Exhibit 10.33
LICENSE AGREEMENT
This License Agreement (the "Agreement") is made this _____ day of
____________, 1999, by and between ATOMIC BURRITO, INC., a Oklahoma corporation
(hereinafter referred to as ("Licensor"), with a principal place of business at
0000 X.X. Xxxxxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, XX 00000 and
________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_________________
INTRODUCTION:
A. Licensor has developed a restaurant format which features the sale
of high quality burritos, beverages, and related Mexican food items of a
distinctive variety, and has expended considerable time, skill, effort and money
in the creation and development of a restaurant concept using the United States
registered trade and service marks (applied for, registration pending) "Atomic
Burrito" and "Out of this World!" and operating under the trade name "Atomic
Burrito" (The Atomic Burrito restaurant type developed by Licensor and described
herein as the "Restaurant").
B. Licensor and Licensee have previously entered into a Master License
Agreement, A copy of which is attached hereto and make a part hereof. In the
event of any conflict between this Agreement and the Master License Agreement,
then the terms and provisions of this Agreement shall control.
C. Licensor employs or may employ certain other distinctive and
identifying marks, trade names, trademarks, service marks, copyrights, logos,
emblems, sign designs and advertising or promotional slogans.
D. All of the foregoing trademarks or service marks, and such other
trademarks or service marks as may be issued by the United States Patent and
Trademark office and as may be designated or adopted in the future by Licensor
for use in connection with the Restaurant, shall hereinafter by collectively
referred to as the "Proprietary Marks."
E. Licensor employs, and continues to develop and implement, certain
distinguishing and identifying restaurant layout and design features, including
building design, decor, accessories and fixtures and other identifying trade
dress in the interior and exterior of its Restaurants, which features as now and
hereafter designated or adopted by Licensor are collectively referred to herein
as the "Trade Dress."
F. Licensor employs, and continues to develop and implement,
identifying combinations of specified equipment and equipment layout; recipes;
food preparation methods and food products; operating standards and food and
beverage and equipment specifications; operational, management and
record-keeping procedures; advertising and marketing techniques; trade secrets
and confidential information; all of which in combination with its Proprietary
Marks and Trade Dress, and as hereafter may be designated or adopted by Licensor
for a Restaurant, is sometimes collectively referred to in this Agreement as the
"System."
G. Licensor, by reason of its maintenance of its high standards of
quality for food and beverages sold at its Restaurants operated by Licensor
and/or by other Licensees, and by reason of its maintenance of high standards of
service rendered by such Restaurants, has created goodwill and a demand for
restaurants operated using the System, and for the foods served therein.
H. Licensee recognizes the benefits that may be derived from being
identified with and licensed by Licensor and from being able to utilize the
System and the Proprietary Marks which Licensor owns.
I. Licensee acknowledges that the above-described System should provide
a firm foundation for restaurant operations featuring high standards of
merchandising and quality food products.
J. Licensee desires, upon the terms and conditions herein set forth, to
enter into the business of operating A Restaurant in the location herein
described using the System, in accordance with the standards of food and service
adopted and promulgated by Licensor.
K. Licensor is ready and willing to grant a license to Licensee for the
use of the System in the operation of a restaurant upon the terms and conditions
set forth below.
Licensor and Licensee, in consideration of the mutual agreements
contained and for other good and valuable consideration, acknowledged by each of
them to be satisfactory and adequate, do hereby agree as follows:
1. GRANT OF LICENSE
1.1 Grant of Right. Upon the terms and conditions set forth in this
Agreement, Licensor hereby grants to Licensee the right (often referred to
herein as the "License") to be non-exclusive except as hereinafter provided, to
use the System, including the Proprietary Marks, in the operation of a
restaurant at ________________________________________________; such Restaurant
is often referred to herein as the "Licensed Restaurant."
1.2 Initial Term. The License is for a term of twenty (20) years
commencing on the date hereof (the "Initial Term"), subject, however, to earlier
termination as provided for herein.
1.3 Scope of License. The License permits Licensee to represent itself
to the public as a licensee of Licensor, and may only be enjoyed or used by
Licensee as provided in this Agreement in connection with the advertising,
marketing, promotion and sale of such food products and services as are
designated from time to time by Licensor to Licensee.
1.4 Limited Exclusivity. The License granted to Licensee is exclusive
only as to the specific location designated herein and may be subject to other
limitations set forth in this Agreement.
