Exhibit 10.13


STANDARD FORM




 





ASSET
SALE AGREEMENT 

WITH FEE INTEREST


By and
Between


NPC
MANAGEMENT, INC., AND 

NPC INTERNATIONAL, INC.


and


 PIZZA HUT OF AMERICA, INC.


and


PIZZA
HUT, INC.


Dated as
of August 24, 2006




 





 

















 


TABLE OF
CONTENTS


 


	
  1. TRANSFER OF BUSINESS AND
  PROPERTY

  	
  1

  
	
  1.1

  	
  TANGIBLE PERSONAL PROPERTY

  	
  1

  
	
  1.2

  	
  EXCLUDED PROPERTY

  	
  2

  
	
  1.3

  	
  REAL PROPERTY

  	
  4

  
	
  1.4

  	
  LICENSES

  	
  5

  
	
  1.5

  	
  RESTAURANT INVENTORIES AND CHANGE FUNDS

  	
  6

  
	
  1.6

  	
  PURCHASE PRICE AND OTHER PAYMENTS

  	
  6

  
	
  1.7

  	
  CLOSING DOCUMENTS

  	
  7

  
	
  1.8

  	
  NON-ASSUMPTION

  	
  9

  
	
  1.9

  	
  TITLE INSURANCE AND SURVEYS

  	
  9

  
	
  1.10

  	
  REQUIRED CONTRACTS

  	
  9

  
	
  2. REPRESENTATIONS OF SELLER

  	
  11

  
	
  2.1

  	
  CORPORATE POWER AND AUTHORITY

  	
  11

  
	
  2.2

  	
  NO CONFLICT OR BREACH

  	
  11

  
	
  2.3

  	
  CONSENTS 

  	
  12

  
	
  2.4

  	
  TITLE TO OWNED PROPERTY

  	
  12

  
	
  2.5

  	
  ADEQUACY OF PERSONAL PROPERTY

  	
  13

  
	
  2.6

  	
  LEASES

  	
  13

  
	
  2.7

  	
  INSURANCE

  	
  13

  
	
  2.8

  	
  TAXES 

  	
  13

  
	
  2.9

  	
  BROKERAGE AND FINDER’S FEES

  	
  14

  
	
  2.10

  	
  ABSENCE OF CERTAIN CHANGES

  	
  14

  
	
  2.11

  	
  ENVIRONMENTAL MATTERS

  	
  14

  
	
  3. REPRESENTATIONS OF THE BUYER

  	
  15

  
	
  3.1

  	
  ORGANIZATION, STANDING, POWER AND AUTHORITY

  	
  15

  
	
  3.2

  	
  NO CONFLICT OR BREACH

  	
  15

  
	
  3.3

  	
  CONSENTS

  	
  16

  
	
  3.4

  	
  BROKERAGE AND FINDER’S FEES

  	
  16

  
	
  3.5

  	
  OBLIGATIONS UNDER OTHER FRANCHISE AGREEMENTS

  	
  17

  
	
  3.6

  	
  SUPPLEMENTAL OPERATIONAL AND FINANCIAL CONDITIONS

  	
  17

  
	
  4. COVENANTS

  	
  17

  
	
  4.1

  	
  OPERATION UNTIL CLOSING

  	
  17

  
	
  4.2

  	
  ACCESS TO RESTAURANTS AND EMPLOYEES

  	
  18

  
	
  4.3

  	
  HART-SCOTT-RODINO ACT 

  	
  18

  
	
  4.4

  	
  FINANCING OF PURCHASE PRICE 

  	
  19

  
	
  4.5

  	
  RECORDATION

  	
  20

  
	
  4.6

  	
  CAPITAL EXPENDITURES

  	
  20

  
	
  5. SELLER’ EMPLOYEES

  	
  20

  
	
  6. CONDITIONS TO CLOSING

  	
  21

  
	
  7. CLOSING

  	
  23

  
	
  7.1

  	
  POST-CLOSING ADJUSTMENTS 

  	
  23

  
	
  7.2

  	
  POST-CLOSING INDEMNIFICATION

  	
  24

  
	
  7.3

  	
  CRITICAL DEFICIENCIES

  	
  24

  
	
  7.4

  	
  ADDITIONAL DOCUMENTS

  	
  25

  
	
  7.5

  	
  THE BUYER’S ACKNOWLEDGMENT

  	
  25

  
	
  7.6

  	
  INFORMATION STATEMENT

  	
  25

  
				



 

















 


	
  7.7

  	
  CLOSING COSTS,TRANSFER FEES AND EXPENSES

  	
  25

  
	
  8. MISCELLANEOUS

  	
  26

  
	
  8.1

  	
  NOTICES

  	
  26

  
	
  8.2

  	
  SURVIVAL

  	
  27

  
	
  8.3

  	
  TERMINATION OF AGREEMENT

  	
  27

  
	
  8.4

  	
  MODIFICATION AND WAIVER

  	
  27

  
	
  8.5

  	
  ASSIGNMENT: BINDING EFFECT

  	
  27

  
	
  8.6

  	
  SEVERABILITY

  	
  28

  
	
  8.7

  	
  ENTIRE AGREEMENT

  	
  28

  
	
  8.8

  	
  CONFIDENTIAL INFORMATION

  	
  28

  
	
  8.9

  	
  GOVERNING LAW

  	
  28

  
	
  8.10

  	
  BULK SALES WAIVER

  	
  29

  
	
  8.11

  	
  EXPENSES

  	
  29

  
	
  8.12

  	
  HEADINGS; INTERPRETATION

  	
  29

  
	
  8.13

  	
  TIME IS OF THE ESSENCE

  	
  30

  
	
  8.14

  	
  ANNOUNCEMENTS

  	
  30

  
	
  8.15

  	
  COUNTERPARTS

  	
  30

  
	
  8.16

  	
  NO SPECIFIC ENFORCEMENT

  	
  31

  
	
  8.17

  	
  SUBMISSION TO JURISDICTION

  	
  31

  
	
  8.18

  	
  ARMS LENGTH CONTRACT

  	
  31

  
	
  8.19

  	
  NO FUTURE ACQUISITION RIGHTS

  	
  31

  



 

















 


ASSET SALE AGREEMENT

WITH FEE INTEREST


ASSET SALE AGREEMENT, dated as of August 24, 2006
(this “Agreement”), is by and among Pizza Hut of America, Inc. (the “Seller”), and NPC Management, Inc.
and NPC International, Inc., (collectively, the “Buyer”), and Pizza Hut, Inc. (“PHI”).


WITNESSETH:


WHEREAS, the Seller operates
the 39 Pizza Hut and/or Pizza Hut/WingStreet co-branded restaurants listed on Schedule
1.1 hereto and owns or leases certain real and personal property that it
uses in connection with such restaurants; and


WHEREAS, the Seller desires
(i) to sell, convey, assign, transfer or lease (as provided below) to the Buyer
the operations of and substantially all of the real and personal property (the “Assets”)
owned by the Seller and used in connection with such restaurants and (ii) to
assign or sublease to the Buyer substantially all of the real property leased
from third parties and used in connection with such restaurants, and the Buyer
desires to acquire such restaurants and property “AS IS, WHERE IS”, with all
faults (collectively, the “Acquisition”), on the terms and subject to the
conditions set forth in this Agreement;


NOW THEREFORE, in
consideration of the premises and of the mutual covenants of the parties set
forth in this Agreement, the Seller and the Buyer hereby agree as follows:


1.        Transfer of
Business and Property.


1.1      Tangible
Personal Property.


Subject to the terms of this
Agreement, at the Closing (as such term is defined in Section 7), Seller shall
sell, convey, assign, transfer and deliver to the Buyer, and the Buyer shall
purchase and acquire from Seller, all of Seller’s right, title and interest in
and to the following types of tangible personal property (collectively, the “Personal
Property”) relating to the Pizza Hut and/or Pizza Hut/WingStreet co-branded
restaurant business (the “Business”) being conducted at the restaurants listed
on Schedule 1.1 hereto (collectively, the “Restaurants”) that are
operated by Seller:


(a) all furniture, signs,
fixtures and equipment located in the Restaurants;


(b) all prepaid rents,
advertising and other amounts and all utility and miscellaneous deposits
relating to the Restaurants (subject to Sections 1.6 and 7.1);


(c) all uniforms, menus,
dishes, glassware, utensils and other small wares located in the Restaurants;


 


1

















 


(d)       all inventories of usable food ingredients, packaging
materials, supplies, paper products and other consumables and stores in the
Restaurants, as well as a change fund for each Restaurant consisting of cash in
drawers and in safes located in such Restaurant (but excluding any deposits in
safes located in such Restaurant and any amounts in local bank accounts) in an
amount and in denominations adequate to do business at such Restaurant on the
morning after the Closing Date (as such term is defined in Section 7) (subject
to Sections 1.6 and 7.1);


(e)       copies of real property records relating solely to the
operations of the Restaurants, and copies of certain personnel and payroll
records relating solely to the Hired Employees (as such term is defined in
Section 5) who worked in the Restaurants immediately prior to the Closing; and


(f)        buildings and improvements, if any, owned by the Seller.


1.2      Excluded Property.


It is expressly understood
and agreed that:


(a)       Leased
Equipment.


