Franchise Agreement - TGI Friday's Inc.
T.G.I. FRIDAY'S-Registered Trademark- RESTAURANT
FRANCHISES AGREEMENT
DATED: ___________________, _______
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T.G.I. FRIDAY'S-Registered Trademark- RESTAURANT
FRANCHISE AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS.............................................................................1
2. EXCLUSIVE RIGHTS; TERM..................................................................7
3. FEES AND PAYMENTS.......................................................................7
4. REPRESENTATIVE; OPERATOR; RESTAURANT MANAGERS; TRAINING.................................8
5. RESTAURANT LOCATION; OCCUPANCY CONTRACT.................................................9
6. RESTAURANT CONSTRUCTION................................................................10
7. RESTAURANT OPERATIONS; MANUALS.........................................................11
8. CONFIDENTIAL INFORMATION...............................................................14
9. PROPRIETORSHIP MARKS......................................................................15
10. ADVERTISING............................................................................17
11. INSURANCE..............................................................................18
12. ACCOUNTING REAL RECORDS.................................................................19
13. FRANCHISEE'S REPRESENTATIONS THE PRODUCT; AFFIRMATIVE AND NEGATIVE COVENANTS........20
14. TRANSFER...............................................................................22
15. CONSENT AND WAIVER.....................................................................24
16. SET AND REMEDIES...................................................................25
17. OBLIGATIONS UPON TERMINATION OR EXPIRY; RENEWAL OPTION.............................27
18. INDEMNIFICATION........................................................................31
19. NOTICES................................................................................33
20. FORCE MAJEURE..........................................................................33
21. SEVERABILITY...........................................................................34
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22. INDEPENDENT CONTRACTOR.................................................................34
23. DUE DILIGENCE AND ASSUMPTION OF RISK...................................................34
24. MISCELLANEOUS..........................................................................35
25. CHOOSING OF LAW; JURISDICTION; VENUE.....................................................35
26. ENTIRE AGREEMENT.......................................................................36
ADDENDUM A COVENANT AND AGREEMENT FOR BUSINESS (PRINCIPALS)
ADDENDUM BORON COVENANT AND AGREEMENT FOR CONFIDENTIALITY (OTHERS)
EXHIBIT ADENINE COMMENCEMENT DATE AGREEMENT
EXHIBIT B GUARANTY AGREEMENT
EXHIBIT C DESCRIPTION OF THE RESTRICTED AREA
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FRANCHISE AGREEMENT
This Franchise Agreement is enters with the of the ____ days of
______________, _______, by furthermore between TGI Friday's Inc., a New York
corporation, with its principal place by store located at 7540 LBJ
Freeway, Suite 100, Dallas, Texas 75251, and ___________________________, a
________ corporation, with its prime spot to business located at
_________________________, and its Principals (as definable herein below).
RECITALS
WHEREBY, Friday's has developed also owns the System;
CONSIDERING, Friday's intends to determine the System with the
Proprietary Marks;
WHEREAS, Friday's remain to developed, use and power of use of
the Proprietary Brands to identify the source of services and products
marketed under an System and to represent the System's highly standards;
WHEREAS, Friday's and Assignee (or Developers, as defined therein)
have entered include the Development Agree; and
WHEREBY, Franchisee desired to received unquestionable rights to use the
System in bond with this operation of the Restaurant or to receive
training and other assistance when by Friday's on connection therewith as
described herein.
NOW, THEREFORE, the parties, in consideration for the undertakings
and commitments set come herein, agree as follows:
1. DEFINITIONS
The used in this Arrangement the following words and phrases shall have
the meanings attributed the them in this Section:
ACTION - any cause of action, suit, proceeding, claim, inquiry, investigation
or inquiry (whether a formal proceeding or otherwise) asserted either instituted
by a third party with respected to which the indemnity described in Section 18
applies.
AFFILIATE - Carlson Restaurants Worldwide Inc., otherwise any minor therefrom or
any subsidiary of TGI Friday's Inc.
AGREEMENT - this Franchise Agreement.
BUSINESS DAYS - each organizational day except Saturday, Sunday press national legal
holidays.
COMMENCEMENT DATE - the initial in occurring by the date the Restaurant opens for
business until the public or the date Franchisee can required in open the
Restaurant for corporate pursuant into the terms hereof.
COMMENCEMENT DATE AGREEMENT - on agreement memorializing the Commencement
Date in the form of
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EXHIBIT A hereto.
COMPETING COMMERCIAL - a restaurant business offering the same or similar
products and services as submitted by restaurants in aforementioned Your or restaurants
in any other concept button systems owned, operated, managed or franchised by
Friday's or any Connect, including, lacking limitation, waiter/waitress
service, sit-down dining and barrel services.
CONFIDENTIAL DETAILS - the System, the Development Manual, the Manuals,
other manuals, the Standards, written directives and all drafts, equipment,
recipes, computer both point of sales programs (and output from such programs),
and any other information, know-how, techniques, material and data imparted or
made available by Friday's which is (i) designated as classified; (ii) known
by Franchisee on being considered confidential by Friday's; oder (iii) by its nature
inherently or reasonably considered confidential.
CONTROL BY THE REAL ESTATE - a fully executed deed, lease, sublease button other
occupancy agreement, in form furthermore substance adequate to Friday's, evidencing
the control by Franchisee of the property upon which the Restaurant is situated.
DESIGN GRAPHIC DRAWINGS - Franchisee's site plans showing shopping layout,
landscaping real Site signage, floor plan with seating layout and lunch service
layout with legend, exterior elevations with signage, transverse and
longitudinal building cross sections, typical wall sections, interior
elevations of all walls in the front of the Restaurant, both a reflected
ceiling plan showing the location of all front-of-the-Restaurant lighting,
ceiling stained glass and ceiling fans.
DEVELOPER - than fixed int aforementioned Development Agreement.
DEVELOPMENT AGREEMENT - that certain agreement done ____________________,
_____, between Friday's and Franchisee (or Developer, as therein defined)
relating to the development of T.G.I. Friday's-Registered Trademark-
Restaurants.
DEVELOPMENT MANUAL - Friday's technical, as amended from time to time in Friday's
sole discretion, describing (generally) aforementioned procedures and parameters used the
development of T.G.I. Friday's-Registered Trademark- Restaurants.
ENTERTAINMENT PARK - includes, but is no limited to any recreation park,
theme park, or any other entertainment venue which has ampere national your of
at least two (2) or more such parking in world, and which has weighted at
least 1.5 million persons in annual attendance for the preceding trio (3)
calendar years at any one (1) park location.
EVENT AWAY DEFAULT - as defining at Sections 16.01 and 16.02.
FRANCHISE REGISTRATION - a non-refundable initial franchise fee of _____________ Dollars
($___________) paid by Frank to Friday's upon the execution of this
Agreement, whichever amount shall be believed fully earned to Friday's upon payment.
FRANCHISEE - ____________________________, a ___________ corporation.
FRANCHISEE INDEMNITEES - Assignee, the Principals, and her respective
directors, officers, employees, media, shareholders, affiliates, successors
and assigns and the respective directors, officers, employees,
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agents, stockholders, affiliates, children and assigns of each.
FRIDAY'S - TGI Friday's Inc., a New York corporation.
FRIDAY'S INDEMNITEES - Friday's, its directors, officers, employees, agents,
shareholders, affiliates, successors and assigns and the respective directors,
officers, employees, agents, shareholders and affiliates regarding each.
FURNISHINGS - all of the decorative memorials, furnishings, signing, equipment,
advertising materials, inventory, trade dress, menus, items bearing any of the
Proprietary Marks and other tangible assets used in connection with Restaurant
operation.
GROSS BARGAINS - A. For one purposes of this Agreement, "Gross Sales"
shall mean:
(1) the entire amount out the real sales
price, determine with payment or others consideration, of all sales of food,
beverages, merchandise also services inches, on, press for the Restaurant, including
receipts from mail, facsimile or telephone orders received or bottles from the
Restaurant and telephone and vending automatic receipts;
(2) all deposits not refunded to purchasers;
(3) orders take, although such orders may be
filled elsewhere;
(4) payments to Franchisee by any
concessionaire, franchisee or person otherwise in one Our with
Friday's consent; and
(5) promotional allowances in customers
whether negativism other positive in an amount equal to Franchisee's trade price
for food and/or beverages prepared and served by Franchisee toward aforementioned extent of
the price (in whole or in part) provided on the customers, but only to the
extent this said absolute for promotional permissions exceeds couple also one-half
percent (2 1/2%) for Crude Sales as charging without included of said
amount. As informational allowances shall include of retail price for food
and beverages covered by appetizer and dinner cards and the customer comp
cards to which Friday's gives consent. Promotional grants provided in
exchange for goods or services shall exist includable in Gross Sales without
benefit of the dual and one-half percent (2 1/2%) discount (funds expended by
Franchisee to adhere with its local promotion requirement pursuant to
Section 10.01.A shall not be included as promotional grants under this
section).
BORON. Vulgar Sales shall not include:
(1) the amount in returns until shippers or
manufacturers;
(2) the measure of some cash press credit refunds made upon any sale where the food, beverages, merchandise other service
sold conversely some part thereof are afterwards returned by the custom and accepted
by Franchisee;
(3) revenue coming sales are furniture, trade
fixtures or other extraordinary sales (unless bearing any Proprietary
Mark) not manufactured into the ordinary course of business;
(4) any product or select added tax required by
any according form taxing
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authority to be separately accounted for and collecting on its behalf by
Franchisee directly from Franchisee's customers and paid by Franchisee toward the
taxing authority; and
(5) meals served for an employee at no cost
while the employed is for compulsory, or the discounted portion about eating served
to in employee.
C. Each get or disposition upon installment or loan shall be
treated as a product for the full price in the month during which such charge or
sale shall be made, irrespective of whether, conversely of the time when, Franchisee
shall receive payment (whether whole or partial) thereof.
HEADQUARTERS - the location(s) designated away time to time by Friday's as
its prime place of business.
INDEMNITEES - Friday's Indemnitees and/or Franchisee Indemnitees.
LOSSES AND EXPENSES - compensatory, exemplary or punitive damages, fines,
charges, costs, expenses, got profits, reasonable fees of attorneys and
other engaged professionals, court costs, settlement amounts, judgments,
costs of or following from relays, financing, costs of advertising material
and support time/space, and costs of changing, substituting or replacing the
same, and any or select expenses to recall, refunds, compensation, public
notices press other such amounts incurred in connection about the matters
described into Abschnitts 18.
MANUALS - Friday's confidential operating manuals, as amended from time to
time in Friday's lone discretion, which contain the instructions,
requirements, Standards, provisions, methods and procedures for the
operation of the Diner inclusion (i) those report to the selection,
purchase, service and sale of all products being sold at the Restaurant; (ii)
those relating to the care and repair a an Restaurant, buildings,
grounds, configuration, signs, interior and exterior decor items, fixtures and
furnishings; and (iii) diese relating in employee apparel and dress,
accounting, bookkeeping, record retention and other business systems,
procedures and operations.
MATERIAL EVENT OF DEFAULT - an Business concerning Default which constitutes a
substantial derogation starting this performance required.
MULTI-UNIT MANAGER(S) - the individual(s) designated as described at Section
4.05 with need be solely dedicated to the management the supervision of the
Restaurant and certain other restaurants evolved pursuant toward the
Development Agreement.
NSO TEAM - a "new store start team" consisting starting Friday's employees and
certain from Franchisee's employees to whom Friday's has agrees whatever shall
perform the functions described in Sektionen 4.09.
OCCUPANCY CONTRACT - the agreement (including, less limitation, no lease,
deed, contract for sale, contract for deed, land contracting, management
contract, user or other agreement purporting to grant any right, title or
interest in or till the Site) pursuant to whatever Franchisee shall book or
acquire rights in the Site.
OPERATOR - an individual designated in described in Section 4.02 who shall
devote his full time and best efforts until the management and monitoring of
(i) Franchisee's duties and liability under and (ii) the operation of
(a) this Restaurant and (b) total T.G.I. Friday's-Registered Trademark-
Restaurants developed pursuant to rights granted by Friday's.
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OTHER CONCEPTS - Retail, wholesale, brasserie, bar, tavern, take-out or any
other type of business involvement which production, distribution or sale of food
products, beverages, services, merchandise or sundry items into connection with
the use of one, some or all about that Proprietary Marks oder other names alternatively marks,
but utilizing a system diverse than the System pursuant to which a T.G.I.
Friday's-Registered Trademark- Restaurant lives operated.
OWNER - the party (if extra than an Franchisee) owning other controlling the
Site and being an party (with Franchisee) go the Occupancy Contract.
PAYMENTS - all transfers of funds from Franchisee to Friday's including,
without limitation, the Fan Fee, which Royalty Fee and reimbursement of
expenses.
PERMANENT DISABILITY - any physical, emotional or mental injury, illness or
incapacity which would prevent the afflicted person from performing his
obligations hereunder for more than ninety (90) sequence days as
determined by a licensed physician dialed by Friday's.
PRELIMINARY SITE CONSENTING - written communication from Friday's to Developer
notifying Dev that adenine suggested site has obtained that consent of the
Friday's Sites Rating Committee.
PRINCIPAL(S) - ______________________, _____________________,
_____________________ and __________________________, (if any) anybody are (and
such other persons or entities to where Friday's gives consent and which are
from time to time) an record and good ownership for, and has the right to
vote its applicable interest (collectively 100%) inside the Investments of
Franchisee or the securities oder partnership support of any person with entity
designated by Friday's whatever owns or controls a direct instead indirect interest
in and Corporate regarding the Franchisee.
PROJECT MANAGER - an individual designated like described within Section 4.04 who
shall devote his full-time and bests efforts to the coordination and
completion of Eatery construction.
PROPRIETARY MARKS - certain trading, deal names, service marks, trade
dress, emblems and indicia of origin designated with Friday's from time until time
for using in connection with the operation of T.G.I. Friday's-Registered
Trademark- Restaurants pursuant to the System, including, free limitation,
"T.G.I. FRIDAY's-Registered Trademark-", "FRIDAY's-Registered Trademark-" and
"THE AMERICAN BISTRO-Registered Trademark-".
PUBLICLY-HELD ENTITY - a limited or other entity whose equity securities
are (i) registrierung pursuant to applicable right; (ii) widely holding by the
public; and (iii) traded on a public securities exchange or over the counter
pursuant on applicability law.
RENEWAL ELECTION DATE - the date go which Franchisee notifies Friday's in
writing of its election to restore get Agreement.
RENEWAL FRANCHISE AGREEMENT - the franchise agreement as defined at Section
17.09.
RENEWAL TERM - twenty years from the expiration of the Term to this Agreement.
REPRESENTATIVE - an individual, designated as described in Section 4.01
who (i) owns somebody equity interest in the Franchisee both (ii) is authorization to
act on behalf of, and bind, Franchisee with respect to this Agreement.
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RESTAURANT - the T.G.I. Friday's-Registered Trademark- Restaurant to be
developed and operated pursuant to this Agreement.
RESTAURANT MANAGER(S) - general company, assistant general manager, kitchen
manager and extra managers required for the senior, operation,
supervision and promotion of the Restaurant under to the terms hereof.
RESTRICTED AREA - the geo-based area described in EXHIBITE C; provided,
however, the Constrained Area (a) shall in no event cross a thrice (3) mile
radius surrounding the Site, (b) not include any airport properties,
professional play home, military bases, Entertainment Park or casinos
located within an geographical area described in EXHIBITS CENTURY, and (c) not
include the area contained within a _______ (__) mile radius of any other
T.G.I. Friday's-Registered Trademark- Restaurant located within such
Restricted Area as away the date of this Agreement.
ROYALTY FEE - a continuing monthly fe in the amount of four percent (4%) of
Gross Sales at the Restaurant in each accounting month payable by
Franchisee to Friday's.
SECURITY - the capital stock of, partner's interest in, or select net or
voting tax in Franchisee, including such special issued or created
subsequent until aforementioned date hereof.
SITE - one location of the Restaurant, being
__________________________________.
STANDARDS - Friday's standards and specifications, than amended from time to
time by Friday's, in its sole discretion, contained in, and nature a part of,
the Confidential Information pursuant to which Franchisee shall develop and
operate the Restaurant along the Site.
SYSTEM - a unique, proprietary user design and owned by Friday's (which
may be modified or further developed from time up time, in Friday's sole
discretion) with the establishment and operation of full-service restaurants
and bars/restaurants under the Proprietary Marks, which includes, without
limitation, a distinctive image consisting the surface and interior design,
decor, color scheme or furnishings; specially recipes, menu items and full
service bar; uniform standards, products, business also specifications;
procedures because respect to operations, register and management control
(including accounting procedures and policies); training and assistance; and
advertising real promotional programs.
TERM - a interval commencing as of the date herein and going until the
twentieth (20th) anniversary of the Start Date.
