Multiple __X__
Single _____
TRC ACQUISITION CORPORATION
MARKET DEVELOPMENT AGREEMENT
This Agreement made and entered into this 15th day of July, 1998, in Atlanta,
Georgia by and between TRC ACQUISITION CORPORATION, a Georgia corporation with
its principal office at 2662 ▇▇▇▇▇▇▇ Bridge Road, Alpharetta, Georgia,
("Licensor" ), and HARTAN, INC., a wholly owned subsidiary of HARVEST RESTAURANT
GROUP, INC., a Texas Corporation with its principal offices at ▇▇▇▇ ▇.▇. ▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Developer").
WHEREAS, Licensor at a substantial expenditure of time, effort and money,
has developed and perfected a system of opening and operating restaurants
utilizing the "▇▇▇▇▇▇'▇" service ▇▇▇▇, "▇▇▇▇ ▇▇▇▇▇▇'▇ Original Rotisserie Grill"
service ▇▇▇▇ and any other service marks held in conjunction with the ▇▇▇▇▇▇'▇
name (collectively hereinafter referred to as ("▇▇▇▇▇▇'▇ restaurants"); and
WHEREAS, Licensor has acquired knowledge and experience in the composition,
distribution, advertising and sale of food products by ▇▇▇▇▇▇'▇ restaurants and
with respect to the style of the buildings and signs used by said restaurants
and has successfully established a reputation, demand and goodwill for the
products sold by such restaurants; and
WHEREAS, Developer recognizes the value of uniformity in a system of
restaurants and Developer further recognizes the value of Licensor's knowledge
and experience gained through the operation of ▇▇▇▇▇▇'▇ restaurants, and the
value of the trade names, trademarks, service marks and other distinctive
features of ▇▇▇▇▇▇'▇ restaurants; and
WHEREAS, Developer acknowledges Licensor's sole and exclusive ownership of
any rights to Licensor's current and future trade names, trademarks and service
marks and to all current and future related practices, procedures, methods,
devices, techniques, recipes and systems; and
WHEREAS, Developer desires to open and operate one or more ▇▇▇▇▇▇'▇
restaurants in areas agreed to with Licensor within the terms of this Agreement;
and
WHEREAS, Licensor is willing to grant Developer such rights in accordance
with the terms and conditions of this Agreement;
NOW, THEREFORE, it is mutually agreed as follows:
1. GRANT. Licensor hereby grants to Developer during the term of this Agreement
and subject to the conditions hereof the right to open and operate the number of
▇▇▇▇▇▇'▇ restaurants specified in Exhibit A. The operation of any ▇▇▇▇▇▇'▇
restaurant developed pursuant to this Agreement will be governed by an
individual License Agreement issued by Licensor in accordance with Paragraph 12
below. During the term of this Agreement, without the consent of Developer,
Licensor shall not grant options for or license others to operate, nor will it
itself operate, any new or additional ▇▇▇▇▇▇'▇ restaurants in the protected
areas.
2. TERM.
2.1. Single Unit Agreement. If this Agreement is for the development of only one
(1) ▇▇▇▇▇▇'▇ restaurant, unless earlier terminated pursuant to the provisions of
Paragraph 14 or extended, this Agreement shall terminate, without any action on
the part of either of the parties being necessary, upon the date of execution by
Licensor of the License Agreement for the ▇▇▇▇▇▇'▇ restaurant then required to
be opened and operated pursuant to this Agreement.
2.2. Multiple Unit Agreement. If this Agreement is for the development of more
than one (1) ▇▇▇▇▇▇'▇ restaurant, unless earlier terminated pursuant to
Paragraph 14, the term of this Agreement shall extend through the date of
execution by Licensor of the License Agreement for the last of the ▇▇▇▇▇▇'▇
restaurants then required to be opened and operated pursuant to this Agreement.
3. DEVELOPMENT FEE. Upon execution of this Agreement, Developer shall pay to
Licensor the fee set forth in Exhibit A hereto and designated as the development
fee (the "Development Fee"). This Development Fee shall be fully earned by
Licensor in consideration of its execution of this Agreement and shall be
nonrefundable. However, Licensor shall credit the Development Fee, pro rata,
based upon the number of ▇▇▇▇▇▇'▇ restaurants to be built within the Territory,
toward the License Fees payable under any of the License Agreements issued to
Developer pursuant to this Agreement, provided that the applicable restaurants
are constructed and opened in accordance with the schedule set forth in Exhibit
A (the "Development Schedule").