1.5 Future Franchise. Licensee and Licensor agree that if Licensor
should ever decide to franchise Restaurants, Licensor will provide Licensor's
then current franchise disclosure materials, if any, to Licensee. Within thirty
(30) days after receipt of such materials Licensee will give Licensor written
notice ("Licensee's Notice") of whether Licensee desires to become a franchisee.
If Licensee elects to become a franchisee, then Licensor and Licensee will
execute Licensor's standard franchise documents at which time this Agreement
shall terminate. If Licensee fails to give Licensor written notice of its
election to become a franchisee as set forth in this Section, then Licensee will
be deemed to have elected not to become a franchisee and this Agreement will
remain in effect. If Licensee elects to become a franchisee, no initial
franchise fees shall be payable by Licensee to Licensor.
2. OPERATION AND MANAGEMENT
2.1 Operation. Throughout the Term of this Agreement, Licensee shall
continuously operate the Licensed Restaurant (except if prevented by fire, Act
of God or other casualty or cause beyond the control of the Licensee), or shall
secure Licensor's prior approval, which shall not be unreasonably withheld, for
any interruption of operations lasting for more than five (5) days. Licensee
shall use its best efforts, skills and diligence in the conduct of the Licensed
Restaurant, and shall regulate Licensee's employees so that they will be
courteous and helpful to the public.
2.2 Hours of Operation. Unless otherwise authorized or directed by
Licensor in writing, which authorization will not be unreasonably withheld, the
Licensed Restaurant shall be open for business a minimum of 11:00 a.m. to 10:00
p.m., seven (7) days a week, three hundred sixty-two (362) days per year.
Licensee may only close the Licensed Restaurant on Easter Sunday, Thanksgiving
Day and Christmas Day and on other days which Licensor may from time to time
allow in writing, which authorization will not be unreasonably withheld.
2.3 Uniforms. All employees shall wear uniforms of such design and
color as Licensor and Licensee agree upon from time to time.
2.4 Menu and Service. Licensee shall serve all menu items which
Licensor may deem appropriate to take maximum advantage of the potential market
and achieve standardization among the Restaurants. Licensee shall not serve any
item which is not otherwise authorized and approved by Licensor in writing.
Licensee shall adhere to all specifications prescribed by the Licensor as to
ingredients, methods of preparation and service, weight and dimensions of
products served, and standards of cleanliness, health and sanitation. All food,
drink and other items will be served and sold in packaging that meets Licensor's
specifications. Licensee's development of new products is encouraged for the
benefit of both Licensee and Licensor.
2.5 Promotional Material. Notwithstanding the above, Licensee shall
exhibit, promote the sale of, sell and distribute Licensor's products, including
novelties, coupons, promotional literature, materials and souvenirs in the
manner and to the extent requested by Licensor from time to time in the Licensed
Restaurant operated by Licensee.
2.6 Pricing. Licensee and Licensor shall agree on the prices to be
charged to customers for all products and services (both regular menu items and
promotional materials) offered by the Licensed Restaurant.
2.7 Signs. Licensee shall display the Proprietary Marks only in the
manner and at such locations as Licensor has authorized. Licensee agrees to
maintain and display signs reflecting the current image of the Restaurant in
conformity with specifications issued by Licensor from time to time and shall
not place additional posters or signs on the premises without the prior written
consent of the Licensor. Licensee shall discontinue the use of such signs as
they are declared obsolete by Licensor within a reasonable time specified by
Licensor.
2.8 Equipment. Licensee shall only use equipment in the Licensed
Restaurant which Licensor has approved as meeting its specifications and
performance standards. As equipment becomes obsolete or inoperable, Licensee
shall replace such items with the types and kinds of equipment as are then being
installed in new Restaurant at the time of replacement. If Licensor determines
that additional or substitute equipment is needed because of a change in menu
items or methods of preparation and service, Licensee will install the new
equipment within the reasonable time specified by Licensor.
2.9 Vending Machines, Etc. Licensee shall not install telephone booths,
newspaper racks, gum or candy machines, rides, or other vending machines on the
premises of the Licensed Restaurant without the prior approval of Licensor.
2.10 Licensor's Right to Enter. If licensee fails to substantially
perform any of its obligations under this Section 2 after being given seven (7)
days' prior notice and opportunity to cure, any persons authorized by Licensor
may enter the Licensed Restaurant at any time during regular business hours and
perform any act deemed necessary by Licensor to remedy such failure without
liability to Licensor.