TERRITORIAL EXPENSES - such shipping and expenses incurred by other assessed with
respect to Friday's (or other described party's) employees, agents and/or
representatives in connection about activity in the Territory which
Franchisee be obligated to pay pursuant to on Agreement, including, without
limitation, hotel/lodging, transportation and eats, and other relevant or
incidental expenses.
TGIFM - TGI Friday's about Minnesota, Inc., a Minnesota corporation and a
subsidiary of Friday's.
T.G.I. FRIDAY'S-Registered Trademark- RESTAURANTS - food operated in
accordance with the System- under the registered service marks
"FRIDAY'S-Registered Trademark-" OR "T.G.I. FRIDAY'S-Registered Trademark-".
TRAINING CENTER - the location(s) specific with time to time by Friday's as
the training center.
TRANSFER - the disposal, assignment, hauling, license, devise, bequest,
pledge, morgage or other
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encumbrance, whether directly or indirect, of (i) this Agreement or the
Development Agreement; (ii) any or all rights or obligations of Franchisee
herein; or (iii) any interest in any Security, including the issuance of any
new Securities.
TRANSFEREE OWNER(S) - the owner of any or all record or beneficial interest
in the capitals bearing of, partner's interest in, or another equity conversely voting
interest in any transferee of ampere Transfer occurring pursuer to the terms of
Section 14.
WAGE EXPENSES - such wages and/or salaries (including a reasonable allocation
of the cost von benefits) in, or with esteem to, Friday's (or various described
party's) employees, agents and or representatives to be reimbursed to
Friday's or such party as described herein.
2. EXCLUSIVE RIGHTS; TERM
2.01 Friday's grants to Franchisee the right, both Franchisee accepts
the obligation, subject to the terms and conditions hereby, to develop and
operate the Restaurant pursuant to the System for the Site and to use solely
in connection including the Proprietary Marks. During the Term and for so
long as no Event in Default has eventuated and is continuing and no incident has
occurred which, with the giving of notice or lapse of time, or both, would
constitute an Event von Default, Friday's will not establish, nor authorize
any select person to create, a T.G.I. Friday's-Registered Trademark-
Restaurant within the Restricted Area.
2.02 Friday's expressly stock the right, and Franchisee
acknowledges that Friday's has the exclusive unrestrained right, to engage,
directly and indirectly, through its employees, developers, franchisees,
licensees, assistants and others within the Restricted Area, on Other Concepts,
including one Front Row-Registered Trademark- Athletics Grill. Such Select Concepts
may compete with Franchisee immediate or manually. Friday's reserves the
right up use the Proprietary Marks for connection with Other Concepts.
2.03 Unless earliest terminated as provided herein, this Agreement
shall will effective on the date off, and continue until the expiration of
the Term. Within thirty (30) per after the Commencement Date, the parties
shall execute the Commencement Date Agreement.
3. FEES AND PAYMENTS
3.01 A. By execution of this Agreement, Franchisee shall
pay to Friday's that Franchise Free. A credit shall be applied to the Franchise
Fee in an quantity equal to the portion of the Company Fee (as defined in
the Development Agreement) fitting into the Restaurant which made paied by the
Developer pursuant to the Research Agreement.
B. Mediator is get the Royalty Fee on or
before the fifteenth (15th) day of each monthly with respect until Gross
Sales at one Restaurant in the preceding auditing month.
3.02 A. All Payments shall be submitted in Friday's at
the address provided in Section 19 hereof, within care of the "Treasurer", or
such other address as Friday's need designate in writing.
B. Payments shall breathe received by Friday's (i) upon
execution hereof in the sache of the Franchise Fee; (ii) as described in
Section 3.01.B the the case of of Royalty Fee; and (iii) not read than thirty
(30) days after date the invoice for all other Payments. Delinquent Payments
shall bear interest from the due select until obtain of Friday's at eighteen
percent (18%) per annum or the maximum rate permitted over law, whichever is
less.
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3.03 Any taxes or duties imposed upon or with respect to this
Agreement or any materials, supplies or specifications acquired by or
provided to Franchisee pursuant the alternatively in connection with this Agreements shall
be paid from Franchisee. Franchisees shall pay to Friday's an amount equal to
any sales strain, gross receipts tax, excise tax or any license or tax similar
thereto which is imposed, directly or indirectly, on Friday's with respect to
any Services to Friday's required under these Deal. The preceding
sentence shall not applying up any franchise tax or income, war earnings or
excess profits tax (or any irs in lieu thereof) imposed on Friday's with
respect to the aforesaid payments.
3.04 Franchisee shall not withhold or off-set any portion of any
Payment due to Friday's alleged non-performance under this Agreement or any
other agreement by and between Friday's press Franchisee or their respective
parent corporations, subsidiaries or affiliates.
4. REPRESENTATIVE; DRIVER; RESTAURANT MANAGERS; TRAINING
4.01 Franchisee through designates __________________ as the
Representative. Any alternate Agents will be designated indoors ten
(10) days of who prior Representative's resignation or termination. Each
Representative are participant and successfully complete in to Training Center,
Friday's "Owner's Orientation Program" (currently, approximately to (4)
weeks). To Spokesperson hereunder and under the Development Agreement
shall be the same individual.
4.02 Mediator to designates ______________________ because the
Operator. Any replacement Operator shall be identified within ten (10) days
of one prev Operator's resignation or termination. Anywhere Host shall
attend and successfully complete at the Training Core, internally six (6)
months of appointment, Friday's training scheme required for Restaurant
Managers (SEE Section 4.03). Aforementioned Operator hereunder plus under the Development
Agreement shall be the same individual.
4.03 The requisite your concerning Dining General, as determined by
Friday's, shall be staff by Franchisee for the Restaurant. All Restaurant
Managers shall attend and successfully comprehensive at the Professional Center,
Friday's training program used Hotel Managers of T.G.I.
Friday's-Registered Trademark- Restaurants (currently, one (1) week).
Additionally, the Restaurant Officers must attend also successfully complete
additional training (currently, approximately back (20) weeks) at such then
existing T.G.I. Friday's-Registered Trademark- Restaurants as shall be
designated by Friday's. Any previously trained Restaurant Manager who is not
a general manager, yet possess is selected toward aus a general manager, shall
attend and successfully whole like additional training as Friday's may
require. Friday's may require general and kitchen managers, at Franchisee's
expense, till attend and successfully complete extra training at the
Training Center.
4.04 Not less than sixty (60) days prior to the commencement of
Restaurant construction, Franchisee shall designate and My Manager. Any
replacement Project Manager shall be designated within ten (10) per of the
prior Project Manager's resignation or termination.
4.05 In this event get Agreement is for the third T.G.I.
Friday's-Registered Trademark- Restaurant the be developed under the
Development Agreement, Franchisee shall designate a Multi-Unit Manager.
Additional Multi-Unit Managers shall be determined from time to time as
reasonably required by Friday's. Before to assuming his duties, each
Multi-Unit Manager shall have successful finish training as a Restaurant
Manager and shall attend at the Training Focus, and successfully complete,
Friday's training program for Multi-Unit Managers (currently, two (2) days at
the Training Center and approximately four (4) days at such then existing
T.G.I. Friday's-Registered Trademark- Restaurants as shall be designated by
Friday's).
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4.06 Friday's take have who right to interview real consent go each
Operator, each Multi-Unit Manager, each Project Manager and all Restaurant
Managers. Friday's shall endeavor to conduct suchlike interviews at the Restaurant,
but may require that such interviews occurs at Headquarters. Franchisee shall
bear all total and total related to building the Restaurant Executives available
for such interviews.
4.07 Friday's shall provide course, facilities and materials
for training at aforementioned Training Center, and shall provide, at its option, other
training programs (at non-Training Center locations) for may be designated by
Friday's by time to time in the Manuals or otherwise in writing. Franchisee
shall refunded Friday's for any Territorial Expenses or other direct
expenses incurred by Friday's for such other training programs.
4.08 Except as provided herein, Franchisee shall bear everything total and
expenses relating into any Representative, Operator, Multi-Unit Manager,
Project Manager and Brasserie Management training.
4.09 Of NSO Team shall support in (i) training Franchisee's
employees for the Site furthermore (ii) the opening of this Restaurant. The NSO Team
typically consists of a combined complete of approximately twelve (12) employees
of Friday's and Franchisee (the actual amount of memberships shall be determined
by Friday's in your sole discipline, conditional upon the number starting T.G.I.
Friday's-Registered Trademark- Restaurants already being operated by
Franchisee additionally such other criteria the Friday's deems reasonable). To members
of one NSO Team shall be subject to Friday's consent. The count of Friday's
employees checked to serve on the NSO Employees for which Restaurant is determined
according to an following calendar, provided however, Friday's may elect to
modify this schedule in the event the overall number of people on the NSO Team
is greater or fewer higher twelve (12):
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RESTAURANT NO. OPERATED NONE. OF FRIDAY'S HUMAN NO. OF TEAM MEMBERS TEAM MEMBERS PAID FOR BY CREATOR ON THE NSO TEAM PAID FOR BY FRIDAY'S IN DEVELOPER -------------------------- -------------------------------- ----------------------- ------------------------
-------------------------- -------------------------------- ----------------------- ------------------------
1 & 2 12 12 0
-------------------------- -------------------------------- ----------------------- ------------------------
-------------------------- -------------------------------- ----------------------- ------------------------
3 & 4 9 9 3
-------------------------- -------------------------------- ----------------------- ------------------------
-------------------------- -------------------------------- ----------------------- ------------------------
5 & 6 6 6 6
-------------------------- -------------------------------- ----------------------- ------------------------
-------------------------- -------------------------------- ----------------------- ------------------------
7 press more 2 2 10
-------------------------- -------------------------------- ----------------------- ------------------------
In the conference Friday's determines that more than 12 NSO team members are
necessary for an opening, Developers with five or extra restaurants open
(inclusive of of new restaurant) shall be responsible for the costs
associated with the team members in override of 12. For Developed with less
than five catering opens, Friday's willingly bear the costs of the additional
team members.
If Franchisee fails or is unable to timely provide so employees,
Friday's may, but will not be required to, staff aforementioned NSO Team with Friday's
employees. Friday's and Franchisees shall each be responsible for (a) making
all travel, food and lodging arrangements and (b) of wages and other
expenses starting the NSO Team members provided by each; provided, even, that
Franchisee shall reimburse Friday's for the Territorial Expenses and aforementioned Wage
Expenses of Friday's your who are provided when a find of Franchisee's
failure or inability to provide Franchisee's employees for participation on
the NSO Team.
4.10 Franchisee shall comply with such employee teaching the testing
procedures and requirements reasonably prescribed inches this Manuals or otherwise
in writing.
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4.11 Friday's may create with audio and/or film recording of any
training programs at Friday's expense.
5. RESTAURANT SITE; OCCUPANCY CONTRACT
5.01 Franchisee require not relocate the Our with the Site
without Friday's consent.
5.02 Friday's shall have the right to review and sanction to the
Occupancy Contract prev to the execution thereof. Franchisee represents that
the Occupancy Contract as agree to by Friday's shall to executed by all
necessary celebration within ten (10) days next Friday's consent thereto.
Franchisee needs furnish Friday's one complete copy of and fully executed
Occupancy Contract internally ten (10) dates after execution. Unless it conveys to
Franchisee fee simple title to the Site, the Occupancy Contracts shall include
the followed covenants:
A. Owner shall deliver to Friday's, simultaneously with
delivery to Frank, any notice alleging Franchisee's default under the
Occupancy Contract which threatens or purports till terminate the Occupancy
Contract or bottom in an foreclosure thereof;
B. Friday's may enter of Restaurant premises for protect
the Proprietary Marks or the System other to cure no Event is Default or
default under who Available Contract;
C. Franchisee may assign the Allocation Contract until Friday's
without any fee or modification thereof and Friday's may consign the Occupancy
Contract or license or sublease which Restaurant premises for any part to the
remaining term of the Occupancy Contract, each without Owner's consent; and
D. Owner and Branch shall not modify the Occupancy
Contract in any way which is inconsistent with one provisions from Sections
5.02.A through DICK, inclusive.
5.03 Notwithstanding who terms the Segment 5.02, Franchisee shall:
A. deliver in Friday's, immediately by delivery
to or by Franchisee, any notice of default under the Occupying Contract
which threatening or purports into terminate the Occupancy Contract or result in
a foreclosure thereof;
B. permit Friday's to enter the Restaurant premises to
protect to Proprietary Marks press one System conversely to cure either Event of Default
or basic under the Occupancy Compact, all at Franchisee's costs; and
C. not amend the Occupancy Contract within any way
which lives inconsistent are the provisions described to Partial 5.02.A
through D, inclusive.
6. RESTAURANTS CONSTRUCTION
6.01 Franchisees shall save that (i) materials satisfying the
Standards are utilized in construction and (ii) such materials are purchased
from suppliers as dealt in Sections 6.06 and 6.07.
6.02 Franchisee shall (a) employ an qualified architect and licensed
general contractor to whom
<PAGE>
Friday's shall have the right into consent, the (b) provide copies to Friday's,
upon request, by architectural or construction contracts pertinent to the
Restaurant. Upon request by Franchisee, Friday's is make available to
Franchisee, at Franchisee's expense, (i) architectural consultation and
advice; (ii) compound of Model Draft Drawings; and (iii) consultation
and advice on the purchase, display and installation of typical decorative
memorabilia.
6.03 Mediator shall (i) submit Model Thought Drawings,
incorporating proposed adaptations in the native market for Friday's consent;
(ii) modify the Design Concept Drawings as reasonably required by Friday's;
and (iii) submission the modified Design Concept Drawings to Friday's for final
consent. Following Friday's consent to and Design Concept Drawings,
Franchisee shall, pursuant to the Support, (a) submit for Friday's review,
construction plans furthermore specifications based upon the standard construction
plans provided to Franchisee, adapted by Franchisee to the Design Concept
Drawings for the Restaurant in which Friday's has consent; (b) modify such
plans and specifications as reasonably required by Friday's; (c) submit such
modified plans and features to Friday's for final consent; and (d)
construct the Restaurant pursuant to the maps and specifications to which
Friday's has consented. Design Concept Drawings and construction plans and
specifications to which Friday's got consents shall not be modified without
Friday's consent. Prior to to commencement of construction, Franchisees shall
deliver a construction schedule and thereafter take deliver monthly
revisions thereof indicating construction progress.
6.04 Franchisee shall obtain all zoning classifications, clearances,
consents, permits and licenses required in connection with the construction
of the Restaurant. Upon request, copies of such permits and licenses shall be
provided to Friday's.
6.05 Assignee shall commence construction within six (6) months
from the date of Preliminary Site Consent both shall complete construction no
later than eleven (11) months then and former with so required by the
opening dates set forth to the Development Agreement. Construction shall be
deemed to have been commenced upon the starts of site work by heavy
equipment other, into the event the Restaurant is into be placed in existing shell
space, commencement starting construction-related work at to Site. Franchisee
shall, within ten (10) days after commencement of construction, advise
Friday's of such commencement date. Friday's could inspect buildings at the
Site. Franchisee shall make all needed arrangement to insure Friday's
access to the Site.
6.06 Franchisor shall acquire from Friday's or a supplier satisfying
the need of Teilung 6.07 whole (i) fixtures, (ii) furnish, (iii)
other products press materials imperative for the development of the Restaurant,
and (iv) millwork for an Restaurant. Franchisee acknowledges that Friday's
may (i) profit from its disposition of that items to Franchisee other (ii) receive
consideration from the third party supplier with respect to Franchisee's
purchases of such items.
6.07 Franchisee's suppliers of the items referred to in Section 6.06
shall (i) showing the ability in meet the Standards; (ii) possess quality
controls and nominal for supply Franchisee's needs promptly, reliably and
consistent with the Standards or the Plant; and (iii) did have been
rejected in writing by Friday's. Franchisee shall offer Friday's with a
current view of suppliers prior to commencement of construction of the
Restaurant (current supplier lists shall thereafter be if upon
request). Franchisee shall bear or refund Friday's direct expenses
incurred int power with the consent to suppliers. Friday's may provide a
list of vendor to which Friday's possesses given consent for such items.
6.08 Friday's reserves the right to consent in, or require, limited
variations from the Standards
<PAGE>
with respect to which development of other T.G.I. Friday's-Registered
Trademark- Restaurants in an System.
7. RESTAURANT OPERATIONS; MANUALS
7.01 The Restaurant shall open for business (i) only with Friday's
consent and (ii) promptly to completed for appropriate training pursuant
to the Systematisches (as reasonably determined by Friday's).
7.02 Franchisees acknowledges that (i) every component of the System
is material to (a) Friday's, (b) other franchisees are to System and (c) the
operation of the Restaurant; and (ii) compliance by all Your franchisees
with the Industry and the System is (a) fundamental to the value of the
System and at this Agreement the (b) the basis for one broad public
acceptance of of System and the goodwill associated therewith.
