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ASSIGNMENT AND ASSUMPTION OF
"▇▇▇▇▇ ▇▇▇▇▇▇ ROASTERS" FRANCHISE AGREEMENTS,
MASTER DEVELOPMENT AGREEMENTS, AND
INTELLECTUAL PROPERTY
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "AGREEMENT") is made and
entered into as of this 31st day of March 1999 (the "EFFECTIVE DATE"), by and
among ROASTERS CORP. and ROASTERS FRANCHISE CORP., Florida corporations, with
their principal office located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively the "DEBTORS"), and NF-ROASTERS
CORPORATION, a Delaware corporation with its principal office located at ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "COMPANY").
R E C I T A L S :
A. WHEREAS, On March 24, 1998, Roasters Corp. filed a voluntary
petition under Chapter 11 of the Bankruptcy Code, and its wholly owned
subsidiary, Roasters Franchise Corp., filed a voluntary petition under Chapter
11 of the Bankruptcy Code on May 6, 1998. The petitions were filed in the United
States Bankruptcy Court for the Middle District of North Carolina (the
"BANKRUPTCY COURT").
B. WHEREAS, On March 3, 1999, the Bankruptcy Court entered an order
confirming the First Amended Franchisee Plan of Reorganization dated January 15,
1999, as amended (the "PLAN"), and such order is now a final order which has not
been stayed and is no longer subject to review, reversal, modification or
amendment by appeal (the "CONFIRMATION ORDER").
C. WHEREAS, Pursuant to Section 3.5(b) of the Plan and paragraph 22 of
the Confirmation Order, the Debtors are authorized to assume and assign to the
Company the ▇▇▇▇▇ ▇▇▇▇▇▇ Roasters Franchise Agreements and Master Development
Agreements for the franchisees operating "▇▇▇▇▇ ▇▇▇▇▇▇ Roasters" franchised
restaurants at the locations listed in Exhibit A attached hereto and
incorporated herein by reference (collectively, the "FRANCHISE AGREEMENTS").
D. WHEREAS, Each franchisee under the Franchise Agreements has
heretofore executed a Release in which the franchisee has: (i) consented to the
assumption and assignment of its respective franchise agreement; (ii) waived any
claims which such franchisee may have against the Debtors or the consolidated
estate arising in, arising under or related to its respective franchise
agreement; (iii) acknowledged that any default under the Franchise Agreement has
been cured; (iv) waived any requirement that the Debtors or the Company provide
adequate assurance of future performance under the Franchise Agreement; and (v)
consented to the assumption and assignment of its franchise agreement to the
Company.
E. WHEREAS, Each franchisee listed in Exhibit A has heretofore executed
a Uniform Amendment (or an "Amended and Restated Franchise Agreement") for each
of the franchised restaurants listed in Exhibit A
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F. WHEREAS, On March 3, 1999, the Bankruptcy Court appointed ▇▇▇▇
▇▇▇▇▇▇ as Chapter 11 Liquidating Trustee (the "TRUSTEE") for the purpose of
facilitating the implementation and consummation of the Plan, and such Trustee
is now duly qualified and acting in such capacity.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties agree as follows:
1. Assumption. The Debtors, in accordance with and pursuant to Section 3.5(b) of
the Plan and the Releases heretofore executed by the respective franchisees,
hereby assume the Franchise Agreements.
2. Assignment of the Franchise Agreements. The Debtors, for good and valuable
consideration, and subject to the terms of the Plan and Confirmation Order, do
hereby assign and transfer to the Company all rights of the Debtors under the
Franchise Agreements, excluding and reserving therefrom the following: (i) the
right of the Debtors to receive and collect from the franchisees the amount of
post-petition franchise fees and royalties (as defined in the Plan) as
determined by the Bankruptcy Court or agreed upon by the parties as remaining
due and owing the Debtors; and (ii) the right to collect pre-petition franchise
fees and royalty fees owed to the Debtors by each such franchisee if the
franchisee fails to timely pay all post-petition franchise or royalty fees as
provided for under the Plan.
3. Assignment of the Intellectual Property. The Debtors, for good and valuable
consideration, and subject to the terms of the Plan and Confirmation Order, do
hereby assign and transfer to the Company all of the Debtors' intellectual
property, including without limitation any and all:
a. common law and unregistered trademarks and service marks (as well as
the goodwill associated with said trademarks and service marks)
b. trademark and service ▇▇▇▇ registrations (including but not limited
to the registrations listed in Exhibit B to this Agreement);
c. copyrights,
d. trade secrets,
e. patents, patent applications, and patent applications in process,
f. Internet domain names and Internet web pages,
g. recipes,
h. manuals, and
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i. advertising (whether in preparation, complete, or held for the
Debtors by one or more vendors, such as advertising agencies, creative agencies,
or other parties).
4. Assignment of the Advertising Fund. The Debtors, for good and valuable
consideration, and subject to the terms of the Plan and Confirmation Order:
a. Shall within ten (10) business days pay to the
Company the sum of Ninety Thousand Seven Hundred and
Eighteen Dollars and Four Cents ($90,718.04),
representing the sum of:
i. The post-petition payments of advertising
fund fees already made to the Debtors, less
amounts expended for such purposes; and
ii. All the funds on deposit in the advertising
fund account as of March 24, 1998, less
pro-rata portions of the fees, costs, or
distributions made by ▇▇▇▇▇▇▇ Bank from the
aggregate funds in the Debtors' garnish
accounts; and
b. Hereby assign and shall promptly upon receipt transfer to the
Company all funds hereafter collected from franchisees and other parties for, or
on account of, the advertising fund is, and shall be, Company's property, and
the Debtors shall promptly remit such collections to the Company for deposit
into the ▇▇▇▇▇ ▇▇▇▇▇▇ Roasters advertising fund. Debtors further authorize the
Company to collect overdue advertising fund contributions and other overdue sums
to be deposited into the ▇▇▇▇▇ ▇▇▇▇▇▇ Roasters advertising fund (accrued for
periods prior to today's date), subject only to the requirement that the Company
notify the Debtors in writing that such collections have been made.
