STANDARD FORM
XXXXXXXX'X NEIGHBORHOOD GRILL & BAR
FRANCHISE AGREEMENT
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(Location Address)
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(Franchisee Name)
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(Date)
TABLE OF CONTENTS
RECITALS .................................................... 1
1. FRANCHISE GRANT AND TERM............................ 2
2. UNIFORM STANDARDS................................... 3
3. COMPLIANCE WITH THE SYSTEM.......................... 4
4. GENERAL SERVICES OF FRANCHISOR...................... 4
5. RESTAURANT SYSTEM AND PROCEDURES.................... 5
6. TRAINING............................................ 8
7. RESTAURANT MAINTENANCE.............................. 9
8. ADVERTISING......................................... 9
9. FEES................................................ 12
10. RECORD KEEPING...................................... 13
11. FRANCHISEE ORGANIZATION, AUTHORITY,
FINANCIAL CONDITION AND SHAREHOLDERS................ 14
12. TRANSFER............................................ 15
13. CONFIDENTIALITY; RESTRICTIONS....................... 19
14. INSPECTIONS......................................... 21
15. RELATIONSHIP OF PARTIES AND INDEMNIFICATION......... 22
16. INSURANCE........................................... 24
17. DEBTS AND TAXES..................................... 26
18. TRADE NAMES, SERVICE MARKS AND TRADEMARKS........... 26
19. EXPIRATION AND TERMINATION; OPTION TO
PURCHASE RESTAURANT; ATTORNEYS' FEES................ 28
20. NO WAIVER OF DEFAULT................................ 33
21. CONSTRUCTION, SEVERABILITY,
GOVERNING LAW AND JURISDICTION...................... 33
22. INTERFERENCE WITH EMPLOYMENT RELATIONS.............. 34
23. LIQUOR LICENSE...................................... 35
24. FORCE MAJEURE....................................... 35
25. MISCELLANEOUS....................................... 36
26. ACKNOWLEDGMENTS..................................... 38
EXHIBIT 1: ROYALTY FEE
APPENDIX A: STATEMENT OF OWNERSHIP INTERESTS
APPENDIX B: REVIEW AND CONSENT WITH RESPECT TO TRANSFERS
APPENDIX C: CONFIDENTIALITY AGREEMENT
XXXXXXXX'X NEIGHBORHOOD GRILL & BAR
FRANCHISE AGREEMENT
This Agreement is made this ________ day of _____________________, 19______, by
and between XXXXXXXX'X INTERNATIONAL, INC., a Delaware corporation
("FRANCHISOR"), _____________________________________________, a
(_______________ corporation, sole proprietorship, _______________ partnership,
_______________ limited partnership [strike inappropriate language])
("FRANCHISEE") and ______________________________________
______________________________ (collectively, the "PRINCIPAL SHAREHOLDERS" and,
individually, a "PRINCIPAL SHAREHOLDER" of Franchisee if a corporation or
general partner if Franchisee is a limited partnership having as its general
partner a corporation) and
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("GENERAL PARTNER" of Franchisee if Franchisee is a limited partnership).*
* (If Franchisee is not a corporation or a sole proprietorship, or if
Franchisee is a limited liability company, the parties hereto hereby agree that
an Addendum shall be attached to this Agreement so as properly to reflect the
responsibilities of the partners of any general partnership, the general partner
of any limited partnership and the shareholders of any corporate general partner
of any partnership, or the members of any limited liability company.)
WITNESSETH:
RECITALS
A. Franchisor owns the rights to develop and operate a unique system
of restaurants which specialize in the sale of high quality, moderately priced
food and alcoholic beverages in an attractive, casual setting, which includes
proprietary rights in certain valuable trade names, service marks and
trademarks, including the service xxxx Xxxxxxxx'x Neighborhood Grill & Bar and
variations of such xxxx, designs, decor and color schemes for restaurant
premises, signs, equipment, procedures and formulae for preparing food and
beverage products, specifications for certain food and beverage products,
inventory methods, operating methods, financial control concepts, training
facilities and teaching techniques ("the System").
B. Franchisor established, through its own development and operation,
and through the granting of franchises, a chain of Xxxxxxxx'x Neighborhood Grill
& Bar restaurants which are distinctive; which are similar in appearance, design
and decor; and which are uniform in operation and product consistency.
C. The value of Franchisor's trade names, service marks and
trademarks is based upon: (1) the maintenance of uniform high quality standards
in connection with the preparation and sale of Franchisor-approved food and
beverage products, (2) the uniform high standards of appearance of the
individual restaurant units in the System, (3) the use of distinctive
trademarks, service marks, building designs and advertising signs representing a
uniformly high quality of product and services, and (4) the assumption by
Franchisor and its franchisees of the obligation to maintain and enhance the
goodwill and public acceptance of the System (and of Franchisor's trade names,
service marks and trademarks) by strict adherence to the high standards required
by Franchisor.
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D. Franchisor, Franchisee and the Principal Shareholders have entered
into a Development Agreement dated __________________, 19______ ("Development
Agreement"), relating to the development by Franchisee of Xxxxxxxx'x
Neighborhood Grill & Bar restaurants.
E. Franchisee desires to use the System in connection with the
operation of an Xxxxxxxx'x Neighborhood Grill & Bar restaurant at the location
which is specified in Subsection 1.1 of this Agreement, pursuant to the terms,
conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual obligations contained herein, it
is hereby agreed as follows:
1. FRANCHISE GRANT AND TERM
1.1 Franchisor grants Franchisee, for the term stated below, the
right, license and privilege:
(a) to use the System incident to the operation of an Xxxxxxxx'x
Neighborhood Grill & Bar restaurant at
_____________________________________________________ (the "Restaurant");
(b) to use the trade names, service marks and trademarks which
Franchisor shall from time to time designate as part of the System, but
only in connection with the sale at the Restaurant of those products
which Franchisor has designated and approved; and
(c) to hold itself out to the public as a Franchisee of Franchisor.
1.2 The term of the franchise shall commence as of the Commencement
Date, as hereinafter defined, and shall end twenty (20) years thereafter, unless
this Agreement is terminated prior to that date in accordance with its
provisions. "Commencement Date," as used herein, shall mean the date upon which
the Restaurant opens for business. The parties agree to affix to this Agreement
an addendum expressly setting forth the Commencement Date, which, when so
affixed, shall become a part of this Agreement.
1.3 At the expiration of the term hereof, Franchisee shall have an
option to operate the Restaurant for four (4) successive terms of five (5) years
(unless the franchise agreement with respect to that additional term is sooner
terminated in accordance with its provisions), provided that immediately prior
to each such five (5) year term (a) Franchisee satisfies the requirements which
Franchisor then-imposes on its new franchisees, (b) all other restaurant units
within the System which Franchisee then-operates substantially comply, in the
opinion of Franchisor, with Franchisor's then-current standards, specifications,
requirements and instructions, and (c) Franchisee executes the form of franchise
agreement which Franchisor is then using with respect to new restaurants within
the System, with the amount of royalty and advertising fees payable at the rates
then-prevailing under the franchise agreements which Franchisor is then using
for new restaurants within the System, and Franchisee pays to Franchisor for
each of said five (5) year periods a franchise fee equal to ten percent (10%) of
the prevailing franchise fee paid by new franchisees at that time. Any franchise
agreement which Franchisee executes for such additional term will also contain
options to obtain an assignment of Franchisee's lease with a third party and/or
to purchase certain property or to purchase or lease the Restaurant premises
exercisable by Franchisor upon termination thereof and an option to purchase or
lease the Restaurant premises exercisable by Franchisor upon expiration of the
renewal term (subject to any then-existing renewal rights of Franchisee). Such
options will contain provisions substantially similar to the provisions of
Franchisor's options described in Subsection 19.4 hereof. Franchisee shall give
Franchisor written notice of its desire to exercise its option to operate the
Restaurant for an additional term no earlier than twelve (12) months, and no
later than seven (7) months, prior to expiration of the initial term. If
Franchisee gives that notice, Franchisor, in its sole discretion, reasonably
exercised, shall determine whether Franchisee has satisfied the foregoing
requirements. Within forty-five (45) days of receiving the notice described
above, Franchisor shall notify Franchisee in writing whether or not Franchisee
is eligible to exercise the option described in this Subsection.
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1.4 During the period from the date of this Agreement to the
expiration or earlier termination of this Agreement, Franchisor shall not
establish a restaurant unit utilizing the System, or license another franchisee
to establish a restaurant unit utilizing the System, at any location within the
lesser of a three (3) mile radius of the Restaurant or a radius from the
Restaurant which includes either a daytime or residential population of forty
thousand (40,000) or more people. Notwithstanding the foregoing, Franchisor may
establish a restaurant unit or may license a restaurant unit to a third party
within the geographic area set forth in the preceding sentence, provided that
such restaurant unit does not utilize the System or utilize the Xxxxxxxx'x
Neighborhood Grill & Bar service xxxx.
1.5 Franchisee, in consideration of the benefits and privileges
provided to it by this Agreement, agrees to operate the Restaurant and perform
as required hereunder for the full term of this Agreement.
1.6 This Agreement is entered into pursuant to and subject to the
terms and conditions which are set forth in the Development Agreement.
2. UNIFORM STANDARDS
2.1 The System is a comprehensive restaurant system for the retailing
of certain uniform and quality food and beverage products (including alcoholic
beverages), emphasizing a varied menu of high quality, moderately priced food
products (including appetizers, creative sandwiches, dinner entrees and
desserts), a selection of alcoholic and other beverages, and prompt and
courteous service in a clean, wholesome, casual atmosphere. The foundation of
the System is the establishment and maintenance of a reputation among the public
for the operation of high quality restaurant units. A fundamental requirement of
the System, this Franchise Agreement and franchises which Franchisor will grant
to others is adherence by all franchisees to Franchisor's standards and policies
providing for the uniform operation of all restaurant units within the System,
including, but not limited to, (a) selling only those products which Franchisor
has designated and approved, (b) using only Franchisor's prescribed building
layout and designs, equipment, signs, interior and exterior decor items,
fixtures and furnishings, (c) adhering strictly to Franchisor's standards and
specifications relating to the selection, purchase, storage, preparation,
packaging, service and sale of all food and beverage products being sold at the
Restaurant, and (d) satisfying all of Franchisor's prescribed standards of
quality, service and cleanliness. Compliance by all franchisees with the
foregoing standards and policies in conjunction with the use of Franchisor's
trade names, service marks and trademarks provides the basis for the wide public
acceptance of the System and its valuable goodwill. Accordingly, strict
adherence by all franchisees to all aspects of the System is required at all
times.
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2.2 The provisions of the Agreement shall be interpreted to give
effect to the intent of the parties stated in this Section 2 to assure that
Franchisee shall operate the Restaurant in conformity with the System, through
strict adherence to Franchisor's standards and policies as they now exist and as
they may be modified from time to time.
3. COMPLIANCE WITH THE SYSTEM
Franchisee acknowledges that every component of the System is
important to Franchisor, to all franchisees and to the operation of the
Restaurant, including the requirements (a) that only those products designated
and approved by the Franchisor are sold at the Restaurant, and (b) that there is
uniformity of food and beverage specifications, preparation methods, quality,
appearance, building and interior design, color and decor, landscaping,
facilities and service among all restaurant units in the System. Accordingly,
Franchisee agrees to and shall comply with all aspects of the System (as it now
exists and as it may be modified from time to time). Franchisee recognizes and
agrees that Franchisor may prohibit the use of the System and its trade names,
notwithstanding the granting of this Agreement, if Franchisee fails to design,
construct, equip or furnish its Restaurant in compliance with the specifications
designated by Franchisor, unless prior written approval has been received from
Franchisor.
4. GENERAL SERVICES OF FRANCHISOR
4.1 Franchisor shall advise and consult with Franchisee periodically
in connection with the operation of the Restaurant, and at other reasonable
times upon Franchisee's request. Franchisor will provide to Franchisee such of
its know-how, new developments, techniques and improvements in areas of
restaurant design, management, food and beverage preparation, sales promotion
and service concepts as may be pertinent to the construction and operation of
the Restaurant under the System. Franchisor may provide the foregoing
information (a) by sending representatives to visit the Restaurant, (b) by
providing written or other material, (c) at meetings or seminars, and (d) at
training sessions at Franchisor's training facility and/or such other locations
as may be selected by Franchisor from time to time. Franchisor also shall make
available to Franchisee all additional services, facilities, rights and
privileges which Franchisor makes available from time to time to its franchisees
of the System generally.
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4.2 For approximately eight (8) days prior to the opening of the
Restaurant and the first six (6) days that the Restaurant is open for business,
Franchisor shall provide Franchisee, at Franchisor's expense, with the services
of up to a maximum of six (6) of Franchisor's training personnel to facilitate
proper operation of the kitchen, bar and dining room areas during that period
and to assist in correcting any operational problems which may arise.
4.3 From time to time during the term of this Agreement, Franchisor
will develop and test new menu items. The menu consists of approved national
food and beverage selections. Franchisee shall comply with all menu changes
which generally occur every six (6) months. The menu may be modified to reflect
food and beverage items peculiar to Franchisee's local area, subject to
Franchisor's testing and approval.
5. RESTAURANT SYSTEM AND PROCEDURES
5.1 Franchisor shall furnish Franchisee with advice and assistance in
managing and operating the Restaurant, and Franchisor's representatives will
visit the Restaurant periodically. Franchisor will assist Franchisee in
coordinating the Restaurant's pre-opening activities, and as noted more
particularly in Subsection 4.2 hereof, shall provide Franchisee with the
services of certain of Franchisor's personnel to facilitate proper operation of
the Restaurant when it opens for business.
5.2 Franchisee shall designate an employee who will supervise the
Restaurant, and devote his or her full time, best efforts and constant personal
attention to the day-to-day operation of the Restaurant (the "General Manager").
