, that 

neither Buyer nor Sellers may terminate this Agreement under this Section 8.1(e) if such 

failure is due to the failure of such Party to perform or comply with the covenants hereof 

to be performed or complied with by it/them prior to the Sale Order Deadline; 

(f) by Buyer if an “Event of Default” or “Default” is declared by the appliable 

administrative agent or lender(s) under the DIP Order or the DIP Credit Agreement, as 

applicable; 

(g) by Buyer if for any reason whatsoever, Buyer is unable to Credit Bid the 

Purchase Price pursuant to Section 2.5(a); 

(h) by Buyer if (i) the Sale Order shall not have been entered by the Bankruptcy 

Court by the Sale Order Deadline, (ii) any of Sellers files (y) any motion with the 

Bankruptcy Court seeking an order approving, or (z) any Plan involving, any Alternate 

Transaction, (iii) Sellers enter into a definitive agreement with a third party for an 

Alternate Transaction, or (iv) prior to the Closing, the Chapter 11 Cases shall be converted 

into a case(s) under chapter 7 of the Bankruptcy Code or dismissed; or 

(i) automatically and without any action or notice by Sellers to Buyer, or Buyer 

to Sellers, immediately: 

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(i) upon the issuance of a final and non-appealable order, decree, or 

ruling by a Governmental Entity to permanently restrain, enjoin or otherwise 

prohibit the Closing; 

(ii) upon approval by the Bankruptcy Court of an Alternate Transaction; 

or 

(iii) upon the consummation of an Alternate Transaction. 

Notwithstanding anything to the contrary contained herein, in no event may Buyer terminate this 

Agreement under Section 8.1(b) or Section 8.1(d) solely on account of Buyer’s failure to satisfy 

the conditions contained in Sections 365(b)(1)(C) and 365(f)(2)(B) of the Bankruptcy Code with 

respect to any proposed Assumed Contract or on account of Buyer’s failure to comply with the 

covenants set forth in this Agreement. 

Section 8.2 Procedure Upon Termination. In the event of termination and 

abandonment by Buyer, on the one hand, or Sellers, on the other hand, or both, pursuant to Section 

8.1, written notice thereof shall forthwith be given to the other Party or Parties, and this Agreement 

shall terminate and the Contemplated Transactions shall be abandoned, without further action by 

Buyer or Sellers. 

Section 8.3 Effect of Termination. 

(a) Except as otherwise expressly set forth in this Agreement, nothing herein 

shall relieve any Party from liability for any breach of covenant occurring prior to any 

termination of this Agreement. 

(b) No termination of this Agreement pursuant to Section 8.1 shall be effective 

until written notice thereof is given to the non-terminating Party specifying the provision 

hereof pursuant to which such termination is made. If the Contemplated Transactions are 

not consummated (a) this Agreement shall become null and void and of no further force 

and effect (except that ARTICLE I (Definitions), ARTICLE IX (Miscellaneous), and this 

ARTICLE VIII (Termination) shall survive any such termination); and (b) if this 

Agreement is terminated by Buyer pursuant to a termination right set forth in this 

ARTICLE VIII or by Sellers for any reason other than under Section 8.1(d), Sellers shall 

not be entitled to any damages, losses, or payment from Buyer, and Buyer shall have no 

further liability of any kind to Sellers, any of its Affiliates, or any third party on account of 

this Agreement. 

(c) Nothing herein shall preclude Buyer or Sellers from exercising their 

respective remedies under Section 9.1. 

MISCELLANEOUS 

Section 9.1 Remedies. Each of Buyer and Sellers recognizes that if it breaches or 

refuses to perform any covenant set forth in this Agreement, monetary damages alone would not 

be adequate to compensate the other Party for its injuries. Each Party shall therefore be entitled, 

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in addition to any other remedies that may be available, to obtain specific performance of, or to 

enjoin the violation of, the terms of such covenants. If any Litigation is brought by a Party to 

enforce such covenants, the other Party against which such Litigation is subject shall waive the 

defense that there is an adequate remedy at Law. Buyer and each Seller agrees to waive any 

requirement for the security or posting of any bond in connection with any Litigation seeking 

specific performance of, or to enjoin the violation of, such covenants. Buyer and each Seller agrees 

that the only permitted objection that it may raise in response to any action for specific performance 

of such covenants is that it contests the existence of a breach or threatened breach of such 

covenants. 