3. RIGHT OF ENTRY AND INSPECTION
To insure compliance with this Agreement, Licensor or its designated
representative shall have the right to enter the Licensed Restaurant to conduct
such activities as it or they deem necessary to ascertain compliance with this
Agreement. The inspections may be conducted without prior notice at any time
when Licensee or one of its employees is at the Licensed Restaurant. The
inspections will be performed in a manner which minimizes interference with the
operation of the Licensed Restaurant.
4. STANDARDS OF OPERATION
Licensor shall determine standards of quality for all goods and menu items
used or sold by the Licensed Restaurant, standards of service in connection with
their sale, standards of quality and utility for all furnishings and fixtures of
the Licensed Restaurant, and standards of repair and maintenance of the Licensed
Restaurant. These standards may, in some cases include recommended manufacturers
of certain foods or beverages. Licensee shall strictly conform to such standards
and operate such Licensed Restaurant so as to sustain and maintain the goodwill
and reputation of the Restaurant, the System and the Proprietary Marks. Such
standards shall be substantially the same as those standards employed by
Licensor in the operation of any Restaurants. Licensor may own and/or operate,
and at any other Atomic Burrito Restaurant any which may be owned and operated
by any other Licensee.
5. LICENSE FEE
As consideration for the license granted hereby, Licensee agrees to pay
Licensor the sum of Fifteen Thousand Dollars ($15,000.00) shall be payable upon
execution of this Agreement. This payment is non-refundable and covers the
services provided Licensee by Licensor as set forth in Section 5.1 herein.
5.1 Services Provided for License Fee. In addition to providing Licensee
a non-exclusive right to use the trade xxxx "Atomic Burrito", the trade phrase
"Out of this World!", any of the Proprietary marks, trade dress, and use of the
System, Licensor agrees to provide the following additional services to Licensee
in return for Licensee's payment of the License Fee:
A. Upon the execution of this Agreement, or within sixty (60) days
thereafter, Licensee shall be provided such training and procedure manuals for
all restaurant job descriptions as Licensor may have developed, if any, for
operation of an "Atomic Burrito" restaurant;
B. Upon execution of this Agreement, or within sixty (60) days of the
opening of Licensee's restaurant, Licensee shall be provided recipes for all
Atomic Burrito food items;
C. Training at existing Atomic Burrito restaurants, if any, for
employees of Licensee at the sole expense of Licensee, with the number of people
to be trained to be agreed upon jointly by Licensor and Licensee;
D. An opening training team to assist in opening the new Atomic
Burrito restaurant owned by Licensee. This team will be present during the week
prior to the opening and the week after the opening. All expenses regarding the
opening team provided by Licensor will be borne by Licensor;
E. Consulting on design and construction of Licensee's Atomic Burrito
restaurant; and
F. Inclusion of Licensee in any "Atomic Burrito Buying Group" for
group volume pricing for products and services, if possible.
6. ROYALTY FEES
6.1 Royalties. In addition to the License Fee set forth in Section 5
above, Licensee agrees to pay Licensor a royalty fee equal to three percent (3%)
of Licensee's gross receipts at the Licensed Restaurant covered by this
Agreement, said payments to be paid on the fifteenth (15th) of each month as set
forth herein below.
6.2 "Gross Receipts". The term as used in this Agreement, includes the
aggregate amount of all sales of food, beverage, articles, and any other
merchandise, whether for cash, on credit or otherwise, made and rendered in,
about or in connection with the Licensed Restaurant, unless specifically
exempted by Licensor in writing. The sale of Restaurant related products away
from the Licensed Restaurant shall be included within the definition of Gross
Receipts. Gross Receipts excludes (i) any federal, state, county or city tax,
excise tax, or similar taxes based on sales which Licensee collects from
customers; (ii) employee discounts; (iii) room rentals and service charges; and
(iv) cash register over-rings. Gross Receipts also excludes cash received as
payment in credit transactions where the extension of credit itself has already
been included in the amount upon which royalty is computed.
6.3 Monthly Payment. Once royalty payments commence as set forth above,
Licensee shall pay royalties monthly to Licensor based upon the Gross Receipts
for the preceding calendar month. Payments ("Royalty Payments") shall be
calculated by multiplying the Gross Receipts of the Licensed Restaurant during
the preceding calendar month by the applicable royalty percentage of three
percent (3%). All Royalty Payments are to be made at Licensor's corporate
offices as shown in this Agreement or at such place as Licensor may designate
from time to time. All Royalty Payments must be either (a) by check dated and
postmarked on or before the fifteenth (15th) day of the month or (b) by wire
transfer received by Licensor on or before the fifteenth (15th) day of the
month. In the event a Royalty Payment by check is postmarked, or if by wire
transfer is received, after the fifteenth (15th) day of any month, Licensee
shall pay Licensor a Fifty Dollar ($50.00) late fee in addition to the overdue
Royalty Payment. In the event a Royalty Payment by check is postmarked, or if by
wire transfer is received, after the fifteenth (15th) day of the second month
from the date due, Licensee shall pay Licensor an additional Fifty Dollar
($50.00) late fee and the overdue Royalty Payment plus interest on the Royalty
Payment from the date such payment was originally due (i.e., the fifteenth
(15th)) as provided in Section 6.7.
