EXHIBIT 10.5(1)
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AMENDED AND RESTATED
LICENSE AGREEMENT
THIS AMENDED AND RESTATED LICENSE AGREEMENT ("Agreement") is made and
entered into as of the 5th day of August, 1999, by and between UNIQUE RESTAURANT
CONCEPTS, INC., a Florida corporation ("Licensor"), and UNIQUE BRICKELL, LTD., a
Florida limited partnership ("Licensee").
WITNESSETH:
WHEREAS, Licensor and Licensee heretofore entered into that certain
License Agreement dated December 30, 1997 ("Original License Agreement") and now
desire to amend and restate the terms and conditions of their license
arrangement; and
WHEREAS, Licensor is the owner, originator and creator of a restaurant
concept known as "Max's Grille" (the "Restaurant"), which Restaurant utilizes
certain products, recipes, services, procedures, standards, techniques, trade
dress and other proprietary information (collectively, the "System"); and
WHEREAS, Licensor is the sole and exclusive owner of all proprietary
and other property rights and interests in and to the service xxxx, trade name
and logo: "Max's Grille," including all derivations thereof (the "Name"); and
WHEREAS, it is understood by the parties that Licensor operates
Restaurants in Florida, and may itself establish additional Restaurants and that
the success of Licensor's System will depend largely upon the acceptance and
confidence of the public in the quality and standards of all of Licensor's
establishments; and
WHEREAS, it is also understood by the parties that each Restaurant will
be dependent on each of the others to establish and maintain the good will
necessary for a successful operation, and therefore it is of benefit to, as well
as an obligation of, each licensee to conform strictly to the terms and
conditions of their respective license agreements, all of which are essential
for such purposes; and Licensor must demand and receive rigid compliance and the
maintenance of high, uniform standards of operation in order to insure the
mutual success of all licensees; and
WHEREAS, Licensee is desirous of retaining a license to use the Name
and the System in the operation of a Restaurant at the location hereinafter
identified;
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other valuable consideration, the receipt of which is
hereby acknowledged, it is understood and agreed between the parties hereto as
follows:
ARTICLE I
GRANT OF LICENSE
1.1 The recitals set forth above are hereby incorporated herein by
reference. The Original License Agreement is hereby superseded, in its entirety,
by this Agreement.
1.2 Licensor hereby grants to Licensee a non-exclusive license to use
the Name and the System in the operation of a Restaurant located in the space in
which it is presently located at Las Olas Riverfront, Fort Lauderdale, Florida
("Licensed Business").
1.3 During the "Term" (as hereinafter defined), and for a period of two
years after the Term, regardless of the reason of termination, Licensor shall
not, within an eight (8) mile radius of the Licensed Business, directly or
indirectly, own, manage, invest in or acquire any economic stake or interest, or
otherwise engage or participate in any manner whatsoever, including, without
limitation, as a partner, shareholder, investor, manager, owner, agent, lender,
borrower, guarantor, broker, independent contractor, consultant, advisor or
otherwise, in any business operating under the Name or the System; provided,
however, that the foregoing shall apply after the Term only if Licensee
continues to operate a restaurant at the location of the Licensed Business and,
provided further, that if the restaurant being operated by Licensee after the
Term is not similar, in food style, mix of food and beverage, and price, to a
Restaurant, then Licensor's covenant as aforedescribed shall be reduced to a
five (5) mile radius from the formerly Licensed Business.
1.4 Licensor covenants and agrees that during the Term and for a period
of two (2) years after the Term, it shall not in any manner, directly or
indirectly, as partner, shareholder, investor, manager, owner, agent, lender,
borrower, guarantor, broker, independent contractor, consultant, advisor or
otherwise, interfere with the business of Licensee by soliciting, hiring,
inducing, attempting to solicit or induce, by combining or conspiring with, or
attempting to do so, or in any other manner influencing any individuals that are
then current employees of Licensee to terminate his or her position or
relationship in order to become an employee for Licensor or its affiliates. For
purposes of the foregoing, Licensor shall not be in violation if Licensor or its
affiliates hire or otherwise engage any person who has not been employed by
Licensee for a period of sixty (60) days prior to such hiring or engagement.