Franchisee also shall designate an employee who will supervise the Restaurant
kitchen, and devote his or her full time, best efforts and constant personal
attention to the day-to-day operation of the Restaurant kitchen (the "Kitchen
Manager").
5.3 Franchisee shall require that the General Manager, the Kitchen
Manager and each of Franchisee's employees who serve as Restaurant managers to
maintain his or her principal personal residence within a usual driving time of
not more than approximately one (1) hour from the Restaurant. Franchisor
reserves the right to require that, as a condition of his or her employment, the
General Manager must successfully complete Franchisor's interview process and a
psychological profile test in a manner which satisfies a uniform standard
established by Franchisor. The test shall be administered by Franchisor, or by a
testing agency designated by Franchisor, at Franchisee's expense.
5.4 Unless Franchisor shall have given its prior written approval,
Franchisee shall keep the Restaurant open for business only during the hours
which are specified by Franchisor in the Franchise Operations Manual or in such
other materials or manuals provided or made available by Franchisor to
Franchisee (collectively the "Manuals"), provided that such hours do not
conflict with state laws or local ordinances relating to the sale of alcoholic
beverages or governing the hours during which restaurant establishments may be
open for business.
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In addition, Franchisee expressly agrees to:
(a) operate the Restaurant in a clean, safe and orderly manner,
providing courteous, first-class service to the public;
(b) diligently promote and make every reasonable effort to increase
the business of the Restaurant;
(c) advertise the business of the Restaurant by the use of the
Franchisor's trade names, service marks and trademarks and such other
insignia, slogans, emblems, symbols, designs and other identifying
characteristics as may be developed or established from time to time by
Franchisor and included in the Manuals, subject to the limitations of
Subsections 8.4 and 8.5 hereof;
(d) prohibit and, to the best of Franchisee's ability, prevent the
use of the Restaurant for any immoral or illegal purpose, or for any
other purpose, business activity, use of function which is not expressly
authorized hereunder or in the Manuals; and
(e) comply fully with all applicable laws and regulations,
including, but not limited to, those relating to building construction,
maintenance and safety, environmental, fire prevention, food safety,
public access and the sale of alcoholic beverages.
5.5 Franchisee hereby acknowledges receipt and loan of a copy of the
Manuals heretofore or hereinafter furnished to Franchisee, and agrees to
faithfully, completely and continuously perform, fulfill, observe and follow all
instructions, requirements, standards, specifications, systems and procedures
contained therein, including (a) those relating to the construction, design,
decor, building and equipping of the Restaurant, (b) those relating to the
selection, purchase, storage, preparation, packaging, service and sale of all
products being sold at the Restaurant, (c) those relating to the maintenance and
repair of Restaurant building, grounds, equipment, signs, interior and exterior
decor items, fixtures and furnishings, and (d) those relating to employee
uniforms and dress, accounting, bookkeeping, record retention, and other
business systems, procedures and operations. The Manuals are incorporated herein
by reference and hereby made part of this Agreement. Franchisee acknowledges and
agrees that the materials contained in the Manuals are integral, necessary and
material elements of the System.
5.6 Franchisee understands, acknowledges and agrees that strict
conformity with the System, including the standards, specifications, systems,
procedures, requirements and instructions contained in this Agreement and in the
Manuals, is vitally important, not only to the success of Franchisor, but to the
collective success of all of Franchisor's other franchisees, by reason of the
benefits which Franchisor and all of its franchisees will derive from uniformity
in products sold, identity, quality, appearance, facilities and service among
all restaurant units which are part of the System. Without limiting the
generality of the foregoing provisions, Franchisee agrees to adhere strictly to
the requirements in the Manuals relating (a) to the construction, design, decor,
building and equipping of the Restaurant, (b) to the maximum permissible ratio
of sales of alcoholic beverages to sales of food at the Restaurant, and (c) to
the limitations on the number of video games or similar devices which may be
placed on the Restaurant premises. Any failure to adhere to the standards,
specifications, systems, requirements or instructions contained in this
Agreement or in the Manuals shall constitute a material breach of this
Agreement.
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5.7 Franchisor shall have the right, at any time and from time to
time, in the good faith exercise of its reasonable business judgment, consistent
with the overall best interests of the System generally, having due regard for
the financial burden which may be placed upon its franchisees, to revise, amend,
delete from and add to the System and the material contained in the Manuals.
Franchisee expressly agrees to comply with all such revisions, amendments,
deletions and additions.
5.8 Franchisee shall offer for sale from the Restaurant, at all times
when the Restaurant is open for business, only the products which are expressly
designated in the Manuals, except, as noted more particularly in Subsection 4.3,
to the extent that Franchisee has obtained Franchisor's prior written consent to
a modification of that requirement. No product shall be offered or sold at or
from the Restaurant under, or in connection with, any trademark or service xxxx
other than Franchisor's designated trademarks and service marks without
Franchisor's prior written consent.
5.9 Franchisee shall obtain all food and beverage products,
equipments, signs, interior and exterior decor items, fixtures, furnishings,
supplies, and other products and materials required for the operation of or sold
at the Restaurant solely from suppliers (including manufacturers, distributors
and other sources) who demonstrate, to Franchisor's continuing reasonable
satisfaction, the ability to meet Franchisor's then-current standards and
specifications for such items; who possess adequate quality controls and
capacity to supply Franchisee's needs promptly and reliably; and who have been
approved in writing by Franchisor and not thereafter disapproved. The Manuals
contain a list of approved suppliers. If Franchisee desires to purchase any
items from an unapproved supplier, Franchisee shall submit to Franchisor a
written request for such approval, which approval shall not be unreasonably
withheld, or shall request the supplier itself to do so. Franchisor shall have
the right to inspect the supplier's facilities, and to require that samples from
the supplier be delivered, at Franchisor's option, either to Franchisor or to an
independent, certified laboratory designated by Franchisor for testing.
Franchisee or the supplier shall pay the costs of any such test. Franchisor
shall notify Franchisee in writing within forty-five (45) days of receiving any
such request whether it disapproves the supplier. Failure by Franchisor to so
notify Franchisee within that period shall be deemed to constitute Franchisor's
approval of such supplier. Franchisor reserves the right, at its option, to
reinspect the facilities and retest products of any such approved supplier at
any time and to revoke its approval upon the supplier's failure to continue to
meet any of Franchisor's criteria. Notwithstanding the foregoing, any supplier
of goods having any trademark, trade name, service xxxx, logo or symbol owned by
Franchisor shall not be approved to supply Franchisee such goods until such
supplier has entered a written agreement with Franchisor regarding the
production, use and sale of such goods.
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5.10 No food or beverage product, interior or exterior decor item,
sign, item of equipment, fixtures, furnishings or supplies, or other product or
material required for the operation of the Restaurant, which bears any of
Franchisor's trade names, service marks or trademarks, shall be used or sold in
or upon the Restaurant premises unless the same shall have been first submitted
to and approved in writing by Franchisor.
5.11 The Manuals and all related material furnished to Franchisee
hereunder are and shall remain the property of Franchisor, and must be returned
to Franchisor, along with any copies made thereof, immediately upon request or
upon the expiration or earlier termination of this Agreement.
6. TRAINING
6.1 Franchisor shall make its operations training course available to
the General Manager, the Kitchen Manager, and Franchisee's Assistant Managers
and other Restaurant managers.
6.2 Before the Restaurant opens for business, and thereafter as
replacement personnel are employed by Franchisee, the General Manager, the
Kitchen Manager and each Assistant Manager shall attend Franchisor's operations
training facility for such period of time as Franchisor shall deem reasonably
necessary, and shall successfully complete that course to Franchisor's
reasonable satisfaction. If the General Manager, Kitchen Manager or an Assistant
Manager fails to successfully complete Franchisor's operations training course,
Franchisor may require designation of a new General Manager, Kitchen Manager or
Assistant Manager, as the case may be, and Franchisee shall designate a new
General Manager, Kitchen Manager or Assistant Manager, who shall be required to
successfully complete such training course.
6.3 The General Manager, the Kitchen Manager and each Assistant
Manager shall, from time to time as reasonably required by Franchisor, attend
and successfully complete to Franchisor's reasonable satisfaction a
Franchisor-provided refresher course in restaurant operations.
6.4 Franchisee shall be responsible for the Restaurant's compliance
with the operating standards, methods, techniques and material taught at
Franchisor's operations training course, and shall cause the employees of the
Restaurant to be trained in such standards, methods and techniques as are
relevant to the performance of their respective duties.
6.5 Attendance of the General Manager, the Kitchen Manager and each
Assistant Manager at any of Franchisor's training courses shall be tuition-free.
Franchisee shall pay all other costs and expenses relating to the attendance of
Franchisee's personnel at any of Franchisor's training courses, including,
without limitation, the cost of travel, lodging, meals, and other related and
incidental expenses.
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7. RESTAURANT MAINTENANCE
7.1 Franchisee shall, at Franchisee's sole cost and expense, maintain
the Restaurant in conformity with the standards, specifications and requirements
of the System, as the same may be designated by Franchisor from time to time.
Franchisee specifically agrees to repair or replace, at Franchisee's cost and
expense, equipment, signs, interior and exterior decor items, fixtures,
furnishings, supplies, and other products and materials required for the
operation of the Restaurant as necessary or desirable, and to obtain, at
Franchisee's cost and expense, any new or additional equipment, signs, interior
and exterior decor items, fixtures, furnishings, supplies, and other products
and materials which may be reasonably required by Franchisor for new products or
procedures. Except as may be expressly provided in the Manuals, no alterations
or improvements, or changes of any kind in design, equipment, signs, interior or
exterior decor items, fixtures or furnishings shall be made in or about the
Restaurant or Restaurant premises without the prior written approval of
Franchisor in each instance.
7.2 In order to assure the continued success of the Restaurant,
Franchisee shall, at any time from time to time after ________________,
_________, (i.e., six [6] years after the date of this Agreement) as reasonably
required by Franchisor (taking into consideration the cost and then-remaining
term of this Agreement), modernize the Restaurant premises, equipment, signs,
interior and exterior decor items, fixtures, furnishings, supplies, and other
products and materials required for the operation of the Restaurant, to
Franchisor's then-current standards and specifications, provided that at the
time Franchisor requires Franchisee to so modernize the Restaurant premises at
least twenty-five percent (25%) of Franchisor-owned and operated Restaurants
meet such standards and specifications. Franchisee's obligations under this
Subsection are in addition to, and shall not relieve Franchisee from, any of its
other obligations under this Agreement, including those contained in the
Manuals.
7.3 If Franchisee is or becomes a lessee of the Restaurant premises,
Franchisee shall have included in the lease provisions expressly permitting both
Franchisee and Franchisor to take all actions and make all alterations referred
to under Subsections 7.1 and 7.2 hereof, requiring the lessor thereunder to give
Franchisor reasonable notice of any contemplated termination, and providing that
Franchisee has the unrestricted right to assign the lease to Franchisor without
the lessor having any right to impose conditions on such assignment or to obtain
any payment in connection therewith. Franchisee shall not, without the prior
written consent of Franchisor, execute any lease or other agreement which
imposes, or purports to impose, any limitations on the ability of Franchisee
and/or of Franchisor to operate additional restaurants at any particular
location beyond the geographic limitation set forth in Section 1.4 hereof, or
any lease the term of which is shorter than the term of this Agreement.
8. ADVERTISING
8.1 Franchisor shall develop and administer advertising, public
relations and sales promotion programs designed to promote and enhance the
collective success of all restaurant units in the System. It is expressly
understood, acknowledged and agreed that in all phases of such advertising and
promotion, including, without limitation, type, quantity, timing, placement and
choice of media and medium, market areas, advertising agencies and public
relations firms, Franchisor's decisions shall be final and binding. Franchisee
shall have the right to participate actively in all such advertising, public
relations and sales promotion programs, but only in full and complete accordance
with such terms and conditions as may be established by Franchisor for each such
program.
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8.2 Franchisee shall pay Franchisor, in the manner described in
Section 9 hereof, a minimum dollar amount equal to one and one-half percent
(1.5%) of Franchisee's gross sales, as defined in Subsection 9.3 hereof. Such
funds shall become the sole and absolute property of Franchisor, to be allocated
to a separate "advertising account" established by Franchisor. Franchisor shall
use such funds for market studies, advertising and marketing studies or
services, production of commercials, advertising copy and layouts, traffic
costs, agency fees, marketing personnel, or any other costs associated with the
development, marketing and testing of advertising, and for the purchase of
advertising time, space or materials in national, regional or other advertising
media, in a manner determined by Franchisor in its sole discretion. Within six
(6) months following the end of Franchisor's fiscal year, Franchisor shall
provide all franchisees with an accounting of all amounts received from them and
expended by Franchisor for the matters set forth above. In addition, Franchisee
shall expend a minimum dollar amount equal to one and one-half percent (1.5%) of
Franchisee's gross sales, for local promotional activities, subject to the
provisions of Subsections 8.4 and 8.5 hereof. Franchisor shall have the right at
all times to review Franchisee's books and records, and to require Franchisee to
produce evidence of its gross sales and local promotional activities, to ensure
Franchisee's compliance with this Section. Any amount determined by said audit
to be due Franchisor as part of the advertising fee will be paid to Franchisor
by Franchisee within ten (10) days thereafter. At any time after execution of
this Agreement, Franchisor may in its sole discretion increase, to a maximum of
four percent (4%) of gross sales, the percentage of gross sales which Franchisee
shall be required to pay to Franchisor for allocation to a separate advertising
account pursuant to this Subsection 8.2. Franchisor shall use the funds paid
pursuant to that increased percentage requirement solely for the purchase of
advertising time, space or materials in national, regional or other advertising
media, in a manner determined by Franchisor in its sole discretion, provided
that in each calendar year (or other twelve [12] month period established by
Franchisor) in which Franchisor makes expenditures for advertising from such an
advertising account, so long as Franchisee is in compliance with its obligations
hereunder, Franchisor's expenditures for advertising in the Territory
encompassed by the Development Agreement (including expenditures for national or
regional advertising in media which reach that Territory) shall be on a basis
which is roughly proportional to Franchisee's contribution to that advertising
account during that calendar year or other twelve (12) month period. Franchisor
also may increase the percentage of gross sales which Franchisee shall be
required to spend for local promotional activities, provided however, that in no
event shall Franchisee be required to make payments pursuant to this Subsection
8.2 in a dollar amount in excess of five percent (5%) of gross sales.