6.4 Annual Statement of Accounts. Within seventy-five (75) days after
the end of each calendar year during the Term of this Agreement, Licensee shall
prepare and deliver to Licensor a statement of accounts and financial
statements, including a statements of income, balance sheet and statement of
cash flows, certified to be true and correct by the President or Chief Financial
Officer of Licensee, showing all monthly Gross Receipts and the corresponding
monthly Royalty Payments made during such calendar year and the annual Gross
Receipts. In the event that the total of the Royalty Payments for any calendar
year is less than the actual royalty owed by Licensee for such calendar year
computed on the total amount of Gross Receipts for and during such calendar
year, then Licensee shall pay to Licensor the amount of the deficiency. However,
in the event that the total of the Royalty Payments for any calendar year is
greater than the actual royalty owed by Licensee for such calendar year,
Licensor shall either pay to Licensee within thirty (30) days after receipt of
the statements required by this Section the amount of such excess or, at
Licensor's option apply such excess to any amount then due or to become due from
Licensee to Licensor under this Agreement.
If Licensee fails to submit to Licensor the statements required by this
Section within thirty (30) days of receiving notice that they are overdue,
Licensor may have an audit conducted of the Licensed Restaurant's financial
records and accounts for the applicable period by Certified Public Accountant
selected by Licensor, at Licensor's sole expense. The fees and expenses of such
Certified Public Accountant incurred by Licensor shall be paid by Licensee to
Licensor within thirty (30) days of Licensee's receipt of a statement therefor,
in the event that such audit discloses an underpayment by Licensee of four
percent (4%) or more of the amount due.
6.5 Use of Payments. Licensor shall be entitled to deposit each monthly
Royalty Payment in its general funds account or to such other accounts as it
elects and may make use of such payments freely and without conditions for any
and all purposes and no obligation or debt of Licensor to Licensee, or
constructive trust or other legal encumbrance, shall be deemed to exist or be
imposed on or with respect to any funds paid to Licensor as royalties.
6.6 Services Provided for Royalty Payments. In consideration for the
royalty payments to be made by the Licensee to the Licensor, as set forth in
Section 6.1 above, the Licensor agrees to provide the Licensee with ongoing
operations support and consulting in order to assist Licensee in operating the
Licensed Restaurant. Such ongoing consulting services to be provided to Licensee
shall include a semi-annual operations review and report detailing operational
issues identified by Licensor and such other issues as Licensee may request. In
addition, Licensor shall provide Licensee with "trouble-shooting" services in
order to help Licensee identify and/or deal with problems which may arise in
connection with Licensee's operation of the Licensed Restaurant. Such
"trouble-shooting" services, to the extent they involve store visits in excess
of the semi-annual operations reviews shall be made at the request of licensee
and at licensees sole expenses.
6.7 Interest. Interest will be charged on the amount of any unpaid
royalty, hereunder from the date such fee was due and payable at the rate of
twelve percent (12%) per annum or the maximum rate permitted by law, whichever
is lower.
7. ACCOUNTING AND RECORDS OF OPERATIONS
7.1 Maintenance of Records. During the Term of this Agreement, Licensee
shall maintain and preserve, for at least three (3) years from the dates of
their preparation, full, complete and accurate books, records and accounts as
reasonably required by Licensor.
7.2 Tax Returns. At the time of filing any and all federal income tax
and state sales or income tax returns applicable to the Licensed Restaurants
with the appropriate taxing authority, Licensee shall submit a copy of same to
Licensor, certified by Licensee to be authorized copies of those filed with the
I.R.S. and with the applicable State Tax Commission.
7.3 Other Financial Information. Licensee shall submit to Licensor
current financial statements and such other forms, income tax returns, reports,
records, information and data as Licensor may reasonably designate, in the
format and at the times and places reasonably required by Licensor, either upon
request or as specified from time to time.