1.5 Licensee covenants and agrees that during the Term and for a period
of two (2) years after the Term, it shall not in any manner, directly or
indirectly, as partner, shareholder, investor, manager, owner, agent, lender,
borrower, guarantor, broker, independent contractor, consultant, advisor or
otherwise, interfere with the business of
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Licensor or its affiliates by soliciting, inducing, attempting to solicit or
induce, by combining or conspiring with, or attempting to do so, or in any other
manner influencing any individuals that are then current employees of Licensor
or its affiliates to terminate his or her position or relationship in order to
become an employee of Licensee or its affiliates. For purposes of the foregoing,
Licensee shall not be in violation if Licensee or its affiliates hire or
otherwise engage any person who has not been employed by Licensor or its
affiliates for a period of sixty (60) days prior to such hiring or engagement.
1.6 Licensor and Licensee acknowledge, understand and agree that:
(a) The agreements and covenants each of Licensor and Licensee
in Sections 1.3, 1.4 and 1.5 are reasonable and necessary for the protection of
each of such party's legitimate interests and the transactions contemplated by
this Agreement;
(b) Licensee will be irreparably damaged and its substantial
investments in the license granted by this Agreement will be materially impaired
if Licensor were to enter into any activity competing with the business of
Licensee in violation of the terms of this Agreement;
(c) Each of Licensor and Licensee will be irreparably damaged
if either were to solicit the other's employees in violation of the terms of
this Agreement;
(d) The scope and length of the non-compete and
non-solicitation provisions of this Agreement and the geographical restrictions
contained herein are fair and reasonable and not the result of over reaching,
duress or coercion of any kind;
(e) The full, uninhibited and faithful observance of each of
the agreements and covenants contained in Sections 1.3, 1.4 and 1.5 by each of
Licensor and Licensee, as applicable, will not cause the other party any undue
hardship, financial or otherwise; and
(f) Enforcement of each of the covenants contained in Sections
1.3, 1.4 and 1.5 will not impair Licensor's ability, if it so desires, to engage
in the restaurant business outside of the geographical restrictions of this
Agreement on terms fully acceptable to it.
ARTICLE II
TERM OF LICENSE
2.1 The term of this Agreement ("Term") shall commence on the date
hereof and continue in perpetuity unless terminated as hereinafter provided.
2.2 The Term and the License granted hereto shall expire upon the
occurrence of any of the following events:
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(a) If Licensee shall dissolve, be adjudicated a bankrupt,
becomes insolvent, or if a receiver or custodian (permanent or temporary) of its
property or any part thereof is appointed by a court of competent authority; if
it makes a general assignment for the benefit of creditors; if a final judgment
remains unsatisfied of record for thirty (30) days or longer (unless a
supersedeas bond is filed) or if execution is levied against Licensee's business
or property, or a suit to foreclose any lien or mortgage against the Licensed
Business is instituted against Licensee and not dismissed within thirty (30)
days; if the Licensed Business ceases operations, which cessation shall be
conclusively deemed to have occurred if the Licensed Business fails to be open
for business for ten (10) consecutive business days during which all other
businesses in the retail complex in which the Licensed Business is located are
open for business; provided, however, that in the event the Licensed Business
must temporarily suspend operations in order to undertake emergency repairs or
substantial improvements thereto, same shall not be violation hereof provided
that the Licensee has provided advance written notice to Licensor of its intent
to temporarily close the Licensed Business for such purposes and the Licensor
consents thereto, which consent shall not be unreasonably withheld or delayed.
(b) On the date specified by Licensee that is at least ninety
(90) days after Licensee delivers to Licensor written notice of Licensee's
desire to end the Term; provided, however, that notwithstanding such
termination, the fees provided for in Article III shall in any event be payable
through the end of the "Initial Period" (as hereinafter defined), except that
such fees shall be payable only through the date of termination of the Term if
the Licensee has ceased operation of the Licensed Business or any other
restaurant at the location of the Licensed Business on or before that date. The
"Initial Period" shall mean the period commencing on the date hereof and ending
on the first anniversary of the date hereof except, if the aggregate net income
before taxes of the Licensed Business and the Restaurant located at Las Olas
Riverfront, Fort Lauderdale, Florida (or, in either case, successor restaurants
owned by Licensee) for the period ending on the first anniversary date as
determined in accordance with generally accepted accounting principles is equal
to or greater than $150,000, the Initial Period shall be extended for an
additional six (6) months.