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8.3 Franchisee shall submit to Franchisor, for Franchisor's approval,
an advertising campaign plan relating to the promotion of the opening of the
Restaurant which is sufficient to meet the needs of the market. The Manuals
contain a Press Release kit to assist Franchisee in this regard. Franchisee
shall conduct the approved advertising campaign and make all expenditures for
advertising to promote the opening of the Restaurant no later than sixty (60)
days after the Restaurant opens for business. Franchisor will reimburse fifty
percent (50%) of Franchisee's out-of-pocket opening advertising expenditures up
to a maximum of two thousand five hundred dollars ($2,500), if Franchisee meets
the following criteria:
(a) Franchisee's opening advertising expenditures are made within
sixty (60) days after the opening of the Restaurant;
(b) Franchisee submits to Franchisor within one hundred twenty (120)
days after the opening of the Restaurant documentation for the opening
advertising expenditures, such as paid invoices from suppliers of goods
or services evidencing expenditure on the opening advertising promotion;
and
(c) Franchisee's opening advertising expenditures are made pursuant
to the approved advertising campaign plan and in accordance with the
Grand Opening Reimbursement Program Policy Guidelines set forth in the
Manuals.
8.4 Nothing in the foregoing Subsections shall be deemed to prohibit
Franchisee from making additional expenditures for local promotional activities.
All of the Franchisee's local promotional activities shall utilize approved
advertising media. "Approved advertising media" are limited to the following:
(a) Newspapers, magazines and other such periodicals;
(b) Radio and television;
(c) Outdoor advertising by signs displayed on billboards or
buildings; and
(d) Handbills, flyers, door-hangers and direct mail.
In the event Franchisee wants to use a form of advertising medium not set forth
above, Franchisee shall submit a description of such medium and advertising to
Franchisor. Franchisor shall notify Franchisee whether it approves the use of
such medium within thirty (30) days of Franchisee's request. Failure by
Franchisor to so notify Franchisee within that period shall be deemed to
constitute Franchisor's approval of such request. Guidelines for local
promotional activities are contained in the Manuals.
8.5 All advertising copy and other materials employed by Franchisee
in local promotional activities shall be in strict accordance and conformity
with the standards, formats and specimens contained in the Manuals and shall
receive the prior approval of Franchisor. In the event Franchisee wishes to
deviate from the materials contained in the Manuals, Franchisee shall submit, in
each instance, the proposed advertising copy and materials to Franchisor for
approval in advance of publication. Franchisor shall notify Franchisee in
writing, within fifteen (15) days of such submission, whether Franchisor
disapproves such advertising copy and materials. Failure by Franchisor to so
notify Franchisee within that period shall be deemed to constitute Franchisor's
approval of such advertising copy and materials. In no event shall Franchisee's
advertising contain any statement or material which may be considered (a) in bad
taste or offensive to the public or to any group of persons, (b) defamatory of
any person or an attack on any competitor, (c) to infringe upon the use, without
permission, of any other persons' trade name, trademark, service xxxx or
identification, or (d) inconsistent with the public image of Franchisor or of
the System.
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9. FEES
9.1 As partial consideration for the rights granted hereunder,
Franchisee shall pay Franchisor:
(a) an initial franchise fee of _____________________ dollars
($__________), to be paid in the manner prescribed in Subsection 4.l of
the Development Agreement as payment for the grant of the franchise;
(b) a monthly royalty fee as determined by Franchisor, not to exceed
five percent (5%) of each calendar month's gross sales, as provided in
Subsection 4.3 of the Development Agreement, as payment for Franchisee's
continuing right to operate the Restaurant as part of the System (see
Exhibit 1); and
(c) a monthly advertising fee equal to such percentage of each
calendar month's gross sales as Franchisor may require pursuant to
Subsection 8.2 hereof.
Notwithstanding anything contained herein to the contrary, if the
royalty fee set forth in Subsection 9.1(b) is equal to five percent (5%) of
monthly gross sales, then in such an event, the advertising fee described in
Subsection 9.1(c) shall not exceed four percent (4%) of monthly gross sales.
9.2 The fees referred to in Subsections 9.l(b) and (c) (the "Fees")
shall be paid by check mailed and postmarked on or before the twelfth day of the
next full month immediately following the month to which the Fees relate. Any
Fees, including the initial franchise fee, which are not paid when due shall
bear interest from and after the due dates thereof at the rate of eighteen
percent (18%) per annum or the highest rate permitted by applicable law,
whichever is less.
9.3 (a) Except as provided in Subsection 9.3(b) hereof, the term
"gross sales," as used in this Agreement, shall mean all receipts (cash, cash
equivalents or credit) or revenues from sales from all business conducted upon
or from the Restaurant premises, whether evidenced by check, cash, credit,
charge account, exchange or otherwise, including, but not limited to, amounts
received from the sale of goods, wares and merchandise (including sales of food,
beverages and tangible property of every kind and nature, promotional or
otherwise), from all services performed from or at the Restaurant premises, and
from all orders taken or received at the Restaurant premises, regardless of
where such orders are filled. Gross sales shall not be reduced by any deductions
for cash shortages incurred in connection with the transaction of business with
customers, credit card company charges or theft which is reimbursed by insurance
or is not reported to the appropriate police authorities. Each charge or sale
upon installment or credit shall be treated as a sale for the full price in the
month during which such charge or sale shall be first made, irrespective of the
time when Franchisee shall receive payment (whether full or partial) therefor.
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(b) Gross sales shall not include: (i) the sale of
merchandise for which cash has been refunded or, except as provided in the
second sentence of Subsection 9.3(a), not received, or allowances made for
merchandise, if the sales of any such returned or exchanged merchandise shall
have been previously included in gross sales, (ii) the amount of any sales tax
imposed by any federal, state, municipal or other governmental authority
directly on sales and intended to be collected from customers, provided that the
amount thereof is added to the selling price and actually paid by the Franchisee
to such governmental authority, (iii) the sale of merchandise for which a gift
certificate is redeemed, provided that the initial sale of said gift certificate
shall have been previously included in gross sales, (iv) the sale of waste
products of the Restaurant, (v) the sale of meals to employees, (vi) telephone,
game and vending machine revenues, (vii) the sale of non-food items or beverages
at a discount in connection with a promotional campaign, (viii) one-time sale of
furniture, fixtures or equipment, and (ix) theft which is not covered by
insurance and is reported to the appropriate police authorities. In addition,
Franchisor may, from time to time, in writing, permit or allow certain other
items to be excluded from gross sales. Any such permission or allowance may be
revoked or withdrawn at Franchisor's discretion.
10. RECORD KEEPING
10.1 Franchisor shall provide Franchisee with a choice of two (2) or
more approved point of sales systems, and Franchisee shall employ one (1) of
such approved systems, without modification, in connection with the business of
the Restaurant. Franchisee shall use such bookkeeping and record keeping forms
as shall be prescribed in the Manuals.
10.2 Franchisee shall complete and submit to Franchisor, on a
regular, continuous basis, each of the following reports, in the form specified
in the Manuals:
(a) monthly Restaurant reports, on or before the twelfth day of each
calendar month following the month to which the report relates;
(b) annual Restaurant reports, on or before the fifteenth day of
April of each year; and
(c) weekly gross sales reports, on or before the Tuesday following
the calendar week to which the report relates.
10.3 The annual Restaurant reports referred to above shall include a
balance sheet dated as of the end of Franchisee's fiscal year or calendar year
and a profit and loss statement for such year, together with such additional
financial information as Franchisor may reasonably request. Such balance sheet
and profit and loss statement shall be prepared in accordance with generally
accepted accounting principles, certified as correct and complete by
Franchisee's chief executive officer, president, chief financial officer or
controller and reported on and reviewed by an independent state-licensed
certified public accountant. If Franchisee fails to provide Franchisor with such
balance sheet and profit and loss statement, Franchisor shall have the right to
have an independent audit made of Franchisee's books and records, and Franchisee
shall promptly reimburse Franchisor for the cost thereof.
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10.4 Each of the reports referred to in this Section 10 shall be
completed by Franchisee or its accountant in the respective specimen forms, and
in accordance with the instructions, contained in the Manuals. Subsection 10.3
notwithstanding, time is of the essence with respect to the completion and
submission of each such report.
11. FRANCHISEE ORGANIZATION, AUTHORITY,
FINANCIAL CONDITION AND SHAREHOLDERS
11.1 Franchisee and each Principal Shareholder represent and warrant
that: (a) Franchisee is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of its incorporation; (b) Franchisee
is duly qualified and is authorized to do business and is in good standing as a
foreign corporation in each jurisdiction in which its business activities or the
nature of the properties owned by it requires such qualification; (c) the
execution and delivery of this Agreement and the transaction contemplated hereby
are within Franchisee's corporate power; (d) the execution and delivery of this
Agreement has been duly authorized by the Franchisee; (e) the articles of
incorporation and by-laws of Franchisee delivered to Franchisor are true,
complete and correct, and there have been no changes therein since the date
thereof; (f) the certified copies of the minutes electing the officers of
Franchisee and authorizing the execution and delivery of this Agreement are
true, correct and complete, and there have been no changes therein since the
date(s) thereof; (g) the specimen stock certificate delivered to Franchisor is a
true specimen of Franchisee's stock certificate; (h) the balance sheet of
Franchisee as of ____________________, ________ ("Balance Sheet") and the
balance sheets of its Principal Shareholders as of ____________________,
________, heretofore delivered to Franchisor, are true, complete and correct,
and fairly present the financial positions of Franchisee and each Principal
Shareholder, respectively, as of the dates thereof; (i) the Balance Sheet and
each such balance sheet have been prepared in accordance with generally accepted
accounting principles; and (j) there have been no materially adverse changes in
the condition, assets or liabilities of Franchisee or Principal Shareholders
since the date or dates thereof.
11.2 Franchisee and each Principal Shareholder covenant that during
the term of this Agreement: (a) Franchisee shall do or cause to be done all
things necessary to preserve and keep in full force its corporate existence and
shall be in good standing as a foreign corporation in each jurisdiction in which
its business activities or the nature of the properties owned by it requires
such qualification; (b) Franchisee shall have the corporate authority to carry
out the terms of this Agreement; and (c) Franchisee shall print, in a
conspicuous fashion on all certificates representing shares of its stock when
issued, a legend referring to this Agreement and the restrictions on and
obligations of Franchisee and Principal Shareholders hereunder, including the
restrictions on transfer of Franchisee's shares.
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11.3 In addition to the financial information which Franchisee is
required to provide to Franchisor under Subsections 10.2 and 11.1 hereof,
Franchisee and Principal Shareholders shall provide Franchisor with such other
financial information as Franchisor may reasonably request from time to time,
including, on an annual basis, copies of the then-most current financial
statements of Franchisee and each Principal Shareholder, dated as of the end of
the last preceding fiscal year of the Franchisee or Principal Shareholder, said
statements to be delivered to Franchisor no later than April 15 of each year,
which financial statements shall conform to the standards set forth in
Subsection 11.1 hereof.
11.4 Franchisee and each Principal Shareholder represent, warrant and
covenant that all Interests (as defined in Subsection 12.4 hereto) in Franchisee
are owned as set forth on Appendix A hereto, that no Interest has been pledged
or hypothecated (except in accordance with Section 12 of this Agreement), and
that no change will be made in the ownership of any such Interest other than as
permitted by this Agreement, or otherwise consented to in writing by Franchisor.
Franchisee and Principal Shareholders agree to furnish Franchisor with such
evidence as Franchisor may request, from time to time, for the purpose of
assuring Franchisor that the Interests of Franchisee and Principal Shareholders
remain as represented herein.
11.5 Each Principal Shareholder, jointly and severally, hereby
personally and unconditionally guarantees each of Franchisee's financial
obligations to Franchisor (including, but not limited to, all obligations
relating to the payment of fees by Franchisee to Franchisor). Each Principal
Shareholder agrees that Franchisor may resort to such Principal Shareholder (or
any of them) for payment of any such financial obligation, whether or not
Franchisor shall have proceeded against Franchisee, any other Principal
Shareholder or any other obligor primarily or secondarily obligated to
Franchisor with respect to such financial obligation. Each Principal Shareholder
hereby expressly waives presentment, demand, notice of dishonor, protest, and
all other notices whatsoever with respect to Franchisor's enforcement of this
guaranty. In addition, each Principal Shareholder agrees that if the performance
or observance by Franchisee of any term or provision hereof is waived or the
time of performance thereof extended by Franchisor, or payment of any such
financial obligation is accelerated in accordance with any agreement between
Franchisor and any party liable in respect thereto or extended or renewed, in
whole or in part, all as Franchisor may determine, whether or not notice to or
consent by any Principal Shareholder or any other party liable in respect to
such financial obligations is given or obtained, such actions shall not affect
or alter the guaranty of each Principal Shareholder described in this
Subsection.
