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EXHIBIT 10.11
XXXX OF SALE AND ASSUMPTION OF LIABILITIES
(Summit Family Restaurants Inc. to JB's Restaurants, Inc.)
This Xxxx of Sale and Assumption of Liabilities, entered into effective
as of 6:00 a.m., Pacific time, on September 22, 1997 ("Xxxx of Sale"), is
executed and delivered between (i) Summit Family Restaurants Inc., a Delaware
corporation ("Summit") and a wholly-owned subsidiary of CKE Restaurants, Inc.
("CKE"), and (ii) JB's Restaurants, Inc., a Delaware corporation and a
wholly-owned subsidiary of CKE ("JB's") pursuant to the Contribution Agreement,
dated as of September , 1997, by and among CKE, Summit, JB's and others (the
"Contribution Agreement").
ARTICLE 1
Definitions
The following definitions shall for all purposes apply to the terms used
in this Xxxx of Sale.
(a) "Assets" means all of Summit's assets, properties and rights of
every kind, character and description, whether tangible or intangible, whether
real, personal or mixed, whether accrued or contingent, and wherever located,
including, without limitation, all such assets, properties and rights relating
to Summit's JB's Restaurants and related franchise system and its Galaxy Diner
restaurants (the "Restaurant Operations"), all interests (including leasehold
interests) of Summit in and to any real property, and Summit's entire right,
title and interest in and to the following, as the same shall exist at and as of
the time and date hereof:
(1) All of the equipment, furniture, fixtures, trade fixtures,
signs, sign poles, machinery, kitchen equipment, computers, cash registers,
menus, uniforms, small equipment, small wares and other tangible personal
property;
(2) All inventories of food products and supplies;
(3) All of the agreements under which Summit owns or holds any
leasehold interest in real property, including any buildings and improvements
thereon, or leases in personal property, whether tangible or intangible
(collectively, the "Leases");
(4) All of the Franchise Agreements and other agreements,
contracts, licenses, instruments, commitments and understandings, written or
oral, that are related to or required for the operation of the Restaurant
Operations (collectively, the "Assigned Contracts");
(5) All rights in and to any governmental and private permits,
licenses, certificates of occupancy, franchises and authorizations, to the
extent assignable, used in or relating to the Restaurant Operations;
(6) All rights in and to any processes, recipes, menus,
formulations, methods, software (including documentation), technology, know-how,
formulae, trade secrets, trade dress, inventions, patents, copyrights, copyright
registrations, trade names, trademarks and service marks (and federal and state
registrations thereof), and all applications therefor, owned or held by Summit
and
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used in connection with the operation of or relating to the Restaurant
Operations which shall include, without limitation, all goodwill associated
therewith;
(7) All financial books and accounting records, and all files,
lists, publications, and other records and data used in or relating to the
Restaurant Operations, including, without limitation, lists of suppliers and
distributors and related files, environmental records, price lists, marketing
plans, sales records, labor relations and employee compensation records, and
maintenance records, regardless of the medium on which such information is
stored or maintained;
(8) All cash on hand;
(9) All prepaid fees and deposits associated with any Assigned
Contracts or with the Restaurant Operations and all prepaid rents, property
taxes and repairs and maintenance supplies and similar prepaid expense items;
(10) Any cause of action, claim, suit, proceeding, judgment or
demand, of whatsoever nature, of or held by Summit against any third parties
arising out of the Assets; and
(11) All goodwill associated with the Assets.
provided, however, that the Assets shall not include the assets, rights or
properties identified on Annex A hereto (the "Excluded Assets"), which shall be
retained by Summit.
(b) "Assumed Liabilities" means all of Summit's liabilities, duties and
obligations, other than Excluded Liabilities, of every kind, character and
description, whether known or unknown, whether matured or unmatured and whether
accrued or contingent, and including, without limitation, the following:
(1) All liabilities of Summit arising out of the Restaurant
Operations (including, without limitation, liabilities
arising under all Franchise Agreements and obligations to
Franchisees);
(2) All unperformed and unfulfilled obligations of Summit
under all Assigned Contracts and all purchase orders,
commitments and undertakings; and
(3) All other liabilities, duties and obligations arising from
the Restaurant Operations including, without limitation,
those executory obligations arising after the date hereof
under the Assigned Contracts and the Leases;
provided, however, that the Liabilities shall not include the liabilities,
duties and obligations identified on Annex B hereto (the "Excluded
Liabilities"), for which Summit shall remain solely responsible.
(c) "Franchise Agreements" shall mean all agreements pursuant to which
Summit has granted to any other person or entity (a "Franchisee") the right or
license to operate any JB's Restaurant.
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ARTICLE 2
Conveyances
(a) For the consideration described in the Contribution Agreement, in
consideration of the assumption by JB's of the Assumed Liabilities and the
delivery by JB's to Summit of a promissory note in the principal amount of
$___________, which reflects Summit's book value of the net Assets (i.e., the
sum of the book values of the Assets less the book value of the Assumed
Liabilities), and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Summit hereby grants, assigns,
transfers and delivers to JB's all of its right, title and interest to the
Assets, at and as of the time and date hereof.
TO HAVE AND TO HOLD all the foregoing Assets to its own use forever.
(b) In the event that the transfer and assignment attempted to be made
hereunder of any right, title or interest in, to or under any agreement,
easement, right-of-way, lease, permit, license, right, claim or other Asset
would be ineffective as between Summit and JB's or would violate any applicable
law or regulation without the order, approval, waiver or consent of any person
or entity, or would serve as a cause for modifying, terminating or invalidating
any such agreement, easement, right-of-way, lease, permit, license, right, claim
or other Assets, or would cause or serve as a cause for the loss, or the
modification of the terms, or ownership thereof or the right, title of interest
therein, then, notwithstanding the foregoing, such Asset shall be temporarily
excluded from the aforesaid conveyance and assignment; provided, however, that,
in any event, Summit shall, to the greatest extent permitted, hold such right,
title or interest for the exclusive use and benefit of JB's and its successors
and assigns until such order, approval, waiver or consent has been obtained or
until, following the exhaustion of all challenges and appeals, it is finally
determined that no such order, approval, waiver or consent will be obtained, at
which time such right, title or interest shall automatically and with no further
action or consideration in respect thereof be excluded from this Xxxx of Sale;
and provided, further, that, without further consideration therefor, Summit and
JB's shall execute such other and further documents, and shall take such other
and further actions, as shall be reasonably necessary to transfer, convey and
assign to JB's any right, title or interest excluded from this Xxxx of Sale
pursuant to the preceding proviso. Upon the obtaining of such order, approval,
wavier or consent, no further conveyance or assignment shall be required, but
such right, title or interest shall automatically and with no further action or
consideration therefor become fully and completely vested in JB's by virtue of
this Xxxx of Sale.
ARTICLE 3
Assumption of Liabilities
For the consideration described in the Contribution Agreement, in
consideration of the contribution of the Assets to JB's and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, JB's hereby assumes the Assumed Liabilities at and as of the time
and date hereof, and agrees to pay, perform and discharge all of the Assumed
Liabilities promptly when due or when required to be performed.
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ARTICLE 4
Power of Attorney
Summit does hereby constitute and appoint JB's, its successors and
assigns the true and lawful attorney-in-fact of Summit with full power and
substitution for it and in its name, place and stead or otherwise by or on
behalf of Summit, its successors and assigns and for the benefit of JB's, its
successors and assigns, to demand and receive from time to time any and all
moneys, property and assets, real, personal and mixed, tangible and intangible,
hereby transferred and assigned or intended so to be and to make, execute,
acknowledge, swear to and file in the name of Summit and its successors and
assigns any deeds, assignments, notices, filings, applications, registrations
and other instruments of further assurance and transfer and registration of the
same and to give receipts and releases in respect of the same, and from time to
time, to institute and prosecute in the name of JB's, or Summit for the benefit
of JB's, any and all proceedings at law, in equity or otherwise which JB's, its
successors and assigns may deem proper in order to collect, assert, perfect,
improve or enforce any claims, rights, interest or title of any kind in and to
the Assets, and to defend and compromise any and all actions, suits or
proceedings in respect of any of the Assets and to do any and all such acts and
things in furtherance of the purposes of this Xxxx of Sale as JB's, its
successors or assigns shall deem advisable. Summit hereby declares that the
appointment hereby made and the powers hereby granted are coupled with an
interest and are and shall be irrevocable and perpetual and shall not be
terminated by an act of Summit or its successors or assigns, by the bankruptcy,
insolvency or dissolution of Summit or any successor thereto or assign thereof
or otherwise by operation of law.
ARTICLE 5
Governing Law
This Xxxx of Sale shall be governed by and construed and enforced in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, this Xxxx of Sale has been duly executed by the
parties hereto as of the date first above written.
SUMMIT FAMILY RESTAURANTS INC.,
a Delaware corporation
By:______________________________
Its:__________________________
JB'S RESTAURANTS, INC.,
a Delaware corporation
By:______________________________
Its:__________________________
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ANNEX A
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EXCLUDED ASSETS
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1. All of the issued and outstanding shares of capital stock of HTB
Restaurants, Inc. ("HTB") owned, beneficially as of record, by Summit.
2. The Casa Xxxxxx Assets (as such term is defined in the Contribution
Agreement).
3. Leases and Assigned Contracts, to the extent subleased or otherwise held by
Summit for the benefit of or used by HTB in connection with the operation
of its restaurants.
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ANNEX B
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EXCLUDED LIABILITIES
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1. All obligations of Summit assumed pursuant to the Contribution Agreement
with respect to the Casa Xxxxxx Restaurants.
2. All obligations of Summit under Leases and Assigned Contracts included in
Item 3 of the definition of Excluded Assets in Annex A.
3. All obligations and liabilities of Summit, if any, arising under or
relating to the franchise agreements between HTB Restaurants, Inc. ("HTB")
and HomeTown Buffet, Inc. or the restaurant operations of HTB.