The Personal Property shall
not include the equipment listed or described on Schedule 1.2, which is
leased by the Seller pursuant to lease agreements with third parties.
Notwithstanding the foregoing, the Seller will assign and transfer to the Buyer
all of Seller’s right, title and interest in and to, and the Buyer will assume
and will agree to faithfully perform, pay and discharge when due all of the
terms, covenants, liabilities and obligations of Seller under, each equipment
lease (collectively, the “Equipment Leases”) with respect to leased equipment
located in the Restaurants (collectively, the “Leased Equipment”). The Buyer
will have 90 days after the Closing Date to review any non-readily terminable
Equipment Leases which the Seller may assign and transfer, and the Seller
agrees to assume and may terminate those Equipment Leases rejected by the Buyer
in writing within such 90 day period. Notwithstanding the foregoing, the Buyer agrees
to perform the obligations arising under the Equipment Leases for at least 90
days following the Closing Date, if not terminable sooner, and for the entire
term of the Equipment Leases if such Equipment Leases are not terminated or put
back to the Seller within the allotted 90 days.


(b)       Contracts.


The Seller will assign and
transfer to the Buyer all of Seller’s right, title and interest in and to, and
the Buyer will assume and will agree to faithfully perform, pay and discharge
when due all of the terms, covenants, liabilities and obligations of Seller
under, each contract and agreement (including, without limitation, each
service, security, maintenance, print advertising and supply contract) used on
the Closing Date in the normal and customary operations of, and that relates
specifically to, one or more of the Restaurants (collectively, the “Contracts”).
Except as provided in


 


2

















 


Section 1.10, below, during
the first 90 days after the Closing Date, the Buyer may reject any non-readily
terminable contracts (other than print advertising contracts) which the Seller
has assigned and transferred and the Seller agrees to assume and may terminate
those Contracts rejected by the Buyer in writing within such 90 day period.
Notwithstanding the foregoing, the Buyer agrees to perform the obligations
arising under all of the Contracts for at least 90 days following the Closing
Date, if not terminable sooner, and for the entire term of the Contracts if
such Contracts are not terminated or put back to the Seller within the allotted
90 days. Additionally, the Buyer agrees that it will pay for or reimburse the
Seller for any non-terminable benefits flowing from the Contracts (including
print advertising) that are received by the Restaurants or the Business after
the Closing Date for which PHI and/or the Seller have previously paid or will
pay, regardless of the date of assignment or termination of such Contracts. The
Contracts shall not include, and Seller will not assign, any contracts with
hotels or motels for in-room delivery service of Pizza Hut or WingStreet
products, any contracts for credit card services involving one or more of the
Restaurants, any contracts with respect to participation in the National School
Lunch Program, automobile leases, and any other contracts (other than print
advertising contracts and computer hardware maintenance contracts) that are
covered by a master agreement which includes any Pizza Hut and/or Pizza
Hut/WingStreet co-branded restaurant other than the Restaurants listed on Schedule
1.1. All such contracts as related to the Restaurants will be terminated at
Closing by Seller. Notwithstanding the foregoing, the Buyer may seek to
contract with hotels, motels and school food service programs within the
delivery areas, if any, designated in the Franchise Agreement (as defined at
Section 1.10 (a)).


(c)       Ordinary
Course Dispositions.


The Personal Property
relating to any individual Restaurant shall not include any property or assets
which have been disposed of prior to the Closing in the ordinary course of
business consistent with the past operations of such Restaurant and subject to
the provisions of Section 4.1.


(d)       Intellectual
Property.


The Personal Property shall
not include any patents, trademarks, copyrights, any applications or
registrations for any thereof, or any other intellectual property or similar
rights or assets.


(e)       Cash, Etc.


The Personal Property shall
not include any cash (other than the change funds specifically referred to in
Sections l.l(d)), bank accounts, cash equivalents or other similar types of
investments or marketable securities.


 


3

















 


1.3      Real
Property.


(a)       Owned Real
Property.


The Seller owns the parcels
of real estate listed or described on Schedule 1.3(a) hereto, together with all buildings and
improvements located thereon (collectively, the “Owned Real Property”). At
Closing, the Seller will convey the Owned Real Property to the Buyer by special
warranty deed in the form attached hereto as Exhibit “L” (the “Special
Warranty Deed”). The Buyer will acquire the Owned Real Property “AS IS, WHERE
IS”. If a separate entity is formed to acquire the Owned Real Property, such
entity will not charge the Buyer lease amounts in excess of market rates and,
in any event, lease amounts will not exceed 6% of Gross Sales, as defined in
the Franchise Agreement. The Buyer’s right to acquire the Owned Real Property
is subject to and conditioned upon the Buyer’s consummation of the Acquisition.


(b)       Leased Real
Property.


The Seller leases from third
parties the parcels of real estate listed or described on Schedule 1.3(b)
(collectively, the “Leased Real Property”) pursuant to existing real property
leases (the “Real Property Leases”). The Buyer hereby agrees to execute an
Assignment and Assumption of Lease Agreement and Blanket Guaranty,
substantially in the form attached as Exhibit “I” hereto, with respect
to each parcel of Leased Real Property, pursuant to which the Buyer will assume
all of Seller’s right, title and interest in and to, and will agree to
faithfully perform, pay and discharge when due all of the terms, covenants,
liabilities and obligations of the Seller under, the Real Property Lease
related to such parcel of the Leased Real Property. The Buyer also agrees to
name the Seller as an additional insured with respect to its insurance coverage
required to be carried under the terms of the Real Property Leases related to
each Leased Real Property to indemnify the Seller from any losses resulting
from any contingent liability that Seller may have with respect to the Leased
Real Property. The Seller agrees to use reasonable, good-faith efforts to
obtain:


(i)        from each landlord from whom consent to an assignment of a
Real Property Lease to the Buyer is required, a consent to such assignment; and


(ii)       from each landlord, an estoppel certificate with respect to
each Real Property Lease.


The Seller need not pay any
consideration or incur any incremental liability to obtain either a consent or
an estoppel certificate from any landlord. If any required consent to an
assignment cannot be obtained prior to Closing, the Seller  may, at its option, either (i) proceed with
the assignment and agree to indemnify the Buyer for any losses suffered by
Buyer as a consequence of the lack of consent, or (ii) sublease the affected
Leased Real Property to the Buyer, or (iii) enter into a management agreement
or other similar arrangement with the Buyer on terms that are no less


 


4

















 


favorable to the Buyer than
those contained in the Real Property Lease covering the affected Leased Real
Property.


1.4      Licenses.


(a)       The Buyer acknowledges that certain operational licenses  and permits, excluding alcoholic beverage
licenses, are required in the operation of the Restaurants and the Business
(collectively, “Licenses”) and that neither such Licenses nor any alcoholic
beverage licenses will be transferred or assigned by the Seller as part of the
Acquisition.  The Buyer further acknowledges,
that in the event FCC licenses are used in the operation of the Restaurants,
said licenses will not be transferred to the Buyer and the Buyer will be
responsible for obtaining its own FCC licenses. The Buyer recognizes that it
must make application to the appropriate regulatory agencies for all necessary
Licenses.   Application for all required
Licenses shall be in accordance with Section 1.4(b). Upon the execution of this
Agreement by all parties hereto, the Buyer agrees to promptly file all necessary
applications.  The Buyer acknowledges
that the Buyer is responsible for obtaining alcoholic beverage licenses in the
event Buyer desires to sell alcoholic beverages in the Restaurants. All costs,
fees and expenses associated with the Buyer obtaining new Licenses (including
alcoholic beverage licenses) shall be borne by the Buyer.


(b)       The Buyer hereby agrees that neither it nor any of its
Affiliates (as defined in Section 8.12(e)) will take any action, or fail to
take any action, which would result in any of the Seller’s Licenses (including
alcoholic beverage licenses) being revoked or otherwise terminated prior to
Closing.   The Buyer’s applications for
Licenses (including alcoholic beverage licenses) shall specify that such
Licenses are not to become effective until the day following the Closing Date
and that the approval of such applications by the applicable agency or
authority shall be conditioned upon the event of Closing. In the event that
this Agreement is terminated or abandoned prior to the Closing or the Closing
Date is rescheduled, the Buyer hereby agrees, at its cost, to immediately
withdraw or reschedule all pending applications with respect to all Licenses
(including alcoholic beverage licenses) and to otherwise take all action, in
cooperation with the Seller, as may be required to cause all rights in the
applicable Licenses (including alcoholic beverage licenses) to remain with or
return to the Seller. This Section 1.4(b) shall expressly and permanently
survive the termination or abandonment of this Agreement.


(c)       The Buyer and Seller acknowledge that neither this Agreement
nor the Closing will be conditioned upon or subject to the Buyer’s ability to
obtain the Licenses (including alcoholic beverage licenses).  The Seller will remove all of its Licenses
(including alcoholic beverage licenses) from the Restaurants on the Closing
Date.


(d)       The Seller agrees to provide the Buyer with license screen
summaries of the Licenses (to the knowledge of Seller) under which the Seller
currently operates the


 


5

















 


Restaurants, excluding any
and all construction, building, zoning and occupancy permits.


1.5      Restaurant
Inventories and Change Funds.


At the close of business on
the Closing Date, Seller’s representatives (who may, at the Buyer’s election,
be accompanied by the Buyer’s representatives) will take inventory of the food
ingredients, supplies, paper products, and other consumables in each Restaurant
and count each Restaurant’s change fund. The Buyer may, at its option, send its
representatives to the Restaurants to accompany Seller’s representatives during
these inventory/cash counts, and may then verify the accuracy of those
inventory/cash counts. Unless the Buyer’s representatives accompany Seller’s
representatives during these inventory/cash counts and point out any
discrepancies during the inventory/cash counts, the inventory/cash counts
prepared by Seller’s representatives will be final. Any differences between the
actual inventories and change funds and the estimates described in Section 1.6
will be resolved pursuant to Section 7.1.


