Exhibit 10.4
DEVELOPMENT
AGREEMENT
ARBY'S, INC.
DEVELOPMENT AGREEMENT
TABLE OF CONTENTS
PAGE
1. GRANT
2. TERM
3. DEVELOPMENT FEE
4. DEVELOPMENT SCHEDULE
5. LOCATION OF RESTAURANTS
6. SITE ACCEPTANCE
7. DISCLAIMER
8. LOCATION REQUIREMENTS
9. CONSTRUCTION
10. TRAINING
11. LICENSE AGREEMENT
12. NO RIGHT TO OPERATE OR USE TRADEMARKS
13. TERMINATION
14. EFFECT OF EXPIRATION OR TERMINATION
15. CONFIDENTIALITY
16. ASSIGNMENT
17. NEW DEVELOPMENT AGREEMENT
18. GOVERNING LAW AND FORUM SELECTION
19. DEVELOPER'S ACKNOWLEDGMENTS
20. ENTIRE AGREEMENT
ATTACHMENTS
EXHIBIT "A" - TERRITORY
EXHIBIT "A-1" - DISTINCTION FROM EXISTING MDA
EXHIBIT "B" - DEVELOPMENT SCHEDULE
EXHIBIT "C" - PAYMENT SCHEDULE
DEVELOPMENT AGREEMENT
This is a Development Agreement ("Agreement") made in Fort Lauderdale,
Florida, by and between ARBY'S, INC. d/b/a TRIARC RESTAURANT GROUP, a Delaware
corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Arby's"), and NEWCO, a(n) * corporation/partnership/individual
with *its principal office/his/her/their residence located at * ("Developer").
WHEREAS, Arby's owns a number of trademarks and service marks, including
the trademark "ARBY'S," and is a franchisor of Arby's Restaurants, which serve
roast beef sandwiches and other food items; and
WHEREAS, Developer desires the rights to develop Arby's Restaurants
within the geographic area specified in this Development Agreement for the
limited term of this Agreement; and
WHEREAS, Arby's is willing to grant such rights in accordance with the
terms and conditions of this Agreement;
NOW, THEREFORE, it is mutually agreed as follows:
1. GRANT. Arby's hereby grants to Developer during the term of this
Development Agreement and subject to the conditions hereof the right to develop
Arby's Restaurants in the limited geographical area identified and set forth in
Exhibit A hereto, exclusive of any Unit Trading Area or Protected Area located
therein as defined in any License or Franchise Agreements currently issued to
other parties; this geographical area shall be referred to as the "Territory."
The operation of the restaurants developed pursuant to this Agreement will be
governed by individual License Agreements issued by Arby's in accordance with
Section ll below. So long as Developer is in compliance with the terms and
conditions of this Agreement, Arby's will not license others to operate, nor
will it itself operate, any new or additional Arby's Restaurants in the
Territory during the term of this Agreement.
2. TERM. Unless earlier terminated pursuant to Section 13, this
Development Agreement shall expire Thirteen Years, Ten Months from the date of
execution of this Agreement by Arby's or upon the execution by Arby's of the
License Agreement for the last of the restaurants specified in Exhibit B (the
"Development Schedule"), whichever first occurs.
3. DEVELOPMENT FEE. Upon execution of this Development Agreement,
Developer shall pay to Arby's a fee of $1,900,000.00 (the "Development Fee") in
accordance with the Payment Schedule attached hereto as Exhibit C. This
Development Fee shall be fully earned by Arby's in consideration of its
execution of this Agreement and shall be non-refundable. However, Arby's shall
credit $10,000 of the Development Fee toward payment of the License Fee for each
of the first one hundred ninety (190) License Agreements issued to Developer
pursuant to this Development Agreement, provided that the applicable restaurants
are constructed and opened in accordance with the Development Schedule.