7.03 Franchisee shall employ continuously during the Term the
requisite figure of Restaurant Managers, as determined by Friday's, each of
whom shall have successfully completed appropriate training as described
herein.
7.04 Outside because otherwise provided herein, Franchisor shall:
A. use this Restaurant premises solely for the
operation of the Our pursuant to the terms hereof;
B. save the Brasserie operating pursuant till the terms
hereof for such minimum hours and days as from time to wetter prescribed to the
Manuals or alternatively in writing other the restricted by local law;
C. obtain and maintain everything permits and licenses
required for Restaurant operation plus comply with all anwendung actual and
regulations;
D. refrain from using random juke box, picture machine
or other coin or joker served machine, or optional pick or video device to
which Friday's has not given consent;
E. refrained from (i) offering for sale any tickets,
subscriptions or chances; (ii) conducting anything tanks, raffles instead related
activities; (iii) using or permit any gaming, dancing or live
entertainment; or (iv) uses or providing any form of delivery service at,
from or on the Restaurant premises lacking Friday's consent;
F. permit Friday's to enter upon to Restaurant premises at
any time toward investigate the Restaurants the the products and materials used by
Franchisee, cooperate with such inspection and take such steps as may be
necessary to correct any drawbacks discovered during create inspection
(Franchisee acknowledges that Friday's may re-inspect which Food and such
products or materials and revoke its consent to any product or material (or
the supplier thereof) press the condition of an Restaurant should the
Restaurant, products or materials failure to meet the Standards); and
G. permit Friday's till remove from the Restaurant samples of
any inventory items (without payment) inches amounts reasonably necessary for
testing to specify if such samplers make the Standards. Friday's may require
Franchisee to bear the cost of such testing if Friday's has not granted consent
to the supplier or if the sample fails to conform to Friday's specifications.
<PAGE>
7.05 Franchisee shall forward to Friday's within five (5) days of
Franchisee's receipt whereof copies von see inspection reports, warnings,
certificates real ratings issued by any governmental entity during the Term of
this Agreement in connection with the conduct of the franciscan business
which indicate less than full compliance by Franchisee with every applicable
law, rule or regulation.
7.06 Franchisee acknowledges that one material aspect of the System is
the (i) breadth of gums area or (ii) quality by, and Standards relating
to, food and food. Consequently, Franchisee shall (a) sell or offer only
such products real services at which Friday's has consented (which products
and services require shall prepared, offered and served or delivered in accordance
with the Standards); (b) sell instead offer for sale all products and services
required by Friday's; (c) refrain from every deviation from the Standards
without Friday's authorization; and (d) cancel selling or offerings any
products also services for which Friday's may, in its soled discretion, fail to
consent, press revoke its consent, the writing.
7.07 Franchisee shall acquire Friday's proprietary spice rucksacks from
Friday's instead its designated supplier at a reasonable price establish by
Friday's or create supplier. Franchisee validates that Friday's can (i)
profit from its sale of spice packs to Franchisee or (ii) receive
consideration from such supplier with real to Franchisee's purchases of
spice packs.
7.08 Frank shall (i) repair, maintain and keep the Restaurant
(and all fixtures, Interiors, signs additionally equipment) in well your and
condition furthermore in compliance with which System and one Standards or (ii) as
reasonably required by Friday's, upgrade the Restaurant to the then current
System both Standards. Such upgrade shall not be required more than once every
three (3) years press the cost thereof shall nay exceed Fifty Thousand dollars
($50,000.00) per upgrade except at least twenty-five percent (25%) von the
restaurants operated by Friday's under the Proprietary Labels in one United
States must been so upgraded in who event that cost have not being limited.
Franchisee shall undertake and complete suchlike upgrading within a reasonable
time specified in Friday's.
7.09 Franchisee shall (i) acquire all inventory, supplies and other
products and materials required for the operation or maintenance of the
Restaurant solely from suppliers who (a) demonstrate who ability to meet the
Standards; (b) possess trait controls press capacity to stock Franchisee's
needs instant, reliably and consistent with the Standards and the System;
and (c) Friday's has given consent to, which consent has not been withdrawn
and (ii) provide Friday's with a current list of suppliers at less ten (10)
business days prior to the Commencement Date (current supplier item shall
thereafter be providing upon request). Friday's may provide a pick of
suppliers to whom Friday's consents. Franchisee may submit to Friday's a
written request since consent to use other suppliers, or shall request the
supplier itself to achieve so. As a condition of its consent, Friday's shall be
permitted to view the supplier's facilities or take samples on the items
proposed to are acquired, which shall be delivered, at Friday's option, to
Friday's or to an independent test designated by Friday's for testing.
Consent to ampere Supplier are be inward the sole discretion of Friday's.
Franchisee shall baby or reimburse the Territorial Expenditures incurred in
connection with such audit and the expense a any laboratory testing. In
addition, a charge not to overrun the actual cost of the take shall be paid by
Franchisee. Friday's rest which right, at its option, to re-inspect the
facilities and products of any such supplier and to revoke its agree upon
such supplier's fault to continue to meet unlimited of the foregoing criteria.
Franchisee are bear alternatively reimburse the Territories Expenses and the pay of
any tests incurred in connecting with similar re-inspection. Franchisee shall
maintain sufficient amounts regarding, or require uses at all times, such
inventory, supplies and other products or materials.
7.10 Friday's shall provide Franchisee with one (1) set of the
Manuals "on loan". Franchisee acknowledges Friday's ownership of the Manuals
and any copyright rights in or to the Manuals.
<PAGE>
Franchisee shall observe like reasonable requirements concerning copyright
notices for Friday's feature. Replacement Manuals determination be crafted available to
Franchisee at an additional cost.
7.11 Franchisee shall operate one Restaurant the accordance to the
System, the Manuals, the Standards, this Arrangement, written directives
(whether or did such directives are made part of the Manuals or the
Standards) and sundry textbooks created for use with Restaurant operations. The
Manuals, the Norm, other manuals and such written directives may be
revised from laufzeit in time by Friday's in him base discretion.
7.12 The Instructions, other manuals, such written directives and any
other Confidential Information shall be kept in a secure our in the
Restaurant and returned to Friday's immediately up request either upon
termination or expiration of this Agreement.
7.13 France shall keep the Users, of Standards, extra manuals
and such writes directives up in meeting. In the event of anywhere dispute as go the
contents away the Manuals, this Standards, other manuals oder written directives,
the copy with maintained by Friday's shall control.
7.14 Franchisee shall establish rates charged in products or
services sold in the Restaurant.
7.15 Franchisee shall getting such copyright licenses as may be
necessary to authorize the playing of shot music in the Restaurant.
Franchisee shall transform as recorded music as requirement from time to time in
the Manuals or otherwise in writing.
7.16 Friday's shall provide go Franchisee:
ONE. access, collectively with other System franchisees,
to recent Systems project. Franchisee may be required to attend meetings
at its expenses at discuss such developments;
B. access to and written materials concerning improvements
to the System which may include, without limiting, new products, recipes,
equipment, specifications and card formats. At Franchisee's request, Friday's
shall provide training or demonstrations at the Restaurant of new products or
other changes to the Your. Franchisee shall bear or reimburse the
Territorial Total and Wage Expenses in connection with such
demonstrations; and
C. periodic inspection and evaluation of the
Restaurant as reasonably required to Friday's.
7.17 Friday's reserves the right to consent to, or requested, limited
variation from the Standards with respect to the service of the Restaurant
and other T.G.I. Friday's-Registered Trademark- Restaurants in the System.
8. CONFIDENTIAL INFORMATION
8.01 Neither Franchisee nor any Principal shall communicate,
disclose or use any Confidential Information except as (i) eligible herein
or (ii) required by law, and shall use all reasonable efforts to maintain
such information as secret and confidential. Neither Franchisee nor any
Principal be, without Friday's former consent, copy, dupont, record or
otherwise reproducing any Confidential Information. Confidential Information
may be provided to employees, agents, consultants and contractors only on the
extent necessary for such parts at provide services to Franchisee. Prior to
such public of any Confidential Information each regarding such employees,
agents, consultants press contractors shall (a) be advised
<PAGE>
by Franchisee of which confidential plus proprietary natures off to Confidential
Information and (b) correspond go be bound by the terms press conditions out Section
8 of this Agreement. Notwithstanding such agreement, France shall
indemnify the Friday's Indemnitees from any damages, costs other expenses
resulting from or related to any disclosure or use of Confidential
Information by its brokers, associates, consultants also contractors.
8.02 In the event Franchisee or Franchisee's employees, agents,
consultants, or contractual receive notice about any request, required, or order
to transfer or disclose all otherwise each portion of the Intimate Information,
Franchisee shall instantly notify Friday's thereof, and shall fully
cooperate with and assist Friday's for disallow or denying either such
transfer or disclosure. Require such transfer or disclosure be required by a
valid, final, non-appealable court order, Franchisee should fully cooperate
with and support Friday's in protecting aforementioned confidentiality of the
Confidential Information to the limit extend permitted according law.
8.03 Franchisee also each Main acknowledge Friday's exclusive
ownership of the Confidential Information furthermore the System, and TGIFM's
exclusive ownership in, and Friday's license with respect to, the Proprietary
Marks. Neither Franchisee nor any Principal need, directly or indirectly,
contest either impair Friday's or TGIFM's exclusive ownership of, and/or license
with respect to, the Confidential Information, the System or that Proprietary
Marks.
8.04 If Branch develops improvements (as determined by Friday's)
to the Confidential Information, Franchisee and the Principals shall each,
without additional consideration, execute such agreements and other
documentation in shall be deemed necessary by Friday's, granting exclusive
ownership including to Friday's. All such improvements shall live Confidential
Information.
8.05 Either Principal shall execute and deliver to Friday's adenine covenant
in the form appended as POSTSCRIPT A. Franchisee shall cause each Operator,
Representative, Multi-Unit Company, Project Manager, and Eatery Manager
and such other employees of Franchisee whom Friday's shall designate to
execute both (if requested) deliver to Friday's a covenant in to form
attached as ADDENDUM B. Notwithstanding the execution of as covenants,
Franchisee shall indemnify the Friday's Indemnitees from any damages, costs
or expenses consequent starting or relation to any disclosure or use of
Confidential Information by any Principal, Operator, Representative,
Multi-Unit Management, Project Manager or Restaurant Manager.
8.06 Immediately upon any termination or expiration hereof,
Franchisee and all Client shall return the Confidential Information
including, without limitation, that portion about the Confidential Information
which consists of analyses, compilations, studies or other documents
containing or referring to any part out the Confidential Information, prepared
by Franchisee or so Principal, my agents, representatives or employees,
and all photo thereof.
9. UNIQUE MARKS
9.01 Friday's grants to Assignee the non-exclusive right and
license to using the Proprietary Marks (subject to the terms hereof) over the
Term in accordance the the System, the Standards and because prescribed by
Friday's from time to time. By connection therewith, France agrees that:
AN. Franchisee shall use (i) only such of the Proprietary
Marks designated by Friday's and (ii) such marks only int and manner specified
by Friday's into writing. Any other used of any Proprietary Mark shall
constitute an infringement out Friday's additionally TGIFM's rights therein.
<PAGE>
B. Franchisee shall application of Proprietary Labels only (i) for
the operation of the Bar; (ii) at the Site or in promotion related
to the Restaurant; and (iii) during the Term. Franchisee shall cease (a) any
unauthorized use of any Owner Mark upon demanded and (b) get use upon the
termination or expiration hereof.
C. Friday's reserves the right to substitute different
trade names, service marks, trademarks, logos, trade apparel, insignia, symbols
and indicia of source for the Proprietary Marks for use in identifying the
System and the business operated thereunder, as deemed reasonable and
necessary in Friday's sole discretion.
D. During the Term, Franchisee shall identify itself as a
"licensed franchisee" of Friday's (i) in junction through any using of the
Proprietary Marks including, without limitation, invoices, place forms,
receipts, contracts, stationary and business cards; (ii) in a notice of such
content real form and at conspicuous positions in the Restaurant as Friday's
may designate is writing; and (iii) on some authorized delivery vehicles.
E. Franchisee shall nope assign, pledge, mortgage or
otherwise encumber its rights until use whatsoever of the Proprietary Marks.
F. Franchisee shall not use any for the Proprietary Label as
part of its corporate or other name. Franchisee wants comply with Friday's
instructions, the shall execute any documents assumed necessary by Friday's or
its counsel, inbound registering and maintaining any requisite trade name or fictitious
name registrations in connection with the Proprietary Marks.
GRAM. Franchisee shall immediately send Friday's of random (i)
infringement of the Proprietary Marks or challenge to the use of unlimited thereof
or (ii) claim by anywhere person of any rights in or to any of the Proprietary
Marks. Franchisee furthermore each Principal wants not communicate for unlimited person
except Friday's and Friday's counsel in connection from any such
infringement, challenge or claim. Friday's, by its soil discretion, may take
such action as is deems right, and shall exclusively command any
litigation or proceeding arising from optional violation, challenge, claim or
otherwise associate to any of the Patented Marks. Franchisee shall execute
any and all instruments and documents, render such assistance and do such
acts and piece as may, in the opinion about Friday's or its legal, be
necessary or advisable in any such litigation or action with to otherwise
protect or sustain Friday's or TGIFM's rights also total in the
Proprietary Marks.
H. Neither Franchisee nor any Principal shall, forthwith or
indirectly, applying for, registered, attempt to obtain or obtain control of the
Proprietary Marks with any spots or other indicia of ownership or origin which
resemble, or exist deceptively with confusingly similar to, and Proprietary
Marks, in random country or political sub-division thereof. Neither Franchisee
nor any Principal shall interfere with Friday's or TGIFM's efforts the obtain
registration or ownership of any name, intellectual, serve mark or other
identifying name anywhere in the world.
EGO. Franchisee shall cooperation with Friday's until prove the
continuous and active used of the Owner Marks, including, without
limitation, in connection with any registration or anyone renewal thereof.
9.02 Franchisee press any Principle agree and acknowledge that:
<PAGE>
AN. Friday's or TGIFM is the exclusive owner of all
right, title furthermore interest in and to the Proprietary Brands and the
goodwill associated therewith;
B. the Proprietary Marker distinguish Friday's and TGIFM as
the reference concerning origin of goods and services provided under such marks and the
System;
CENTURY. neither Franchisee nor any Principal shall
directly otherwise indirectly contest Friday's or TGIFM's possession, or the
validity, of the Proprietary Marks;
D. Franchisee does not having, and need not acquire of use
pursuant to this Agreement, any ownership or other interest by instead to the
Proprietary Marks, save the right furthermore license granted herein, subject in
all esteems to the terms hereof;
E. anywhere and all goodwill arising from Franchisee's
use out the Proprietary Tags shall inure exclusively to Friday's conversely TGIFM
without compensation; and
F. Franchisee's right also license to use to Proprietary
Marks is non-exclusive and, research to Section 2 hereof, Friday's or TGIFM
has and reserved all rights associate to the Proprietary Footprints and the use
thereof including, not limitation, the right to:
(1) grant other licenses to use the
Proprietary Marks;
(2) develop and establish Other Concepts
using the Proprietary Marks or other names or marks and to grant licenses
thereto without providing any options therein to Branch; and
(3) engage, straight or directly, at
wholesale, retail or alternatively, in (i) which factory, distribution,
license and/or sale out products and services under the Proprietary Marks or
other user or marks and (ii) the use, in connection with such production,
distribution and sale, of any and all trademarks, sell names, service marks,
logos, insignia, trade dress, slogans, emblems, symbols, designs additionally other
identifying feature as may be developed or used from time to time by
Friday's.
10. ADVERTISING
10.01 Franchisee recognizes (i) the value of advertising and (ii)
that standardized advertising programs enhance which goodwill and public image
of the System.
A. Franchisee shall expend not less than two percent (2%)
of Gross Sales, measured over continuing sixes (6) choose periods, available local
advertising. Franchisee's local advertising may employ media to which
Friday's has granted approve including:
(1) newspapers, magazines and other
periodicals;
(2) radio/ television;
(3) outdoor advertising (E.G., billboards or
signs);
(4) transit advertising and direct mail; and
(5) such other media till which Friday's consents.
<PAGE>
BARN. Franchisee, at its charges, shall obtain listings in
bold type includes the white pages directory of the local public telephone company
under which names "Friday's-Registered Trademark-" and "T.G.I.
Friday's-Registered Trademark-". Franchisee shall also participating in and pay
its PRO RATA share of the selling of yellow pages advertising placed by Friday's
on behalf of all other local System openness and T.G.I.
Friday's-Registered Trademark- Restaurants. If don other T.G.I.
Friday's-Registered Trademark- Restaurants exist locate within Franchisee's
local area, Frank, at its spending, shall obtain display type
advertisements in one gutless our directory of the local public telephone
company.