Section 9.2 Expenses. Except as otherwise provided in this Agreement or a Related 

Agreement, each of Sellers and Buyer shall bear their own expenses, including attorneys’ fees, 

incurred in connection with the negotiation and execution of this Agreement, the Related 

Agreements and each other agreement, document and instrument contemplated by this Agreement 

and the consummation of the Contemplated Transactions. Notwithstanding the foregoing, in the 

event of any action or proceeding to interpret or enforce this Agreement, the prevailing Party in 

such action or proceeding (i.e., the Party who, in light of the issues contested or determined in the 

action or proceeding, was more successful) shall be entitled to have and recover from the nonprevailing Party such costs and expenses (including, but not limited to, all court costs and 

reasonable attorneys’ fees) as the prevailing Party may incur in the pursuit or defense thereof.

Section 9.3 Entire Agreement. This Agreement and the Related Agreements 

constitute the entire agreement among the Parties and supersede any prior understandings, 

agreements or representations (whether written or oral) by or among the Parties, written or oral, 

with respect to the subject matter hereof. The recitals set forth above are expressly incorporated 

herein by reference. 

Section 9.4 Incorporation of Schedules, Exhibits and Disclosure Schedule. The 

schedules, appendices and exhibits to this Agreement, the documents and other information made 

available in the Disclosure Schedule are incorporated herein by reference and made a part hereof.

Section 9.5 Amendments and Waivers. No amendment of any provision of this 

Agreement shall be valid unless the same shall be in writing and signed by each Party except as 

expressly provided herein. No waiver of any breach of this Agreement shall be construed as an 

implied amendment or agreement to amend or modify any provision of this Agreement. No waiver 

by any Party of any default, misrepresentation or breach of warranty or covenant hereunder, 

whether intentional or not, shall be valid unless the same shall be in writing and signed by the 

Party making such waiver, nor shall such waiver 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 default, misrepresentation or breach of warranty 

or covenant. No conditions, course of dealing or performance, understanding or agreement 

purporting to modify, vary, explain or supplement the terms or conditions of this Agreement shall 

be binding unless this Agreement is amended or modified in writing pursuant to the first sentence 

of this Section 9.5 except as expressly provided herein. Except where a specific period for action 

or inaction is provided herein, no delay on the part of any Party in exercising any right, power or 

privilege hereunder shall operate as a waiver thereof.

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Section 9.6 Succession and Assignment. This Agreement shall be binding upon and 

inure to the benefit of the Parties and their respective successors and permitted assigns. None of 

the Parties may assign either this Agreement or any of its rights, interests or obligations hereunder 

without the prior written approval of all Parties; provided, however, that Buyer may elect to have 

any or all of the Purchased Assets conveyed or transferred to, or any or all of the Assumed 

Liabilities assumed by, one or more of its Permitted Designees without the consent of any of 

Sellers; provided, however, Buyer shall remain liable for all of its obligations to Sellers under this 

Agreement after any such assignment; provided, further, that Sellers shall be permitted to assign 

any of their rights hereunder pursuant to a confirmed chapter 11 plan or pursuant to an order of the 

Bankruptcy Court. 

Section 9.7 Notices. All notices, requests, demands, claims and other communications 

hereunder shall be in writing except as expressly provided herein. Any notice, request, demand, 

claim or other communication hereunder shall be deemed duly given (i) when delivered personally 

to the recipient, (ii) one (1) Business Day after being sent to the recipient by reputable overnight 

courier service (charges prepaid), (iii) when sent by email (with written confirmation of 

transmission), or (iv) three (3) Business Days after being mailed to the recipient by certified or 

registered mail, return receipt requested and postage prepaid, and addressed to the intended 

recipient as set forth below: 

If to any Seller, then to: 

Chief Restructuring Officer 

c/o CR3 Partners, LLC 

13355 Noel Rd. 

Suite 2005 

Dallas, Texas 75240 

Attention: William Snyder 

Email: william.snyder@cr3partners.com 

with a copy to: 

Gray Reed & McGraw LLP 

1601 Elm Street, Suite 4600 

Dallas, Texas 75201 

Attention: Amber Carson 

Email: acarson@grayreed.com 

If to Buyer, then to: 

BDB Intermediate, LLC 

c/o Main Street Capital Corporation 

1300 Post Oak Blvd. 

8th Floor 

Houston, TX 77056 

Attn: Diego Fernandez 

Email: dfernandez@mainstcapital.com 

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with copies (which shall not constitute notice) to: 

Porter Hedges LLP 

1000 Main Street 

36th Floor 

Houston, TX 77002 

Attn: Brian G. Rose and Joshua W. Wolfshohl 

Email: brose@porterhedges.com / jwolfshohl@porterhedges.com 

Any Party may change the mailing address or email address to which notices, requests, demands, 

claims and other communications hereunder are to be delivered by giving the other Party notice in 

the manner set forth in this Section 9.7.