ARTICLE III
LICENSE FEE
3.1 In consideration for the grant of this license and the rights to
use the Name and the System, Licensee shall pay to Licensor a license fee (the
"License Fee") based on a percentage of Gross Revenue of the Licensed Business.
For purposes of this Agreement, the term "Gross Revenue" shall mean all revenues
actually received by Licensee from the operation of the Licensed Business from
whatever source as determined by generally accepted accounting principles,
including, without limitation, all departments, services and operations, sales
by sub-tenants or concessionaires, telephone revenue (less service and toll
charges payable to third party providers), valet parking and sales and services
in, about and originating from the Licensed Business (excluding only: interest
income; proceeds from the
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sale of used equipment, furniture and other capital assets; loan proceeds,
capital contributions, condemnation proceeds that are attributed to property and
not lost revenue or income, insurance proceeds that are attributed to property
and not lost revenue or income and such other credits, allowances and refunds as
are customary in the restaurant industry and treated as reductions in gross
revenue under generally accepted accounting principles, service charges paid by
customers to the extent paid to employees of the Licensed Business as tips and
gratuities, the amount of any sales, user excise taxes, taxes on rent and other
similar taxes). With respect to any License Fee due to Licensor following
expiration of the Term pursuant to Section 2.2(c) hereof, the term "Licensed
Business" for purposes of calculating Gross Revenue shall refer to the
restaurant operated by Licensee in the location of the Licensed Business, even
though such restaurant is not operated under the Name or the System.
3.2 The License Fee for the period commencing on the date hereof and
ending on the first anniversary of the date hereof shall be an amount equal to
1.75% of Gross Revenue during that period. After the first anniversary date
hereof, the License Fee for the immediately succeeding 12 months and for each
subsequent 12 month period thereafter (or earlier termination of this License)
shall be an amount equal to (i) 1.50% of the first $3,330,000 of Gross Revenue;
(ii) 1.25% of Gross Revenue in excess of $3,300,001 up to $3,800,000; and (iii)
1% of Gross Revenue in excess of $3,800,000.
3.3 Licensee shall pay the License Fee to Licensor quarterly, in
arrears, within 15 days after the end of each calendar quarter, commencing with
the quarter ending September 30, 1999. The License Fee payable for the quarter
ending September 30, 1999 and any quarter during which the Term ends, if less
than a full quarter, shall be prorated. The License Fee due with respect any
period immediately prior to expiration of the Term shall be due and payable
within 15 days of the date of expiration. Payment shall be made by wire transfer
of immediately available funds to an account specified by Licensor.
Contemporaneously with payment of the License Fee, Licensee shall deliver to
Licensor a detailed statement, signed by an authorized officer of Licensee,
setting forth the amount of the Gross Revenue for the applicable period and the
calculation of the License Fee.