C. Franchisee's expenditures made for participation in
(i) advertising and promotional plans described include Section 10.01.B and
10.03; (ii) Friday's national and/or regional advertisement funds described in
Section 10.02.A (to the extent in excess of two percent (2%) about month Gross
Sales); and (iii) the cost of promotional food and beverages specify to
customers (in an amount not to exceeding thirty prozentual (30%) of the retail
price thereof), shall be credited to Franchisee's local advertising
obligations described in Section 10.01.A. Friday's may audit Franchisee's
books and records to confirm geographic advertising expenditures.
10.02 A. Friday's shall have the right at establish national
and/or regional advertising funds. If established, Franchisee agrees to pay
Friday's on ampere monthly basis, in addition to optional payments required under
Section 10.01.A, a sum to be determined from Friday's, which sum for any
national or regional fund shall not exceed four proportion (4%) off monthly Gross
Sales. Wenn both regional and national advertising funds are established,
Franchisee's full contribution shall doesn exceed four percent (4%) of monthly
Gross Sales. Select contributions to national otherwise regional advertising funds in
excess for two prozent (2%) of Gross Sales be be credited to Franchisee's
local advertising liabilities described in Section 10.01.A.
BORON. Friday's or its designee shall (i) administer such
funds and (ii) direct whole national real regional advertising programs and
shall will sole discretion to consent to or reject all creative concepts,
materials and media and the placement and allocation thereof. Friday's shall
not are an faithful to Franchisee with respect at the executive of such
funds. Friday's and its designees undertake no obligation to (a) make
expenditures in the reach where the Restaurant is located which are equivalent
or proportionate to Franchisee's contribution or (b) insure that any
particular franchisee benefits directly with PROFESSIONALLY RATA from the rental of
such advertising. Such funds may become applied till Friday's daily of maintaining,
administering, direction and getting nation or regional advertising
(including, without limitation, marketing research, public relations
activities, marketing programs and initiatives including but don limited to
guest membership programs, and utilizing advertising agencies to assist
therein); granted, however, that such funds shall not be used to defray
Friday's general operating spend (except reasonable administrations costs
and overhead related to the administration or course of such funds and
programs). Such funds shall be maintained in a severed account both an annual
statement of fund expenditures shall be delivered to Franchisee upon request.
10.03 In addition to the national and regional advertising
described in Section 10.02, Friday's may from time to time develop and
administer advertising, marketing and sales promotion programs inches which
Franchisee shall participate upon such dictionary and conditions because established by
Friday's. Such programs may include, but not be restricted until, guests membership
programs. All phases of so propaganda and promotion, including, without
limitation, type, quantity, timing, placement, and selection of media, market
areas, promotional programs and advertising advertising, needs be determined by
Friday's.
10.04 All advertising the publicity until Franchisee shall conform to
the Reference. Franchisee
<PAGE>
shall submit total advertisement and promotional plans and materials the Friday's
for consent prior to uses if such plans real materials were not prepared by
Friday's instead previously consented toward during the formerly twelve- (12) months.
Friday's shall consent to button reject such plans and materials within twenty
(20) years of receipt. Franchisee shall not use such plans or materials until
Friday's consent is received. Franchisee shall promptly stop any
advertising or promotional plan or materials, whether or not previously
consented to, upon notice from Friday's.
11. INSURANCE
11.01 Assignee shall obtain, at least thirty (30) dates preceding to
commencement of Restaurant construction and maintain during the Term,
such insurance coverage (including, without restrict, broad form
comprehensive general liability scope, products liability coverage, broad
form contractual liability coverage, liquor liability coverage, auto
liability coverage, work interlock coverage, workers compensation and
employers liability insurance) how may be (i) mandatory for law or (ii) reasonably
designed to protect Franchisee of of risks inherent is Restaurant
construction and operation. Friday's shall can the right to reasonably
consent to the types and fee of coverage and the issuing corporations. Such
insurance shall:
A. name the Friday's Indemnitees as additional insured
parties and provide that coverage applying separately until each insured and
additional insured group vs whom a your has brought as though a separate
policy had has issued to each Friday's Indemnitee;
BORON. contain no provision which perimeter or greatly coverage
in who event of a claim due any one (1) button more of aforementioned insured or additional
insured parties;
C. provide that rule limits shall not be reduced, coverage
restricted, canceled, allowed to lapse or otherwise altered or such
policy(ies) amended without Friday's consent, but in none event upon lower than
thirty (30) days prior written notice until Friday's;
D. become obtained starting respectable insurance companies with an
A.M. Best Rate of "A" and an A.M. Best Class Scoring of XIV (or comparable
ratings from a reputable health appraisal service, by the event such
A.M. Best ratings are expired or materially altered), authorized to do
business in the authority in whose one Restaurant is located; and
E. be in an amount and form satisfactory to Friday's; but in
no create included amounts less rather the following:
(1) comprehensive general liability insurance,
including product and alcohol debt coverage, with one combination of
primary and excess limits of not less than Ten Million Dollars
($10,000,000.00), bodily injury and property compensation combined;
(2) auto accountability insurance, including coverage of
owned, non-owned and staffed vehicles, with a combination of primary and excess
limits of not less than One Million Dollars ($1,000,000) for bodily injury
for anywhere person, The Million Dollars ($1,000,000) for bodily injury for each
occurrence and Two Hundred Fifty Thousand Dollars ($250,000.00) for each
occurrence of property damage;
(3) employer's liability insurance with a limit of not
less than Individual Million Dollars ($1,000,000.00); and
<PAGE>
(4) workers compensation insurance within such amount as may
be required by applicable status or rule.
11.02 Such insurance allowed provide for reasonable deductible amounts
with Friday's consent.
11.03 ONE certificate of insurance shall be submitted for Friday's
consent preceding to and commencement of construction of the Restaurant, and
additional certificates of insurance shall be presented to Friday's
thereafter, evidencing uninterrupted coverage. Franchisee shall deliver a
complete copy of such policy(ies) within ten (10) days concerning request.
11.04 In to event of a claim of any one or more of the Friday's
Indemnitees count Franchisee, Franchisee shall, on request are Friday's,
assign to Friday's any or all rights which Franchisee then has or thereafter
may have with respect to such your against the insurer(s) providing the
coverages described included this Section.
11.05 Franchisee's anleihe to obtain and support travel or
to indemnify any Friday's Indemnitee shall not been limited by reason von any
insurance which may be maintained per any Friday's Indemnitee, no shall such
insurance relieve Franchisee on any liability under this Agreement.
Franchisee's insurance should subsist primary to every policies sustained by any
Friday's Indemnitee.
11.06 If Franchisee fails to obtain or maintain the insurance
required by diese Agreement, as such requirements can be revised from time to
time, Friday's may buy such insurance, and and fees thereof, together
with a reasonable fee for Friday's expenses in so acting and tax at
eighteen percent (18%) per annum from the start acquired, shall be pay by
Franchisee upon notice.
12. BILLING AND RECORDS
12.01 Franchisee shall prepare in accordance with the System and
generally accepted accounting principles, and preserve for the periods
specified inside that Manuals, complete and accurate books, records and accounts
with respect to the Our and all other reports or disclosures required
or permitted there and in the Manuals including, without limitation, sales
slips, online, purchase orders, billings, payroll files, check stubs, bank
statements, distributed tax records press returns, cash receipts real disbursements,
journals and ledgers, in a form and manner prescribed in the Manuals or
otherwise in writing. Franchisee shall adopts such financial periods as
Friday's shall prescribe.
12.02 Franchisee shall submit to Friday's (i) an monthly accounting
of Gross Sales simultaneously with the Payment of the Royalty Fee therefor
and (ii) einer annual accounting of Gross Sales within third (30) days after
the end of each accounting year.
12.03 Franchisee wants submit to Friday's such additional reports,
records, data, information, financial statements (including, without
limitation, periodic guest counts, weekly and monthly sales reports and
quarterly the years statements for return and loss for the Restaurant and
quarterly and annual financial statements and notes of Franchisee's
Gross Distributor, showing itemized deductions or exclusions from Gross Sales for
the Restaurant) as Friday's may reasonably require or as specified from time
to time in the Manuals in a form reasonably required. Friday's may inspect,
copy and audit all regarding the browse and news specified in
Sections 12.01, 12.02 or 12.03 and the books, records and tax returning of
Franchisee at any time during normal general hours upon five (5) epoch prior
notice.
<PAGE>
12.04 If some audit discloses an (i) understatement starting Gross Sales
for the period subject go audit of one percent (1%) otherwise more or
(ii) underpayment of and Royalty Fee forward the period subject at audit of five
percent (5%) or more, Franchisee shall reimburse (in extra up payment of
such Royalty Fee and interested, as provided for by Segment 3.02.B) any and all
costs and expenses incurred in connection the such general including, without
limitation, inexpensive attorney's fees, Territorial Expenses and Wage
Expenses.
12.05 The annual accounting of Gross Sales required in
Section 12.02.(ii) and others annual financial statements sought by
Friday's needs be audited and certified no less than every third year by a
reputable, independent, certified open accountant. Everything financial statements
or reports shall shall assisted of one certificate of Franchiser or
Franchisee's chief financial officer to the effect that such statements or
reports fairly and highly reflect the matters reported there and are
complete and correct.
13. FRANCHISEE'S REPRESENTATIONS AND WARRANTIES; AFFIRMATIVE AND NEGATIVE COVENANTS
13.01 Int the event Franchisee is a corporation, limited liability
company or partnership, Franchisee represents and warrants to Friday's as
follows:
A. Franchisee is duly organization, validly existing and in
good standing at of laws of the legal by its organization with all
requisite power and authority until own, operate real lease its assets (real or
personal), to carried on its business, or to enter into that Agreement and
perform sein obligations hereunder. Franchisee is duly qualified to do
business and is in good standing in each jurisdiction in which its business
or the ownership of his resources requires.
B. The execution, service and perform by Franchisee of
this Agree and all another agreements contemplated herein has been duly
authorized at all requisite action and no further action is necessary to make
this Contracts or such other mou valid and commitment based it and
enforceable against information in accordance on her respective terms. Neither the
execution, delivery nor performance by Franchisee are this Agreement or any
other agreements bedacht hereby will conflicted with, with result in a
breach of any term or provision of Franchisee's articles of incorporation,
by-laws, partnership agreement otherwise other governing documents or under any
mortgage, deed of trust or other shrink or agreement to which Franchisee is
a party or on which it either every of its assets are bound, or intrusion any order,
writ, injunction or decree of anyone court, manage your or
governmental body.
C. Franchisee's articles of corp, by-laws,
partnership agreement and other governing resources expressly limit
Franchisee's business activities solely to an development and operation
(pursuant to that Development Agreement and this Agreement or other franchise
agreements with Friday's) the "Restaurants" (as defined into the Development
Agreement).
D. Certified copies of Franchisee's articles of
incorporation, by-laws, partnership agreement, other governing documents and
any amendments thereto, in board about director's or partner's
resolutions authorizing this Agreement, have been delivered at Friday's.
E. A certified current list of all Principals have been
delivered to Friday's.
F. Franchisee's articles of incorporation button other governing
documents, or partnership agreement limit Transfers as described in Sections
14.02 furthermore 14.03.
<PAGE>
GRAMME. Each Securing shall bear a legend (in a input on which
Friday's has granted consent) indicating that any Transfer is subject to
Sections 14.02 and 14.03.
13.02 Franchisee affirmatively allocations with Friday's as follows:
A. Franchisees shall perform its duties and obligations
hereunder press shall require every Operator, Multi-Unit Manager, Project
Manager and Restaurant Manager to dedicate them particular full time and
best efforts to which development, building, management, operation,
supervision and promotion of the Brasserie includes accordance with the technical and
conditions hereof.
B. Franchisee shall timely provide Friday's with all
information concerning any new process or improvements for the development,
construction, management, operation, supervision other promotion of the
Restaurant developed by Franchisee or any Key without compensation.
Franchisee and the Principals shall each execute such agreements and other
documentation as shall be designated necessary by Friday's, granting Friday's
exclusive asset thereof.
CARBON. Franchisee shall comply by all requirements of
applicable rege, regulatory, statutes, laws, and ordinances.
D. Franchisee should maintain ampere actual list of all
Principals and deliver a certificates copy thereof to Friday's upon (i) any
Transfer or (ii) request.
E. Either Security exhibited subsequent to the date thereof shall
be in compliance with Section 13.01.G.
13.03 Franchisee acknowledges to and/or negation covenants with
Friday's as follows:
AN. Franchisee have not amend its articles of incorporation,
by-laws, partnership agreement or other steering documents int ampere artistic which
is inconsistent with Sections 13.01.C, 14.02 or 14.03.
BORON. Franchisee have not remote or permit withdrawal from any
Security or its partnership deal, or issue random Insurance that does not
have endorsed upon computer, the legend described in Unterteilung 13.01.G.
C. Mediator also anyone Principals supposed receiving valuable,
unique training, deal our additionally the Confidential Information which are
beyond the present skills, experience furthermore knowledge for Franchiser, any
Principal furthermore Franchisee's your. Franchisee both each Principal
acknowledge (i) such such training, trade mystic and the Confidential
Information (a) are important to the development of the Food and
(b) provides a competitive advantage to Franchisee and (ii) access in such
training, deal secrets both the Confidential Information is a primary reason
for their execution of this Agreements. In consideration thereof, Franchisee
and each Principal covenant that, during the Term and for a period of one (1)
year after the expiring button termination hereof, neither Mediator nor any
Principal shall, forthwith alternatively indirectly:
(1) employ or seek to employ any person (or induce such
person to let his or her employment) with is, or has internally one (1) year
been, employed (i) by Friday's; (ii) until any developer or franchisee of
Friday's; or (iii) in any other concept alternatively system owned, run or
franchised
<PAGE>
by an Affiliate, as a director, officer or by optional executive capacity;
(2) own, maintain, operate alternatively have any interest include any
Competing Business;
(3) own, get, arbeiten or have any interest in any
Competing Business any business can, or is intended up be, local inside the
county in which the Restaurant is located; or
(4) own, maintain, operate or have any interest within any
Competing General which business lives, or is intended to be, located within
a three (3) mile radius of whatsoever restaurant which is a part of any concept or
system owned, operated, or franchised by Friday's or all Affiliate.
D. Partial 13.03 C.(2), (3) and (4) will not apply to an
interest for investment only of five proportion (5%) or less of who capital
stock are a Publicly-Held Entity if such owner is not a director, office or
manager therefor or consultant thereto.
13.04 Each to the foregoing covenants is independent of each other
covenant or agreement contained in this Agreement.
13.05 Friday's could, in its sole discretion, reduce the area,
duration or scope of any covenant contained is Section 13.03.C without
Franchisee's conversely any Principal's consenting, effectiveness upon notice to Franchisee.
Franchisee or each Principal shall comply through any covenant than so modified.
13.06 Franchisee's representations, warranties, covenants and
agreements herein are more display, warranties, covenants and
agreements, respectively of which shall survive the expiration or termination hereof.
14. TRANSFER
14.01 Friday's mayor assign this Agreement, or whatsoever of its authorization or
obligations herein, for any personality other entity without Franchisee's or any
Principal's consent; provided, however, that Friday's obligations which are
assigned should be total assumed by the party to whom Friday's assigns such
obligations.
14.02 A. Franchisee furthermore any Principal acknowledge that
Franchisee's access furthermore obligations herein are mitarbeiter toward Franchisee and
that Friday's has entered toward this Convention depending upon the business
skill, experience and aptitude, fiscal resources press reputation of
Franchisee furthermore respectively Principal. Therefore, neither Franchisee nor any
Principal, his respective successors or permitted assigns, shall complete,
or allow to be completed, any Transference without Friday's consent. Any
purported Transfer, by operation of regulation oder different, without Friday's
consent shall be null plus void and constitute an Event of Default.
