[OBJECT OMITTED]
DATED 18 December 1997
BETWEEN
RED HOT CONCEPTS, INC
AND
RED HOT CONCEPTS-PACIFIC, INC.
AND
CHILI'S TEXAS GRILL PTY LIMITED
ACN 070 163 754
AND
XXXXXXX INTERNATIONAL, INC.
AND
XXXXXXX AUSTRALIA PTY LTD
ACN 080 946 201
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ASSET SALE AGREEMENT
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Ebsworth & Ebsworth
Solicitors
000 Xxxx Xxxxxx
XXXXXX XXX 0000
DX 000 XXXXXX
Tel: 0000 0000
Fax: 0000 0000
Ref: MJC:MLP:SDC
ASSET SALE AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
2. SALE AND PURCHASE OF ASSETS 4
3. COMPUTATION, ALLOCATION AND PAYMENT OF PURCHASE PRICE 5
4. COMPLETION 6
5. ACTION AT COMPLETION 6
6. WARRANTIES 9
7. INDEMNITIES 10
8. ACCESS TO INFORMATION AND CONFIDENTIALITY 10
9. GUARANTEE AND INDEMNITY 11
10. LIMITATION ON CLAIMS 12
11. EMPLOYEES 12
12. LIQUOR LICENCES 12
13. MISCELLANEOUS 13
Schedule 1 Warranties
Schedule 2 Employees
Schedule 3 Equipment Leases
Schedule 4 Intellectual Property Rights
Schedule 5 Leases
Schedule 6 Licences
Schedule 7 Plant and Equipment
Schedule 8 CTG Balance Sheet as at 26 October 1997
Schedule 9 Restaurants
Schedule 10 Employment and Related issues
Schedule 11 Purchase Price
Schedule 12 Franchise Agreements
Schedule 13 Operation of Escrow
Schedule 14 Trade Marks
Schedule 15 Prepayments and Security Deposits
ASSET SALE AGREEMENT dated 00 Xxxxxxxx 0000, Xxxxxx, Xxxxxxxxx, Eastern Standard
Summer Time
BETWEEN: RED HOT CONCEPTS, INC. of c/- Prentice Hall, 00 Xxxxxxxxxx Xxxxxx,
Xxxxx X-000, Xxxxx, Xxxxxxxx 00000, XXX, a Delaware corporation ("RHC")
AND: RED HOT CONCEPTS - PACIFIC, INC. c/- Prentice Hall, 00 Xxxxxxxxxx Xxxxxx,
Xxxxx X-000, Xxxxx, Xxxxxxxx 00000, XXX, a Delaware corporation ("RHC-P")
AND: CHILI'S TEXAS GRILL PTY LIMITED ACN 070 163 754 having its registered
office at Xxxx 00/0-0 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxx Xxxxx ("CTG")
AND: BRINKER INTERNATIONAL, INC. of 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx, XXX 00000,
a Delaware corporation ("Xxxxxxx")
AND: XXXXXXX AUSTRALIA PTY LTD ACN 080 946 201 of the KPMG Centre, 00 Xxxxxxxx
Xxxxxx. Xxxxxx, XXX, 0000 ("Xxxxxxx Aust.")
RECITALS
X. Xxxxxxx developed a distinctive system for presenting and operating
restaurants known in Australia as `Chili's Texas Grill'.
B. CTG conducts the Business, and is the beneficial owner of the Assets.
C. CTG has agreed to sell and Xxxxxxx Aust. has agreed to purchase the Assets
on the terms and conditions of this Agreement.
D. RHC is the holding company of, and RHC-P is the parent of, CTG. In
consideration of Xxxxxxx and Xxxxxxx Aust. entering into this Agreement,
RHC and RHC-P have agreed to enter into this Agreement for the purposes of
giving restraints, guaranteeing the Warranties and all other obligations of
CTG and terminating certain agreements and certain liabilities under
certain agreements that relate to the Assets.
IT IS AGREED
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement the following terms have the following meanings:
"Agreement" means this agreement including the recitals, clauses 1-13, schedules
1-14.
"Apportionable Outgoings" means all periodical outgoings and expenses in
respect of the Restaurants and the Assets including rent, rates,
electricity, gas, telephone, lease payments.
"Assets" means the following assets:
(a) the Equipment Leases;
(b) Goodwill;
(c) Intellectual Property Rights;
(d) the Leases;
(e) the Plant and Equipment;
(f) other assets specified in Schedule 8; and (g) the Inventory.
"Business" means the business of operating the Restaurants in the
Territory.
"Completion" means the completion of the sale and purchase of the Assets
pursuant to this Agreement, which shall take place on the Completion Date.
"Completion Date" means 18 December 1997.
"Development and Franchise Agreement" means the agreement dated 9 November
1995 between Xxxxxxx and RHC-P (as assigned by RHC-P to CTG on or before
Completion).
"Employees" means:
(a) all the employees of CTG engaged at the Restaurants and at the CTG
office at Castle Hill, Sydney who are listed in Schedule 2; and
(b) all other employees who become employed by CTG prior to the
Completion Date in the ordinary course of CTG's business,
but excludes employees who leave the employ of CTG before the Completion
Date.
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, hire or hire purchase agreement, option,
restriction as to transfer, use or possession, easement, subordination to
any right of any other person and any other encumbrance or security
interest.
"Equipment Leases" means the equipment leases and hire purchase contracts
listed in Schedule 3.
"Franchise Agreements" means the franchise agreements between Xxxxxxx and
CTG for the Restaurants set out in Schedule 12.
"Goodwill" means the goodwill of the Business.
"Intellectual Property Rights" means all intellectual property rights,
including without limitation:
(a) copyright, patents, registered designs and rights in circuit layouts
and the right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of those
rights,
used in connection with the Restaurants as set out in Schedule 4.
"Inventory" means the inventory of CTG at Completion.
"Lease Guaranty Agreement" means the agreement entered into on 6 September
1996 between Xxxxxxx, RHC, RHC-P and CTG.
"Leases" means those leases and agreements to lease listed in Schedule 5.
"Leave Entitlement Provision" means an amount equal to all Leave
Entitlements.
"Leave Entitlements" means all amounts accrued but unpaid in respect of
sick leave (for all Employees except the managers), annual leave (including
loadings) and long service leave owing and due to or in respect of all the
Employees, arising under contract, statute or otherwise, calculated up to
the last shift prior to the Completion Date. The accrual for long service
leave for each Victorian Employee will be calculated on the basis that the
Employee is entitled to an amount calculated by multiplying the amount of
the long service leave to which he or she is entitled on completing 5475
days of service by the number of completed days of service with CTG divided
by 5475. The accrual of long service leave for each NSW Employee will be
calculated on the basis that the Employee is entitled to an amount
calculated by multiplying the amount of long service leave to which he or
she is entitled on completing 3,650 days of service by the number of
completed days of service with CTG divided by 3,650.
"Liabilities" means all liabilities, losses, damages, outgoings, costs,
claims, demands and expenses of whatever description.
"Licences" means those licences listed in Schedule 6.
