Exhibit 10.13
LICENSE AGREEMENT
by and between
ARBY'S, INC. d/b/a TRIARC RESTAURANT GROUP
Licensor
and
T.J. CINNAMONS, INC.
Licensee
Dated as of August 29, 1996
LICENSE AGREEMENT
TABLE OF CONTENTS
PAGE
----
RECITALS OF FACT .............................................................1
1. GRANT ....................................................................2
2. TERM .....................................................................3
3. RETAIL SALES OF TJC PRODUCTS; TJC BAKERIES ...............................3
4. WHOLESALE DISTRIBUTION ...................................................5
5. LICENSING BY LICENSEE; ENFORCEMENT OF TJC LICENSE AGREEMENTS .............9
6. PREPARATION OF TJC PRODUCTS .............................................12
7. PROPRIETARY MARKS .......................................................13
8. PROPRIETARY INFORMATION .................................................16
9. TERMINATION .............................................................17
10. ADVERTISING AND PROMOTION ..............................................18
11. TECHNICAL ASSISTANCE ...................................................19
12. NEW PRODUCTS ...........................................................19
13. REPORTS AND RECORD KEEPING .............................................21
14. CONFIDENTIALITY, NON-DISCLOSURE, AND NON-COMPETE .......................22
15. INDEMNIFICATION ........................................................23
16. INSURANCE ..............................................................24
17. ASSIGNMENT OF INTERESTS ................................................24
18. ASSIGNMENT OF TJC FRANCHISE AGREEMENTS .................................25
19. MISCELLANEOUS ..........................................................25
EXHIBIT A - INTELLECTUAL PROPERTY
EXHIBIT B - EXISTING TJC LICENSE AGREEMENTS AND TJC LICENSEES
EXHIBIT C - TJC PRODUCTS
EXHIBIT D - WHOLESALE DISTRIBUTION
EXHIBIT E - FORM OF TJC FRANCHISE AGREEMENT
EXHIBIT F - MODIFICATIONS TO THE TJC LICENSE AGREEMENTS
EXHIBIT G - STANDARDS AND SPECIFICATIONS
EXHIBIT H - OFFICERS, DIRECTORS AND EXECUTIVES OF TJC
EXHIBIT I - SUPERMARKET CHAINS
EXHIBIT J - APPROVED TJC WHOLESALE PRODUCTS
EXHIBIT K - INSURANCE REQUIREMENTS
EXHIBIT L - ASSIGNMENT OF TJC FRANCHISE AGREEMENT
LICENSE AGREEMENT
This License Agreement ("Agreement") is made this 29th day of August, 1996,
by and between Arby's, Inc., d/b/a Triarc Restaurant Group, a Delaware
corporation ("Licensor"), and T.J. Cinnamons, Inc., a Delaware corporation
("Licensee").
RECITALS OF FACT
A. Licensor's affiliate, TJ Holding Company, Inc., pursuant to a Purchase
Agreement between TJ Holding Company, Inc. and Licensee, dated of even date
herewith (the "Purchase Agreement"), is the owner of (i) certain secret recipes
and secret formulae (the "Secret Recipes") for baking gourmet cinnamon rolls and
other bakery products; (ii) secret and proprietary plans ("Technical
Information") relating to the preparation, baking, and merchandising of the
gourmet cinnamon rolls utilizing the Secret Recipes (the Secret Recipes and
Technical Information are referred to herein as the "Proprietary Information"
and are more particularly identified in Exhibit A hereto); and, (iii) certain
trade names, trademarks, service marks, logos, signs, and emblems, including,
without limitation the ▇▇▇▇ "▇.▇. CINNAMONS," relating to the products prepared
using the Proprietary Information, and other goods and services offered at
retail stores, bakeries, and other locations, that offer the products made
utilizing the Proprietary Information (the "Proprietary Marks"). The Proprietary
Information and Proprietary Marks are collectively referred to as "Intellectual
Property." All bakery products made with the Proprietary Information are
referred to as "TJC Products."
B. Licensor, pursuant to a license agreement with TJ Holding Company, Inc.,
dated of even date herewith, has the right to use, and license others to use,
the Intellectual Property.
C. TJ Holding Company, Inc. and/or Licensor own and develop, use, and
control the Intellectual Property in order to identify for the public the source
of the TJC Products and to represent the high standards of quality associated
with the TJC Products and the standards of quality, appearance, and service
associated with TJC Bakeries (defined below) and other locations from which TJC
Products are or may be sold.
D. Licensee owns and operates, and franchises others ("Franchisees")
pursuant to Franchise agreements ("TJC Franchise Agreements") to operate, retail
locations identified by one or more of the Proprietary Marks (and using the
Proprietary Information) that prepare and fell all or variety of TJC Products,
and other bakery products and beverages ("TJC Bakeries"). The location of each
TJC Bakery and the date on which each TJC Franchise Agreement for any TJC Bakery
was executed are set forth in Exhibit B hereto. The type and number of varieties
of TJC Products and other products sold at TJC Bakeries have been specified by
Licensee prior to the date of this Agreement, and will, hereafter, be specified
by Licensor. Licensee has also licensed or permitted others ("Retail Licensees")
to use the Proprietary Information to prepare and sell a limited variety of TJC
Products at or from certain retail locations other than TJC Bakeries (referred
to herein as "TJC Retail Locations"), which are identified by one or more
of the Proprietary Marks, and licenses other third parties ("Wholesale
Licensees") to prepare and sell at wholesale, for resale through retail food
stores, selected TJC Products. (These licenses are referred to herein as
"Wholesale Licenses.") The names of each Retail Licensee and Wholesale License
and the location of each Retail Location are set forth in Exhibit B to this
Agreement. Franchisees, Retail Licensees, and Wholesale Licensees are referred
to in the aggregate as "TJC Licensees," and agreements with TJC Licensees are
referred to collectively as "TJC License Agreements" (which includes TJC
Franchise Agreements).
E. TJ Holding Company, Inc. and Licensee have executed a management
agreement of even date herewith (the "Management Agreement"), under which TJ
Holding Company, Inc. will act as Licensee's agent to undertake Licensee's
rights, duties, and responsibilities under the TJC Franchise Agreements and the
agreements with the Retail Licensees.
F. Licensee desires a license from Licensor to use the Intellectual
Property (i) to operate one TJC Bakery; (ii) to continue to fulfill its existing
obligations with respect to Franchisees and Retail Licensees; and (iii) to
prepare and sell TJC Products at wholesale, and to license Wholesale Licensees
to prepare and sell TJC Products, in the manner specified in this Agreement.
With reference to the above-stated Recitals of Fact, and in consideration
of the mutual covenants and conditions contained in this Agreement, the parties
hereby agree as follows:
1. GRANT
1.1 Licensor hereby grants to Licensee the right to use, and Licensee
undertakes the obligation to use, the Intellectual Property, within the
Territory as defined in Section 1.2 below, solely for the following purposes:
1.1.1 To prepare and sell TJC Products (a) from one (1) TJC Bakery
identified Exhibit B, or (b) at wholesale (as specified in Section 4); and
1.1.2 To fulfill Licensee's obligations under TJC License Agreements,
and to continue to permit TJC Licensees to prepare and sell TJC Products,
and to use the Intellectual Property in connection therewith.
1.2 Except as described in Section 4.6, the rights granted herein are
solely for use by Licensee and the TJC Licensees in the United States (the
"Territory"), and Licensee shall have right to use, or license others to use,
any of the Intellectual Property outside of the Territory.
1.3 The rights granted to Licensee are limited to the specific purposes
described in this Agreement. Licensee shall have no right to grant new TJC
License Agreements, except for RJC Retail Locations at Six Flags Great Adventure
Parks pursuant to Section 3.6, the renewal or extension of TJC Franchise
Agreements as set forth in Section 5, or Wholesale Licenses, as set forth in
Section 4. Except as set forth in Section 4.5 and Section 12, Licensor retains
the
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right to produce TJC Products or other products using the Proprietary
Information, for sale through any channels of distribution, and Licensor may
produce, offer, or sell, and authorize others to produce, offer, or sell, any
such products under the Proprietary Marks or any other ▇▇▇▇ or name.
2. TERM
2.1 The term of this Agreement shall begin on the date first written above,
and, unless sooner terminated in accordance with the terms herein, shall expire
twenty (20) years from the date of this Agreement.
2.2 Licensee may renew this Agreement four (4) times; for three (3)
additional nods of twenty (20) years each upon the expiration of the initial
term or the preceding renewal term, and for one (1) additional period of
nineteen (19) years upon the expiration of the third renewal term; provided that
Licensee has complied with the following conditions prior to the expiration of
the initial term, or the applicable renewal term;
2.2.1 Licensee has notified Licensor in writing of Licensee's intent
to renew this Agreement not less than six (6) months prior to the end of
the initial, or applicable renewal term;
2.2.2 Licensee has complied with all of the terms and conditions of
this Agreement throughout the applicable initial term or renewal term,
including compliance with all written guidelines, specifications, and
standards prescribed by Licensor; and
2.2.3 Licensee has executed a general release in the form specified by
Licensor, of any and all claims against Licensor and its affiliates and
their respective officers, directors, employees, and agents.
2.3 If Licensee is in compliance with the teens and conditions of this
Agreement at all times during the fourth renewal term specified in Section 2.2
above, and if, not more than six (6) months prior to the end of the fourth
renewal term, Licensee sends written notice to censor of Licensee's desire to
further extend this Agreement, Licensor and Licensee shall negotiate in good
faith the terms of an extension and/or modification of this Agreement; provided,
however, that this provision shall not obligate or bind Licensor to extend this
Agreement. If a mutually agreed upon extension is not reached by the expiration
of the fourth renewal term, this Agreement shall expire.