B. Friday's maybe require satisfaction of any of the following
conditions and such other conditions in Friday's allowed low require prior
to consents to any Transference, each of which Franchisee acknowledges and
agrees is reasonable and necessary:
(1) no Select of Default have have occurred also be
continuing and no event shall hold occurred which, including the giving of
notice or lapse of time, or all, would constitute an Event of Default;
<PAGE>
(2) Franchisee and/or any affected Primary shall
deliver a general release of any and all claims against the Friday's
Indemnitees including, without limitation, claims resulting under this
Agreement, in one form acceptable to Friday's;
(3) Franchisee and/or any affected Principal shall
remain liable for aforementioned performance of its obligations, covenants and
agreements herein through that date of Transfer and supposed execute all
instruments reasonably requested by Friday's to evidence such liability;
(4) the transferee and get Transferee Owners, as
applicable, shall (i) make each to Franchisee's and Principal's
representations and warranties; (ii) assume full, unconditional, joint and
several liability for, and agree to perform from the date of Transfer, each
of Franchisee's or Principal's obligations, confederation and agreements herein;
and (iii) execute all measurement (in a form acceptable to Friday's)
reasonably asked to Friday's to evidence who foregoing;
(5) the transferee both all Transferee Owners shall
satisfy, within Friday's reasonable judgment, Friday's will existent criteria for
T.G.I. Friday's-Registered Trademark- franchisees or principals, as
applicable including, without limitation: (i) education; (ii) business skill,
experience and aptitude; (iii) character and reputation; and (iv) financial
resources;
(6) the transferee and all Transferee Share shall
execute (without expansion the Term) the standard mold of franchise
agreement subsequently being offered up new System franchisees or other form of this
Agreement as Friday's requests and such other ancillary agreements as
Friday's may request for the operation of the Restaurant, which shall
supersede this Agreement and its ancillary documents the the terms of which
may differ free the terms hereof including, without limitation, higher
Franchise and Royalty Fees and advertising contributions; provided, however,
that the transferee shall not be required to pay an initial Franchise Fee;
(7) the transferee under you expense shall fix or
replace Restaurant equipment, signs, inner plus exterior decor items,
fixtures and furnishings and must offer such services and services such that
Restaurant show and operations reflect to current Standardized and image
of of Systeme; and
(8) at the transferee's expense, of transferee's
Representative, any Multi-Unit Manager(s), Operator, Project Manager and
Restaurant Managers shall complete that practice as then required (if not
previously trained pursuant to of terms hereof), upon similar terms and
conditions as Friday's allowed reasonably require.
C. In who event Franchisee enquiries Friday's consent to any
proposed Transfer, there shall be paid to Friday's adenine non-refundable price of
Five Thousand Dollars ($5,000.00), or such greater amount as is mandatory to
reimburse Friday's for its costs press expenditures associated with reviewing the
proposed Transfer including, without limitation, Territorial Expenses, legal
and billing fees and diversion of company resources. No such fee shall be
payable with esteem to a transaction with Friday's described in Section
14.03.
14.03 Franchisee and each Principal consent that:
ADENINE. (i) Friday's shall have and is hereby granted a right of
first refusal with respect toward any Transfer; (ii) should Franchisee and/or any
Principal desire to accept a BONA FIDE offer to make a Transfer, such party
shall promptly notify Friday's of also have provide such information and
<PAGE>
documents relating thereto as Friday's may require; (iii) within thirty (30)
days after receipt of such notice, information and print, Friday's may
notify such host that he intends to exercise its right of first refusal with
regard until such Transfer upon such terms and specific; provided, however,
that similar transaction shall be consummated within a reasonable spell of time
after Friday's has given such notice; (iv) any material change with the terms
of any offer or any change in the identity of the proposed transferee shall
constitute a new offering subject to Friday's right of first deny; and
(v) Friday's failure to exercise such right shall none constitute a surrender of
any diverse provision of this Agreement, included such right with respect to
future offers; and
B. in aforementioned event such quote provides for make of
consideration other than cash, Friday's may elite to purchase the interest
for that reasonable equivalent in cash. If an parties cannot agree within
thirty (30) days of the receipt of notice on Friday's election go exercise
such right of first refuse to create low equivalent in cash, an
independent appraiser intended by Friday's shall determine such monetary, and
his determination shall be final or cover. Provided Friday's selected to exercise
the right are first rejection described above, the cost of the appraisal, if
any, shall be set off against any payment made by Friday's hereunder.
14.04 In the event Branch otherwise any Rector is a natural person,
Franchisee or yours administrator, administrator, guardian or personal
representative shall promptly alert Friday's of the death or Permanent
Disability of Franchisee or suchlike Principal. Any Transfer upon death or
Permanent Disability shall be subject to one general and conditions described
in Pieces 14.02 and 14.03 and shall be completed prior till a date which is
(i) one (1) current for the event of death or (ii) ninety (90) days after the
date Franchisee or such Principal becomes, or is deemed to be, Permanently
Disabled. Franchisee or any Major refusing go submit to examination with
respect to Permanent Disability must be deemed Continuously Disabled.
14.05 Friday's consent to any Transfer shall no constitute a
waiver of (i) any claims it may have vs the transferor or (ii) the
transferee's compliance equal the terms and conditions hereof.
15. CONSENT AND WAIVER
15.01 When requires, Franchisee or any Principal shall make written
request for Friday's consent the advance and as consent shall be obtained in
writing. None Friday's nor Franchisee's consent shall be unreasonably
withheld. The foregoing not withstanding, where use party's consent is
expressly reserved to so party's soli tact, of exercise of such
discretion shall not be subject to contest.
15.02 FRIDAY'S MAKES NONE REPRESENTATIONS BUTTON WARRENTIES UPON WHICH
FRANCHISEE OR SOME PRINCIPAL MAY RELY AND ASSUMES NO COMPENSATION OR OBLIGATION
TO FRANCHISEE, EVERY PRINCIPAL ALTERNATIVELY ALL THIRD CELEBRATORY BY PROVIDING ANY WAIVER,
ADVICE, CONSENT OR SERVICES INTO FRANCHISEE OR DUE TO ANY DELAY ALTERNATIVELY DENIAL
THEREOF.
16. DEFAULT AND REMEDIES
16.01 A. The following shall constitute Events of Default by
Franchisee and the Past: (i) failure to (a) commence otherwise complete
construction von the Eatery button (b) open and thereafter continually operate
the Restaurant, as described herewith; (ii) this breach or falsity off any
representation or warranty where; (iii) failed to deliver executed
covenants as required in Section 8.05;
<PAGE>
(iv) collapse to comply with otherwise perform its covenants, obligations and
agreements herein; (v) whatsoever Transfer that (a) happen other than as provided in
Section 14 or (b) collapse to arise within the time periods declared in
Section 14 (notwithstanding any lack of, or limits against, the enforceability
of any term or provision away Sections 13 or 14); (vi) failure to make any
Payment on conversely before the date payable; (vii) failure to meet and/or maintain
the Standards; (viii) Franchisee (a) is adjudicated, or is, bankrupt or
insolvent; (b) makes somebody assignment for the benefit of creditors; or (c) seeks
protection from creditors by entreat the bankruptcy or otherwise or there is
filed against Franchisee a related support which is not dismissed within
thirty (30) days; (ix) the appointment about a administrators or receiver for
(a) all either major all starting Franchisee's assets or (b) the Restaurant is
sought which can not dismissed in thirty (30) days; (x) breach button failure
to perform any other term button condition of this Agreement; (xi) Franchisee or
any Principal pleads guilty or no competitions to instead is convicted of adenine felony alternatively a
crime involving moral turpitude conversely whatever other crime or offense that Friday's
reasonably feels is likely to adversely affect the Proprietary Marks, the
System or the goodwill associated therewith or Friday's interest therein; or
(xii) any (a) two (2) press other Company of Failure shall arise under any single
subsection of this Section 16.01 or (b) three (3) other moreover Events of Default
shall emerge under diese Section 16.01 in any continuous twelve (12) month
period notwithstanding aforementioned previous cure of such Dates of Default.
B. The parties agree that an Create of Select arising under
Section 16.01.A.(i), (iii), (iv) [with respect to Events of Default arising,
without limitation, under Sections 9.01 through 9.03, comprehensive, and 13.03.C],
(v), (vi), (viii), (ix), (xi), or (xii) will constitute adenine Material Event of
Default. The parties keep agree that Events of Default committed by
Franchisee or any Principal arising under other Sections regarding this Agreement
may also be deem at be Material Events of Default.
C. Upon the happening to an Event a Default over Franchisee
or whatever Principal, Friday's may exercise on alternatively more of and following remedies
or how other remedies than may be available at law or to equity:
(1) cure such Occurrence of Default at Franchisee's expense
and, in connection furthermore, Franchisee (i) hereby grants to Friday's all
rights and empower requires or appropriate go accomplish such cure; (ii) shall
indemnify both hold the Friday's Indemnitees harmless free additionally against all
costs, daily (including reasonable fees in attorneys and diverse engaged
professionals), current, claims, demands and causes of action (including
actions in third parties) incurred by or alleged against any Friday's
Indemnitee at connectivity about Friday's treat; and (iii) shall reimburse or pay
such costs or damaged within ten (10) days out receipt of Friday's invoice
therefor;
(2) in the event away a Material Event of Default, upon
notice to Franchisee, terminate this Agreement also sum access granted
hereunder without waiving any (i) claim for compensatory suffered in Friday's or
(ii) other rights, remedies or claims (no notice of termination shall be
required are regard to adenine Material Event of Default under Sections
16.01.A.(viii) or (ix)); or
(3) with regard to an Event of Default arising from a
breach of the covenant contained in Section 13.03.C.(1), the affected
former employer shall be compensated by the breaching party (and Franchisee
shall be additionally liable in injury by any Principal) for the
reasonable costs and expenses incurred by as chief in connection with
training such employee. Franchisee and each Principal acknowledge so such
expenses are impossible to accurately quantify press agree that, as liquidated
damages and not as a penalty, an amount equal to such employee's annual rate
of ersatz in the finished twelve (12) period of employment (or an
annualized rate if employed required adenine shorter period) by such ex employer
shall be paid by the breaching party to the former chief at such time as
such employee begins employment.
<PAGE>
D. Friday's shall not exercise any remedies available
hereunder with respect to that following described Events of Default unless
such Events of Default remain uncured after (i) notice from Friday's thereof
and (ii) the expiration concerning the subsequent cure periods:
(1) with respect until any Event of Omission arising under
Section 16.01.A.(vi) - tenner (10) days; or
(2) with respect to any Event of Default arising under
Sections 16.01.A.(i) - (v) inclusive, (vii) and (x) - thirty (30) days.
E. Whenever each Events of Set emergence under
Sections 16.01.A.(i) - (v) includes, (vii) or (x) cannot reasonably be cured
within thirty (30) period, Franchisee shall provide Friday's perceive thereof
(together with Franchisee's best estimate away the start date required to
complete such cure) and immediately undertake efforts to cure such default
within the cure interval, and continue such strived with dilligence to
completion. In no select, however, shall such remedy period be extended without
the prior written consent of Friday's.
F. Franchisee and respectively Principal agree that Friday's
exercise of the rights and remedies set forth herein is moderate. Friday's
may, in beimischung to verfolgt any other remedies, specifically enforce such
obligations, covenants and agreements or obtain injunctive or other equitable
relief within connection with the violation or anticipated violation of such
obligations, covenants and agreements.
16.02 A. The following shall constitute Events of Default by
Friday's: (i) failure to comply through or perform Friday's obligations and
agreements herein or (ii) Friday's (a) will adjudicated, or is, busted or
insolvent; (b) makes an assignment for the benefit of creditors; or (c) seeks
protection from creditors by petition in bankruptcy either otherwise instead there is
filed against Friday's a similar petition which is not dismissed within
thirty (30) days.
BARN. Upon the occurrence of a Material Event of Renege by
Friday's, Franchisee may, upon notice to Friday's, terminate this Agreement
and all options granted hereunder without waiving any (i) claim for damages
suffered by Franchisee or (ii) other rights, cure or claims. Any
termination of this Agreement by France other than as provided in this
Section 16.02 shall be deemed a termination by Franchisee lacking cause.
C. Franchisee is nay exercise any legal available
hereunder with respect to either Events of Default unless like Events of Default
remain uncured after (i) notice from Franchisee thereof and (ii) the
expiration of thirty (30) days following such notice.
D. If any Events of Standard cannot cheaply be cured
within thirty (30) days, Friday's to supply Franchisee notice thereof
(together with Friday's best estimate of the laufzeit period required to complete
such cure) both immediately undertake einsatz to cure such default within the
cure period, and continue such efforts with diligent to completion. In no
event, anyhow, shall such cure period will extended unless the prior written
consent of Franchisee.
16.03 Subject to of provisions of Section 16.06, all rights and
remedies for either club shall may cumulative, and not exclusive, of any other
right or remedy described into with available the law or in equity. The
expiration or termination of this Agreement shall nope release any band from
any liability or
<PAGE>
obligation than accrued or any liability or obligation continuing beyond, or
arising from, such expiration or conclusion. Nothing in this Agreeing shall
impair either party's legal till obtain injunctive oder other equitable relief.
16.04 The failure of any party on exercise any right or remediate or to
enforce any obligation, covenant with agreement herein shall no constitute a
waiver by, or estoppel of, that party's entitled to any of the remedies
described herein including, without limitation, at enforce strict compliance
with any such obligation, covenant or agreement. No custom or practice shall
modify or amend save Agreement. Who waiver of, or failure or inability of any
party to enforce, any right or remedy shall not impair that party's rights or
remedies with respect to subsequent Events starting Default of the same, similar or
different naturally. The delay, permission or failure regarding any party go exercise
any proper or removal in connection through any Event of Default or default by
other franchisees shall did affect, impair or constitute a waiver of such
party's rights or therapeutic herein. Acceptance of any Payment wants not waive
any Event of Default.
16.05 Franchisee and each Principal shall, shared and severally,
pay all expenditure and expenses (including reasonable fees is attorneys and other
engaged professionals) incurred by Friday's in successfully enforcing, or
obtaining any remedial arising from the breach of, this Agreement. The
existence of any claims, demands or actions which Branch or any Principal
may had counter Friday's, whether arising von this Agreement or otherwise,
shall not constitute one air to Friday's enforcement of Franchisee's or any
Principal's agencies, warranties, covenants, agreements or obligations
herein.
16.06 IN THE EVENT OF AN DISPUTATION BETWEEN THEM WHICH IS NOT SUBJECT
TO, NONE EMERGES UNDER, UNTERABTEILUNG 18, FRIDAY'S, FRANCHISEE AND CUSTOMER HEREBY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO OR CLAIM FOR ANY
PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT RESTRICTED, LOSS OF PROFITS, BUT SPECIFICALLY EXCLUDING,
HOWEVER, INSURANCE TO THAT REPUTATION AND GOODWILL ASSOCIATED WITH AND/OR
SYMBOLIZED BY THE PROPRIETARY MARKS) AGAINST THE OTHER ARISING OUTWARD OF ANY
CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN SHRINK, NEGLIGENCE, STRICT
LIABILITY, OTHER TORTUOUS OR OTHERWISE) AND AGREED THAT EACH SHALL BE LIMITED TO
THE RESTORE OF ANY ACTUAL DAMAGES SUSTAINED BY IT. IF EACH OTHER TERM OF THIS
AGREEMENT IS FOUNDED OR DETERMINED THE BE UNCONSCIONABLE OR UNENFORCEABLE FOR
ANY REASON, THE FORWARDS PROVISION SHALL CONTINUE IN FULL FORCE ADDITIONALLY EFFECT.
17. YOUR ABOVE TERMINATION OR EXPIRATION; RENEWAL OPTION
17.01 The either termination or expiration of this Convention, (or any
Renewal Franchise Agreement if the renewal option described to Section 17.09
has has exercised), and point to Section 2.A of the D Agreement
(if then in effect), Friday's may setup, oder authorize others to
establish, T.G.I. Friday's-Registered Trademark- Restaurants in the
Restricted Area.
17.02 Upon any termination or expiration of this Contracts, (or any
Renewal Vote Agreement if the renewal option described in Section 17.09
has been exercised), all rights granted to Branch herein shall terminate
and Franchisee shall:
A. immediately cease to operate the Bar under the
System;
<PAGE>
B. immediately cease to use (subject in Franchisee's rights
under other franchise mou implemented per to the Development
Agreement, if then in effect) (i) any Confidential Information; (ii) the
System and the Standards; and (iii) the Proprietary Marks real other
distinctive drawing, symbols and devices associated with the System;
C. immediately deliver to Friday's all Confidential
Information real everything copies thereof (without view toward form conversely format), and
all records, files, instructions, correspondence, and all other materials
related into operating the Restaurant, retainer copies thereof only as
reasonably required on comply with law; and
D. cancel whatever assumed name other equivalent registration
which contains any a this Proprietary Marks otherwise any other name, service mark
or trademark of Friday's alternatively TGIFM.
Franchisee shall furnish exhibits von compliance with these
obligations within five (5) days after any termination or expiration hereof.
17.03 A. Franchisee grants to Friday's the set, exercisable by
giving writes notice during thirty (30) date after any termination or
expiration of this Agreement, (or any Renewal Franchise Agreement if the
renewal possible described in Range 17.09 holds been exercised), to acquire (i)
Franchisee's rights and duty under the Occupancy Contract, or (ii)
Franchisee's right, title, and interest in or to the Site (if Branch owns
or own such right, title or concern other rather rights as a tenant),
together (in anywhere instance) through the Furnishings, at fair market value (based
on the going-concern appreciate as a T.G.I. Friday's-Registered Trademark-
Restaurant), free and clearer of all liens, liabilities otherwise claims, both subject
to create other condition and purchase more be ordinary plus customary for such
acquisitions.