1.6      Purchase
Price and Other Payments.


As consideration for the
transfer of the Assets and the other undertakings of the Seller and PHI in this
Agreement, the Buyer shall pay the following amounts to the parties and at the
times noted:


(a)       Exclusivity
Fee.


Upon execution of this
Agreement, the Buyer shall pay to the Seller the sum of $577,000 (the “Exclusivity
Fee”). The Exclusivity Fee will be equal to at least 2% of the total agreed
price for the Assets (“Purchase Price”). If the Acquisition is not closed by
October 30, 2006, for any reason other than force majeure, failure of the
Seller to obtain CAPEX Committee approval or other circumstances solely within
Seller’s control, this Agreement will terminate as provided in Section 8.3 and
the Seller shall be entitled to keep the entire Exclusivity Fee as liquidated
damages.


(b)       Purchase Price Balance.


At Closing, the Buyer shall
pay to the Seller the sum of $28,470,000, representing the balance of the
Purchase Price.


(c)       Estimated Charges.


At Closing, the Buyer shall
pay to the Seller, as provided in Section 7.7, the sum of $915,477.05,
representing an estimate of the net amount due to Seller, after prorations, for
Development Fees, prepaid items (including rent and advertising), inventories,
utilities, change funds, property taxes, title, surveys and similar costs
chargeable to Buyer under this Agreement (“Estimated Charges”). An itemization
of


 


6

















 


the Estimated Charges is
reflected in the form attached hereto as Exhibit “O” (“Pre-Close
Statement”). Any difference between the Estimated Charges paid at Closing and
the actual costs that should have been paid by Buyer will be resolved after the
Closing pursuant to section 7.1.


(d)       Other Taxes
and Fees.


At Closing, or when otherwise
due, as provided in Section 7.7, the Buyer shall pay to the Seller, or to the
appropriate governmental authority, any and all applicable sales, use, excise,
transfer, documentary, and recording fees and taxes, and all other fees and
taxes arising from the Acquisition (other than Seller’s income taxes) that any
party hereto may be required to pay by any applicable law, rule or regulation.
To the extent any such fees or taxes are payable by Seller, they will be
included in the Estimated Charges.


(e)       Development
Fees.


If, as a part of this
Acquisition, PHI is requiring development of new Pizza Hut/WingStreet
restaurants and/or the addition of WingStreet outlets at any of the
Restaurants, Buyer shall pay to Seller who will remit to PHI at Closing, the
Development Fees required by the Development Agreement(s) (as defined in the
Development Agreements attached as Exhibits “N” and “P”), in the
amounts set forth in Exhibits “N-l” and “P-l” attached hereto.


(f)        Other
Amounts.


At Closing, or when otherwise
due, the Buyer shall pay to the Seller, or to the appropriate payee, any other
amounts due under this Agreement or any other agreement contemplated hereby.


The Purchase Price balance
and all other amounts payable by the Buyer to Seller at Closing shall be paid
by wire transfer of immediately available funds to an account designated by
Seller. All such amounts must be wired to Seller by no later than 12:01 p.m. on
the Closing Date. The Purchase Price includes the initial franchise fees
required by the Franchise Agreement (as defined in Section 1.10(a)), which
initial fees will be collected by Seller and remitted to PHI. The Purchase
Price does not include any other fees due under the Franchise Agreement.


1.7      Closing
Documents.


Prior to or at the Closing of
the Acquisition, the Seller, PHI, and the Buyer will exchange the following
fully executed documents:


(a)       a Bill of Sale for the Assets in the form attached as Exhibit
“A”;


(b)       the Franchise Agreement in the form attached as Exhibit “B”;


 


7

















 


(c)       the SUS/FMS License and Support Agreement attached as Exhibit
“C”;


(d)       the Pepsi-Cola Beverage Supply and Marketing Agreement in the
form attached as Exhibit “D”;


(e)       the Subscriber Agreement for 2-way Satellite Services and
Equipment Lease Agreement for Yum Franchisee attached as Exhibit “E”;


(f)        the Franchise Agreement and Mutual Indemnification for
Participation in Online Ordering attached as Exhibit “F”;


(g)       the Quik Order Agreement attached as Exhibit “G”;


(h)       the VIP Program Agreement attached as Exhibit “H”;


(i)        Assignment and Assumption Agreement for the Real Property
Leases and Blanket Guaranty in the form of Exhibit “I” hereto, accompanied
by any required consents and estoppel certificates (or indemnities) as
contemplated by Section 1.3(b);


(j)        Assignment and Assumption Agreement for the Equipment Leases
and Contracts being assumed in the form of Exhibit “J” hereto;


(k)       the Access and Confidentiality Agreement in the form attached
as Exhibit “K”;


(l)        Special Warranty Deeds covering the Owned Real Property in
the form of Exhibit “L”;


(m)      the Franchisee Agreement for Participation in Mapping of
Restaurant Delivery Areas in the form of Exhibit “M” hereto;


(n)       one or more Development Agreement(s) attached as Exhibit “N”
in the event PHI is requiring development of new Pizza Hut/WingStreet
restaurants and/or the Development Agreement attached as Exhibit “P” if
PHI is requiring the addition of WingStreet outlets in any of the Restaurants;


(o)       all documents necessary for Buyer to become a member of the
Pizza Hut National Purchasing Coop, Inc.;


(p)       the WingStreet Addendum to Pizza Hut, Inc. Franchise Agreement
attached as Exhibit “Q”; and


(q)       any other documents reasonably requested by any party.


 


8

















 


1.8      Non-Assumption.


At the Closing, the Buyer
shall assume the liabilities of PHI and the Seller that relate to the operation
of the Restaurants from and after the Closing Date (the “Assumed Liabilities”).
Except as specifically contemplated by this Agreement, the Buyer will not
assume any liabilities or obligations that arise from the operations of the
Restaurants on or before the Closing Date, and the Seller agrees to timely
perform all obligations relating to the Restaurants that arise out of
operations of the Restaurants for the period prior to the Closing Date.


1.9      Title
Insurance and Surveys.


Due to the critical timeline
requirements to close the transaction, PHI may order title searches on all
Owned Real Property to be transferred to the Buyer pursuant to this Agreement.
These title searches will be performed by a national title company approved by
PHI. If PHI has established relations with such companies, the Buyer will be
entitled to the benefit of PHI’s preferred rates. If permissible under
applicable law and the terms of any agreement with such companies, the fees
paid for the searches may be applied toward the title policy costs for title
policies desired by the Buyer based upon these title searches. In the event the
Buyer or the Buyer’s lender requires environmental reports relating to the
Owned Real Property, the Buyer shall first obtain Seller’s prior written
consent and shall execute the Access and Confidentiality Agreement referenced
in Section 4.2 below, and shall retain a nationally recognized firm approved by
PHI to perform such work. Seller will not consent to any invasive environmental
audit or review and the results of any permitted environmental audit or review
will not affect Buyer’s obligations hereunder. To the extent that the Buyer or
the Buyer’s lender requires surveys of the Owned Real Property, the Buyer shall
retain a nationally recognized firm approved by PHI to perform such work. The
consultants referenced in this Section 1.9 will be retained solely by the
Buyer, but the Seller shall have the right to obtain copies of any documents or
reports that they prepare. As provided for in Sections 1.6 and 7.7, the Buyer
shall reimburse the Seller at Closing for all actual or estimated costs
incurred by Seller on behalf of the Buyer related to these items, subject to
any post-closing adjustments pursuant to Section 7.1 of this Agreement.


1.10    Required
Contracts.


Prior to or at Closing, Buyer
will execute any and all agreements that PHI customarily requires of
franchisees including, but not limited to those described in this Section 1.10.


(a)       Prior to or at Closing, PHI will grant and Buyer will enter
into a Pizza Hut, Inc. Location Franchise Agreement in the form attached hereto
as Exhibit “B” (the “Franchise Agreement”). A copy of the form of the
Franchise Agreement has previously been provided to Buyer with PHI’s Uniform
Franchise Offering Circular.


 


9

















 


(b)       Prior to or at Closing, Buyer will execute a franchisee
version of the Pepsi-Cola Beverage Supply and Marketing Agreement (“Pepsi
Agreement”) in the form attached as Exhibit “D”, pursuant to which Buyer
will agree, subject to certain exceptions provided for in the Pepsi Agreement,
that Pepsi products will be the exclusive beverages sold, dispensed or
otherwise made available or advertised, displayed or promoted in the
Restaurants.


(c)       Prior to or at Closing, Buyer will execute a Subscriber
Agreement for 2-Way Satellite Services and Equipment Lease Agreement for Yum
Franchisee (the “Subscriber Agreement”) in the form attached as Exhibit “E”,
pursuant to which Buyer will contract to have Hughes Network Systems, Inc.,
provide communication services to the Restaurants as provided in the Subscriber
Agreement.


(d)       Prior to or at Closing, Buyer will execute the Franchisee
Agreement and Mutual Indemnification for Participation in Online Ordering (the “Online
Ordering Agreement”) in the form attached as Exhibit “F”, pursuant to
which Buyer will agree to adopt and enforce PHI’s Online Privacy Policy, and
any changes thereto, and will agree to indemnify PHI for certain damages
resulting from Buyer’s use of online ordering systems.


(e)       Prior to or at Closing, Buyer will execute a Quik Order
agreement (the “Quik Order Agreement”) in the form attached as Exhibit “G”,
pursuant to which Buyer will agree to pay Quik Order, Inc., for certain
services related to internet ordering from the Restaurants, all as more fully
described in the Quik Order Agreement.