3. RETAIL SALES OF TJC PRODUCTS; TJC BAKERIES
3.1 Licensee acknowledges and agrees that Licensee's right to prepare and
sell TJC Products, and license others to prepare and sell TJC Products, is
limited to the specific rights granted by Licensor in this Agreement.
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3.2 Attached to this Agreement as Exhibit C is a list of TJC Products
currently approved for sale at TJC Bakeries (the current "TJC Product List")
including TJC Products which must be sold at all TJC Bakeries ("Required TJC
Products"), and TJC Products approved by Licensor for sale at TJC Bakeries, but
which Licensee and Franchisees are not required to sell at the TJC Bakeries
("Permitted TJC Products"). Licensor may add to, delete from, or otherwise
modify the TJC Product List, including the Required TJC Products and the
Permitted TJC Products, in its sole discretion upon 30 days written notice.
Licensee shall comply with, and shall require that all Franchisees comply with,
all such changes to the TJC Product List to the extent consistent with, and
permitted under, the TJC Franchise Agreements. To the extent permitted under,
and consistent with, the TJC Franchise Agreements, from and after the date of
this Agreement, each TJC Bakery shall sell (i) all of the Required TJC Products;
(ii) at least 2 varieties of Permitted TJC Products; (iii) such complementary
bakery products as may be specified by Licensor, such as muffins, bagels,
pastries, cookies, and related products; and, (d) such beverages as may be
specified by Licensor, such as specialty coffees and teas.
3.3 Licensee and Franchisees may operate TJC Bakeries only at the locations
specified in Exhibit B. In the event a Franchisee is entitled to relocate its
TJC Bakery under a TJC Franchise Agreement, Licensee shall not approve of such
relocation except to a site that is in enclosed retail shopping mall, consisting
of at least one hundred thousand (100,000) rentable square feet of retail
shopping space, and the relocated TJC Bakery shall be no smaller in size than
four hundred (400) square feet and no greater in size than one thousand (1000)
square feet; provided that Licensee shall not relocate its TJC Bakery, or permit
the relocation of a Franchisee's TJC Bakery, to any retail shopping mall, if a
restaurant owned or operated by Licensor or an affiliate of Licensor's, or
operated under a franchise agreement with Licensor or an affiliate of
Licensor's, is located in such mall.
3.4 Licensee shall operate the TJC Bakery specified in Exhibit B in a
manner consistent with the provisions of this Agreement and with the terms and
conditions required of a "franchisee" under the form of TJC Franchise Agreement
specified in Section 4.2 hereof and attached as Exhibit E hereto; provided,
however, that Licensee shall not be obligated to pay royalties under such TJC
Franchise Agreement. Licensor shall provide instructions to Licensee regarding
the operation of the TJC Bakery in a manner consistent with that of "franchisor"
under the TJC Franchise Agreement.
3.5 Except as specifically set forth in Exhibit D, Licensee represents and
warrants that the date of this Agreement, TJC Bakeries do not sell, and are not
approved by Licensee to sell, any TJC Products "at wholesale," as that term is
defined in, or construed under, the TJC Franchise Agreements, and that all TJC
Products sold from the TJC Bakeries are sold at the premises of the TJC Bakeries
to retail consumers and not for the purpose of resale or other distribution.
Licensee shall not approve the wholesale distribution or sale of TJC Products
from any TJC Bakery, except for the continuation of the wholesale distribution
described in Exhibit D. Licensee represents and warrants that attached to
Exhibit D are all copies of written agreements, and written description of oral
agreements, with TJC Licensees that permit the sale
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of TJC Products at Wholesale, and a copy or a written description of Licensee's
policy regarding wholesaling by TJC Licensees, as that policy existed as of the
date of the Purchase Agreement, and as of the date of this Agreement.
3.6 From the date of this Agreement, Licensee may not open or operate, nor
grant new or additional licenses to others to open or operate, any additional
TJC Retail Locations. Notwithstanding the foregoing, Licensee may, upon written
request by TJC, and only with Licensor's consent, which consent shall not be
unreasonably withheld, open, or grant additional licenses for, additional TJC
Retail Locations at the Six Flags Great Adventure amusement parks in Jackson,
New Jersey, and other locations within the Territory, pursuant to an agreement
to be executed in accordance with the letter agreement dated April 1, 1996, that
is attached to Exhibit B; provided Licensee shall pay to Licensor a royalty fee
equal to twenty percent (20%) of the revenue and other compensation that
Licensee receives from the sale of TJC Products at or from TJC Retail Locations
at all Six Flags Great Adventure amusement parks other than the TJC Retail
Locations in the amusement park in Jackson, New Jersey.
3.7 Notwithstanding the restrictions on the sale of TJC Products contained
in Sections 3.2 and 3.3, the operation of TJC Retail Locations designated on
Exhibit B shall be deemed approved by Licensor.
4. WHOLESALE DISTRIBUTION
4.1 From the date of this Agreement, Licensee and Wholesale Licensees may
prepare and sell to Supermarket Chains (defined below) for resale to retail
customers, selected Approved TJC Wholesale Products (defined below) as
determined by Licensor; only in accordance with the terms and conditions of this
Section 4; and unless otherwise specified by Licensor, neither Licensee nor
Wholesale Licensees may sell or distribute TJC Products to any retail location
except to Supermarket Chains approved by Licensor. Supermarket shall mean any
full-size, self-service grocery store with a sales volume of $2,000,000 or more
annually. A "grocery store" shall mean a retail store selling a line of dry
grocery, canned goods, or non-food items, and some perishable items. Supermarket
shall not include "convenience stores," but shall include "warehouse stores,"
"combination stores," and "wholesale clubs," as defined in Exhibit I. Chain
shall mean an operation of eleven or more retail stores. Licensee represents and
warrants that except as set forth in Exhibit D, no current Wholesale Licensee
and no operations pursuant to a Wholesale License is in violation of this
provision, and all future Wholesale Licensees shall comply with this provision.
Notwithstanding the restrictions on the sale of TJC Products contained in this
Section 4, the Wholesale Licenses designated on Exhibit B shall be deemed
approved by Licensor. Licensor shall have the right to review and approve all
Wholesale Licenses executed pursuant to this Agreement.
4.2 Licensee and Wholesale Licensees shall sell only Approved TJC Wholesale
Products. Approved TJC Wholesale Products are those pre-packaged, not
fresh-baked, TJC Products that Licensor has designated for sale through
wholesale distribution by Licensee or Wholesale Licensees, and the list shall
consist of no more than three (3) categories of such
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products at any time. The current list of Approved TJC Wholesale Products are
set forth in Exhibit J. Licensee may request that other TJC Products be approved
by Licensor as Approved TJC Wholesale Products in accordance with the procedures
set forth in Section 4.7 below. Licensor may modify the list of Approved TJC
Wholesale Products in its reasonable discretion, upon one hundred twenty (120)
days prior written notice to Licensee. Licensor shall not eliminate or
disapprove a previously approved TJC Wholesale Product if such product
represents a "significant percentage" of Licensee's wholesale business. The
parties hereto agree that "significant percentage" shall mean a specified
percentage of gross revenues received by Licensee from the sale of such product
in the twelve-month period prior to Licensor's notice of a change, or in the
event such notice occurs prior to the end of the first twelve (12) months, the
number of months that Licensee has been operating under this Agreement, prior to
such notice by Licensor, and that if such notification by Licensor is provided:
(a) during the first twelve (12) months following the execution of this
Agreement, that percentage shall be five percent (5%) or more; (b) during the
second twelve (12) months following execution of this Agreement that percentage
shall be ten percent (10%) or more; and (c) at any time following the
twenty-fourth (24th) month after execution of this Agreement, that percentage
shall be twenty percent (20%) or more. Licensee and Wholesale Licensees may sell
additional TJC Products as Approved TJC Wholesale Products only with the prior
written consent of Licensor; provided that Licensee agrees to pay a royalty or
similar payment to Licensor based on sales of the additional products, with such
amount to be mutually agreed upon prior to approval by Licensor.
4.3 Licensee and Wholesale Licensees may sell Approved TJC Wholesale
Products only to Supermarket Chains that are approved by Licensor, which
approval shall not be unreasonably withheld. Further, the Supermarket Chains
listed on Exhibit I are currently approved by Licensor, and Licensee may request
that other chains be included on the approved list. Licensor may, in its
reasonable discretion, disapprove of a proposed, or previously approved,
Supermarket Chain, or may require that Licensee or other Wholesale Licensees
cease supplying a Supermarket Chain. Licensee and Licensor shall comply with the
procedures set forth in Section 4.7 when seeking approval of, or acting on a
request for approval of, a Supermarket Chain. It shall be reasonable for
Licensor to consider the following factors, among others, when considering
approving or disapproving of a particular Supermarket Chain: (a) whether the
Supermarket Chain operates in a manner that complies with the standards of one
or more trade associations that represent such chains; (b) whether the
Supermarket Chain is a member in good standing of the Retail Bakers Association;
(c) whether the Supermarket Chain ever been cited for, or suspected of, selling
products (of any kind) after the expiration of "freshness date" of the product;
and (d) whether the Supermarket Chain acts, or fails to act, in any manner, that
Licensor believes may adversely affect, or reflect negatively upon, Licensor,
the Proprietary Marks, or the TJC Products.