5. Assignment of the ▇▇▇▇▇ ▇▇▇▇▇▇ License Agreement. The Debtors do hereby
assume and, for good and valuable consideration and subject to the terms of the
Plan and Confirmation Order, do hereby assign and transfer to the Company, all
of the Debtors' right, title, and interest in and to that certain license
agreement dated April 5, 1993, by and between Mr. ▇▇▇▇▇ ▇▇▇▇▇▇, as licensor, and
Debtors' predecessor (Roasters Ltd.), as licensee.
6. Additional Documents. The Debtors agree that they shall, upon reasonable
request by the Company, execute such documents as the Company may deem
reasonably necessary in order to implement the terms of this Agreement.
7. Payment. On or before April 1, 1999, the Company shall remit to the Debtors
the sum of One Million Two Hundred and Fifty Thousand Dollars ($1,250,000).
8. Performance of Duties. The Company hereby assumes and agrees to perform all
of the Debtors' obligations under the Franchise Agreements as of the Effective
Date and shall indemnify and hold harmless the Debtors, from and against any
claim or demand made thereunder arising out of the Company's performance of, or
failure to perform, on or after the Effective Date.
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9. Counterparts and Faxed Signatures. This Agreement may be signed in
counterparts, and the parties agree that their signatures may be exchanged by
fax, and that a copy of this Agreement with such signatures shall be deemed an
original copy hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
ROASTERS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, Chapter 11 Liquidating Trustee
ROASTERS FRANCHISE CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, Chapter 11 Liquidating Trustee
NF ROASTERS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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EXHIBIT A
FRANCHISEE STATE CITY
FEW, LLC AK Anchorage
Best Roasters, Inc., The ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Investment Co. AL Mobile
▇▇▇▇▇▇ Investment Co. ▇▇ ▇▇▇▇▇▇▇▇▇▇
Valley Roasters II, Inc. of CA CA Burbank, N. San ▇▇▇▇▇▇▇▇ Rd.
Valley Roasters III, Inc. CA Burbank, West Alameda Ave.
KR Roasters LP (▇▇▇▇▇▇▇▇▇ Co.) CA Corona
▇▇▇▇, ▇▇▇: Hollywood Roasters, LLC CA Hollywood, N. Highland Ave.
▇▇▇▇, ▇▇▇: Lakewood Roasters, LLC CA Lakewood, Faculty St.
▇▇▇▇▇▇▇, ▇▇▇▇▇ CA Los Angeles, Wilshire Blvd.
KR Roasters LP (▇▇▇▇▇▇▇▇▇ Co.) CA Palm Desert
▇▇▇▇, ▇▇▇: Reseda Roasters LLC CA Reseda (Reseda Blvd.)
IFCC, Inc. CA Santa ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇: Temple Roasters LLC CA Temple, Rosemead Blvd.
▇▇▇▇▇▇ , Inc. CA West Hills (Vanowen St.)
MSK Enterprises FL Pembroke Pines
(▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.)
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ Pembroke Pines
(184th S.W Pines Blvd.)
Lion's Share Productions, Inc. (▇▇▇▇▇ ▇▇▇▇▇▇) GA Athens (2440 W. Broad St.)
Idaho Roasters, Inc. ID Boise (N. Milwaukee Ave.)
Idaho Roasters, Inc. ID Boise (Broadway Ave.)
Gem State Roasters ID Idaho Falls
Idaho Roasters, Inc. ID Nampa
Midwest Investors Limited Partnership, II IL Peoria
▇▇▇▇ Entertainment IL Rockford
Midwest Investors Limited Partnership, II IL Springfield
JPB Restaurant Concepts, II, Inc. MD Bel Air
JPB Restaurant Concepts, V, Inc. MD Cockeysville
JPB Restaurant Concepts, III, Inc. MD Ellicott
JPB Restaurant Concepts, IV, Inc. MD Frederick
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Concepts, I, Inc. MD Laurel
JPB Restaurant Concepts, VI, Inc. MD Whitemarsh
Donmark, Inc MI Flint (Linden Rd,)
Chicken Chateau MI Saginaw
▇▇▇▇▇▇ Nevada NV Henderson
▇▇▇▇▇▇ Nevada NV Las Vegas (Fair Center Pkwy.)
▇▇▇▇▇▇ Nevada NV Las Vegas (Rainbow Blvd.)
▇▇▇▇▇▇ Nevada NV Las Vegas (Sahara Ave.)
▇▇▇▇▇▇ Nevada NV Pahrump
Roasters of Long Island NY Commack
Roasters of Long Island NY East Meadow
Roasters of Long Island NY Huntington Station
Roasters of Long Island NY Rockville Center
Roasters of Long Island NY Selden
▇▇▇▇▇ ▇▇▇▇▇ Group OH Akron
Cascade Hospitality, Inc. OR Springfield
Utah Roasters UT Orem
Utah Roasters UT St. ▇▇▇▇▇▇
▇▇▇ Valley Roasters, LLC WI Appleton (Northland Ave.)
Badger Roasters, LLC WI Appleton (W. Wisconsin Ave.)
Wisconsin Roasters, LLC WI Milwaukee
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