7.4 Inspection and Audit. Licensor or its designated independent
accountants shall have the right at all reasonable times to examine and copy at
Licensor's expense, all financial records and accounts relating to the Licensed
Restaurants. Licensor shall have the right, at any time, to cause an audit to be
conducted of the licensed Restaurant's financial records and accounts by an
independent Certified Public Accountant. If such audit should reveal that
Royalty Payments due Licensor have been understated by Licensee, in any report
to Licensor, then within thirty (30) days of License's receipt of the results of
such audit, Licensee shall pay Licensor the amount by which such Royalty
Payment(s) were understated plus interest from the date each such payment should
have been made. In addition, if the amounts due were under-reported by four
percent (4%) or more, then Licensor shall send to Licensee a copy of the invoice
for the cost of such audit, which Licensee agrees to pay within thirty (30) days
of receipt thereof.
8. ADVERTISING
8.1 Advertising Program. Licensor, at its option, may establish a
Public Relations and Advertising Program ("Advertising Program") at such time as
there are, in Licensor's sole judgement, a sufficient number of Restaurants in
operation. The Advertising Program shall be funded with contributions from each
licensee and Licensor operated Restaurant. All contributions to the Advertising
program shall be used solely and exclusively for national, regional or local
advertising, development of sales and advertising tools, and Public relations
for the System and related matters for the mutual benefits of Licensor and all
Licensees.
8.2 Advertising Fee. Licensee shall contribute to the Advertising
Program an amount to be determined by Licensor, not to exceed one percent (1%)
of Licensee's Gross Receipts during the preceding month. Licensee shall begin
making contributions to the Advertising Program if and when it is established by
Licensor. Licensor shall determine the amount Licensee owes for advertising
expenses from time to time in accordance with this Section, and Licensee shall
pay such amount within thirty (30) days of Licensee receipt of payment request.
8.3 Use of Photographs. Licensor shall have the right to photograph
both the interior and exterior of the Licensed Restaurant, and the various foods
served therein, and to use any such photographs in its publicity or advertising,
and Licensee shall cooperate in securing such photographs and the consent of the
persons pictured.
9. USE OF PROPRIETARY MARKS BY LICENSEE
9.1 Trademarks, Trade Names, Service Marks and Trade Secrets. Licensee
acknowledges that ownership of all rights, title and interest in and to the
System, Proprietary Marks, Trade Dress, and the Design, decor and image of the
Licensed Restaurant are and shall remain vested solely in Licensor and Licensee
disclaims any right or interest therein or the goodwill derived therefrom. In
addition, Licensee agrees as follows:
A. Licensee shall use only the Proprietary Marks and such
other Proprietary marks as are required and approved by Licensor for Licensee's
use, and shall use them only in the manner authorized, required and permitted
under this Agreement or otherwise by Licensor in writing.
B. Licensee shall use the Proprietary Marks and Trade Dress
only in connection with the operation of the Licensed Restaurant.
C. Licensee shall post a notice at the location of the
Licensed Restaurant, in the form and manner required by Licensor, indicating
that Licensee is a "Licensed Operator" of the Licensed Restaurant and that the
Proprietary Marks are used by the Licensee under license from Licensor.
D. Licensee shall not use any Proprietary Marks to secure or
incur any obligation or indebtedness.
E. Licensee shall not use the Proprietary Marks, or any part
thereof, as part of its corporate or other legal business name, without the
express written consent or Licensor.
F. Licensee shall comply with Licensor's instructions in
filing and maintaining requisite trade name or assumed name registrations, and
shall execute any documents deemed necessary by Licensor or its counsel to
obtain protection for the Proprietary Marks or to Maintain their continued
validity and enforceability.
G. If Licensee has reason to believe that an unauthorized
third party is using or infringing upon any Proprietary Xxxx, or using a trade
dress which is confusingly similar to Licensor's Trade Dress, Licensee shall
immediately notify Licensor and cooperate with Licensor in defending or settling
any litigation arising therefrom. Licensor will have sole discretion to take
such action, if any, it deems reasonably necessary or proper in the
circumstances.
9.2 Change in Proprietary Xxxx and Trade Dress. If it becomes advisable
at any time in the sole discretion of Licensor to modify or discontinue use of
any Proprietary Xxxx or Trade Dress, or to use one or more additional or
substitute names or marks, Licensee is obligated to do so and the sole
obligation of Licensor in any such event will be to reimburse Licensee for its
tangible costs resulting from such modifications or discontinuance of any
Proprietary Xxxx (such as changing signs) of complying with this obligation. Any
exceptions to this requirement must be in writing.