4.4 In addition to the requirements of Sections 5.4 and 5.5, Licensor shall
have the right to review and approve all agreements between Licensee and
Wholesale Licensees, and all agreements with manufacturers, suppliers,
co-packers, and others concerning the Approved TJC Wholesale Products. Licensor
and Licensee shall comply with the procedures in Section 4.7 concerning approval
of agreements with third parties.
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4.5 During the three-year-and-nine-month period commencing on the date of
this Agreement (the "Wholesale Rights Period"), Licensor shall not sell any
Approved TJC Wholesale Products at wholesale; provided, however, that during the
Wholesale Rights Period, Licensor or any affiliate or licensee of Licensor may
sell TJC Products (other than Approved TJC Wholesale Products), at wholesale to
Supermarket Chains, including Supermarket Chains that purchase Approved TJC
Wholesale Products from Licensee or Wholesale Licensees; and provided further,
that Licensor pays to Licensee, on a quarterly basis, a commission equal to: (i)
two percent (2%) of the revenues received by Licensor for wholesale sales of the
Approved TJC Products sold to the Supermarket Chains; or (ii) twenty percent
(20%) of the royalties received by Licensor if Licensor licenses others to
manufacture and sell Approved TJC Wholesale Products, and receives a royalty
from such third party or parties. Such payments shall be made on the twentieth
(20th) day of April, July, October, and January, for the wholesale sales made
the previous quarter. After the Wholesale Rights Period, Licensor may sell any
TJC Products at wholesale, including Approved TJC Wholesale Products, and shall
pay no commission or other fee to Licensee; provided however, that for as long
as Licensee and Wholesale Licensees continue to sell or distribute to a
Supermarket Chain after the Wholesale Rights Period that it or they were selling
or distributing to as of the end of the Wholesale Rights Period (and any lapse
in sales of three hundred sixty-five (365) consecutive days or less shall not be
considered a failure to continue sales to a Supermarket Chain), Licensor may not
sell such products to such Supermarket Chain. In addition to Licensor's rights
to sell TJC Products at wholesale, Licensor shall have the right to operate or
license others to operate, kiosks, carts, limited service counters, and similar
areas or facilities (collectively "Kiosks") at any Supermarket Chain, provided
that such Kiosks offer only fresh-baked, and not pre-packaged TJC Products. The
quarterly commission described in this Section 4.5 above shall not apply to
sales from Kiosks.
4.6 Licensee's right to sell, and to permit Wholesale Licensees to sell,
Approved TJC Wholesale Products shall be limited to the Territory and to such
foreign countries in which Licensor has secured trademark registration for the
Proprietary Marks and secured other government approvals necessary for the
wholesale and retail distribution and sale of TJC Products. Except as set forth
in this Section 4.6, Licensor shall have no obligation to register any ▇▇▇▇ in
any foreign country. If Licensee seeks to sell or license others to sell
Approved TJC Wholesale Products in a foreign country in which Licensor has not
secured trademark registration, Licensee may request, in writing, that Licensor
proceed with trademark registration and other governmental approvals in such
country. Upon such request, and unless Licensor notifies Licensee in writing
with reasons why Licensor cannot or should not register the Proprietary Marks in
such foreign country, Licensor shall proceed in accordance with Licensee's
request, and Licensee shall pay Licensor all of Licensor's costs and expenses,
including attorney's fees, application and filing fees, and search fees, in
securing trademark registrations, obtaining all government approvals, and
maintain trademark registrations, in the foreign country.
4.7 Licensee shall comply with Licensor's standards and specifications for
the manufacture, packaging, distribution, and sale of Approved TJC Wholesale
Products, the advertising and promotion of Approved TJC Wholesale Products, and
Licensor's guidelines
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regarding the Supermarket Chains that may purchase, receive, and resell Approved
TJC Wholesale Products. Without limiting the requirements of Section 6 of this
Agreement, Licensee may request modifications to the standards and
specifications for the Approved TJC Wholesale Products and/or approval of
Supermarket Chains. All requests for modifications or consents under this
Section 4 shall be in writing. Licensor shall have an initial response period
from receipt of the written request ("Initial Response Period") within which
Licensor shall respond to Licensee. If Licensor fails to respond, such request
shall not be deemed approved; provided, however, that Licensee shall have
fifteen (15) days following the end of the Initial Response Period to request
that Licensor respond to the initial request. Licensor shall have a secondary
response period ("Secondary Response Period") following receipt of Licensee's
second request to respond to Licensee. The Initial Response Period and the
Secondary Response Period shall vary depending upon the nature and subject of
Licensee's request, and shall be the response periods set forth in the chart
below.
Request Initial Response Period Secondary Response Period
------- ----------------------- -------------------------
Product specifications, 30 days 15 days
recipes (section 4.2)
Supermarket Chains; 15 days 15 days
other customers (section 4.3)
Packaging or Proprietary 30 days 15 days
Marks (section 4.7)
Advertising (section 4.7; section 10.1) 15 days 15 days
Contracts (section 4.4) 30 days 15 days
If Licensor fails to respond to the second written request within the
Secondary Response Period, Licensee's request for a modification or consent
shall be deemed approved. Licensor may respond to any request by Licensee in
writing, and such response may include an approval, a disapproval, a request for
submission of additional information, and/or a request for a reasonable amount
of additional time to respond to the request. Licensor shall not be required to
provide reasons for its decisions, but shall use good faith efforts to provide a
written reason for its action within one of several broad categories of reasons.
If, within the first twenty-four (24) months following execution of this
Agreement, Licensor denies Licensee's request for one or more of the subjects
above, and Licensor fails to provide any reason for the denial or disapproval,
the Wholesale Rights Period shall be extended for a period of three (3) months
in each such instance. Licensee acknowledges and agrees that it shall not make
repeated requests for approval if there is a reasonable likelihood that Licensor
will deny these requests without a reason. Licensor's decision in response to
Licensee's requests shall be final; provided however, that Licensee may request
a reconsideration of a decision, through a non-binding mediation process.
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Licensee shall not request mediation of any one or more disapproved or
denied consents more frequently than once every six (6) months; the mediation
shall be governed according to the rules specified by Licensor, which are set
forth in Exhibit M; and Licensee shall pay all costs and expenses of such
mediation, including the mediator's costs, and the out-of-pocket costs of
Licensor, its employees, and agents (including, without limitation, travel
expenses, but excluding professional fees of Licensor's attorneys and
accountants).
4.8 Licensor shall designate and identify to Licensee one person in
Licensor's organization who shall be the principal liaison, and one person who
shall be a secondary liaison, between Licensor and Licensee with respect to
Licensor's development of TJC Products and Licensee's operations under Section 4
hereof. Licensor may change or replace either or both persons at any time, in
its sole discretion, and Licensor shall promptly notify Licensee of any such
change.
5. LICENSING BY LICENSEE; ENFORCEMENT OF TJC LICENSE AGREEMENTS
5.1 Except as set forth in Section 3.6 and Section 4, Licensee shall not
enter into new TJC License Agreements nor shall Licensee grant renewals or
extensions of TJC License Agreements for terms exceeding the renewal or
extension terms currently permitted under such agreements. Licensor shall have
the sole and exclusive right to grant new franchises for TJC Bakeries or new
licenses for TJC Retail Locations, but shall have no obligation to do so.
5.2 Licensee represents and warrants that Exhibit B, attached hereto,
contains a true and accurate list of all TJC Licensees that, as of the date of
this Agreement, were operating under enforceable TJC License Agreements.
Licensee covenants to advise Licensor within ten (10) days of any change in such
list. Licensee shall not alter or amend any TJC License Agreement without
receiving Licensor's prior written approval, unless Licensee's failure to do so
would be a material breach of the TJC License Agreement or would be a violation
of law.
5.3 Licensor shall have the right to review all forms of franchise and
license agreements proposed by Licensee, including TJC Franchise Agreements
utilized in the renewal or transfer of the TJC Franchise Agreements listed in
Exhibit B, and Licensor may, in its sole discretion, disapprove of any such form
or may require, from time-to-time, changes to any such agreement. With respect
to TJC Bakeries, as of the date hereof, Licensor has approved the form of TJC
Franchise Agreement attached hereto as Exhibit E, which Licensee acknowledges
contains provisions which conform the TJC Franchise Agreement to the provisions
of this Agreement, which are described in further detail in Section 5.4 below.
5.4 With respect to the TJC License Agreements, Licensee shall seek to
amend or modify the TJC License Agreements to include, and the form of all new
TJC License Agreements that may be permitted hereunder (including agreements
with Wholesale Licensees and other agreements referred to in Section 4.4) shall
include, such provisions as requested by Licensor to control the use of the
Intellectual Property by TJC Licensees, and to maintain uniform and consistent
operations of, and the uniformity of TJC Products prepared by, TJC
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Licensees. Such provisions may include, without limitation, provisions that (a)
concern (i) the use and protection of the Proprietary Marks, (ii) the
preparation and sale of TJC Products and the operation of TJC Bakeries in
conformity with the Proprietary Information, and (iii) the maintenance of the
confidentiality of the Proprietary Information; (b) conform the TJC License
Agreements to the provisions of this Agreement to permit Licensee to fulfill its
obligations under this Agreement and to enforce the rights granted in and to the
Intellectual Property; and (c) designate Licensor as an agent of Licensee to
inspect the operations of the TJC Licensees. The form of modifications and
addenda to the form of the TJC License Agreements, currently approved by
Licensor, are set forth in Exhibit F hereto. Licensee shall, to the fullest
extent possible under TJC License Agreements (as they may be amended, if at all,
as provided herein), enforce the standards and specifications concerning and
related to the use of the Intellectual Property by TJC Licensees, the operation
of the TJC Bakeries and other businesses that prepare and sell TJC Products, and
such other matters as Licensor may specify, in the manner prescribed by
Licensor. With respect to new TJC License Agreements, Licensee shall enforce the
standards and specifications concerning and related to the use of the
Intellectual Property by TJC Licensees, the operation of the TJC Bakeries, and
other businesses that prepare and sell TJC Products, and such other matters as
Licensor may specify. The enforcement of the TJC License Agreements may include
terminating an agreement with a TJC Licensee if any such TJC Licensee fails to
comply with the required standards and specifications. Failure by Licensee to
enforce the provisions of the TJC License Agreements or new TJC License
Agreements as required by this Agreement shall be a material breach of this
Agreement for which Licensor may terminate this Agreement; provided, however,
that if TJ Holding Company, Inc., pursuant to the Management Agreement, fails to
enforce the provisions of the TJC License Agreements, or takes actions that
could be deemed to be a default of Licensee under a TJC License Agreement, such
failure to enforce the agreements on behalf of Licensee, or such actions, shall
not be grounds to terminate this Agreement.