"Party" means a party to this Agreement and "parties" means all of the
relevant parties to this Agreement.
"Plant and Equipment" means the plant, equipment and other chattels owned
by CTG and being purchased by Xxxxxxx Aust. listed in Schedule 7.
"Purchase Price" means the purchase price set out in Schedule 11.
"Restaurants" means restaurants listed in Schedule 9 operated by CTG under
Xxxxxxx'x distinctive system for establishing, operating and maintaining
restaurants and doing business either as `Chili's Texas Grill' or `Chili's
Grill and Bar Restaurants' pursuant to the Franchise Agreements and the
Development and Franchise Agreement.
"Territory" means Australia and New Zealand.
"Warranties" means the representations and warranties of CTG set out in
Schedule 1.
1.2 Construction
In the interpretation of this Agreement:
(a) words importing the singular shall be deemed to include the plural and
vice versa.
(b) words importing any gender shall be deemed to include all other
genders.
(c) words importing persons shall be deemed to include all bodies and
associations, corporate or unincorporate, and vice versa.
(d) any reference to a statute or statutory provision shall be deemed to
include any statutory provision which amends, extends, consolidates or
replaces the same or which has been amended, extended, consolidated or
replaced by the same and any orders, regulations, instruments or other
subordinate legislation made thereunder.
(e) headings are included for convenience only and shall not affect the
interpretation of this Agreement or any Schedule.
(f) all references to clauses, recitals and schedules are to clauses of
and recitals and schedules to this Agreement.
(g) expressions cognate with expressions defined in section 1.1 shall be
construed accordingly.
(h) all references to "AUD$" and "dollars" are to the lawful currency of
Australia and "USD$" to the lawful currency of the United States of
America.
2. SALE AND PURCHASE OF ASSETS
Agreement to Purchase
Subject to clause 12.6, CTG as beneficial owner of the Assets agrees to
sell and assign the Assets to Xxxxxxx Aust. and Xxxxxxx Aust. agrees to buy
the Assets free of any Encumbrance as at and with the effect from the
Completion Date for the Purchase Price.
3. COMPUTATION, ALLOCATION AND PAYMENT OF PURCHASE PRICE
3.1 Method of Payment
Xxxxxxx Aust. shall appoint Xxxxxxx as its attorney in the USA to act on
its behalf in relation to this Agreement.
CTG shall appoint Xxx Xxxxxxx as its attorney in the USA to act on its
behalf in relation to this Agreement.
The Parties agree that payment of the Purchase Price shall be made in the
USA on such terms as are agreed in writing between the parties.
3.2 Apportionment of Outgoings
(a) CTG is entitled to the benefit of the income of the Business up to the
day of Completion and is responsible for all Liabilities and the
payment of all Apportionable Outgoings in respect of the Business
attributable to the period up to the day of Completion. Subject to
clause 11.4, Xxxxxxx Aust. is entitled to the benefit of the income of
the Business and is responsible for all Liabilities and the payment of
all Apportionable Outgoings in respect of the Business attributable to
the period from the day of Completion.
(b) Subject to the express provisions of this Agreement, all Apportionable
Outgoings in respect of the Restaurants or the Assets which are
apportionable shall be apportioned between CTG and Xxxxxxx Aust. as at
the Completion Date.
(c) Subject to the express provisions of this Agreement, any payment due
as a consequence of apportionment of the Apportionable Outgoings shall
be paid on the Completion Date.
3.3 Closing expenses payable by Xxxxxxx Aust.
Xxxxxxx Aust. must reimburse CTG on the Completion Date the following
expenses ("Xxxxxxx Reimbursements"):
(a) the actual expenses incurred by CTG for two current
managers-in-training from October 1, 1997 until but not including 18
December 1997, not to exceed $5,000.00 per month per
manager-in-training;
(b) one-half the actual expenses incurred by CTG for Xxx Xxxxx from 1
October 1997 until but not including 1 November 1997, but not
exceeding $7,500.00; and
(c) all of the actual expenses incurred by CTG for Xxx Xxxxx from 1
November 1997 until 30 November 1997 but not to exceed $15,000.00 per
month. Xxxxxxx will pay Xxx Xxxxx for the period from 1 December 1997
until, but not including, 18 December 1997, on receipt of Xxx Xxxxx'x
invoice for December.
3.4 The parties agree that the Xxxxxxx Reimbursements shall be pro-rated on
a 365 day basis for the month of December.
3.5 The parties agree, if a manager-in-training or Xxx Xxxxx referred to in
clause 3.3 terminate or otherwise cease their employment with CTG on or
before 18 December 1997, Xxxxxxx shall have no liability for any expenses
attributable to that person accruing after their last day of employment.
3.6 On Completion, Xxxxxxx Aust will pay into escrow with Xxxxxx Xxxxxxx the
sum of USD$100,000 from the Purchase Price (Escrow Amount) to be dealt
with in accordance with Schedule 13.
3.7 CTG shall promptly, after Completion, pay and discharge all amounts owed
at Completion or becoming payable after Completion to trade creditors on
receipt of the relevant invoice from the trade creditor. CTG shall
provide Xxxxxxx Aust with evidence of such payments.
4. COMPLETION
Completion Date
Completion shall take place at 4.00 pm Dallas Central Standard Time at
the offices of Brinker International, Inc. of 0000 XXX Xxxxxxx xx Xxxxxx,
Xxxxx, XXX 00000, on 18 December 1997 and 9.00 am Eastern Standard Time
at the offices of Ebsworth & Ebsworth of 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxx, 0000, on the Completion Date.
5. ACTION AT COMPLETION
5.1 Action Required
Subject to the terms and conditions of this Agreement, on the Completion
Date:
(a) CTG shall cause to be delivered to Xxxxxxx Aust. or its nominee:
(i) any instrument of transfer, assignment, conveyance and any other
documents (in a form reasonably satisfactory to Xxxxxxx Aust.)
duly executed by CTG and any other necessary person required to
transfer, assign or convey any of the Assets to Xxxxxxx Aust..
(ii) title, possession and control of all Assets.
(iii) all books, records and other data pertaining to the Assets and
the Business (and copies of records which CTG is required to
retain by law) and the executed and, where appropriate, duly
stamped originals of all Leases and Equipment Leases included
among the Assets.
(iv) evidence of the change of name of CTG.
(v) evidence of release of the NAB charge.
(vi) consent in the prescribed form by CTG to the relinquishment of
the New South Wales liquor licences.
(vii) any other document agreed by the parties.
(b) CTG shall cause a calculation of an estimate of the value of the
Inventory at each of the Restaurants on the Completion Date to be
provided to Xxxxxxx Aust. on the Completion Date.
5.2 The parties agree that including clauses 14 and 20 of the Development and
Franchise Agreement referred to in clause 1.3 of each of the Franchise
Agreements which are said to continue notwithstanding termination:
(a) Xxxxxxx and CTG agree that the agreement dated 9 November 1995
entitled Franchise Agreement for the Restaurant at Campbelltown is
terminated effective as of the Completion Date. Xxxxxxx and CTG
hereby fully discharge and release each other from all their
respective obligations, and Liabilities arising out of or under
the Franchise Agreement referred to in this clause 5.2(a) from the
Completion Date.