12. TRANSFER
12.1 There shall be no Transfer of any Interest of Franchisee, or of
a Principal Shareholder in Franchisee, in whole or in part (whether voluntarily
or by operation of law), directly, indirectly or contingently, except in
accordance with the provisions of this Section 12. "Transfer" and "Interest" are
defined in Subsections 12.2, 12.3 and 12.4. Any proposed Transfer also shall be
subject to the provisions of the Development Agreement.
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12.2 Except as provided in Subsection 12.3, "Transfer" shall mean any
assignment, sale, pledge, hypothecation, gift or any other event which would
change ownership of or change or create a new Interest, including, but not
limited to:
(a) any change in the ownership of or rights in or to any shares of
stock or other equity interest in Franchisee which would result from the
act of any shareholder of Franchisee ("Shareholder"), such as a sale,
exchange, pledge or hypothecation of shares, or any interest in or rights
to any of Franchisee's profits, revenues or assets, or any such change
which would result by operation of law; and
(b) any change in the percentage interest owned by any Shareholder
in the shares of stock of Franchisee, or interests in its profits,
revenues or assets which would result from any act of Franchisee such as
a sale, pledge or hypothecation of any Restaurant assets (other than a
pledge of assets to secure bona fide loans made or credit extended in
connection with acquisition of the assets pledged, provided that
immediately before and after such transaction the net worth of Franchisee
shall not be less than the amount which is reflected on the Balance Sheet
referred to in Subsection 11.1 of this Agreement); any sale or issuance
of any shares of Franchisee's stock; the retirement or redemption of any
shares of Franchisee's stock; or any sale or grant to any person of any
right to participate in or otherwise to share or become entitled to any
part of Franchisee's profits, revenues, assets or equity.
12.3 "Transfer" shall not include (a) a change in the ownership of or
rights to any shares or other equity interest in Franchisee pursuant to a public
offering of Franchisee's securities registered under the Securities Act of 1933,
or (b) a change in the ownership of or rights to any securities or other equity
interest in Franchisee pursuant to a private offering of Franchisee's securities
exempted from registration under such Act, provided that Franchisee provides
Franchisor with a copy of its prospectus and/or offering memorandum ten (10)
days prior to its filing with the Securities and Exchange Commission or
circulation to third parties so that Franchisor may comment and, if necessary,
correct any information concerning Franchisor and/or the System, and further
provided that after giving effect to such public or private offering, the
Principal Shareholders, or any of them, "control" Franchisee. For purposes of
this Section 12, "control" means either (1) owning legal and equitable title to
fifty-one percent (51%) or more of the outstanding voting securities of
Franchisee, which are not subject to a proxy granted to or contract with any
other person or party granting that party the right to vote part or all of such
securities, or (2) having and continually exercising the contractual power
presently to designate a majority of the directors of Franchisee.
12.4 "Interest" shall mean: when referring to interests or rights in
Franchisee, any shares of Franchisee's stock and any other equitable or legal
right in or to any of Franchisee's stock, revenues, profits or assets; when
referring to rights or assets of Franchisee, Franchisee's rights under and
interest in this Agreement, the Restaurant and its revenues, profits and assets.
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12.5 (a) The Interest of a Principal Shareholder may be transferred
to such Principal Shareholder's spouse or children or to a person designated in
such Principal Shareholder's will or trust (individually and collectively
referred to as a "Successor"), upon such Principal Shareholder's death or
permanent incapacity, without Franchisor's approval, provided that such
Successor shall agree to be bound by the restrictions contained in this Section
12, and the other agreements and covenants of the Principal Shareholders
contained in this Agreement.
(b) The Interest of a Principal Shareholder may not be
transferred to another Principal Shareholder without Franchisor's approval,
which approval shall not be unreasonably withheld.
(c) The Interest of a Successor may only be transferred in
accordance with Subsection 12.5(b), 12.6, 12.7 or 12.8, regardless of whether
such Transfer is for consideration or by gift or will or other device.
12.6 If at any time the Principal Shareholders desire to dispose of
all or substantially all of the Interests of the Principal Shareholders in
Franchisee, or the Principal Shareholders (or Franchisee) desire to dispose of
all or substantially all of Franchisee's Interest in this Agreement or in the
assets which Franchisee has acquired as a result of this Agreement, the
Principal Shareholders or Franchisee, as the case may be, shall notify
Franchisor of that desire, in writing, thirty (30) days before announcing that
fact publicly or engaging the services of a broker or sales agent.
12.7 (a) If at any time any of the Principal Shareholders or
Franchisee, as the case may be, obtains from a third party or third parties a
bona fide offer (the "Offer") in writing for the purchase of all or
substantially all of the Interests of the Principal Shareholders in Franchisee,
or of Franchisee's Interest in this Agreement or in the assets which Franchisee
has acquired as a result of this Agreement, the Principal Shareholders or
Franchisee shall give notice (the "Selling Notice") to Franchisor stating that
the Principal Shareholders or Franchisee, as the case may be, have received the
Offer, identifying the prospective purchaser by name and address, specifying the
proposed purchase price and attaching a true and complete copy of the Offer.
(b) Franchisor shall have an option to purchase (the
"Option"), exercisable within a period of forty-five (45) days after receipt of
the Selling Notice (the "Option Period"), such Interests at the price and on the
conditions set forth in the Offer, except that Franchisor shall not be obligated
to pay any finder's or broker's fee, and if the Offer provides for payment of
consideration other than cash, or if the Offer involves certain intangible
benefits, Franchisor may elect to purchase such Interests by offering a
reasonable dollar value substitute including, at Franchisor's option, cash or
the common stock or other securities of the Franchisor or any combination
thereof for the non-cash/intangible benefits part of the Offer.
(c) The Option shall be exercisable by Franchisor delivering
to the Principal Shareholders or Franchisee, as the case may be, within the
Option Period, a notice (i) stating that the Option is being exercised, and (ii)
specifying the time, date and place at which such purchase and sale will take
place, which date shall be within forty-five (45) days after Franchisor delivers
such notice. Franchisee shall provide Franchisor access to and copies of such
information and documentation Franchisor shall request regarding the purchase.
The forty-five (45) day limitation described at the end of the preceding
sentence shall not apply if at the end of said forty-five (45) day period the
only issue which prevents completion of the purchase and sale is the need to
effect transfers of the applicable liquor licenses. In the event of such a
delay, the purchase and sale shall take place within seven (7) business days
after those liquor licenses have been transferred.
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(d) If the Option is not exercised, the Principal
Shareholders or Franchisee, as the case may be, may sell the Interests in or of
Franchisee to the third party which made the Offer, on conditions no more
favorable to the third-party offerer than those set forth in the Offer, provided
that Franchisor approves the proposed transferee in accordance with the criteria
set forth in Appendix B and provided further that such sale takes place within
ninety (90) days after the expiration of the Option Period. The ninety (90) day
limitation described in the preceding sentence shall not apply if at the end of
said ninety (90) day period the issue which prevents completion of the purchase
and sale is either the need to effect transfers of the applicable liquor
licenses or consent or approval of the transaction by a state or federal
regulatory agency. In the event of such a delay, the purchase and sale shall
take place within seven (7) business days after those issues have been resolved
or waived by Franchisor.
(e) If the Option is not exercised, the Principal
Shareholders or Franchisee, as the case may be, shall immediately notify
Franchisor in writing of any change in the terms of an Offer. Any change in the
terms of an Offer shall cause it to be deemed a new Offer, conferring upon
Franchisor a new Option pursuant to this Subsection 12.7; the Option Period with
respect to the new Option shall be deemed to commence on the day on which
Franchisor receives written notice of a change in the terms of the original
Offer.
12.8 (a) Franchisee understands and acknowledges that the rights and
duties set forth in this Agreement are personal to Franchisee and that
Franchisor has entered into this Agreement in reliance on the business skill and
financial capability of Franchisee, and the business skill, financial capability
and personal character of each Principal Shareholder. Except as otherwise
provided in this Section 12, the Principal Shareholders shall at all times
retain control of Franchisee. Except as otherwise provided in this Section 12,
no Transfer of any part of Franchisee's Interest in this Agreement or in the
Restaurant, and no Transfer of any Interest of any Principal Shareholder, shall
be completed except in accordance with this Subsection 12.8. In the event of
such a proposed Transfer of any part of Franchisee's Interest in this Agreement
or in the Restaurant, or of any Interest of any Principal Shareholder, the party
or parties desiring to effect such Transfer shall give Franchisor notice in
writing of the proposed Transfer, which notice shall set forth the name and
address of the proposed transferee, its financial condition, including a copy of
its financial statement dated not more than ninety (90) days prior to the date
of said notice, and all the terms and conditions of the proposed Transfer. Upon
receiving such notice, Franchisor may (i) approve the Transfer, or (ii) withhold
its consent to the Transfer. Franchisor shall, within forty-five (45) days of
receiving such notice and all of the information required therein, advise the
party or parties desiring to effect the Transfer whether it (1) approves the
Transfer, or (2) withholds its consent to the Transfer, giving the reasons for
such disapproval. Failure of Franchisor to so advise said party or parties
within that forty-five (45) day period shall be deemed to be an approval of the
proposed Transfer. Appendix B sets forth the criteria for obtaining Franchisor's
consent to a proposed Transfer.
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(b) In the event that Franchisor approves the Transfer, and
the Transfer is not completed within ninety (90) days of the later of (i)
expiration of the forty-five (45) day notice period, or (ii) delivery of notice
of Franchisor's approval of the proposed Transfer, Franchisor's approval of the
proposed Transfer shall automatically be revoked. The ninety (90) day limitation
described in the preceding sentence shall not apply if at the end of said ninety
(90) day period the only issue which prevents completion of the Transfer is the
need to effect transfers of the applicable liquor licenses. In the event of such
a delay, the Transfer shall take place within seven (7) business days after
those liquor licenses have been transferred. Any subsequent proposal to complete
the proposed Transfer shall be subject to Franchisor's right of approval as
provided herein. The party which desires to effect the proposed Transfer shall
immediately notify Franchisor in writing of any change in the terms of a
Transfer. Any change in the terms of a Transfer prior to closing shall cause it
to be deemed a new Transfer, revoking any approval previously given by
Franchisor and conferring upon Franchisor a new right to approve such Transfer,
which shall be deemed to commence on the day on which Franchisor receives
written notice of such changes in terms.
12.9 In connection with any request for Franchisor's approval of a
proposed Transfer pursuant to this Section 12, the parties to the proposed
Transfer shall pay Franchisor a nonaccountable fee to defray the actual cost of
review and the administrative and professional expenses related to the proposed
Transfer and the preparation and execution of documents and agreements, up to a
maximum of two thousand five hundred dollars ($2,500).
13. CONFIDENTIALITY; RESTRICTIONS
13.1 Franchisee and its Principal Shareholders acknowledge that over
the term of this Agreement they are to receive proprietary information which
Franchisor has developed over time at great expense, including, but not limited
to, information regarding the System, methods of site selection, marketing and
public relations methods, product analysis and selection, and service methods
and skills relating to the development and operation of restaurants. They
further acknowledge that this information, which includes, but is not
necessarily limited to, that contained in the Manuals, is not generally known in
the industry and is beyond their own present skills and experience, and that to
develop it themselves would be expensive, time consuming and difficult.
Franchisee and its Principal Shareholders further acknowledge that the
Franchisor's information provides a competitive advantage and will be valuable
to them in the development of their business, and that gaining access to it is
therefore a primary reason why they are entering into this Agreement.
Accordingly, Franchisee and its Principal Shareholders agree that Franchisor's
information, as described above, which may or may not be "trade secrets" under
prevailing judicial interpretations or statutes, is private and valuable, and
constitutes trade secrets belonging to Franchisor. Accordingly, in consideration
of Franchisor's confidential disclosure to them of these trade secrets,
Franchisee and Principal Shareholders agree as follows (subject to the
provisions of the Development Agreement and any other franchise agreement
between Franchisor and Franchisee):
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(a) During the term of this Agreement, neither Franchisee nor any
Principal Shareholder, for so long as such Principal Shareholder owns an
Interest in Franchisee, may, without the prior written consent of
Franchisor, directly or indirectly engage in, or acquire any financial or
beneficial interest (including any interest in corporations,
partnerships, trusts, unincorporated associations or joint ventures) in,
advise, help, guarantee loans or make loans to, any restaurant business
whose menu or method of operation is similar to that employed by
restaurant units within the System which is either (i) located in the
Territory, as defined in the Development Agreement, (ii) located in the
Area of Dominant Influence (as defined and established from time to time
by Arbitron Ratings Company) of any restaurant developed pursuant to the
Development Agreement, (iii) located within a five (5) mile radius of any
restaurant unit within the System, or (iv) determined by Franchisor,
exercising reasonable good faith judgment, to be a direct competitor of
the System.
(b) Neither Franchisee, for two (2) years following the termination
of this Agreement, nor any Principal Shareholder, for two (2) years
following the termination of all of his or her Interest in Franchisee or
the termination of this Agreement, whichever occurs first, may directly
or indirectly engage in, or acquire any financial or beneficial interest
(including any interest in corporations, partnerships, trusts,
unincorporated associations or joint ventures) in, advise, help,
guarantee loans or make loans to, any restaurant business whose menu or
method of operation is similar to that employed by restaurant units
within the System which is located either (i) in the Territory, as
defined in the Development Agreement, (ii) in the Area of Dominant
Influence (as defined and established from time to time by Arbitron
Ratings Company) of any restaurant developed pursuant to the Development
Agreement, (iii) within a five (5) mile radius of any restaurant unit
within the System, or (iv) within any area for which an active, currently
binding development agreement has been granted by Franchisor to another
franchisee as of the date of the termination.