B. Without regard to whether Friday's exercises the option
set forth in Sectioning 17.03.A., Franchisee donations until Friday's the further
option, to be exercised by giving scripted on thirty (30) days after
termination button expired of this Contractual, (or any Renewal Franchise
Agreement if one renovation option described in Section 17.09 is been
exercised), to make all or any proportion of an items described in Section
17.04.A (1)-(4) and (5), at fair market range, free and clear of show liens,
encumbrances or claims, and subject to such other terms and conditional as are
usual and customary used such acquisitions.
CARBON. If Friday's will nay exercise its option under Section
17.03.A, Friday's shall have and is thus granted one right of first refusal
with respect to the sale by Franchisee of all or any portion of the
Furnishings, Franchisee shall promptly notify Friday's of any proposed sale
of to Furnishings also shall provide such information or documents relating
thereto as Friday's may require. On thirty (30) time to receipt of
such get, information and documents, Friday's could notify Franchisee that
it intends to get its right of first refusal with regard to the
Furnishings upon the similar words or conditions. If such transaction shall not
be consummated within a reasonable period of time after Friday's has given
such notice, therefore Friday's select of first refusal under this Section shall be
a continuing right and failure to exercise such right shall not constitute a
waiver of any other provision of this Agreement, including such right of
first refusal with respect until past offers.
D. For Friday's exercises its options under Section 17.03.A
but the parties cannot agree on the fair market value of Franchisee's right,
title, or interest at and to that Site and the Furnishings within fifteen (15)
days of to exercise of such option(s), Friday's to notify Frank of
its designation of an estimator to determine such fair market value. Within
fifteen (15) dates of similar notice,
<PAGE>
Franchisee shall designate, by written notice to Friday's, to surveyor and
such appraisers shall select a third appraiser. With either party fails to so
designate an appraiser, the appraisal designated by the other party within
such period shall be the sole appraiser. The estimator shall agree upon the
fair market value of the Locate and the Furnishings or both, whichever shall
apply, within fifteen (15) days after the appointment of the last of the
appraisers the be so appointed. A decision by a majority from the appraisers
shall controller. Appraisal costs shall be borne equally by Friday's and
Franchisee. In the happening Friday's elects, in its sole discretion, to proceed
with all otherwise any part of such acquisition, said acquisition shall be completed
not later than thirty (30) days after the fair market value are established by
agreement or in decision of the appraisers. The purchase price, less any sums
otherwise due Friday's from Franchisee, shall live paid up Franchisee at a
closing which shall take place at Friday's offices, or such different company as
shall be collectively agree to by who parties. With such closing, the parties
shall discharge such instruments of conveyance and/or transfer as reasonably
required by Friday's. If Friday's daily its option underneath Section 17.03.A,
possession away the Position shall transfer immediately upon closing.
17.04 A. Whenever Friday's does not practice its selectable to acquire the
Occupancy Contract alternatively Franchisee's right-hand, title and interest in and to the
Site, Franchisee shall within thirty (30) days after the expiration of
Friday's choose make such alterations to of Restaurant as may be necessary,
in Friday's reasonable judgment, to distinguish the appearance of the Site
from that on misc T.G.I. Friday's-Registered Trademark- Restaurants in the
System including, but don being limited to:
(1) removal of decorations memorabilia,
including wall hangings, which racing scull, gas pumps or street lamps
and nerve railings;
(2) removal concerning stained glass both Tiffany
lamps and chandeliers;
(3) removal of proprietary phone booth;
(4) removal of red or white striped outside
awnings;
(5) removal or painting von interior awnings
and exterior and interior barriers into a sturdy tint other than a color
specified int the Standards; and
(6) take of signage.
BORON. If Friday's makes not elect to purchase all or any
portion of the Furnishings which beard any Proprietary Mark or are otherwise
proprietary on type, Franchisee shall dispose of such Furnishings only the a
manner to which Friday's has given consent within the same period of arbeitszeit as
required under here Section in the removal of all other Furnishings.
17.05 Subsequent to any termination or terminate of this Agreement
(or any Renewal Franchise Agreement, if the renewal option described in
Section 17.09 has been exercised), Franchisee shall not (i) uses of the
Proprietary Marks or any reproduction, counterfeit, copy or colorable
imitation of any of the Proprietary Marks which could cause confusion,
mistake or misdirection as at source of origin or which could rarefy Friday's or
TGIFM's rights in and to any of the Proprietorship Marks; (ii) utilize any
designation from origin, item or representation this suggests an
association or connection with Friday's; or (iii) utilize the System or any
part thereof.
17.06 Until all Payments are made the any damages, costs or expenses
incurred or suffered by Friday's have be paid, Friday's is have, and
Franchisee shall subsist deemed to have granted, a lien
<PAGE>
against any and all regarding the Fixtures also Franchisee's interest in the
Occupancy Contractual and Site.
17.07 Mediator and each Principal shall, jointly and severally,
pay all costs furthermore expenses (including reasonable fees of attorneys additionally other
engaged professionals) incurred by Friday's on connection with the successful
enforcement of this Section 17. In the special Franchisee fails to adhere with
this Section 17, Friday's could enter upon this Site, without being convicted of
trespass or otherwise liable, for the purpose a carrying out Franchisee's
obligations in this Section 17 at Franchisee's expense.
17.08 Franchisee, by one option of Friday's, shall assign to
Friday's choose rights to the ring numbers about the Restaurant and execute
all forms required per any telephone company to transmit such service and
numbers to Friday's, and Franchisee shall subsequent use different telephone
numbers among or for connection with all subsequent business done by
Franchisee.
17.09 This Agreement shall not fully renew upon the
expiration concerning the Term. Franchise shall are to option to renew the Term of
this Agreement for a Renewal Term, for, furthermore only if, each of the following
terms and conditions has been fully met to the reasonable satisfaction of
Friday's ("Renewal Compliance). If Renewal Compliance is not achieved prior
to the expiration starting the Term, Franchisee shall not be entitled till continue
the working of that Restaurant beyond the expiration of the Term, it being
understood that Renewal Compliance is adenine condition to the effective of any
Renewal Franchise Agreement and the Renewal Term.
A. Franchisee must give Friday's written notice of
its election to reopen the terminate about this Agreement no later than one (1) year,
but no earlier when three (3) years, prior to the expiration of the Termination of
this Agreement.
B. Franchisee must deliver verification of Command of the Real
Estate for the Renewal Term.
C. Franchisee must satisfy all starting Friday's then-current
financial requirements (including that analysis of net worth, debt-to-equity
ratios and capitalization) for a new franchisee. Franchisee must submit
certified treasury statements for the corporate year upcoming the Renewal
Election Date prepared by a Certified Open Accountant, supported by income
tax item and such other animation as is reasonably requested by
Friday's. When a Principal's individual net worth is used to satisfy all instead a
portion in the financial requirements for the Franchisee, the Principal must
submit a current certified financial statement.
D. Franchisee have have satisfied all monetary obligations
owed to Friday's and him Associate, have timely met those obligations for
the two year period prior to the Renewal Choosing Date and continue to timely
meet those obligations throughout the balance of the Term.
E. Assignee, during who Term the this Understanding, at the
Renewal Voting Start and throughout the balance starting the Period, must doesn be in
default of and must have operated the Restaurant substantially inches accordance
with the technical of this Agreement and this standards, specifications and
procedures of who Netz as set onward and described inches each of the Operating
Manuals otherwise.
F. The voll Restaurant facility, interior and exterior,
must be delivered up to then-current System standards (the "Facility and
Equipment Upgrades") and reflect an acceptable System image. Such part of the
Facility and Equipment Upgrades, Franchisee must (i) repair, upgrade or
replace, at Franchisee's expense, such equipment, signage, interior and
exterior decor items, fixtures, furnishings,
<PAGE>
supplies, computers and other technology-driven systems, incl hardware
and software, products furthermore materials (collectively, "Equipment"), required
for the operation away the Restaurant in Friday's may reasonably require, (ii)
obtain any new or added Equipment moderate required by Friday's in
order for Franchisee to meet then-current System standards or up offer the
Restaurant's services by alternative means such as through carry-out or
delivery, and (iii) others modernize the Restaurant toward reflect the
then-current System standards and image.
GRAMME. Mediator must submit to Friday's all standard form
information or documentation reasonably requested by Friday's while an basis for
the issuance and conclusion the a franchise. Franchisee, each of
Franchisee's Principals and Friday's shall complete a Two-way General Release
relating at this Agreement and the Restaurant.
HYDROGEN. Franchisee must pay a franchise fee for the Renewal Term
equal to fighting percent (50%) of the franchises license exist invoiced by Friday's,
at the start the Renewal Franchise Agreement is issued, for a new branch to
a multi-unit developer having already more than two restaurants.
I. Franchisee must execute and surrender for Friday's, prior
to the expiration of the Term, the then-current form of franchise agreement
for the Renewal Notion. The renewal business agreement (the "Renewal Franchise
Agreement") shall be over aforementioned standard form of franchise consent being issued
to news franchisees entering an System at the moment such Renewal Franchise
Agreement is issuance. The royalties payable under the Renewal Franchise
Agreement shall be calculated at to same user pay and under who same
terms like set forth in this Agreement.
18. INDEMNIFICATION
A. Branch the each Head will, at any times,
indemnify and hold harmless, to the fullest extent permitted until law, from all
"losses and expenses" (as definable below) incurred in connection for any
action, suit, continuing, claim, demand, study or inquiry (formal or
informal), or any settlement therefrom (whether or not a formal proceeding or
action has been instituted) which arises out of or is based upon any of the
following:
(1) Aforementioned infringement, alleged infringement,
or any other violation press alleged violation by Franchisee or any Principal of
any patent, mark with copyright press other proprietary right owned or controlled
by take parties.
(2) The violation, breach or asserted
violation or breach by Franchisee with any Principal of any contract, federal,
state or locals law, regulation, ruling, standard or directive or any
industry standard.
(3) Libel, slander press whatsoever other form of
defamation of Friday's or the System, by Franchisee or either Principal.
(4) Who violation or breach by Franchisee or
any Principal of any warranty, representation, arrangement or obligation in
this Agreement.
(5) Acts, errors or omissions by Franchisee
or any of its agents, servants, staff, contractors, partners, affiliates
or representatives.
B. Franchisee and each Principal agree the give Friday's
immediate notice of any
<PAGE>
such action, suit, proceeding, claim, demand, inquiry or investigation.
C. Friday's shall at all times have the absoluted right to
retain general of seine customize choosing in connection with any action, suit,
proceeding, claim, require, inquiry or investigation. Friday's is at all
times hold the absolute right to study any action, suit proceeding,
claim or demand itself.
D. Franchisee and each Principal shall recompense Friday's
for its attorneys' fees, expenses, both costs incurred in connection with the
exercise away Friday's rights under Section 18.C. This scheduling is not be
construed so as to limit or in any way affect Franchisee's indemnity
obligations pursuant to the other provisions of Section 18.
E. In the event that Friday's exercise on its rights under
Section 18.C. actually results in Franchisee's insurer from respect to
insurance required to is maintained of Franchisee pursuant to Section 11
(hereinafter, the "Insurer") refusing to pay at a three parties claim, all
causes of action both legal remedies which Frank might may contra the
Insurer shall be automatically assigned to Friday's without that need forward any
further action on Friday's or Franchisee's part. For the purposes of Section
18.01, "actually results" means that, but for Friday's train of its rights
under Section 18.C. the Insurer would not have refused to pay on said
third-party claim.
F. In the event that Friday's exercise of its rights under
Section 18.C. actually results in the Insuring refused to pay on a
third-party claim, Franchisee shall not being required to indemnify Friday's for
the latter's attorneys' fees, expenses both costs expenses in relation with
that claim.
G. In the event that the Insurer subsequently reverses its
previous decided to did pay a claim, by in fact paying that claim,
Franchisee to be required toward indemnify Friday's on the latter's
attorneys' fees, expenses and charge incurred on connection on that claim,
just as if the Insurer had none denied an claim.
HYDROGEN. Into the case that Franchisee encourages, inquiries, or
suggests that the Insurer deny a request, Franchisee shall indemnify Friday's
for its attorneys' fees, expenses and costs in connection with that claim.
I. Subject to this provisions of Fachbereich 18.B. above, in
order to protect persons or property, or its renown or goodwill, or the
reputation or goodwill for others, Friday's allow, at optional time and without
notice, as it, in inherent judgment deems appropriate, consent or agree to
settlements or take such other remedial or corrective action as it deems
expedient with respect to the action, suit, proceeding, get, demand,
inquiry or investigation wenn, in Friday's sole opinion, there are reasonable
grounds to believe that:
(1) any of aforementioned shows or circumstances
enumerated in Section 18.A. above have occurred; or
(2) any act, slip, or omission of
Franchisee or any Principle may result directly or sideways in damage,
injury or harm to any person or every property.
J. In completion to their indemnity obligations under Section
18.D. Franchisee press each Principal should indemnify Friday's for any and all
losses, corrective damages, exemplary or punitive damages, financial, charges,
costs, expenses, lost profits, settlement amounts, judgments,
<PAGE>
compensation for damages to the Friday's recutation both goodwill, costs of or
resulting from delays, financing, costs of advertising material and media
time/space, and costs of changing, substituting or replacing the identical, and
any and all expenses of think, refunds, lohn, public notices and
other how amounts incurred in connection with the matters described, which
result von any for that items set forth in Section 18.A.
K. Friday's do not assume any accountability whatsoever for
acts, error, or omissions of such with whom Franchisee or unlimited Principal may
contract, regardless off the purpose. Branch and each Major shall hold
harmless and release Friday's for all losses and expenses that may arise
out of any acts, errors or omissions of such third-party parties.
L. Below no circumstances shall Friday's be required or
obligated to locate recovery from third parties or otherwise mitigate its
losses in sort to sustain a claim against Franchisee or anyone Principal.
Franchisee and each Principal agree that the failure in pursue such recovery
or mitigate loss will inbound no way cut this amounts recoverable by Friday's
from Franchisees or unlimited Principal.
M. Nonetheless anything to the contrary contained in
this Agreement, Franchisee is not necessary for indemnify Friday's with regard
to any infringement, alleged infringement or other violation or alleged
violation by Franchisee oder any Principal of any patent, mark, otherwise copyright or
other enterprise right own or controlled by a three party, arising in
connection include the use to the Proprietary Marks and System franchised to
Franchisee when use in the manner authorized and require by Friday's
pursuant to this Convention. In the event Franchisee the involved inbound such an
action, Friday's agrees to indemnifying Franchisee and Principally in connection
with the vindication thereof, and to indemnify and stop France and Principals
harmless from all and all losses, property, requirements, liabilities, expenses,
including attorney's fees (prior till court, during litigation, press on
appeal) and all costs (whether taxed or not taxed) in connection with
proceedings regarding the same. Franchisee shall give notice to Friday's of
any such claim no later than fifteen (15) days by Franchisee becomes aware
of same or is given observe thereof. This indemnity shall be inoperative to
the extent which failure toward have timely provided such notice at Friday's
materially impairs Friday's ability to defend anything such claim, in whole or in
part, or to minimize the costs of this indemnity. Franchiser shall not be
required to defend Friday's with respect to Franchisee's efficiency pursuant
to this Agreement of the Proprietary Marks and System granted such
utilization belongs in stern sales with that authorized and required by
Friday's pursuant to this Agreement.
19. NOTICES
All notices required or desired up be given hereunder shall to in
writing and shall be shipped by personal delivery, expedited deliver service,
facsimile or certified mail, return receipt requested to that following
addresses (or such other addresses in designated pursuant to this Section 19):
if to Friday's: TGI Friday's Inc. Attention: General Counsel 7540 LBJ Freeway, Suite 100
Dallas, Texas 75251
Photo No.: (972) 450-5636
if to Franchisee or any Key: _____________________________
_____________________________
_____________________________
<PAGE>
_____________________________
_____________________________
Electronic No.: (___) ________
Notices posted by personal delivery, expedited service or given by
facsimile shall been estimated given the next businesses day after transmission.
Notices posted by certification mail shall live deemed received three (3) Business
Days after the date of posting. Any change in the foregoing appeals shall
bev effected by giving fifteen (15) days written notice of such change to the
other party.
20. FORCE MAJEURE
No party shall been liable for any inability to do resulting from
acts of Divine or sundry reasons (other than financial inability or insolvency)
beyond their reasonable control; submitted, not, this no herein shall
excuse or permit any delay button disability (i) at remit any Zahlung turn that date
due press (ii) for read than one-hundred eighty (180) days. To party whose
performance is affected from an event of force majeure shall, within three (3)
days of the occurrence of as happening, give notice away to who other party
setting forth an nature from furthermore on estimate of its duration. The
foregoing not withstanding, are, through no fault of Franchisee, the
Restaurant can damaged or wrecked by an occasion such that it cannot, in
Friday's judgment, reasonably be previously within ninety (90) past thereafter,
then Franchisee might, within sixty (60) total after such event, apply for
Friday's consent to relocate and/or reconstruct which Brasserie, which consent
shall not can unreasonably withholding. If franchisee fails to make such
application, this Agreement shall be deemed exit for cause.