4. DEVELOPMENT SCHEDULE. Developer shall open and continuously operate
properly licensed Arby's Restaurants in accordance with the Development Schedule
set forth in Exhibit B. In the event that Developer opens and continuously
operates a greater number of Arby's Restaurants than required during any interim
period of the Development Schedule, the requirements of the succeeding period(s)
shall be deemed satisfied to the extent of such excess number of restaurants, up
to the total number of restaurants specified in the Development Schedule.
5. LOCATION OF RESTAURANTS. Developer is responsible for locating
proposed sites within the Territory for each of the restaurants contemplated in
the Development Schedule; during the term of this Agreement, Developer shall use
its best efforts to locate suitable sites. Arby's may in its discretion offer
counseling and advice in site selection. In no event, however, shall Arby's 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 shall
be the exclusive responsibility of Developer, financially and otherwise.
6. SITE ACCEPTANCE. Upon selection by Developer of a proposed site for a
restaurant, Developer promptly shall submit to Arby's such specific site data
and demographic and other information concerning the site as may be reasonably
required by Arby's, utilizing such forms as may be required by Arby's. Arby's
shall either accept or reject such site in accordance with Arby's then-current
site selection policies and procedures. To be effective, any acceptance must be
in writing. Developer understands and acknowledges that Arby's 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 Arby's shall be at the sole risk and
responsibility of Developer and shall not obligate Arby's in any way to accept
same.
7. DISCLAIMER. In executing this Development Agreement, accepting a
proposed site, giving approvals or advice or providing services or assistance in
connection with this Development Agreement, Arby's does not guarantee the
suitability of an accepted site or the success of any Arby's restaurant
established at such site. Arby's 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 Arby's or Developer (such 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, Arby's 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. Upon receiving acceptance for a proposed site,
Developer shall proceed promptly to secure control of the accepted site and to
obtain necessary zoning and building approvals and permits. Arby's will provide
generic plans for the Arby's-approved building, including specifications for
fixtures, furnishings, signs and equipment. Developer must hire an architect and
general contractor to adapt these generic plans to the accepted site and must
submit proposed final working plans to Arby's for approval within the time
limits set by Arby's. Developer shall not proceed with construction or
remodeling until Developer has received Arby's written approval of the final
working plans. Developer shall ensure that the building is constructed or
remodeled in accordance with the final working plans and specifications
designated and approved by Arby's. Developer will allow Arby's to make periodic
inspections and will provide such periodic progress reports as may be requested
by Arby's.
10. TRAINING. Unless Developer already is operating at least one Arby's
restaurant, Developer, a partner of Developer if Developer is a partnership, or
the majority shareholder of Developer if Developer is a corporation, must
complete Arby's New Owner's Training Program prior to issuance of the License
Agreement for the first restaurant set forth in the Development Schedule. In
addition, if Developer is not operating any Arby's restaurants prior to issuance
of the License Agreement for the first restaurant set forth in the Development
Schedule, two representatives of Developer must attend and be certified at
Arby's Restaurant Management Training Program prior to issuance of the License
Agreement for the first restaurant under the Development Schedule, another
representative of Developer must attend and be certified prior to issuance of
the License Agreement for the second restaurant under the Development Schedule,
and Arby's in its sole discretion and prior to issuance of any further License
Agreements for additional restaurants may require additional representatives of
Developer to attend and be certified at the Restaurant Management Training
Program or complete another comparable program approved in advance by Arby's. If
Developer is an individual who intends to participate in the daily operation of
the restaurant, or if Developer includes a partner or shareholder who intends to
participate in the daily operation of the restaurant, that person must attend
and be certified at the Restaurant Management Training Program as one of
Developer's first two representatives. If Developer already is operating one,
but only one, Arby's restaurant prior to issuance of the License Agreement for
the first restaurant under the Development Schedule, one additional
representative of Developer must attend and be certified at the Restaurant
Management Training Program prior to issuance of the License Agreement for the
first restaurant under the Development Schedule, and Arby's in its sole
discretion and prior to issuance of any further License Agreements for
additional restaurants may require additional representatives of Developer to
attend and be certified at the Restaurant Management Training Program or
complete another comparable program approved in advance by Arby's. If Developer
already is operating two or more Arby's restaurants prior to issuance of the
License Agreement for the first restaurant under the Development Schedule,
Arby's in its sole discretion and prior to issuance of any License Agreement
under the Development Schedule, may require an additional representative to
attend and be certified at the Restaurant Management Training Program or
complete another comparable training program approved in advance by Arby's.