9.3 No Contest of Licensor's Interest. Licensee shall not contest,
directly or indirectly, Licensor's ownership, title right or interest in, or the
validity of the System or any component thereof, and agrees not to contest
Licensor's sole right to register, use or license others to use such System or
any component thereof.
9.4 Actions on Termination or Expiration. Upon the termination or
expiration of this Agreement, Licensee shall execute such documents and perform
such acts as Licensor may deem reasonably necessary or desirable to evidence (i)
Licensee's disassociation from Licensor, (ii) the fact that Licensee has ceased
using the Proprietary Marks and Trade Dress and has no further interest or right
therein whatsoever, and (iii) the fact that the obligations in Section 15.4
shall be fulfilled.
10. CONFIDENTIALITY
10.1 Confidential Information. Licensee shall not, during the Term of
this Agreement or any time thereafter, communicate to, divulge to, or use for
the benefit of any other person, persons, partnership, association, corporation
or other entity any "Confidential Information" including, without limitation,
the following:
A. Any information or know-how concerning the methods of
operation of the Licensor's restaurant business which may be communicated to
Licensee or of which Licensee may learn by virtue of Licensee's operation of the
Licensed Restaurants or relationship with Licensor under this Agreement.
B. Any information or know-how including, without limitation,
drawings, materials, equipment, specifications, techniques, recipes, customer
lists and supplier lists and other data, which Licensor designates as, or which
Licensee reasonably knows is, confidential; provided that information or
know-how which Licensee can demonstrate came to its attention prior to
disclosure thereof by Licensor, or which, after disclosure to Licensee by
Licensor, becomes a part of the Public domain through publication or
communications by others shall not be deemed to be Confidential Information.
Notwithstanding the foregoing, Licensee may disclose such Confidential
Information to its accountants and attorneys if and to the extent such
disclosure is necessary to enable such accountants and attorneys to perform
their services for and on behalf of Licensee.
10.2 Irreparable Harm. Licensee acknowledge that any failure by
Licensee or its owners, agents, employees, or affiliates, as the case may be, to
comply with the requirements of Sections 10 of this Agreement will cause
Licensor irreparable injury, and Licensee agrees to pay Licensor all costs and
reasonable attorneys' fee incurred by Licensor in obtaining specific performance
of, or any injunction or restraining order against violation of, the
requirements of such sections. Licensee shall divulge such Confidential
information only to such persons as necessary in order to operate the Licensed
Restaurant. Licensee shall obtain from such of its employees or class of
employees as Licensor may designate, as a condition of employment, executed
copies of a "Confidential Information Disclosure Agreement," in a form to be
prescribed by Licensor, requiring a similar observance and protection of the
confidentiality of such information on their part and naming Licensor as a third
party beneficiary.
11. INSURANCE
Licensee will procure and maintain in full force and effect throughout
the Term of this Agreement, an insurance policy protecting Licensee, Licensor
and its affiliates, and their respective officers, directors, partners and
employees against any loss, liability, personal injury, property damage or
expense whatsoever arising or occurring upon in connection with the operation of
the Licensed Restaurant. Licensor shall be an additional named insured on those
coverages specified in subsections (A) and (C) below. All policies required
herein shall be written by a responsible insurance company or companies
satisfactory to Licensor with an A.M. Best Company financial rating of not less
than "A-" and shall provide at least the following minimum amounts of coverage
under the following categories:
A. Comprehensive general liability insurance for property
damage and personal injury, including death, and including products liability,
with limits of One Million Dollars ($1,000,000.00) per occurrence and Two
Million Dollars ($2,000,000.00) annual aggregate;
B. Property damage insurance in the amount of at least full
replacement value insuring the Licensed Restaurant, and its equipment,
inventory, furnishings and fixtures, and any additions thereto, in accordance
with standard fire and extended coverage insurance then in effect for similar
businesses; and
C. If alcoholic beverages are ever served at the Licensed
Restaurant, liability insurance policy with minimum limits of at least One
Million Dollars ($1,000,000.00) with endorsements insuring against liability
imposed by statutes commonly known as "Dram Shop Acts," or by other laws, upon
retailers of alcoholic substances, if such coverage cannot be obtained under the
policy or policies in (A) above.
As a condition to Licensor's approval to permit Licensee to open the
Licensed Restaurant for business, certificates of insurance showing compliance
with all of the foregoing requirements shall be furnished directly by the
insurance agent of Licensee to Licensor for approval. Said certificates shall
state that the policy or policies will not be canceled or altered without at
least thirty (30) days prior notice to Licensor. Similar certificates shall be
submitted to Licensor on each policy renewal date thereafter and, upon request,
Licensee shall submit to Licensor copies of all or any policy or amendments
thereto. Maintenance of such insurance and the performance by Licensee of its
obligations under this paragraph shall not relieve Licensee of liability under
the indemnity provisions set forth in this Agreement.