(b) Xxxxxxx and CTG agree that the agreement dated 12 February 1996
entitled Franchise Agreement for the Restaurant at Ringwood is
terminated effective as of the Completion Date. Xxxxxxx and CTG
hereby fully discharge and release each other from all their
respective obligations, and Liabilities arising out of or under
the Franchise Agreement referred to in this clause 5.2(b)
effective from the Completion Date.
(c) Xxxxxxx and CTG agree that the agreement dated 22 November 1995
entitled Franchise Agreement for the Restaurant at Wentworthville
is terminated effective as of the Completion Date. Xxxxxxx and CTG
hereby fully discharge and release each other from all their
respective obligations and Liabilities arising out of or under the
Franchise Agreement referred to in this clause 5.2(c) effective
from the Completion Date.
5.3 Xxxxxxx and CTG agree that the Development and Franchise Agreement is
terminated, including clauses 14 and 20 which are said to continue
notwithstanding termination, effective as of the Completion Date. Xxxxxxx
and CTG hereby full discharge and release each other from all their
respective obligations, and Liabilities arising out of or under the
Development and Franchise Agreement referred to in this clause 5.3
effective from the Completion Date.
5.4 Including clause 14 and clause 20 and notwithstanding clause 28.6 of the
Development and Franchise Agreement Xxxxxxx and RHC-P hereby fully
discharge and release each other from all of their respective
obligations, and Liabilities arising out of or under the Development and
Franchise Agreement effective from the Completion Date.
5.5 The parties to the Lease Guaranty Agreement agree that the Lease Guaranty
Agreement is terminated effective from the Completion Date. Xxxxxxx must
endorse and redeliver to RHC all shares of stock it owns in RHC-P. The
parties hereby fully discharge and release each other from all of their
respective obligations, and Liabilities arising out of or under the Lease
Guaranty Agreement effective from the Completion Date.
5.6 Restraint
In this clause 5.6 to have an "Interest" in any restaurant includes to
own, maintain, develop, operate, advise, help or lend money to that
restaurant, whether directly or indirectly (including, but not limited
to, through another person).
For two (2) years after the Completion Date RHC, RHC-P and CTG (jointly
and each of them severally) must not, without Xxxxxxx'x approval, have
any Interest in any restaurant ("Competing Restaurant") in the Territory
that:
(a) is in the casual dining market segment of the restaurant industry;
and
(b) has an image identical or deceptively similar to the Image.
In this clause 5.6 the following terms have the following meanings:
`Chili's Grill & Bar Restaurants' means restaurants operated under the
System and doing business as either `Chili's Texas Grill' or `Chili's
Grill & Bar' Restaurants.
`Image' means the Trade Marks and the distinctive appearance and ambience
of Chili's Grill & Bar Restaurants comprising its distinctive trade
dress, including but not limited to, the general menu layout, the core
menu items, restaurant design, fit-out, awnings, tile table tops, lamps
over table tops, photo package, floor tiles, booth seating, colour
schemes and signs, as implemented and modified by Xxxxxxx from time to
time.
`Operations Manual' means the operations manual for the System from time
to time prepared by or on behalf of Xxxxxxx.
`System' means the system implemented by Xxxxxxx to establish, operate
and maintain restaurants using the Image and the Operations Manual.
`Trade Marks' means:
(a) the marks described in Schedule 14; and
(b) each other name consistent with the Image and used by CTG in
operating Chili's Grill & Bar Restaurants.
5.7 Interdependence of Obligations
The obligations of the parties in respect of Completion shall be
interdependent. All actions at Completion shall be deemed to take place
simultaneously and no delivery or payment will be deemed to have been
made until all deliveries and payments have been made.
6. WARRANTIES
6.1 Warranties by CTG
Subjectto clause 10, CTG represents and warrants to Xxxxxxx Aust. that
each of the Warranties is true and accurate and not misleading at the
Completion Date.
6.2 Warranties of Xxxxxxx
Subject to clause 10:
(a) Xxxxxxx and Xxxxxxx Aust. warrant and represent to CTG that:
(i) Xxxxxxx and Xxxxxxx Aust. have authority to enter into and
to perform this Agreement and entering into and performance
of this Agreement does not and shall not on or after
Completion contravene any contractual, legal or other
obligations of Xxxxxxx and Xxxxxxx Aust. of any nature
whatsoever.
(ii) this Agreement constitutes a legal, valid and binding
obligation on Xxxxxxx and Xxxxxxx Aust. enforceable in
accordance with its terms.
(iii) Xxxxxxx Aust. is respectable, responsible and solvent.
(iv) no authorisation, consent, approval, licence or exemption
of, and no registration, qualification, designation,
declaration or filing with any court or government
department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is or was necessary
for execution of this Agreement.
(b) RHC and RHC-P warrant and represent to Xxxxxxx and Xxxxxxx Aust. that:
(i) RHC and RHC-P have authority to enter into and to perform
this Agreement and entering into and performance of this
Agreement does not and shall not on or after Completion
contravene any contractual, legal or other obligations of
RHC and RHC-P of any nature whatsoever.
(ii) this Agreement constitutes a legal, valid and binding
obligation on RHC and RHC-P enforceable in accordance with
its terms.
(iii) no authorisation, consent, approval, licence or exemption
of, and no registration, qualification, designation,
declaration or filing with any court or governmental
department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is or was necessary
for execution of this Agreement.
7. INDEMNITIES
7.1 Indemnity by CTG
Subject to clause 10, CTG shall and does hereby indemnify Xxxxxxx Aust.
and holds Xxxxxxx Aust. harmless from and against all Liabilities which
may be asserted against or suffered by Xxxxxxx Aust. in respect of the
Restaurants, the Business or the Assets arising or incurred prior to the
Completion Date, including but not limited to such Liabilities arising
out of, resulting from or relating to:
(a) the ownership or operation of the Restaurants, the Business or
any of the Assets prior to the Completion Date;
(b) the employment or termination of employment of any officers,
directors or other Employees of CTG prior to the Completion Date;
or
(c) Encumbrances created or incurred on or in relation to any of the
Assets prior to the Completion Date.
7.2 Indemnity by Xxxxxxx Aust.
Subject to clause 10, [Xxxxxxx and] Xxxxxxx Aust. shall and do indemnify
CTG and hold CTG harmless from all Liabilities where such Liabilities
arise out of, result from or relate to the ownership or operation of the
Restaurants, the Business or any of the Assets after the Completion Date.
8. ACCESS TO INFORMATION AND CONFIDENTIALITY
8.1 Confidentiality Obligations
The parties including their respective agents, employees or advisers,
shall treat all information relating to this Agreement as confidential
and proprietary information and shall not permit the release of this
information to third persons except in accordance with the terms hereof,
and shall not make any public announcement or issue any publicity release
without the other parties' prior written consent. The parties shall also
require their agents, employees, officers and directors to comply with
this requirement.
