EXHIBIT 10.24
ELEPHANT & CASTLE INTERNATIONAL, INC.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made, entered into and effective
this 3rd day of January, 2003, by and between Elephant & Castle International,
Inc., a Texas corporation, with its principal offices at 0000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0 (hereinafter referred to
as "Elephant & Castle"), and BC Restaurants, LLC, a California limited liability
company (hereinafter referred to as the "Licensee");
RECITALS
ELEPHANT & CASTLE(R) RESTAURANT SYSTEM Elephant & Castle has developed over time
at significant cost and investment a distinctive restaurant system for operating
and franchising restaurants under the name "Elephant & Castle(R)," which
incorporate an Anglo/British style pub restaurant and Tudor/Victorian decor, and
which serve a wide variety of high-quality food and beverage items featuring
English-style dishes, including fish and chips, shepherds pie, "bangers and
mash," and Old Country soups and desserts (the "Restaurant System").
ELEPHANT & CASTLE(R) MARKS Elephant & Castle has widely and extensively
publicized the name "Elephant & Castle(R)" to the public as an organization of
restaurant businesses operating under the Restaurant System. Elephant & Castle
has the right and authority to license the use of the name "Elephant &
Castle(R)," the Elephant & Castle logo, and other trademarks, trade names,
service marks, logos, commercial symbols, phrases, slogans and tag lines which
are now owned or which will be developed by Elephant & Castle (hereinafter
referred to as the "Marks").
OPERATION OF ELEPHANT & CASTLE(R) RESTAURANT The Licensee has agreed to develop,
own and operate an Elephant & Castle(R) restaurant (hereinafter referred to as
the "Elephant & Castle(R) Restaurant" or the "Restaurant") at the location set
forth in Article 2 using the Restaurant System and the quality, consistency and
uniformity standards and specifications established by Elephant & Castle. The
Licensee understands and acknowledges the importance of the high standards of
quality, appearance, cleanliness and service established by Elephant & Castle.
RIGHT TO USE MARKS AND RESTAURANT SYSTEM Elephant & Castle believes that it is
in its best interest to grant this License to the Licensee because it will
enhance brand awareness, increase customer awareness of the concept, provide
valuable business and financial information about operating an Elephant & Castle
Restaurant in conjunction with a hotel, and enhance the further development of
the concept in California by Elephant & Castle and its affiliated companies in
the western part of the United States. In partial consideration, Elephant &
Castle is willing to grant this License and provide the Licensee with the
recipes, cooking and food preparation techniques, food line management systems,
menu content and design, decor and color schemes, intellectual property, and
other operational, marketing, advertising, and promotional and business
information related to the Restaurant System.
MARKETING OF ELEPHANT & CASTLE(R) RESTAURANTS The Licensee recognizes that its
Elephant & Castle(R) Restaurant will be the first one to be located at a hotel
property in northern California. The Licensee further recognizes and agrees that
as further consideration for this License, Elephant & Castle will, on occasion,
arrange for potential developers, investors, franchisees and area developers to
view the premises, decor and operations of the Licensee's Elephant & Castle(R)
Restaurant and to discuss the operation of the Restaurant with the Manager.
Elephant
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& Castle will not provide any potential developer, investor, franchisee or area
developer with any proprietary or confidential information of BC Restaurants,
LLC without the written approval of its Chief Manager.
REVIEW OF AGREEMENT The Licensee has had full and adequate opportunity to read
and review this Agreement and to be thoroughly advised of the terms and
conditions of this Agreement by an attorney or other personal representative,
and has had sufficient time to evaluate and investigate the Restaurant System,
the financial requirements and the risks associated with the Restaurant System.
Pursuant to the above Recitals and in consideration of $10, the mutual promises
and covenants set forth in this Agreement and other good and valuable
consideration, Elephant & Castle and the Licensee agree and contract as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following words will have the following
definitions:
1.1 FF&E
"FF&E" will include furniture, furnishings, decor, supplies, inventory,
machinery, technology and equipment.
1.2 LICENSE
"License" will mean the right granted by Elephant & Castle to the Licensee
authorizing the Licensee to operate an Elephant & Castle(R) Restaurant at the
Licensed Location in conformity with the Restaurant System using the name
"Elephant & Castle(R)" and the other Marks.
1.3 MARKS
"Marks" will include the name "Elephant & Castle(R)," Registration No.
1,110,274, dated December 26, 1978, the Elephant & Castle logo and such other
trademarks, trade names, service marks, logos, commercial symbols, phrases,
slogans, and tag lines as Elephant & Castle has or may develop for use in
connection with Elephant & Castle(R) Restaurants.
1.4 RESTAURANT SYSTEM
"Restaurant System" will mean the distinctive foods, beverages, food products,
and other products and services which are associated with the trademarks, trade
names, service marks, copyrights, distinctive interior and exterior building
designs, decor, furnishings, menus, uniforms, slogans, signs, logos, commercial
symbols and color combinations of Elephant & Castle. "Restaurant System" will
include all of the quality, consistency and uniformity requirements, the
standards, specifications and procedures for product and services, operations,
cleanliness, sanitation, control, training, advertising and promotion, service,
appearance, and all instructions, procedures, methods and specifications
promulgated by Elephant & Castle.