Arby's will pay tuition for training at the New Owner's Training Program and the
Restaurant Management Training Program; all other expenses shall be the sole
responsibility of Developer.
11. LICENSE AGREEMENT. No Arby's Restaurant may be opened or operated by
Developer under any circumstances until the required License Fee has been paid
and the License Agreement for such location has been executed by Arby's. The
License Fee shall be Thirty-Seven Thousand and Five Hundred Dollars ($37,500)
for Developer's first License Agreement, and Twenty-Five Thousand Dollars
($25,000) for each subsequent License Agreement. The License Fee for each
License Agreement must be paid at least thirty (30) days prior to scheduled
execution of the Agreement. All License Agreements issued pursuant to this
Development Agreement will contain generally the same terms and conditions as
are being offered to other licensees similarly situated at time of issuance,
including without limitation those terms and conditions pertaining to royalties
and other fees and duration of the Agreement; as a condition of Arby's execution
of such License Agreement, Arby's may require Optionee or its principles to
execute a personal guarantee, letter of credit or corporate guarantee to secure
payment of royalties and other fees required to be paid under the License
Agreement. Developer shall comply with Arby's then-current franchising policies
and procedures for issuance of the License Agreements. Arby's shall be under no
obligation to execute and issue a License Agreement if Developer is in breach or
default of any other License or Franchise Agreement between Arby's and
Developer, or if Developer is not eligible for expansion pursuant to Arby's
then-current criteria for expansion. In addition, Arby's 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 Development
Agreement and has satisfied all requirements set forth herein (including
construction and training requirements) with respect to the pertinent accepted
site. If and when a License Agreement is executed by Arby's, it shall govern the
relations between the parties with respect to the pertinent restaurant.
12. 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
Arby's trademarks, service marks and trade names; that the execution of this
Development 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 Arby's restaurant prior to execution by Arby's of a
License Agreement for the
pertinent location.
13. TERMINATION. This Agreement shall terminate immediately and
without notice to either party upon:
(a) the death of Developer, if Developer is an individual; or
(b) the commencement of any proceedings by or against Developer
under the Bankruptcy Act, under any Chapter thereof or amendment thereto, or
under any other insolvency act, whether federal or state; the appointment of any
trustee or receiver for the business or property of Developer; or any assignment
by Developer for the benefit of creditors.
Arby's shall have the right at its election to terminate this Agreement
immediately upon notice to Developer, upon the occurrence of any of the
following:
(a) failure to comply with the Development Schedule;
(b) the attempted assignment of this Agreement without the
prior written approval of Arby's;
(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 Arby's;
(d) the discovery by Arby's of any material misrepresentation
in any of the information or documents submitted to Arby's by or on behalf of
Developer;
(e) any violation by Developer of any of the provisions of
this Agreement; or
(f) the termination by Arby's of any License or Franchise
Agreement or other agreement between Arby's and Developer or Developer's failure
to cure a default under any other agreement between Arby's and Developer within
the time specified by Arby's.
For purposes of Sections 11 and 13 herein, any License or Franchise
Agreements issued to Developer, any affiliated company of Developer or any
corporation, partnership or joint venture (or their affiliates) in which
Developer or any stockholder, partner or joint venture of Developer, direct or
indirect, has any interest of ownership or participation, regardless of
location, shall be deemed an Agreement between Arby's and Developer.