3.4 Licensee agrees that Licensor, its attorneys and accountants shall
have the right to examine, copy and audit the books and records of Licensee
relating to the Licensed Business at any time upon reasonable prior written
notice and during regular business hours in order to verify Gross Revenue. In
addition, Licensee shall have the right to examine, copy and audit the books and
records relating to the Licensed Business and the Restaurant located at Waterway
Shoppes of Weston to determine the aggregate net income before taxes of such
restaurants for the Initial Period. In the event Licensor disputes any
determination by Licensee of the License Fee due to Licensor for any period, it
shall notify Licensee in writing, setting forth the basis for its dispute and
the amount of the License Fee it believes is due to Licensor. In the event that
within ten (10) days of such notice the parties can not agree upon the amount of
the License Fee in dispute, they shall, within three (3) days thereafter, select
a firm of independent certified public accountants that does not represent
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either party who shall determine the amount of the License Fee due to Licensor
in accordance with this Agreement. In the event that Licensor and Licensee have
not agreed upon a firm of accountants within such three (3) day period, the
dispute may thereafter be submitted by either party for resolution by
arbitration by three arbitrators under the auspices of the American Arbitration
Association in Broward County, Florida, which arbitration shall be conducted in
accordance with the laws of the State of Florida and the commercial arbitration
rules of the American Arbitration Association. The agreed upon accountant or
arbitrator(s) (either, the "Arbitrator") shall be requested by Licensor and
Licensee to render a decision within thirty (30) days following selection of the
Arbitrator and the determination of the Arbitrator shall be final and binding
upon Licensor and Licensee. In the event Licensee is determined to owe
additional License Fees to Licensor, the Arbitrator shall require the payment of
interest at the statutory rate from the date such additional License Fees were
due and payable until the date actually paid, which payment of License Fees and
interest must be made by the Licensee no later than three (3) business days
following the determination of the Arbitrator. In addition, if it is determined
that the Licensee underpaid the License Fee with respect to any license fee
payment period by an amount equal to or greater than two percent (2%), then
Licensee shall be obligated to reimburse Licensor for the costs and expenses of
the Arbitrator and the attorneys or accountants that initially examined the
books and records of Licensee with respect to such quarter on behalf of
Licensor; otherwise, the fees and expenses of the Licensor's audit and the
Arbitrator shall be borne by Licensor.
ARTICLE IV
RESTAURANT PREMISES AND NAME
4.1 The Licensed Business was constructed by Licensee in accordance
with general plans, specifications and designs approved in writing by Licensor.
The leasehold improvements, furnishings, fixtures, equipment, bar, interior
layout and design, tableware, menus, accessories and all other tangible assets
located in the Licensed Business and used in the operation thereof are
acceptable to Licensor as exists as of the date hereof. Licensee shall not make
any material changes or alterations or replacements to the premises except as
otherwise approved, in writing, by Licensor and Licensor shall not unreasonably
withhold consent, if such modification is consistent with the System and an
upscale restaurant.
4.2 Licensee disclaims any right or interest in the creation or
development of the Name or any other of Licensor's service marks and trade names
used in connection with a Restaurant and to the good-will derived therefrom and
acknowledges that Licensor has the sole right to use the Name, such service
marks and trade marks. Licensee will use the Name, such service marks and/or
trade names only in the manner and to the extent specifically permitted in this
Agreement. All advertising, publicity, signs, decorations, furnishings,
equipment or other matter employing in any way whatsoever the Name including,
without limitation, the words "Max's Grille" or "Max's," shall be submitted to
Licensor for its approval, which shall not be unreasonably withheld, prior to
publication or use and shall bear
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a SM designation and, if requested by Licensor, a phrase acknowledging
Licensor's ownership thereof.
4.3 Licensee shall not in any way do anything to infringe upon, harm or
contest the rights of Licensor in the Name or incorporate the Name in its firm
name or corporate name without having obtained the prior written approval of
Licensor.
4.4 In the event Licensee learns of any claim or infringement of the
Name licensed hereunder, or any claim of unfair competition or other challenge
to Licensee's right to use the System or any service xxxx or trade name licensed
hereunder (collectively, "Infringement"), Licensee shall promptly notify
Licensor. Licensor shall defend, indemnify and hold Licensee harmless from any
and all Infringement claims, demands, causes of action, damages, costs and
expenses whatsoever (including, but not limited to, reasonable attorneys' fees)
arising from or out of Licensee's use of the Name or System. Licensor shall have
the sole and exclusive right, in its reasonable discretion, at its own cost and
expense and for its own use and benefit, to institute suit or take such other
action as it may deem proper to restrain any such infringement and defend any
other such claim. In the event Licensor reasonably determines not to restrain
any such infringement or not to commence or thereafter not to prosecute any
suit, Licensee shall not have the right to commence any such proceeding. Each of
the parties hereto shall be entitled to be represented in any proceeding
relating to the matters covered by this section in which the other party is
involved, at its own cost and expense. Each party hereto shall fully cooperate
with the other in any such proceeding, provided that it is reimbursed for its
costs and expenses for doing so, not including counsel fees, if any.
