| Preview
Full Doc
 | 2001 |
Agreement to Assign, Release, Franchise, Manage
Agreement to Assign, Release, Franchise, Manage (162K)
Doc #122406: Click preview link for longer preview.
AGREEMENT TO ASSIGN, RELEASE, FRANCHISE, MANAGE
THIS AGREEMENT TO ASSIGN, RELEASE, FRANCHISE, MANAGE (this "Agreement")
is entered into effective as of June 15, 2001 (the "Effective Date") by and
among HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust
("HPT"), HPTMI PROPERTIES TRUST, a Maryland real estate investment trust
("HPTMI"), HPTMI HAWAII, INC., a Delaware corporation ("HPTMI Hawaii"), HPT TRS
MI-135, INC., a Delaware corporation (the "New Tenant"), MARRIOTT INTERNATIONAL,
INC., a Delaware corporation ("MI"), CR14 TENANT CORPORATION, a Delaware
corporation ("CR14"), CRTM17 TENANT CORPORATION, a Delaware corporation
("CRTM17" and, together with CR14, collectively, the "Initial Tenants"),
COURTYARD MANAGEMENT CORPORATION, a Delaware corporation ("Courtyard"), MARRIOTT
HOTEL SERVICES, INC., a Delaware corporation ("Full Service Manager"), RESIDENCE
INN BY MARRIOTT, INC., a Delaware corporation ("Residence Inn"), SPRINGHILL SMC
CORPORATION, a Delaware corporation ("SpringHill"), TOWNEPLACE MANAGEMENT
CORPORATION, a Delaware corporation ("TownePlace"; and, together with Courtyard,
Full Service Manager, Residence Inn and SpringHill, collectively, the
"Managers").
W I T N E S S E T H:
WHEREAS, pursuant to those certain fourteen (14) lease agreements which
are further described on Exhibit A-1 attached hereto and made a part hereof
(collectively, the "CR14 Leases"), HPTMI leases to CR14, and CR14 leases from
HPTMI, certain properties as further described on Exhibit B-1 attached hereto
and made a part hereof (the "CR14 Properties"), subject to and upon the terms
and conditions set forth in the CR14 Leases; and
WHEREAS, pursuant to those certain seventeen (17) lease agreements
which are further described on Exhibit A-2 attached hereto and made a part
hereof (collectively, the "CRTM 17 Leases" and, together with the CR14 Leases,
as the same shall be amended pursuant to the terms hereof, collectively, the
"Initial Leases"), HPTMI (as successor-in-interest to HPTMI III Properties Trust
pursuant to those certain Articles of Merger which were filed on June 14, 2001)
leases to CRTM17, and CRTM17 leases from HPTMI, certain properties as further
described on Exhibit B-2 attached hereto and made a part hereof (the "CRTM17
Properties"; and, together with the CR14 Properties, collectively, the "Initial
Properties"), subject to and upon the terms and conditions set forth in the
CRTM17 Leases; and
WHEREAS, pursuant to that certain Purchase and Sale Agreement, dated as
of the Effective Date, by and among Courtyard, SpringHill and TownePlace, as
sellers, and HPT, as purchaser (as the same may be amended, restated,
supplemented or otherwise modified from time to time as therein provided, the
"Limited Service Purchase Agreement"), HPT agreed to purchase from Courtyard,
SpringHill and TownePlace, and Courtyard, SpringHill and TownePlace agreed to
sell to HPT, three (3) additional properties as further described on Exhibit C-1
attached hereto and made a part hereof (the "Additional Limited Service
Properties"), subject to and upon the terms and conditions set forth in the
Limited Service Purchase Agreement; and
{PAGE}
WHEREAS, pursuant to that certain Purchase and Sale Agreement, dated as
of the Effective Date, by and between Marriott Kauai, Inc., a Delaware
corporation ("Marriott Kauai" and, together with Courtyard, SpringHill and
TownePlace, collectively, the "Sellers"), as seller, and HPT, as purchaser (as
the same may be amended, restated, supplemented or otherwise modified from time
to time as therein provided, the "Kauai Purchase Agreement" and, together with
the Limited Service Purchase Agreement, collectively, the "Purchase
Agreements"), HPT agreed to purchase one (1) additional property as described in
Exhibit C-2 attached hereto and made a part hereof (the "Kauai Property" and,
together with the Additional Limited Service Properties, collectively, the
"Additional Properties"), subject to and upon the terms and conditions set forth
in the Kauai Purchase Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of the Effective Date, by and between HPT and HPTMI, HPT has assigned
to HPTMI all of HPT's right, title and interest under the Limited Service
Purchase Agreement, and HPTMI has agreed to assume all of HPT's obligations
under the Limited Service Purchase Agreement, subject to and upon the terms and