14. EFFECT OF EXPIRATION OR TERMINATION. Upon expiration or
completion of this Development Agreement, or upon termination for any
reason, the rights granted to Developer pursuant to Section 1 of this
Development Agreement shall be extinguished immediately. Unless the
parties have executed a new development agreement, Arby's thereafter shall have
the right to operate or permit others to operate Arby's Restaurants within the
Territory, except as limited by the Unit Trading Area or Protected Area
provisions of any then-effective License or Franchise Agreements.
15. CONFIDENTIALITY. At all times during the term of this Agreement, and
after termination of this Agreement for any reason, Developer (and if a
corporation or partnership, its shareholders, directors, and officers or
partners, as individuals) shall not divulge, disclose or communicate, directly
or indirectly, to any other person or entity any confidential or proprietary
information or knowledge obtained from Arby's.
16. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon Arby's, its successors and assigns. However, neither this Agreement
nor any of Developer's rights hereunder shall be assignable or transferable by
Developer, directly or indirectly, by operation of law or otherwise, without
prior written approval from Arby's.
17. NEW DEVELOPMENT AGREEMENT. If Developer wishes to negotiate a new
development agreement with Arby's with respect to further development of Arby's
Restaurants in the Territory, Developer must so advise Arby's in writing sixty
(60) days before the expiration date of this Development Agreement or sixty (60)
days before the anticipated date of execution of the License Agreement for the
final restaurant under the Development Schedule in Exhibit B. Subject to receipt
of such notice and so long as this Development Agreement is in effect and
Developer is not and has not been in default under this Development Agreement or
any License or Franchise Agreement or other agreement with Arby's, Arby's then
will negotiate in good faith with Developer with respect to a new development
agreement during the remainder of the term of this Development Agreement.
18. GOVERNING LAW AND FORUM SELECTION. This Agreement shall be governed,
construed and interpreted in accordance with the laws of the State of Florida.
In the event of any dispute concerning the parties' rights or obligations under
this Agreement, Developer agrees to file any suit against Arby's only in the
federal or state court having jurisdiction where Arby's principal office is then
located.
19. 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 Arby's and its
representatives have made no representations to Developer other than or
inconsistent with the matters set forth in the Franchise Offering Circular
provided to Developer and that Developer has undertaken this venture solely in
reliance upon the matters set forth in the Franchise Offering Circular and
Developer's own independent investigation of the merits of this venture.
20. ENTIRE AGREEMENT. This Development Agreement contains the entire
agreement between the parties and shall not be modified except by a written
document executed by both parties.
WITNESS: DEVELOPER: NEWCO, a ---------- corporation
------------------- By:-----------------------
*Name
*Title
Date:---------------------------
WITNESS: ARBY'S, INC.
d/b/a TRIARC RESTAURANT GROUP
------------------- By:----------------------
*Name
*Title
Date:---------------------------
EXHIBIT A
TERRITORY
TBD
*
Arby's and Developer acknowledge and agree that the actual Territory and any
exclusivity therein shall be finalized prior to the Final Date, as that term is
defined under that certain Stock Purchase Agreement, dated as of February ___,
1997, by and among Sellers (as defined therein) and Holdco (as defined therein).
ACKNOWLEDGED AND APPROVED
------------------------ (Developer)
------------------------ (Arby's)
EXHIBIT A-1
Distinction from existing MDA
Arby's and Developer acknowledge and agree that the terms of this Development
Agreement are separate and apart from, and the Units to be developed hereunder
are in addition to, the terms and conditions set forth in that certain
Development Agreement, dated as of June ___, 1996 (the "Existing Development
Agreement"), by and among Arby's and RTMSC, Inc., RTM Savannah, Inc., RTM
Georgia, Inc., RTM Alabama, inc., RTM Gulf Coast, Inc., RTM Southwest Texas,
Inc., RTM West, Inc., RTM Portland, Inc., RTM SeaTac, Inc., RTM Mid America,
Inc. and RTM Indianapolis, Inc. (collectively, "Developer") and none of the
Units to be developed hereunder shall count toward the obligations of Developer
set forth in the Existing Development Agreement.