4. DEVELOPMENT SCHEDULE. Developer shall build, open and operate properly
licensed ▇▇▇▇▇▇'▇ restaurants in accordance with the Development Schedule set
forth in Exhibit A (the "Development Schedule"). Developer shall inform Licensor
of any delays in the development of a ▇▇▇▇▇▇'▇ restaurant, including, but not
limited to, permits construction, zoning and financial delays. It is the sole
discretion of Licensor to grant an extension of any date set forth in Exhibit A
(the "Development Schedule").
5. LOCATION OF RESTAURANTS. Developer is responsible for locating proposed sites
for any ▇▇▇▇▇▇'▇ restaurant contemplated. During the term of this Agreement,
Developer shall use its best efforts to locate suitable sites. Licensor, in its
discretion, may offer counseling and advice in site selection. In no event,
however, shall Licensor be obligated to loan money, guarantee leases, provide
financing or otherwise become directly involved and/or obligated to Developer or
to any third party in respect of such site selection or development; these
activities and undertakings, financially and otherwise, shall be the exclusive
responsibility of Developer.
6. SITE ACCEPTANCE. Upon selection by Developer of a proposed site for a
▇▇▇▇▇▇'▇ restaurant, Developer promptly shall submit to Licensor such specific
site data and demographic and other information concerning the site as may be
reasonably required by Licensor, utilizing such forms as may be required by
Licensor. Licensor shall review such site in accordance with Licensor's
then-current site selection policies and procedures. Developer understands and
acknowledges that Licensor may reject any proposed site, in which event
Developer will not proceed at the rejected site, but will seek to locate an
acceptable site. The acquisition in any manner of any proposed site prior to
acceptance by Licensor shall be at the sole risk and responsibility of Developer
and shall not obligate Licensor in any way to accept such site or to issue a
License Agreement for operation of a ▇▇▇▇▇▇'▇ restaurant at such site.
7. DISCLAIMER. In executing this Agreement, reviewing a proposed site, giving
advice or providing services or assistance in connection with this Agreement,
Licensor does not guarantee the suitability of an accepted site or the success
of any particular ▇▇▇▇▇▇'▇ restaurant established at any such site. Licensor
expressly disclaims any warranties, express or implied, with respect to the
suitability of any site or the success of any restaurant. Developer understands
and acknowledges that the suitability of a site and the success of any
restaurant depend on many factors outside the control of either Licensor or
Developer (including, without limitation, such factors as interest rates,
unemployment rates, demographic trends and the general economic climate), but
principally depend on Developer's efforts in the operation of the restaurant.
8. LOCATION REQUIREMENTS. As a condition for accepting a proposed site, Licensor
may require Developer to negotiate a lease or sales contract that includes
certain terms regarding duration or other specified matters. Developer
understands and acknowledges that a site acceptance may be conditioned on such
matters and that if Developer does not wish to, or cannot, satisfy the pertinent
conditions within a reasonable time, the site will be deemed rejected.
9. CONSTRUCTION. (a) Upon receiving acceptance for a proposed site, Developer
shall proceed promptly to secure control of the site and to obtain necessary
zoning and building approvals and permits. Following acceptance of any site,
Licensor shall provide Developer a set of standard architectural plans and
specifications for a prototype, freestanding or modified plans for a conversion
▇▇▇▇▇▇'▇ restaurant. After a site is accepted but before commencing construction
of any ▇▇▇▇▇▇'▇ restaurant contemplated by this Agreement, Developer shall, if
requested by Licensor, at Developer's expense, furnish to Licensor for
Licensor's acceptance, the following:
(i) A proposed preliminary site plan for the ▇▇▇▇▇▇'▇ restaurant which, if
accepted, shall not thereafter be changed without Licensor's prior written
consent; and
(ii) A copy of Developer's plans and specifications for construction of the
▇▇▇▇▇▇'▇ restaurant in proposed final form, which plans and specifications shall
have been adopted, at Developer's expense, from Licensor's then standard plans
and specifications and which, if accepted, shall not thereafter be changed,
without Licensor's prior written consent. In addition, upon request by Licensor,
Developer shall furnish Licensor information as Licensor may from time to time
request, which may include, without limitation, copies of all commitments and
plans for construction and permanent financing, the name, address and contact
with respect to each lender, the name and address of the contractor, together
with a copy of the construction contract.