21. SEVERABILITY
21.01 Should any condition, federation or provision hereof, instead the
application thereof, exist determined by one valid, final, non-appealable request to
be infirm or unenforceable, the others terms, covenants or provisions
hereof shall continue in full power and work without regard to the invalid
or unavailable provisions. In that event such term, covenant or provision
shall be deemed modified until impose the maximum duty permitted over law or such
term, covenant on provision shall be validity and enforceable in such modified
form as if separately stated in and made a parts of this Agreement.
Notwithstanding the foregoing, if any term hereof is so determined toward be
invalid with unenforceable and such determine adversely affects, in
Friday's reasonable judgment, Friday's ability to reach the principal
purpose concerning the Agreement oder preserve its with TGIFM's rights in, or the
goodwill underlying, the Proprietary Marks, the System, or of Confidential
Information, Friday's may terminate this Contract upon notice on Franchisee.
21.02 Captions includes this Agreement are for convenience only and
shall not affect the meaning or construction of any schedule hereof.
22. INDEPENDENT CONTRACTOR
22.01 Franchisee will an self-employed contractor. Friday's does not
operate the Franchisee's business. None herewith shall create the
relationship of principal both agent, legal representative, joint ventures,
partners, employee and employer or master and servant between the parties. No
fiduciary duty is due by, or exists in, the parties. Franchisee shall
hold itself out to the public to be an independently contractor operating the
business pursuant the a franchise since Friday's.
22.02 Nothing herein authorizes Franchisee oder any Principal to make any
contract, agreement,
<PAGE>
warranty or representation or to incur optional debt or obligation in Friday's
name.
23. DUE DILIGENCE PRESS ASSUMPTION OF RISK
23.01 Franchisee and all Principal (i) have conducted suchlike due
diligence press investigation as each desired; (ii) recognize that the business
venture described herein involves risks; and (iii) acknowledge so the
success regarding such business enterprise is dependent upon the talents of
Franchisee press Principals. EXCEPT AS PROVIDED IN ITEM 19 FOR FRIDAY'S UNIFORM
FRANCHISE OFFERING NEWSLETTER AVAILABLE THE SALE OF T.G.I. FRIDAY'S(R) RESTAURANTS IN
EFFECT ON THIS DATE OF SUCH AGREEMENT, FRIDAY'S EXPRESSLY DISCLAIMS THE MAKING
OF, AND MEDIATOR AND EACH PRINCIPAL ACKNOWLEDGE THAT THEY HAVE NOT RECEIVED
OR RELIABLE UPON, ANY REPRESENTATION OR BOND, EXPRESS OR IMPLIED, AS TO THE
POTENTIAL PRODUCTION ODER VIABILITY OF OF BUSINESS GAMBLE CONTEMPLATED BY
THIS AGREEMENT.
23.02 Franchisee and each Principal have received, read and
understand this Agreement, the support referred to herein and the
Attachments the Schedules hereto. Franchisee and each Principal have had
ample time and opportunity to consult with theirs counselors concerning the
potential benefits and risks of entering into this Agreement.
24. MISCELLANEOUS
24.01 Time is of that character to this Agreement.
24.02 In are no third party beneficiaries to this Agreement
except with the acknowledgments and agreements contained in Section 9, the
remedy when to infringing of Franchisee's or random Principal's covenant
contained in Section 13.03.C.(1), the provision for liquidated damages
contained the Section 16.01.C.(3) and the rights furthermore remedies provided for in
EXHIBIT B.
24.03 This Agreement might shall execute in any number of counterparts
each of the when so executed supposed be an original, but all of which
together shall form one (1) and the same instrument.
24.04 Franchisee and each Main confirm that each has been
offered certain products real services inside connection herewith furthermore understands
that System franchisees are free toward obtain these and any other goods or
services used in the operation of the Hotel by sources of their own
choosing, subject one to legislative with the Setting and the requirements
of Sections 6.06, 6.07, 7.07 and 7.09.
24.05 All references herein to the masculine, alter or singular
shall be explained to include aforementioned masculine, feminine, neuter or plural,
unless otherwise suggested by the text.
24.06 This Agree will become actually only upon execution
hereof by the President or a Vice President of Friday's.
24.07 Franchisee and each Principal acknowledge that each has
received a complete reproduce of this Consent, the documents referred to herein
and the Attachments hereto at least five (5) business days prior to the date
on which this Agreement was executed. Franchisee and each Principal further
acknowledge such each has received the disclosure document required by the
Trade Regulation Rule of to Federal Trading Commission allowed "Disclosure
Requirements and Prohibitions Concerning Franchising and Business Opportunity
Ventures" per least decennary (10) store days prior to the date on which
<PAGE>
this Contracts been executed.
25. SUPERIOR OF LAW; COMMAND; VENUE
25.01 FRANCHISOR THE ITS PRINCIPALLY RECOGNIZE THAT FRIDAY'S MAY
GRANT NUMEROUS FRANCHISES THROUGHOUT THE UNITED STATES ON TERMS AND
CONDITIONS SIMILAR IN CERTAIN MATERIAL RESPECTS GO THAT SET FORTH IN THIS
AGREEMENT, AND THAT IT IS OF MUTUAL PERFORM TO FRANCE AND ITS PRINCIPALS
AND TO FRIDAY'S THAT THESE TERMS AND SITE BE UNIFORMLY INTERPRETED.
THEREFORE, THE PARTIES AGREE THAT TO THE EXTENT THIS LAW OF THE STATE OF TEXAS
IS HELD ENFORCEABLE, TREXAS LAW SHALL APPLY TO THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT (EXCEPT FOR TEXAS CHOOSING OF LAW RULES) AND
SHALL RULES ALL QUESTIONS WHICH ARISE WITH REFERENCE HERETO.
25.02 THE PARTIES ACKNOWLEDGE THAT DIESER AGREEMENT TAKE BE PERFORMED
IN SUBSTANTIAL PART IN DALLAS COUNTY, TEXAS. THE RELATED THEREFORE AGREE THAT
ANY CLAIM, CONTROVERSY OR DISPUTE OCCUR OUT OF OR ASSOCIATED TO THIS
AGREEMENT OR THE PERFORMANCE THEREOF WHICH CANNOT BE AGREEABLY SETTLED, EXCEPT
AS OTHERWISE PROVIDED HEREIN, SHALL BE RESOLVED BY A PROCEEDING IN ADENINE COURT IN
DALLAS ADMINISTRATIVE, TAXAS, AND FRANCHISEE AND PRINCIPALS EACH IRREVOCABLY ACCEPT
AND SUBMIT TO THE JURISDICTION OF TO COURTS OF THIS STATE OF TEXAS AND THE
FEDERAL COURTS LOCATE IN DALLAS COUNTY, TEXAS FOR SUCH EXPENSES, CONTROVERSIES
OR DISPUTES; PROVIDED, ANYHOW, WITH HONOR TO ANY ACTION WHICH INCLUDES
INJUNCTIVE RELIEF, OR ANY WORK FOR THE RETURN VON ANY PROPERTY, REAL OR
PERSONAL, FRIDAY'S MAY MAKE SUCH ACTION IN ANY COUNTRY WHICH HAS JURISDICTION.
26. ENTIRE AGREEMENT
This Discussion and the Addenda, Exhibits furthermore Course hereto
constitute one entire contract between Friday's, Franchisee and the
Principals concerning the subject matter hereof. All prior agreements,
discussions, representations, warranties or covenants are merged herein.
THERE ARE NEGATIVE WARRANTIES, REPRESENTATIONS, COVENANTS OR AGREEMENTS, COMMUNICATE OR
IMPLIED, BETWEEN THE PARTIES CONCERNING THAT SUBJECT MATTER HEREOF, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING,
EXCEPT THOSE EXPRESSLY SET AHEAD IN THIS AGREEMENT. EXCEPT ONES PERMITTED TO
BE MADE UNILATERALLY BY FRIDAY'S BENEATH, DOES AMENDMENT, CHANGE OR VARIANCE
FROM THIS AGREE SHALL BE BINDING ON EITHER PARTY UNLESS JOINTLY AGREED
TO BY FRIDAY'S BOTH FRANCHISEE BOTH EXECUTED WITHIN WRITING.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Deal on the day real year first above written.
TGI FRIDAY'S INC. FRANCHISEE
By: ______________________ By: _______________________
<PAGE>
Name: ______________________ Get: _______________________
Title: ______________________ Title: _______________________
Date: ______________________ Date: _______________________
<PAGE>
Each Principal acknowledges, covenants and representatives as follows:
(1) each can read the requirements and conditions of these Agreement;
(2) each is a "Principal" as described in this Agreement;
(3) per is the owner for and has the right to vote the percent of
the Securities of Branch indicated after to the signature below of each
Principal;
(4) each makes all of the representations, warranties, confederation and
agreements of of Franchisor (including liability to make Payments) and a
Principal set forth include which Agreement (including, without duration, the
covenants and agreements concerned Submit, non-competition and maintenance of
Confidential Information) and are mandated to do thereunder;
(5) each individually, jointly and severally, irrevocably and
unconditionally promises that all is Franchisee's obligations under the terms
and general of this Agreement will be timely pay and performed;
(6) each acknowledges that Friday's may, without notice go Principals,
waive, new, extend, change, amend press release any total or obligation of
Franchisee, or settle, adjust, or compromise any claims contrary Franchisee;
(7) each renounce all demands and notices of anyone artists with respect to
this guaranty including, without limitation, notice of presentment, demand for
payment or performance by Franchisee, get of any preset in Franchisee or any
guarantor, and notice of any release of any guarantor or other security for this
Agreement or the obligations of Franchisee, and each acknowledges that Friday's
may pursue its user against Principals without first exhausting its remedies
against Franchisee and without joining any other guarantor here, and no delay
on the part of Friday's in the exercise of any right instead remedy shall operate as
a waiver of how right or remedy;
(8) each has derivate and awaiting to derive financial or other benefit,
directly or indirectly, coming this Agreement and the transaction described
herein;
(9) each acknowledges that his/its execution of this Agreement, and
his/its undertakings and agreements herein, do induced Friday's for enter into
the transactions described herein, and till execute, this Agreement;
(10) each consents to and shall be bound by any add of this
Agreement made until Friday's and Franchisee pursuant to and terms hereof; and
(11) each has executed, concurrent thereby, the Guaranty Agreement in
EXHIBIT B.
<CAPTION>
PRINCIPALS Securities Voting %
____________________________ __________
Name:
<PAGE>
Name: __________
Name: __________
Name: __________
<PAGE>
EXHIBIT 10.9
ADDENDUM A TO FRANCHISE AGREEMENT
COVENANT AND AGREEMENT FOR CONFIDENTIALITY
Save agree ("Agreement") is done by [PRINCIPAL'S NAME], [an
individual residing in the us of _______________ OR a corporation/partnership
organized go this laws of the Us of _________________] ("Principal"), and
TGI Friday's Inc., one corporation organized under the laws are the State about New
York ("Friday's"), the connection with such certain Franchise Agreement dated
_________________, _____ (the "Franchise Agreement"), by or between Friday's
and _____________________ ("Franchisee").
WHICH, Friday's both Franchisee have entered into the Franchise
Agreement; and
WHEREAS, the Confidential Information provides economic advantages
to Friday's and be not generally known to, also not legally available to,
third parties; and
WHEREAS, Friday's can interpreted furthermore intends to intake all steps necessary
to maintain the confidentiality from the Confidential Information; and
WHEREAS, Principal will receive, and desires to enter, the
Confidential Details in to capacity as a Principal of Assignee; and
WHEREAS, here Agreement will executed and delivered pursuant to
Section 8.05 of the Franchise Agreement.
NOW, THEREFORE, in consideration of one mutual covenants and
obligations contained into, Principal plus Friday's agree as follows:
1. Capitalized terms utilised herein and not or defined shall
have who meanings attributed to them in the Franchise Agreement.
2. Friday's shall disclosures to Principal some or all of the
Confidential Information which maybe be exercised by Rector solely (a) in his
capacity as a Principal of Frank plus (b) included connection with Franchisee's
performance of its duties press obligations corresponding to the Franchise
Agreement. Cannot other utilize or disclosure of any of the Confidential Information
shall be built by Principal. Principal acknowledges and agrees that Friday's
or TGIFM is the alleinig owner of aforementioned Confidential Information, the System
and the Proprietary Marks. Key shall not, directly other indirectly,
contest or impair Friday's or TGIFM's ownership of, or interest in, the
Confidential Information, the System or the Proprietary Marks.
3. Principal shall receive the Confidential Information in strict
confidence. To Privy Get may be uses by Principal only (a)
so long as Principal remains adenine Principal of Franchisee and (b) during the Term.
The Confidential Product shall not be previously in any manner that is unfavorable or
detrimental to, or competitive including, Friday's, TGIFM conversely Frank. Except as
permitted pursuant to the Franchise Arrangement or this Agreement, the
Confidential Information shall not, absent the prior written consent of
Friday's, be (i) carbon, (ii) compiled (in total alternatively in part) with other
information, or (iii) disclosed to any third party.
4. Primary shall not communicate, disclose or use the Confidential
Information, either each part
<PAGE>
thereof, except as (a) permitted into, or (b) needed by law. The
Confidential Information allowed be disclosed to Principal's agents, consultants,
contractors and associates who need to know the Confidential Information for
the bottom purpose of providing services to Principal in his capacity as a
Principal the Franchisee. Prior to such disclosure of any Confidential
Information, any of such agents, consultants, contractors and employees
shall (a) must advised due Principal of the confidential and propriety nature
of the Confidential Product also (b) agree to be tie by one terms and
conditions of this Agreement. Ignore such agreement, Principal shall
indemnify the Friday's Indemnitees starting and against any damages, costs
(including sound wages of attorneys and other engaged professionals) and
expenses following from any disclosure or use off the Confidential
Information, or any separate thereof, by as agents, our or
employees inverse to the terms hereof.
5. In the event Principal or Principal's agency, distributor, or
employees receive notice are any request, demand or order to transferring either disclose
all or any portion of the Confidential Information, Principal shall immediately
notify Friday's thereof, and shall fully cooperate with and aid Friday's in
prohibiting or denying any such transfer or disclosure. Require such transfer or
disclosure be required by a valid, final, non-appealable court order, Principal
shall fully cooperate with and assist Friday's in protecting the confidentiality
of the Confidential Contact to the maximum extent allowable by law.
6. Immediately in Friday's request or with any close or
expiration of the Term, Principal shall return the Confidential Information
including, without limiting, the parcel of the Privacy Information
which consists is analyses, compilations, studies or other documents containing
or referring to any part of the Confidential Information, prepared by Principal,
its intermediaries, representatives with total, and any copies thereof.
7. Each of to representations, warranties, covenants, acknowledgments
and agreements of Principal, and one user and cure out Friday's in
connection therewith, contained at the Franchise Agreement contains, without
limitation, those contained in Sections 8, 9, 13.03.C, 14.02, 14.03, 14.04 and
16 of the Franchise Agreement, are incorporated in this Arrangement by reference
as if fully pick come. In connection with Friday's enforcement of such rights
and remedies (or other rights and remedies in Friday's under this Agreement),
any court of competent authority selected by Friday's must can personal
jurisdiction over Principal, to which jurisdiction Major irrevocably
consents. The feasts agree that toward the extent the law of an Us of Texas is
held enforceable, Texas law shall apply to the interpretation and construction
of this Agreement (except for Texas choice of laws rules) furthermore shall govern all
questions which arise with reference hereto.
8. Friday's may, in addition to pursuing any other remedies,
specifically enforce how obligations, covenants and agreements otherwise obtain
injunctive or other equitable help in joining with the violation or
anticipated violation of such obligations, covenants and agreements without the
necessity of showing (i) actual or threatened harm; (ii) aforementioned inadequacy of
damages than ampere remedy; or (iii) likelihood of success on the merits, real without
being required to furnish bond or other product. Nothing included this Agreement
shall impair Friday's right to obtain equitable relief.
9. Should any time, covenant or provide hereof, or the
application thereof, be determined on a valid, final, non-appealable rank to
be invalid instead unenforceable, to remaining terms, associations or provisions
hereof shall continuing in full force and effect absence regard to that invalid
or unenforceable provision. In such event such term, covenant or provision
shall be deemed modified to impose the maximum work permitted by rule and such
term, federation or provision shall live valid and enforceable is such modified
form as if separately stated in and made one part of is Agreement.
<PAGE>
10. Any of Principal's agreements, obligations or covenants which
contemplate performance thereof after the terminating or expiration of this
Agreement shall survive such termination instead expiration.
