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EXHIBIT 10.10
DEVELOPMENT AGREEMENT
This is a Development Agreement ("Agreement") made in Fairfield, New Jersey,
by and between ALL AMERICAN FOOD GROUP, a New Jersey corporation with its
principal office at 0 Xxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("All
American"), and, an individual with his principal residence located at
("Developer").
WHEREAS, All American is a franchisor of Xxxxxxxx'x New York Bagel Shops,
which serve bagels, deli products, and other food items; and,
WHEREAS, Developer desires the exclusive rights to develop Xxxxxxxx'x New York
Bagel Shops within the geographic area specified in this Development Agreement
for the limited term of this Agreement; and,
WHEREAS, All American is willing to grant such rights in accordance with the
terms and conditions of this Agreement;
NOW THEREFORE, it is mutually agreed as follows:
1. GRANT. All American hereby grants to Developer during the term of this
Development Agreement and subject to the conditions hereof the exclusive right
to develop Xxxxxxxx'x New York Bagel Shops in the limited geographical area
identified and set forth in Exhibit A hereto, exclusive of any Protected Area
located therein as defined in any Franchise Agreements currently issued to
other parties; this geographical area shall be referred to as the "Territory".
The operation of the restaurants developed pursuant to this Agreement will be
governed by individual Franchise Agreements issued by All American in
accordance with Section 10 below. So long as Developer is in compliance with
the terms and conditions of this Agreement, All American will not franchise to
others to operate, nor will itself operate, any new or additional Xxxxxxxx'x
New York Bagel Shops in the Territory during the term of this Agreement.
2. TERM. Unless earlier terminated pursuant to Section 12, this
Development Agreement shall expire 36 months from the date of execution of
this Agreement by All American or upon the execution by All American of the
Franchise Agreement for the last of the shops specified in Exhibit B (the
"Development Schedule"), whichever first occurs.
3. DEVELOPMENT FEE. Upon execution of this Development Agreement,
Developer shall pay to All American a fee of $ (the "Development Fee"). This
Development Fee shall be fully earned by All American in consideration of its
execution of this Agreement and shall be non-refundable. However, All
American shall credit $10,000 of the Development Fee toward payment of the
Franchise Fee for each of the first Franchise Agreements issued to Developer
pursuant to this Development Agreement, provided that the applicable shops are
constructed and opened in accordance with the Development Schedule.
4. DEVELOPMENT SCHEDULE. Developer shall open and continuously operate
properly franchised Xxxxxxxx'x Bagel Shops in accordance with the Development
Schedule set forth in Exhibit B. In the event that Developer opens and
continuously operates a greater number of Xxxxxxxx'x Bagels Shops than
required during any interim period of the Development Schedule, the
requirements of the succeeding period(s) shall be deemed satisfied to the
extent of such excess number of shops, up to the total number of shops
specified in the Development Schedule.
5. LOCATION OF SHOPS. Developer is responsible for locating proposed sites
within the Territory for each of the shops contemplated in the Development
Schedule; during the
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term of this Agreement, Developer shall use its best efforts to locate
suitable sites. All American may in its discretion offer counseling and
advice in site selection. In no event, however, shall All American be
obligated to loan money, guarantee leases, provide financing or otherwise
become directly involved and/or obligated to Developer or to any third party
in respect of such site selection or development; these activities and
undertakings shall be the exclusive responsibility of Developer, financially
and otherwise.
6. SITE ACCEPTANCE. Upon selection by Developer of a proposed site for a
shop, Developer promptly shall submit to All American such specific site data
and demographic and other information concerning the site as may be reasonably
required by All American, utilizing such forms as may be required by All
American. All American shall either accept or reject such site in accordance
with All American's then-current site selection policies and procedures. To
be effective, any acceptance must be in writing. Developer understands and
acknowledges that All American may reject any proposed site, in which event
Developer will not proceed at the rejected site, but will seek to locate an
acceptable site. The acquisition in any manner of any proposed site prior to
acceptance by All American shall be at the sole risk and responsibility of
Developer and shall not obligate All American in any way to accept same.
7. DISCLAIMER. In executing this Development Agreement, accepting a
proposed site, giving approvals or advice or providing services or assistance
in connection with this Development Agreement All American does not guarantee
the suitability of an accepted site or the success of any Xxxxxxxx'x New York
Bagel Shop established at such site. All American expressly disclaims any
warranties, express or implied, with respect to the suitability of any site or
the success of any shop. Developer understands and acknowledges that the
suitability of a site and the success of any shop depend on many factors
outside the control of either All American or Developer (such as interest
rates, unemployment rates, demographic trends and the general economic
climate), but principally depend on Developer's efforts in the operation of
the shop.