(b) Thereafter, Developer shall break ground and commence construction
of the particular ▇▇▇▇▇▇'▇ restaurant in accordance with the site plan and
building plans and specifications as soon as possible and shall complete all the
construction thereof, including the acquisition and installation of all
equipment specified by Licensor, and have the restaurant ready to open for
business within the time specified in this Agreement or at an earlier date as
determined by Licensor and Developer. Developer shall not open any location for
business until Developer has complied with the conditions of the Opening
Checklist which form is designated by Licensor and may be changed from time to
time. Licensor and its agents shall have the right to inspect the construction
at any reasonable time. Developer agrees to give Licensor at least ten (10) days
notice prior to pouring the concrete slab for any ▇▇▇▇▇▇'▇ restaurant to be
opened pursuant to this Agreement and to give Licensor notice immediately after
completion of the electrical and mechanical rough-ins to enable Licensor to
inspect the construction at such times. Developer shall correct, upon request
and at Developer's expense, any deviation from any approved site plan or plans
and specifications. Licensor assumes no responsibility for the quality of any
construction because of any inspections made by it or any reports or
recommendations made as a result of such inspections.
(c) In the event Developer fails to open any ▇▇▇▇▇▇'▇ restaurant
within the time periods set forth in this Agreement, except for any delay due in
material part to war, strikes, lockouts, governmentally imposed building
moratoriums, or similar causes beyond the control of Developer (which do not
include general construction delays), or in the event Developer commences
construction of any ▇▇▇▇▇▇'▇ restaurant according to plans and specifications
not accepted by Licensor or alters such accepted site plan or plans and
specifications without Licensor's approval, then, Licensor, at its option, may
elect to cancel and terminate this Agreement, by written notice to Developer, in
which case any Development Fee paid to Licensor pursuant to Paragraph 3 shall be
retained by Licensor as liquidated and agreed damages and no further License
Agreements or development rights will be issued for any proposed ▇▇▇▇▇▇'▇
restaurants.
10. ADVISORY SERVICES AND TRAINING.
(a) During the term of this Agreement, Licensor shall at reasonable times, upon
the, request of, and at no charge to Developer (except as otherwise expressly
provided in this Paragraph 10), furnish counseling and advisory services to
Developer with respect to the construction and pre- opening activities related
to the operation of ▇▇▇▇▇▇'▇ restaurants, including consultation and advice
regarding:
(i) parking and building layouts;
(ii) traffic planning;
(iii) construction and financing of the restaurant building
and other improvements;
(iv) equipment selection and layout;
(v) employee selection and training;
(vi) advertising and promotion;
(vii) bookkeeping and accounting; and
(viii) purchasing and inventory control.
(b) Developer and its employees shall attend and conduct such training programs
as Licensor may reasonably require in order to train Developer's personnel
properly to operate the ▇▇▇▇▇▇'▇ restaurants contemplated by this Agreement. No
charge will be made by Licensor for training programs conducted by it, but
Developer shall be required to pay all expenses of Developer's personnel who
take part in any such program or programs.
(c) Developer shall not employ or seek to employ any person who is at the time
employed by Licensor or by any other licensee or optionee of Licensor without
first obtaining the consent of such person's employer and Developer will not,
directly or indirectly, induce any such person to leave his or her employment.
11. LICENSE FEE. Upon execution by Licensor of a License Agreement for any
▇▇▇▇▇▇'▇ restaurant contemplated by this Agreement, Developer shall pay to
Licensor the sum set forth on Exhibit A hereto that is specified as the License
Fee for each such ▇▇▇▇▇▇'▇ restaurant. This License Fee is fully earned by
Licensor upon execution of the License Agreement and thereafter shall be
nonrefundable. Any Development Fee paid by Developer hereunder shall be credited
toward payment of the License Fee in accordance with the terms of Paragraph 3 of
this Agreement.