conditions set forth in such Assignment and Assumption Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of the Effective Date, by and between HPT and HPTMI Hawaii, HPT has
assigned to HPTMI Hawaii all of HPT's right, title and interest under the Kauai
Purchase Agreement, and HPTMI Hawaii has agreed to assume all of HPT's
obligations under the Kauai Purchase Agreement, subject to and upon the terms
and conditions set forth in such Assignment and Assumption Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, HPTMI and HPTMI Hawaii have agreed to lease to the New
Tenant, and the New Tenant has agreed to lease from HPTMI and HPTMI Hawaii, the
Additional Properties, subject to and upon the terms and conditions hereinafter
set forth; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, HPTMI and the Initial Tenants have agreed to amend the
Initial Leases, subject to and upon the terms and conditions set forth in this
Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, the Initial Tenants have agreed to assign the Initial
Leases to the New Tenant, the New Tenant has agreed to accept such assignment
from the Initial Tenants and HPTMI has agreed to consent to such assignment and
to release the Initial Tenants from their liabilities and obligations under the
Initial Leases, subject to and upon the terms and conditions set forth in this
Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, HPTMI, HPTMI Hawaii and the New Tenant have agreed to amend
the Additional Leases and to further amend the Initial Leases, subject to and
upon the terms and conditions set forth in this Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, the New Tenant has agreed to engage the Managers to manage,
and the Managers
-2-
{PAGE}
have agreed to be engaged to manage, the Properties that are leased by the New
Tenant, subject to and upon the terms and conditions set forth in this
Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, MI and the New Tenant have agreed that in the event that
any of the Managers shall no longer manage a Property, such Property shall
continue to be operated as a Marriott brand hotel;
WHEREAS, in connection with the transactions contemplated the Purchase
Agreements, the HPT Parties and the Marriott Parties have agreed to enter into
various other agreements in order to accomplish all of the foregoing;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Purchase Agreements, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth below, in the Purchase
Agreements and/or the Initial Leases, as applicable.
(a) "Additional Leases" shall mean those certain Lease
Agreements, dated as of the Effective Date, by and between HPTMI and
the New Tenant, with respect to the Additional Properties, as the same
may be amended, restated, supplemented or otherwise modified from time
to time as therein provided.
(b) "Additional Limited Service Properties" shall have the
meaning ascribed thereto in the recitals to this Agreement.
(c) "Additional Properties" shall have the meaning ascribed
thereto in the recitals to this Agreement.
(d) "Agreement" shall mean this Agreement to Assign, Release,
Franchise and Manage, together with Exhibits A through I, as the same
may be amended, restated, supplemented or otherwise modified from time
to time as herein provided.
(e) "Agreement to Lease (Kauai)" shall mean that certain
Agreement to Lease (Kauai), dated as of the Effective Date, by and
between HPTMI Hawaii and MI, as the same may be amended, restated,
supplemented or otherwise modified from time to time as herein
provided.
(f) "Amendment to Initial Leases" shall mean that certain
Amendment to Initial Leases, dated as of the Effective Date, by and
among HPTMI and the Initial Tenants, with respect to the Initial
Leases.
(g) "Amendment to Closing Leases" shall mean that certain
Amendment to Closing Leases, substantially in the form attached hereto
as Exhibit D, to be entered into by and between HPTMI and/or HPTMI
Hawaii (as applicable) and Tenant with respect to the Properties which
are closing on such Closing Date.
122406
|
HPT
As referenced in this Agreement to Assign, Release, Franchise, Manage:
HOSPITALITY PROPERTIES TRUST, – AGREEMENT TO ASSIGN, RELEASE, FRANCHISE, MANAGE (this "Agreement")
is entered into effective as of June 15, 2001 (the "Effective Date") by and
among HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust
("HPT"), HPTMI PROPERTIES TRUST, a Maryland real estate investment trust
("HPTMI"), HPTMI HAWAII, INC., a Delaware
_____________
Hospitality Properties Trust
– automatically to
the next Business Day.