8. LOCATION REQUIREMENTS. As a condition for accepting a proposed
site, All American may require Developer to negotiate a lease or sales
contract that includes certain terms regarding duration or other specified
matters. Developer understands and acknowledges that a site acceptance may be
conditioned on such matters and that if Developer does not wish to, or cannot,
satisfy the pertinent conditions within a reasonable time, the site will be
deemed rejected.
9. CONSTRUCTION. Upon receiving acceptance for a proposed site, Developer
shall proceed promptly to secure control of the accepted site and to obtain
necessary zoning and building approvals and permits. All American will
provide layouts for the All American-approved location, including
specifications for fixtures, furnishings, signs, and equipment. Developer
must hire an architect and general contractor to adapt these generic layouts
to the accepted site and must submit proposed final working plans to All
American for approval within the time limits set by All American. Developer
shall not proceed with construction or remodeling until Developer has received
All American's written approval of the final working plans. Developer shall
ensure that the building is constructed or remodeled in accordance with the
final working plans and specifications designated and approved by All
American. Developer will allow All American to make periodic inspections and
will provide such periodic progress reports as may be requested by All
American.
10. FRANCHISE AGREEMENT. No Xxxxxxxx'x New York Bagel Shop may be opened
or operated by Developer under any circumstances until the required Franchise
Fee has been paid and the Franchise Agreement for such location has been
executed by All American. The Franchise Fee shall be twenty-five thousand
dollars ($25,000) for Developer's first Franchise Agreement, and seventeen
thousand and five hundred dollars ($17,500) for each subsequent Franchise
Agreement. The Franchise Fee for each Franchise Agreement must be paid at
least thirty (30) days prior to scheduled execution of the Agreement. All
Franchise Agreements issued pursuant to this Development Agreement will
contain generally the same terms and conditions as are being offered to other
franchisees similarly situated at time of issuance, including without
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limitation those terms and conditions pertaining to royalties and other fees
and duration of the Agreement. Developer shall comply with All American's
then-current franchising policies and procedures for issuance of the Franchise
Agreements. All American shall be under no obligation to execute and issue a
Franchise Agreement if Developer is in breach or default of any other Franchise
Agreement between All American and Developer, or if Developer is not eligible
for expansion pursuant to All American's then-current criteria for expansion.
In addition, All American shall be under no obligation to execute and issue a
Franchise Agreement unless Developer has complied in a timely manner with all
terms and conditions of this Development Agreement and has satisfied all
requirements set forth herein (including construction and training
requirements) with respect to the pertinent accepted site. If and when a
Franchise Agreement is executed with All American, it shall govern the
relations between the parties with respect to the pertinent restaurant.
11. NO RIGHT TO OPERATE OR USE TRADEMARKS. Developer acknowledges that until
a Franchise Agreement has been issued for a specified site Developer shall not
have or be entitled to exercise any of the rights, powers and privileges
granted by the Franchise Agreement, including without limitation the right to
use All American's trademarks, service marks and trade names; that the
execution of this Development Agreement shall not be deemed to grant any such
rights, powers or privileges to Developer; and that Developer may not under
any circumstances commence operation of any Xxxxxxxx'x New York Bagel Shops
prior to execution by All American of a Franchise Agreement for the pertinent
location.
12. TERMINATION. This Agreement shall terminate immediately and without
notice to either party upon:
(a) the death of Developer, if Developer is an individual; or,
(b) the commencement of any proceedings by or against Developer under
the Bankruptcy Act, under any Chapter thereof or amendment thereto,
or under any other insolvency act, whether federal or state; the
appointment of any trustee or receiver for the business or property
of Developer; or any assignment by Developer for the benefit of
creditors.
All American shall have the right at its election to terminate this
Agreement immediately upon notice to Developer, upon the occurrence of any of
the following:
(a) failure to comply with the Development Schedule;
(b) the attempted assignment of this Agreement without the prior written
approval of All American;
(c) if Developer is a corporation or a partnership, the transfer of any
of the capital stock or partnership interest of such corporation or
partnership during the term of this Agreement without the prior
written approval of All American;
(d) the discovery by All American of any material misrepresentation in
any information or documents submitted to All American by or on
behalf of Developer;
(e) any violation by Developer of any of the provisions of this
Agreement; or,
(f) the termination by All American of any Franchise Agreement or other
agreement between All American and Developer or Developer's failure
to
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cure a default under any other agreement between All American and
Developer within the time specified by All American.