(c) Neither Franchisee nor any Shareholder shall at any time (i)
appropriate or use the trade secrets incorporated in the System, or any
portion thereof, in any restaurant business which is not within the
System, (ii) disclose or reveal any portion of the System to any person,
other than to Franchisee's Restaurant employees as an incident of their
training, (iii) acquire any right to use any name, xxxx or other
intellectual property right which is or may be granted by this Agreement,
except in connection with the operation of the Restaurant, or (iv)
communicate, divulge or use for the benefit of any other person or entity
any confidential information, knowledge or know-how concerning the
methods of development or operation of a restaurant utilizing the System,
which may be communicated by Franchisor in connection with the franchise
granted hereunder.
13.2 Franchisee and Principal Shareholders agree that the provisions
of this Section 13 are and have been a primary inducement to Franchisor to enter
into this Agreement, and that in the event of breach thereof Franchisor would be
irreparably injured and would be without adequate remedy at law. Therefore, in
the event of a breach, or a threatened or attempted breach, of any of such
provisions Franchisor shall be entitled, in addition to any other remedies which
it may have hereunder or at law or in equity (including the right to terminate
this Agreement), to a preliminary and/or permanent injunction and a decree for
specific performance of the terms hereof without the necessity of showing actual
or threatened damage, and without being required to furnish a bond or other
security.
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13.3 The restrictions contained in Subsection 13.1(a) and (b) above
shall not apply to ownership of less than two percent (2%) of the shares of a
company whose shares are listed and traded on a national securities exchange if
such shares are owned for investment only, and are not owned by an officer,
director, employee, or consultant of such publicly traded company.
13.4 If any court or other tribunal having jurisdiction to determine
the validity or enforceability of this Section 13 determines that it would be
invalid or unenforceable as written, then the provisions hereof shall be deemed
to be modified or limited to such extent or in such manner as necessary for such
provisions to be valid and enforceable to the greatest extent possible.
13.5 Franchisee shall require the General Manager, the Kitchen
Manager and each of its Restaurant managers to execute a confidentiality
agreement in the form attached hereto as Appendix C. Franchisee shall be
responsible for compliance of its employees with the agreements identified in
this Subsection.
14. INSPECTIONS
14.1 Franchisor shall have the right at any time, and from time to
time, to have its representatives enter the Restaurant premises without notice
for the purpose of inspecting the condition thereof and the operation of the
Restaurant in order to determine whether Franchisee is in compliance with the
standards, specifications, requirements and instructions contained in this
Agreement and in the Manuals, and for any other reasonable purpose connected
with the operation of the Restaurant.
14.2 Without limiting the generality of Subsection 14.1, a
representative of Franchisor shall be present in the Restaurant to consult with
Franchisee or its General Manager once each calendar quarter and, at least
semi-annually, a representative shall conduct an inspection/ consultation at the
Restaurant (which may be conducted with or without notice). During such
inspection, Franchisor's representative will inspect the condition of the
Restaurant and observe procedures and operations at the Restaurant. Also during
the inspection/consultation, Franchisor's representative will meet with the
General Manager and such other Restaurant employees as Franchisor's
representative may designate, for the purpose of evaluating the condition and
operation of the Restaurant and seeking to maintain or achieve compliance with
the standards, specifications, requirements and instructions contained in this
Agreement and in the Manuals.
14.3 Without limiting the generality of Subsection 14.1, Franchisor's
representatives shall have the right at all times during normal business hours
to confer with Restaurant employees and customers, and to inspect Franchisee's
books, records and tax returns, or such portions thereof as pertain to the
operation of the Restaurant. All such books, records and tax returns shall be
kept and maintained at the principal executive offices of Franchisee or such
other place as may be agreed upon by the parties in writing. If any inspection
reveals that the gross sales reported in any report or statement are less than
the actual gross sales ascertained by such inspection, then the Franchisee shall
immediately pay Franchisor the additional amount of fees owing by reason of the
understatement of gross sales previously reported, together with interest as
provided in Subsection 9.2. In the event that any report or statement
understates gross sales by more than three percent (3%) of the actual gross
sales ascertained by Franchisor's inspection, Franchisee shall, in addition to
making the payment provided for in the immediately preceding sentence, pay and
reimburse Franchisor for any and all expenses incurred in connection with its
inspection, including, but not limited to, reasonable accounting and legal fees.
Such payments shall be without prejudice to any other rights or remedies which
Franchisor may have under this Agreement or otherwise. If any inspection reveals
that the gross sales reported in any report or statement are greater than the
actual gross sales ascertained by such inspection, and that Franchisee thereby
has made an overpayment of fees, the amount of the overpayment (without
interest) shall be offset against future fees owing by Franchisee to Franchisor.
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14.4 Franchisee shall maintain an accurate stock register. In the
event that the beneficial ownership of Franchisee's stock differs in any respect
from record ownership, Franchisee also shall maintain a list of the names,
addresses and interests of all beneficial owners of its stock. Franchisee shall
produce its stock register, and any list of beneficial owners certified by the
corporation's secretary to be correct, at its principal executive offices upon
ten (10) days prior written request by Franchisor. Franchisor's representatives
shall have the right to examine the stock register and any list of beneficial
owners, and to reproduce all or any part thereof. Further, upon ten (10) days
written notice, Franchisor may request a copy of the list of stockholders and
owners of beneficial interests to be forwarded to it at Franchisor's principal
office.
15. RELATIONSHIP OF PARTIES AND INDEMNIFICATION
15.1 Franchisee is not, and shall not represent or hold itself out
as, an agent, legal representative, joint venturer, partner, employee or servant
of Franchisor for any purpose whatsoever and, where permitted by law to do so,
shall file a business certificate to such effect with the proper recording
authorities. Franchisee is an independent contractor and is not authorized to
make any contract, agreement, warranty or representation on behalf of
Franchisor, or to create any obligation, express or implied, on behalf of
Franchisor. Franchisee agrees that Franchisor does not have any fiduciary
obligation to Franchisee. Franchisee shall not use the name Xxxxxxxx'x
Neighborhood Grill & Bar (other than in connection with the operation of the
Restaurant), or Xxxxxxxx'x International, Inc., or any similar words as part of
or in association with any trade name of any business entity which is, directly
or indirectly, associated with Franchisee.
15.2 Franchisee shall indemnify and hold harmless Franchisor and its
officers, directors, employees, agents, affiliates, successors and assigns from
and against (a) any and all claims based upon, arising out of, or in any way
related to the operation or condition of any part of the Restaurant or
Restaurant premises, the conduct of business thereat, the ownership or
possession of real or personal property, and any negligent act, misfeasance or
nonfeasance by Franchisee or any of its agents, contractors, servants, employees
or licensees (including, without limitation, the performance by Franchisee of
any act required by, or performed pursuant to, any provision of this Agreement),
and (b) any and all fees (including reasonable attorneys' fees), costs and other
expenses incurred by or on behalf of Franchisor in the investigation of or
defense against any and all such claims.
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15.3 In addition to, and not in limitation of, any subsection hereof,
Franchisee specifically covenants, represents and warrants that Franchisee is in
compliance in all material respects with all federal, state, municipal and local
laws governing the generation, use or disposal of hazardous waste or hazardous
materials, and any and all other laws designed to protect the environment and
that:
(a) There have been no past, and there are no current or
anticipated, releases or substantial threats of a release of a hazardous
substance, pollutant or contaminant from or onto the Restaurant or real
property upon which the Restaurant is located and referred to in this
Agreement ("Premises") which is or may be subject to regulation under the
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. 9601, et seq.) or other laws designed to protect the environment;
(b) The Premises have not previously been used, are not now being
used and are not contemplated to be used for the treatment, collection,
storage or disposal of any refuse or objectionable waste so as to require
a permit or approval from the Environmental Protection Agency pursuant to
the Hazardous and Solid Waste Amendments of 1984 (96 Stat. 3221) or any
other federal, state, county or municipal agency charged with the
responsibility of protecting the environment;
(c) The Premises have not previously been used, are not now being
used, and are not contemplated to be used, for the generation,
transportation, treatment, storage or disposal of any hazardous waste;
(d) No portion of the Premises are located on or over a "sanitary
landfill" or an "open dump" within the meaning of the Resource
Conservation and Recovery Act (42 U.S.C. 6941 et seq.), as amended by the
Hazardous and Solid Waste Amendments of 1984 (96 Stat. 3221);
(e) No asbestos fibers or materials or polychlorinated biphenyls
(PCB's) are on or in the Premises;
(f) There have not been, nor are there presently pending, any
federal or state enforcement actions against the Premises, nor is the
Franchisee or its Landlord, if any, subject to any outstanding
administrative orders which require ongoing compliance efforts in
connection with compliance with laws designed to protect the environment;
(g) The Franchisee has not entered into any consent decrees or
administrative consent orders with any agency charged with the
responsibility of protecting the environment;
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(h) There have not been any notices of violation sent to the
Franchisee under the Citizens Suit Provisions of any statute;
(i) The Franchisee has not received any request for information,
notice or demand letters for administrative inquiries from any
governmental entity with regard to its environmental practices;
(j) The Franchisee has maintained all required records under each
and every applicable environmental statute and is in full compliance with
all environmental permits issued to it by any governmental or regulatory
agency;
(k) The Franchisee maintains all insurance policies as may be
required by any applicable law governing the environment;
(l) The Franchisee has no reason to believe that any operation of
equipment on or at the Premises may be the cause of a future spill or
release of a pollutant;
(m) The Franchisee has not in the past, nor is it presently,
generating, transporting or disposing of a hazardous substance as defined
by Section 9601(12) of CERCLA; and
(n) The Franchisor shall have the right, at Franchisee's expense, to
require an environmental audit of the Premises from a company or
companies satisfactory to Franchisor.
16. INSURANCE
16.1 Franchisee shall procure before the commencement of Restaurant
operations, and shall maintain in full force and effect during the entire term
of this Agreement, at its sole cost and expense, an insurance policy or policies
protecting Franchisee and Franchisor and their respective officers, directors
and employees against any and all claims, loss, liability or expense whatsoever,
arising out of or in connection with the condition, operation, use or occupancy
of the Restaurant or Restaurant Premises. Franchisee shall procure workers'
compensation coverage for each of its employees no later than the first date of
such employee's employment. Franchisee shall also insure the Restaurant building
and other improvements, equipment, signs, interior and exterior decor items,
furnishings and fixtures, and any additions thereto, in accordance with standard
fire and extended coverage insurance policies then in effect for similar
businesses. Franchisor shall be named as an additional insured in all such
policies, workers' compensation excepted, and the certificate or certificates of
insurance shall state that the policy or policies shall not be subject to
cancellation or alteration without at least thirty (30) days prior written
notice to Franchisor. Such policy or policies shall be written by a responsible
insurance company or companies satisfactory to Franchisor, and shall be in such
form and contain such limits of liability as shall be satisfactory to Franchisor
from time to time. In any event, such policy or policies shall include at least
the following:
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KIND OF INSURANCE MINIMUM LIMITS OF LIABILITY
Workers' Compensation Statutory
Employer's Liability $500,000 bodily injury by accident
$500,000 bodily injury by disease
General Public Liability, $1,000,000 each person,
including Product Liability, $1,000,000 each incident
Injury and Liquor Liability $2,000,000 aggregate
Fire and Extended Coverage Full replacement value
Umbrella Liability Insurance $10,000,000
Franchisee shall, upon request, exhibit certificates of such insurance to
Franchisor. The insurance afforded by the policy or policies respecting public
liability shall not be limited in any way by reason of any insurance which may
be maintained by Franchisor.
16.2 Within sixty (60) days after the execution of this Agreement,
but in no event later than the day before the Restaurant opens for business,
Franchisee shall submit to Franchisor for approval certificates of insurance
showing compliance with the requirements of Subsection 16.1. Notwithstanding the
foregoing, Franchisee shall submit to Franchisor for approval certificates of
insurance showing compliance with the worker's compensation requirements set
forth in Subsection 16.1 prior to the training of any Franchisee employee at a
Restaurant operated by Franchisor. Maintenance of such insurance and the
performance by Franchisee of its obligations under this Section 16 shall not
relieve Franchisee of liability under the indemnity provisions of this
Agreement, and shall not limit such liability.
16.3 Should Franchisee, for any reason, fail to procure or maintain
the insurance coverage required by this Section, then Franchisor shall have the
right and authority to immediately procure such insurance coverage and to charge
the cost thereof to Franchisee, which amounts shall be paid immediately upon
notice and shall be subject to charges for late payments in the manner set forth
in Subsection 9.2.
16.4 No later than thirty (30) days following Franchisee's receipt of
same, Franchisee shall submit to Franchisor a copy of any written report
relating to the condition of the Restaurant premises, or any aspect thereof,
prepared by an insurer or prospective insurer or by a representative of a
federal, state or local government agency, provided that if any such report
contains comments or information which could materially and detrimentally affect
the Restaurant, such report shall be submitted to Franchisor within three (3)
days following Franchisee's receipt thereof.
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17. DEBTS AND TAXES
Franchisee shall pay or cause to be paid promptly when due all
obligations incurred, directly or indirectly, in connection with the Restaurant
and its operation, including, without limitation, (a) all taxes and assessments
that may be assessed against the Restaurant land, building and other
improvements, equipment, fixtures, signs, furnishings, and other property; (b)
all liens and encumbrances of every kind and character created or placed upon or
against any of said property, and; (c) all accounts and other indebtedness of
every kind and character incurred by or on behalf of Franchisee in the conduct
of the Restaurant business. Notwithstanding the foregoing, Franchisee will not
be in default of this Agreement as a result of a non-payment or non-performance
of the foregoing so long as it disputes said debt or lien and is, in the sole
opinion of Franchisor, validly and in good faith pursuing a resolution of said
claim or lien and has reserved sufficient sums to pay the debt/claim as is
agreed to by Franchisor.