4.5 Licensee agrees not to contest, directly or indirectly, Licensor's
rights or interest in and to the service marks, trade names, trade secrets,
methods, procedure and advertising techniques which are part of Licensor's
business. Licensee, moreover, will not contest, directly or indirectly,
Licensor's rights to use or license others to use such service marks, trade
names, trade secrets, methods, procedures and techniques outside the territory
reserved to Licensee. Licensee acknowledges that the recipes, products,
proprietary formulations, technology, know-how and operation of the Licensed
Business is derived from information disclosed by Licensor to Licensee and that
such information is proprietary and confidential and constitutes a trade secret
of Licensor. Licensee shall take all action necessary to, and shall, at all
times, treat all such confidential information as confidential, and shall
maintain such information as secret, divulging the same only to such of its
employees as must have access to such confidential information in order to
properly operate the Licensed Business. Upon termination hereof for any reason
whatsoever all of Licensee's rights to use such information shall cease.
4.6 Licensee covenants and agrees, as a material inducement to Licensor
granting the license hereunder to Licensee, as follows:
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(a) Within fifteen (15) days following the date hereof,
Licensee shall notify, in writing, each vendor that provides goods or services
to the Licensed Business as of the date hereof, and each new vendor within
fifteen (15) days after selection, that the Licensed Business is not owned by
Licensor or any party affiliated with Licensor, but operates only pursuant to a
license, and that such vendor shall have no recourse to Licensor or any of its
affiliates with respect to any business transactions engaged in between such
vendor and the Licensed Business;
(b) Within five (5) days following the date hereof, Licensee
shall notify each employee of the Licensed Business that the Licensed Business
is not owned by Licensor or any affiliate of Licensor, but operates pursuant to
a license from Licensor, and that such employees' payroll and other benefits
shall be payable solely by the Licensed Business, and not by Licensor or any
affiliate of Licensor;
(c) Licensee shall cause Licensor and Unique Restaurant
Concepts, Ltd., and their respective successors and assigns, to be named as
additional insured parties on the comprehensive liability insurance coverage
obtained by Licensee for the Licensed Business and shall deliver to Licensor,
within thirty (30) days of the date hereof and within thirty (30) days following
renewal of each such policy, a certificate of the insurer reflecting such
endorsement in favor of the aforedescribed parties.
(d) Licensee hereby agrees to indemnify and hold Licensor and
its affiliates and their respective shareholders, officers and directors
(collectively, the "Indemnified Parties") harmless from any loss, liability,
claim, damage (including incidental, special and consequential damages), expense
(including costs of investigation and defense and reasonable attorneys' and
paralegal fees) arising, directly or indirectly, from a breach by Licensee of
its obligations under this Agreement or from Licensee's ownership and operation
of the Licensed Business from and after the date hereof. For purposes of this
provision, a "Third Party Claim" shall mean any threatened or actual claim or
investigation, or the commencement of any proceeding made other than by Licensor
based upon an assertion which, if true, would entitle Licensor or any other
Indemnified Party to obtain indemnification from Licensee under this Section
4.6(d). Promptly after receipt by an Indemnified Party of notice of commencement
of any Third Party Claim against it, such Indemnified Party will, if a claim is
to be made against Licensee, give prompt notice to Licensee of such Third Party
Claim, but the failure to give such notice shall not relieve Licensee of any
liability that it may have to an Indemnified Party, except to the extent that
the Licensee is actually prejudiced by the failure or delay in giving such
notice. Upon receipt of notice of a Third Party Claim, Licensee shall assume the
defense of such Third Party Claim at its own expense and with counsel reasonably
satisfactory to the Indemnified Party provided, however, that Licensee shall not
have the right to assume the defense if it is also a party to the Third Party
Claim and joint representation would be inappropriate based upon potential
conflicts between Licensee and Licensor with respect to same or Licensee is
unable to provide reasonable assurance to the Indemnified Party of its financial
capacity to defend such Third Party Claim and provide indemnification with
respect to same. If the Indemnified
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Party assumes defense of a Third Party Claim, same shall be at the expense of
Licensee. If Licensee assumes defense of the Third Party Claim, any Indemnified
Party may, at its own expense, participate in the defense thereof and employ its
own counsel for such purpose. If Licensee assumes defense of a Third Party
Claim, no compromise or settlement of such claim may be effected by Licensee
without prior consent of the Indemnified Party unless there is no finding or
admission of any wrongdoing by Indemnified Party, the sole relief against the
Indemnified Party is monetary damages that are paid in full by Licensee and the
Indemnified Party receives and unconditional release of such Third Party Claim.