-24-
{PAGE}
(c) All such notices shall be addressed,
If to any HPT Party to:
c/o Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. John G. Murray
[Telecopier No. (617) 969-5730]
with a copy to:
Sullivan & Worcester
_____________
"HOSPITALITY PROPERTIES TRUST" – THERETO (EACH A "DECLARATION"), ARE DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND,
PROVIDE THAT THE NAME "HOSPITALITY PROPERTIES TRUST" , AND "HPTMI
PROPERTIES TRUST" (AS APPLICABLE) REFER TO THE TRUSTEES UNDER SUCH
DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND
_____________
HOSPITALITY PROPERTIES TRUST, – each of the HPT Parties and the Marriott Parties
have executed this Agreement under seal as of the date above first written.
HPT:
HOSPITALITY PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ John G. Murray
----------------------------------------
John G. Murray
President
HPTMI:
HPTMI PROPERTIES TRUST,
a Maryland real
_____________
Hospitality Properties Trust
– the First Closing Initial Leases is
amended so that the notice address for Tenant thereunder shall be as follows:
-5-
{PAGE}
c/o Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. John G. Murray
[Telecopier No. (617) 969-5730]
with a copy to:
Sullivan & Worcester
_____________
dt 110449
;
Marriott Int'l
As referenced in this Agreement to Assign, Release, Franchise, Manage:
MARRIOTT INTERNATIONAL,
INC – estate investment trust
("HPTMI"), HPTMI HAWAII, INC., a Delaware corporation ("HPTMI Hawaii"), HPT TRS
MI-135, INC., a Delaware corporation (the "New Tenant"), MARRIOTT INTERNATIONAL,
INC ., a Delaware corporation ("MI"), CR14 TENANT CORPORATION, a Delaware
corporation ("CR14"), CRTM17 TENANT CORPORATION, a Delaware corporation
("CRTM17" and, together with CR14,
_____________
Marriott International, Inc – Massachusetts 02109
Attn: Alexander A. Notopoulos, Jr., Esq.
Sander E. Ash, Esq.
[Telecopier No. (617) 338-2880]
If to any Marriott Party to:
Marriott International, Inc .
10400 Fernwood Road, Dept. 52/924.11
Bethesda, Maryland 20817
Attn: Mr. Michael E. Dearing
[Telecopier No. (301) 380-5067]
with a
_____________
MARRIOTT INTERNATIONAL, INC – President
NEW TENANT:
HPT TRS MI-135, INC.,
a Delaware corporation
By: /s/ John G. Murray
----------------------------------------
John G. Murray
President
-32-
{PAGE}
MI:
MARRIOTT INTERNATIONAL, INC .,
a Delaware corporation
By: /s/ Timothy J. Grisius
----------------------------------------
Timothy J. Grisius
Authorized Signatory
CR14:
CR14 TENANT CORPORATION,
a Delaware corporation
By: /s/
_____________
Marriott International Inc – that certain Holdback Agreement, dated as of the
date hereof (as it may be amended from time to time, the "Holdback Agreement"),
among Marriott International Inc ., a Delaware corporation ("Marriott"), the
Assignors and Tenant, the parties thereto arranged for the transfer of the Old
Security Deposits (as defined
_____________
MARRIOTT INTERNATIONAL, INC – foregoing,
including, without limitation, the collateral assignment of Tenant's right,
title and interest in and to the Guaranty and the Holdback Agreement.
MARRIOTT INTERNATIONAL, INC .,
a Delaware corporation
By:
----------------------------------------------
Timothy J. Grisius
Authorized Signatory
-7-
{PAGE}
By their execution hereof, each of the undersigned managers under the
_____________
dt 275842
;
|
 Sullivan
As referenced in this Agreement to Assign, Release, Franchise, Manage:
Sullivan & Worcester – Rent Guaranty, duly executed by
MI; and
6) the Owner Agreement, duly executed by MI and
the Managers.
(ix) a written opinion from Sullivan & Worcester LLP,
counsel to the HPT Parties, in form and substance reasonably
satisfactory to the Marriott Parties, regarding the
organization and authority of the
_____________
Sullivan & Worcester – Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. John G. Murray
[Telecopier No. (617) 969-5730]
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Alexander A. Notopoulos, Jr., Esq.