For purposes of Sections 10 and 12 herein, any Franchise Agreement issued
to Developer, any affiliated company of Developer or any corporation,
partnership or joint venture (or their affiliates) in which Developer or any
stockholder, partner, or joint venture of Developer, direct or indirect, has
any interest of ownership or participation, regardless of location, shall be
deemed an Agreement between All American and Developer.
13. EFFECT OF EXPIRATION OR TERMINATION. Upon expiration or
completion of the Development Agreement, or upon termination for any reason,
the rights granted to Developer pursuant to Section 1 of this Development
Agreement shall be extinguished immediately. Unless the parties have executed
a new Development Agreement, All American thereafter shall have the right to
operate or permit others to operate Xxxxxxxx'x New York Bagel Shops within the
Territory, except as limited by the Protected Area provisions of any
then-effective Franchise Agreements.
14. CONFIDENTIALITY. At all times during the term of this Agreement,
and after the termination of this Agreement for any reason, Developer (and if
a corporation or partnership, its shareholders, directors, and officers or
partners, as individuals) shall not divulge, disclose or communicate, directly
or indirectly, to any other person or entity any confidential or proprietary
information or knowledge obtained from All American.
15. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon All American, its successors and assigns. However, neither this
Agreement nor any of Developer's rights hereunder shall be assignable or
transferable by Developer, directly or indirectly, by operation of law or
otherwise, without prior written approval from All American.
16. NEW DEVELOPMENT AGREEMENT. If Developer wishes to negotiate a new
Development Agreement with All American with respect to further development of
Xxxxxxxx'x New York Bagel Shops in the Territory, Developer must so advise All
American in writing sixty (60) days before the expiration date of this
Development Agreement or sixty (60) days before the anticipated date of
execution of the Franchise Agreement for the final location under the
Development Schedule in Exhibit B, whichever is earlier. Subject to receipt
of such notice and so long as this Development Agreement is in effect and
Developer is not and has not been in default under this Development Agreement
or any Franchise Agreement or other agreement with All American, All American
will then negotiate in good faith with Developer with respect to a new
development agreement during the remainder of the term of this Development
Agreement.
17. GOVERNING LAW. This Agreement shall be governed, construed and
interpreted in accordance with the laws of the State of New Jersey. In the
event of any dispute concerning the parties' rights or obligations under this
Agreement, Developer agrees to file any suit against All American only in the
federal or state court having jurisdiction where All American's principal
office is then located.
18. DEVELOPER'S ACKNOWLEDGMENTS. Developer understands and acknowledges
that there are significant risks in any business venture and that the primary
factor in Developer's success or failure under this Agreement will be
Developer's own efforts. In addition, Developer acknowledges that All
American and its representatives have made no representations to Developer
other than or inconsistent with the matters set forth in the Franchise
Offering Circular provided to Developer and that Developer has undertaken this
venture solely in reliance upon the matters set forth in the Franchise
Offering Circular and Developer's own independent investigation of the merits
of this venture.
19. ENTIRE AGREEMENT. This Development Agreement contains the entire
agreement between the parties and shall not be modified except by a written
document executed by both parties.
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WITNESS: DEVELOPER:
BY:
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DATE:
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WITNESS: ALL AMERICAN FOOD GROUP:
BY:
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TITLE:
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DATE:
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EXHIBIT A
TERRITORY
The counties of in the state of .
ACKNOWLEDGED AND APPROVED
(Developer)
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(All American)
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\EXHIBIT B
DEVELOPMENT SCHEDULE
1. One franchised, open and operating Xxxxxxxx'x New York Bagel Shop on or
before in the Territory;
2. One additional franchised, open and operating Xxxxxxxx'x New York Bagel
Shop on or before for a cumulative total of two (2) shops in the
Territory;
3. One additional franchised, open and operating Xxxxxxxx'x New York Bagel
Shop on or before for a cumulative total of three (3) shops in the
Territory;
4. One additional franchised, open and operating Xxxxxxxx'x New York Bagel
Shop on or before for a cumulative total of four (4) shops in the
Territory;
5. One additional franchised, open and operating Xxxxxxxx'x New York Bagel
Shop on or before for a cumulative total of five (5) shops in the
Territory; and,
6. One additional franchised, open and operating Xxxxxxxx'x New York Bagel
Shop on or before for a cumulative total of six (6) shops in the
Territory.
ACKNOWLEDGED AND APPROVED
(Developer)
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(All American)
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