If notice is given to Licensee of a Third Party Claim and Licensee does not,
within ten (10) days after notice is given, give notice to the Indemnified Party
of its election to assume the defense of such Third Party Claim, Licensee will
be bound by any determination made in such Third Party Claim or any compromise
or settlement effected by the Indemnified Party. Any other claim for
indemnification under this Section 4.6(d) for any matter not involving a Third
Party Claim may be asserted by notice to Licensee.
ARTICLE V
COMPLIANCE WITH SYSTEM
5.1 Licensee agrees to diligently operate the Licensed Business in
strict compliance with the System and to abide by all recommendations of
Licensor relating to, and changes in, said System.
5.2 Licensee recognizes and acknowledges that the System includes,
without limitation, specified food and beverage items which may be served, and
no others, recipes relating to same, menu design and layout, kitchen operating
procedures, order taking procedures, server training, techniques and uniforms,
use and display of the Name in specified places and such other procedures,
techniques and systems as required to create and maintain an upscale but casual
decor and atmosphere in each of the Restaurants. Licensee agrees to diligently
operate the Licensed Business in strict compliance with the System, as same may
be modified by Licensor, from time to time, and to abide by all recommendations
of Licensor relating to, and changes in, said System. Licensee agrees that,
without the prior written consent of Licensor in each instance, it shall not
modify or alter any aspect of the System now in effect, including, without
limitation, by failing to strictly follow recipes, by changing the uniforms worn
by servers, by adding entertainment (except soft background music) or otherwise
modifying the atmosphere of the Licensed Business. In the event that Licensee
desires to make any modification whatsoever to the System, it shall present its
request to Licensor in writing and Licensor shall not unreasonably withhold its
consent, if such modification is consistent with the System and an upscale
restaurant.
5.3 Licensor shall promptly furnish to Licensee any new menus, recipes,
procedures, or other System modifications or additions developed by Licensor or
used by any Restaurant not licensed to Licensee or its affiliates or successors
and assigns. Licensor shall cause Xxxxxx Xxx to consult monthly at a meeting
with Licensee at the Restaurant. A
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representative of Licensor shall train the chef of the Licensed Business with
respect to any new menu items. The representative of Licensor shall be Xxxx
Xxxxxxx, as long as he serves as the Senior Chef for the Restaurants, or any
successor to that position. All training will take place at the Xxxxxx Park
Restaurant. Licensor agrees that its failure to comply with this Section 5.3
shall cause irreparable harm to Licensee and that the damages suffered by
Licensee in such event are impossible to ascertain. Accordingly, Licensor agrees
that for each day following the tenth (10th) day after written notice from
Licensee that Licensor is not in full compliance with the provisions of Section
5.3, it shall pay Licensee $1,000 as liquidated damages and not as a penalty,
and such amount shall be due and payable by Licensor daily.
5.4 In order to monitor Licensee's compliance with the covenants
contained in this Article V and elsewhere in this Agreement, Licensee agrees
that during hours of operation of the Licensed Business, Licensor shall have the
right to inspect the premises, including the kitchen, and to interview employees
and independent contractors of the Licensed Business. In furtherance thereof,
Licensee agrees that once each month during the Term, two (2) persons designated
by Licensor may each (at the same time) order for their own consumption on the
premises, food and beverages at the Licensed Business without charge, but not to
exceed $150 per month including server gratuities.