8.2 For a period of 7 years following Completion, upon giving reasonable
notice to Xxxxxxx Aust. and during normal business hours, CTG shall be
entitled at its own cost to inspect and take copies of the books, records
and other data related to the Business, the Restaurants and the Assets in
respect of the period up to Completion in order for CTG to comply with
its legal obligations.
8.3 Confidentiality Obligations of RHC and RHC-P, CTG
None of RHC, RHC-P and CTG shall at any time disclose or make public any
secret or confidential professional or trade information which it has
learnt by reason of its ownership of or involvement in the Business, the
Restaurants or the Assets and will not use to the detriment of the
operation of the Business, the Restaurants or the Assets any information
which it has obtained in confidence in the course of or as a result of
such ownership. Without limiting the foregoing, each of RHC, RHC-P and
CTG shall comply with each of the provisions in clause 14 of the
Development and Franchise Agreement prior to its termination under this
Agreement.
9. GUARANTEE AND INDEMNITY
Subject to clause 10:
(a) in consideration of Xxxxxxx Aust. entering into this Agreement,
each of RHC and RHC-P, jointly and severally:
(i) unconditionally and irrevocably guarantee to Xxxxxxx and Xxxxxxx
Aust. on demand the due and punctual performance by CTG of all of
its obligations under, or arising out of, this Agreement; and
(ii) as a separate and independent covenant, unconditionally and
irrevocably indemnifies Xxxxxxx and Xxxxxxx Aust. from and
against any Liabilities which may be incurred or sustained by
Xxxxxxx or Xxxxxxx Aust. in connection with any default or delay
by CTG in the due and punctual performance of any of its
obligations under this Agreement.
(b) without derogating from clause 5, the liability of RHC or RHC-P
under this clause 9 is not affected by any act, omission or
thing which, but for this provision, might in any way operate to
release or otherwise exonerate or discharge RHC or RHC-P from
any of their obligations under this Agreement including (without
limitation) the grant to CTG or any other person of any time,
waiver or other indulgence, or discharge or release of CTG or
any other person from any obligation.
(c) the obligations of RHC and RHC-P under paragraphs (a) and (b) of
clause 9 are given independently of each other and are primary
obligations, on the part of each of RHC and RHC-P, enforceable
without Xxxxxxx or Xxxxxxx Aust first proceeding against CTG or
any other of RHC and RHC-P..
(d) this clause 9 shall:
(i) extend to cover this Agreement as amended, varied or
replaced, whether with or without the consent of RHC or
RHC-P; and
(ii) be a continuing guarantee and indemnity and shall,
notwithstanding Completion, remain in full force and effect
for so long as CTG has any Liability or obligation to
Xxxxxxx or Xxxxxxx Aust under this Agreement, and until all
of those Liabilities or obligations have been fully
discharged.
10. LIMITATION ON CLAIMS
No claim for any Liability can be brought under clauses 6,7 or 9 by any
party (`first party') against another party unless the total of all
Liabilities of the first party is over USD$30,000 (it being the intention
of the parties that if the total of all Liabilities of the first party
exceeds USD$30,000 only the excess over USD$30,000 is payable). No claim
for any Liability can be brought under clauses 6, 7 or 9 after 2 years
after the Completion Date.
11. EMPLOYEES
11.1 Employment
CTG shall terminate the services of all of the Employees as and from the
last shift at each of the Restaurants before the Completion Date and
shall use its reasonable endeavours to induce any of the Employees sought
by Xxxxxxx Aust. to accept employment with Xxxxxxx Aust.. Nothing
contained in this Clause 11 shall require Xxxxxxx Aust. to employ any of
the Employees.
11.2 Employees Not Employed by Xxxxxxx Aust.
CTG shall pay to or for the benefit of each of the Employees who shall
not become employed by Xxxxxxx Aust. all and any other amounts to which
any of them may be then entitled in relation to their employment by CTG,
whether due to them by law or under any award, agreement or arrangement
and whether in relation to either wages, salaries, allowances, , accrued
annual leave, superannuation entitlements, sick leave or otherwise and
including any other amount to which they are entitled as a result of the
termination of their employment with CTG.
11.3 Employees Employed by Xxxxxxx Aust.
The parties will comply with Schedule 10 in relation to all Employees
employed by Xxxxxxx Aust..
11.4 Indemnity
Xxxxxxx and Xxxxxxx Aust. shall and do indemnify CTG and hold CTG
harmless from and against (on a full indemnity basis) all Liabilities by
or on behalf of Employees employed by Xxxxxxx Aust. to the extent that
such Liabilities arise out of, result from or relate to Leave
Entitlements or employment or termination of employment by Xxxxxxx Aust.
of the re-employed Employees.
12. LIQUOR LICENCES
12.1 CTG shall cause documents to be signed and provided, applications to be
made and generally take such steps as may be necessary and sufficient to
procure the transfer of Licences to such person or persons as Xxxxxxx
Aust. shall direct at the cost of Xxxxxxx Aust. including providing
Xxxxxxx Aust. or its solicitors with authority to obtain documents from
relevant liquor licensing authorities.
12.2 Xxxxxxx Aust. shall, as soon as practicable following Completion, take
all steps necessary to obtain liquor licences for the Restaurants and
notify CTG as soon as it has obtained such liquor licences.
12.3 Ringwood Liquor Licence
CTG estimates that the value of the liquor held at the Ringwood
Restaurant at Completion is AUD$10,800 and will ensure that the same
value of liquor is held at the Ringwood Restaurant when Xxxxxxx Aust.
notifies CTG it has obtained the liquor licence for the Ringwood
Restaurant.
12.4 Until Xxxxxxx Aust. obtains the liquor licence for the Ringwood
Restaurant, CTG shall pursuant to the management agreement of even date
between CTG and Xxxxxxx Aust. ("Management Agreement").be responsible for
the liquor purchases and sales at the Ringwood Restaurant, maintain
records of purchases and sales and be entitled to the proceeds of all
liquor sales. CTG shall sell liquor to the customers of Xxxxxxx Aust. in
the ordinary course of business of the Ringwood Restaurant.
12.5 The CTG shall provide Xxxxxxx Aust. with details of the gross profit from
liquor sales at the Ringwood Restaurant in respect of the period from the
Completion Date until the date of termination of the Management Agreement
and as soon as practicable following termination of the Management
Agreement pay Xxxxxxx Aust. an amount equivalent to the gross profit from
such liquor sales during such period. Xxxxxxx Aust. shall be entitled to
inspect the records of CTG in relation to the liquor sales at the
Ringwood Restaurant during that period in respect of that period.
12.6 The parties agree that the sale and purchase of the Ringwood Lease shall
take place on termination of the Management Agreement.
13. MISCELLANEOUS
13.1 Entire Agreement
This Agreement constitutes the entire agreement between the parties with
respect to the sale of the Assets from CTG to Xxxxxxx Aust. and
supersedes and extinguishes all prior agreements and understandings
between the parties with respect to the matters covered hereby and all
representations or warranties previously given.
13.2 Amendments
This Agreement may not be amended, modified or supplemented except by a
written instrument executed by persons duly authorised on behalf of the
parties.