12. LICENSE AGREEMENTS.
(a) Upon the due performance by Developer within the time periods set forth, of
all of the requirements set forth above (including, without limitation, payment
of the Development Fee and License Fee, and satisfaction of all construction and
training requirements) with respect to any ▇▇▇▇▇▇'▇ restaurant contemplated by
this Agreement, Licensor, except as set forth below, will execute, issue and
deliver to Developer Licensor's then-current form of License Agreement to
operate such ▇▇▇▇▇▇'▇ restaurant; provided, however, that, in the event that
this Agreement is for the development of more than one (1) ▇▇▇▇▇▇'▇ restaurant,
the License Fees and royalties payable under any License Agreement for a
▇▇▇▇▇▇'▇ restaurant to be built and operated within the Territory shall be at
the rate set forth in Exhibit A. In addition, in the event that this Agreement
is for the development of more than one (1) ▇▇▇▇▇▇'▇ restaurant, during the term
of this Agreement, with respect to any License Agreement executed for a ▇▇▇▇▇▇'▇
restaurant to be built and operated within the Territory, Licensor agrees that:
(1) the maximum amount (expressed as a percentage of sales) of required
advertising expenditures under any License Agreement shall not be increased from
the amount set forth in the first License Agreement executed by Developer during
the term of this Agreement for a ▇▇▇▇▇▇'▇ restaurant to be built and operated
within the Territory;
(2) the protected radius (expressed in distance) provided for in any License
Agreement shall not be reduced from the distance set forth as a protected radius
in the first License Agreement executed by Developer during the term of this
Agreement for a ▇▇▇▇▇▇'▇ restaurant to be built and operated within the
Territory;
(3) each License Agreement shall have an initial term of twenty (20) years with
the option (upon satisfaction of the conditions for renewal set forth therein)
to renew for 2 additional term of 10 year terms;
(4) neither the radius (expressed in distance) nor the length of time (expressed
in months) of the post-termination covenant not to compete set forth in any
License Agreement shall be increased from those set forth in the first License
Agreement executed by Developer during the term of this Agreement for a ▇▇▇▇▇▇'▇
restaurant to be built and operated within the Territory;
(5) the formula for determining the price to be paid by Licensor for any of
Developer' s assets upon termination of any License Agreement shall not be
changed from that set forth in the first License Agreement executed by Developer
during the term of this Agreement for a ▇▇▇▇▇▇'▇ restaurant to be built and
operated within the Territory; and
(6) no material change, in the reasons that allow a License Agreement to be
terminated shall be made from those set forth in the first License Agreement
executed by Developer during the term of this Agreement for a ▇▇▇▇▇▇'▇
restaurant to be built and operated within the Territory.
(b) As a condition of Licensor's execution of such License Agreement, Licensor
may require Developer or its principals to provide a personal guarantee, letter
of credit or corporate guarantee in a form acceptable to Licensor to secure
payment of royalties and other fees required to be paid to Licensor or its
affiliates under any such License Agreement, or otherwise. Developer shall
comply with Licensor's then-current franchising policies and procedures for
issuance of each License Agreement. Licensor shall be under no obligation to
execute and issue a License Agreement unless Developer has complied in a timely
manner with all terms and conditions of this Agreement and has satisfied all
requirements set forth herein. In addition, Licensor shall be under no
obligation to execute and issue a License Agreement if Developer is in breach or
default of any other License Agreement, Market Development Agreement or any
other agreement between Licensor and Developer, or if Developer is not eligible
for expansion pursuant to Licensor's then-current criteria for expansion. If and
when any License Agreement contemplated in this Agreement is executed by
Licensor, it shall supersede this Agreement and govern the relations between the
parties with respect to the particular restaurant.
13. NO RIGHT TO OPERATE OR USE TRADEMARKS. Developer acknowledges that until a
License Agreement has been issued for a specified site, Developer shall not have
or be entitled to exercise any of the rights, powers and privileges granted by
the License Agreement, including without limitation the right to use Licensor's
trademarks, service marks and trade names; that the execution of this Agreement
shall not be deemed to grant any such rights, powers or privileges to Developer;
and that Developer may not under any circumstances commence operation of any
▇▇▇▇▇▇'▇ restaurant prior to execution by Licensor of a License Agreement for
the particular location.