EXHIBIT B
DEVELOPMENT SCHEDULE
1. Zero (0) licensed, open and operating Arby's Restaurant(s) on or
before December 31, 1997;
2. Six (6) additional licensed, open and operating Arby's Restaurant(s) on or
before December 31, 1998, for a cumulative total of SIX (6) Restaurants in the
Territory.
3. Eight (8) additional licensed, open and operating Arby's Restaurant(s) on or
before December 31, 1999, for a cumulative total of FOURTEEN (14) Restaurants in
the Territory.
4. Ten (10) additional licensed, open and operating Arby's Restaurant(s) on or
before December 31, 2000, for a cumulative total of twenty-four (24) Restaurants
in the Territory.
5. Ten (10) additional licensed, open and operating Arby's Restaurant(s) on or
before December 31, 2001, for a cumulative total of thirty-four (34) Restaurants
in the Territory.
6. Ten (10) additional licensed, open and operating Arby's Restaurant(s) on or
before December 31, 2002, for a cumulative total of forty-four (44) Restaurants
in the Territory.
7. Fifteen (15) additional licensed, open and operating Arby's Restaurant(s) on
or before December 31, 2003, for a cumulative total of fifty-NINE (59)
Restaurants in the Territory.
8. Fifteen (15) additional licensed, open and operating Arby's Restaurant(s) on
or before December 31, 2004, for a cumulative total of SEVENTY-FOUR (74)
Restaurants in the Territory.
9. Fifteen (15) additional licensed, open and operating Arby's Restaurant(s) on
or before December 31, 2005, for a cumulative total of eighty-nine (89)
Restaurants in the Territory.
10. Fifteen (15) additional licensed, open and operating Arby's Restaurant(s) on
or before December 31, 2006, for a cumulative total of one hundred four (104)
Restaurants in the Territory.
11. Fifteen (15) additional licensed, open and operating Arby's Restaurant(s) on
or before December 31, 2007, for a cumulative total of one hundred NINETEEN
(119) Restaurants in the Territory.
12. Fifteen (15) additional licensed, open and operating Arby's Restaurant(s) on
or before December 31, 2008, for a cumulative total of one hundred THIRTY-FOUR
(134) Restaurants in the Territory.
13. Twenty-eight (28) additional licensed, open and operating Arby's
Restaurant(s) on or before December 31, 2009, for a cumulative total of one
hundred SIXTY-TWO (162) Restaurants in the Territory.
14. Twenty-eight (28) additional licensed, open and operating Arby's
Restaurant(s) on or before December 31, 2010, for a cumulative total of one
hundred ninety (190) Restaurants in the Territory.
ACKNOWLEDGED & APPROVED
--------------------- -------------------
Newco Arby's
EXHIBIT C
PAYMENT SCHEDULE
The total amount due and owing by Developer to Arby's under this Agreement is
One Million Nine Hundred Thousand and 00/100 Dollars ($1,900,000.00), which
amount shall be payable as follows:
A. On the date hereof, Developer shall pay to Arby's the sum of Four
Hundred Thousand and 00/100 Dollars ($400,000.00);
B. On January 1, 1998, Developer shall pay to Arby's the sum of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00);
C. On January 1, 1999, Developer shall pay to Arby's the sum of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00);
D. On January 1, 2000, Developer shall pay to Arby's the sum of Two
Hundred Thousand and 00/100 Dollars ($200,000.00);
E. On January 1, 2001, Developer shall pay to Arby's the sum of Two
Hundred Thousand and 00/100 Dollars ($200,000.00);
F. On January 1, 2002, Developer shall pay to Arby's the sum of Two
Hundred Thousand and 00/100 Dollars ($200,000.00);
G. On January 1, 2003, Developer shall pay to Arby's the sum of Two
Hundred Thousand and 00/100 Dollars ($200,000.00); and
H. On January 1, 2004, Developer shall pay to Arby's the sum of Two
Hundred Thousand and 00/100 Dollars ($200,000.00).
ACKNOWLEDGED & APPROVED
--------------------- ---------------------
Newco Arby's