Sander E. Ash, Esq.
[Telecopier No. (617) 338-2880]
_____________
Sullivan & Worcester – Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. John G. Murray
[Telecopier No. (617) 969-5730]
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Sander E. Ash, Esq.
[Telecopier No. (617) 338-2880]
24. With respect to the
_____________
dt 190646
;
Venable Baetjer
As referenced in this Agreement to Assign, Release, Franchise, Manage:
Venable, Baetjer – Fernwood Road, Dept. 52/924.11
Bethesda, Maryland 20817
Attn: Mr. Michael E. Dearing
[Telecopier No. (301) 380-5067]
with a copy to:
Venable, Baetjer and Howard LLP
1800 Mercantile Bank & Trust Building
Two Hopkins Plaza
Baltimore, Maryland 21201-2978
Attn: James D. Wright, Esq.
[Telecopier No. (
_____________
dt 109336
|
| Preview
Full Doc
| 2004 |
Franchise Agreement
Franchise Agreement (144K)
Doc #269041: Click preview link for longer preview.
SUMMERFIELD HOTEL COMPANY, L.P.
FRANCHISE AGREEMENT
THIS AGREEMENT is made and entered into as of the 24th day of February 2004, to be effective as of the Effective Date, between Summerfield Hotel Company, L.P., a Kansas limited partnership (Franchisor), and KPA Leaseco IV, Inc. (Franchisee). Certain terms used in this Agreement are defined in Attachment D.
WITNESSETH:
WHEREAS, Franchisor or its Affiliates have developed and Franchisor has the right to use and license the use of a System for the establishment and operation of extended stay all-suite hotels under the Proprietary Marks; and
WHEREAS, Franchisee is the owner of the fee or long-term leasehold interest in the property at the Approved Location identified in Attachment A to this Agreement and desires to obtain a license to use the Proprietary Marks and the System to operate the Hotel located or to be located at the Approved Location under the System and the Proprietary Marks; and
WHEREAS, Franchisee understands and acknowledges the importance of operating in conformity with Franchisors standards and specifications in order to enhance public acceptance of, and demand for, all System Hotels; and
WHEREAS, in entering into this Agreement Franchisor is relying upon the business skill, financial capacity and character of Franchisee and its Principals and the guaranty of Franchisees obligations under this Agreement by its Controlling Principals, each of whom has executed a Guaranty in the form of Attachment B to this Agreement;
NOW, THEREFORE, in consideration of the mutual undertakings and commitments set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
I. GRANT OF FRANCHISE
A. Grant. As of the Effective Date, Franchisor grants to Franchisee, upon the terms and conditions contained in this Agreement, the nonexclusive right and license, and Franchisee undertakes the obligation, to operate the Hotel under the System and the Proprietary Marks at, and only at, the Approved Location, in accordance with this Agreement and Franchisors standards, specifications, policies and procedures, and to use, solely in connection with the operation of the Hotel at the Approved Location, the Proprietary Marks and the System as such may be changed, improved and further developed from time to time. This franchise and Franchisees rights under this Agreement are granted only for the number of guest rooms specified in Attachment A. Franchisee shall not expand or change the number of guest rooms or make other structural changes to the Hotel without the prior written consent of Franchisor.
B. Reserved Rights. Franchisee acknowledges and agrees that (i) this franchise relates solely to the operation of the Hotel at the Approved Location; and (ii) this Agreement does not entitle Franchisee to any protected territory, territorial rights or exclusivity. Franchisee further acknowledges and agrees that Franchisor and its Affiliates retain the right to develop and operate, and to license others to develop and operate, hotels and lodging facilities (including, without limitation, extended stay facilities) or other business operations of any type whatsoever, under the Proprietary Marks or under other trade names, trademarks and service marks, at any location except the Approved Location, including locations adjacent, adjoining or proximate to the Approved Location, and that these business operations may compete directly with and adversely affect the operation of the Hotel. Franchisee agrees that Franchisor and its Affiliates may exercise these rights from time to time without notice to Franchisee, and Franchisee covenants that it shall not take any action, including any action in a court of law or equity, which may interfere with the exercise of such rights.