5.5 In addition to Licensor's right to review and approve all TJC License
Agreements, all such agreements (including TJC License Agreements to the extent
modified as required by this Section 5) shall contain a provision which grants
Licensor the right to enforce any provision of such agreement to the fullest
extent necessary to protect Licensor's rights in and to the Intellectual
Property, and to maintain uniformity and consistency in the TJC Products that
are prepared, distributed, or sold pursuant to this Agreement or under a
sublicense executed pursuant to this Agreement.
5.6 Licensee acknowledges that the operation of TJC Bakeries by Licensee
and Franchisees reflects on the goodwill and reputation of Licensor and the
Proprietary Marks. Accordingly, Licensee shall operate, and shall cause its
Franchisees to operate, the TJC Bakeries in strict conformity with the standards
and specifications prescribed by Licensor, to the extent permissible under the
TJC Franchise Agreements. Such standards, specifications, and operational
requirements shall include, without limitation, the following:
5.6.1 Licensor shall have the right, in its sole discretion, in addition to
designating the Required TJC Products and the Permitted TJC Products to be sold
at a TJC
10
bakery, to designate and approve of all other products sold at or from any TJC
Bakery, and Licensor may specify the brand, quality, and specification of any
products sold at or from any TJC Bakery. Licensee shall comply, and shall cause
Franchisees to comply, with Licensor's standards and specifications concerning
all products and services offered at a TJC Bakery.
5.6.2 The TJC Bakeries shall display the Proprietary Marks and other decor
items in a manner that adheres to Licensor's standards and specifications
concerning trade dress, decor, and use and presentation of the Proprietary
Marks.
5.6.3 Licensee's operation of the TJC Bakery referred to in Exhibit B shall
be subject to, and all TJC Franchise Agreements executed upon renewal or
transfer shall be subject to, a protected territory or area of exclusivity that
is not larger than the boundaries of the physical building of the shopping mall
in which the TJC Bakery is located. The protected territory or area of
exclusivity granted in any TJC Franchise Agreement shall restrict only the
establishment of new TJC Bakeries, and shall not be inconsistent with the
provisions and restrictions described in this Section 5.6.3. Licensor shall not
establish, nor grant licenses to establish, TJC Bakeries in an enclosed shopping
mall or at any location within the boundaries the physical building of the
shopping mall, in which a TJC Bakery is operated by Licensee a Franchisee;
provided however, that Licensor may sell, and may license others to sell, TJC
Products from any location, even within a protected territory or area of
exclusivity of a TJC Bakery, including without limitation, from limited service
bakeries, kiosks, convenience stores, other restaurants or food service outlets,
and dual-brand and multiple-brand restaurants, provided that the location from
which the TJC Products are sold does not sell all Required TJC Products, the
minimum varieties of Permitted TJC Products, and such other products and
beverages that Licensor typically requires of full-service TJC Bakeries
described in Section 3.3 hereof. Notwithstanding the foregoing, Licensor shall
not establish nor license a TJC Bakery, nor sell license others to sell, TJC
Products, if such TJC Bakery or sale of TJC Products would violate any provision
of any TJC License Agreement.
5.7 With respect to the sale of TJC Products at TJC Retail Locations or at
wholesale, Licensee shall not have, Retail Licensees shall not have, and
Licensee shall not grant to any Wholesale Licensee, any protected territory or
area of exclusivity concerning the sale of TJC Products from any other location
or by any other person or entity. Notwithstanding the foregoing, Licensor shall
not sell, nor franchise or license others to sell, TJC Products in any area, or
in any manner, that would violate any valid and enforceable provision of any TJC
License Agreement.
5.8 Licensee shall comply with all laws, rules, and regulations in offering
and selling licenses and franchises, and executing TJC License Agreements,
including the Federal Trade Commission's trade regulation rule concerning the
offer and sale of franchises and business opportunities, all state franchise
investment laws, business opportunity laws, and seller-assisted marketing plan
laws, and all laws governing relationships with franchisees, licensees, and
dealers. Licensor shall have the right to review and approve all forms of
franchise offering circulars utilized by Licensee, and Licensee shall provide
Licensor with copies of all documents
11
reasonably required by Licensor for that purpose. Licensor reserves the right to
utilize its own form of franchise offering circular in connection with the
offer, sale, or grant of new, renewed, or transferred TJC Franchise Agreements
or other TJC License Agreements.
6. PREPARATION OF TJC PRODUCTS
6.1 Licensee shall use the Proprietary Information in accordance with the
standards and specifications prescribed by Licensor. All TJC Products prepared,
distributed, or sold by Licensee and/or TJC Licensees, pursuant to this
Agreement, shall be identified, distributed, or sold only under the Proprietary
Marks in the form and manner specified and approved by Licensor. Licensee and
its TJC Licensees may distribute and sell TJC Products only through the channels
of distribution specified in Section 3 and Section 4 hereof.
6.2 Licensee shall prepare the TJC Products in accordance with the
Proprietary Information, and shall conform the operation of its business to the
methods, standards, and specifications prescribed in the Proprietary
Information. Licensee shall not sell or otherwise dispose of products under the
Proprietary Marks unless such products are TJC Products produced in accordance
with the Proprietary Information. Licensee shall submit samples of TJC Products
to Licensor at such times and such places as Licensor may reasonably specify for
the purposes of determining that the TJC Products conform to the Proprietary
Information. Licensee shall make appropriate periodic tests for controlling the
quality of the ingredients and baking procedures utilized in the production of
TJC Products by Licensee, in accordance with Licensor's requests and
instructions. Licensee shall permit representatives of Licensor, upon reasonable
notice, to inspect any and all of Licensee's production and/or distribution
facilities, and to examine and test the ingredients, supplies, containers, and
accessories used by Licensee. Licensor shall not conduct more than three (3)
inspections in any twelve (12) month period, unless Licensor reasonably believes
that there is a reason to do so. Licensor shall pay for its own costs in
conducting such inspections. Licensee shall make available to such
representatives all information necessary to render full and effective
assistance. If any such facility, or any sample of TJC Products, does not
substantially comply with the standards prescribed by Licensor, Licensee shall,
at its own expense, remedy the facilities, manufacturing processes, ingredients,
or final TJC Products so that they comply with the Technical Information and
other standards specified by Licensor.
6.3 All TJC Products produced or prepared pursuant to this Agreement shall
be made with only such materials and ingredients as are of the quality that has
been specified by Licensor, and supplied by a source that has been approved by
Licensor. Licensee shall obtain and use ingredients made with the Secret Recipes
only from a manufacturer approved, and if required by Licensor, licensed, by
Licensor. All standards and specifications, and sources of supply, currently
approved by Licensor are set forth in Exhibit G; provided that Licensor may
modify or revoke such approvals in its sole discretion. If Licensee desires to
purchase any of the items specified in this Section 6, or items otherwise
required by Licensor for the operation of the businesses contemplated under this
Agreement (other than ingredients utilizing the Secret Recipes that must be
purchased from sources designated by Licensor), from a supplier who has
12
not been approved by Licensor, Licensee may request in writing approval by
Licensor of such suppler. Licensor may approve such proposed supplier if in
Licensor's sole judgement and discretion the proposed supplier can meet and
maintain Licensor's specifications, standards, and requirements. In making any
such request, Licensee, at its expense, shall furnish Licensor with adequate
samples of the items for which approval is being requested or, if that is not
feasible, with copies of descriptions, specifications, and pictures of such
items. Licensee shall not sell, dispense or use any such items unless and until
Licensor has given written notice of approval Licensee. Nothing contained herein
shall be construed to require Licensor to approve an unreasonable number of
suppliers for any particular item or service. Licensee shall enforce the TJC
License Agreements in a manner that is consistent with the provisions of this
Section 6.3.
6.4 Licensee shall not use, nor permit any person or entity to use, the
Proprietary Information or any part of the Secret Recipes or Technical
Information for the manufacture of anything other than TJC Products. Upon
termination of this Agreement for any reason, Licensee shall immediately cease
to manufacture and distribute the TJC Products and shall deliver to Licensor all
Proprietary Information under its control.
6.5 Licensee may utilize the Proprietary Information to make new or to
modify existing TJC Products, provided that Licensee complies with the
provisions of Section 13.5. In addition, Licensee may produce, prepare, and sell
products other than the TJC Products, provided that the production of such
products does not involve the use of any of the Proprietary Information, that
such products are not identified, in any manner, with the Proprietary Marks, and
that such activities do not violate the provisions of Section 15.