14. TERMINATION.
14.1 Automatic Termination. This Agreement shall terminate immediately and
without notice to either party:
(a) if Developer files a petition under any bankruptcy or reorganization law,
becomes insolvent, or has a trustee or receiver appointed by a court of
competent jurisdiction for all or any part of Developer's property; or,
(b) if Developer seeks to effect a plan of liquidation, reorganization,
composition or arrangement of Developer's affairs, whether or not the same shall
be subsequently approved by a court of competent jurisdiction, it being
understood that in no event shall this Agreement or any right or interest
hereunder be deemed an asset in any insolvency, receivership, bankruptcy,
composition, liquidation, arrangement or reorganization proceeding; or
(c) if Developer has an involuntary proceeding filed under any bankruptcy or
reorganization laws or any other laws and does not have such proceeding
dismissed within ninety (90) days thereafter;
(d) if Developer makes a general assignment for the benefit of creditors; or
(e) if this Agreement is for the development of only one (1) ▇▇▇▇▇▇'▇ restaurant
within the Territory, upon execution by Licensor and Developer of a License
Agreement for such a ▇▇▇▇▇▇'▇ restaurant.
14.2 By Licensor. Licensor, at its option, may terminate this Agreement
immediately upon notice to Developer, upon the occurrence of any of the
following:
(a) failure to open any ▇▇▇▇▇▇'▇ restaurant within the time period(s) specified
in this Agreement;
(b) the assignment of this Agreement without the prior written approval of
Licensor;
(c) if Developer is a corporation or a partnership, the transfer of any of the
capital stock or partnership interest of such corporation or partnership during
the term of this Agreement without the prior written approval of Licensor; or,
in the event that any shareholder or partner of Developer (the "Shareholder") is
a corporation, limited partnership, business trust, partnership or similar
association, the transfer of any of the capital stock or other interests of the
shareholders, limited partners, trustees, beneficiaries, partners or investors,
as the case may be, in such Shareholder, during the term of this Agreement
without the prior written approval of Licensor;
(d) the discovery by Licensor of any material misrepresentation in any of the
information or documents submitted to Licensor by or on behalf of Developer;
(e) any material violation by Developer of any of the provisions of this
Agreement if such material violation shall continue for thirty (30) days after
Licensor gives written notice of such material violation to Developer or if such
material violation cannot be reasonably corrected within such thirty (30) day
period, then if such material violation is not corrected within such additional
time as may be required assuming Developer proceeds with reasonable diligence;
provided, however, that such written notice and a reasonable time to correct
material violations shall not be required if Developer repeatedly fails to
perform in accordance with the terms and conditions contained herein; or
(f) any default by Developer under any other agreement with Licensor and
Developer's failure to cure such default within the time specified in such
agreement, if any.
15. EFFECT OF EXPIRATION OR TERMINATION. Upon expiration of this Agreement, or
upon its termination for any reason, any and all rights granted to Developer
hereunder shall be extinguished immediately. Licensor thereafter shall have the
right to operate or license others to operate ▇▇▇▇▇▇'▇ restaurants within the
Territory, except as limited by the provisions of any other then-effective
agreements with Licensor.
16. RESTRICTIONS. Licensor is engaged in the business of developing and
franchising ▇▇▇▇▇▇'▇ restaurants on a national basis. Developer acknowledges
that the appropriation or duplication of ▇▇▇▇▇▇'▇ restaurants or any part
thereof for a purpose other than to operate a ▇▇▇▇▇▇'▇ restaurant pursuant to a
License Agreement with Licensor would damage the franchising business of
Licensor. Developer acknowledges that Licensor owns trade secrets and that all
material or other information now or hereafter provided or disclosed to
Developer regarding ▇▇▇▇▇▇'▇ restaurants is disclosed to Developer in confidence
and Developer agrees not to disclose any part of it to anyone who is not an
employee of Licensor, or of its licensees. Licensor shall be entitled to obtain
injunctive relief in addition to any other legal or equitable remedies it may
have if Developer fails to comply with the provisions contained herein.
17. ASSIGNMENT.
(a) Developer shall not sell, assign, transfer, convey or encumber its
rights and obligations hereunder or suffer or permit any such assignment,
transfer or encumbrance to occur by operation of law without the prior express
written consent of Licensor. In the event Developer is a corporation, limited
partnership, business trust, partnership or similar association, the
shareholders, limited partners, beneficiaries, partners or investors, as the
case may be, may not sell, assign, or otherwise transfer their shares or
interests in such corporation, limited partnership, business trust, partnership
or similar association, without the prior written consent of Licensor.