13.3 Waiver
No waiver by any party of any default in the strict and literal
performance of or compliance with any provision condition or requirement
herein shall be deemed to be a waiver of strict and literal performance
of and compliance with any other provision, condition or requirement
herein nor to be a waiver of or in any manner release any party from
strict compliance with any provision condition or requirement in the
future nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
13.4 Notices
All notices and other communications provided for or permitted hereunder
shall be sent by certified or registered mail with postage prepaid, by
hand delivery, or by facsimile transmission as follows:
(a) if to CTG, to it at:
Ebsworth & Ebsworth, Solicitors, Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, XXX,
0000 (Attention: Xxxxxxxx Xxxxxxx).
(b) if to Xxxxxxx, to it at:
Attention: Xx Xxxxx Xxxxxxx
Address: 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx, XXX 00000.
Tel: (0011) . 000 000 0000
Fax: (0011) . 000 000 0000
with a copy to:
Attention: Xx Xxxxx Xxxxx
Address: c/- Xxxxxx Xxxxxxx Solicitors, 00 Xxxxxx Xxxxx, 0000.
Tel: (61.2) . 0000 0000
Fax: (61.2) . 0000 0000
(c) if to Xxxxxxx Aust., to it at:
Attention: Xx Xxxx Xxxxxxx
Address: The KPMG Centre, 00 Xxxxxxxx Xxxxxx. Xxxxxx, XXX, 0000
Tel: (0) 0000 0000
Fax: (0) 0000 0000
with a copy to:
Attention: Xx Xxxxx Xxxxx
Address: c/- Xxxxxx Xxxxxxx Solicitors, 00 Xxxxxx Xxxxx, 0000.
Tel: (61.2) . 0000 0000
Fax: (61.2) . 0000 0000
(d) if to RHC, to it at:
Attention: H Xxxxxxx Xxxx
Address: Prentice Hall, 00 Xxxxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxx,
Xxxxxxxx, 00000, XXX
Tel: (0000) 0.000.000 4870
Fax: (0000) 0.000.000 8350
with a copy to:
Ebsworth & Ebsworth, Solicitors, Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, XXX,
0000 (Attention: Xxxxxxxx Xxxxxxx).
(e) if to RHC-P, to it at:
Attention: H Xxxxxxx Xxxx
Address: Prentice Hall, 00 Xxxxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxx,
Xxxxxxxx, 00000, XXX
Tel: (0000) 0.000.000 4870
Fax: (0000) 0.000.000 8350
with a copy to:
Ebsworth & Ebsworth, Solicitors, Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, XXX,
0000 (Attention: Xxxxxxxx Xxxxxxx).
or to such other address or person as a party may specify by notice in
writing to the others. All such notices or communications shall be deemed
to have been duly given or made:
(a) fifteen (15) days from USA to Australia or vice versa and (3)
three days within Australia after being deposited in the mail
with postage prepaid;
(b) when delivered by hand;
(c) if sent by facsimile transmission, when transmission report or
acknowledgment received.
13.5 Further Assurances
Each of the parties agree that at any time after Completion they will
execute, sign or initial any document and do any act, matter or thing
reasonably required by any of the other parties to comply with the
provisions of this Agreement.
13.6 Agreement binding on successors and assigns
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
13.7 Costs and Stamp Duty
Whetheror not any of the transactions contemplated by this Agreement are
consummated, each party shall pay its own fees and expenses incidental to
the negotiation, preparation and execution of this Agreement, including
the fees and disbursements of its lawyers and accountants. Xxxxxxx Aust.
shall pay any stamp duty due on this Agreement and any document executed
to give effect to this Agreement.
13.8 Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
13.9 Governing Law
This Agreement shall be governed by and construed in accordance with the
law of New South Wales and each of the parties hereby agrees to submit to
the non exclusive jurisdiction of the New South Wales Courts.
13.10 No Merger
None of the provisions of this Agreement will merge in or upon the
execution of this or any other agreement, document, act, matter or thing
and will continue to remain in full force and effect for so long as is
necessary to give effect to the provisions of this Agreement.
13.11 No Assignment
A party shall not assign any of its rights under this Agreement without
the consent of the other parties in writing.
SCHEDULE 1
Warranties
Agreement
1. CTG warrants and represents to Xxxxxxx Aust that:
(a) CTG has full authority to enter into and to perform this Agreement
and entering into and performance of this Agreement does not and
shall not on or after Completion contravene any contractual, legal
or other obligations of CTG of any nature whatsoever.
(b) this Agreement constitutes a legal, valid and binding obligation
on CTG enforceable in accordance with its terms.
2. The books, records and registers of the Restaurants have been kept in a
normal business like manner and in accordance with all statutory
requirements.
CTG Solvency
3. CTG has not:
(a) gone into liquidation (provisional or otherwise);
(b) passed any resolution that it be wound up;
(c) entered into any scheme or arrangement with creditors;
(d) received any demand under Section 459E of the Corporations Law
that has not been satisfied in full;
(e) passed any resolution in general meeting pursuant to Section 188
of the Corporations Law;
(f) no summons for the winding up of CTG has been presented;
(g) there are no writs of execution against CTG; or
(h) no receiver, receiver/manager, official manager, trustee,
administrator or similar official has been appointed to CTG or of
the undertaking of CTG or the assets or any part thereof; or
(i) received any notice from any mortgagee to take or attempt to take
possession of any of the Assets.
4. CTG warrants it is able to pay its debts as and when they fall due for
payment.
Licences
5. To the best knowledge and belief of CTG there is no circumstance or fact
involving CTG or its affairs except as expressly disclosed in this
Agreement which is likely to result in the revocation of or material
variation in any respect of any Licence and there is no subsisting breach
of the Licences.
CTG'S Assets
6. CTG owns legally and beneficially the Assets (other than the leased
equipment (of which CTG is the legal and beneficial owner of the
leasehold interest)) free of any Encumbrance and the Assets are not
subject to any leasing or hire purchase arrangement or other financing
arrangement.
7. CTG has not acquired or agreed to acquire any Assets on terms that
property therein does not pass until full payment is made, other than
Inventory the subject of retention of title provisions as part of the
supplier's standard terms of trade, the details of which have been fully
disclosed to Xxxxxxx in writing.
Premises
8. The Ringwood premises, Campbelltown premises, Castle Hill premises and
the Wentworthville premises are the only premises leased and occupied by
CTG ("Premises"). The Wollongong premises are leased by CTG. The Premises
are leased by CTG under the Leases.
9. CTG has exclusive possession of the Ringwood Premises, the Campbelltown
Premises, the Castle Hill Premises and the Wentworthville Premises and
CTG's interest in such Premises is free of any Encumbrance or third party
right.
10. No notice has been received by CTG from any statutory, legal or public
authority requiring any work to be done or money expended on any of the
Premises nor has CTG received any notice (or is aware of any pending
notice) of proposed resumption, compulsory acquisition or any other
matter affecting any of the Premises.
Employees And Contractors
11. Except as otherwise provided in this Agreement, CTG has paid and will pay
or satisfy, satisfied or otherwise provided for all of the remuneration,
emoluments and other benefits and entitlements of its Employees and
contractors up to and including the last shift at each of the Restaurants
before the Completion Date.