(f)        Prior to or at Closing, Buyer will enter into an agreement to
participate in and continue the Very Into Pizza (or VIP) Program with Hawkeye
Communications, Inc. (the “VIP Agreement”) in the form attached as Exhibit “H”,
pursuant to which Buyer will continue participation in the VIP program.


(g)       Prior to or at Closing, Buyer will execute a Franchisee
Agreement for Participation in Mapping of Restaurant Delivery Areas in the form
attached as Exhibit “M”, pursuant to which Buyer agrees to participate
in the mapping program.


(h)       Prior to or at Closing, if PHI is requiring, as part of this
Acquisition, development of new Pizza Hut/WingStreet restaurants, Buyer will
execute one or more Development Agreements in the form attached as Exhibit “N”
for each such development obligation. If PHI is requiring as part of this
Acquisition, the addition of WingStreet to any of the Restaurants, Buyer will
execute a Development Agreement in the form attached as Exhibit “P.”


(i)        Prior to or at Closing, Buyer will execute a WingStreet
Addendum to Pizza Hut, Inc. Franchise Agreement in the form attached as Exhibit
“Q.”


 


10

















 


(j)        Prior to or at Closing, Buyer will execute all documents necessary
to become and remain a member of the Pizza Hut National Purchasing Co-op, Inc.
(the “Purchasing Co-op”).


(k)       The Restaurants will contain the software and hardware for the
proprietary SUS/FMS Systems (the “SUS/EMS Systems”) of the Seller’s parent
company, PHI. Prior to or at Closing, Buyer will execute a separate license and
support agreement with PHI (a “SUS/FMS License and Support Agreement”), in the
form attached as Exhibit “C”, which will require the Buyer to pay the
standard software support, Help Desk and menu fees then being charged by PHI
with respect to the SUS/FMS Systems for each such Restaurant. Buyer will also
keep in force a hardware maintenance agreement with a vendor approved by PHI.
Neither the Seller nor PHI will have any liability to the Buyer for losses
suffered by the Buyer as a result of the Buyer’s failure to properly install,
update and use software updates or to implement necessary hardware changes
after Closing.


2.        Representations
of Seller.


Seller represents to the
Buyer that as of the date of this Agreement:


2.1      Corporate
Power and Authority.


Seller is a corporation duly
organized and in good standing under the laws of the jurisdiction of its
incorporation, and has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement and each other agreement or
document executed or to be executed by Seller in connection herewith, and to
consummate the transactions contemplated hereby and thereby. Seller is
authorized to do business and is in good standing in the states in which the
Restaurants operated by Seller are located. This Agreement has been, and each
other agreement or document to be executed by Seller in connection herewith
will be, duly executed and delivered by Seller and constitutes, or will
constitute, a legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.


2.2      No Conflict
or Breach.


The execution, delivery and
performance of this Agreement and any other agreements or documents
contemplated hereby and the consummation by Seller of the transactions
contemplated hereby or thereby do not and will not:


(a)       conflict with or constitute a violation of the certificate of
incorporation or by-laws of Seller;


 


11

















 


(b)       to the knowledge of Seller, conflict with or constitute a
violation of (with or without the giving of notice or the lapse of time or
both) any provision of any law, judgment, order, decree, rule or regulation of
any legislative body, court, governmental or regulatory authority or arbitrator
which is applicable to or relates to Seller; or


(c)       to the knowledge of Seller, with or without the giving of
notice or the lapse of time or both, violate or conflict with, constitute a
default under, result in a breach, acceleration or termination of any provision
of, or require notice to or the consent of any third party under, any contract,
agreement, commitment, indenture, mortgage, deed of trust, lease, licensing
agreement, note or other instrument or obligation to which Seller is a party or
by which Seller is bound, which could, individually or in the aggregate,
reasonably be expected to have a material adverse effect upon Seller or the
ability of Seller to perform its obligations under this Agreement or any other
agreement or document contemplated hereby.


2.3      Consents.


To the knowledge of Seller,
except the filings with the Federal Trade Commission (the “FTC”) and the
Department of Justice (the “DOJ”) referred to in Section 4.3, no material
consent, approval, or authorization of, or designation, declaration or filing
with, or notice to, any legislative body, court, governmental or regulatory
authority or arbitrator under any provision of any law, judgment, order,
decree, rule or regulation is required on the part of Seller in connection with
the execution, delivery and performance of this Agreement or any other
agreement or document contemplated hereby or with the consummation of the transactions
contemplated hereby and thereby.


2.4      Title to
Owned Property.


Seller has good and
marketable title to all of the Personal Property and the Owned Real Property
with respect to the Restaurants operated by Seller, free and clear of any liens
and encumbrances, except for (i) Personal Property, with respect to any
Restaurant operated by Seller, disposed of prior to the Closing in the ordinary
course of business of such Restaurant consistent with the past operations of
Seller and Section 4.1, below, (ii) certain fixtures, buildings and
improvements located on the Leased Real Property which Seller has the right to
use pursuant to the Real Property Leases (or any of them), (iii) easements or
other encumbrances which do not materially adversely affect the full use and
enjoyment of the Owned Real Property, or the purposes for which it is currently
used, and (iv) liens for taxes and assessments not yet due and payable. This
representation does not constitute a representation by Seller as to the title
of Seller’s lessors of any Leased Real Property or Leased Equipment, nor does
this representation constitute a representation of the condition of any of the
Personal Property or the Owned Real Property or the Leased Real Property, which
is sold or leased, as applicable, “AS IS, WHERE IS”, with all faults.


 


12

















 


Additionally, the Seller
shall not be required to execute an “Owner’s Affidavit” to delete standard
exceptions to an owner’s or mortgagee’s title policy.


2.5      Adequacy of
Personal Property.


The Personal Property and the
Leased Equipment with respect to the Restaurants operated by Seller constitute
all of the items of tangible personal property required to operate such
Restaurants as Pizza Hut and/or Pizza Hut/WingStreet co-branded restaurants.
This representation does not constitute a representation of the condition of
the Personal Property or Leased Equipment, each of which are sold or assigned,
as applicable, “AS IS, WHERE IS”, with all faults.


2.6      Leases.


Each of the material
Equipment Leases and Real Property Leases with respect to the Restaurants
operated by Seller is in full force and effect, and to the knowledge of Seller,
Seller has not received notice of a material default under any of them. Subject
to obtaining any necessary consents and approvals, Seller has the right to
assign each such material Equipment Lease and Real Property Lease to the Buyer,
providing the Buyer with the right to use such Leased Equipment or to occupy
such Leased Real Property, as the case may be, on terms and conditions that are
materially the same as Seller had prior to any such assignment. This
representation does not constitute a representation as to the adequacy of any
lessor’s title to any of the Leased Equipment or the Leased Real Property, as
the case may be.


2.7      Insurance.


Seller carries adequate
insurance (both in form and amount), subject to deductibles, with respect to
the Business and real and personal property of the Restaurants operated by
Seller. Such insurance is in effect and will remain in effect through the
Closing Date.


2.8      Taxes.


Seller or its consolidated
parent has filed all requisite federal, state and local tax returns and has
paid all taxes required thereby, to the extent they have become due and
payable, other than (i) those presently payable without penalty or interest,
and (ii) any that are being contested in good faith by appropriate proceedings.
The Seller will indemnify the Buyer for any damages suffered by the Buyer as a
result of the Seller’s failure to pay any such taxes to the extent such taxes
related to the ownership or operation of the Restaurants prior to the
applicable Closing Date.


 


13

















 


2.9      Brokerage
and Finder’s Fees.


The Seller, nor any of its respective
Affiliates or any of their respective stockholders, directors, officers,
partners or employees, on behalf of Seller, has retained or dealt with any
broker or finder, or has incurred or will incur any liability for brokerage
fees, commissions or finder’s or similar fees in connection with the
transactions contemplated by this Agreement or the other documents contemplated
hereby.


2.10    Absence of
Certain Changes.


Each of the unaudited profit
and loss summaries (the “Profit and Loss Summaries”) that relate to the
Restaurants for the periods ended March 20, 2006 previously delivered to the
Buyer are true and correct in all material respects. Since March 20, 2006, none
of the Restaurants have suffered any material adverse change in its financial
condition or results of operations other than changes in the ordinary course of
business that, individually or in the aggregate, have not had a material
adverse effect on such Restaurants. Seller agrees to inform the Buyer of any
material adverse changes to the financial condition or results of operations of
the Restaurants prior to the Closing.


2.11    Environmental
Matters.


To the best of the Seller’s
knowledge, without independent investigation and except as otherwise reflected
in Seller’s files regarding the Restaurants which have been provided to Buyer:


(a)       The Restaurants contain no asbestos in friable form;


(b)       No underground petroleum or chemical storage tanks or
underground storage facilities are located under the Restaurants;


(c)       No contaminant, industrial waste, pollutant1, toxic
or hazardous waste, or any similar substance of any kind or character has been
stored, processed, or disposed of in or around the Restaurants by the Seller in
conducting its business, or discharged at any time by the Seller directly or
indirectly into the environment in violation of any law or governmental
regulation applicable to the Seller, or into any sanitary sewer connection or
treatment system except in conformity with requirements of all










1                               The term “pollutant” means any substance subject to
control under the Federal Water Pollution Act, 33 U.S.C §1251, et seq.,
or the Clean Air Act, 42 U.S.C. §7401, et seq., or regulations
promulgated thereunder. The term “toxic or hazardous waste” means any chemical,
substance, or material that is classified by the Environmental Protection
Agency as a hazardous substance under the Comprehensive Environmental Response,
Compensation’ and Liability Act of 1980, 42 U.S.C. §9601, et seq., or
regulations promulgated thereunder, or under the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. §6901, et seq.,
or regulations promulgated thereunder, or which is a petroleum product, or
which is classified by any applicable state or local regulation or statute as a
hazardous waste.