Section 9.8 Governing Law; Jurisdiction. This Agreement shall in all aspects be 

governed by and construed in accordance with the internal Laws of the State of Texas without 

giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or 

any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than 

the State of Texas, and the obligations, rights and remedies of the Parties shall be determined in 

accordance with such Laws. The Parties agree that any Litigation one Party commences against 

any other Party pursuant to this Agreement shall be brought exclusively in the Bankruptcy Court 

and each of the Parties hereby irrevocably consents to the jurisdiction of the Bankruptcy Court 

(and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and 

irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or 

hereafter have to the laying of the venue of any such suit, action or proceeding in the Bankruptcy 

Court or that any such suit, action or proceeding which is brought in the Bankruptcy Court has 

been brought in an inconvenient forum; provided that if the Bankruptcy Court is unwilling or 

unable to hear any such Litigation, then the courts of the State of Texas, sitting in Dallas County, 

Texas, and the federal courts of the United States of America sitting in Dallas County, Texas, shall 

have exclusive jurisdiction over such Litigation. 

Section 9.9 Consent to Service of Process. Each of the Parties hereby consents to 

process being served by any Party, respectively, in any suit, action or proceeding by delivery of a 

copy thereof in accordance with the provisions of Section 9.7.

Section 9.10 WAIVERS OF JURY TRIAL. EACH OF THE PARTIES 

IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A 

TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY 

ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE 

RELATED AGREEMENTS OR THE CONTEMPLATED TRANSACTIONS OR THEREBY. 

Section 9.11 Severability. The provisions of this Agreement shall be deemed severable, 

and the invalidity or unenforceability of any provision of this Agreement shall not affect the 

validity or enforceability of any other provisions of this Agreement. If any provision of this 

Agreement, or the application thereof to any Person or any circumstance, is invalid or 

unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry 

out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable 

provision, and (b) the remainder of this Agreement and the application of such provision to other 

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Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall 

such invalidity or unenforceability in any one jurisdiction affect the validity or enforceability of 

such provision, or the application thereof, in any other jurisdiction.

Section 9.12 No Third Party Beneficiaries. This Agreement shall not confer any rights 

or remedies upon any Person other than the Parties and their respective successors and permitted 

assigns.

Section 9.13 No Survival of Representations, Warranties and Agreements. None of 

the Parties’ representations, warranties, covenants and other agreements in this Agreement, 

including any rights of any other Party or any third party arising out of any breach of such 

representations, warranties, covenants and other agreements, shall survive the Closing, except for 

(i) those covenants and agreements contained herein that by their terms apply or are to be 

performed in whole or in part after the Closing, (ii) this ARTICLE IX, and (iii) all defined terms 

set forth in ARTICLE I that are referenced in the foregoing provisions referred to in clauses (i) 

and (ii) above.

Section 9.14 Construction. The definitions contained in this Agreement are applicable 

to the singular as well as the plural forms of such terms. Whenever the context may require, any 

pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the 

singular form of names and pronouns shall include the plural and vice versa. The word “including” 

and “include” and other words of similar import shall be deemed to be followed by the phrase 

“without limitation.” The words “herein,” “hereto” and “hereby,” and other words of similar 

import refer to this Agreement as a whole and not to any particular Article, Section or other 

subdivision of this Agreement. Unless expressly stated in connection therewith or the context 

otherwise requires, the phrase “relating to the Business” and other words of similar import shall 

be deemed to mean “relating to the operation of the Business as conducted as of the Execution 

Date.” Except as otherwise provided herein, references to Articles, Sections, clauses, subclauses, 

subparagraphs, Schedules, Exhibits, Appendices and the Disclosure Schedule herein are references 

to Articles, Sections, clauses, subclauses, subparagraphs, Schedules, Appendices, Exhibits and the 

Disclosure Schedule of this Agreement. Any reference herein to any Law (or any provision 

thereof) shall include such Law (or any provision thereof) and any rule or regulation promulgated 

thereunder, in each case, including any successor thereto, and as it may be amended, modified or 

supplemented from time to time. Any reference herein to “dollars” or “$” means United States 

dollars.

Section 9.15 Computation of Time. In computing any period of time prescribed by or 

allowed with respect to any provision of this Agreement that relates to Sellers or the Chapter 11 

Cases, the provisions of Rule 9006(a) of the Federal Rules of Bankruptcy Procedure shall apply.

Section 9.16 Mutual Drafting. Each of the Parties has participated jointly in the 

negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or 

interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no 

presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the 

authorship of any of the provisions of this Agreement.