12. There is no labour dispute, strike, work stoppage, ban, limitation of
work or arbitration proceedings which will prevent the continued
operation of the Restaurants in the ordinary course.
Additional Warranties
13. The sale of the Assets pursuant to this Agreement does not result in a
breach of any obligation or constitute a default under or result in the
imposition of any Encumbrance under any agreement or undertaking, by
which CTG is bound.
Accounts and Records
14. CTG warrants that the balance sheet of 26 October 1996 is true and
accurate. Since the balance sheet date of 26 October 1997 as set out in
schedule 8:
(a) the Business and Restaurants have been carried on in the ordinary
and usual course and no contracts or commitments differing from
those ordinarily made in the conduct of the Business or the
Restaurants have been entered into or incurred;
(b) there has been no material adverse change in the Business,
Restaurants or Assets.
Compliance with Statutory Requirements
15. To the best of the knowledge and belief of CTG, CTG holds all statutory
licences, consents, approvals and authorisations necessary for the
carrying on of the Business and has complied with the terms of those
licences, consents, approvals and authorisations.
16. To the best of the knowledge and belief of CTG, conduct of the Business
and use of the Restaurants and Assets does not in any way breach or
contravene any law, statute, ordinance, rule, regulation, by-law, scheme
or permit.
Premises
17. To the best knowledge and belief of CTG, the use of the Premises for the
Restaurants for the carrying on of the Business:
(a) does not breach any applicable law, statute, ordinance, rule,
regulation, by-law, planning scheme, development consent, order,
permit or determination of any governmental authority; and
(b) is in conformity with all local government building, health, fire
and public utility laws and regulations.
18. The use of the Premises for the Restaurants for the carrying on of the
Business is permitted under the terms of the Leases.
Property Leases
19. With respect to the Leases for the Premises:
(a) there are no subsisting material breaches and CTG has received no
notice of any breach of the Leases; [see paragraph 48 of Share
Sale Agreement]
(b) they are valid and subsisting; and
(c) they have not been amended or modified other than as notified to
Xxxxxxx.
Equipment Leases
20. With respect to each Equipment Lease:
(a) there are no subsisting breaches and CTG has received no notice
of any breach of the Equipment Leases;
(b) it is valid and subsisting; and
(c) it has not been amended or modified .
Environment
21. The Premises are:
(a) not subject to any order or notice issued under any environmental
law;
(b) not polluted and their condition would not entitle any person or
governmental authority to require any occupier to undertake a
clean up of them or expend money or perform work in that regard;
(c) not the subject of any charge in favour of any relevant
environmental protection authority as security for the clean-up or
other costs under any relevant environmental law.
Employees
22. In respect of each Employee:
(a) the details in relation to that Employee listed in schedule 2 are
true and correct in all respects; and
(b) CTG has properly calculated and paid where due and otherwise
provided for and will duly pay all Group Tax and Fringe Benefits
Tax due before and on the Completion Date, and has not been
subject to an audit by the Australian Taxation Office in respect
of such payments ; and
(c) CTG has made where due all payments in respect of and otherwise
provided for and will duly pay superannuation required under any
statute or award or employment contract.
23. There is no agreement, arrangement or understanding between CTG and a
union or body of employees or any representative thereof in respect of
the Employees, except for those the details of which have been fully
disclosed to Xxxxxxx in writing on 11 December 1997.
Litigation
24. There is no claim against CTG in respect of the Business or the Assets of
which CTG has notice nor to the best knowledge and belief of CTG, does
there exist or has there occurred any fact, matter or circumstance likely
to give rise to any claim which could affect the ability of the Business
to continue operating or which may materially adversely affect the
Goodwill.
25. There are no unsatisfied or outstanding judgments, orders or awards
affecting CTG, the Business or any of the Assets.
Material Disclosure
26. (a) All information concerning the Business, the Restaurants and
the Assets which CTG or any of its representatives has furnished
to Xxxxxxx Aust. or its representatives prior to the execution of
this agreement is true, complete and accurate in every respect and
is not misleading or deceptive whether by inclusion or omission.
(b) [All information concerning the Business, the Restaurants and the
Assets which might reasonably be expected to be material to the
purchase of the Assets, the Restaurants and the Business by
Xxxxxxx Aust. has been disclosed.]
[The provisions in square brackets in paragraph 26(b) are only agreed if
this sentence in brackets is deleted.]
Stamp Duties
27. All documents which are necessary to establish the title of CTG to the
Assets that are to be stamped have been duly stamped.
Plant and Equipment
28. Except for the dishwasher at the Campbelltown Restaurant seen by Xxxxxxx,
and taking into account the age of the Plant & Equipment as set out in
the fixed asset register copied to Xxxxxxx on 17 and 18 November 1997 the
Plant and Equipment:
(a) is in a good and safe state of repair and condition;
(b) is in good working order;
(c) is, so far as CTG is aware, capable and will be capable, over the
period of time during which it will be written down to a nil value
in the accounts of the Business, of doing the work for which it
was designed or purchased;
(d) is used in and not surplus to the requirements of the Business;
(e) is capable of being insured for an amount equal to or greater than
the amount apportioned to in under Schedule 7.
29. The Assets are:
(a) all located at the Premises;
(b) the only assets used by CTG in the Business; and
(c) the only assets required for the successful conduct of the
Business;
SCHEDULE 2
Employees
List attached (6 pages)
SCHEDULE 3
Equipment Leases
Periodic Payment
Lessor Lessee Guarantor Description Location Commencement Termination Amount Frequency
NAB CTG RHC;RHC-P Equipment Ringwood 01/10/96 30/08/2001 $11,352.00 Monthly
NAB CTG N/A 3 Pager System Wentworthville 24/06/97 23/06/2000 $457.59 Monthly
Campbelltown and Ringwood
Remington CTG N/A Copier/fax machine Castle Hill 10/03/96 10/03/98 $453.00 Quarterly
Pty Ltd t/as
Pitney Xxxxx
SCHEDULE 4
Intellectual Property Rights
Copyright in business records of the Restaurants
SCHEDULE 5
Leases
0 Xxxxxx Xxxx, Xxxxxxxxxxxx XXX Folio Identifier 34/842054 dated 6/6/97
000-000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx XXX dated 14 October 1997
000-000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxxx XXX Folio Identifier
652/853681
Wollongong- Agreement to Lease part of folio identifier 1/849523.
Castle Hill - Xxxx 00/0-0 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, XXX, 0000,
26/SP37657
SCHEDULE 6
Licences
Campbelltown - Licence no. 24005047 Nominee -Xx Xxxxx X'Xxxxx-Xxxx
Wentworthville - Licence no. 24004791 Nominee - Xx Xxx Xxxxxx
Ringwood - Licence no. 32242187 Nominee - Xxxxx Best
SCHEDULE 7
Plant & Equipment
List attached (7pages)
Other assets
Architectural drawings and similar documents related to the sites or potential
sites
Xxxxxxxxxxxx XXX
Xxxxxxxx XXX
Xxxxxxxxxxxxxx XXX
Folio Identifier 652/853681
Doncaster VIC
Xxx 0, Xxxxxx 00000 Xxxxx 000
Xxxxxxxxxx XXX
Part of folio identifier 1/849523
Miranda NSW
Shop no. X000/000 Xxxxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxx
Xx Xxxxxx XXX
Part 000-000 Xxxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxxxx XXX
Block 76 Section 65 Division of Belconnen.