Furthermore, in the event that any shareholder of Developer (the "Shareholder")
is a corporation, limited partnership, business trust, partnership or similar
association, the interests of the shareholders, limited partners, trustees,
beneficiaries, partners or investors, as the case may be, in such Shareholder,
may not be sold, assigned or otherwise transferred, without the prior written
consent of Licensor.
(b) In the event of the death of the Developer or if the Developer is a
corporation or similar entity, then in the event of the death of any
stockholder, investor or similar person, Licensor shall not unreasonably
withhold its consent to a transfer or assignment of Developer's interest herein,
or if Developer is a corporation, the transfer of the deceased stockholder's
stock in such corporation to a descendant, heir or legatee of the decedent, who
shall in the sole judgment of Licensor be capable of performing the duties and
obligations of Developer hereunder and under any License Agreement to be issued
pursuant to this agreement, or to a responsible bona fide purchaser acceptable
to Licensor. Any approval by Licensor of such transfer or assignment shall be
subject to the assignee's agreement in writing to assume and perform all of
Developer's duties and obligations hereunder and under any License Agreement to
be issued pursuant to this agreement.
18. CONSTRUCTION. All terms and words used in this Agreement, regardless of the
number and gender in which they are used, shall be deemed and construed to
include any other number and any other gender, as the context or sense of this
Agreement or any provision hereof may require, as if such words had been fully
and properly written in the appropriate number and gender. All covenants,
agreements and obligations assumed herein by Developer shall be deemed to be
joint and several covenants, agreements and obligations of each of the persons
named as Developer, if more than one person is so named.
19. HEADINGS. Captions and section headings are used herein for convenience
only. They are not part of this Agreement and shall not be used in construing
it.
20. NOTICES. Whenever notice is required or permitted to be given under the
terms of this Agreement, it shall be given in writing, and be delivered
personally, by certified, express or registered mail, or by an overnight
delivery service (e.g., Federal Express), postage prepaid, addressed to the
party for whom intended. All such notices shall be addressed to the party to be
notified at the respective addresses first above written, or at such other
address or addresses as the parties may from time to time designate in writing.
21. COSTS AND ATTORNEY'S FEES. Should Developer institute an action against
Licensor or any of Licensor's agents or employees for any claim arising out of
or related to this Agreement, Licensor (or its agents or employees), if it
prevails, shall recover from Developer its costs and reasonable attorneys' fees
incurred in defending said action.
22. WAIVER. No waiver, delay, omission or forbearance on the part of the
Licensor to exercise any right, option, duty or power arising from any default
or breach by Developer shall affect or impair the rights of Licensor with
respect to any subsequent default of the same or a different kind; nor shall any
delay or omission of Licensor to exercise any right arising from any such
default affect or impair Licensor's rights as to such default or any future
default.
23. SEVERABILITY. If any term, restriction or covenant of this Agreement is
deemed invalid or unenforceable, all other terms, restrictions and covenants and
the application thereof to all persons and circumstances subject thereto shall
remain unaffected to the extent permitted by law; and if any application of any
term, restriction or covenant to any person or circumstance is deemed invalid or
unenforceable, the application of such term, restriction or covenant to other
persons and circumstances shall remain unaffected to the extent permitted by
law.
24. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties hereto and there are no representations, inducements, promises,
agreements, arrangements or undertakings, oral or written, between the parties
that have been relied upon by either party other than those set forth herein. No
agreement of any kind relating to the matters covered by this agreement shall be
binding upon either party unless and until the same is made in writing and
executed by both Developer and Licensor.
25. DEVELOPER'S ACKNOWLEDGMENTS. Developer understands and acknowledges that
there are significant risks in any business venture and that the primary factor
in Developer's success or failure under this Agreement will be Developer's own
efforts. IN ADDITION, DEVELOPER ACKNOWLEDGES THAT LICENSOR AND ITS
REPRESENTATIVES HAVE MADE NO REPRESENTATIONS TO DEVELOPER OTHER THAN OR
INCONSISTENT WITH THE MATTERS SET FORTH IN THE UNIFORM FRANCHISE OFFERING
CIRCULAR PROVIDED TO DEVELOPER AND THAT DEVELOPER HAS UNDERTAKEN THIS VENTURE
SOLELY IN RELIANCE UPON THE MATTERS SET FORTH IN THE UNIFORM FRANCHISE OFFERING
CIRCULAR AND DEVELOPER'S OWN INDEPENDENT INVESTIGATION OF THE MERITS OF THIS
VENTURE.
