EXHIBIT A
TO THE DEVELOPING AGENT AGREEMENT
OWNER'S AND GUARANTOR'S UNDERTAKING AND ASSUMPTION
OF OBLIGATIONS
EXHIBIT "A"
OWNER'S AND GUARANTOR'S UNDERTAKING AND ASSUMPTION OF OBLIGATIONS
THIS UNDERTAKING AND ASSUMPTION OF AREA DEVELOPER'S OBLIGATIONS is given as of
this day of , 19 , by the undersigned.
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AREA DEVELOPER:
Date of Area Developer Agreement:
1. ACKNOWLEDGEMENT AND GUARANTY.
In consideration of, and as an inducement to, the execution of the
above mentioned Pretzel Time, Inc. Area Developer Agreement ( the "Area
Developer Agreement") by Pretzel Time, Inc. ("Company"), each of the undersigned
and any other parties who sign counterparts of this guaranty (referred to herein
individually as a "Guarantor" and collectively as "Guarantors") hereby
personally and unconditionally: (a) guarantees to COMPANY, and its successors
and assigns, for the term of the franchise Agreement and thereafter as provided
in the franchise Agreement, that AREA DEVELOPER shall punctually pay and perform
each and every undertaking, agreement and covenant set forth in the Area
Developer Agreement; and (b) agrees to be personally bound by, and personally
liable for the breach of, each and every provision in the Area Developer
Agreement, both monetary obligations and other obligations, including, without
limitation, the obligation to pay costs and legal fees as provided in the Area
Developer Agreement and the obligation to take or refrain from taking specific
actions or to engage or refrain from engaging in specific activities, including,
without limitation, the provisions of the Area Developer Agreement relating to
competitive activities.
2. WAIVERS.
Each Guarantor waives:
(a) acceptance and notice of acceptance by COMPANY of the foregoing
undertakings; and
(b) notice of demand for payment of any indebtedness or nonperformance of
any obligations hereby guaranteed; and
(c) protest and notice of default to any party with respect to the
indebtedness or nonperformance of any obligations hereby guaranteed; and
(d) any right he may have to require that an action be brought against
AREA DEVELOPER or any other person as a condition of liability; and
(e) all rights to payments and claims for reimbursement or subrogation
which he may have against AREA DEVELOPER arising as a result of his execution
and performance under this guaranty; and
(f) any and all other notices and legal or equitable defenses to which
he may be entitled.
3. ADDITIONAL COVENANT OF GUARANTORS.
Each Guarantor consents and agrees that:
(a) his direct, independent, and immediate liability under this
undertaking shall be joint and several not only with AREA DEVELOPER, but also
among the Guarantors;
(b) he shall render any payment or performance required under the Area
Developer Agreement upon demand if AREA DEVELOPER fails or refuses punctually to
do so;
(c) such liability shall not be contingent or conditioned upon pursuit
by COMPANY or its Affiliates of any remedies against AREA DEVELOPER or any other
person;
(d) such liability shall not be diminished, relieved or otherwise
affected by any subsequent rider or amendment to the Area Developer Agreement or
by any extension of time, credit or other indulgence which COMPANY may from time
to time grant to AREA DEVELOPER or to any other person, including, without
limitation, the acceptance of any partial payment or performance, or the
compromise or release of any claims, none of which shall in any way modify or
amend this guaranty, which shall be continuing and irrevocable throughout the
term of the Area Developer Agreement and for so long thereafter as there are any
monies or obligations owing by AREA DEVELOPER to COMPANY under the Area
Developer Agreement;
(e) the written acknowledgment of AREA DEVELOPER, accepted in writing
by COMPANY, or the judgment of any court or arbitration panel of competent
jurisdiction establishing the amount due from AREA DEVELOPER shall be conclusive
and binding on the undersigned as Guarantors;
(f) if COMPANY is required to enforce this guaranty in a judicial or
arbitration proceeding and prevails in such proceeding, it shall be entitled to
reimbursement of its costs and expenses, including, but not limited to,
reasonable accountants', attorneys', arbitrators', and expert witness fees,
costs of investigation, court costs, other litigation expenses and travel and
living expenses, whether incurred prior to, in preparation for or in
contemplation of the filing of any such proceeding. If COMPANY is required to
engage legal counsel in connection with any failure by the undersigned to comply
with this guaranty, the Guarantors shall reimburse COMPANY for any of the
above-listed costs and expenses incurred by it;
(g) Each of the undersigned Guarantors represents and warrants that, if
no signature appears below for such Guarantor's spouse, such Guarantor is either
not married or, if married, is a resident of a state which does not require the
consent of both spouses to encumber the assets of a marital estate.
(h) This Undertaking and Assumption shall be construed in accordance
with Pennsylvania law, without giving effect to its conflict of laws principles;
(i) This Undertaking shall continue in full force and effect with
respect to any extension or modification to the Area Developer Agreement or any
other of the franchise agreements and Guarantors waive notice of any and all
such extensions, modifications, amendments or transfers;
(j) In lieu of any right of indemnification that Guarantors may have as
against Area Developer by virtue of the guarantee of Area Developer's
obligations to company which right of indemnification is hereby waived,
Guarantors shall be subrogated to the rights of Company as against Area
Developer to the extent Guarantors fully satisfy and discharge the obligations
of Area Developer under the Area Developer Agreement and any other franchising
agreements and such right of subrogation shall be Guarantor's sold remedy
against Area Developer;
(k) Guarantors agree to pay all reasonable attorneys' fees and all
costs and other expenses incurred in any collection or attempted collection of
amounts due pursuant to this Undertaking or in any negotiations relative to the
obligations hereby guaranteed or in enforcing this Undertaking against
Guarantors; and
4. DEFINITIONS. For purposes of this Undertaking:
(a) "Owner" shall mean any person, partnership, corporation or other
entity holding any interest in Area Developer.
(b) The term "Guarantors" is applicable to one or more persons, a
corporation or a partnership, as the case may be, and the singular usage
includes the plural and the masculine and neuter usages included the other and
the feminine.
IN WITNESS WHEREOF, each Guarantor has hereunto affixed his signature
on the same day and year as the Area Developer Agreement was executed.
Owners and Guarantors:
Spouse
(Signature)
(Print Name)
Spouse
(Signature)
(Print Name)
Spouse
(Signature)
(Print Name)
Spouse
(Signature)
(Print Name)