18. TRADE NAMES, SERVICE MARKS AND TRADEMARKS
18.1 Franchisee acknowledges the sole and exclusive right of
Franchisor (except for rights granted under existing and future franchise
agreements) to use Franchisor's trade names, service marks and trademarks in
connection with the products and services to which they are or may be applied by
Franchisor, and represents, warrants and agrees that Franchisee shall not,
either during the term of this Agreement, or after the expiration or other
termination hereof, directly or indirectly, contest or aid in contesting the
validity, ownership or use thereof by Franchisor, or take any action whatsoever
in derogation of the rights claimed herein by Franchisor.
18.2 The right granted to Franchisee under this Agreement to use
Franchisor's trade names, service marks and trademarks is nonexclusive, and
Franchisor, in its sole discretion, subject only to the limitations contained in
Subsection 1.4 of this Agreement, has the right to grant other rights in, to and
under those names and marks in addition to those rights already granted, and to
develop and grant rights in other names and marks on any such terms and
conditions as Franchisor deems appropriate. The rights granted under this
Agreement do not include any right or authority of any kind whatsoever to
pre-package or sell pre-packaged food products, under any of Franchisor's names
or marks, or any menu items approved for sale at the Restaurant, whether at the
Restaurant or at any other location.
18.3 Franchisee understands and acknowledges and agrees that
Franchisor has the unrestricted right, subject only to the limitations contained
in Subsection 1.4 of this Agreement, to engage, directly and indirectly, through
its employees, representatives, licenses, assigns, agents, affiliates,
subsidiaries and others, at wholesale, retail, and otherwise, in (a) the
production, distribution and sale of products under the names and marks licensed
hereunder or other names or marks, (b) the use, in connection with such
production, distribution and sale, of any and all trademarks, trade names,
service marks, logos, insignia, slogans, emblems, symbols, designs and other
identifying characteristics as may be developed or used, from time to time, by
Franchisor with respect to the System or otherwise, and (c) the production,
distribution and sale of products through another restaurant or restaurants
which do not utilize the System or the Xxxxxxxx'x Neighborhood Grill & Bar
service xxxx and which otherwise compete or might compete with the Restaurant.
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18.4 Nothing contained in this Agreement shall be construed to vest
in Franchisee any right, title or interest in or to any of Franchisor's names or
marks, the goodwill now or hereafter associated therewith, or any right in the
design of any restaurant building or premises, or the decor or trade-dress of
the Restaurant, other than the rights and license expressly granted herein for
the term hereof. Any and all goodwill associated with or identified by any of
Franchisor's names or marks shall inure directly and exclusively to the benefit
of Franchisor, including, without limitation, any goodwill resulting from
operation and promotion of the Restaurant, provided that this Subsection shall
not be construed to entitle Franchisor to receive any portion of the
consideration paid to Franchisee and/or any Principal Shareholder as a result of
a Transfer of an Interest pursuant to Section 12 hereof.
18.5 Franchisee shall adopt and use Franchisor's names and marks only
in a manner expressly approved by Franchisor, and shall not use any of
Franchisor's names or marks in connection with any statement or material which
may, in the judgment of Franchisor, be in bad taste or inconsistent with
Franchisor's public image, or tend to bring disparagement, ridicule or scorn
upon Franchisor, any of Franchisor's names or marks, or the goodwill associated
therewith. Franchisee shall not adopt, use or register as its corporate name (by
filling a certificate or articles of incorporation or otherwise) any trade or
business name, style or design which includes, or is similar to, any of
Franchisor's trademarks, service marks, trade names, logos, insignia, slogans,
emblems, symbols, designs or other identifying characteristics.
18.6 Franchisor shall have the right, at any time and from time to
time, upon notice to Franchisee, to make additions to, deletions from and
changes in any of Franchisor's names or marks, or all of them, all of which
additions, deletions and changes shall be made in good faith, on a reasonable
basis and with a view toward the overall best interests of the System.
Franchisor will use its best efforts to protect and preserve the integrity and
validity of Franchisor's names and marks, including the taking of actions deemed
by Franchisor to be appropriate in the event of any apparent infringement of any
of Franchisor's names or marks.
18.7 (a) Franchisor shall hold Franchisee harmless from any liability
or expense (but excluding consequential damages) resulting from infringement of
a third party's service xxxx, trade name or trademark by Franchisor's service
xxxx, Xxxxxxxx'x Neighborhood Grill & Bar, or by any other service xxxx,
trademark or trade name of Franchisor which Franchisor shall designate as part
of the System. This hold-harmless indemnity shall not apply to any unauthorized
use by Franchisee of any such service xxxx, trade name or trademark.
(b) Franchisee agrees to notify Franchisor promptly in
writing of any suit or claim for infringement which is within the scope of the
hold-harmless indemnity set forth in this Subsection 18.7. Subject to the terms
and conditions of this Subsection 18.7, Franchisor shall have the sole right to
defend or settle any such suit or claim of infringement at Franchisor's expense.
Franchisee, at Franchisee's expense, shall have the right to be represented by
counsel. Franchisor shall, however, retain control of any negotiations with
respect to such claim or of any litigation involving such suit. Franchisee
agrees to cooperate with Franchisor and to assist Franchisor whenever reasonably
requested by Franchisor, at Franchisor's expense, in the defense of any such
infringement suit or claim. Franchisee shall not enter into any settlement of
any such claim or suit or conduct any settlement negotiations relative thereto
without the prior approval of Franchisor in writing and, if Franchisee does so,
the hold-harmless indemnity set forth in this Subsection 18.7 shall be deemed to
have been waived and released in all respects.
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18.8 Franchisor represents that it is the sole owner of the service
xxxx Xxxxxxxx'x Neighborhood Grill & Bar. In the event that Franchisee is
precluded from operating the Restaurant because Franchisor determines that a
third person has acquired rights under the law of any state in such xxxx, which
so precludes Franchisee, Franchisor agrees (a) to repay to Franchisee the
initial franchise fee paid by Franchisee with respect to the Restaurant, and (b)
to assist Franchisee, at Franchisee's request, in locating an alternative site
for the Restaurant.
19. EXPIRATION AND TERMINATION;
OPTION TO PURCHASE RESTAURANT; ATTORNEYS' FEES
19.1 Franchisor shall have the right to terminate this Agreement
immediately upon written notice to Franchisee stating the reason for such
termination:
(a) in the event of any breach or default of any of the provisions
of Subsection 9.1, Sections 12 or 13, Subsection 14.1 or Section 23;
(b) if a petition in bankruptcy, an arrangement for the benefit of
creditors, or a petition for reorganization is filed by Franchisee, or is
filed against Franchisee and not dismissed within ninety (90) days from
the filing thereof, or if Franchisee shall make any assignment for the
benefit of creditors, or if a receiver or trustee is appointed for
Franchisee and is not dismissed within ninety (90) days of such
appointment;
(c) if Franchisee ceases to operate the Restaurant without the prior
written consent of Franchisor or loses its right to possession of the
Restaurant premises; provided however, this provision will not apply if
Franchisee ceases to operate the Restaurant or loses its right to
possession of the Restaurant premises by reason of Force Majeure and
Franchisee complies with the requirements of Section 24 of this
Agreement;
(d) if Franchisor discovers that Franchisee has made any material
misrepresentation or omitted any material fact in the information which
was furnished to Franchisor in connection with this Agreement;
(e) if any part of this Agreement relating to the payment of fees to
Franchisor, or the preservation of any of Franchisor's trade names,
service marks, trademarks, trade secrets or secret formulae licensed or
disclosed hereunder is, for any reason, declared invalid or
unenforceable; or
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(f) if Franchisee or any Principal Shareholder is convicted of or
pleads nolo contendere to a felony or any crime involving moral
turpitude.
If Franchisee defaults in the performance or observance of any of its
other obligations hereunder, and such default continues for a period of sixty
(60) days after written notice to Franchisee specifying such default, Franchisor
shall have the right to terminate this Agreement upon thirty (30) days written
notice to Franchisee. If Franchisee defaults in the performance or observance of
the same obligation two (2) or more times within a twelve (12) month period,
Franchisor shall have the right to terminate this Agreement immediately upon
commission of the second act of default, upon thirty (30) days written notice to
Franchisee stating the reason for such termination, without allowance for any
curative period.
The foregoing provisions of this Subsection 19.1 are subject to the
provisions of any local statutes or regulations which limit the grounds upon
which Franchisor may terminate this Agreement, or which require that Franchisor
give Franchisee additional prior written notice of termination and opportunity
to cure any default.
In the event of termination by reason of Franchisee's failure after a
good faith effort to obtain the necessary state or local liquor licenses (as
required in Section 23), Franchisor shall refund to Franchisee, without
interest, the franchise fee payment referred to in Subsection 9.1(a), less any
expenses incurred and damages sustained by Franchisor in connection with its
performance hereunder prior to the date of such termination. Franchisor shall
also repay the initial franchise fee in the circumstances described in
Subsection 18.8 hereof. In the event of termination for any other reason,
Franchisor shall have no obligation to refund any amount previously paid by
Franchisee, and Franchisee shall be obligated to promptly pay all sums which are
then due Franchisor.
19.2 Upon the termination of this Agreement by Franchisor, Franchisee
may not remove any property from the Restaurant premises for thirty (30) days
after the termination. Upon the expiration or earlier termination of this
Agreement for any reason:
(a) Franchisee shall immediately discontinue its use of the System
and its use of Franchisor's trade names, service marks, trademarks,
logos, insignia, slogans, emblems, symbols, designs and other identifying
characteristics;
(b) if the Restaurant premises are owned by Franchisee or leased
from a third party, Franchisee shall, upon demand by Franchisor, remove
(at Franchisee's expense) Franchisor's trade names, service marks,
trademarks, logos, insignia, slogans, sign facia, emblems, symbols,
designs and other identifying characteristics from all premises, and
paint all premises and other improvements maintained pursuant to this
Agreement a design and color which is basically different from
Franchisor's authorized design and color. If Franchisee shall fail to
make or cause to be made any such removal or repainting within thirty
(30) days after written notice, then Franchisor shall have the right to
enter upon the Restaurant premises, without being deemed guilty of
trespass or any tort (or Franchisee shall cause Franchisor to be
permitted on the premises as necessary), and make or cause to be made
such removal, alterations and repainting at the reasonable expense of
Franchisee, which expense Franchisee shall pay to Franchisor immediately
upon demand; and
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(c) Franchisee shall not thereafter use any trademark, trade name,
service xxxx, logo, insignia, slogan, emblem, symbol, design or other
identifying characteristic that is in any way associated with Franchisor
or similar to those associated with Franchisor, or use any food or
proprietary menu item, recipe or method of food preparation or operate or
do business under any name or in any manner that might tend to give the
public the impression that Franchisee is or was a licensee or franchisee
of, or otherwise associated with, Franchisor.
19.3 In the event that any party to this Agreement initiates any
legal proceeding to construe or enforce any of the terms, conditions and/or
provisions of this Agreement, including, but not limited to, its termination
provisions and its provisions requiring Franchisee to make certain payments to
Franchisor incident to the operation of the Restaurant, or to obtain damages or
other relief to which any such party may be entitled by virtue of this
Agreement, the prevailing party or parties shall be paid its reasonable
attorneys' fees and expenses by the other party or parties. If Franchisee fails
to comply with a written notice of termination sent by Franchisor and a court
later upholds such termination of this Agreement, Franchisee's operation of the
Restaurant, from and after the date of termination stated in such notice, shall
constitute willful trademark infringement and unfair competition by Franchisee,
and Franchisee shall be liable to Franchisor for damages resulting from such
infringement in addition to any fees paid or payable hereunder, including,
without limitation, any profits which Franchisee derived from such
post-termination operation of the Restaurant.
19.4 (a) With respect to Restaurant premises owned by Franchisee, in
the event of termination of this Agreement, Franchisor shall have, for thirty
(30) days after the termination is effective, an option, exercisable upon
written notice to Franchisee within such thirty (30) day period, to elect to
purchase the Restaurant premises from Franchisee for the fair market value of
the land and buildings, furnishings and equipment located therein.
(b) In addition to the option described above, Franchisor
shall have an option, exercisable upon written notice to Franchisee, to elect to
purchase the Restaurant premises from Franchisee upon expiration of this
Agreement for the fair market value of the land and buildings, furnishings, and
equipment located therein subject to Franchisee's option to operate the
Restaurant for an additional term under Subsection 1.3 hereof. If Franchisee
does not notify Franchisor, pursuant to Subsection 1.3 hereof, of a desire to
operate the Restaurant for an additional term, then Franchisor shall provide the
written notice described in the preceding sentence within thirty (30) days after
the latest date by which Franchisee is required by Subsection 1.3 to advise
Franchisor of such a desire; if Franchisee does notify Franchisor of a desire to
operate the Restaurant for an additional term and Franchisor determines that
Franchisee is not eligible to do so, Franchisor shall provide the written notice
described in the preceding sentence within thirty (30) days of its written
notice to Franchisee that Franchisee is not eligible to operate the Restaurant
for such additional term. With respect to the option to purchase upon expiration
of this Agreement, this option shall not apply if prior to thirty (30) days
before said expiration, Franchisee enters into an agreement to sell such
Restaurant premises to a third party upon the expiration of the Franchise
Agreement, provided that Franchisee's agreement with the purchaser includes a
covenant by the purchaser, which is expressly enforceable by Franchisor as a
third-party beneficiary thereof, pursuant to which the purchaser agrees that,
for a period of twelve (12) months after the expiration of this Agreement, the
purchaser shall not use such premises for the operation of a restaurant business
whose menu or method of operation is similar to that employed by restaurant
units within the System.
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(c) If Franchisee receives approval to operate the Restaurant
premises for an additional term in accordance with Subsection 1.3 hereof,
Franchisee will be required to execute the then-existing form of franchise
agreement, which shall contain an option to obtain assignment of Franchisee's
lease with a third party and/or to purchase certain property, exercisable by
Franchisor upon termination thereof, and an option to purchase the Restaurant
premises, exercisable by Franchisor upon expiration of the additional term
(subject to any then-existing rights to renew of Franchisee). Such options shall
be substantially similar to the provisions described in this Subsection 19.4.