 


14

















 


applicable laws, regulations
and valid permits nor has any such act or occurrence taken place under the
ownership of a prior owner which has not been cured, except in such instances
which would not have a material adverse effect on the operations and financial
condition of the Restaurants taken as a whole; and


(d)       With respect to the Restaurants, the Seller has not at any
time been the subject of any governmental investigation or proceeding
pertaining to the use, storage, processing, transportation or disposition of
toxic or hazardous waste or any other subject or material that has been
determined to be hazardous to human health under applicable law or government
regulation, nor have they been the subject of any governmental investigation or
proceeding pertaining to violation of any waste water or sewage disposal
statutes or regulations applicable to the business and operations of the
Seller.


3.        Representations
of the Buyer.


The Buyer represents to the
Seller that as of the date of this Agreement:


3.1      Organization,
Standing, Power and Authority.


The Buyer is a corporation
duly organized and in good standing under the laws of the jurisdiction in which
it is incorporated and in which it is doing business, and has full power and authority
to execute, deliver and perform its obligations under this Agreement and each
other agreement or document executed or to be executed by it in connection
herewith, and to consummate the transactions contemplated hereby and thereby.
The Buyer and each of its Affiliates that sign this Agreement and/or the
Franchise Agreement meet all of the standards for, and requirements of,
franchisees of PHI, including without limitation the standards set forth in the
Manual (as defined in the Franchise Agreement) and the requirements set forth
on Schedule 3.1 hereto. This Agreement has been, and each other
agreement or document to be executed by the Buyer in connection herewith will
be, duly executed and delivered by the Buyer and constitutes, or will
constitute, a legal, valid and binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally,
general equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.


3.2      No Conflict
or Breach.


The execution, delivery and
performance of this Agreement and any other agreements or documents
contemplated hereby and the consummation by the Buyer of the transactions
contemplated hereby or thereby do not and will not:


 


15

















 


(a)       conflict with or constitute a violation of the articles of
incorporation or by-laws or other organizational documents, as applicable, of
the Buyer or any of its Affiliates that sign this Agreement and/or the
Franchise Agreement;


(b)       to the knowledge of Buyer, conflict with or constitute a violation
of (with or without the giving of notice or the lapse of time or both) any
provision of any law, judgment, order, decree, rule or regulation of any
legislative body, court, governmental or regulatory authority or arbitrator
which is applicable to or relates to the Buyer or any of its Affiliates that
sign this Agreement and/or the Franchise Agreement; or


(c)       to the knowledge of Buyer, with or without the giving of
notice or the lapse of time or both, violate or conflict with, constitute a
default under, result in a breach, acceleration or termination of any provision
of, or require notice to or the consent of any third party under, any contract,
agreement, commitment, indenture, mortgage, deed of trust, lease, licensing
agreement, note or other instrument or obligation to which either of the Buyer
(or any of its Affiliates that sign this Agreement and/or the Franchise
Agreement) are a party or by which the Buyer (or any such Affiliate) is bound,
which could, individually or in the aggregate, reasonably be expected to have a
material adverse effect upon the Buyer (or any such Affiliate) or the ability
of the Buyer (or any such Affiliate) to perform its obligations under this
Agreement or any other agreement or document contemplated hereby.


3.3      Consents.


To the knowledge of Buyer, no
consent, approval, or authorization of, or designation, declaration or filing
with, or notice to, any legislative body, court, governmental or regulatory
authority or arbitrator under any provision of any law, judgment, order,
decree, rule or regulation is required on the part of the Buyer (or any of its
Affiliates that sign this Agreement and/or the Franchise Agreement) in
connection with the execution, delivery and performance of this Agreement or
any other agreement or document contemplated hereby or with the consummation of
the transactions contemplated hereby and thereby, except for the filings with
the FTC and the DOJ referred to in Section 4.3.


3.4      Brokerage
and Finder’s Fees.


Neither the Buyer nor any of
its Affiliates or any of its respective stockholders, directors, officers,
partners or employees, on behalf of the Buyer, has retained or dealt with any
broker or finder, or has incurred or will incur any liability for brokerage
fees, commissions or finder’s or similar fees in connection with the
transactions contemplated by this Agreement or the other documents contemplated
hereby.


 


16

















 


3.5      Obligations Under Other Franchise
Agreements.


Neither the Buyer nor any Affiliate of it is in
default under any existing franchise agreement with PHI or with YUM! Brands,
Inc. or any division or subsidiary thereof, nor does there exist any condition
or conditions that, with the giving of notice, the passage of time, or both,
would ripen into a default thereunder.


3.6      Supplemental Operational and Financial
Conditions.


Buyer shall have satisfied, or agreed to satisfy, in a
manner satisfactory to Seller and PHI, the operational and financial conditions
set forth on Schedule 3.6 attached hereto, which include by way of example, the
conditions applicable to all current or future sale/leaseback transactions
involving any of the Restaurants. Any such failure by Buyer to satisfy the
conditions set forth on Schedule 3.6 shall constitute a breach by Buyer under
the PHI Franchise Agreement.


4.        Covenants.


4.1      Operation Until Closing.


Prior to and including the Closing Date, the Seller
will operate the Restaurants in the ordinary course of business. Seller will
maintain all of the Assets with respect to the Restaurants operated by Seller
in substantially the same condition (ordinary wear and tear excepted) as they
were in on the date of this Agreement, except for (i) Personal Property
disposed of in the ordinary course of business consistent with the past
operations of such Restaurant; provided, however, any such Personal
Property must be replaced by similar assets of equal or greater value in like
or better condition than those assets transferred or removed or (ii) Personal
Property transferred among Restaurants that are subject to this Agreement.
Seller will only make capital improvements to the Restaurants that have been
authorized as evidenced by a fully approved and executed CAPEX dated prior to
the date of this Agreement. Notwithstanding the foregoing, Seller will not
perform any CAPEX work that is otherwise scheduled to occur after the Closing
Date. The damage or destruction of any Restaurant operated by Seller before the
Closing will not affect the Buyer’s obligation to close the transactions
contemplated by this Agreement. Subject to the requirements of any applicable
Real Property Lease, Seller shall proceed to repair the damage or, if such
repair is not reasonably practicable in the opinion of Seller prior to the
closing date, then Seller shall credit to the Buyer at the Closing an amount
equal to the sum of the reasonable cost (as agreed by the Buyer and the Seller)
of repairing or restoring the damaged or destroyed restaurant to substantially
the same condition as immediately before the damage or destruction.


 


17

















 


4.2      Access to
Restaurants and Employees.


The Buyer (and/or its
consultants, attorneys, lenders or advisers) may not inspect any Restaurant or
contact any Pizza Hut employees working in such Restaurant or market until (i)
Seller has made Employee Announcements to the employees of the Restaurants, and
(ii) the Buyer (and when applicable in Seller and PHI’s sole discretion, the
Buyer’s consultants, attorneys, lenders or other advisors) has executed the
Access and Confidentiality Agreement in the form attached hereto as Exhibit “K”.
Once these conditions have been met, if the Buyer chooses to inspect the
Restaurants (under the conditions set forth herein and in the Access and
Confidentiality Agreement), the Buyer must schedule such inspections with PHI,
the Buyer must be accompanied by an agent or employee of PHI and the Buyer must
conduct the inspections in a manner that minimizes disruption to the Restaurant’s
operations. Any such inspections are for the Buyer’s information only; the
Restaurants are being sold “AS IS, WHERE IS.” The Buyer’s (and its consultant’s,
attorney’s, lender’s or other advisor’s) right to perform environmental audits
on the Owned Real Property is subject to Seller’s prior written consent and the
conditions set forth in Section 1.9, as well as the execution and delivery of
the Access and Confidentiality Agreement, also described in Section 1.9 above,
and the terms and conditions contained therein. Buyer does not have the right
to perform environmental audits of the Leased Real Property. Buyer acknowledges
and agrees that a violation of this Section 4.2 shall constitute a default
under this Agreement by Buyer and Seller shall have, in addition to any other
rights or remedies hereunder, at law or in equity, the right to terminate this
Agreement and retain the Exclusivity Fee as provided in Section 1.6.


4.3      Hart-Scott-Rodino
Act.


The Buyer and the Seller
shall, in cooperation with each other, file (or cause to be filed) with each of
the DOJ and the FTC any reports or notifications that may be required to be
filed by them under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(the “HSR Act”) in connection with the transactions contemplated by this
Agreement. If the Seller, based upon the advice of counsel, determines that any
filings with the DOJ and the FTC are necessary, the Buyer and any necessary
Affiliates of the Buyer agree to make any such filings in connection with the
transactions contemplated by this Agreement upon request from PHI. The Buyer
and the Seller shall promptly comply with all requests for further documents
and information made by the DOJ or the FTC, shall use their best efforts to
obtain early termination of all waiting periods under the HSR Act, and shall
furnish to the others all such information in its possession as may be
necessary for the completion of the reports or notifications to be filed by the
others. All fees due from any party to the FTC or the DOJ under the HSR Act in
connection with the filing of any of those reports or notifications shall be
borne by the Buyer.