DATED___________________, 1998
DEVELOPER:
HARTAN, INC.
By: /s/
-------------------------------
LICENSOR:
TRC ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
and Chief Financial Officer
EXHIBIT A
To Market Development Agreement
July 15, 1998
Between TRC ACQUISITION CORPORATION and HARTAN, INC.
DEVELOPMENT TERRITORY: Five agreed upon locations to be determined.
DEVELOPMENT FEE: $50,000 ($10,000 per restaurant to be developed)
LICENSE FEES/ROYALTIES:
For each ▇▇▇▇▇▇'▇ restaurant opened within the Territory pursuant to this
Agreement, the License Fee payable shall be $25,000 and the royalties
payable shall be Three (3%) Percent of gross sales. ($10,000 per restaurant
being paid at the time of this Development Agreement execution with the
balance of each franchise fee being $15,000 per restaurant being paid at
the time of execution of each License Agreement)
DEVELOPMENT SCHEDULE
--------------------
# OF UNITS OPEN AND OPERATING DUE DATE
---------- ---------------------------
1 10/30/98
2 12/30/98
3 6/30/99
4 12/30/99
5 6/30/2000
ACKNOWLEDGED AND APPROVED
(Licensor):________________________
(Developer):_______________________
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT dated July 16, 1998, by and between TRC ACQUISITION
CORPORATION, a Georgia Corporation, with its principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Licensor") and HARTAN, INC., a
wholly-owned subsidiary of HARVEST RESTAURANT GROUP, INC., a Texas corporation
with its principal place of business at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Licensee").
WHEREAS, on July 15, 1998, Licensor and Licensee entered into a Development
Agreement and the parties now desire to enter into an Amendment to the
Development Agreement.
NOW, THEREFORE, for and in consideration of the mutual benefit to the
parties, the parties hereby agree as follows:
1. Licensee desires to and Licensor agrees to enter into a Management
Agreement with Licensee to handle the development and operation of the
restaurants to be built in accordance with the Development Agreement as agreed
to between the parties through the Management Agreement.
2. The parties agree that Licensor will act as the Manager for the area(s)
to be developed and for each of the restaurants to be developed in accordance
with the Development Schedule until such time as the Management Agreement
specifies.
3. The Manager will have the authority to act on behalf of the Developer,
as outlined in the Management Agreement and Operating Fund Agreement in order to
execute the terms of the Development Agreement.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment to
the Development Agreement.
LICENSOR:
TRC ACQUISITON CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ III
-----------------------------------------
Title: Chairman
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LICENSEE:
HARTAN, INC.
By: /s/
-----------------------------------------
Title: President
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SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT dated July 17, 1998, by and between TRC ACQUISITION
CORPORATION, a Georgia Corporation, with its principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Licensor") and HARTAN, INC., a
wholly-owned subsidiary of HARVEST RESTAURANT GROUP, INC., a Texas corporation
with its principal place of business at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Licensee").
WHEREAS, on July 15, 1998, Licensor and Licensee entered into a Development
Agreement and the parties now desire to enter into an Amendment to the
Development Agreement.
NOW, THEREFORE, for and in consideration of the mutual benefit to the
parties, the parties hereby agree as follows:
1. TRC ACQUISITION CORPORATION, acknowledges that Harvest Restaurant Group,
Inc. is a publicly held corporation with tradable securities and as such this
constitutes written approval to accept the normal trading and transfer of such
securities within normal business practices.
2. This Development Agreement shall be deemed made and accepted in Georgia
and shall also be construed and interpreted, and be governed by, the laws of the
State of Georgia.
IN WITNESS WHEREOF, the parties have duly executed this Second Amendment to
the Development Agreement.
LICENSOR:
TRC ACQUISITON CORPORATION
By:________________________________________
Title:_____________________________________
LICENSEE:
HARTAN, INC.
By:________________________________________
Title:_____________________________________