6.6 Licensee acknowledges and agrees that the preparation and sale of TJC
Products and the operation of TJC Bakeries in a uniform manner by Licensor's
franchisees and licensees, Licensee, TJC Licensees, and others permitted by
Licensor to prepare and sell TJC Products, enhances the goodwill associated with
the Proprietary Marks, and the goodwill and reputation of Licensor. Licensor
hereby appoints Licensee as its non-exclusive designee, and Licensee undertakes
the obligations, to inspect the operations of Franchisees and other TJC
Licensees on behalf of Licensor, and to report to Licensor concerning, and
enforce the quality control standards set forth in this Agreement regarding, the
preparation and sale of TJC Products by TJC Licensees.
7. PROPRIETARY MARKS
7.1 Licensee shall use the Proprietary Marks only to the extent permitted
in this Agreement, and only in the manner specified by, and in accordance with
the standards and specifications of, Licensor, as set forth in this Agreement,
or otherwise in writing.
7.2 Licensee agrees that it shall not manufacture, produce, bake, sell, or
distribute products that bear the Proprietary Marks, or license or permit,
subject to the TJC License Agreements, anyone else to do so, except in
accordance with this Agreement, and shall not use
13
names and marks confusingly similar to the Proprietary Marks in the sale or
distribution of any products, or in the operation, franchising, or licensing of
wholesale or retail businesses.
7.3 In order to protect and maintain the Proprietary Marks, Licensee shall
execute any documents deemed necessary by Licensor to obtain protection for the
Proprietary Marks or to maintain their continued validity and enforceability.
7.4 Licensee shall promptly notify Licensor of any known or suspected
infringement of the Proprietary Marks involving the businesses and activities
contemplated hereunder, any known challenge to the validity of the Proprietary
Marks, or any known challenge to Licensor's ownership of, or Licensee's right to
use, the Proprietary Marks licensed hereunder, or any unauthorized use of the
Proprietary Marks; of any acts, events, or conduct amounting to a passing-off of
any goods as TJC Products or retail outlets as TJC Bakeries; and any application
or filing for registration of any trademark, service ▇▇▇▇, name, design,
copyright, or similar matter which may conflict with or be deceptively similar
to any of the Proprietary Marks. Licensee acknowledges that Licensor shall have
the sole right to direct and control any administrative proceeding or litigation
involving the Proprietary Marks, including any matter in which any TJC Licensee
is a defendant, including any settlement thereof. Licensor shall also have the
sole right, but not the obligation, to take action against uses by others that
may constitute infringement of the Proprietary Marks. Licensee shall implement
this right to the fullest extent possible under the TJC License Agreements.
7.4.1 If Licensee has used the Proprietary Marks in accordance with
this Agreement, Licensor shall defend, indemnify, and hold Licensee, its
affiliates, directors, agents, and employees harmless, at Licensor's sole
expense, from and against any third party claim, suit, or demand involving
the Proprietary Marks arising out of Licensee's use thereof, except for
claims, suits, or demands arising out of Licensee's use of the Proprietary
Marks prior to the date of this License Agreement. If Licensee has not used
the Proprietary Marks in accordance with this Agreement and such
non-conforming use has resulted in any such third party claim, suit, or
demand, Licensor will direct and control the defense of such claim, suit,
and/or demand, at Licensee's expense, and Licensee shall indemnify and hold
Licensor, its affiliates, directors, agents, and employees harmless, at
Licensee's sole expense, from and against any such third party claims,
suits, or demands (including without limitation legal fees).
7.4.2 If Licensor undertakes the defense or prosecution of any
litigation relating to the Proprietary Marks, Licensee shall execute any
and all documents and do such acts and things as may, in the opinion of
counsel for Licensor, be necessary to carry out such defense or
prosecution, including, but not limited to, becoming a nominal party to any
legal action if Licensee is not already a party to such action. Except to
the extent that such litigation is the result of Licensee's use of the
Proprietary Marks in a manner inconsistent with the terms of this
Agreement, or is the result of Licensee's use of the Proprietary Marks
prior to the date of this Agreement, Licensor agrees that it shall
reimburse Licensee for its out of pocket costs in doing such acts and
things, except that Licensee shall bear the salary costs of its employees,
and Licensor shall bear the costs of any judgment or settlement. To the
extent such claim or
14
litigation is the result of Licensee's use of the Proprietary Marks in a manner
inconsistent with be terms of this Agreement or use prior to the date of this
Agreement, Licensee shall reimburse Licensor for Licensor's costs in defending
such litigation; except, that Licensor shall bear the salary costs of its
employees, and Licensee shall bear the costs, of any judgment or settlement.
7.4.3 When requested by Licensor, Licensee shall cooperate with
Licensor in any action to restrain and prevent any such unauthorized use or
passing-off or to oppose or cancel any such application, filing, or
registration. Licensee shall take no legal or other action against such
uses without the prior written approval of Licensor.
7.5 Licensee shall not use, nor permit TJC Licensees who execute agreements
with Licensee after the date of this Agreement to use, the Proprietary Marks as
part of its/their corporate or other legal name. Immediately upon execution of
this Agreement, Licensee shall execute and file with all appropriate state and
local agencies, a change of name notice and such other applicable documents
necessary to comply with this provision. Licensee shall use best efforts,
without the requirement of making any payments to such TJC Licensees, to require
that TJC Licensees who executed agreements with Licensee prior to the date of
this Agreement who use the Proprietary Marks as part of their corporate or other
legal name to change such name so as to not use the Proprietary Marks.
7.6 Licensee shall not directly or indirectly contest the validity of
Licensor's ownership of the Proprietary Marks.
7.7 Licensee expressly understands and acknowledges that:
7.7.1 Licensee's, and the TJC Licensees', use of the Proprietary Marks
pursuant to this Agreement do not give it or any TJC Licensee any ownership
interest or other interest in or to the Proprietary Marks, except the
license granted by this Agreement; and
7.7.2 Any and all goodwill arising out of Licensee's use and the TJC
Licensees' use of the Proprietary Marks under this Agreement shall inure
solely and exclusively to Licensor benefit.
7.8 Licensee shall not register or attempt to register any Proprietary
▇▇▇▇, or any ▇▇▇▇ or name which incorporates all or part of any Proprietary
▇▇▇▇, in any country in the world.
7.9 Licensor has the right to modify and/or to discontinue the use of any
or all of the Proprietary Marks, or to use other names or marks to identify the
TJC Products and the products and services offered at TJC Bakeries; provided,
however, that if Licensor discontinues a Proprietary ▇▇▇▇ that is used with or
on a product that represents a "significant percentage" of Licensee's wholesale
business, Licensor will provide a substitute Proprietary ▇▇▇▇ for that product
or products. The parties hereto agree that "significant percentage" shall mean a
percentage of gross revenues received by Licensee from the sale of such product
in the twelve-
15
month period prior to Licensor's notice of discontinuance of a ▇▇▇▇, or in the
event such notice occurs prior to the end of the first twelve (12) months, the
number of months that Licensee has been operating under this Agreement prior to
such notice by Licensor, and that if such notification by Licensor is provided:
(a) during first twelve months following execution of this Agreement, that
percentage is five percent (5%) or more; (b) during second twelve months
following execution of this Agreement, the percentage shall be ten percent (10%)
or more; and (c) at any time following the twenty-fourth (24th) month after
execution of this Agreement, that percentage shall be twenty percent (20%) or
more. Upon one hundred twenty (120) days prior written notice from Licensor,
Licensee shall comply with Licensor's standards and specifications with respect
to the use, and the licensing of others to use, any modified Proprietary Marks
or the new names and marks; provided that Licensee may continue to utilize
existing inventory or supplies that bear the old or discontinued Proprietary
Marks after the 120-day period, if such inventory or supplies were purchased
prior to Licensor's notice of such modification or discontinuance. Licensee
shall be responsible for all costs associated with any such change, and Licensor
shall have no liability to Licensee therefor.
7.10 Licensor is the owner of all rights, title and interest in the
Proprietary Marks, and Licensor agrees to use best efforts to maintain the
validity of, and the registrations for, Proprietary Marks licensed hereunder.
8. PROPRIETARY INFORMATION
8.1 Licensee acknowledges that the Proprietary Information, including the
Secret Recipes, the Technical Information, the techniques, know-how, trade
secrets, formulas, specifications, and all other information relating to the TJC
Products are trade secrets of Licensor. Licensee acknowledges that Licensee does
not and shall not acquire any right or interest therein beyond the rights
expressly granted to it under this Agreement. Licensee shall maintain adequate
security in the control, use, and handling of the Proprietary Information in
accordance with the guidelines and instructions prescribed by Licensor from time
to time.
8.2 Licensor has the right to modify any aspect of the Proprietary
Information, and upon one hundred twenty (120) days prior written notice from
Licensor, Licensee shall comply with Licensor's standards and specifications
with respect to the use, and the licensing of others to use, the modified
Proprietary Information.
8.3 Licensee shall not knowingly engage, or assist others to engage, in any
activity which constitutes an infringement, appropriation, copying, unauthorized
use, or imitation of any the Proprietary Information or other features of the
Intellectual Property, or which otherwise threaten any interest of Licensor.
8.4 Except as specifically provided in this Agreement, Licensee shall not
at anytime, during the term of this Agreement or thereafter, use or permit
others to use any of the Intellectual Property to manufacture or identify
cinnamon rolls or other bakery products.
16
8.5 Licensee shall promptly notify Licensor in writing of any unauthorized
use of the Proprietary Information. Licensor shall have the sole right to direct
and control any administrative proceeding or litigation involving the
Proprietary Information, including any settlement thereof. Licensee shall
cooperate with Licensor in all matters concerning the Proprietary Information.