C. Promotion of System. Franchisee acknowledges that Franchisor has and may have business interests other than the operation of the network of System Hotels and that Franchisor, in its sole discretion, may identify, define, and act upon such interests in the manner it deems appropriate. Franchisee further acknowledges that business decisions made by Franchisor and its Affiliates may impact Franchisee and agrees that Franchisor and its Affiliates have no express obligation or implied duty to protect Franchisee from the consequences of such business decisions and expressly waives any right to assert any claim against Franchisor or its Affiliates based on the existence, actual or arguable, of any such obligation or duty.
D. Obligations Commencing on Effective Date. The obligations of the parties derived from the grant of the franchise and the right to become part of the System (including, but not limited to, those set forth at Sections III.B.-D., IV., V., VI., VII., VIII., IX., X., XI., and XIII. of this Agreement, but expressly excluding, without limitation, those in Sections V.A. (relating to management company and management agreement approval procedures), V.B. (with respect to initial training) VII.A.1., XI., XII., XIV., XV., XVI., XVII., XVIII., XIX., XX., XXI., and XXVII.) shall begin as of the Effective Date. Franchisee understands and agrees that it shall not open the Hotel for business under the System and the Proprietary Marks until the Effective Date, and Franchisee has no rights to the franchise or to the use of the System or the Proprietary Marks until the Effective Date. Upon any such termination, this Agreement shall thereafter be deemed null and void, except for the obligations of Franchisee set forth in Section XVIII. hereof.
II. TERM
A. Term. Except as otherwise provided in this Agreement, the term of this Agreement shall begin on the date set forth in the preamble and shall expire on the Expiration Date set forth in Attachment A.
B. Renewal. Franchisee may, at Franchisees option, renew this franchise for one additional period of ten (10) years upon compliance with the following terms and conditions:
1. Franchisee shall not then be in default of any material provision of this Agreement, any amendment hereof or successor hereto, or any other agreement between Franchisee and Franchisor or its Affiliates and Franchisee shall have substantially complied with all the material terms and conditions of such agreements during their respective terms;
2. Franchisee shall have satisfied all monetary obligations owed by Franchisee to Franchisor and its Affiliates and to all suppliers to the Hotel and shall have met these obligations on a timely basis throughout the term of this Agreement;
3. Franchisee shall submit a renewal application to Franchisor not less than twenty-four (24) months nor more than thirty-six (36) months prior to the end of the initial term;
4. The Hotel manager and other employees of Franchisee shall comply with Franchisors then-current training requirements.
5. Franchisee shall upgrade the Hotel, at Franchisees expense, to conform to the then-current standards and specifications of Franchisor, including, without limitation, such structural changes, remodeling, redecoration, and modifications to existing improvements as may be necessary to do so.
6. Franchisee shall execute a general release of any and all claims against Franchisor and its Affiliates and the officers, directors, shareholders, partners, agents, representatives, independent contractors, servants and employees of each of them, in their corporate and individual capacities, including, without limitation, claims arising under this Agreement or under federal, state or local laws, rules, regulations or orders.
7. Franchisee shall execute Franchisors then-current form of franchise agreement, which shall supersede this Agreement in all respects and the terms of which may differ from the terms of this Agreement including, without limitation, higher royalty and marketing fees. Franchisee shall not be required to pay any additional initial fee but shall pay a renewal fee in an amount equal to fifty percent (50%) of Franchisors then-current initial franchise fee.
269041
| | |
| Preview
Full Doc
| 2002 |
Franchise Agreement [Form]
Franchise Agreement [Form] (104K)
Doc #334294: Click preview link for longer preview.
FORM OF FRANCHISE AGREEMENT
BETWEEN
PIZZA WORLD SUPREME, INC.
AND
-----------------------------------
{PAGE}
PIZZA WORLD SUPREME, INC.
FRANCHISE AGREEMENT
TABLE OF CONTENTS
{Table}
{Caption}
PARAGRAPH PAGE NO.