1.5 TRANSFER
"Transfer" will mean to sell, assign, trade, transfer, pledge, lease, sublease
or otherwise dispose of.
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ARTICLE 2
GRANT OF LICENSE
2.1 LICENSED LOCATION
Elephant & Castle hereby grants the Licensee the nonexclusive personal right to
operate one Elephant & Castle(R) Restaurant in conformity with the Restaurant
System using the name "Elephant & Castle(R)" and other Marks at the following
single location at the Club Quarters at Battery and Xxxx Xxxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-0000 (the "Licensed Location)."
2.2 EXCLUSIVE AREA
Except as provided to the contrary in this Article, the Licensee will receive an
"Exclusive Area" consisting of the area around the Licensed Location that is set
forth, described and/or highlighted on the map marked as Exhibit A that is
attached hereto and incorporated herein by reference. The Licensee's Exclusive
Area is exclusive to the extent that Elephant & Castle will not franchise,
license, develop, manage, own or operate ("develop") an Elephant & Castle(R)
Restaurant in the Exclusive Area. Notwithstanding the foregoing, Elephant &
Castle will have the absolute right to: (a) develop other restaurant business
concepts, except for British Pub concepts, under other brand names even if the
concept is located within the Exclusive Area and directly competes with the
Licensee; (b) develop Elephant & Castle(R) Restaurants in the Exclusive Area if
they are located at or within an airport terminal, a stadium or arena or other
venue for semi-professional or professional sports, or a college or university
campus; (c) market, distribute and sell, on a wholesale or retail basis,
clothing, goods, foods, products or any other items sold under any of the Marks
or any other brand, by direct sale, mail order, infomercials, telemarketing,
e-commerce or under any other marketing or distribution system or method, even
if such sales take place in, or are to distributors, retailers, or consumers who
are located in the Exclusive Area; and (d) advertise, promote and participate in
special events and promotional activities which take place in the Exclusive
Area, including, without limitation, parades, holiday celebrations, cooking,
recipe or restaurant competitions, sporting events, and fund-raising and
charitable events, and sell any product or service, including any product or
service sold under any of the Marks, in connection with such participation.
2.3 ENGLISH PACKAGE
Elephant & Castle will loan the Restaurant the decor package described in the
"English Package" Exhibit that is attached hereto and incorporated herein by
reference. The decor items constituting the English Package will be returned to
Elephant & Castle on the date this License is terminated.
2.4 CONDITIONS
The Licensee hereby undertakes the obligation to operate the Elephant &
Castle(R) Restaurant using the Restaurant System at the Licensed Location in
strict compliance with the terms and conditions of this Agreement for the entire
term of this Agreement. The rights and privileges granted to the Licensee by
Elephant & Castle under this Agreement are applicable only to the single
location designated as the Licensed Location, are personal in nature, and may
not be used elsewhere, at any other location or through any channel of
distribution other than the Restaurant location operated by the Licensee.
2.5 PERSONAL LICENSE
The Licensee will not have the right to license or sublicense its rights under
this Agreement. The Licensee will not have the right to Transfer this Agreement
or its rights under this Agreement, except as specifically provided for in this
Agreement.
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ARTICLE 3
TERM OF AGREEMENT
3.1 TERM
The term of this Agreement will be for 10 years, commencing on the date set
forth on Page L-1 of this Agreement. This Agreement will not be enforceable
until it has been signed by both the Licensee and Elephant & Castle.
3.2 TERM OF LEASE
If the term of the lease for the Licensed Location (including renewal terms) is
for a term that is longer than the term of this Agreement, or if the Lease is
renewed by the Licensee for an additional term, then the term of this Agreement
will be automatically extended to coincide with the term of the Licensee's lease
for the Licensed Location. The lease for the Licensed Location is incorporated
herein by reference.
ARTICLE 4
QUALITY CONTROL, UNIFORMITY AND STANDARDS
4.1 QUALITY AND SERVICE STANDARDS
Elephant & Castle will develop, from time to time, uniform standards of quality,
cleanliness and service regarding the business operations of the Licensee's
Elephant & Castle(R) Restaurant to protect and maintain the distinction,
valuable goodwill and uniformity represented and symbolized by the Marks and the
Restaurant System. Accordingly, to ensure that all Elephant & Castle(R)
Restaurants maintain and adhere to the uniformity requirements and quality
standards for the foods, products and services associated with the Marks and the
Restaurant System, the Licensee agrees to maintain the uniformity and quality
standards required by Elephant & Castle for all foods, products and services
associated with the Marks and the Restaurant System and agrees to the terms and
conditions contained in this Article to assure the public that all Elephant &
Castle(R) Restaurants will be uniform in nature and will sell and dispense
quality foods, products and services.
4.2 IDENTIFICATION OF RESTAURANT
The Licensee will operate the Restaurant so that it is clearly identified and
advertised as an Elephant & Castle(R) Restaurant. The style and form of the
words "Elephant & Castle(R)" and the other Marks used in any advertising,
marketing, public relations or promotional program must have the prior written
approval of Elephant & Castle. The Licensee will use the name "Elephant &
Castle(R)," the approved logos and all graphics commonly associated with the
Restaurant System and the Marks which now or hereafter may form a part of the
Restaurant System, on all paper supplies, furnishings, advertising, public
relations and promotional materials, signs, stationery, business cards, linens,
towels, napkins, aprons, menus, food and beverage containers, placemats,
uniforms, clothing and other materials in the identical combination and manner
as may be prescribed by Elephant & Castle in writing. The Licensee will, at its
expense, comply with all legal notices of registration required by Elephant &
Castle or its attorneys and will, at its expense, comply with all trademark,
trade name, service xxxx, copyright, patent or other notice markings that are
required by Elephant & Castle or by applicable law.
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4.3 COMPLIANCE WITH STANDARDS
The Licensee will use the Marks and the Restaurant System in strict compliance
with the moral and ethical standards, quality standards, health standards,
operating procedures, specifications, requirements and instructions required by
Elephant & Castle, which may be amended and supplemented by Elephant & Castle
from time to time.
4.4 LICENSEE'S NAME
The Licensee will hold itself out to the public as an independent contractor
operating its Elephant & Castle(R) Restaurant pursuant to a License from
Elephant & Castle. The Licensee will file for a certificate of assumed name in
the manner required by applicable state law to notify the public that the
Licensee is operating its Elephant & Castle(R) Restaurant as an independent
contractor pursuant to this Agreement.
4.5 STANDARDS OF SERVICE
The Licensee will at all times give prompt, courteous and efficient service to
its customers. The Licensee will, in all dealings with its customers, suppliers
and the public, adhere to the highest standards of honesty, integrity, fair
dealing and ethical conduct.
4.6 COMPLIANCE WITH APPLICABLE LAW
The Licensee will, at its expense, comply with all applicable federal, state,
city, local and municipal laws, statutes, ordinances, rules and regulations
pertaining to the construction or remodeling of the Licensed Location and the
operation of the Licensee's Elephant & Castle(R) Restaurant including, but not
limited to, all health, food service and liquor licensing laws, all health and
safety regulations, all environmental laws, all laws relating to employees,
including all wage and hour laws, employment laws, workers' compensation laws,
discrimination laws, sexual harassment laws, and disability discrimination laws.
The Licensee will, at its expense, be solely and exclusively responsible for
determining the licenses and permits required by law for the Licensee's Elephant
& Castle(R) Restaurant, for obtaining and qualifying for all such licenses and
permits, and for complying with all applicable laws.
4.7 CONFLICTS WITH THE LEASE
If the standards of operation set forth in this Agreement or in any operations
manual of Elephant & Castle conflict with any standards of operation contained
in the Lease between the landlord of the Licensed Location and the Licensee,
then the operational standards in the Lease will govern.
ARTICLE 5
PRODUCTS AND SERVICES
5.1 LIMITATIONS ON PRODUCTS AND SERVICES
The Licensee will sell only those foods, beverages, food products, clothing, and
services and other items approved by Elephant & Castle in writing and will offer
for sale all foods, beverages, food products, clothing, services and other items
prescribed by Elephant & Castle or approved by Elephant & Castle in writing.
Prior to the opening of the Restaurant, Elephant & Castle will provide the
Licensee with a written schedule of all foods, food products, beverages,
clothing, and other items for sale, and the FF&E necessary and required to
commence operation of the Licensee's Restaurant. The Licensee will maintain
sufficient inventories of foods, beverages, food products, clothing, and other
items to realize the full potential of the Restaurant. The Licensee will conform
to all customer service standards prescribed by Elephant & Castle in writing.
The Licensee will have the absolute right to sell all foods, beverages, food
products,
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clothing, services and other items at whatever prices and on whatever terms it
deems appropriate.
5.2 LIMITATION ON SALES
The Licensee will offer for sale and sell those foods, beverages, food products,
clothing, services and other items offered for sale in connection with the
Licensee's Elephant & Castle(R) Restaurant or which are sold under any of the
Marks only on a retail basis at the Licensed Location. The Licensee will not
offer for sale or sell on a wholesale or retail basis at any other location or
in any other premises, or by means of the Internet, catalogue or mail order
sales, telemarketing, or by any other method of sales or distribution, any of
the foods, beverages, food products, clothing, services or other items offered
for sale or sold in connection with the Licensee's Elephant & Castle(R)
Restaurant or which are sold under any of the Marks.
5.3 LIMITATION ON BRANDING, DEVELOPMENT AND SALE OF PRODUCTS
Nothing in this Agreement gives the Licensee the right to, and the Licensee will
not: (a) use or display the Marks on or in connection with any product or
service other than those products and services prescribed or approved by
Elephant & Castle; (b) acquire, develop or manufacture any product using the
name "Elephant & Castle(R)" or any of the Marks, or direct any other person or
entity to do so; (c) acquire, develop or manufacture any product that has been
developed or manufactured by or for Elephant & Castle for use in conjunction
with the Restaurant System and which is sold under any of the Marks, or direct
any other person or entity to do so; and (d) use, have access to, or have any
rights to any proprietary formulas, ingredients, or recipes for any product
created by or at the direction of Elephant & Castle and sold under the name
"Elephant & Castle(R)" or any of the Marks.
ARTICLE 6
STANDARD OPERATIONS MANUAL
6.1 COMPLIANCE WITH MANUAL
In order to protect the reputation and goodwill of Elephant & Castle, and to
maintain the uniform operating standards under the Marks and the Restaurant
System, the Licensee will at all times conduct its business and operate its
Elephant & Castle(R) Restaurant in compliance with Elephant & Castle's
confidential and copyrighted Standard Operations Manual (sometimes referred to
in this Agreement as the "Manual") which is incorporated herein and made part of
this Agreement. The Licensee will conform to the common image and identity
created by the foods, beverages, products, music, food portions, recipes,
ingredients, cooking techniques and processes, cleanliness, sanitation and
services associated with the Elephant & Castle(R) Restaurant which are portrayed
and described by the Manual. The Licensee acknowledges having received on loan
from Elephant & Castle one copy of the Manual for the term of this Agreement.
6.2 REVISIONS TO MANUAL
Elephant & Castle reserves the right to and may from time to time revise the
Standard Operations Manual. The Licensee will, as promptly as reasonably
possible, modify the operations of the Restaurant to implement all changes,
additions and supplements made by Elephant & Castle to the Restaurant System
which are reflected by the Manual. The Licensee will implement all operational
changes to the Restaurant System deemed necessary by Elephant & Castle to: (a)
improve the standards of service or the food, food items, beverages, and
products offered for sale under the Restaurant System; (b) protect the goodwill
associated with the Marks; (c) improve the operation of the Licensee's
Restaurant; or (d) protect the health
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and safety of the Licensee's employees, customers or guests. The Licensee will
at all times keep its copy of the Manual current and up-to-date, and in the
event of any dispute regarding the Manual, the terms of the master copy of the
Manual maintained by Elephant & Castle will be controlling in all respects.
6.3 CONFIDENTIALITY OF MANUAL
The Standard Operations Manual, and all revisions thereto, will at all times
during the term of this Agreement and thereafter remain the sole and exclusive
property of Elephant & Castle, which will own all copyright and other interests
related to the Manual. The Licensee will at all times during the term of this
Agreement and thereafter treat the Manual and any other manuals created for or
approved for use in the operation of the Licensee's Elephant & Castle(R)
Restaurant as secret and confidential, and the Licensee will use all reasonable
means to keep such information secret and confidential. Neither the Licensee nor
any employees of the Licensee will make any copy, duplication, record or
reproduction of the Manual, or any portion thereof, available to any
unauthorized person. The Licensee will not use the Manual or any information
contained therein in connection with the operation of any other business or for
any purpose other than in conjunction with the operation of the Licensee's
Elephant & Castle(R) Restaurant.
6.4 CONFIDENTIALITY OF OTHER INFORMATION
Elephant & Castle and the Licensee expressly understand and agree that Elephant
& Castle will be disclosing and providing to the Licensee certain confidential
and proprietary information concerning the Restaurant System and the procedures,
operations, technology and data used in connection with the Restaurant System.
The Licensee will not, during the term of this Agreement or thereafter,
communicate, divulge or use for the benefit of any other person or entity any
such confidential and proprietary information, knowledge or know-how concerning
the methods of operation of the Elephant & Castle(R) Restaurant which may be
communicated to the Licensee, or of which the Licensee may be apprised by virtue
of this Agreement. The Licensee will divulge such confidential and proprietary
information only to its employees who must have access to it in order to operate
the Licensee's Elephant & Castle(R) Restaurant. Any and all information,
knowledge and know-how including, without limitation, drawings, client lists,
materials, equipment, technology, methods, procedures, techniques, recipes,
specifications, computer programs, systems and other data which Elephant &
Castle copyrights or designates as confidential or proprietary will be deemed
confidential and proprietary for the purposes of this Agreement.
ARTICLE 7
BUSINESS PREMISES
7.1 COMPLIANCE WITH SPECIFICATIONS
The Licensed Location and the Licensee's Restaurant will conform to all
specifications for the FF&E, decorating designs and color schemes established by
Elephant & Castle. The FF&E used in the Licensee's Elephant & Castle(R)
Restaurant must be installed and located in accordance with the floor plans
approved by Elephant & Castle, and must conform to the quality standards and
uniformity requirements established by Elephant & Castle.
7.2 MAINTENANCE
The Licensee will, at its expense, repair, paint and keep in a clean and
sanitary condition the interior, exterior, parking lot, signage, exterior
lighting, and grounds of the Licensed Location and the Licensee's Restaurant,
and will replace all floor covering, wall coverings, light fixtures,
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curtains, blinds, shades, furniture, room furnishings, wall hangings, signs,
fixtures and other decor items as they become worn-out, soiled or in disrepair.
All mechanical equipment, including ventilation, heating and air conditioning,
must be kept in good working order by the Licensee at all times. All replacement
FF&E and other items used in the Restaurant by the Licensee must comply with the
then-current standards and specifications of Elephant & Castle.
ARTICLE 8
SIGNS
8.1 APPROVED SIGNS
The signs used at the Licensed Location (the "Signs") must comply with the sign
plans and specifications established by Elephant & Castle. Elephant & Castle
will provide the Licensee with a copy of the standard sign plans and
specifications and the Licensee will, at its expense, prepare or cause the
preparation of complete and detailed plans and specifications for the Signs and
will submit such plans and specifications to Elephant & Castle for its written
approval. Elephant & Castle will have the absolute right to inspect, examine,
videotape and photograph the Signs for any reason at any time during the term of
this Agreement.
8.2 MODIFICATIONS; INSPECTION
The Licensee may not alter, remove, change, modify, or redesign the Signs unless
approved by Elephant & Castle in writing. Elephant & Castle will have the
unequivocal and unilateral right to redesign the plans and specifications for
the Signs during the term of this Agreement without the approval or consent of
the Licensee. Within 30 days after receipt of written notice from Elephant &
Castle, the Licensee must, at its expense, either modify or replace the Signs so
that the Signs displayed at the Licensed Location will comply with the
redesigned plans and specifications as issued by Elephant & Castle.
ARTICLE 9
LICENSING OF MARKS AND RESTAURANT SYSTEM
9.1 RIGHT TO LICENSE MARKS
Elephant & Castle warrants that, except as otherwise provided for herein, it has
the right to license the Marks and the Restaurant System to the Licensee. Any
and all improvements made by the Licensee to the Marks or the Restaurant System
will be the sole and absolute property of Elephant & Castle, which will have the
exclusive right to register and protect all such improvements in its name in
accordance with applicable law. The Licensee's right to use and identify with
the Marks and the Restaurant System will exist concurrently with the term of
this Agreement and such use by the Licensee will inure exclusively to the
benefit of Elephant & Castle.
9.2 CONDITIONS TO LICENSE OF MARKS
Elephant & Castle hereby grants to the Licensee the nonexclusive personal right
to use the Marks and the Restaurant System in accordance with the provisions of
this Agreement. The Licensee's nonexclusive personal right to use "Elephant &
Castle(R)" as the name of the Licensee's Restaurant and its right to use the
Marks and the Restaurant System applies only to the Licensee's Restaurant at the
Licensed Location and such rights will exist only so long as the Licensee fully
performs and complies with all of the conditions, terms and covenants of this
Agreement. "Nonexclusive," for the purposes of this Article, will mean that
Elephant & Castle has or will grant licenses to other licensees authorizing such
licensees to operate Elephant & Castle(R) Restaurants in conformity with the
Restaurant System using the name "Elephant &
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Xxxxxx(X)" and the other Marks, and that Elephant & Castle, its affiliates
and/or subsidiaries have operated and will operate Elephant & Castle(R)
Restaurants.
9.3 LICENSEE'S USE OF MARKS
The Licensee will only use the Marks designated by Elephant & Castle and only in
the manner authorized and permitted by Elephant & Castle. The Licensee's right
to use the Marks is limited to the uses set forth in this Agreement and any
unauthorized use will constitute an infringement of the rights of Elephant &
Castle under this Agreement and under the Xxxxxx Act (15 U.S.C. Section 1051, ET
SEQ.). The Licensee will not have or acquire any rights in any of the Marks or
the Restaurant System other than the right of use as provided herein. The
Licensee will have the right to use the Marks and the Restaurant System only in
the manner prescribed, directed and approved by Elephant & Castle in writing and
will not have the right to use the Marks in connection with the sale of any
products or services other than those prescribed or approved by Elephant &
Castle for sale by the Licensee. If, in the judgment of Elephant & Castle, the
acts of the Licensee are contrary to the limitations set forth in this Agreement
or infringe upon or demean the goodwill, uniformity, quality or business
standing associated with the Marks or the Restaurant System, then the Licensee
will, upon written notice from Elephant & Castle, immediately modify its use of
the Marks or the Restaurant System in the manner prescribed by Elephant & Castle
in writing.
9.4 ADVERSE CLAIMS TO MARKS
If there are any claims by any third party that its rights to any or all of the
Marks are superior to those of Elephant & Castle, and if the attorneys for
Elephant & Castle are of the opinion that such claim by a third party is legally
meritorious, or if there is an adjudication by a court of competent jurisdiction
that any party's rights to the Marks are superior to those of Elephant & Castle,
then upon receiving written notice from Elephant & Castle, the Licensee will, at
its sole expense, immediately adopt and use the changes and amendments to the
Marks that are specified by Elephant & Castle. If so specified, the Licensee
will immediately cease using the Marks specified by Elephant & Castle, and will,
as soon as reasonably possible, commence using the new trademarks, trade names,
service marks, logos, designs and commercial symbols designated by Elephant &
Castle in writing at the Licensed Location, and in connection with all
advertising, marketing and promotion of the Licensee's Restaurant. The Licensee
will not make any changes or amendments whatsoever to the Marks or the
Restaurant System unless specified or approved in advance by Elephant & Castle
in writing.
9.5 DEFENSE OR ENFORCEMENT OF RIGHTS TO MARKS
The Licensee will have no right to and will not defend or enforce any rights
associated with the Marks or the Restaurant System in any court or other
proceedings for or against imitation, infringement, prior use or for any other
claim or allegation. The Licensee will give Elephant & Castle immediate written
notice of any and all claims or complaints made against or associated with the
Marks and the Restaurant System and will, without compensation for its time and
at its expense, cooperate in all respects with Elephant & Castle in any lawsuits
or other proceedings involving the Marks and the Restaurant System. Elephant &
Castle will have the sole and absolute right to determine whether it will
commence or defend any litigation involving the Marks and/or the Restaurant
System, and the cost and expense of all litigation incurred by Elephant &
Castle, including attorneys' fees, specifically relating to the Marks or the
Restaurant System will be paid by Elephant & Castle.
9.6 TENDER OF DEFENSE
If the Licensee is named as a defendant or party in any action involving the
Marks or the Restaurant System and if the Licensee is named as a defendant or
party solely because the
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plaintiff or claimant is alleging that the Licensee does not have the right to
use the Marks or the Restaurant System licensed by Elephant & Castle to the
Licensee at the Licensed Location pursuant to this Agreement, then the Licensee
will have the right to tender the defense of the action to Elephant & Castle and
Elephant & Castle will, at its expense, defend the Licensee in the action
provided that the Licensee has tendered defense of the action to Elephant &
Castle within seven days after receiving service of the pleadings or the Summons
and Complaint relating to the action. Elephant & Castle will indemnify and hold
the Licensee harmless from any damages assessed against the Licensee in any
actions resulting solely from the Licensee's proper and authorized use of the
Marks and the Restaurant System at the Licensed Location if the Licensee has
timely tendered defense of the action to Elephant & Castle.
9.7 LICENSEE'S RIGHT TO PARTICIPATE IN LITIGATION
The Licensee may, at its expense, retain an attorney to represent it
individually in all litigation and court proceedings involving the Marks or the
Restaurant System, and may do so with respect to matters involving only the
Licensee (i.e., not involving Elephant & Castle or its interests); however,
Elephant & Castle and its attorneys will control and conduct all litigation
involving the Marks or the Restaurant System and the rights of Elephant &
Castle. Except as expressly provided for herein, Elephant & Castle will have no
liability to the Licensee for any costs that the Licensee may incur in any
litigation involving the Marks or the Restaurant System, and the Licensee will
pay for all costs, including attorneys' fees, that it may incur in any
litigation or proceeding arising as a result of matters referred to under this
Article, unless it tenders the defense to Elephant & Castle in a timely manner
pursuant to and in accordance with Article 9.6.
ARTICLE 10
TRANSFER
10.1 TRANSFER BY ELEPHANT & CASTLE
This Agreement may be unilaterally Transferred by Elephant & Castle to any
person or entity without prior notice to the Licensee and without the approval
of the Licensee. The rights under this License Agreement will inure to the
benefit of the successors and assigns of Elephant & Castle. Elephant & Castle
will provide the Licensee with written notice of any Transfer of this License
Agreement within 60 days after the Transfer is complete, and the assignee will
be required to fully perform all obligations of Elephant & Castle under this
Agreement.
10.2 TRANSFER BY LICENSEE
This Agreement and the rights granted to the Licensee pursuant to this Agreement
may be Transferred by the Licensee only with the prior written approval of
Elephant & Castle. Elephant & Castle will not unreasonably withhold its written
consent to any Transfer of this Agreement.
ARTICLE 11
TERMINATION
11.1 TERMINATION BY ELEPHANT & CASTLE
Elephant & Castle will have the right to terminate this Agreement if: (a) the
Licensee violates any material provision term or condition of this Agreement;
and the Licensee fails to correct the breach within 30 days after receipt of
written notice from Elephant & Castle of the breach; (b) the Lease Agreement
between the Licensee and Battery & Clay Associates, LLC for the Licensed
Location expires or is terminated; (c) the Licensee is determined to be
insolvent within the meaning of applicable state or federal law, any involuntary
petition for bankruptcy is filed
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against the Licensee, or the Licensee files for bankruptcy or is adjudicated a
bankrupt under applicable state or federal law; (d) the Licensee makes an
assignment for the benefit of creditors or enters into any similar arrangement
for the disposition of its assets for the benefit of creditors; and (e) the
Licensee is involved in any act or conduct which materially impairs the goodwill
associated with the Marks or the Restaurant System, in which event the 30 day
cure period will not apply and the Licensee will have three days after receipt
of written notice from Elephant & Castle to correct the breach.
11.2 NOTICE OF TERMINATION BY ELEPHANT & CASTLE
If this Agreement is terminated by Elephant & Castle pursuant to Article 11.1
above, then Elephant & Castle will give the Licensee written notice that this
Agreement is terminated and in that event, the effective date of termination of
this Agreement will be the day the written notice of termination is received by
the Licensee.
11.3 OTHER REMEDIES
Nothing in this Article will preclude Elephant & Castle from seeking other
remedies or damages under state or federal laws, common law, or under this
Agreement against the Licensee including, but not limited to, attorneys' fees,
and injunctive relief.
11.4 TERMINATION BY LICENSEE
The Licensee will have the right to terminate this Agreement if Elephant &
Castle violates any material provision, term or condition of this Agreement and
Elephant & Castle fails to correct the breach within 30 days after receipt of
written notice from the Licensee specifying the breach. The Licensee will also
have the right to terminate this Agreement if the Lease or Management Agreement
with E & C San Francisco LLC (which is incorporated herein by reference) is
terminated for any reason.
11.5 NOTICE OF TERMINATION BY LICENSEE
If this Agreement is terminated by the Licensee pursuant to Article 11.4 above,
then the Licensee will give Elephant & Castle written notice that this Agreement
is terminated and in that event, the effective date of termination of this
Agreement will be the day the written notice of termination is received by
Elephant & Castle.
ARTICLE 12
LICENSEE'S OBLIGATIONS UPON TERMINATION
12.1 TERMINATION OF USE OF MARKS; OTHER OBLIGATIONS
If this Agreement is canceled or terminated for any reason or this Agreement
expires, then (a) the Licensee will immediately return to Elephant & Castle by
first class prepaid United States mail the Manual, menus, advertising materials
and all other printed materials pertaining to the Restaurant; (b) the Licensee's
right to use "Elephant & Castle(R)," the other Marks and the Restaurant System
will terminate immediately in all respects; (c) the Licensee will not thereafter
conduct or promote any business under any name or in any manner that might tend
to give the general public the impression that the Licensee is continuing to
operate as a licensee of Elephant & Castle; and (d) the Licensee will
immediately cease any and all advertising which includes any of the Marks, and
cease using any and all items or materials which bear or include any of the
Marks.
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12.2 ALTERATION OF LICENSED LOCATION
If this Agreement expires or is terminated for any reason or if the Licensed
Location ever ceases to be used for the Licensee's Elephant & Castle(R)
Restaurant, then within 30 days after the date of the expiration or termination
of this Agreement, the Licensee will, at its expense, alter, modify and change
both the exterior and interior appearance of the building and the Licensed
Location so that it will be clearly distinguished from the standard appearance
of an Elephant & Castle(R) Restaurant. At a minimum, such changes and
modifications to the Licensed Location will include: (a) repainting and, where
applicable, recovering both the exterior and interior walls of the Licensed
Location with totally different colors, including removing any distinctive
colors, designs and paneling from the walls; (b) removing all furniture,
fixtures and decor items associated with an Elephant & Castle(R) Restaurant and
replacing them with other decor items not of the general type and appearance
customarily used in Elephant & Castle(R) Restaurants; (c) removing all exterior
and interior Elephant & Castle(R) signs; (d) immediately discontinuing use of
the approved wall decor items and window decals, and refraining from using any
items which may be confusingly similar to those used in an Elephant & Castle(R)
Restaurant; and (e) removing and returning the FF&E used in the Restaurant
constituting the English Package to Elephant & Castle.
ARTICLE 13
ENFORCEMENT
13.1 INJUNCTIVE RELIEF
Elephant & Castle will have the right to petition a court of competent
jurisdiction for the entry of temporary and permanent injunctions and orders of
specific performance enforcing the provisions of this Agreement for any action
relating to: (a) the Licensee's improper use of the Marks or the Restaurant
System; (b) the obligations of the Licensee upon termination or expiration of
this Agreement; (c) the Transfer of this Agreement or the Restaurant; (d) the
Licensee's violation of the provisions of this Agreement relating to the Manual
and other confidential information; and (e) any act or omission by the Licensee
or the Licensee's employees that (1) constitutes a violation of any applicable
law, ordinance or regulation, (2) is dishonest or misleading to the guests or
customers of the Licensee's Restaurant or other Elephant & Castle(R)
Restaurants, (3) constitutes a danger to the employees, public, guests, or
customers of the Licensee's Restaurant, or (4) may impair the goodwill
associated with the Marks or the Restaurant System.
13.2 SEVERABILITY
All provisions of this Agreement are severable and this Agreement will be
interpreted and enforced as if all completely invalid or unenforceable
provisions were not contained herein and partially valid and enforceable
provisions will be enforced to the extent valid and enforceable. If any
applicable law or rule of any jurisdiction requires a greater prior notice of
the termination of this Agreement than is required hereunder or the taking of
some other action not required hereunder, or if under any applicable law or rule
of any jurisdiction, any provision of this Agreement or any specification,
standard or operating procedure prescribed by Elephant & Castle is invalid or
unenforceable under applicable law, then the prior notice or other action
required by such law or rule will be substituted for the notice requirements
hereof, or such invalid or unenforceable provision, specification, standard or
operating procedure will be modified to the extent required to be valid and
enforceable. Such modifications to this Agreement will be effective only in such
jurisdiction.
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13.3 WAIVER
Elephant & Castle and the Licensee may, by written instrument signed by Elephant
& Castle and the Licensee, waive any obligation of or restriction upon the other
under this Agreement. The failure, refusal or neglect of Elephant & Castle to
exercise any right under this Agreement or to insist upon full compliance by the
Licensee of its obligations hereunder including, without limitation, any
mandatory specification, standard or operating procedure, will not constitute a
waiver by Elephant & Castle of any provision of this Agreement.
13.4 CUMULATIVE RIGHTS
The rights of Elephant & Castle hereunder are cumulative and no exercise or
enforcement by Elephant & Castle of any right or remedy hereunder will preclude
the exercise or enforcement by Elephant & Castle of any other right or remedy
hereunder or which Elephant & Castle is entitled by law to enforce.
13.5 BINDING AGREEMENT
This Agreement is binding upon the parties hereto and their respective
executors, administrators, heirs, assigns and successors in interest.
13.6 JOINT AND SEVERAL LIABILITY
If the Licensee consists of more than one person, their liability under this
Agreement will be deemed to be joint and several.
13.7 NO ORAL MODIFICATION
No modification, change, addition, rescission, release, amendment or waiver of
this Agreement and no approval, consent or authorization required by any
provision of this Agreement may be made by any person except by a written
agreement signed by a duly authorized officer or partner of the Licensee and
Elephant & Castle.
13.8 ENTIRE AGREEMENT
This Agreement supersedes and terminates all prior agreements, either oral or in
writing, between the parties involving the licensing of the Marks to the
Licensee and therefore, representations, inducements, promises or agreements
alleged by either Elephant & Castle or the Licensee that are not contained in
this Agreement will not be enforceable. The Recitals are part of this Agreement,
which constitutes the entire agreement of the parties, and there are no other
oral or written understandings or agreements between Elephant & Castle and the
Licensee relating to the subject matter of this Agreement. This Agreement will
not supersede any written agreements or contracts that are signed concurrently
with this Agreement.
13.9 STANDARDS
All changes made by Elephant & Castle with respect to its standards, or
otherwise, will be reasonable in all respects.
ARTICLE 14
NOTICES
All notices to under this Agreement will be in writing and will delivered by (a)
personal service upon an officer, director, chief manager, manager or member of
the board of governors or managers, (b) prepaid U.S. certified mail, or (c) a
recognized overnight carrier such as Federal Express or UPS that requires a
written acknowledgement of delivery to the addressee. All notices to Elephant &
Castle will be addressed to the President of Elephant & Castle
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International, Inc., 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0, or such other address as Elephant & Castle may
subsequently designate in writing, with a copy to G. Xxxxxx XxxXxxxxx, XX,
Attorney at Law, Xxxxxxx, Xxxxxxx & Xxxxx, XXX, 0000 AT&T Tower, 000 Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000. All notices to the Licensee will be
addressed to Xx. Xxx X. Xxxxxxxx, Vice President, Battery & Clay Associates, LLC
c/o Masterworks Development Corporation, 56 West 45th Street, 4th Floor, New
York, New York, 10036, or at such other address as the Owner may designate in
writing, with a copy to Xxxxxx X. Xxxxxx, Esq., Xxxx & Xxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
ARTICLE 15
GOVERNING LAW
15.1 GOVERNING LAW
Except to the extent governed by the United States Trademark Act of 1946 (Xxxxxx
Act, 15 U.S.C. Section 1051, et seq.), this Agreement will be governed by the
laws of the State of California. The provisions of this Agreement which conflict
with or are inconsistent with applicable governing law will be superseded and/or
modified by such applicable law only to the extent such provisions are
inconsistent. All other provisions of this Agreement will be enforceable as
originally made and entered into upon the execution of this Agreement by the
Licensee and Elephant & Castle.
15.2 SEVERABILITY
The severability provisions of this Agreement will pertain to all of the
applicable laws which conflict with or modify the provisions of this Agreement
including.
IN WITNESS WHEREOF, Elephant & Castle and the Licensee have respectively signed
this Agreement effective as of the day and year set forth on Page 1 of this
Agreement.
In the Presence of: ELEPHANT & CASTLE INTERNATIONAL, INC.
By
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Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
In the Presence of: BC RESTAURANTS, LLC, BY BATTERY & CLAY
ASSOCIATES, LLC, ITS CHIEF MANAGER
By:
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Xxx X. Xxxxxxxx, Vice President
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