9. TERMINATION
9.1 If Licensee is in default under this Agreement and fails to cure such
default within the time period specified below after notice from Licensor, to
the extent such default is susceptible to cure, this Agreement, and all rights
granted to Licensee herein shall terminate upon the expiration of the applicable
cure period. The events of default and the applicable cure periods are as
follows:
9.1.1 If Licensee fails to comply with, or fails to cause any TJC
Licensee to comply with, any of the standards or specifications prescribed
by Licensor regarding the use or licensing of the Intellectual Property, or
the production, distribution, or sale of the TJC Products or New TJC
Products (defined in Section 12), and fails to cure such default within
thirty (30) days following Licensor's notice; provided, however, that if
Licensor reasonably believes that the default adversely affects Licensor,
the Proprietary Marks, or the goodwill associated with Licensor, the
Proprietary Marks or the TJC Products, Licensee shall, notwithstanding the
thirty (30) day cure period, immediately cease such action, and Licensor
may seek injunctive relief to prevent further defaults which Licensee
agrees that it shall not oppose. Within fifteen (15) days following
Licensor's notice, Licensee may provide information and materials to
Licensor in an attempt to demonstrate that Licensee's default will not
adversely affect Licensor, the Proprietary Marks or the goodwill.
9.1.2 If Licensee breaches any covenant, promise or obligation in this
Agreement, except those specified in Sections 9.1.1 and 9.1.3, Section 9.3
or Section 9.4 hereof, and fails to cure such breach within thirty (30)
days following Licensor's notice of default.
9.1.3 If Licensee fails to pay all royalties and other payments when
due, and fails to cure such breach within ten (10) days after receipt of
notice from Licensor.
9.2 Upon notice of default from Licensor for a default specified in Section
9.1, Licensee shall diligently commence actions to cure such default. If a
default is not susceptible to cure within the period specified in Section 9.1,
Licensee may avoid termination if Licensee diligently commences actions to cure
such default, actively pursues all available remedies and actions, cures such
default within a reasonable time, and provides Licensor with regular reports
concerning the progress to cure such default.
9.3 Notwithstanding the provisions of Section 9.1, 9.2, or 9.4, after the
first twelve (12) months of this Agreement, if Licensee commits a breach of this
Agreement and has
17
received a notice of default provided for in this Section 9, four (4) times for
substantially the same default, whether or not such defaults have been cured
after notice, this Agreement shall terminate immediately upon notice to Licensee
of the fourth (4th) default; provided however that this provision shall apply
only to repeated breaches of Section 9.1.1 and Section 9.1.2.
9.4 Either party shall have the right to terminate this Agreement
forthwith, without notice, if the other party becomes "insolvent" (as defined
below) or makes an assignment for the benefit of creditors, or if a voluntary or
involuntary petition in bankruptcy is filed by or against the other party, or if
a receiver or trustee of the business of the other party is appointed or an
attachment levied against the property of the other party used in its business
hereunder and such receivership, trusteeship, or attachment is not dissolved
within fifteen (15) days from the date of filing thereof, or in the event of the
issuance of a court order or writ for the sale or transfer of other party's
property used in its business hereunder. "Insolvent" shall mean, as applied to
Licensee, liabilities exceeding assets by a ratio of at least 1.5 to 1, and such
ratio has not been less than 1.5 to 1 within the ninety (90) days following
notice of a default for insolvency.
9.5 In the event of expiration, assignment by Licensee, or termination of
this Agreement, regardless of the cause of termination, Licensee shall forthwith
cease to use, for any purpose, any and all of the Intellectual Property.
Licensee shall promptly return to Licensor all signs, packaging, supplies,
lists, forms, and other materials containing any of the Proprietary Marks, and
any and all copies of the Proprietary Information. Upon expiration or
termination of this Agreement by Licensor, Licensee shall transfer and assign to
Licensor, and Licensor shall assume, all of Licensee's rights and obligations as
"franchisor" or "licensor" in all TJC License Agreements for the remaining
period of the term of such agreements. Licensee shall utilize and execute the
forms of agreements prescribed by Licensor governing the transfer, assignment
of, and subsequent post-transfer operations under, the TJC License Agreements.
10. ADVERTISING AND PROMOTION
10.1 All advertising and promotional material prepared by or to be used by
Licensee or TJC Licensees in connection with the manufacture, sale or
distribution of the TJC Products, including product packaging and wrappings,
shall be subject to the prior written approval of Licensor. For all advertising,
promotional plans, packaging, containers, and/or labels for the TJC Products not
prescribed by Licensor, Licensee shall submit samples of such materials to
Licensor for Licensor's prior written approval (except with respect to
advertised or suggested retail prices). Except with respect to approval of
advertising and promotion by Licensee of Approved TJC Wholesale Products, the
procedures for which are set forth in Section 4.7, Licensor shall review and
respond to such submission within thirty (30) days after receipt of the
materials required under the prior sentence. Failure to respond within such time
period shall not be deemed approved by Licensor. Licensee shall not use such
proposed advertising, promotiona1 plans, packaging, containers, and/or labels
without Licensor's prior written approval. All rights in and to such
advertising, promotional plans, packaging, containers, and/or labels, including
without limitation copyrights, shall become the exclusive property of Licensor
without separate charge to Licensee); and this Agreement constitutes a license
from Licensor
18
to Licensee to use such rights for the term of this Agreement. Licensee agrees
that it shall sign such documents (and cause any contractors, agencies, and
persons other than its employees who work on such advertising, promotional
plans, packaging, containers, and/or labels to sign such documents) as Licensor
may reasonably require in order to implement the terms of this provision.
10.2 Licensor shall have the right to disapprove the subsequent use of any
previously approved advertising; and Licensee shall promptly discontinue, and
shall cause its TJC Licensees to discontinue, use of advertising or promotional
programs or materials upon notice from Licensor.
10.3 Licensor shall not be liable to Licensee as a result of any review,
approval, or disapproval of any advertising; and Licensee acknowledges that
Licensor review of advertising is to enforce the proper use of the Proprietary
Marks in advertising. Licensee shall indemnify and hold harmless Licensor and
its affiliates against and from any and all claims, demands, suits, costs, or
expenses resulting from Licensee's use of advertising.
10.4 In the event Licensee develops its business to include business
activities not [subject to this Agreement, and if Licensee develops advertising
or promotional material that does not relate to, in any way or mention, nor
depict, any TJC Product, or Licensee's rights under this Agreement, such
advertising or promotional material shall be owned by Licensee and not by
Licensor.
11. TECHNICAL ASSISTANCE
Licensor will disclose or make available to Licensee the Secret Recipes and
Technical Information in such detail as to enable Licensee to produce the TJC
Products in the Territory, and to license the TJC Licensees to produce the TJC
Products in the Territory, in accordance with Licensor's standards and
specifications. From time-to-time during the term of this Agreement, Licensor
shall disclose and make available to Licensee additional Technical Information
concerning modifications, alterations, additions, or amendments to the
Proprietary Information to permit Licensee and the TJC Licenses to produce the
TJC Products at all times in accordance with Licensor's then-current procedures,
specifications, and standards.
12. NEW PRODUCTS
12.1 Licensor shall have no obligation to Licensee or any TJC Licensee to
produce or develop new products utilizing the Proprietary Information or to
modify existing TJC Products.
12.2 In the event Licensor develops a new product that utilizes or
incorporates all or a material part of the Proprietary Information ("New TJC
Product"), Licensor may offer Licensee the right to sell at retail, and license
or franchise others to sell at retail, such New TJC Product under the same terms
and conditions specified herein for TJC Products; provided that any such
production, distribution, or sales of New TJC Products shall be limited to the
specific
19
activities set forth in Section 1.1, Section 3, and Section 5 with respect to
TJC Products, and such activities shall be in compliance with all other terms
and conditions of this Agreement. licensee shall not be required to produce,
distribute, or sell, or to license to TJC Licensees the right to produce,
distribute, or sell, any New TJC Product. In connection with Licensor's offer of
any New TJC Products to Licensee, Licensor shall make available to Licensee, for
its review, copies of the Proprietary Information, the specifications and
standards, and any other guidelines related to the New TJC Product; provided,
and upon the express condition, that such information shall remain confidential
in accordance with the terms and provisions of Section 14. Further, Licensee
hereby agrees that if a New TJC Product is a Permitted TJC Product, Licensee
shall not declare or authorize such product as a "Required Product" (as defined
in the TJC Franchise Agreements) under the TJC Franchise Agreements even if such
a designation is permissible under one or more of the TJC Franchise Agreements.
12.3 If Licensee desires to sell a New TJC Product, or to license or
franchise others to do so, Licensee agrees:
12.3.1 to notify Licensor in writing of its intent to sell, or permit
TJC Licensees to sell, the New TJC Product, and to identify the specific
retail or wholesale locations or operations, and TJC Licensees, if any,
that offer the New TJC Products, and to provide periodic updates to such
information as requested by Licensor;
12.3.2 to follow all rules, guidelines, instructions, and
specifications regarding the production, storage, distribution, retail
display, and sale of the New TJC Products;
12.3.3 to pay Licensor a New Product Royalty Fee equal to two percent
(2%) of gross sales of the New TJC Products by Licensee and all TJC
Licensees for two (2) years following Licensee's notice to Licensor of
Licensee's agreement to sell the New TJC products, and three percent (3%)
of gross sales of the New TJC Products by Licensee and all TJC Licensees
for the remaining term of this Agreement.