{S} {C}
1. GRANT OF FRANCHISE..................................................1
2. RELOCATION..........................................................2
3. PROTECTED TERRITORY.................................................2
4. OFF-SITE DELIVERY...................................................2
5. TERM OF AGREEMENT...................................................5
6. RENEWAL OF FRANCHISE................................................5
7. FEES................................................................6
8. DUTIES OF FRANCHISOR................................................7
9. DUTIES OF FRANCHISEE...............................................10
10. NON-COMPETITION....................................................18
11. RIGHT OF FIRST REFUSAL.............................................19
12. TRANSFER AND ASSIGNMENT............................................19
13. OPERATION IN THE EVENT OF ABSENCE, DISABILITY OR DEATH.............22
14. DEFAULT AND TERMINATION............................................23
{/Table}
i
{PAGE}
{Table}
{S} {C}
15. UNAVOIDABLE DELAYS.................................................25
16. SEVERABILITY AND CONSTRUCTION......................................25
17. RELATIONSHIP BETWEEN PARTIES.......................................26
18. WAIVER.............................................................26
19. NOTICES............................................................26
20. APPLICABLE LAW AND JURISDICTION....................................27
21. TERMINOLOGY........................................................27
22. STATUS OF AGREEMENT................................................27
23. AMENDMENT OF AGREEMENT.............................................27
24. COSTS AND EXPENSES OF ENFORCEMENT..................................27
25. CAPTIONS...........................................................28
26. CONSENT AND APPROVAL...............................................28
27. REPRESENTATIONS....................................................28
28. EFFECTIVE DATE.....................................................29
{/Table}
ii
{PAGE}
ME-N-ED'S PIZZERIA
FRANCHISE AGREEMENT
THIS AGREEMENT is entered into at Fresno, California, by and
between PIZZA WORLD SUPREME, INC. ("PWS"), a Nevada corporation with
headquarters located at 5701 North West Avenue, Fresno, California 93711, and
______________________________________________________________________________
(the "Franchisee"), whose address is: ________________________________________
_____________________________________________________________________________.
This Agreement is for the establishment of one Me-N-Ed's
Pizzeria or Slices Pizza Bar (the "Me-N-Ed's Pizzeria" or the "Pizzeria") to be
located at:___________________________________________________________________,
with the specific opening date to be determined in accordance with the terms of
this Agreement.
RECITALS
A. PWS has established a method and system (the "System") for the
development and operation of Me-N-Ed's Pizzerias and Me-N-Ed's Slices Pizza Bars
(collectively "Me-N-Ed's Pizzerias" or "Pizzerias") which includes, without
limitation: The marks "Me-N-Ed's," "Me-N-Ed's Pizza Parlor & Pizza Design,"
"Me-N-Ed's Guys With Pizza Design," "Me-N-Ed's Slices," "Me-N-Ed's Pizzeria,"
and all related names, trademarks, service marks, logos, copyrights and
associated goodwill (the "Proprietary Marks"); distinctive building designs,
decor, color schemes and trade dress and signage; an operating manual
incorporating required standards, procedures, policies, and techniques; secret
food formulae; and advertising, marketing and promotional programs.
B. Pursuant to PWS's continuing efforts to develop its chain of
pizzerias, PWS desires to grant to the Franchisee, and the Franchisee desires to
obtain from PWS, the right to establish and operate the Pizzeria in accordance
with and under the System.
C. This Agreement is for the establishment of a single Me-N-Ed's Pizzeria
at a specific location. It does not grant to the Franchisee any rights to
develop or operate any other Me-N-Ed's Pizzeria at any other locations other
than the single location designated on page 1 of this Agreement.
IN CONSIDERATION OF THE COVENANTS CONTAINED HEREIN, IT IS AGREED AS FOLLOWS:
1. GRANT OF FRANCHISE
Subject to all the terms and conditions of this Agreement, PWS
grants to the Franchisee the nonexclusive right to use the System to establish
and operate the Pizzeria. The Franchisee acknowledges that adherence to the
standards and policies of the System, as changed
1
{PAGE}
from time to time, is absolutely essential for the continued operation of the
franchise granted by this Agreement.
2. RELOCATION
The Franchisee shall have the right to establish and operate
the Pizzeria only at the single location designated above. Any relocation of the
Pizzeria shall require PWS's prior written consent. Such consent may be withheld
in PWS's sole discretion unless the lease for the site of its Pizzeria expires
or terminates without fault of the Franchisee, or if the site is destroyed,
condemned or otherwise rendered unusable, in which case PWS will grant
permission for relocation of the Pizzeria to a location and site meeting PWS's
then-current standards. PWS has the right, but is not required, to charge the
Franchisee a Relocation Fee to cover PWS's costs in approving and processing the
request for relocation. Such fee is payable upon approval by PWS at such
location. Any relocation will be at the Franchisee's sole expense.