Xxxxx Cash AUD$8,500.00
Deposits AUD$84,480
Total AUD$92,980.00
SCHEDULE 8
CTG Balance Sheet as at 26 October and 28 September 1997
Unaudited
ASSETS
Current Period Previous Period
26 October 1997 28 September 1997
Current assets:
Merchandise Print & Stationery 3,244.68 5,856.23
Cash Hand/Bank Bank NAB (184,447.77) (74,231.36)
Cash/Bank Cash 64,630.67 64,618.26
Cash/Bank Credit 17,522.55 19,243.64
833.65 833.65
Cash/Bank Change Floats 8,500.00 8,500.00
Cash Deposits 302.00 302.00
Security 22,800.00 22,800.00
Receivables Related Costs 17,472.20 17,472.20
Inventories Meat 8,553.23 10,359.37
Inventories Poultry 4,658.76 4,739.91
Inventories Produce 3,579.00 3,330.12
Inventories Dairy 2,639.21 4,162.71
Inventories Bakery 934.76 1,244.75
Inventories Other 12,378.87 13,267.11
Inventories Beer 4,941.39 4,883.80
Inventories Wine 3,951.41 4,829.67
Inventories Liquor 20,924.01 20,141.35
Inventories Merchandise 4,224.72 4,528.88
Inventories NA Xxx 4,472.95 4,744.61
Inventories Uniform 1,025.98 1,025.98
Prepayments General (2,250.00) (2,250.00)
Prepayments Rent 22,270.76 22,270.76
Prepayments Insurance 28,273.34 38,774.96
Prepayments Cleaning 4,265.00 4,740.00
Prepayments R&M 2,176.04 3,263.78
Prepayments Rates & Taxes 2,966.82 4,450.23
Prepayments Consulting 2,250.00 2,250.00
------------ ------------
Total Current Assets 83,094.23 216,152.61
Fixed Assets:
Fix and fittings at Cost 263,939.94 263,939.94
Fix and Fittings Dirs' val 1995 1,200,929.28 1,200,929.28
Dep'n F&F at Cost (52,743.00) (48,642.00)
Dep'n F&F Dirs' val 1995 (245,529.00) (234,816.00)
Current Period Previous Period
Leased Assets 565,041.53 565,041.53
Amort Leased Assets (58,970.40) (53,073.36)
Land and Build at Cost 3,793.50 3,793.50
Set-up 2 yrs Advertising 13,752.25 13,752.25
Set-up 2 yrs Travel 11,154.56 11,154.56
Set-up 2 yrs Communications 4,074.22 4,074.22
Set-up Consulting 10,440.00 10,440.00
Set-up 2 yrs Prop Rent 26,190.57 26,190.57
Set-up 2 yrs Rates & Taxes 332.50 332.50
Set-up 2 yrs Refund Costs 15,972.00 15,972.00
Set-up 2 yrs Stationery 17,920.24 17,624.24
Set-up 2 yrs Funk 10,961.10 10,961.10
Set-up 2 yrs Relocation 3,576.54 3,576.54
Set-up 2 yrs Freight 2,685.51 2,685.51
Set-up 2 yrs Merchandising 1,663.63 1,663.63
Set-up 2 yrs Uniforms 4,791.55 4,791.55
Set-up 2 yrs Incidentals 6,731.49 6,731.49
Set-up 2 yrs Legal 88,726.37 88,256.12
Set-up 2 yrs Rest. Supplies 3,892.06 3,892.06
Set-up 2 yrs Expendable 2,141.63 2,141.63
Set-up 2 yrs Pre-open Food/Liq 11,656.00 11,656.00
Set-up 2 yrs Recruitment 11,631.96 11,631.96
Set-up 2 yrs Wages 69,126.67 69,126.67
Set-up 2 yrs Salaries/MITs 322,137.27 313,340.23
Set-up 2 yrs Superan 15,064.88 14,549.88
Set-up 2 yrs Payroll tax 10,263.14 10,263.14
Set-up 2 yrs A Leave 11,739.79 10,136.63
Set-up 2 yrs Trainer Team 52,154.05 52,154.05
Set-up 12 yrs Recruitment 5,831.33 5,831.33
Set-up 12 yrs KP Consult 207,500.00 197,500.00
Set-up Trav/Accom 8,609.10 8,609.10
Set-up 12 yrs Stamp Duty 36,187.75 36,187.75
Set-up 12 yrs Bank Fees 5,004.90 5,004.90
Set-up 12 yrs Legal Fees 2,582.10 2,582.10
Set-up 12 yrs Consulting 23,236.92 23,236.92
Set-up 12 yrs Sundry 315.60 315.60
Architects 49,627.10 46,249.10
Set-up 12 yrs Plan'g Fees 18,630.55 18,630.55
Set-up 20 yrs Rest Lic 25,840.24 25,840.24
Amort Set-up Prov'n 2 yrs (176,032.56) (162,076.56)
Amort Set-up Prov'n 12 yrs (7,253.98) (6,964.57)
Amort Set-up Prov'n 20 yrs (1,506.70) (1,399.03)
Current Period Previous Period
Other Non Curr Franch Rights 608,108.00 608,108.00
Amort Prov'n Fr Rights (60,143.16) (60,143.16)
Other Non Curr FITB 22,802.00 22,802.00
------------ ------------
Total Fixed Assets 3,174,581.02 3,184,585.69
Other Assets:
Other Debtors 89,480.00 89,480.00
------------ ------------
Total Other Assets 89,480.00 89,480.00
------------ ------------
3,347,155.25 3,390,218.30
============ ============
Liability And Shareholder's Equity
Current Period Previous Period
Current Liabilities:
Trade Creditors Control A/c 476,703.44 610,228.94
Trade Creditors Opening Bal 0.08 0.08
Trade Creditors Liquorland 27,136.09 21,030.01
Current Lease Liability 90,046.74 89,723.16
Accruals Electricity 0.00 3,035.55
Accruals Rates 3,970.70 2,185.35
Accruals Excess Water 1,500.00 1,500.00
Accruals Cleaning 1,850.00 0.00
Accruals Advertising 10,000.00 10,000.00
Accruals Waste 1,799.00 1,010.00
Accruals Royalties 12,500.38 15,676.04
Accruals Audit Fees 16,000.00 16,000.00
Accruals Conf Exp 7,502.00 7,052.00
Accruals Legal 9,648.86 9,648.86
Accruals Wages/Bonus 5,352.72 38,812.31
Emp Leave 159,956.32 158,216.79
Suspense Wages 32,276.06 395.67
Suspense National Mutual 3,762.20 0.00
Suspense Salaries 24,007.59 0.00
Suspense Gift Cert Sale 25,852.00 25,322.00
Suspense Gift Cert Redeemed (19,329.00) (18,544.00)
Suspense AP Susp 8,732.34 17,092.34
Acc Pay/Cashbook SUSPENSE (87.62) 0.00
------------ ------------
Total Current Liabilities 902,179.90 1,008,835.10
Long Term Liabilities:
Non Curr Liab Related Costs 1,539,888.00 1,539,888.00
Non Curr Liab Non Related Costs 87,908.49 89,683.85
Non Lease Liability 421,308.18 429,179.59
Non Curr Liab DITL 23,905.00 23,905.00
------------- -------------
Total Long Term Liabilities 2,073,009.67 2,082,656.44
Shareholder's Equity:
Issued Capital Authorised 10,000,000.00 10,000,000.00
Issued Capital Unissued (9,999,988.00) (9,999,988.00)
Reserves Revaluation 499,942.00 499,942.00
Reserves Share Premium 499,990.00 499,990.00
Retained Earnings Current Yr 13,108.02 13,108.02
Profit (Loss) for Period (641,086.34) (614,325.26)
------------- -------------
Total Shareholder's Equity 371,965.68 398,726.76
============= =============
3,347,155.25 3,490,218.30
============= =============
SCHEDULE 9
Restaurants
Campbelltown - Xxx Xxxxxxxxxxxx xxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx
Xxxxxxxxxxxxxx - 000-000 Xxxxxxx Xxxx, Xxxxxxxxxxxxxx
Xxxxxxxx - 000-000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx
SCHEDULE 10
Employment and Related Issues for Re-Employed Employees
(a) Xxxxxxx Aust. shall notify CTG in writing:
(i) as soon as practicable following Completion, of the names of the
Employees it has employed in the Business; and
(ii) within 30 Business Days after Completion, of the amount equal to
the total monetary value of the Leave Entitlements for those
Employees who do not become re-employed by Xxxxxxx Aust..