(d) If the parties cannot agree on the purchase price or
other terms of purchase within thirty (30) days following Franchisor's exercise
of its option pursuant to Subsection 19.4(a) and (b), the price or disputed
terms of purchase shall be determined by three (3) appraisers, with each party
selecting one (1) appraiser and the two (2) appraisers, so chosen, selecting the
third appraiser. In the event of such an appraisal, each party shall bear its
own legal and other costs and shall split equally the appraisal fees. The
appraisers' determination of the price and other disputed terms of purchase
shall be final and binding.
(e) If Franchisor elects to exercise its option to purchase
upon termination of this Agreement, the purchase price shall be paid within
thirty (30) days of the determination of the purchase price and other terms of
purchase. If Franchisor elects to exercise its option to purchase upon
expiration of this Agreement, the purchase price shall be paid within thirty
(30) days of the later of (a) the determination of the purchase price and other
terms of purchase, or (b) expiration of this Agreement. If the Franchisor does
not elect to exercise its option to purchase the Restaurant premises, the
Franchisee may sell such premises to a third party, provided that Franchisee's
agreement with the purchaser includes a covenant by the purchaser, which is
expressly enforceable by Franchisor as a third-party beneficiary thereof,
pursuant to which the purchaser agrees that it shall not use such premises for
the operation of a restaurant business whose menu or method of operation is
similar to that employed by restaurant units within the System for a period of
twelve (12) months after the termination or expiration of this Agreement.
(f) If the Restaurant premises are leased by Franchisee from
a third party, such lease must allow Franchisee to assign the lease to
Franchisor. Upon termination of this Agreement for any reason, Franchisor has
the right, exercisable upon written notice to Franchisee within thirty (30) days
after termination is effective, to require Franchisee to assign all Franchisee's
rights and obligations under the lease to Franchisor and to immediately
surrender possession of the premises, including all fixtures and leasehold
improvements, to Franchisor. The lessor may not impose any assignment fee or
other similar charge on Franchisor in connection with such assignment. If
Franchisor exercises that right, it has an additional right, to be exercised
within thirty (30) days after taking possession of the premises, to purchase all
of Franchisee's equipment, signs, decor items, furnishings, supplies and other
products and materials at their then-fair market value. If the parties cannot
agree on the price, the price will be determined in the manner set forth in
connection with Franchisee-owned Restaurant premises. If Franchisor elects not
to purchase the items mentioned above, Franchisee shall, at Franchisee's own
expense and under Franchisor's supervision remove those items from the premises
within ten (10) days after such final election, or ten (10) days after
expiration of the option period, whichever is earlier. If Franchisee fails to
remove all such property from the premises within such period, Franchisor shall
be entitled to do so, or to authorize a third party to do so, all at
Franchisee's expense.
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19.5 In addition to the provisions contained in Subsection 19.4 hereof:
(a) With respect to Restaurant premises owned by Franchisee, in the
event of termination of this Agreement and Franchisor's exercise of its
option to purchase the Restaurant premises pursuant to Subsection 19.4(a)
hereof, Franchisee shall have, for ten (10) days after its receipt of
written notice of Franchisor's election to purchase, an option,
exercisable upon written notice to Franchisor, to lease said premises to
Franchisor, pursuant to a lease which provides for rental at a rate not
in excess of six percent (6%) of gross sales and triple net terms. Said
lease shall provide for a lease term of at least ten (10) years with two
(2) five (5)-year options to renew, and for primary annual rent of not in
excess of the number derived from multiplying six percent (6%) times the
gross sales reported by Franchisee to Franchisor for which Franchisee has
paid a royalty fee for the next preceding calendar year times eighty
percent (80%).
(b) In addition to the option described above, Franchisee shall have
an option, exercisable upon written notice to Franchisor, to elect to
lease the Restaurant premises to Franchisor upon expiration of this
Agreement and Franchisor's exercise of its option to purchase the
Restaurant premises pursuant to Subsection 19.4(b) hereof, pursuant to
the same terms set forth in Subsection 19.5(a) above, subject to
Franchisee's option to operate the Restaurant for an additional term
under Subsection 1.3 hereof. If (i) Franchisee does not notify
Franchisor, pursuant to Subsection 1.3 hereof, of a desire to operate the
Restaurant for an additional term, or (ii) Franchisee does notify
Franchisor of a desire to operate the Restaurant for an additional term
and Franchisor determines that Franchisee is not eligible to do so, and
Franchisor exercises its option to purchase the Restaurant premises, then
Franchisee shall provide the written notice described in the preceding
sentence within ten (10) days after its receipt of written notice of
Franchisor's election to purchase. With respect to the option to lease
upon expiration of this Agreement, this option shall not apply if prior
to thirty (30) days before said expiration, Franchisee enters into an
agreement to sell such Restaurant premises to a third party upon the
expiration of the Franchise Agreement, provided that Franchisee's
agreement with the purchaser includes a covenant by the purchaser, which
is expressly enforceable by Franchisor as a third-party beneficiary
thereof, pursuant to which the purchaser agrees, at Franchisor's option,
either to lease said premises to Franchisor upon the terms set forth in
Subsection 19.5(a), or that for a period of twelve (12) months after the
expiration of this Agreement, the purchaser shall not use such premises
for the operation of a restaurant business whose menu or method of
operation is similar to that employed by restaurant units within the
System.
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(c) If Franchisee receives approval to operate the Restaurant
premises for an additional term in accordance with Subsection 1.3 hereof,
Franchisee will be required to execute the then-existing form of
franchise agreement which shall contain an option to obtain assignment of
Franchisee's lease with a third party and/or to lease certain property,
exercisable by Franchisor upon termination thereof, and an option to
lease the Restaurant premises, exercisable by Franchisor upon expiration
of the additional term (subject to any then-existing rights to renew of
Franchisee). Such options shall be substantially similar to the
provisions described in this Subsection 19.5.
20. NO WAIVER OF DEFAULT
20.1 The waiver by any party to this Agreement of any breach or
default, or series of breaches or defaults, of any term, covenant or condition
herein, or of any same or similar term, covenant or condition contained in any
other agreement between Franchisor and any franchisee, shall not be deemed a
waiver of any subsequent or continuing breach or default of the same or any
other term, covenant or condition contained in this Agreement, or in any other
agreement between Franchisor and any franchisee.
20.2 All rights and remedies of the parties hereto shall be
cumulative and not alternative, in addition to and not exclusive of any other
rights or remedies which are provided for herein or which may be available at
law or in equity in case of any breach, failure or default or threatened breach,
failure or default of any term, provision or condition of this Agreement. The
rights and remedies of the parties hereto shall be continuing and shall not be
exhausted by any one (1) or more uses thereof, and may be exercised at any time
or from time to time as often as may be expedient; and any option or election to
enforce any such right or remedy may be exercised or taken at any time and from
time to time. The expiration or earlier termination of this Agreement shall not
discharge or release Franchisee or any Principal Shareholder from any liability
or obligation then accrued, or any liability or obligation continuing beyond, or
arising out of, the expiration or earlier termination of the Agreement.
21. CONSTRUCTION, SEVERABILITY,
GOVERNING LAW AND JURISDICTION
21.1 If any part of this Agreement shall for any reason be declared
invalid, unenforceable or impaired in any way, the validity of the remaining
portions shall remain in full force and effect as if the Agreement had been
executed with such invalid portion eliminated, and it is hereby declared the
intention of the parties that they would have executed the remaining portion of
this Agreement without including therein any such portions which might be
declared invalid; provided however, that in the event any part hereof relating
to the payment of fees to Franchisor, or the preservation of any of Franchisor's
trade names, service marks, trademarks, trade secrets or secret formulae
licensed or disclosed hereunder is for any reason declared invalid or
unenforceable, then Franchisor shall have the right to terminate this Agreement
upon written notice to Franchisee. If any clause or provision herein would be
deemed invalid or unenforceable as written, it shall be deemed modified or
limited to such extent or in such manner as may be necessary to render the
clause or provision valid and enforceable to the greatest extent possible in
light of the interest of the parties expressed in that clause or provision,
subject to the provisions of the preceding sentence.
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21.2 FRANCHISEE AND PRINCIPAL SHAREHOLDERS ACKNOWLEDGE THAT
FRANCHISOR MAY GRANT NUMEROUS FRANCHISES THROUGHOUT THE UNITED STATES ON TERMS
AND CONDITIONS SIMILAR TO THOSE SET FORTH IN THIS AGREEMENT, AND THAT IT IS OF
MUTUAL BENEFIT TO FRANCHISEE AND PRINCIPAL SHAREHOLDERS AND TO FRANCHISOR THAT
THESE TERMS AND CONDITIONS BE UNIFORMLY INTERPRETED. THEREFORE, THE PARTIES
AGREE THAT TO THE EXTENT THAT THE LAW OF THE STATE OF KANSAS DOES NOT CONFLICT
WITH LOCAL FRANCHISE STATUTES, RULES AND REGULATIONS, KANSAS LAW SHALL APPLY TO
THE CONSTRUCTION OF THIS AGREEMENT AND SHALL GOVERN ALL QUESTIONS WHICH ARISE
WITH REFERENCE HERETO; PROVIDED HOWEVER, THAT PROVISIONS OF KANSAS LAW REGARDING
CONFLICTS OF LAW SHALL NOT APPLY HERETO.
21.3 THE PARTIES AGREE THAT ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE PERFORMANCE THEREOF WHICH CANNOT BE
AMICABLY SETTLED, EXCEPT AS OTHERWISE PROVIDED HEREIN, MAY, AT THE OPTION OF THE
CLAIMANT, BE RESOLVED BY A PROCEEDING IN A COURT IN XXXXXXX COUNTY, KANSAS, AND
FRANCHISEE AND PRINCIPAL SHAREHOLDERS EACH IRREVOCABLY ACCEPT THE JURISDICTION
OF THE COURTS OF THE STATE OF KANSAS AND THE FEDERAL COURTS SERVING XXXXXXX
COUNTY, KANSAS FOR SUCH CLAIMS, CONTROVERSIES OR DISPUTES.
The parties agree that service of process in any proceeding arising
out of or relating to this Agreement or the performance thereof may be made as
to Franchisee and any Principal Shareholder by serving a person of suitable age
and discretion (such as the person in charge of the office) at the address of
Franchisee specified in this Agreement and as to Franchisor by serving the
president or a vice-president of Franchisor at the address of Franchisor or by
serving Franchisor's registered agent.
22. INTERFERENCE WITH EMPLOYMENT RELATIONS
During the term of this Agreement, neither Franchisor nor Franchisee
shall employ or seek to employ in a managerial position (i.e., in a position at
a pay grade at or above that of Assistant Restaurant Manager or Kitchen
Manager), directly or indirectly, any person who is at the time or was at any
time during the prior six (6) months employed by the other party or any of its
subsidiaries or affiliates, or by any franchisee in the System. This section
shall not be violated if, at the time Franchisor or Franchisee employs or seeks
to employ such person, such former employer has given its written consent.
Notwithstanding any other provision of this Agreement, the parties hereto
acknowledge that if this Section is violated, such former employer shall be
entitled to liquidated damages equal to three (3) times the annual salary of the
employee involved, plus reimbursement of all costs and attorneys' fees incurred.
In addition to the rights granted to the parties hereto, the parties acknowledge
and agree that any franchisee from which an employee was hired by either party
to this Agreement in violation of the terms of this Section shall be deemed to
be a third-party beneficiary of this provision and may xxx and recover against
the offending party the liquidated damages herein set forth; provided however,
the failure by Franchisee to enforce this Section shall not be deemed to be a
violation of this Section.
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23. LIQUOR LICENSE
The grant of the rights which are the subject of this Agreement is
expressly conditioned upon the ability of the Franchisee to obtain and maintain
any and all required state and/or local licenses permitting the sale of liquor
by the drink on the Restaurant premises, and Franchisee agrees to use its best
efforts to obtain such licenses. In the event Franchisee fails, after a good
faith effort, to obtain any and all such required liquor licenses prior to the
date on which the Restaurant is otherwise ready to open for business, then, at
the option of the Franchisor, this Agreement may be terminated forthwith by
Franchisor upon written notice to Franchisee, in which event, Franchisor shall
refund to Franchisee, without interest, the initial franchise fee payment
referred to in Subsection 9.1, less any expenses incurred and damages sustained
by Franchisor in connection with its performance hereunder prior to the date of
such termination. After obtaining the necessary state or local liquor licenses,
Franchisee shall thereafter comply with all applicable laws and regulations
relating to the sale of liquor on the Restaurant premises. If, during any twelve
(12) month period during the term of this Agreement, Franchisee is prohibited
for any reason from selling liquor on the Restaurant premises for more than
thirty (30) days because of a violation or violations of state or local liquor
laws, then at the option of Franchisor this Agreement may be terminated
forthwith by Franchisor upon written notice to Franchisee.
24. FORCE MAJEURE
24.1 As used in this Agreement, the term "Force Majeure" shall mean
any act of God, strike, lock-out or other industrial disturbance, war (declared
or undeclared), riot, epidemic, fire or other catastrophe, act of any government
and any other similar cause not within the control of the party affected
thereby.
24.2 If the performance of any obligation by any party under this
Agreement is prevented or delayed by reason of Force Majeure, which cannot be
overcome by use of normal commercial measures, the parties shall be relieved of
their respective obligations to the extent the parties are respectively
necessarily prevented or delayed in such performance during the period of such
Force Majeure. The party whose performance is affected by an event of Force
Majeure shall give prompt notice of such Force Majeure event to the other party
by facsimile, telephone or telegram (in each case to be confirmed in writing),
setting forth the nature thereof and an estimate as to its duration, and shall
be liable for failure to give such timely notice only to the extent of damage
actually caused.