 


18

















 


4.4      Financing of
Purchase Price.


(a) Prior to execution of
this Agreement, the Buyer (i) shall notify the Seller of the source(s) of
financing that the Buyer proposes to use to consummate the transactions
contemplated by this Agreement, and (ii) shall provide the Seller with a copy
of the commitment(s) of the source(s) to provide such financing. The Buyer
hereby acknowledges and agrees that at least 20% of the total transaction costs
(which include the Purchase Price and all closing costs and other costs or
indebtedness to be incurred by the Buyer related to the Acquisition)
(collectively, the “Total Transaction Costs”), must be in the form of at-risk
equity, as determined by the Seller, and that no more than 80% of the Total
Transaction Costs may be secured by a lien on the real and personal property
(the “Property”) being sold by the Seller to the Buyer pursuant hereto. A
Sources and Uses of Funds Statement, detailing all amounts and sources of
equity, closing costs and any indebtedness to be incurred by Buyer related to
the Acquisition, has been provided by Buyer and is attached as Schedule 4.4
hereto. The Buyer acknowledges that PHI and the Seller’s approval of the Buyer’s
equity structure and financing was a condition to entry into this Agreement and
the Acquisition. The Buyer agrees to, and hereby does, authorize each proposed
source of third-party financing to provide to the Seller, from time to time,
information with respect to the likelihood and form in which financing will be
provided to the Buyer. At the time of applying for any third-party financing,
the Buyer shall notify the third party of the Seller’s right to the information
described in this Section and of the terms and requirements of this transaction
and of this Agreement and the agreements contemplated hereby.


(b) The Buyer hereby
acknowledges and agrees that the Buyer shall not pledge or grant a lien or
security interest or otherwise encumber any portion of its interest in or under
(i) any of the Real Property Leases or Equipment Leases without the prior
written consent of the lessor thereunder (which consent shall be in such lessor’s
sole discretion, with the Seller having no control over whether or not such
lessor will consent), including the filing of leasehold mortgages or financing
statements, (ii) any of the Contracts without the prior written consent of the
other party thereto (which consent shall be in such other party’s sole
discretion, with the Seller having no control over whether or not such other
party will consent), (iii) the Franchise Agreement and any other franchise
agreements between PHI and the Buyer or its Affiliates, (iv) any intellectual
property of PHI, any rights in any “Pizza Hut Marks” (as defined in the
Franchise Agreement), any proprietary PHI software or computer operating system
or any PHI trademarked property, or (v) any intellectual property of
WingStreet, LLC, any rights in any WingStreet “Marks” or any WingStreet
trademarked property. The Buyer further acknowledges and agrees that it will
not permit any of the equity interests in the Buyer to be pledged or otherwise
encumbered for any reason. The Buyer agrees that the Buyer will not take any
action which alters or affects any of the Seller’s rights under the Real
Property Leases or the Assignment and Assumption of Lease Agreements and that
the terms of any financing obtained by the Buyer shall not violate the terms of
the Franchise Agreement, this Agreement (including any


 


19

















 


schedules and exhibits
thereto) or the Real Property Leases, including but not limited to terms
concerning payment of insurance proceeds.


(c) Without the prior written
consent of the PHI Law Department, attention John J. Murphy, none of the Buyer, its Affiliates or any of its
respective agents or representatives, including any parties who may be
providing financing to the Buyer, shall have any contact with any of the lessors
of the Leased Real Property or the Leased Equipment or any of the parties to
the Contracts (other than the Seller) prior to the Closing.


(d) The covenants contained
in this Section 4.4, or some of them, will also be contained in an amendment to
the Franchise Agreement and any breach of such covenants shall also constitute
a default under Section 18.2 of the Franchise Agreement.


4.5      Recordation.


The Buyer shall cause all
Special Warranty Deeds relating to the transfer of Owned Real Property pursuant
to this Agreement and all Assignment and Assumption of Lease Agreements
relating to the transfer of all Leased Real Property pursuant to this Agreement
to be recorded in the local county or applicable authority’s recording or real
estate recording office where each such property is located no later than five
(5) business days after the Closing Date.


4.6      Capital
Expenditures.


Current Image Requirements. All of the Restaurants must comply with PHI’s
published standards, as PHI may amend or modify from time to time. If any of
the Restaurants do not comply with PHI’s “Minimum Asset Standards and Re-Image
Specifications (5/2002)” (“Re-Image Standards”), Buyer will bring each such
Restaurant into compliance with PHI’s Re-Image Standards within six years after
the date of the Franchise Agreement, as set forth in Section 6.3 of the
Franchise Agreement. Buyer must also complete major asset actions, consisting
of relocations, rebuilds and/or major remodels (“Major Asset Actions”), on at
least 70% of its dine-in, or “Red Roof” System Restaurants (as defined in
Section 1.21 of the Franchise Agreement) as provided in the Franchise
Agreement, within ten years of the date of the Franchise Agreement.


5.        Seller’s
Employees.


Unless otherwise agreed
before Closing, with respect to any of Seller’s restaurant-level employees,
Seller will terminate the employment of those employees at the close of
business on the Closing Date. Seller will directly pay all terminated
employees, including any of the employees hired by the Buyer (the “Hired
Employees”) for earned and unused vacation, in accordance with Seller’s normal
policies (which do not call for Seller to pay for accrued but unearned
vacation). The terminated employees may become employees of the Buyer as of the


 


20

















 


day following the Closing
Date and PHI hereby waives any violation of Section 13.2 of the Franchise
Agreement with respect to the Hired Employees. All claims of the employees
arising out of their employment with Seller before the Closing Date will be the
sole liability of Seller, and Seller will indemnify the Buyer from all claims
of that nature.


As between Seller and the
Buyer, the Buyer assumes all claims of the Hired Employees relating to
employment by the Buyer arising after the Closing Date, and the Buyer will
indemnify Seller from all such claims by them. For the purpose of determining
benefits for Hired Employees, the Buyer agrees to honor the Hired Employees’
length of service and anniversary dates with the Seller. The Seller will
furnish the Buyer a list of the Hired Employees that defines their length of
service and anniversary dates. The Buyer understands that the active
participation of the Hired Employees in all benefit plans maintained by the
Seller will end on the Closing Date. Seller will continue any employee benefit
payment obligations for Hired Employees who are on leave of absence or disabled
on the Closing Date in accordance with the Seller’s or PHI’s policies.


If any of the Seller’s above
restaurant employees are transferred to other operations of the Seller (“Transferred
Employees”), the Seller will (upon request by the Buyer) use its reasonable
best efforts to provide to the Buyer the services of some or all of the
Transferred Employees (as chosen by the Buyer) for up to 60 days after the
Closing. The Buyer will reimburse the Seller for all payroll and benefit costs
associated with any such loaned Transferred Employees.


6.         Conditions
to Closing.


(a)       The obligations of the Seller, on the one hand, and the Buyer,
on the other hand, to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or prior to the Closing, of each
of the following conditions:


(i)         there shall not be in effect any preliminary or permanent
injunction or other order issued by any federal or state court of competent
jurisdiction in the United States or by any United States federal or state
governmental or regulatory body nor any statute, rule, regulation or executive
order promulgated or enacted by any United States federal or state governmental
authority which restrains, enjoins or otherwise prohibits the consummation of
the transactions contemplated by this Agreement or any other agreement or
document contemplated hereby; and


(ii)        any filings required to be made under the HSR Act shall have
been made, and all applicable waiting periods thereunder with respect to the
transactions contemplated by this Agreement shall have expired or been
terminated.


(b)       The Seller’s obligation to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, at or prior to the Closing,
of each of the following conditions (any of which may be waived in writing by
Seller):


 


21

















 


(i)        each of the representations of the Buyer under this Agreement
and each of the other agreements and documents contemplated hereby shall be
true and correct in all material respects at and as of the time of the Closing
with the same effect as though such representations had been made again at and
as of that time, except to the extent that any such representations expressly
relate to an earlier date in which case any such representations shall be true
and correct in all material respects at and as of such earlier date;


(ii)       the Buyer shall have performed and complied with each
obligation, covenant and condition required by this Agreement and the other
documents contemplated hereby to be performed or complied with by it prior to
or at the Closing, with such exceptions as could not reasonably be expected to
result in a material adverse effect on the ability of the Buyer to perform its
obligations under this Agreement or any other agreement or document
contemplated hereby provided, however, that nothing in this subparagraph shall
affect Seller’s rights under Section 4.2 in the event of a default thereunder;


(iii)      the Capital Expenditures Committees of YUM! Brands, Inc., and
PHI will have approved the transactions contemplated by this Agreement;


(iv)      the Seller will have received a copy of a resolution or
unanimous written consent evidencing the action by the Buyer’s Board of
Directors or the Buyer’s general partner or such other similar authorizing body
approving the purchase of the Assets under this Agreement certified by an
authorized officer, partner or member; and


(v)       the Buyer will deliver to Seller a statement, signed by the
Buyer’s Chief Financial Officer, certifying that at least 20% of the Total
Transaction Costs being paid will be represented by “at risk capital” as
defined by applicable accounting rules, which is in the form of equity and is
not (and will not be secured) by a lien on the Assets or on the equity
interests of the Buyer or any of its Affiliates, and the Seller shall otherwise
be satisfied in all respects with the capital structure of the Buyer; and


(vi)      the Seller shall have received evidence satisfactory in all
respects to them that the Buyer shall have hired an operator to manage the
Restaurants to be purchased by the Buyer, which operator has substantial
experience in the operation of Pizza Hut restaurants and has been approved by
PHI, in its sole discretion.


(vii)     the Buyer shall deliver to Seller and PHI, and the Seller and
PHI shall have received from the Buyer and its Affiliates, as the Seller and
PHI deem necessary, in their sole discretion, all Uniform Franchise Offering
Circular receipts, including those relating to any Addenda or Amendments.