(b) Xxxxxxx Aust. shall, within 14 days after receipt of the notice referred
to in paragraph (a)(ii) of this Schedule 10, pay or allow CTG an amount
from the Escrow Amount equal to the monetary value of the Leave
Entitlements for the Employees who have not become re-employed by Xxxxxxx
Aust. Xxxxxxx Aust. agrees that each of the re-employed Employees will be
treated by Xxxxxxx Aust. in relation to Leave Entitlements as if they
have been employed by Xxxxxxx Aust. for the period they were employed by
CTG.
SCHEDULE 11
Purchase Price
-------------------------------------------------------------------------------
Assets Price $AUD Price $USD
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Equipment Leases $1
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Goodwill (AUD$ (US dollar equivalent)
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Intellectual Property Rights $1
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Leases & Sites $1
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Plant & Equipment (AUD$1,046,134) (US dollar equivalent)
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Other assets set out in Schedule 7 (AUD$92,980) (US dollar equivalent)
-------------------------------------------------------------------------------
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TOTAL USD$2,680,000
SCHEDULE 12
Franchise Agreements
Franchise Agreement dated 9 November 1995 between CTG and Xxxxxxx for Restaurant
at Campbelltown.
Franchise Agreement dated 12 February 1996 between CTG and Xxxxxxx for the
Restaurant at Ringwood.
Franchise Agreement dated 22 November 1995 between CTG and Xxxxxxx for the
Restaurant at Wentworthville.
SCHEDULE 13
1. The Escrow Amount will:
(a) be paid by Xxxxxxx Aust into the trust account of Xxxxxx Xxxxxxx,
Sydney;
(b) be available to, and applied towards, payment and discharge of
the following items in the following order:
(i) payment to Xxxxxxx Aust of an amount equal to the gross
profit attributable to liquor sales at the Ringwood Premises
during the period from Completion to the date Xxxxxxx Aust
acquires a liquor licence in respect of the Ringwood
Premises (inclusive) or earlier termination of the
Management Agreement;
(ii) payment of any Apportionable Outgoings which have not been
adjusted at Completion;
(iii) reimbursement to CTG of an amount equal to the monetary
value of the Leave Entitlements for the Employees who have
not become re-employed by Xxxxxxx Aust.
(iv) any other amounts agreed between the parties.
2. Xxxxxx Xxxxxxx will apply the Escrow Amount as set out in this Schedule on
receipt of:
(a) invoices or other documentary evidence acceptable to Xxxxxxx Aust and
CTG;
(b) the written authority of Xxxxxxx Aust; and
(c) the written authority of CTG.
3. The operation of this Schedule shall continue until all the amounts
referred to in paragraph 1(b) of this Schedule are paid, or the Escrow
Amount is fully exhausted but no later than 120 days from Completion Date.
If there is a balance remaining after payment of all of the amounts
referred to in paragraph 1(b) of this Schedule, the balance shall be paid
to CTG's NAB Account.
4. ***The [parties] [Xxxxxxx and Xxxxxxx Aust.] jointly and each of them
severally indemnify and will keep indemnified Xxxxxx Xxxxxxx and each of
the partners thereof from all Liabilities arising in any way in respect of
the Escrow Amount and the arrangements contemplated by or the operation of
this Schedule. [The provisions in square brackets in paragraph 4 of
Schedule 13 are only agreed if this sentence in brackets is deleted and a
choice is made of the alternative.]
SCHEDULE 14
Trade Marks
SCHEDULE 15
Prepayments and Deposits
1. Xxxxxxx Aust. agrees to pay CTG the following amounts as set out in the
attached analysis of prepayments and other Xxxxxxx Reimbursements:
(a) Prepayments; and
(b) Security Deposits.
2. Xxxxxxx Aust. will be entitled to the benefit of such Prepayments and
Security Deposits paid by CTG on payment of the amounts referred to in paragraph
1 of this Schedule 15.
Signed by the attorney of RED HOT CONCEPTS INC. )
in the presence of: )
)
)
Signature of Witness Signature of Authorised Person
Office held
(Print) Name of Witness (Print) Name of Authorised Person
Signed by the attorney of RED HOT CONCEPTS - PACIFIC INC )
in the presence of: )
)
)
)
Signature of Witness Signature of Authorised Person
Office held
(Print) Name of Witness (Print) Name of Authorised Person
Signed by the Attorney of CHILI'S TEXAS GRILL PTY LTD )
ACN 070 163 754 pursuant to the Power of Attorney )
provided by CTG in the presence of: )
)
)
Signature of Witness Signature of Authorised Person
Office held
(Print) Name of Witness (Print) Name of Authorised Person
Signed by Xxxxx Xxxxxxx for XXXXXXX INTERNATIONAL INC. )
in the presence of: )
)
)
Signature of Witness Signature of Authorised Person
Office held
(Print) Name of Witness (Print) Name of Authorised Person
Signed by Xxxxx Xxxxxxx for XXXXXXX AUSTRALIA PTY LTD )
(ACN 080 946 201) )
in the presence of: )
)
Signature of Witness Signature of Authorised Person
Office held
(Print) Name of Witness (Print) Name of Authorised Person