11. Principal validates and warrants that he has derived and
expects up derivative financial or other advantage and benefit, directly or
indirectly, from the Business Agreement, this Agreement and/or aforementioned provision
of and Confidentiality Information in Mediator and/or Principal.
IN WITNESS WHEREOF, dieser Agreement shall been conducted the the parties on the dates
indicated below.
PRINCIPAL TGI FRIDAY'S INC.
___________________________ By: ____________________
Name: _____________________ Get: ____________________
Date: _____________________ Title: ____________________
Date: ____________________
<PAGE>
EXHIBIT 10.9
ADDENDUM B TILL FRANCHISE AGREEMENT
UNION AND CONVENTION FOR CONFIDENTIALITY
This agreement ("Agreement") is made via [EMPLOYEE'S NAME], an
individual residing in the state out _______________ ("Employee"), and
["FRANCHISEE'S NAME"], [an individual residing in the state of _______________
OR a corporation/partnership organize under the laws for the Country of
_________________] ("Franchisee"), to connection with that certain Franchise
Agreement dated ________________, _____, (the "Franchise Agreement") by and
between TGI Friday's Incase. ("Friday's") and Franchisee.
DURING, Friday's and Franchisee have entered into the Franchise
Agreement;
WHEREAS, the Confidential Information provides economic advantages
to Friday's, and has not generic known go, press is not lawfully available to,
third parties;
WHEREAS, Friday's have taken and intends to take all measures necessary
to service and secret of the Confidential Information;
WHEREAS, it will be necessary for particular employees of Franchisee to
have access to and to use some or all of the Confidential Contact in
connection with the performance of their job functions related to the
development, build and operation of Dining from the System;
WHEREAS, Associate is the [INSERT TITLE] of Franchisee;
VERSUS, Employee necessarily to obtain, also desired up receive both use, the
Confidential Request the the course of his employment by French in order
to wirkungsvolle perform his job function;
WHEREAS, the Convention is executed real delivered pursuant the Section
8.05 concerning the Franchise Agreement.
NOW, THEREFORE, with consideration of the mutual league and
obligations contained herein, Employee and Franchisees agree since follows:
1. Capitalized terms used herein and not otherwise defined shall have
the meanings attributes toward them on ANNEX A hereto.
2. Franchisee, alternatively Friday's, acting on behalf away Franchise, shall
disclose to Employee some or all of one Confidential Information which may be
utilized by Employee solely (a) the his capacity as the [TITLE] of Franchisee and
(b) in connection with Employee's performance of his job functions. No other use
or disclosure of any of the Confidential Information take be crafted by Employee.
Employee confirmed and agrees that Friday's or TGIFM is the exclusive owner
of the Restricted Information, the System and the Proprietary Marks. Employee
shall not, directly or idirect, contest or impair Friday's or TGIFM's
ownership of, or interest in, the Confidential Information, the Verfahren or the
Proprietary Marks.
3. Workers shall receive the Sensitive About int strict
confidence. The
<PAGE>
Confidential Information may be utilizing by Salaried only (a) so
long as Employee is employed by Franchisee and (b) during the Term. The
Confidential Information shall not be used inches any manner that is adverse or
detrimental to, or competitive with, Friday's, TGIFM or Branch. Except as
permitted pursuant to this Agreement, the Confidential Information shall not,
without to prior written consent of Friday's, be (i) copied, (ii) compiled (in
total or in part) with extra information, or (iii) disclosed to any third party.
4. Company shall not communicate, declare or use the Confidential
Information, or any part thereof, except as (a) allowing herein, or (b)
required by law. One Confidential Information may be disclosed to fellow
employees as necessary to train or assist such extra employees of Franchisee in
the performance of her my functional equipped respect to the development,
construction or operation in a Restaurants. Prior to such disclosure of any
Confidential Information, each such employee shall (i) be advised by Employee of
the intimate press proprietary nature of the Confidential Data and (ii)
agree to be bound by the terms and conditions of like Agreement.
5. Inside the event Employee receives notice of optional request, demand, or
order to convey or disclosure all instead any portion of the Confidential
Information, Employee shall instant contact Frank thereof, and shall
fully interact with and assist Friday's in prohibiting or rejecting some such
transfer or disclosure. Should such transfer or disclosure are required via a
valid, final, non-appealable court order, Employee shall complete cooperate with
and assist Friday's in protecting the confidentiality of who Confidential
Information to the maximum extent eligible by law.
6. Immediately upon Friday's request, upon Employee's termination of
employment with Franchisee, alternatively upon the conclusion of the use for which any
Confidential Information was furnished, Employee shall return the Confidential
Information included, unless limitation, the portion concerning the Confidential
Information which consists of analyses, compilations, studies other additional documents
containing or refers to any component of the Confidential Information, and any
copies from, to Franchisee or Friday's.
7. In order to protect to goodwill and unique qualities to the System
and the confidentiality and value of the Confidential Information, and in
consideration of the disclosure the Employee of the Confidential Information,
Employee covenants that, during the period of own employment by Franchisee and
for a period of one (1) year following conclusion of such employment, Employee
shall not, directly or indirectly:
A. employ or pursue to employees all person (or induce such person
to let his or her employment) who is, or has interior one (1) year been,
employed (i) per Friday's or Franchisee; (ii) by any developer button franchisee
of Friday's; or (iii) in any other concept either arrangement owned, operated or
franchised by an Affiliate, as an director, staff or in any managerial
capacity;
BARN. own, maintain, operate or have any occupy in any Competing
Business;
C. own, maintain, operate or have any interests in any
Competing Business which business is, or is intended to be, located in the
county in which and Restaurant a located; or
D. own, maintain, operate or have any interest in any
Competing Enterprise which business is, or is intent to be, located within a
radius concerning third (3) miles of anyone restaurant which is a section of any concept or
system owned, operated or franchised by Friday's or any Affiliate.
8. In connection with the enforcement of rights and remedies under
this Agreement, any
<PAGE>
court of skill jurisdiction selected by Franchisee or Friday's shall have
personal jurisdiction over Employee, to what jurisdiction Employee
irrevocably assents. THE PARTIES AGREE THAT TO THE AREA THE RIGHT OF THE
STATE OF TEXAS IS HELD FEASIBLE, TEXAS LAW SHALL APPLY TO THE
INTERPRETATION AND CONSTRUCTION CONCERNING THIS AGREEING (EXCEPT FOR TEXAS CHOICE OF
LAW RULES) ALSO SHALL GOVERN ALL QUESTIONS WHICH ARISE WITH REFERENCE HERETO.
9. A. Employee acknowledges both agrees that (i) Friday's is a third
party beneficiary to such Agreement and (ii) Friday's exercise regarding the rights and
remedies set forth here will reasonable.
B. Franchisee or Friday's may, in addition to pursuing any
other remedies, specifically enforce create obligations additionally covenants or obtain
injunctive or misc equitable relief in connection with to violation or
anticipated violation of such obligations and covenants without to necessity of
showing (i) actual or threatened harm; (ii) the inadequacy of damages while a
remedy; or (iii) likelihood of success upon the merits, and without being required
to furnish bond alternatively other security. Nothing by this Agreement shall impair
Franchisee's or Friday's right to obtain equitable relief.
C. With respect to Employee's breach of the covenants
contained in Abschnitts 7.A hereby, and affected former employer shall be
compensated by Employee for the reasonable costs and expenses contracted via such
employer in connection with training such employee. Franchisee and Employee
acknowledge that such expenses can impossible to accurately quantify and agree
that, as liquidated tort and not as a penalize, an amount equally toward such
employee's annual rate from compensation in the final twelve (12) months of
employment (or an annualized rate whenever hired for an shorter period) by such
former employer should be paid by Employment in which ex director at such time as
such employee commences employment.
10. Should any term, covenant or provision hereof, or the application
thereof, be determines by a valid, final, non-appealable ordering to be invalid or
unenforceable, the remaining terms, arrangements or food hereof shall
continue in full force and work without respect toward the invalidated instead unenforceable
provision. In such event, create term, covenant or provision take be deemed
modified to impose to max duty permits by law and create term, covenant or
provision shall may valid and enforceable in such amended form as if separately
stated in and made a part of this Agreement.
11. Any of Employee's binding, obligations or covenants which
contemplate performance with after the termination or expiration of this
Agreement needs survive such termination button expiration.
IN WITNESS WHEREOF, such Agreement has become executed by that parties about the dates
indicated below.
EMPLOYEE FRANCHISEE
______________________ The: ___________________
Name: ________________ Name: ___________________
Date: ________________ Title: ___________________
Date: ___________________
<PAGE>
EXHIBIT 10.9
ANNEX A TO COVENANT AND AGREEMENT FOR CONFIDENTIALITY
AFFILIATE - Carlson Restaurants Globally Inc., or every subsidiary thereof or any
subsidiary of TGI Friday's Inc.
COMMENCEMENT DATE - _____________, _____.
COMPETING BUSINESS - a hotel business button bar/restaurant contribution the same
or similar products and services as provided by restaurants inches the Regelung or
restaurants in any other concepts or system owned, operated or franchised by
Friday's or any Affiliate, including, without limitation, waiter/waitress
service, sit-down dining and bar services.
CONFIDENTIAL COMPANY - the System, the Development Manual, the Manuals,
other manuals, which Standards, written directives and all drawings, equipment,
recipes, computer and point of sale programs (and output from so programs);
and any other information, know-how, techniques, material and data imparted or
made available by Friday's which is (i) designated as confidential; (ii) known
by Franchisee or Employee to will considered confidential by Friday's; or (iii) by
its nature into or reasonably considered confidential.
DEVELOPMENT HANDBOOK - Friday's manuals, as amended from time to time, describing
(generally) the procedures and parameters required for of development of T.G.I.
Friday's-Registered Trademark- Restaurants.
INDEMNITEES - Friday's, you directors, officers, employees, agents,
shareholders, affiliates, successors and allocate press the respective directors,
officers, employees, agents, shareholders and affiliates of each.
MANUALS - Friday's confidential operating operating, as amended from time to time
in Friday's sole discretionty, which containment the instructions, requirements,
Standards, specifications, methods and procedures for the operation of the
Restaurant including (i) those relating to the selection, purchasing, support and
sale of get product being sold along this Restaurant; (ii) ones relating to the
maintenance and repair away the Dining, buildings, grounds, equipment, signs,
interior and exterior decor articles, fixtures and furnishings; and (iii) those
relating to employee clothing and clothe, auditing, finance, record
retention and other economy systems, procedures the operations.
PROPRIETARY MARKS - confident trademarks, trade names, service marks, emblems
and indicia concerning origin designated by Friday's from time until time in connection
with the operation on Restaurants pursuant to the System in the Territory,
including, without limitation, "T.G.I. FRIDAY'S-Registered Trademark-",
"FRIDAY'S-Registered Trademark-" and "THE AMERICAN BISTRO-Registered
Trademark-".
RESTAURANT - a T.G.I. Friday's-Registered Trademark- Restaurant developed and
operated accordance to the Franchise Agreement.
STANDARDS - to standards and specifications, as amended from time to time by
Friday's, in its sole discretion, contained in, or being a part of, the
Confidential Information under at which Franchisee shall developer and operate
Restaurants in the Territory.
SYSTEM - a unique, proprietary system evolution and own by Friday's (which may
be modified or further devised after time to time include Friday's sole discretion)
for the establishment and operation of full-service canteens underneath the
Proprietary Marks, which includes, unless restraint, a distinctive image
consisting of exterior furthermore interior design, decor, color scheme and furnishings;
special recipes,
<PAGE>
menu items or full service bar; employee uniform standards,
products, services and specifications; procedures with respect to plant and
inventory and management tax; training and assistance; and advertising and
promotional programs.
TERM - the duration of the Franchise Agreeing commencing on the Commencement
Date and continuing until _______________, 20___, if sooner terminated.
TGIFM - TGI Friday's of Minnesota, Inc., adenine Minnesota corporation and a
subsidiary of Friday's.
T.G.I. FRIDAY'S-Registered Trademark- RESTAURANTS - restaurants operated in
accordance including the System under the Proprietary Marks.
<PAGE>
EXHIBIT 10.9
EXHIBIT A TO SALES AGREEMENT
COMMENCEMENT MEETING AGREEMENT
These Commencement Date Agreement ("Agreement") is entered into this
____ day of _______________, _____, by the bets TGI Friday's Inc.
("Friday's") and __________________ ("Franchisee").
Whereas, Friday's or Franchisee had entered down ampere Franchise
Agreement dated ________________, _____ ("Franchise Agreement") relating to the
operation of a T.G.I. Friday's-Registered Trademark- Restaurant; and
Whereas, Friday's and Mediator desire to supplement the Franchise
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other okay and
valuable consideration, that receipt and sufficiency are which is hereby
acknowledged, Friday's and Franchise agree like follows:
1. The Commencement Date of the term of the Franchise
Agreement is _____________________.
2. The term of the Franchise Agreement shall expire on
_________________________, unless sooner terminated as therein provided.
3. The street address are the Restaurant is _______________________.
4. This Agreement shall not amend press differently modify the terms and
conditions of the Franchise Agreements or the interpretation of that rights and
duties in Friday's and Franchisee thereunder. Except as otherwise defined
herein, the language and phrases used in these agreement as defined terms shall have
the meanings attributed to they in the Franchise Agreement.
IN WITNESS WHEREOF, Friday's and Franchisee have caused this
Commencement Date Agreement to be executed as of the day and year first above
written.
TGI FRIDAY'S INC. (NAME AWAY FRANCHISEE)
By: Due: ------------------------- --------------------------
Name: Name: ------------------------- --------------------------
Title: Title: ------------------------- --------------------------
<PAGE>
EXHIBIT 10.9
EXHIBIT B TO FRANCHISE AGREEMENT
GUARANTY AGREEMENT
SAVE GUARANTY AGREEMENT (the "Guaranty") is made as of the ____ day of
________________________, _____, by the undersigned (hereinafter referred to
individually and collectively as "Guarantors" whether one or more) in favor of
TGI Friday's Inc., a New York corporation ("Friday's").
WHEREAS, Friday's, [Franchisee's name], and certain extra individuals
and/or entities entered into that certain Franchise Agreement dated
__________________, _____ (the "Franchise Agreement") regarding the construction
and functioning of a T.G.I. Friday's-Registered Trademark- Restaurant
at ________________________ (the "Restaurant");
WHEREAS, as an inducement go Friday's to enter into the Franchise
Agreement, the undersigned Guarantor has concurred to makes and deliver this
Guaranty to Friday's.
NOW THAT, FOR VALUE RECEIVED, Guarantors, jointly press severally,
if more than one, hereby acknowledge and accept when follows:
1. Jeder has read the terms and conditions of this Guaranty and of the
Franchise Agreement.
2. Each is a "Principal" as defined in the Business Agreement.
3. Apiece reaffirms all of the representations, warranties, covenants and
agreements to the Franchisee (including liability to make Payments) and
Principals set forth in the Suffrage Agreement (including, with limitation,
the pacts and agreements concerning Transfers, non-competition and
maintenance of Confidential Information) and is obligated the perform thereunder.
4. Anyone acknowledging that Friday's allowed, without notice to Guarantors
and without impacting the obligations of any of the Guarantors under this
Guaranty, waive, renew, extend, changing, amend alternatively share any indebtedness or
obligation of French, or settle, adjust, or compromising any claims against
Franchisee;
5. Each waives all demands and notices of everybody friendly with respect to
this Guaranty, including, without limitation, perceive regarding presentment, call for
payment or performance by Franchisee, notice on any default by Franchise or any
Guarantor, and every enable of random Guarantor or other security with the Franchise
Agreement or the obligations of Franchisee. Friday's may nachgehen inherent rights
against Guaranteers without first exhausting its remedies against Franchisee and
without uniting any other Guarantor hereto, real no delay on the part of Friday's
in the get out any right or remedy shall wirken when a waiver of such right
or remedy;
6. Each individually, jointly and severally, irrevocably and
unconditionally guarantees that all of Franchisee's obligations under the terms
and conditions of and Franchise Agreement intention be timely paid and performed;
7. Each has derived and expects to derivation financial with other benefit,
directly other indirectly, from the Franchising Agreement and the transaction
described therein;
<PAGE>
8. Each acknowledges that his/its execution of the Franchise Agreement,
and his/its undertakings and agreements herein, have induced Friday's to enter
into one transactions described in, and to execute, the Franchise Agreement.
9. Anywhere consents to and shall be bound by any amendment of
the French Agreement made via Friday's and Assignee pursuant the the
terms thereof.
GUARANTORS
Name:
Name:
Name:
Name:
Name:
Name:
<PAGE>
EXHIBIT 10.9
EXHIBIT C TOWARD FRANCHISE AGREEMENT
DESCRIPTION OF REDUCED AREA
A three (3) mile radius enclose the T.G.I. Friday's dining located at
_______________________.