12. RENEWAL OF LICENSE
12.1 Right to Renew. Unless the License has been terminated prior to
the expiration of its Initial Term, or Licensor has given Licensee notice of its
intention not to renew the License as permitted under this Section, the License
may be renewed at the option of Licensee for two (2) additional periods of five
(5) years each beyond the initial Term (the "Renewal Terms"; the Initial Term
and the Renewal Terms are collectively referred to herein as the "Term" of this
Agreement), provided that at the end of the Initial Term and the first Renewal
Term, Licensee shall have complied with the conditions set forth in Section 12.3
(hereafter the "Conditions of Renewal"). If renewed, the first Renewal Term will
commence on the day immediately following the last day of the Initial Term and
if further renewed, the second Renewal Term will commence on the day immediately
following the last day of the first Renewal Term.
12.2 Notice of Renewal/Non-Renewal. Licensor shall give notice to
Licensee, not less than one hundred eighty (180) days prior to the scheduled
expiration of the Initial Term or the first Renewal Term, as the case may be, of
either (a) its intention not to renew (or further renew) the License and of at
least one "adequate reason", as hereafter defined, for such refusal to renew, or
(b) its acknowledgment that Licensee is entitled to renew (or further renew)
this License at Licensee's option subject to Licensee's compliance with the
Conditions of Renewal in Section 12.3. Upon the expiration of the Initial Term
or the first Renewal Term, if this Agreement is not renewed (or further
renewed), and upon the expiration of the first Renewal Term or the second
Renewal Term, if this Agreement is renewed, Licensee shall comply with the
obligations in Section 15.4.
"Adequate Reason" to refuse to renew shall mean any unremedied and
existing default by Licensee under this Agreement or any other agreement between
Licensee and Licensor relating to the Licensed Restaurant, including without
limitation, any course of conduct by Licensee during the Initial Term or the
first Renewal Term which constituted a default and would have entitled Licensor
to then terminate this Agreement after notice and the expiration of any
applicable cure period, even though Licensor's right to terminate this Agreement
was not exercised.
12.3 Conditions of Renewal. Unless each of the following Conditions of
Renewal is satisfied at the end of the Initial Term and the first Renewal Term,
Licensee shall have no right to renew (or further renew) this Agreement:
A. Licensee must have given Licensor notice of its election to
renew not less than sixty (60) or more than one hundred eighty (180) days prior
to the scheduled expiration date of the Initial Term or the first Renewal Term,
as the case may be. If Licensee shall fail to timely submit such notice of its
intention to renew, Licensee shall be deemed to have elected not to renew this
Agreement, and it shall expire at the end of the Initial Term or the first
Renewal Term, as the case may be.
B. At the time Licensee elects to renew and at the time of
renewal, Licensee must not be in default under this Agreement or any other
agreement between Licensee and Licensor relating to the Licensed Restaurant.
C. Licensee must have replaced such equipment, furnishings,
decor and signs which are not in good working order or which are obsolete or
otherwise not in conformity with Licensor's then current standards and decorates
or remodels the building and the site to conform to Licensor's then-current
standards.
D. Licensee must have presented evidence satisfactory to
Licensor that Licensee has the right to remain in possession of the
Licensed Restaurant for each of the Renewal Terms, or Licensee must
have commenced business operations with respect to the Licensed
Restaurant.
E. Licensee must have executed a general release, in a form
prescribed by Licensor, of any and all claims against Licensor and its
affiliates and its or their respective officers, directors, shareholders, agents
and employees, in their corporate and individual capacities, including, without
limitation, claims under federal, state and local laws, rules and ordinances
arising from the negotiation, execution or performance of this Agreement, except
for such claims as are expressly identified and reserved by Licensee in a notice
submitted to Licensor simultaneously with Licensee's notice of its election to
renew or within ten (10) days after the claims arises, if that is later. Such
notice shall specify in detail the nature of such claims and the nature and
amount of any relief or damages demanded, or to be demanded, of Licensor.
F. Licensee must have undertaken and satisfactorily
accomplished any reasonable remedial actions and curative measures recommended
by Licensor during the Initial Term and the first Renewal Term to correct
deficiencies in Licensee's sales marketing and operational procedures.