 


22

















 


(c)       The Buyer’s obligation to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, at or prior to the Closing,
of each of the following conditions (any of which may be waived in writing by
the Buyer):


(i)        each of the representations of Seller under this Agreement
and each of the other agreements and documents contemplated hereby shall be
true and correct in all material respects at and as of the time of the Closing
with the same effect as though such representations had been made again at and
as of that time, except to the extent that any such representations expressly
relate to an earlier date in which case any such representations shall be true
and correct in all material respects at and as of such earlier date;


(ii)       Seller shall have performed and complied with each obligation,
covenant and condition required by this Agreement and the other documents
contemplated hereby to be performed or complied with by it prior to or at the
Closing, with such exceptions as could not reasonably be expected to result in
a material adverse effect on the ability of the Seller to perform its
obligations under this Agreement or any other agreement or document
contemplated hereby; and


(iii)      the Buyer will have received a copy of a resolution of Seller’s
Board of Directors approving the sale of the Assets certified by an authorized
officer of the Seller.


7.        Closing.


Unless otherwise agreed, the
consummation of the transactions contemplated by this Agreement will occur at
the “Closing”, at 10:00 a.m. (local time) on September 18, 2006, at the offices
of PHI in Dallas, Texas, or such other location as may be designated by the
Seller in its sole discretion. (As used herein, the date the Closing actually
occurs is referred to in this Agreement as the “Closing Date”). At the Closing,
the Seller shall deliver to the Buyer such bills of sale, instruments of
assignment, transfer and conveyance and the other documents contemplated by
this Agreement. Against such delivery, the Buyer shall pay to the Seller the
balance of the Purchase Price and all other amounts required to be paid at the
Closing in accordance with Section 1.6 above and shall deliver the other
documents contemplated by this Agreement. All actions taken at the Closing
shall be deemed to have been taken simultaneously at the time the last of any
such actions is taken or completed. Upon the completion of the Closing, title
to the Assets and the assumption of the Assumed Liabilities will be deemed to
be effective as of 11:59 p.m. on the Closing Date. The Seller will cooperate
with the Buyer to see that the transfer of the Assets proceeds smoothly.


7.1      Post-Closing
Adjustments.


From time to time after the
Closing Date, the Buyer or the Seller may prepare and submit to the other party
one or more post-closing statements concerning any obligations that become due
under this Agreement that were not paid at Closing, or


 


23

















 


for which the actual costs
varied from any estimate. The net amount owed will be paid within 30 days after
receipt of the post-closing statement. Any amount not paid within 30 days after
receipt of a post-closing statement will bear interest at the rate of 18% per
annum, or the maximum legal rate. Without limiting the generality of this
provision, the following is a non-exclusive list of some of the types of items
that may be reimbursed through use of post-closing statements: rent; equipment
lease payments; utilities; inventories and change funds; sales taxes and any
applicable interest and penalties; real or personal property taxes; and
advertising and other prepaid expenses.


7.2      Post-Closing
Indemnification.


The Buyer will indemnify the
Seller, its affiliates, subsidiaries, employees, officers, directors, and
agents, on an after-tax basis, against any loss, cost, damage, or other expense
(including attorney’s fees) (collectively, “Losses”) that arise from operation
of the Restaurants or related properties after Closing. The Seller will
indemnify the Buyer, its affiliates, subsidiaries, employees, officers,
directors, and agents, on an after-tax basis, against any Losses that arise
from operation of the Restaurants or related properties on or before the
Closing.


7.3      Critical
Deficiencies.


Notwithstanding that the
Assets are being sold to Buyer “AS IS, WHERE IS”, with all faults, and subject
to the limitations set forth herein, Seller agrees to indemnify the Buyer for
the actual costs incurred by Buyer to cure any Critical Deficiency. For
purposes of this section, a “Critical Deficiency” is a deficiency in the
kitchen (or other area of the Restaurant that is not accessible to the general
public) that a local health department determines is of such a magnitude that
the Buyer would not be permitted to open the subject Restaurant for business
while such deficiency exists. Seller’s obligation to provide the Buyer such
indemnity is conditioned upon the Buyer notifying the Seller of the Critical
Deficiencies within seven (7) days after Closing and providing Seller with
copies of all relevant inspection reports citing the Critical Deficiencies
within thirty (30) days after Closing.


The maximum amount of the
indemnity for which Seller will be liable hereunder will not exceed the lesser
of $10,000 per Critical Deficiency or, in the aggregate for all Restaurants
listed on Schedule 1.1, $3,000 per Restaurant. Seller will have no
obligation to indemnify the Buyer for lost profits or other consequential
damages resulting from any business interruption while the Critical
Deficiencies are cured. Buyer specifically acknowledges that this provision
supersedes entirely all prior oral or written discussions, agreements or
understandings regarding the Seller’s responsibility for the costs to repair
Critical Deficiencies or other faults related to the Assets.


 


24

















 


7.4      Additional
Documents.


For the period of two years
following the Closing, each of the parties covenants to cooperate and provide
such additional documents or instruments as the other party may reasonably
request for the purpose of carrying out this Agreement. Each of the parties
will use reasonable efforts, none of which shall require the payment of any
consideration, to have their present officers, directors, and employees
cooperate after the Closing in furnishing information, evidence, testimony and
other assistance concerning matters, including but not limited to litigation
and employment matters, that occurred prior to or after the Closing.


7.5      The Buyer’s
Acknowledgment.


The Buyer acknowledges that:


(a)       Except as set forth in Section 7.5(b), below, the Seller (and
its agents and employees) have made no statements or warranties to the Buyer as
an inducement for the Buyer’s decision to purchase, except as contained in this
Agreement or in the PHI and/or WingStreet Uniform Franchise Offering Circular
for Prospective Franchisees, and the Buyer’s decision to purchase was made
independently by it with the aid of professional counselors, including legal,
accounting, and financial advisors.


(b)       The Seller has made available to the Buyer, before the Buyer’s
execution of this Agreement, the Profit and Loss Summaries. The Buyer’s
decision to purchase the Assets for the consideration set forth in this
Agreement was made independently, based on inspection of the Profit and Loss
Summaries by the Buyer or its agents or representatives (and on other
information available to the Buyer), without reliance on the book ledgers or on
any oral statements of any kind or character by the Seller or its
representatives.


7.6      Information
Statement.


The Buyer and the Seller will
timely file any information statement required by regulations issued pursuant
to Section 1060(b) of the Internal Revenue Code of 1986, as amended.


7.7      Closing
Costs, Transfer Fees and Expenses.


The Buyer will pay, and
indemnify the Seller from, any and all closing costs including, but not limited
to, environmental reports, title search fees, title insurance premiums,
recording costs and survey costs, sales, use, excise, transfer, documentary,
recording, property and other taxes and fees (except the Seller’s income taxes)
and other costs for which Seller is to be reimbursed hereunder that arise out
of the transactions contemplated by this Agreement that the Seller or the Buyer
may be required to pay, which shall become due and payable prior to, on or
after the Closing Date. As provided in Section 1.6, at Closing the Buyer will
pay Seller an estimate of


 


25

















 


these charges that are due to
Seller. Any differences between the estimated charges paid and the actual
charges incurred will be resolved pursuant to Section 7.1.


8.        Miscellaneous.


8.1      Notices.


Any notice or other
communication under this Agreement shall be in writing (including, without
limitation, by telecopy or like transmission) and shall be considered given (a)
when delivered personally (including, without limitation, by overnight
courier), (b) when telecopied (with confirmation of transmission having been
received), or (c) three days after being mailed by registered mail (postage
prepaid, return receipt requested), in each case to the respective parties at
the addresses set forth below (or at such other address as a party may specify
by notice to the other):


if to the Seller, to them
c/o:


Pizza Hut, Inc. 

14841 Dallas Parkway 

Dallas, Texas 75254 

Attention: John J. Murphy, Esq. 

Telecopy No.: (972) 338-6852


if to the Buyer, to:


NPC Management, Inc. 

7300 West 129th Street 

Overland Park, KS 66213 

Attn: Troy D. Cook 

Telecopy No: (913) 327-5849


with a copy to:


 


26

















 


8.2      Survival.


The provisions set forth in
subsections 1.4(b), 4.4, 8.4, 8.8 and 8.14 of this Agreement shall expressly
and permanently survive the termination or abandonment of this Agreement. All
covenants and agreements contained in this Agreement shall expressly and permanently
survive the Closing Date and shall remain in full force and effect, except for
the representations set forth in Sections 2 and 3, which representations shall
expressly survive the Closing Date for a period of six months following the
Closing Date.


8.3      Termination
of Agreement.


This Agreement will terminate
and be of no further force and effect if the transfer has not been consummated
by the close of business on October 30, 2006.


8.4      Modification
and Waiver.


No modification or waiver of
any of the provisions of this Agreement, and no consent by any of the parties
to any departure from the provisions of this Agreement by the other party, will
be effective unless the modification or waiver is in writing and signed by the
party or parties to be bound. Each modification or waiver will be effective
only for the period, on the conditions, and for the specific instances and
purposes specified in the writing. No notice to or demand on any of the parties
in any case will entitle it, them, or any of them to any other or further
notice or demand in similar or other circumstances.