3. PROTECTED TERRITORY
(a) Trade Area: While this Agreement is in force, the
Franchisee shall have the exclusive right to operate the Pizzeria within a two
mile radius of the location of the Pizzeria, except that if the Franchisee's
Pizzeria is located in a mall or within certain areas as may be designated from
time to time by PWS, no such exclusive right shall be granted. The radius around
the location of each Pizzeria in which PWS agrees not to grant any other
franchises is referred to as the "trade area" of the applicable Pizzeria.
Neither PWS nor an affiliate will operate or grant a franchise for the operation
of a sit down, carry-out or delivery pizza restaurant business whose trade area
overlaps the Pizzeria's trade area; except nothing in this Agreement shall
prohibit PWS from operating or franchising a Pizzeria in a mall that overlaps
trade areas with the trade area of the Pizzeria.
(b) Alteration of Trade Area: From time to time, PWS may
designate certain areas within which PWS will not grant exclusive rights, but
the Franchisee's trade area may not be altered except by the mutual written
agreement of the Franchisee and PWS.
(c) Shopping Center: For purposes of this Agreement, a
mall means a shopping center of not less than 250,000 square feet of gross
leasable area where stores front on both sides of a pedestrian walkway which may
be enclosed or open. Any trade area granted to the Franchisee herein is with
respect to the establishment of other Pizzeria locations only, and shall not be
deemed to grant to the Franchisee any exclusive market area or territory.
4. OFF-SITE DELIVERY
The Franchisee must offer delivery services a minimum of six
hours each day, from 4:00 p.m. to 10:00 p.m. and may offer such services during
lunch hours, subject to PWS's approval, except that the Franchisee will not have
any delivery obligations whatsoever if its Pizzeria is located in a mall,
although the Franchisee may offer delivery services in accordance with this
Agreement if its Pizzeria is located in a mall. The scope of the delivery area
will be congruent with the scope of the trade area (as discussed in Paragraph
3(a) of this Agreement).
2
{PAGE}
Due to fluctuations in population density and vehicular traffic patterns over
time, PWS may, in its sole discretion, extend the radius in which the Pizzeria
must offer delivery services. PWS may subsequently reduce this delivery area due
to further changes in population density, vehicular traffic patterns or the
opening of another Pizzeria in a proximate location, although such delivery area
may not be reduced to less than an area having a two mile radius. The Franchisee
acknowledges that the size of the delivery area is based on quality control and
related operational considerations and is not related to any protected territory
granted the Franchisee with respect to the establishment of Pizzeria locations.
(a) Certain Standards and Requirements:
(i) The Franchisee shall ensure that any and all
vehicles utilized for off-site delivery: (a) are maintained in good condition
and repair and comply with all requirements for the safe and lawful operation of
such vehicles on the streets and highways of all applicable localities; and (b)
are operated, at all times, by employees of the Franchisee, who shall be duly
qualified, authorized and licensed to operate such vehicles and who shall
maintain insurance covering liability as a driver as required by this Paragraph
of this Agreement. The Franchisee shall further undertake all necessary action
to assure that employees operate delivery vehicles safely and lawfully.
Subcontracting of or for off-site delivery services is prohibited.
(ii) In the discretion of the Franchisee, vehicles
used for off-site delivery services may bear signage indicating that the vehicle
is delivering Me-N-Ed's pizza products; provided, however, such signage must be
professionally manufactured or produced and shall be subject to approval by PWS
prior to any public display or use by the Franchisee. If requested by PWS, the
Franchisee shall exhibit on all delivery vehicles (or on car top signs on all
delivery vehicles) signs of sufficient prominence and wording as PWS may
prescribe from time to time so as to advise the public that the Pizzeria is
owned, operated and maintained by the Franchisee and that each such delivery
vehicle is owned, operated and maintained by the Franchisee or the driver of the
vehicle, as the case may be. The Franchisee shall at all times carry insurance,
in accordance with Paragraph 4(b) of this Agreement, covering any and all
vehicles used for off-site delivery services.
(iii) PWS reserves the right, in its discretion,
to designate those food and beverage products which may be offered by the
334294
| | |