12.4 For the purposes of this Agreement, "gross sales" shall include
all revenue from the sale of New TJC Products, whether for cash or credit,
received by Licensee or the applicable TJC Licensees; and shall not include
(i) any sales tax or other taxes collected from customers and paid directly
to the appropriate tax authorities, (ii) the retail value of employee
purchases of New TJC Products, or (iii) the coupon value of New TJC
Products distributed with promotional coupons.
12.5 Payments of the New Product Royalty Fee shall be paid to Licensor
on the twentieth (20th) day of January, April, July, and October, based on
the gross sales of New TJC Products by Licensee and TJC Licensees, for the
preceding calendar quarter, regardless of payment by the TJC Licensee or
collection by Licensee.
20
12.6 If Licensee elects to produce, distribute, or sell the New TJC Product
as permitted in Section 12.3, all references to TJC Products in this Agreement
shall be deemed to include New TJC Products.
12.7 In the event Licensee or any TJC Licensee develops any new product, or
modifies an existing TJC Product, and utilizes any part of the Proprietary
Information in that process, or discovers or is informed of any alteration,
addition, or improvement in or to the Proprietary Information, Licensee shall
immediately notify Licensor of such new or modified product, and shal1 provide
Licensor with all specifications, recipes, or other information related to such
product. Licensee may not, and will not permit TJC Licensees to, produce for
resale, or sell, any such product without receiving Licensor's prior written
approval, and may do so only if Licensee and TJC Licensees complies with
Licensor's standards and specifications regarding the production, distribution,
packaging, retail presentation, and sale of such product. Licensee agrees that
any and all alterations, additions, or improvements to the Proprietary
Information, or new products, concepts, ideas, or recipes, developed in whole or
in part by Licensee or its TJC Licensees that use all or part of the Proprietary
Information shall be the property of Licensor, and Licensee shall execute all
other documents required by Licensor to effectuate this provision.
13. REPORTS AND RECORD KEEPING
13.1 Licensee shall prepare and maintain full, complete, and accurate
records of its business operations pursuant to this Agreement in such manner,
and with such information, as Licensor may specify, including (a) information
concerning each agreement with a TJC Licensee, including addresses, new
licenses, terminations, lawsuits filed by or against the TJC Licensee, and such
other information as Licensor may specify; (b) quarterly sales and revenue
reports for all TJC Bakeries, and quarterly sales and revenue reports concerning
sales of TJC Products from TJC Retail Locations; (c) information concerning the
operation of each TJC Licensee as it pertains to the preparation and sale of TJC
Products; and (e) such other reports as may be specified by Licensor. Licensor
reserves the right to require more frequent reports as Licensor may determine in
its reasonable discretion. In particular, Licensee shall maintain and shall
cause its TJC Licensees to maintain and provide to Licensee, sales and revenue
reports in a form specified by Licensor to accurately report gross sales
necessary to determine the royalty fees owed under Section 12 above.
13.2 Licensor reserves the right to review, at Licensor's sole cost and
expense, and inspect all books, records, and accounts of Licensee, and to
conduct an audit of Licensee's books, records, and accounts. Licensor shall not
conduct more than three (3) inspections or audits within any year unless
Licensor reasonably believes that there is a reason to do so. Further, Licensee
shall appoint Licensor, upon Licensor's reasonable request, as Licensee's
designee to inspect the books, records, and accounts of the TJC Licensees to the
extent permitted under the TJC License Agreements.
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14. CONFIDENTIALITY, NON-DISCLOSURE, AND NON-COMPETE
14.1 Licensee acknowledges and agrees that Licensor owns all of the
Intellectual Property. Licensee further acknowledges and agrees that the
Intellectual Property includes of trade secrets and confidential and proprietary
information and know-how that gives Licensor a competitive advantage; that all
measures necessary to protect the trade secrets, the confidentiality of the
Proprietary Information, and know-how comprising the Intellectual Property have
been taken; that all material or other information now or hereafter provided or
disclosed to Licensee regarding the Intellectual Property is and will be
disclosed in confidence; that Licensee has no right to disclose any part of it
to anyone who is not a TJC Licensee or an employee or professional
representative of Licensee; and that Licensee will disclose to its employees and
the TJC Licensees only those parts of the Intellectual Property that an employee
or a TJC Licensee needs to know. Licensor and Licensee agree that confidential
information shall exclude information that (a) has been or is obtained by a
third party from a source independent of Licensor, Licensee, their affiliates,
or their respective officers, directors, employees or agents, and such third
party is not desiring such information; (b) is or becomes generally available to
the public other than as a result of an unauthorized disclosure by Licensee or
its affiliates or their personnel; or (c) is independently developed by Licensee
without reliance in any way or the Intellectual Property.
14.2 Licensee will protect as confidential and proprietary the Proprietary
Information, including the Secret Recipes, Technical Information, the
techniques, know-how, trade secrets, formulas, specifications, and all other
information relating to the TJC Products, whether or not patentable. Licensee
will not disclose, in whole or in part, any Proprietary Information to any
person, firm, or corporation, except to those employees of Licensee whose
knowledge of such information is required for the performance of Licensee's
obligations under this Agreement, and to TJC Licensees.
14.3 Licensee shall have no rights in the Proprietary Information and shall
use the Proprietary Information solely for the purpose contemplated by this
Agreement. Any and all goodwill arising from the use of the Proprietary
Information by Licensee shall inure exclusively to the benefit of Licensor. The
provisions of this Section 14 shall survive the termination or expiration of
this Agreement.
14.4 Licensee specifically acknowledges that, pursuant to this Agreement,
and as a result of Licensee's relationship with Licensor, Licensee will receive
valuable and confidential information, including, without limitation,
information regarding operational, sales, promotional, and marketing methods,
related to the sale of TJC Products at TJC Bakeries, through other retail
channels, at wholesale, and at dual- or multi-brand restaurants owned, operated
or franchised by Licensor. Licensee covenants that during the term of this
Agreement, and for a period of two (2) years following the termination or
expiration of this Agreement, except as otherwise approved in writing by
Licensor in its sole discretion, Licensee shall not, either directly or
indirectly, for itself, or through, or on behalf of, or in conjunction with any
person, persons,
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or legal entities, own, maintain, operate, be employed by, or have an interest
in, or directly engage in, any business which:
(a) involves or is engaged in the manufacturing, baking, distribution,
or sale of bakery products whose predominant flavor is cinnamon, or is
otherwise recognized generally as a cinnamon product; or
(b) is (i) a retail business that is the same as or similar to, or
offers products which are the same as or similar to products offered at or
by, Licensee or TJC Licensees, and (ii) the principal products of such
business, representing at least twenty percent (20%) of gross sales, are
bakery products; or
(c) is a wholesale business that sells or distributes bakery products
to competitors" of TJC Bakeries or "Arby's Restaurants" (as defined in the
Purchase Agreement), and "competitors" shall include restaurants, food
service outlets, kiosks, shops, and other retail outlets that (i) sell
products similar to those sold at TJC Bakeries or Arby's Restaurants, or
(ii) are listed on Nation's Restaurant News annual top 100 chains ranked by
total number of units, excluding from such list hotels and hotel chains, or
such similar or successor report or listing in the event Nation's
Restaurant News no longer publishes such a list. The current Nation's
Restaurant News list is the list published on April 29, 1996.
For the two (2) year period following the termination or expiration of this
Agreement, however, the restrictions set forth in this Section 14.4 shall be
limited to businesses that are, or are intended to be, located (x) within the
protected territory or area of exclusivity of any TJC bakery that operates or
was operated during the term of this Agreement, or (y) within (3) miles of (i)
the principal office of any wholesale customer of Licensee or wholesale
Licensee, or (ii) the retail outlet of any retailer that purchased TJC Products
from such wholesale customer.
14.5 Licensor may require that the individual officers, directors, and
executives of Licensee designated in Exhibit H, and all successors or other
individuals reasonably designated by Licensor at a later date, execute covenants
agreeing to be personally bound by the provisions of this Section 14; provided,
however, that the non-competition covenant of Section 14.4 shall apply only
during the individuals' tenure with Licensee, and for two (2) years following
the termination of their franchise, employment, or affiliation with Licensee.
15. INDEMNIFICATION
Licensee shall indemnify and hold harmless Licensor, its affiliates, and
their respective officers, directors, shareholders, agents, and employees
against and from any and all out-of-pocket loss, cost, damage and expense
(including reasonable attorneys' fees) resulting from: (i) any material breach
of any covenant, representation, or warranty of Licensee contained in this
Agreement; and/or (ii) any claim by a third party, including any governmental
authority, arising
23
out of or relating to the manufacture, production, marketing, sale, purchase,
distribution, use or consumption of TJC Products produced, distributed, or sold
by Licensee or a TJC Licensee; and/or (iii) any occurrence at any TJC Bakery
owned or operated by Licensee or a Franchisee; except to the extent that any
such claim arises out of: (a) any material breach of this Agreement by Licensor;
or (b) Licensor's gross negligence.
16. INSURANCE
During the term of this Agreement, Licensee shall maintain comprehensive
general liability insurance and products liability insurance, in such amounts as
may be specified by Licensor, and such other insurance as Licensor reasonably
may specify, consistent with industry standards. The currently approved type and
amounts of insurance coverage are specified in Exhibit K. Licensee shall provide
Licensor, upon written request of Licensor, with certificates evidencing such
insurance and certificates of renewal of such insurance, when applicable.
Licensor shall be named an additional insured under such coverage, at no cost to
Licensor.