8.5      Assignment:
Binding Effect.


This Agreement is intended to
inure to the benefit of, and is binding upon, the parties and all of their
respective successors and permitted assigns. This Agreement is not, however,
assignable or transferable, in whole or in part, by any of the parties except
upon the express prior written consent of all of the other parties, and nothing
contained in this Agreement is intended to confer upon any person, other than
the parties and their respective heirs, successors, and permitted assigns, any
rights, remedies, or obligations under, or by reason of, this Agreement. Any
request by the Buyer for the Seller’s consent to the assignment of this
Agreement will be subject to the conditions on assignment contained in the
Franchise Agreement. PHI and its respective successors and assigns are intended
third-party beneficiaries of this Agreement. Notwithstanding the foregoing,
however, PHI may assign all of its
rights and obligations hereunder to YUM! Brands,, Inc. (“YUM”) or to any
subsidiary of YUM that is the franchisor of the “Pizza Hut” and/or “WingStreet”
concept and, upon such assignment, PHI will have no further liability
hereunder.


 


27

















 


8.6      Severability.


If any provision or
provisions of this Agreement or of any of the documents or instruments
delivered pursuant hereto, or any portion of any provision hereof or thereof,
is invalid or unenforceable pursuant to a final determination of any court of
competent jurisdiction or a result of future legislative action, that
determination or action will be construed (whenever possible) so as not to
affect the validity or enforceability hereof or thereof and will not affect the
validity or effect of any other portion hereof or thereof which shall remain in
full force and effect.


8.7      Entire
Agreement.


This Agreement (including the
Exhibits and the Schedules, which are incorporated into this Agreement by
reference) contains the entire understanding of the parties with respect to the
transactions contemplated by this Agreement and may be amended, modified,
supplemented, or altered only by a writing duly executed by all of the parties.
Any prior agreements or understandings relating to the same subject matter,
whether oral or written, are entirely superseded by this Agreement (other than
the confidentiality letter between the parties dated September 8, 2005).


8.8      Confidential
Information.


This Agreement, the terms of
the transactions contemplated by this Agreement, and any other information
heretofore or hereafter disclosed or obtained in connection with this Agreement
concerning the business, operations, affairs, or financial condition of any
party hereto (collectively, the “confidential information”), will be kept
confidential, except as otherwise required by law or legal process and except
to the extent (i) the confidential information is or has been disclosed to any
lender, to YUM! Brands,, Inc. or any of its Affiliates, or to the respective
attorneys, accountants, and financial advisors of any party hereto and its
Affiliates, (ii) the confidential information is or hereafter becomes lawfully
obtainable from other sources, or (iii) this duty of confidentiality is waived
in writing by the party to whom the confidential information relates. These
obligations of confidentiality will permanently survive termination or
abandonment of this Agreement.


8.9      GOVERNING
LAW.


THIS AGREEMENT, AND ALL
INSTRUMENTS DELIVERED IN CONNECTION WITH THIS AGREEMENT, UNLESS OTHERWISE
EXPRESSLY PROVIDED IN THOSE OTHER INSTRUMENTS, SHALL IN ALL RESPECTS BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE
OF TEXAS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.


 


28

















 


8.10    Bulk Sales
Waiver.


The Seller and the Buyer each
waive compliance by the other with any bulk sales or similar laws that may be
applicable to the transactions contemplated by this Agreement.


8.11    Expenses.


Except as otherwise expressly
provided in this Agreement, each of the parties will bear its own expenses
incident to this Agreement and the transactions contemplated by this Agreement,
including without limitation all fees and disbursements of counsel and
accountants retained by the party, whether or not the transactions contemplated
by this Agreement are consummated.


8.12    Headings;
Interpretation.


(a)       The headings of the various articles, sections and subsections
of this Agreement have been inserted for the purpose of convenience of
reference only, are not a part of this Agreement and shall not be deemed in any
manner to modify, explain, enlarge or restrict any of the provisions of this
Agreement.


(b)       When reference is made in this Agreement to an Article,
Section, subsection, Schedule or Exhibit, such reference shall be to an
Article, Section, subsection, Schedule or Exhibit of this Agreement unless
otherwise indicated. Whenever the words “included”, “includes” or “including”
(or any other tense or variation of the word “include”) are used in this
Agreement, they shall be deemed to be followed by the words “without limitation”.
As used in this Agreement, the auxiliary verbs “will” and “shall” are
mandatory, and the auxiliary verb “may” is permissive (and, by extension, is
prohibitive when used negatively, as a denial of permission). All accounting
terms used but not defined in this Agreement shall have the meanings determined
by generally accepted accounting principles. The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term, and references to a person include
any individual, corporation, partnership or other entity and its permitted
heirs, successors and assigns. Any agreement, instrument or statute defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable
successor statutes.


(c)       Whenever any statement or representation is made to the
knowledge of the Seller, whether such statement or representation is contained
in this Agreement or in any other agreement or document contemplated hereby,
the “knowledge” referred to


 


29

















 


shall be limited to the
actual knowledge (without independent investigation) of the employees and
officers of the Seller and/or its Affiliates who are involved in the
negotiation and documentation of the transactions contemplated by this
Agreement.


(d) When reference is made in
this Agreement to the “relevant” Seller, such reference shall be to the Seller
who is selling or assigning, the portion of the Business, Restaurants or real
or personal property being referred to in the context of such reference.
Similarly, if reference is made in this Agreement to the “relevant” Franchise
Agreement, such reference shall be to the Franchise Agreement to which the
Buyer being referred to in the context of such reference is a party.


(e) For purposes of this
Agreement, the term “Affiliate” shall mean, with respect to any person or
entity, any other person or entity that directly or indirectly controls, is
controlled by, or is under common control with, such first person or entity.


8.13    Time is of
the Essence.


Time is of the essence in the
performance of this Agreement. Facsimile signatures, including signatures
relating to the execution of this Agreement, shall be deemed legally binding.


8.14    Announcements.


(a)       None of the Buyer, its Affiliates or any of its respective
subsidiaries, employees, officers, directors, agents or representatives may,
without the prior written consent of the Seller (which consent shall not be
unreasonably withheld after the Closing Date but may be arbitrarily withheld
prior thereto), make any announcement to the public concerning the transactions
contemplated by this Agreement.


(b)       The Seller, its Affiliates or any of their respective
subsidiaries, employees, officers, directors, agents or representatives may
not, without the prior written consent of the Buyer (which consent shall not be
unreasonably withheld after the Closing Date but may be arbitrarily withheld prior
thereto), make any announcement to the public concerning the transactions
contemplated by this Agreement, except as required by law.


(c)       This subsection 8.14 shall expressly and permanently survive
the termination or abandonment of this Agreement.


8.15    Counterparts.


This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original and all of which together shall constitute one and the same
instrument.


 


30

















 


8.16    No Specific
Enforcement.


Each of the parties to this
Agreement acknowledges that the Restaurants, the Assets, the Owned Real
Property and the Leased Real Property are not of a special, unique or
extraordinary character, and that any breach of this Agreement or any of the
agreements or documents contemplated hereby by any party hereto could be
compensated for by damages. Accordingly; if any party hereto breaches its
obligations under this Agreement or any of the agreements or documents
contemplated hereby, the other party hereto shall not be entitled to
enforcement of this Agreement or such other agreement or document by a decree
of specific performance requiring that the breaching party fulfill its
obligations hereunder or thereunder.


8.17    Submission to
Jurisdiction.


For purposes of any legal
action or proceeding relating to this Agreement or any other agreements or
documentation contemplated by the Acquisition, including recognition or
enforcement of any judgment, the Buyer and Seller hereby irrevocably and unconditionally
submit themselves and their property to the non-exclusive general jurisdiction
of the state and federal courts of the county in which PHI then has its
principal place of business, and any applicable appellate courts. The Buyer and
Seller waive any objection to venue or the inconvenience of such courts. The
Buyer and Seller waive, to the extent not prohibited by law, any right they may
have to claim any special, exemplary or consequential damages in such action or
proceeding.


8.18    Arms Length Contract.


This Agreement has been
negotiated “at arms length” by the parties hereto, each represented by counsel
of its choice and each having an equal opportunity to participate in the
drafting of the provisions hereof. Accordingly, in construing the provisions of
this Agreement no party shall be presumed or deemed to be the “drafter” or “preparer”
of the same.


8.19    No Future
Acquisition Rights.


The Buyer expressly
acknowledges and agrees that it has no rights to acquire any additional
restaurants or properties, other than those expressly provided in this
Agreement, from PHI or any of its Affiliates. Any future rights to acquire
restaurants or properties would only arise pursuant to a separate written
agreement between PHI or any of its Affiliates and Buyer.


 


31

















 


IN WITNESS WHEREOF, the parties have hereunto set
their hands and seals on the date and year first above written.


 


	
   

  	
   

  	
  PIZZA HUT OF AMERICA, INC.

  
	
  



  	
   

  	
  By: 

  	
  

  /s/ John J. Murphy

  
	
   

  	
   

  	
   

  	
  John J. Murphy, President

  



 


 


	
   

  	
   

  	
  PIZZA HUT, INC.

  
	
  



  	
   

  	
  By: 

  	
  

  /s/ John J. Murphy

  
	
   

  	
   

  	
   

  	
  John J. Murphy, Vice
  President - Law

  



 


 


	
   

  	
   

  	
  NPC MANAGEMENT, INC.

  
	
  



  	
   

  	
  By: 

  	
  

  /s/ James K. Schwartz

  
	
   

  	
   

  	
   

  	
  James K. Schwartz,
  President

  



 


 


	
   

  	
   

  	
  NPC INTERNATIONAL, INC.

  
	
  



  	
   

  	
  By: 

  	
  

  /s/ James K. Schwartz

  
	
   

  	
   

  	
   

  	
  James K. Schwartz,
  President

  



 


 


32