ARTICLE VI
COVENANTS OF LICENSEE
6.1 Licensee further agrees as follows:
(a) To maintain a high moral standard and atmosphere at Licensee's
Restaurant; to train and supervise its employees in compliance with all local
and state health code and food preparation laws; to properly and in a sanitary
manner prepare all food and beverages and to serve the same in a wholesome,
appetizing and efficient manner; to maintain the Licensed Business in a clean,
safe and orderly manner; to provide efficient, courteous and high quality
service to the public, to the end that the Licensed Business shall help to
create and build good will among the public for Max's Grille restaurants as a
whole, and so that Licensor, Licensee, and each member of said System shall be
benefited, and the public assured uniform, efficient, courteous, high quality
service on a standardized national basis.
(b) To advertise, sell or offer for sale only those items which are
sold by Licensor in its company-owned Restaurants or approved by Licensor in
writing prior to offering the same for sale.
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(c) Not to carry on or conduct or permit others to carry on or
conduct any other business activity or operation from the approved premises
other than the operation of the Licensed Business.
ARTICLE VII
ASSIGNMENT
7.1 Licensee shall neither sell, assign, transfer or encumber this
Agreement or any rights or interests therein or thereunder, or offer or permit
any such sale, assignment, transfer or encumbrance to occur by operation of law
or otherwise, without the prior written consent of Licensor in each instance,
provided, however, that Licensor's consent shall not be unreasonably withheld if
the proposed assignee has proven ability to operate a restaurant of similar
caliber as the Licensed Business. For purposes hereof, the term "Assignment"
shall include a sale or transfer, whether in a single transaction or in a series
of transactions, of more than 50% ownership interest in Licensee or a transfer
of control of the corporate general partner of Licensee. Licensee is authorized
to assign this Agreement to Xxxxxx Enterprises, Inc. ("Xxxxxx") and, subject to
Xxxxxx'x guarantee of Licensee's obligations hereunder, to any entity controlled
by Xxxxxx. A change in Shareholders of Xxxxxx (or any successor publicly-traded
controlling person of Licensee) shall not be deemed an assignment.
ARTICLE VIII
TERMINATION
8.1 Upon termination of this Agreement, Licensee's right to use in any
manner the Name or any other of Licensor's marks used by Licensee (or insignia
or slogan used in connection therewith), or any confusingly similar trademark,
service xxxx, trade name or insignia shall terminate forthwith. Licensee shall
not thereafter directly or indirectly identify itself in any manner as a Max's
Grille or publicly identify itself as a former Max's Grille or use any of
Licensor's trade secrets, signs, symbols, devices, recipes, formulas or other
materials constituting part of the System.
8.2 Upon the termination of this Agreement, the Licensee shall
immediately discontinue the use of all service marks, trade names, signs,
structures, and forms of advertising indicative of Max's Grille, its symbols,
service marks or its menu items; and, so far as the Licensee may lawfully do so,
shall make or cause to be made such removals of or changes in signs, buildings
and structures as the Licensor shall reasonably direct so as to eliminate the
names "Max's Grille" from the premises.
8.3 Licensee shall fully comply with the obligations imposed on it by
Sections 8.1 and 8.2 hereof no later than ten (10) days following termination of
this Agreement provided Licensee pays the License Fee for such ten (10) day
period. Licensee agrees that its failure to do so shall cause irreparable harm
to Licensor and that the damages suffered by
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Licensor in such event are impossible to ascertain. Accordingly, Licensee agrees
that for each day following the tenth (10th) day after termination of this
Agreement that it is not in full compliance with the provisions of Sections 8.1
and 8.2, it shall pay Licensor a license fee of $1,000 for Licensee's continued
use of any part of the Name and the System in violation of this Agreement.
Licensee acknowledges that such violation shall cause irreparable harm to
Licensor and the damages suffered by Licensor in such event are impossible to
ascertain and, accordingly the $1,000 per day license fee is payable to Licensor
as liquidated damages, and not as a penalty, and is due and payable to Licensor
daily.