35
24.3 Notwithstanding the provisions of this Section 24, if, as a
result of an event of Force Majeure (including condemnation proceedings), the
Franchisee ceases to operate the Restaurant or loses the right to possession of
the Restaurant premises, Franchisee shall apply within thirty (30) days after
the event of Force Majeure for Franchisor's approval to relocate and/or
reconstruct the Restaurant. If relocation is necessary, Franchisor agrees to use
its reasonable efforts to assist Franchisee in locating an alternative site in
the same general area where Franchisee can operate a Restaurant within the
System for the balance of the term of the Franchise Agreement. If Franchisor so
assists Franchisee, Franchisee shall reimburse Franchisor for its reasonable
out-of-pocket expenses incurred as a result thereof. (This provision shall not
be construed to prevent Franchisee from receiving the full amount of any
condemnation award of damages relating to the closing of the Restaurant;
provided however, that if Franchisor or an affiliate is the lessor of the
Restaurant premises, Franchisee specifically waives and releases any claim it
may have for the value of any building, fixtures and other improvements on the
premises, whether or not installed or paid for by the Franchisee, and Franchisee
agrees to subordinate any claim it may have to Franchisor's claim for such
improvements.) Selection of an alternative location will be subject to the site
approval procedures set forth in Section 5 of the Development Agreement. Once
Franchisee has obtained Franchisor's approval to relocate and/or reconstruct the
Restaurant, Franchisee must diligently pursue relocation and/or reconstruction
until the Restaurant is reopened for business.
25. MISCELLANEOUS
25.1 All notices and other communications required or permitted to be
given hereunder shall be deemed given when delivered in person, by overnight
courier service, facsimile transmission or mailed by registered or certified
mail addressed to the recipient at the address set forth below, unless that
party shall have given written notice of change of address to the sending party,
in which event the new address so specified shall be used.
FRANCHISOR: Xxxxxxxx'x International, Inc.
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: President
FRANCHISEE:
PRINCIPAL SHAREHOLDERS
36
25.2 All terms used in this Agreement, regardless of the number and
gender in which they are used, shall be deemed and construed to include any
other number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context or sense of this Agreement may require, the same as if
such words had been written in this Agreement themselves. The headings inserted
in this Agreement are for reference purposes only and shall not affect the
construction of this Agreement or limit the generality of any of its provisions.
The term "business day" means any day other than Saturday, Sunday, or the
following national holidays: New Year's Day, Xxxxxx Xxxxxx Xxxx Day,
Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans' Day, Thanksgiving and Christmas.
25.3 Franchisee shall, at its own cost and expense, promptly comply
with all laws, ordinances, orders, rules, regulations and requirements of all
federal, state and municipal governments and appropriate departments,
commissions, boards and offices thereof. Without limiting the generality of the
foregoing, Franchisee shall abide by all applicable rules and regulations of any
public health department.
25.4 In the event that Franchisor has leased the Restaurant premises
to Franchisee pursuant to a written lease agreement (the "Lease"), the Lease is
hereby incorporated in this Agreement by reference, and any failure on the part
of Franchisee (Lessee therein) to perform, fulfill or observe any of the
covenants, conditions or agreements contained in the Lease shall constitute a
material breach of this Agreement. It is expressly understood, acknowledged and
agreed by Franchisee that any termination of the Lease shall result in automatic
and immediate termination of this Agreement without additional notice to
Franchisee.
25.5 This Agreement and the documents referred to herein constitute
the entire agreement between the parties, superseding and canceling any and all
prior and contemporaneous agreements, understandings, representations,
inducements and statements, oral or written, of the parties in connection with
the subject matter hereof. FRANCHISEE EXPRESSLY ACKNOWLEDGES THAT IT HAS ENTERED
INTO THIS FRANCHISE AGREEMENT AS A RESULT OF ITS OWN INDEPENDENT INVESTIGATION
AND AFTER CONSULTATION WITH ITS OWN ATTORNEY, AND NOT AS A RESULT OF ANY
REPRESENTATIONS OF FRANCHISOR, ITS AGENTS, OFFICERS OR EMPLOYEES, EXCEPT AS
CONTAINED HEREIN AND IN FRANCHISOR'S FRANCHISE OFFERING CIRCULAR, HERETOFORE
MADE AVAILABLE TO FRANCHISEE.
25.6 Except as expressly authorized herein, no amendment or
modification of this Agreement shall be binding unless executed in writing both
by Franchisor and by Franchisee and Principal Shareholders.
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26. ACKNOWLEDGMENTS
Franchisee and Principal Shareholders acknowledge that:
(a) Franchisee has received a copy of this Agreement and has had an
opportunity to consult with its attorney with respect thereto at least
five (5) business days prior to execution of this Agreement;
(b) No representation has been made by Franchisor as to the future
profitability of the Restaurant;
(c) Prior to the execution of this Agreement, Franchisee has had
ample opportunity to contact Franchisor's existing franchisees, if any,
and to investigate all statements made by Franchisor relating to the
System;
(d) This Agreement establishes the right to construct and operate a
Restaurant only at the location specified in Subsection 1.1 hereof; and
(e) Franchisor is the sole owner of the service marks identified in
this Agreement, and of the goodwill associated therewith, and Franchisee
acquires no right, title or interest in those names and marks other than
the right to use them only in the manner and to the extent prescribed and
approved by Franchisor.
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the
date first above written.
FRANCHISOR:
ATTEST: XXXXXXXX'X INTERNATIONAL, INC.
By:
Name: Name:
Title: Title:
FRANCHISEE:
ATTEST:
By:
Name: Name:
Title: Title:
PRINCIPAL SHAREHOLDER(S):
Witness Name:
Witness Name:
Witness Name:
Witness Name:
38
EXHIBIT 1 TO FRANCHISE AGREEMENT
ROYALTY FEE
The monthly royalty fee to be paid by Franchisee shall be four percent
(4%) of each calendar month's gross sales; provided however, on and after
January 1, 2000, Franchisor may, in its sole discretion, increase the monthly
royalty fee to five percent (5%) of each calendar month's gross sales.
APPENDIX A TO FRANCHISE AGREEMENT
STATEMENT OF OWNERSHIP INTERESTS
Percent of Issued
and Outstanding
Shareholder Shares of Franchisee
APPENDIX B TO FRANCHISE AGREEMENT
REVIEW AND CONSENT WITH RESPECT TO TRANSFERS
In determining whether to grant or to withhold consent to a
proposed Transfer, Franchisor shall consider all of the facts and circumstances
which it views as relevant in the particular instance, including, but not
limited to, any of the following: (i) work experience and aptitude of Proposed
New Owner and/or proposed new management (a proposed transferee of a Principal
Shareholder's Interest and/or a proposed transferee of this Agreement is
referred to as "Proposed New Owner"); (ii) financial background and condition of
Proposed New Owner, and actual and pro forma financial condition of Franchisee;
(iii) character and reputation of Proposed New Owner; (iv) conflicting interests
of Proposed New Owner; (v) the terms and conditions of Proposed New Owner's
rights, if the proposed Transfer is a pledge or hypothecation; (vi) the adequacy
of Franchisee's operation of any Restaurant and compliance with the System and
this Agreement; and (vii) such other criteria and conditions as Franchisor shall
then consider relevant in the case of an application for a new franchise to
operate a restaurant unit within the System by an applicant that is not then
currently doing so. Franchisor's consent also may be conditioned upon execution
by Proposed New Owner of an agreement whereby Proposed New Owner assumes full,
unconditional, joint and several liability for, and agrees to perform from the
date of such Transfer, all obligations, covenants and agreements contained
herein to the same extent as if it had been an original party to this Agreement
and may also require Franchisee and Principal Shareholders, including the
proposed Transferor(s), to execute a general release which releases Franchisor
from any claims they may have had or then have against Franchisor. In the event
Proposed New Owner is a partnership (including, but not limited to, a limited
partnership), Proposed New Owner will also be required to execute an addendum to
the Agreement which amends the references to Franchisee and its Principal
Shareholders to include the partnership approved by Franchisor and Proposed New
Owner's general partner(s) and the principal shareholders of the general
partner(s), if the general partner(s) is a corporation. This addendum will
contain a provision including in the definition of "Transfer" the withdrawal,
removal or voluntary/involuntary dissolution (if applicable) of the general
partner(s) or the substitution or addition of a new general partner. Franchisee
or Principal Shareholders, as the case may be, shall provide Franchisor with
such information as it may require in connection with a request for approval of
a proposed Transfer.
APPENDIX C TO FRANCHISE AGREEMENT
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made this ________ day of ________________,
19_______, by and between _______________________________________, a
_____________ corporation ("Developer"), and __________________________, an
individual employed by Developer ("Employee").
WITNESSETH:
WHEREAS, XXXXXXXX'X INTERNATIONAL, INC. ("Applebee's") is the
owner of all rights in and to a unique system for the development and operation
of restaurants (the "System"), which includes proprietary rights in valuable
trade names, service marks and trademarks, including the service xxxx Xxxxxxxx'x
Neighborhood Grill & Bar and variations of such xxxx, designs and color schemes
for restaurant premises, signs, equipment, procedures and formulae for preparing
food and beverage products, specifications for certain food and beverage
products, inventory methods, operating methods, financial control concepts, a
training facility and teaching techniques;
WHEREAS, Developer is the owner of the exclusive right to develop
restaurants franchised by Applebee's which utilize the System ("Restaurants")
for the period and in the territory described in the Development Agreement
between Applebee's and Developer (the "Development Agreement"); and
WHEREAS, Developer acknowledges that Applebee's information as
described above was developed over time at great expense, is not generally known
in the industry and is beyond Developer's own present skills and experience, and
that to develop it itself would be expensive, time-consuming and difficult, that
it provides a competitive advantage and will be valuable to Developer in the
development of its business, and that gaining access to it was therefore a
primary reason why Developer entered into the Development Agreement; and
WHEREAS, in consideration of Applebee's confidential disclosure to
Developer of these trade secrets, Developer has agreed to be obligated by the
terms of Development Agreement to execute, with each employee of Developer who
will have supervisory authority over the development or operation of more than
one Restaurant in the Territory described in the Development Agreement, a
written agreement protecting Applebee's trade secrets and confidential
information entrusted to Employee;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, the parties agree as follows:
(1) The parties acknowledge and agree that Employee is or will be
employed in a supervisory or managerial capacity and in such capacity will have
access to information and materials which constitute trade secrets and
confidential and proprietary information. The parties further acknowledge and
agree that any actual or potential direct or indirect competitor of Applebee's,
or of any of its franchisees, shall not have access to such trade secrets and
confidential information.
(2) The parties acknowledge and agree that the System includes
trade secrets and confidential information which Applebee's has revealed to
Developer in confidence, and that protection of said trade secrets and
confidential information and protection of Applebee's against unfair competition
from others who enjoy or who have had access to said trade secrets and
confidential information are essential for the maintenance of goodwill and
special value of the System.
(3) Employee agrees that he or she shall not at any time (i)
appropriate or use the trade secrets incorporated in the System, or any portion
thereof, for use in any business which is not within the System; (ii) disclose
or reveal any portion of the System to any person, other than to Developer's
employees as an incident of their training; (iii) acquire any right to use, or
to license or franchise the use of any name, xxxx or other intellectual property
right which is or may be granted by any franchise agreement between Applebee's
and Developer; or (iv) communicate, divulge or use for the benefit of any other
person or entity any confidential information, knowledge or know-how concerning
the methods of development or operation of a Restaurant which may be
communicated to Employee or of which Employee may be apprised by virtue of
Employee's employment by Developer. Employee shall divulge such confidential
information only to such of Developer's other employees as must have access to
that information in order to operate a Restaurant or to develop a prospective
site for a Restaurant. Any and information, knowledge and know-how, including,
without limitation, drawings, materials, equipment, specifications, techniques
and other data, which Applebee's designates as confidential, shall be deemed
confidential for purposes of this Agreement.
(4) Employee further acknowledges and agrees that the Franchise
Operations Manual and any other materials or manuals provided or made available
to Developer by Applebee's (collectively, the "Manuals"), described in Section 5
of the applicable franchise agreement between Applebee's and Developer, are
loaned by Applebee's to Developer for limited purposes only, remain the property
of Applebee's, and may not be reproduced, in whole or in part, without the
written consent of Applebee's.
(5) Employee agrees to surrender to Developer or to Applebee's
each and every copy of the Manuals and any other information or material in his
or her possession or control upon request, upon termination of employment or
upon completion of the use for which said Manuals or other information or
material may have been furnished to Employee.
(6) The parties agree that in the event of a breach of this
Agreement, Applebee's would be irreparably injured and would be without an
adequate remedy at law. Therefore, in the event of a breach or a threatened or
attempted breach of any of the provisions hereof, Applebee's shall be entitled
to enforce the provisions of this Agreement as a third-party beneficiary hereof
and shall be entitled, in addition to any other remedies which it may have
hereunder at law or in equity (including the right to terminate the Development
Agreement), to a temporary and/or permanent injunction and a decree for specific
performance of the terms hereof without the necessity of showing actual or
threatened damage, and without being required to furnish a bond or other
security.
(7) If any court or other tribunal having jurisdiction to
determine the validity or enforceability of this Agreement determines that it
would be invalid or unenforceable as written, the provisions hereof shall be
deemed to be modified or limited to such extent or in such manner necessary for
such provisions to be valid and enforceable to the greatest extent possible.
IN WITNESS WHEREOF, the undersigned have entered into this
Agreement as of the date first above written.
DEVELOPER EMPLOYEE
By: By:
Name: Name:
Title:
