DEVELOPMENT AGREEMENT
Sonic
Industries LLC (“Sonic”), a
Delaware limited liability company, and __________________ (the “Developer”), a
____________ ___________________, enter into this Development Agreement (this
“Agreement”) as of the ____ day of __________, 2007.
W
I T
N E S S E T H :
Whereas,
Sonic is developing a food
service system (“Sonic System”) under which food is sold to the public from
drive-in restaurants operated under the name “Sonic Drive-In”; and
Whereas,
Developer desires to obtain
the right to select proposed sites on which to construct Sonic drive-ins,
to
submit the same to Sonic for its acceptance and, upon the acceptance of each
proposed site by Sonic, to enter into a License Agreement with Sonic to
construct, own and operate a Sonic drive-in upon such site (hereinafter
“Developmental Rights”) upon the terms and conditions set forth
herein.
Now,
therefore, in consideration of the
foregoing and of the covenants herein contained, the parties, intending to
be
legally bound, hereby agree as follows:
1. AREA
EXCLUSIVITY AND CONSTRUCTION SCHEDULE
(a) Subject
to the terms and conditions of this Agreement, Sonic hereby grants to the
Developer through ___________________, 20__, the exclusive Developmental
Rights
for the cities of ___________, __________ (in accordance with their boundaries
as of the date of this Agreement), all as generally shown on Exhibit A to
this
Agreement, less and except any protected radius previously granted by Sonic
or
its Affiliates and currently in effect within that area as it now exists
or
later increases or decreases through the operation or renewal of the terms
of
the applicable license agreement (the “Franchised Area”). Sonic has
and shall have the absolute right to approve the location of a Sonic drive-in
restaurant in an area contiguous to the Franchised Area even though the
protected radius of that drive-in restaurant would extend into the Franchised
Area.
(b) Developer
agrees to develop and to put In Operation at least ________ Sonic drive-in
restaurants within the Franchised Area in accordance with the following
development and performance schedule (the “Performance Schedule”):
|
Number
of
|
In
Operation
|
|
Restaurants
|
On
or Before
|
|
__
|
____________,
200_
|
|
__
|
____________,
200_
|
|
__
|
____________,
200_
|
(c) For
purposes of this Agreement, a restaurant shall be deemed to be “In Operation”
once a License Agreement (as hereinafter set forth) has been executed by
Developer and Sonic, and the restaurant has opened to the public. At
the Developer’s written election, a Sonic drive-in restaurant or Non-traditional
Location (as defined in Section 8(d)(iii) below) placed In Operation by someone
other than the Developer pursuant to the provisions of Section 8(d) may count
or
not count as a restaurant placed In Operation for the purpose of the Performance
Schedule. If the Developer elects to have an acquired restaurant or
Non-traditional Location count towards the Performance
1
Schedule,
it may result in the earlier expiration of the Developer’s exclusive
Developmental Rights under this Agreement.
2. TERM. The
term of this Agreement and all Developmental Rights granted hereunder shall
expire on the date the last of the Sonic drive-in restaurants to be constructed
pursuant to the Performance Schedule set forth in Section 1 hereof is opened
for
business, unless sooner terminated in accordance with the terms of this
Agreement.
3. RENEWAL. This
Agreement shall not be subject to renewal.
4. TIMELY
PERFORMANCE. Developer hereby acknowledges that its
timely development of the Sonic drive-in restaurants in the Franchised Area
in
accordance with the Performance Schedule is of material importance to Sonic
and
Developer, and agrees, as a condition of the continuance of the rights granted
hereunder, to develop and construct Sonic drive-in restaurants within the
Franchised Area in accordance with the Performance Schedule, to operate such
restaurants pursuant to the terms of the License Agreements and to maintain
all
such restaurants in operation continuously.
5. CONSIDERATION
FOR EXCLUSIVE RIGHTS. As consideration for this
Agreement, Developer has paid, and Sonic has accepted the sum of $__________
concurrently with the execution of this Development Agreement. This
consideration for exclusive rights shall be credited to the required fee
for
each License Agreement signed per restaurant to be placed In Operation in
accordance with the Performance Schedule. Such credit shall
be:
(i) in
the amount of $10,000 for each License Agreement signed;
(ii) credited
against the total franchise fee to be paid to Sonic; and
(iii) credited
at the time the License Agreement for each restaurant is signed by Developer
and
Sonic.
If
the Developer elects to have a Sonic
drive-in restaurant or Non-traditional Location opened by someone other than
the
Developer pursuant to Section 8(d) count towards the Performance Schedule,
Sonic
shall refund $10,000 to the Developer for each restaurant or Non-traditional
Location placed In Operation.
Except
as set forth above, the fee
required by this Section 5 is nonrefundable.
2
6. SITE
SELECTION
(a) Developer
agrees to submit for evaluation by Sonic pursuant to Sonic’s site selection
criteria, the information ordinarily required for each proposed site for
a Sonic
drive-in restaurant. Sonic may review the site, conduct such other
investigation of the proposed site it determines is necessary to properly
evaluate the site, and, in Sonic’s sole discretion, either accept or reject the
site by written notice to Developer. Site acceptance shall be
contingent upon, among other things, execution by Developer and Sonic of
the
License Agreement for said site as provided in Section 7
hereof. In the event Sonic does not accept or reject a site submitted
in writing by Developer within 30 days of receipt of such written notice,
such
site shall be deemed to be approved by Sonic.
(b) Developer
acknowledges that no officer, employee or agent of Sonic has any authority
to
approve or accept any proposed site except in writing and in accordance with
Section 6(a) above, and any other representations, whether oral or written,
shall be of no effect; Developer further acknowledges that Sonic’s acceptance of
said site does not constitute any representation, warranty or guarantee by
Sonic
that said site will be a successful location for a Sonic drive-in
restaurant.
(c) Sonic
reserves the right to revoke any site approval after the Completion Date
(as
defined in Section 7(b) below) if a restaurant is not under construction
at the
site in accordance with a fully executed License Agreement for said
site.
7. CONSTRUCTION
AND ISSUANCE OF LICENSE AGREEMENT
(a) Upon
receipt of Sonic’s written acceptance of a proposed site as set forth in Section
6 hereof, Developer shall promptly take the necessary steps to acquire the
site
(by purchase, option to purchase, lease or sublease) and to otherwise obtain
the
rights to construct, maintain and operate a Sonic drive-in restaurant on
the
site.
(b) Within
10 days of Sonic’s receipt of notice by Developer that Developer is ready to
begin construction at the accepted site, Sonic shall execute and forward
to
Developer the License Agreement for said site if one has not been previously
executed. It is specifically agreed by Developer and Sonic that no License
Agreement shall be effective until the same is executed by Sonic and Developer
and a license fee is paid by Developer, and that Developer shall not begin
construction work at the accepted site until Sonic has received the License
Agreement executed by Developer and the license fee paid by
Developer. Developer shall, however, execute a License Agreement for
an approved site on the earlier of (i) six months following approval of the
site
by Sonic, or (ii) the date construction is to begin (with the earlier of
such
dates referred to above as the “Completion Date”).
(c) Within
30 days after the receipt of a License Agreement from Sonic for the accepted
site, Developer shall execute said License Agreement in accordance with Sonic’s
instructions and return the same along with the applicable license fee to
Sonic. The License Agreements for all drive-ins under the Performance
Schedule shall be in the form attached hereto as Exhibit B. In the
event that Sonic does not receive the properly executed License
3
Agreement,
with the appropriate number of copies, within said 30-day period, Sonic’s
acceptance of the site as provided in Section 6 hereof shall be void and
Developer shall have no rights with respect to said site.
(d) Upon
receipt by Sonic of the executed License Agreement for said site, Developer
shall commence construction of the Sonic drive-in restaurant at the site
in
accordance with the plans and specifications provided by Sonic and the terms
of
the License Agreement and this Agreement.
8. LIMITATION
OF AGREEMENT. Developer acknowledges and agrees
that:
(a) This
Agreement includes only the right to select sites for the construction of
Sonic
drive-in restaurants and to submit the same to Sonic for its approval in
accordance with the terms of this Agreement. This Agreement does not
include the grant of a license by Sonic to Developer of any rights to use
the
Proprietary Marks, the Sonic System, or to open or operate any Sonic drive-in
restaurants within the Franchised Area. Developer shall obtain the
license to use such additional rights at each Sonic drive-in restaurant upon
the
execution of each License Agreement by both Developer and Sonic and only
in
accordance with the terms of each License Agreement.
(b) The
Developmental Rights granted hereunder are personal to Developer and cannot
be
sold, assigned, transferred or encumbered, in whole or in part, except as
set
forth in Section 14 hereof.
(c) The
Developer shall have no right to use in its name the name “Sonic” or any other
names or Proprietary Marks used by Sonic.
(d) Except
as provided in Section 1 hereof, the Developmental Rights granted hereunder
are
nonexclusive, and Sonic retains the right, in its sole discretion:
(i) To
acquire the assets or controlling ownership of an existing restaurant within
the
Franchised Area. However, prior to converting an acquired restaurant
to a Sonic drive-in restaurant or a Non-traditional Location, as defined
below,
within the Franchised Area, Sonic shall offer the Developer a right of first
refusal to acquire the restaurant at a price equal to Sonic’s cost of acquiring
the restaurant. If the restaurant represents a part of an acquisition
of multiple restaurants, Sonic shall make a reasonable allocation of its
cost to
acquire the restaurant. The Developer must inform Sonic of its
decision regarding the right of first refusal within 30 days after Sonic
gives
the Developer written notice of its intention to convert the restaurant to
a
Sonic drive-in restaurant or Non-traditional Location. If the
Developer chooses to exercise its right of first refusal, the Developer must
execute Sonic’s then current form of license agreement for a Sonic drive-in
restaurant or Non-traditional Location and pay the required license fee,
as
applicable, within 20 days after the Developer notifies Sonic of its
decision. The Developer thereafter shall convert the restaurant to a
Sonic drive-in restaurant or Non-traditional Location pursuant to the terms
of
the applicable license agreement or Sonic shall have the right to repurchase
the
restaurant from the Developer at the same purchase price. If the
Developer does not exercise its right of first refusal, Sonic shall have
the
right, in its sole discretion, to own, operate and/or license other persons
to
operate the restaurant in any manner which it deems appropriate, including
(without limitation) as a Sonic drive-in restaurant or Non-traditional
Location.
4
(ii) To
develop, use and franchise the rights to any trade names, trademarks, service
marks, trade symbols, emblems, signs, slogans, insignia or copyrights not
designated by Sonic as Proprietary Marks, for use with similar or different
franchise systems for the sale of the same, similar or different products
or
services other than in connection with the Sonic System at any location,
on such
terms and conditions as Sonic may deem advisable and without granting Developer
any rights therein.
(iii) To
own and/or operate and to license any other person to own and/or operate
Non-traditional Locations within the Franchised Area. The phrase
“Non-traditional Locations” shall mean food service facilities operating under
one or more of the Proprietary Marks at locations featuring facilities other
than free-standing buildings with canopies devoted solely to the operation
of a
Sonic drive-in restaurant and accessible to the general public by automobile
from public thoroughfares. Non-traditional Locations include (without
limitation) (a) military bases and other governmental facilities; (b)
universities and schools; (c) airports and other transportation facilities;
(d)
stadiums, arenas and other sports and entertainment venues; (e) amusement
and
theme parks; (f) cafeterias and food courts in shopping centers, shopping
malls,
office buildings, and industrial buildings; (g) hotels and convention centers;
(h) hospitals and nursing facilities; and (i) museums, zoos and other public
facilities. The phrase “Proprietary Marks” shall mean the distinctive
and characteristic trade names, trademarks, service marks, and trade dress
which
Sonic designates in writing or through usage from time to time as prescribed
for
use with the Sonic system, including (without limitation) the terms “Sonic,”
“Happy Eating,” and “America’s Favorite Drive-In”; signs; emblems; menu
housings; designs; color schemes; standardized premises featuring characteristic
exterior style, canopies, colors and design (including angled parking stalls
equipped with menu housings, speakers and tray supports); interior furnishings;
and equipment layout. If the Developer is in compliance with this
Agreement and Sonic elects to own, operate or license a Non-traditional Location
within the Franchised Area, the Developer shall have a right of first refusal
to
license and operate the Non-traditional Location. The Developer must
notify Sonic in writing of its decision to license and operate the
Non-traditional Location within 30 days after Sonic notifies the Developer
of
Sonic’s intention to own, operate and/or license the Non-traditional
Location. If the Developer chooses to exercise its right of first
refusal, the Developer must enter into Sonic’s then current form of license
agreement for a Non-traditional Location for the applicable jurisdiction
and pay
the required license fee within 30 days after the Developer notifies Sonic
of
its decision. The Developer then must open the Non-traditional
Location within the time period specified in the license agreement (if
specified) or within 12 months after the date of the license agreement (if
not
specified). If the Developer does not execute that agreement within
the foregoing 30-day period or does not exercise its right of first refusal
within the foregoing 30-day period, Sonic shall have the right to proceed
with
the ownership, operation and/or licensing of the Non-traditional Location
as
disclosed to the Developer. If the owner or operator of a location
proposed for a Non-traditional Location requires that it serve as the operator
of the Non-traditional Location (such as a university, sports arenas, hotels,
or
other type of location listed above), Sonic shall have the right to proceed
with
the licensing of the Non-traditional Location to that owner or operator without
first offering the Developer the right of first refusal provided for in this
section.
5
(e) Developer
acknowledges that in the event that the Franchised Area is located in a
Designated Market Area (“DMA”) that Sonic has identified as a “Developing
Market” that Developer will be required to execute a Developing Market
Advertising Addendum in the form attached hereto as Exhibit C to each of
the
License Agreements entered into for the Sonic drive-ins developed pursuant
to
this Agreement. The Developing Market Advertising Addendum
acknowledges that the Franchised Area is located in a Developing Market and
that
the provisions of Section 11.01(a) of the License Agreement relating to
Developing Markets shall apply. Such provisions require that the
Developer contribute the amount required by the local advertising cooperative
or
5%, which ever is higher, of the “gross sales” of its drive-in (as defined in
the License Agreement) to the local advertising cooperative; however, at
any
time Sonic may alternatively designate other uses for any portion of such
Developing Market contribution if Sonic determines, in its sole discretion,
that
there is less need for advertising and a greater need for another
use.
(f) Developer
acknowledges that in the event that the Sonic drive-in restaurants to be
placed
In Operation pursuant to the terms of this Agreement represent the first
three
drive-ins to be developed by the Developer, that Developer will be required
to
execute a Special Training Addendum in the form attached hereto as Exhibit
D to
the License Agreements entered into for the first three drive-ins placed
In
Operation pursuant to this Agreement. The Special Training Addendum
requires that the Developer accept and pay the expenses of the Sonic A-Team,
a
special training team, in connection with the opening of Developer’s first three
Sonic drive-in restaurants.
(g) Because
complete and detailed uniformity under many varying conditions may not be
possible or practical, Sonic specifically reserves the right and privilege,
at
its sole discretion and as it may deem in the best interests of all concerned
in
any specific instance, to vary any standards for any Developer based upon
the
peculiarities of a particular site or circumstance, density of population,
business potential, population of trade area, existing business practices
or any
other condition which Sonic deems to be of importance to the successful
operation of such Developer’s business. Developer shall not be heard to
complain on account of any variation from standard specifications and practices
granted to any franchise owner and shall not be entitled to require Sonic
to
grant Developer a like or similar variation hereunder.
(h) Developer
has sole responsibility for the performance of all obligations arising out
of
the operation of its business pursuant to this Agreement, including, but
not
limited to, the payment when due of any and all taxes levied or assessed
by
reason of such operation.
(i) In
all public records, in its relationship with other persons, and in any offering
circular, prospectus or similar document, Developer shall indicate clearly
the
independent ownership of Developer’s business and that the operations of said
business are separate and distinct from the operation of Sonic’s
business.
(j) Developer
agrees to indemnify and hold harmless Sonic from any liability or damage
Sonic
may incur, including reasonable attorney fees, as a result of claims, demands,
costs or judgments of any kind or nature by anyone whomsoever arising out
of or
otherwise connected with this Agreement, the Developmental Rights, the
acquisition of any restaurant site or ownership, maintenance or operation
of any
Sonic drive-in restaurant by Developer.
6
(k) Developer
agrees to reside within the DMA of each restaurant placed In Operation pursuant
to this Agreement for as long as the Developer remains the licensee on the
license agreement for a restaurant placed In Operation. If Developer
consists of more than one person or is an entity, the restaurant’s operational
manager shall be a substantial equity owner in Developer and shall reside
within
the DMA of each restaurant placed In Operation as long as the Developer remains
the licensee on the license agreement for the restaurants placed In
Operation.
9. SERVICES
BY SONIC. Sonic shall, at its expense, make available to
Developer the following:
(a) The
benefit of Sonic’s experience in the selection of Sonic drive-in restaurant
sites through the use of Sonic’s Site Acceptance Form, site selection criteria
and any related materials which Sonic may make available to new licensees
from
time to time, and such review thereof as Sonic may undertake as part of its
evaluation of Developer’s request for site approvals.
(b) Such
standard construction plans, specifications and layouts for the structure,
equipment, decor and signs identified with Sonic drive-in restaurants as
Sonic
makes available to all new licensees from time to time.
(c) Review
of Developer’s site plan and final construction plans and specifications for
conformity to the construction standards and specifications of the Sonic
System,
upon Sonic’s receipt of Developer’s written request for approval
thereof.
(d) Initial
training in the Sonic System, including standards, methods, procedures and
techniques will be provided for two persons per license agreement, who may
be
the Developer (if he is an individual); a person who has an interest in
Developer (if Developer is a group of individuals, a corporation, a partnership
or an unincorporated association or a similar entity), if requested to do
so by
Sonic; or a person who is actively involved in the management or operation
of
the business of Developer or the operation of any Sonic drive-in restaurant
placed or to be placed In Operation under this Agreement. Such
training shall be at such time and places as Sonic may designate for its
training program, in its discretion, and shall be subject to the terms of
each
License Agreement.
(e) Such
periodic continuing individual or group advice, consultation and assistance,
rendered by personal visit or telephone, or by newsletters or bulletins made
available from time to time to all Developer’s of Sonic, as Sonic may deem
necessary or appropriate.
(f) Such
bulletins, brochures and reports as may from time to time be published by
Sonic
regarding its plans, policies, research, developments and
activities.
(g) Such
other resources and assistance as may hereafter be developed and offered
by
Sonic to its licensees.
7
10. USE
OF APPROVED SUPPLIERS, TRADE DRESS AND METHODS OF
OPERATION. The Developer immediately
shall support the use and shall use the products and programs of the beverage
syrup supplier approved by Sonic and used by a majority of all Sonic drive-in
restaurants, to the exclusion of any other supplier of beverage
syrup. In addition, the Developer immediately shall use the
Developer’s vote or votes in all advertising cooperatives in which the Developer
participates to support the use of the advertising agency of record for the
Sonic drive-in restaurant chain. The Developer shall comply with the
foregoing provisions not only for all Sonic drive-in restaurants licensed
pursuant to the terms of the License Agreements issued under this Agreement
but
also (to the extent the Developer has the ability) for all other Sonic drive-in
restaurants for which the Developer serves as a licensee. With regard
to any existing Sonic drive-in restaurants, the Developer shall use the
Developer’s best efforts to accomplish the foregoing, including (in the event of
any contracts in place prior to August 1, 1995) negotiating in good faith
and
assisting and supporting the agency of record or new supplier with the
assumption, purchase or mutual termination of the contract.
The
Developer shall use all reasonable
and appropriate efforts to abide by, follow, support and promote the approved
trade dress, menu, point-of-sale system, procedures for the preparation and
service of food and beverage products, marketing and purchasing programs,
and
methods of operation for Sonic drive-in restaurants as specified by Sonic
from
time to time in the Sonic Operations Manual or
otherwise. The approved trade dress shall include (without
limitation) the existing signs, logotypes and trade dress of Sonic drive-in
restaurants, as well as any modifications to the signs, logotypes and trade
dress of the Developer’s restaurants by way of the required modification,
renovation or retrofit of those restaurants.
The
terms of this Section 10 shall
continue in effect during the term of this Agreement and any license agreement
between the Developer and Sonic, and shall survive the expiration or termination
of this Agreement.
11. DEFAULT; TERMINATION
(a) The
occurrence of any of the following events shall constitute a default under
this
Agreement:
(i) If
Developer shall, in any respect, fail to meet the Performance Schedule, unless
such failure is due to extraordinary events beyond the control of the Developer
(such as acts of God, war and the like, but exclusive of matters involving
the
financial wherewithal of the Developer).
(ii) If
Developer shall use the Sonic System or Proprietary Marks, or any other names,
marks, systems, insignia, symbols or rights which are the property of Sonic
except pursuant to, and in accordance with, a valid and effective License
Agreement.
(iii) If
Developer, or persons controlling, controlled by or under common control
with
Developer, shall have any interest, direct or indirect, in the ownership
or
operation of any quick or fast-service restaurant engaged in the sale of
hamburgers or chili and related products within the Franchised Area or in
any
restaurant which looks like, copies or imitates Sonic drive-in restaurants
or
operates in a manner tending to have such effect other than in accordance
with
Section 16 of any License Agreement.
8
(iv) If
Developer shall fail to remit to Sonic any payments pursuant to this Agreement
when the same are due.
(v) If
Developer shall begin work upon any Sonic drive-in restaurant at any site
unless
all the conditions set forth in Section 7 hereof have been met.
(vi) If
Developer shall purport to effect any assignment other than in accordance
with
Section 14 hereof.
(vii) Except
as provided in Section 14(a) hereof, if Developer attempts to sell, assign,
transfer or encumber this Agreement.
(viii) If
Developer makes, or has made, any misrepresentation to Sonic in connection
with
obtaining this Development Agreement, any site approval hereunder, or any
License Agreement.
(ix) If
Developer fails to obtain Sonic’s prior written approval or consent as expressly
required by this Agreement.
(x) If
Developer defaults in the performance of any other obligation under this
Agreement.
(xi) If
Developer defaults in the performance of any obligation under any License
Agreement with Sonic or its Affiliates, regardless of whether or not said
License Agreement is terminated as a result of such default.
(xii) If
Developer, or any person controlling, controlled by or under common control
with
Developer, shall become insolvent by reason of inability to pay its debts
as
they mature; or if a receiver, permanent or temporary, of the business, assets
or property of Developer or any such person, or any part thereof, is appointed
by a court of competent authority; or if Developer or any such person requests
the appointment of a receiver or makes a general assignment for the benefit
of
creditors or if a final judgment against Developer or any such person in
the
amount of $15,000 or more remains unsatisfied of record for 30 days or longer
following the exhaustion of all appeals; or if the bank accounts, property
or
receivables of Developer or any such person are attached and such attachment
proceedings are not dismissed within a 30-day period; or if execution is
levied
against the business or property of Developer or any such person or suit
to
foreclose any lien (excluding mechanic’s and materialman’s liens) or mortgage
against any of the Sonic drive-in restaurants, the premises thereof or equipment
thereon is instituted and not dismissed within 30 days.
(xiii) If
Developer, or any person controlling, controlled by, or under common control
with Developer, shall be convicted under any law providing for criminal
penalties (excluding misdemeanors).
9
(b) Upon
occurrence of any of the events set forth in Section 11(a), Sonic may, without
prejudice to any other rights or remedies contained in this Agreement or
provided by law or equity, terminate this Agreement. Such termination
shall be effective 30 days after written notice (or such other notice as
may be
required by applicable state law) is given by Sonic to Developer of any of
the
events set forth in Subparagraphs (i) through (xi) of Section 11(a) if such
defaults are not cured within such period. Termination shall be
effective immediately and without notice, however, upon occurrence of any
of the
events specified in Subparagraphs (xii) and (xiii) of Section 11(a), except
where prohibited by state law.
(c) Upon
termination of this Agreement for any reason, or upon expiration of the term
hereof, Developer agrees as follows:
(i) To
cease immediately any attempts to select or develop sites on which to construct
Sonic drive-in restaurants, and
(ii) To
cease immediately to hold itself out in any way as a Developer of Sonic or
to do
anything which would indicate any relationship between it and Sonic except
to
the extent permitted pursuant to Section 11(d).
(d) Termination
of this Agreement shall not affect the rights of Developer to operate Sonic
drive-in restaurants in accordance with the terms of any License Agreement
with
Sonic until and unless such License Agreements, or any of them, are terminated
in accordance with their terms.
If
any of the provisions of this
contract governing termination or nonrenewal are inconsistent with Oklahoma
law,
then the laws of the State of ______________ shall apply.
12. RESOLUTION
OF DISPUTES. The following provisions shall apply to any
controversy between the Developer and Sonic (including an Affiliate of Sonic)
and relating (a) to this Agreement (including any claim that any part of
this
Agreement is invalid, illegal or otherwise void or voidable), (b) to the
parties’ business activities conducted as a result of this Agreement, or (c) the
parties’ relationship or business dealings with one another generally, including
all disputes and litigation pending or in existence as of the date of this
Agreement.
(a) Negotiation. The
parties first shall use their best efforts to discuss and negotiate a resolution
of the controversy.
(b) Mediation. If
the efforts to negotiate a resolution do not succeed, the parties shall submit
the controversy to mediation in Oklahoma City, Oklahoma, by a mediation firm
agreeable to the parties or by the American Arbitration Association, if the
parties cannot agree.
(c) Arbitration. If
the efforts to negotiate and mediate a resolution do not succeed, the parties
shall resolve the controversy by final and binding arbitration in accordance
with the Rules for Commercial Arbitration (the “Rules”) of the American
Arbitration Association in effect at the time of the execution of this Agreement
and pursuant to the following additional provisions:
10
(i) Applicable
Law. The Federal Arbitration Act (the “Federal Act”), as
supplemented by the Oklahoma Arbitration Act (to the extent not inconsistent
with the Federal Act), shall apply to the arbitration.
(ii) Selection
of Arbitrator. The parties shall select arbitrator within 10 days
after the filing of a demand and submission in accordance with the
Rules. If the parties fail to agree on the arbitrator within that
10-day period or fail to agree to an extension of that period, the arbitration
shall take place before an arbitrator selected in accordance the
Rules.
(iii) Location
of Arbitration. The arbitration shall take place in Oklahoma
City, Oklahoma, and the arbitrator shall issue any award at the place of
arbitration. The arbitrator may conduct hearings and meetings at any
other place agreeable to the parties or, upon the motion of a party, determined
by the arbitrator as necessary to obtain significant testimony or
evidence.
(iv) Scope
of Proceeding. The parties shall conduct any arbitration
proceeding and resolve any controversy on an individual basis only and not
on a
class-wide, multiple-party, or similar basis.
(v) Enforcement
of Award. The prevailing party shall have the right to enter the
award of the arbitrator in any court having jurisdiction over one or more
of the
parties or their assets. The parties specifically waive any right
they may have to apply to any court for relief from the provisions of this
Agreement or from any decision of the arbitrator made prior to the
award. The award of the arbitrator shall not have any precedential or
collateral estoppel effect on any other controversy involving Sonic or its
Affiliates.
(d) Excluded
Controversies. At the election of Sonic or its Affiliate, the
provisions of this Section 12 shall not apply to any controversies relating
to
any fee due Sonic or its Affiliate; any promissory note payments due Sonic
or
its Affiliate; or any trade payables due Sonic or its Affiliate as a result
of
the purchase of equipment, goods or supplies. At the election of
Sonic or its Affiliate, the provisions of this Section 12 also shall not
apply
to any controversies relating to the use and protection of the Proprietary
Marks
or the Sonic System, including (without limitation) Sonic’s right to apply to
any court of competent jurisdiction for appropriate injunctive relief for
the
infringement of the Proprietary Marks or the Sonic System.
(e) Attorneys’
Fees and Costs. The prevailing party to the arbitration shall
have the right to an award of its reasonable attorneys’ fees and costs incurred
after the filing of the demand and submission, including a portion of the
direct
costs of any in-house legal staff reasonably allocable to the time devoted
to
the arbitration.
13. DEVELOPER’S
REPRESENTATIONS. Developer hereby represents
and warrants to Sonic that the changes to this Agreement and the License
Agreement (if any) from those terms originally offered to Developer occurred
at
the request of Developer and upon negotiation by Developer and
Sonic.
Developer
hereby represents to Sonic
that Developer is entering into this Agreement with the intention of complying
with the terms and conditions and not for the purpose of resale of the
Development Rights hereunder. Therefore, Developer agrees that any
attempt to assign this Agreement in whole or in part other than in accordance
with Section 14 shall be deemed an event of default hereunder.
11
14. ASSIGNMENT,
CONDITIONS AND LIMITATIONS.
(a) Developer
shall neither sell, assign, transfer nor encumber this Agreement, the
Developmental Rights, or any other interest hereunder, nor suffer or permit
any
such assignment, transfer or encumbrance to occur by operation of law or
otherwise, without the prior written consent of Franchisor.
(b) In
the event of the death, disability or permanent incapacity of Developer,
Sonic
shall not unreasonably withhold its consent to the transfer of all of the
interest of Developer to his spouse, heirs or relatives, by blood or marriage,
whether such transfer is made by will or by operation of law, provided that
the
requirements of subsection (d) hereof have been met. In the event
that Developer’s heirs do not obtain the consent of Sonic as prescribed herein,
the personal representative of Developer shall have a reasonable time to
dispose
of Developer’s interest hereunder, which disposition shall be subject to all the
terms and conditions for transfers under this Agreement.
(c) Sonic
shall not unreasonably withhold its consent to a transfer of this Agreement
to a
business entity that Developer owns and controls provided that the requirements
of subsection (d) hereof have been met.
(d) Sonic
may, in its sole discretion, require any or all of the following requirements
to
be met as a condition of its approval of any transfer:
(i) At
least 30 days prior to any such proposed assignment, conveyance or transfer,
Developer or Developer’s representative shall give written notice to Sonic of
such proposed assignment, conveyance or transfer, setting forth the name
of the
person to whom the rights or obligations are to be granted, information related
to the business background and creditworthiness of the assignee or transferee,
and any other information which Sonic may ordinarily require to approve a
franchisee.
(ii) Developer
hereby represents and agrees that to the extent his assignee or transferee
does
not perform in accordance with this Agreement, Developer shall perform and
insure that the obligations hereunder are accomplished.
(iii) Developer
agrees that Sonic may determine to its satisfaction that any franchise or
securities laws in the state of the transferee/assignee will be complied
with in
the event Developer transfers, conveys or assigns any interest
herein. In the event the regulatory authorities of such state require
that any interest under this Agreement be registered with such authorities,
Developer agrees to bear the expense of any such registration and provide
the
necessary information to Sonic to insure that any such applications or
registrations with such regulatory authorities are filed in an accurate and
complete manner.
12
(e) In
the event Developer or its successor is a corporation or partnership or similar
entity, it is agreed as follows:
(i) The
Partnership Agreement, voting stock of or other ownership interest therein
(“Securities”) shall reflect that the Securities are restricted by the terms of
this Agreement. Developer shall furnish Sonic at the time of
execution of this Agreement or assignment to the corporation or partnership,
an
agreement executed by all stockholders or partners of the Developer, stating
that no stockholder or partner will sell, assign or transfer voluntarily
or by
operation of law any Securities of the Developer to any person or entity
without
the written consent of Sonic. All Securities issued by Developer will
bear the following legend which shall be printed legibly and conspicuously
on
each stock certificate or other evidence of ownership interest:
“The
transfer of these securities is subject to the terms and conditions of a
Development Agreement with Sonic Industries LLC dated ______________, and
certain License Agreements executed thereunder. Reference is made to said
Development Agreement and to the restrictive provisions of the articles and
bylaws of this corporation.”
A
stop transfer order shall be in
effect against the transfer of any securities on the Developer’s records during
the term of this agreement, unless the transferee is approved in accordance
with
subsection (c) above.
(f) Sonic’s
consent to a transfer of Developer’s interest under subsection (b) is expressly
conditioned upon the continuing personal guarantee of the obligations of
Developer under this Agreement by all transferees and the execution by said
transferees of personal guarantees of each License Agreement entered into
pursuant to this Agreement.
(g) Developer
acknowledges and agrees that the restrictions on transfer imposed herein
are
reasonable and are necessary to protect the Developmental Rights, the Sonic
System and the Proprietary Marks, as well as Sonic’s excellent reputation and
image, and are for the protection of Sonic, Developer and other licensees.
Any assignment or transfer permitted by this section shall not be effective
until Sonic receives a completely executed copy of all transfer documents,
and
consents in writing.
(h) This
Agreement shall inure to the benefit of Sonic, its successors and assigns,
and
Sonic shall have the right to transfer or assign all or any part of its interest
herein to any person or legal entity.
15. MULTIPLE
PARTY DEVELOPER. If the Developer consists of
more than one person or entity, each of those persons and/or entities shall
have
joint and several liability under this Agreement. If the Developer
consists of more than one person or entity, each of those persons and/or
entities hereby irrevocably appoint __________________________________________
as their lawful attorney-in-fact to execute all amendments to this Agreement,
all License Agreements issued pursuant to this Agreement, all addenda and
amendments to those License Agreements, and all other documents and instruments
Sonic may request in connection with this Agreement. The foregoing
appointment shall constitute a power coupled with an interest and shall survive
the death or incapacity of any of the foregoing persons.
13
16. NOTICES
For
purposes of this section, “notice
address” shall be:
(a) If
to Sonic
at: 000
Xxxxxx Xxxxx Xxxxx
Xxxxxxxx
Xxxx, Xxxxxxxx
00000
Attention: General
Counsel
(b) If
to Developer
at: ______________________________
______________________________
or
at
such other address as Sonic or Developer shall have specified by notice to
the
other party hereunder. All notices hereunder shall be in writing and
shall be duly given and deemed effective as follows:
(i) if
by hand delivery to a notice address, notice shall be effective upon
delivery,
(ii) if
sent by receipted, overnight delivery service to a notice address, notice
shall
be effective the earlier of receipt by addressee or 24 hours from deposit
with
the delivery service, or
(iii) if
by registered or certified, postage prepaid mail to a notice address, notice
shall be effective upon receipt by addressee.
17. NO
JOINT VENTURE. Nothing herein contained or
done pursuant to this Agreement shall be deemed to constitute Developer as
an
agent, partner, or joint venturer of Sonic and neither party shall have the
authority to act for the other in any manner to create obligations or debts
which would be binding on the other; neither party shall be responsible for
any
obligations or expenses whatsoever of the other.
18. GOVERNING
LAW. This Agreement shall be deemed to
have been made and entered into in the State of Oklahoma and all rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the State of Oklahoma. Developer agrees that
jurisdiction over Developer and venue exist and are proper and that venue
shall
exclusively be within the same federal judicial district where the corporate
headquarters of Sonic are located and within any and all other courts, whether
federal, state, or local, located within that district. Developer
waives any and all defenses and objections, and Developer agrees not to assert
any defense or objection to jurisdiction over Developer and to venue as
described hereinabove regarding any action, proceeding or litigation instituted
by Sonic against Developer. Sonic and Developer that any and all
breaches of this agreement, including breaches occurring after termination,
cancellation, or expiration of this agreement, shall be deemed to have occurred
where the corporate headquarters of Sonic are located.
19. REMEDIES
CUMULATIVE; WAIVER; CONSENTS. All rights and
remedies of Sonic and of Developer enumerated in this Agreement shall be
cumulative and, except as specifically contemplated otherwise by this Agreement,
none shall exclude any other right or remedy allowed at law or in equity
and
said rights or remedies may be exercised and enforced
concurrently. No waiver by Sonic or by Developer of any covenant or
condition or the breach of any covenant or condition of this Agreement to
be
kept or performed by the other party shall constitute a waiver by the waiving
party of any subsequent breach or nonobservance on any other occasion of
the
same or any other covenant or condition of this Agreement. Subsequent
acceptance by Sonic of any payments due to it hereunder shall not be deemed
to
be a waiver by Sonic of any preceding breach by Developer of any terms,
covenants or conditions of this Agreement.
14
Whenever
this Agreement requires
Sonic’s prior approval or consent, Developer shall make a timely written request
to Sonic therefor, and such approval shall be obtained in
writing. Sonic will also consider granting, in its sole discretion,
other reasonable requests individually submitted by Developer in writing
for
Sonic’s prior waiver of any obligation imposed by this
Agreement. Sonic makes no warranties or guarantees upon which
Developer may rely, and assumes no liability or obligation to Developer,
by
providing any waiver, approval, consent, or suggestion to Developer in
connection with this Agreement, or by reason of any neglect, delay or denial
of
any request therefor. Unless otherwise consented to in writing, any
waiver granted by Sonic shall be subject to Sonic’s continuing review, may
subsequently be revoked for any reason if the violation remains outstanding
effective upon Developer’s receipt of 20 days prior written notice, and shall be
without prejudice to any other rights Sonic may have.
20. SEVERABILITY. If
any provision of this Agreement or the application of any provision to any
person or to any circumstances shall be determined to be invalid or
unenforceable, then such determination shall not affect any other provision
of
this Agreement or the application of such provision to any other person or
circumstance, all of which other provisions shall remain in full force and
effect, and it is the intention of Sonic and Developer that if any provision
of
this Agreement is susceptible of two or more constructions, one of which
would
render the provision enforceable and the other or others of which would render
the provision unenforceable, then the provision shall have the meaning which
renders it enforceable.
21. ENTIRE
AGREEMENT. This Agreement together with all
License Agreements executed hereunder constitutes the entire agreement between
Sonic and Developer in respect of the subject matter hereof, and this Agreement
supersedes all prior and contemporaneous agreements between Sonic and Developer
in connection with the subject matter of this Agreement. No officer,
employee or other servant or agent of Sonic or Developer is authorized to
make
any representation, warranty or other promise not contained in this
Agreement. No change, termination or attempted waiver of any of the
provisions of this Agreement shall be binding upon Sonic or Developer unless
in
writing and signed by Sonic and Developer.
22. JOINT
AND SEVERAL OBLIGATION. If the Developer
consists of more than one person, their liability under this Agreement shall
be
deemed to be joint and several.
23. COUNTERPART;
PARAGRAPH HEADINGS; PRONOUNS. This Agreement
may be executed in any number of counterparts, each of which shall be deemed
an
original but all of which together shall constitute one and the same
instrument. The section headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect
any
provision thereof. Each pronoun used herein shall be deemed to
include the other number and genders.
15
24. ACKNOWLEDGMENTS. Developer
acknowledges that:
(a) It
has conducted an independent investigation of the business contemplated by
this
Agreement and recognizes that it involves business risks making the success
of
the venture largely dependent upon the business abilities of
Developer. Sonic expressly disclaims the making of, and Developer
acknowledges that it has not received or relied upon, any warranty or guarantee,
express or implied, as to the potential volume, profits or success of the
business venture contemplated by this Agreement, including without limitation
any representation regarding the likelihood of further or timely development
by
Sonic Restaurants, Inc. or other developers in the Franchised Area.
(b) It
has no knowledge of any representations by Sonic or its officers, directors,
shareholders, employees, agents or servants about the business contemplated
by
this Agreement, that are contrary to the terms of this Agreement or the
documents incorporated herein, and further represents to Sonic, as an inducement
to its entry into this Agreement, that it has made no misrepresentations
in
obtaining this Agreement.
(c) It
has received, read and understood this Agreement, the attachments hereto,
including the License Agreement attached hereto as Exhibit B; Sonic has fully
and adequately explained the provisions of each to its satisfaction; and
Sonic
has accorded it ample time and opportunity to consult with advisors of its
own
choosing about the potential benefits and risks of entering into this
Agreement.
(d) It
is aware of the fact that some present licensees of Sonic may operate under
different forms of agreement and, consequently, that Sonic’s obligations and
rights in respect to its various franchise owners may differ materially in
certain circumstances.
In
witness of their agreement, the
parties hereto have duly executed this Agreement as of the day and year first
written above.
Sonic: Sonic
Industries LLC
By:
_________________________________
(Vice)
President
Dated:
_______________________,
2007
Developer:
____________________________________
Dated:
______________________, 2007
16
EXHIBIT
A
TO
[Description
of Reserved Area]
EXHIBIT
B
TO
[#7
Form
of License Agreement]
EXHIBIT
C
TO
[Developing
Market Advertising Addendum to License Agreement]
DEVELOPING
MARKET ADVERTISING ADDENDUM TO LICENSE
AGREEMENT(PRIVATE)
(CIF
______)
Sonic
Industries LLC (“Sonic”), a
Delaware limited liability company, and ____________________ (the “Licensee”)
hereby enter into this Addendum to License Agreement (this “Agreement”) as of
this _ day of , 2007.
Whereas,
Sonic and the Licensee entered
into that certain Development Agreement dated the __ day of ___________,
2007
(the “Development Agreement”) which provides that in the event the geographical
area to be developed by Licensee (the “Franchised Area”) is in a Designated
Market Area (“DMA”) that Sonic has identified as a “Developing Market” that
Licensee will enter into this Agreement;
Whereas,
the Franchised Area is in a
DMA identified by Sonic as a Developing Market;
Now,
therefore, in consideration of
Sonic’s and the Licensee’s mutual covenants and agreements contained in this
Agreement and as required by the Development Agreement, and for other good
and
valuable consideration which the parties hereby acknowledge, the parties
agree
as follows:
1. Developing
Market Advertising. The parties hereby add the following new
Section 11.01(i) to the License Agreement:
(i) Licensee
acknowledges that the Franchised Area is located in a Designated Market Area
(“DMA”) that Sonic has identified as a “Developing Market” and that the
provisions of Section 11.01(a) for Developing Markets shall apply.
2. Governing
Law. The internal laws of Oklahoma shall govern the terms and
provisions of this Agreement.
3. Other
Provisions. Except to the extent modified by this Agreement, the terms
and provisions of the License Agreement shall remain in full force and
effect.
Sonic: Sonic
Industries LLC
By:
_________________________________
(Vice) President
Licensee:
___________________________________
EXHIBIT
D
TO
DEVELOPMENT
AGREEMENT
[Special
Training Addendum to License Agreement]
SPECIAL
TRAINING ADDENDUM TO LICENSE AGREEMENT(PRIVATE)
(CIF
______)
Sonic
Industries LLC (“Sonic”), a
Delaware limited liability company, and ____________________ (the “Licensee”)
hereby enter into this Addendum to License Agreement (this “Agreement”) as of
this _ day of , 2007.
Whereas,
Sonic and the Licensee entered
into that certain Development Agreement dated the __ day of _______, 2007
(the
“Development Agreement”) which provides that in the event the Licensee is
developing its first three Sonic drive-ins, Developer will be required to
accept
and pay for the services of the Sonic A-Team, a special training team, and
will
enter into this Agreement;
Whereas,
the Licensee is developing its
first three Sonic drive-ins;
Now,
therefore, in consideration of
Sonic’s and the Licensee’s mutual covenants and agreements contained in this
Agreement and as required by the Development Agreement, and for other good
and
valuable consideration which the parties hereby acknowledge, the parties
agree
as follows:
1. Special
Training Program. The parties hereby add the following new
Section 6.04(c) to the License Agreement:
“(c) Licensee
further acknowledges the importance of obtaining proper training of its
employees during the development of its first drive-ins and agrees to accept
and
pay the expenses of the Sonic A-Team, a special training team, in connection
with the opening of the Sonic Restaurant.”
2. Governing
Law. The internal laws of Oklahoma shall govern the terms and
provisions of this Agreement.
3. Other
Provisions. Except to the extent modified by this Agreement, the terms
and provisions of the License Agreement shall remain in full force and
effect.
Sonic: Sonic
Industries LLC
By:
_________________________________
(Vice)
President
Licensee: ___________________________________
SCHEDULE
I
Guaranty
and Restriction Agreement
GUARANTY
AND RESTRICTION AGREEMENT
The
undersigned (the “Guarantor”),
Sonic Industries LLC (“Sonic”), and ___________ (the “Developer”), enter into
this Guaranty and Restriction Agreement (this “Agreement”) as of the ____ day of
__________, 2007.
W I T N E S S E T H:
Whereas,
Sonic is entering into a
Development Agreement (the “Development Agreement”) dated the same date as this
Agreement with the Developer; and
|
Whereas, as a condition to entering into the Development Agreement,
Sonic
has asked that the Guarantor provide a personal guaranty of certain
obligations of the Developer set forth in the Development Agreement;
and
|
|
Whereas, Sonic also has asked that the Guarantor and the Developer
agree
to a restriction on the transfer of the equity interests in the
Developer;
and
|
Whereas,
the Guarantor is willing to
give a personal guaranty as recited above in accordance with the terms and
conditions of this Agreement.
Now,
therefore, in consideration of the
mutual covenants set forth below and other good and valuable consideration,
the
receipt and sufficiency of which the parties hereby acknowledge, the parties
agree as follows:
1. Personal
Guaranty of all Obligations. The Guarantor hereby guarantees the
prompt and full payment and performance of the following obligations under
the
Development Agreement:
(a) All
royalties due Sonic pursuant to the License Agreements entered into by and
between the Developer and Sonic pursuant to the Development
Agreement.
(b) All
brand contribution fees to the Sonic Brand Fund pursuant to the License
Agreements entered into by and between the Developer and Sonic pursuant to
the
Development Agreement.
(c) All
contributions to approved advertising cooperatives pursuant to the License
Agreements entered into by and between the Developer and Sonic pursuant to
the
Development Agreement.
(d) All
other duties and financial obligations owing to Sonic or its affiliates by
the
Developer relating to the Development Agreement and the Sonic drive-in
restaurants covered by the License Agreements, including any sign lease
agreements, entered into by and between the Developer and Sonic pursuant
to the
License Agreements.
(e) The
Guarantor hereby approves and agrees to be bound by all duties and financial
obligations owing to Sonic or its affiliates by the Developer under
all existing and future amendments to the Development Agreement
entered into by Developer and Sonic.
2. Nature
of Guaranty. This guaranty shall constitute an absolute,
unconditional, irrevocable and continuing guaranty. Sonic shall not
have any obligation to take any action against any other person or entity
for
collection of any payments prior to making any demand for payment or bringing
any action against the Guarantor.
3. Permitted
Actions. From time to time, Sonic shall have the right to take,
permit or suffer to occur any “Permitted Action,” as defined below, without
modifying, reducing, waiving, releasing, impairing or otherwise affecting
the
obligations of the Guarantor under this Agreement, without giving notice
to the
Guarantor or obtaining the Guarantor’s consent, without the necessity of any
reservations of rights against the Guarantor, and without liability on the
part
of Sonic. As used in this Section 3, the phrase “Permitted Action”
shall mean (a) an agreed amendment, extension of time or change in the manner
or
place of payment or performance of any financial obligation or duty under
the
Development Agreement or the License Agreements, (b) any waiver, leniency
or
indulgence by Sonic of any default under the provisions of the Development
Agreement or the License Agreements and (c) any delay or failure by Sonic
to
exercise any right or remedy Sonic may have under the Development Agreement
or
the License Agreements.
4. Waiver
of Notice of Acceptance. The Guarantor acknowledges and waives
notice of Sonic’s acceptance of the Guarantor’s guaranty pursuant to the terms
of this Agreement.
5. Restrictions
on Transfer. The Developer shall not issue any additional shares
of capital stock without the prior, written consent of Sonic. The
Guarantor shall not transfer, assign or pledge any of its shares of capital
stock in the Developer to any person without the prior, written consent of
Sonic.
6. Disputes. Any
dispute between the parties concerning this Agreement will be resolved in
accordance with the arbitration provisions contained in the Development
Agreement.
7. Attorneys’
Fees, Costs and Expenses. In any action brought by Sonic to
enforce the obligations of the Guarantor, Sonic also shall have the right
to
collect its reasonable attorneys’ fees, court costs, and expenses incurred in
the action.
8. Headings. The
headings used in this Agreement appear strictly for the parties’ convenience in
identifying the provisions of this Agreement and shall not affect the
construction or interpretation of the provisions of this Agreement.
9. Binding
Effect. This Agreement binds and inures to the benefit of the
parties and their respective successors, legal representatives, heirs and
permitted assigns.
10. Waiver. The
failure of a party to insist in any one or more instances on the performance
of
any term or condition of this Agreement shall not operate as a waiver of
any
future performance of that term or condition.
11. Governing
Law. Notwithstanding the place where the parties execute this
Agreement, the internal laws of Oklahoma shall govern the construction of
the
terms and the application of the provisions of this Agreement.
12. Amendments. No
amendments to this Agreement shall become effective or binding on the parties,
unless agreed to in writing by all of the parties.
13. Time. Time
constitutes an essential part of each and every part of this
Agreement.
14. Notice. Except
as otherwise provided in this Agreement, when this Agreement makes provision
for
notice or concurrence of any kind, the sending party shall deliver or address
the notice to the other party by certified mail, telecopy, or
nationally-recognized overnight delivery service to the following address
or
telecopy number:
Sonic:
000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx
Xxxx, Xxxxxxxx
00000
Attention:
General
Counsel
Facsimile
(000) 000-0000
Guarantor: _____________________________
_____________________________
(___)
___-____
Developer: _____________________________
_____________________________
(___)
___-____
All
notices pursuant to the provisions
of this Agreement shall run from the date that the other party receives the
notice or three business days after the party places the notice in the United
States mail. Each party may change the party’s address by giving
written notice to the other parties.
Executed
and delivered as of the day
and year first set forth above.
Sonic: Sonic
Industries LLC
By:
________________________________
(Vice)
President
Guarantor:
____________________________________
Developer:
____________________________________
By:
_________________________________
(Vice)
President