ARTICLE IX
MISCELLANEOUS
9.1 Entire Agreement. The privileges herein granted to Licensee
contemplate the operation of a Restaurant at the licensed location and the
rights herein granted shall not be applied or extended, directly or indirectly,
to any other business or enterprise without the express consent in writing of
Licensor. This Agreement contains the entire agreement of the parties with
respect to the license of the Name, other service marks and System and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force or effect. No failure of
Licensor to exercise any power given it hereunder or to insist upon strict
compliance by Licensee of any obligation hereunder, and no custom or practice of
the parties at variance with the terms hereof shall constitute a waiver of
Licensor's right to demand exact compliance with the terms hereof. Waiver by the
Licensor of any particular default by the Licensee shall not affect or impair
the Licensor's rights in respect of any subsequent default of the same or of a
different nature, nor shall any default or omission of the Licensor to exercise
any rights arising from such defaults affect or impair the Licensor's rights as
to such default or any subsequent default.
9.2 Force Majeure. Neither Licensor nor Licensee shall be liable to
perform any of its obligations under this Agreement if such failure to perform
is due to strikes, lockouts, stoppages, accidents, transportation delays, war,
government regulations or act of God or other cause beyond the reasonable
control of Licensor or Licensee and the happening of any such cause of delays
shall extend the time of performance by the time occasioned by any such cause of
delay.
9.3 Severability. If any covenant or other provision of this Agreement
is invalid, or incapable of being enforced, by reason of any rule of law or
public policy, all other conditions and provisions of this Agreement shall,
nevertheless, remain in full force and effect, and no covenant or provision
shall be deemed dependent upon any other covenant or provision unless so
expressed herein.
9.4 Compliance with Laws. Licensee shall conduct its business and
maintain the Restaurant in strict compliance with all applicable laws,
ordinances, regulations, and other
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requirements of any federal, state, county, municipal, or other consent for the
operation of its business.
9.5 Amendments. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which endorsement of the change, waiver,
discharge or termination is sought.
9.6 Binding Effect. This Agreement shall be binding upon the parties,
their permitted successors and assigns.
9.7 Governing Law. This License Agreement shall be governed by the laws
of the State of Florida.
9.8 Litigation. If any party hereto engages in litigation against the
other party hereto, either as plaintiff or as defendant, in order to enforce or
defend any of its rights under this Agreement, and such litigation results in a
final judgment in favor of such party ("Prevailing Party"), then the party
against whom said final judgment is obtained shall reimburse the Prevailing
Party for all direct, indirect or incidental expenses incurred by the Prevailing
Party in so enforcing or defending its rights hereunder, including, but not
limited to, all attorneys' fees and court costs and other expenses incurred
throughout all negotiations, trials or appeals undertaken in order to enforce
the Prevailing Party's rights hereunder.
9.9 Notices. Any notice required or permitted to be delivered to either
party under the provisions of this Agreement shall be deemed delivered, whether
actually received or not, when deposited in a United States Postal Service
Depository, postage prepaid, registered or certified, return receipt requested,
and addressed to the party at the address set forth below, or such other address
as shall be specified by written notice delivered to the other party:
If to Licensor: Unique Restaurant Concepts, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxx, President
With a copy to: Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
X.X. Xxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
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If to Licensee: Unique Brickell, Ltd.
c/x Xxxxxx Enterprises, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
With a copy to: Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
777 X. Xxxxxxx Drive, Suite 000 Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All notices, demands and requests shall be effective upon being deposited in the
United States mail. However, the time period in which a response to any such
notice, demand or request must be given shall commence to run from the date of
receipt on the return receipt of the notice, demand or request by the addressee
thereof or the date of actual receipt in the case of delivery by other means.
Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice, demand or request when sent.
9.10 Counterparts. This Agreement may be execute in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to each of the other parties.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amended and Restated License Agreement as of the date and year first above
written.
UNIQUE RESTAURANT CONCEPTS,
INC., a Florida corporation
By: /s/ Xxxxxx Xxx
------------------------
Xxxxxx Xxx, President
UNIQUE BRICKELL, LTD.
By: Unique Brickell, Inc., a Florida
corporation, as General Partner
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxxxx, Xx., President
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