17. ASSIGNMENT OF INTERESTS
17.1 Licensee shall not transfer, assign, convey, give away, pledge, or
encumber collectively "Transfer") any rights in this Agreement or the license
granted herein, in all or substantially all of the assets of Licensee, or in any
supply, license, sublicense, or franchise agreement; nor shall Licensee permit
any Transfer of more than a ten percent (10%) direct or indirect ownership
interest in Licensee by any individual shareholder of Licensee specified in
Exhibit H, without Licensor's prior written consent, which consent may not be
unreasonably withheld. As of the date of this Agreement, there exist only two
such restricted stockholders, and said stockholders have executed, of equal date
herewith, stock sale restriction agreements attached to the Purchase Agreement.
Further, prior to any Transfer of this Agreement or the rights to this
Agreement, Licensee shall comply with the procedures set forth in Section 17.2.
17.2 In the event Licensee desires to accept any bona fide offer from a
third party to directly or indirectly purchase any interest in this Agreement,
Licensee shall notify Licensor in writing of each such offer, and shall provide
to Licensor such information and documentation relating to the offer and the
prospective purchaser as Licensor may require. Licensor shall have the right and
option, exercisable within thirty (30) days after receipt by Licensor of all
such written notification and all other information required by Licensor, to
send written notice to Licensee that Licensor intends to purchase Licensee's
interest on the same terms and conditions as those offered by the prospective
purchaser. The information to be supplied by the Licensee and required by
Licensor shall be accompanied by (i) a written representation and warranty from
Licensee that Licensee has provided Licensor with all of the information
required under this Section 17.2, and that such information is true, accurate,
and complete; and (ii) an appropriate resolution of the seller's board of
directors approving the proposed sale, or other evidence satisfactory to
Licensor of Licensee's intent to consummate the transaction. Further, if
Licensor elects to exercise its option hereunder, notwithstanding anything in
the offer, Licensor shall be entitled to conduct due-diligence of the scope
customary for transactions of the type proposed
24
in the offer for a period of not less than thirty (30) days, commencing upon the
date of Licensor's notice to the seller of Licensor's election to purchase
pursuant to this Section. In the event that Licensor elects to exercise its
option hereunder, closing on such purchase must occur within the later of: (i)
sixty (60) days from the date of notice to Licensee of the election to purchase
by Licensor, (ii) such period as may have been provided in the offer, or (iii)
such period as may be necessary to conduct due diligence as provided herein.
This provision shall not prevent or restrict Licensee from allowing the third
party to conduct due diligence during such time that Licensor is conducting its
due diligence provided for hereunder. Any material change in the terms of any
offer shall constitute a new offer subject to the same rights of first refusal
by Licensor as in the case of the initial offer, and notice of any such material
change shall be provided in writing by Licensee promptly to Licensor. Failure of
Licensor to exercise the option afforded by this Section 17.2 shall not
constitute a waiver of any other provision of this Agreement, including all of
the requirements of this Section 17, with respect to a proposed transfer.
Licensee shall not execute any contract or accept any offer to purchase any
interest, unless the provisions of this Section 17.4 have been satisfied.
17.3 Licensor may Transfer any or all rights in this Agreement, in the
Intellectual Property, or in any assets of Licensor to any person or entity, on
any terms or conditions, and at any time, in its sole discretion. Licensor shall
notify Licensee prior to any Transfer by Licensor.
18. ASSIGNMENT OF TJC FRANCHISE AGREEMENTS
Licensor shall have the right and option, exercisable upon sixty (60) days
prior written notice ("Assignment Notice") to Licensee, to acquire all of
Licensee's rights, title and interest in and to the TJC Franchise Agreements
then in effect as of the date of assignment specified in the Assignment Notice.
Licensor may not exercise its option hereunder prior to the third (3rd)
anniversary of the date of this Agreement, nor later than the fifth (5th)
anniversary of the date of this Agreement. Licensee shall assign and transfer to
Licensor the TJC Franchise Agreements, shall execute the form of assignment
attached as Exhibit K, and shall act and perform such duties as Licensor or its
counsel may reasonably require to effectuate the assignment specified in this
Section 18. Licensor and Licensee shall be responsible for their own costs and
expenses incurred in the assignment, and Licensor shall not be obligated to pay
Licensee any consideration or other compensation for such assignment.
19. MISCELLANEOUS
19.1 If any of the provisions of this Agreement may be construed in more
than one way, one of which would render the provision illegal or otherwise
voidable or unenforceable, such provision shall have the meaning which renders
it valid and enforceable. The language of all provisions of this Agreement shall
be construed according to its fair meaning and not strictly against any party.
In the event any court or other government authority shall determine any
provision in this Agreement is not enforceable as written, the parties agree
that the provision shall be amended so that it is enforceable to the fullest
extent permissible under the laws and
25
public policies of the jurisdiction in which enforcement is sought and affords
the parties the same basic rights and obligations and has the same economic
effect. If any provision in this Agreement is held invalid or otherwise
unenforceable by any court or other government authority or in any arbitration
proceeding, such findings shall not invalidate the remainder of the agreement
unless in the reasonable opinion of Licensor the effect of such determination
has the effect of frustrating the purpose of this Agreement, whereupon Licensor
shall have the right by notice in writing to the other party to immediately
terminate this Agreement.
19.2 The entering into, performance, and interpretation of this Agreement
shall be governed, construed, and interpreted by the laws of the state of
Florida without regard to the law of conflicts (and without giving effect to the
application of Florida choice-of-law rules). Licensor and Licensee hereby agree
that to the extent that any disputes arise that cannot be resolved directly
between the parties, the parties shall file any necessary suit only in the
federal or state court having jurisdiction where Licensor's principal office is
then located. The parties irrevocably submit to the jurisdiction of any such
court and waive any objection they may have to either the jurisdiction or venue
of any such court. This Section 19.2 shall not be interpreted to apply any
franchise law or business opportunity law to the relationship between Licensor
and Licensee or the subject matter of this Agreement, which would not otherwise
be applicable. The parties acknowledge and agree that this Section 19.2 was
specifically negotiated by the parties, and that the selection of Florida law as
the governing law was included in this Agreement in exchange for other changes
in the Agreement requested by, and concessions provided to, Licensee.
19.3 Recognizing that remedies at law may be inadequate for the enforcement
of certain breaches of this Agreement, in the event Licensee breaches any
provision of this Agreement by reason of which the validity or ownership of, or
goodwill in, the Proprietary Marks or the Proprietary Information may be
impaired, or breaches the covenants to protect the confidentiality of the
Proprietary Information, Licensor may be entitled to injunctive relief to
enforce the provision of this Agreement, in addition to its other rights
hereunder.
19.4 Neither party shall be responsible to the other for non-performance or
delay in performance occasioned by any causes beyond its control and for causes
other than its own fault (other than lack of funds) including, without
limitation, acts of civil or military authority, failure of civil or military
authorities to act, strikes, lockouts, embargoes, insurrections, or Acts of God.
If any such delay occurs, any applicable time period hereunder shall be
automatically extended for a period equal to the time lost; provided that the
party affected shall make reasonable efforts to correct the reason for such
delay and give the other party prompt written notice of any such delay.
19.5 Licensee is an independent contractor and shall not assume any
obligation or liability, express or implied, on behalf of Licensor. Nothing
contained herein or done hereunder shall be construed as creating a joint
venture or partnership, or as creating a franchise; and, except for Licensee's
obligations to monitor, report on, and enforce the quality control standards
26
of the TJC Products as required under Section 6, this Agreement should not be
construed as constituting either party hereto as the agent of the other.
19.6 Except as expressly provided to the contrary herein, nothing in this
Agreement is intended, nor shall be deemed, to confer upon any person or legal
entity other than Licensee, Licensor, and Licensor's affiliates and their
respective officers, directors, and employees, and such of Licensee's and
Licensor's respective successors and assigns (as may be permitted under this
Agreement) any rights or remedies under or by reason of this Agreement.
19.7 Except for such actions, approvals, or withholding of approvals that
Licensor may raise in its sole discretion, or in accordance with standards
specified in this Agreement, Licensor and Licensee agree that both parties shall
act in a reasonable manner when exercising their respective rights under this
Agreement.
19.8 Licensor and Licensee represent and warrant to each other that there
are no other Agreements, obligations, or other requirements that prevent such
party from entering into and delivering this Agreement or carrying out such
party's obligations hereunder.
19.9 Any and all notices required or permitted under this Agreement shall
be in writing, and shall be personally delivered, sent by registered mail,
reputable overnight delivery service, or by other means which affords the sender
evidence of delivery or rejected delivery, to the respective parties at the
addresses designated below, unless and until a different address has been
designated by written notice to the other party.
If to Licensor: Arby's, Inc., d/b/a Triarc Restaurant Group
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Vice President
with a copy to: Rudnick, Wolfe, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Licensee: T.J. Cinnamons, Inc. or such new name of company as
required in Section 7.5
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice Chairman/CFO
27
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Any notice by a means which affords the sender evidence of delivery, or rejected
delivery, shall be deemed to have been given at the date and time of receipt or
rejected delivery.
19.10 This Agreement constitutes the entire, full, and complete agreement
between Licensor and Licensee concerning the subject matter hereof, and
supersedes all prior agreements, no other representations having induced
Licensee to execute this Agreement. Except for those permitted to be made
unilaterally by Licensor hereunder, no amendment, change, or variance from this
Agreement shall be binding on either party unless mutually agreed to by the
parties and executed by their authorized officers or agents in writing.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, having duly executed, sealed, and delivered this Agreement the day and
year first written above.
T.J. CINNAMONS, INC. ARBY'S, INC., d/b/a TRIARC RESTAURANT GROUP
Licensee Licensor
By:___________________________ By:________________________________________
Name: /s/ ____________________ Name: /s/ _________________________________
Title: _______________________ Title: ____________________________________
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