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EXHIBIT 10.10
XXXX OF SALE AND ASSUMPTION OF LIABILITIES
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(Casa Xxxxxx Incorporated to Summit Family Restaurants Inc.)
This Xxxx of Sale and Assumption of Liabilities, entered into effective
as of 6:00 a.m., Pacific time, on September 23, 1997 ("Xxxx of Sale"), is
executed and delivered between (i) Casa Xxxxxx Incorporated, a Texas corporation
("CB") and indirect wholly-owned subsidiary of CKE Restaurants, Inc. ("CKE"),
and (ii) Summit Family Restaurants Inc., a Delaware corporation ("Summit") and a
wholly-owned subsidiary of CKE pursuant to the Contribution Agreement, dated as
of September , 1997, by and among CKE, Summit, CB and others (the
"Contribution Agreement").
ARTICLE 1
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Definitions
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The following definitions shall for all purposes apply to the terms
used in this Xxxx of Sale.
(a) "Assets" means all of CB'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 that are
related to or used in the operation of the Casa Xxxxxx Restaurants (other than
Excluded Assets), including, without limitation, CB'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 located at and used in connection with the operation of the Casa Xxxxxx
Restaurants;
(2) All inventories of food products and supplies purchased by CB
for use in connection with the Casa Xxxxxx Restaurants;
(3) All of the agreements relating to the Casa Xxxxxx Restaurants
under which CB 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 agreements, contracts, licenses, instruments,
commitments and understandings, written or oral, that are related to or required
for the operation of the Casa Xxxxxx Restaurants (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 Casa Xxxxxx Restaurants;
(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 CB and
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used in connection with the operation of or relating to the Casa Xxxxxx
Restaurants 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 Casa
Xxxxxx Restaurants, 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 (store drawer and safe) at the Casa Xxxxxx
Restaurants;
(9) All prepaid fees and deposits associated with any Assigned
Contracts or with the operation of the Casa Xxxxxx Restaurants (including,
without limitation, a $50,000 deposit with Sygma), and all prepaid rents,
property taxes and repairs and maintenance supplies and similar prepaid expense
items (subject to proration as provided in the Contribution Agreement);
(10) Any cause of action, claim, suit, proceeding, judgment or
demand, of whatsoever nature, of or held by CB against any third parties arising
out of the Assets or the Casa Xxxxxx Restaurants; and
(11) All goodwill associated with the Casa Xxxxxx Restaurants and
the Assets.
(b) "Assumed Liabilities" means all of CB'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 related to the Assets and the Casa Xxxxxx Restaurants
(other than Excluded Liabilities) and including, without limitation, the
following:
(1) All current liabilities of CB arising out of the operation of
the Casa Xxxxxx Restaurants;
(2) All unperformed and unfulfilled obligations of CB under all
Assigned Contracts and all purchase orders, commitments and
undertakings related to the Casa Xxxxxx Restaurants;
(3) all accrued vacation and bonus, and workers' compensation
general liability reserves related to the Casa Xxxxxx
Restaurants; and
(4) All other liabilities, duties and obligations arising from
CB's operations of the Casa Xxxxxx Restaurants including,
without limitation, those executory obligations arising after
the date hereof under the Assigned Contracts and the Leases.
(c) "Casa Xxxxxx Restaurants" means the two Mexican-themed restaurants
operated under the Casa Xxxxxx name which are located at the addresses set forth
on Schedule 1 attached hereto.
(d) "Excluded Assets" shall mean, and CB shall retain all of its
right, title and interest in and to, all Unit Depository Accounts maintained by
CB and all accounts receivable arising from the Casa Xxxxxx Restaurants to and
including the date of this Xxxx of Sale.
(e) "Excluded Liabilities" shall mean, and CB shall remain solely
responsible for the payment of, all of CB's obligations as of the date of this
Xxxx of Sale for trade accounts payable and accrued payroll and taxes.
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ARTICLE 2
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Conveyances
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(a) For the consideration described in the Contribution Agreement, in
consideration of the assumption by Summit of the Assumed Liabilities and the
delivery by Summit to CB of a promissory note in the principal amount of
[$495,000], which reflects CB'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, CB hereby grants, assigns, transfers and delivers to
Summit 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 CB and Summit 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, CB shall, to the greatest extent permitted, hold such right, title
or interest for the exclusive use and benefit of Summit 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, CB and
Summit 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 Summit 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 Summit by virtue of
this Xxxx of Sale.
ARTICLE 3
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Assumption of Liabilities
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For the consideration described in the Contribution Agreement, in
consideration of the contribution of the Assets to Summit and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Summit 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
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Power of Attorney
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CB does hereby constitute and appoint Summit, its successors and
assigns the true and lawful attorney-in-fact of CB with full power and
substitution for it and in its name, place and stead or otherwise by or on
behalf of CB, its successors and assigns and for the benefit of Summit, 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 the CB 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 Summit, or CB for the benefit of
Summit, any and all proceedings at law, in equity or otherwise which Summit, 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 Summit, its
successors or assigns shall deem advisable. CB 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 CB or its successors or assigns, by the bankruptcy,
insolvency or dissolution of CB or any successor thereto or assign thereof or
otherwise by operation of law.
ARTICLE 5
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Governing Law
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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.
CASA XXXXXX INCORPORATED,
a Texas corporation
By:
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Its:
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SUMMIT FAMILY RESTAURANTS INC.,
a Delaware corporation
By:
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Its:
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