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Section 9.17 Disclosure Schedule. All capitalized terms not defined in the Disclosure 

Schedule shall have the meanings ascribed to them in this Agreement. The representations and 

warranties of Sellers in this Agreement are made and given, and the covenants are agreed to, 

subject to the disclosures and exceptions set forth in the Disclosure Schedule. The disclosure of 

any matter in any section of the Disclosure Schedule shall be deemed to be a disclosure with 

respect to any other sections of the Disclosure Schedule to which such disclosed matter reasonably 

relates, but only to the extent that such relationship is reasonably apparent on the face of the 

disclosure contained in the Disclosure Schedule. The listing of any matter shall expressly not be 

deemed to constitute an admission by Sellers, or to otherwise imply, that any such matter is 

material, is required to be disclosed under this Agreement or falls within relevant minimum 

thresholds or materiality standards set forth in this Agreement. No disclosure in the Disclosure 

Schedule relating to any possible breach or violation of any Contract or law shall be construed as an 

admission or indication that any such breach or violation exists or has actually occurred. In no event 

shall the disclosure of any matter in the Disclosure Schedule be deemed or interpreted to expand the 

scope of Sellers’ representations, warranties and/or covenants set forth in this Agreement. All 

attachments to the Disclosure Schedule are incorporated by reference into the Disclosure Schedule 

in which they are directly or indirectly referenced. 

Section 9.18 Headings; Table of Contents. The section headings and the table of 

contents contained in this Agreement and the Disclosure Schedule are inserted for convenience 

only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 9.19 Counterparts; Facsimile and Email Signatures. This Agreement may be 

executed in one or more counterparts, each of which shall be deemed an original but all of which 

together shall constitute one and the same instrument. This Agreement or any counterpart may be 

executed and delivered by facsimile, email with scan attachment copies, or other electronic 

signature method, including DocuSign, each of which shall be deemed an original.

Section 9.20 Time of Essence. Time is of the essence of this Agreement.

[SIGNATURE PAGES FOLLOW] 

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[Signature page to Asset Purchase Agreement]

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date 

first above written.

SELLERS:

BUCA C, LLC, 

a Florida limited liability company 

By:

Name: William Snyder

Title: Chief Restructuring Officer 

BUCA TEXAS RESTAURANTS, L.P.,

a Texas limited partnership

By: BUCA RESTAURANTS, INC., 

its general partner

By:

Name: William Snyder

Title: Chief Restructuring Officer 

BUCA TEXAS BEVERAGE, INC.,

a Texas corporation

By:

Name: William Snyder

Title: Chief Restructuring Officer 

BUCA SALES & MARKETING, LLC,

a Florida liability company

By:

Name: William Snyder

Title: Chief Restructuring Officer 

SimplyAgree Sign signature packet ID: 0a59a18a-2fa6-48ed-83ec-2f45a3987a25 Case 24-80058-sgj11 Doc 383 Filed 10/31/24 Entered 10/31/24 20:33:12 Desc

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SELLERS, continued:

BUCA INVESTMENTS, INC.,

a Minnesota corporation 

By:

Name: William Snyder

Title: Chief Restructuring Officer 

BUCA RESTAURANTS, INC., 

a Minnesota corporation 

By:

Name: William Snyder

Title: Chief Restructuring Officer 

BUCA RESTAURANTS 2, INC., 

a Minnesota corporation 

By:

Name: William Snyder

Title: Chief Restructuring Officer 

BUCA (CELEBRATION), LLC, 

a Florida limited liability company

By:

Name: William Snyder

Title: Chief Restructuring Officer 

SimplyAgree Sign signature packet ID: 0a59a18a-2fa6-48ed-83ec-2f45a3987a25 Case 24-80058-sgj11 Doc 383 Filed 10/31/24 Entered 10/31/24 20:33:12 Desc

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SELLERS, continued:

BUCA (EX), LLC, 

a Florida limited liability company

By:

Name: William Snyder

Title: Chief Restructuring Officer 

BUCA (MINNEAPOLIS), INC., 

a Minnesota corporation

By:

Name: William Snyder

Title: Chief Restructuring Officer 

SimplyAgree Sign signature packet ID: 0a59a18a-2fa6-48ed-83ec-2f45a3987a25 Case 24-80058-sgj11 Doc 383 Filed 10/31/24 Entered 10/31/24 20:33:12 Desc

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[Signature page to Asset Purchase Agreement]

BUYER:

BDB INTERMEDIATE, LLC

a Delaware limited liability company

By:

Name: Diego Fernandez

Title: Authorized Representative 

SimplyAgree Sign signature packet ID: a7deab26-9256-4393-a68c-7a7e5a21ed6b Case 24-80058-sgj11 Doc 383 Filed 10/31/24 Entered 10/31/24 20:33:12 Desc

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Case 24-80058-sgj11 Doc 391 Filed 11/04/24 Entered 11/04/24 14:51:30 Desc

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