Licensor may refuse to renew or extend this Agreement, even after
giving Licensee notice of Licensee's right to renew under Section 12.2, if any
one of the above Conditions of Renewal is not met at the expiration of the
Initial Term or the first Renewal Term.
13. TRANSFERABILITY OF INTEREST
13.1 Transfer by Licensor. Licensor shall have the right to transfer
all or any part of its rights or obligations herein to any person or legal
entity. Such transfer shall be effected so as to recognize the pre-existing
rights of Licensee under this Agreement.
13.2 Transfer by Licensee. Licensee shall have the right to transfer
all or any part of its rights or obligations herein to any person or legal
entity only with the express written consent of Licensor, which consent shall
not be unreasonably withheld. Any such transfer shall be effected so as to
recognize the pre-existing rights of Licensee under this Agreement.
13.3 Definition of Transfer. For the purposes of this Agreement, the
term "transfer" shall include, but not be limited to, any sale, conveyance,
assignment, disposition, donation, pledge or act of encumbrance, or any transfer
by devise, inheritance or by operation of law or otherwise, whether voluntarily
or involuntarily, including without limitation, any merger, consolidation,
business combination, transaction, joint venture or partnership whereby any
person or persons acquires directly or indirectly license rights granted by
Licensor herein or in any license agreement of Licensee
13.4 Non-Waiver of Claims. Licensor's consent to a transfer of any
interest in the License granted herein shall not constitute a waiver of
Licensor's right to demand compliance by the transferee with any of the
provisions of this Agreement.
13.5 Sublicensing. Notwithstanding anything in this Agreement to the
contrary, Licensee may not, act as a sub-licensor with respect to the rights
granted in this Agreement. Licensor will allow or permit Licensee to subdivide
his interests in this License Agreement or allow other persons or entities to
share the economic benefits and/or risks of owning the License, even though this
Agreement or any License granted hereunder is not formally assigned or
transferred and remains with Licensee. An example would be Licensee hereunder
forming a separate limited partnership for a Licensed Restaurant and serving as
the general partner of such limited partnership.
14. DEFAULT
Licensee shall be deemed to be in default of this Agreement and to have
materially breached this Agreement upon the occurrence of any of the following:
A. If (i) Licensee is adjudicated bankrupt or insolvent or
shall make a general assignment for the benefit of creditors, (ii) a petition in
bankruptcy is filed by Licensee, or such a petition is filed against Licensee
and is not successfully opposed by Licensee, (iii) a xxxx in equity or other
proceeding for the appointment of a receiver of Licensee or other custodian for
Licensee's business or assets is filed and is not successfully opposed by
Licensee, or (iv) Licensee is unable to pay its debts and obligations as they
become due;
B. Licensee abandons the License by failing to operate the
Licensed Restaurant for five (5) consecutive days during which Licensee is
required to operate the Licensed Restaurant under the terms of this Agreement or
any shorter period after which it is not unreasonable under the facts and
circumstances for Licensor to conclude that Licensee does not intend to continue
to operate the Licensed Restaurant, unless such failure to operate is due to
fire, flood, earthquake or similar cause beyond Licensee's control;
C. Licensee makes any material misrepresentations relating to
the acquisition of the license or Licensee engages in conduct which reflects
materially and unfavorably upon the operation and reputation of the Licensed
Restaurant or System;
D. Licensee fails, for a period of ten (10) days after
notification of noncompliance, to comply with any federal, state or local law or
regulation applicable to the operation of the Licensed Restaurant;
E. Licensee, after curing any default for which Licensee was
given notice pursuant to Section 15.3, engages in the same noncompliance whether
or not such noncompliance is corrected after notice;
F. Licensee repeatedly fails to comply with one or more
requirements of the License, whether or not corrected after notice;
G. The Licensed Restaurant is seized, taken over or foreclosed
by a government official in the exercise of his duties, or seized, taken over,
or foreclosed by a creditor, lienholder or lessor, or a final judgement against
Licensee remains unsatisfied for thirty (30) days (unless a supersedeas or other
appeal bond has been filed); or a levy of execution has been made upon the
License or upon any property used in the licensed Restaurant, and it is not
discharged within thirty (30) days of such levy;
H. Licensee is convicted of or pleads nolo contendere to a
felony charge or any other criminal misconduct which is relevant to the
operation of the Licensed Restaurant;
I. Licensee fails to pay any license fees or other amounts due
Licensor or its affiliates within thirty (30) days after receiving written
notice that such fees are overdue;
J. Licensor makes a reasonable determination that continued
operation of the Licensed Restaurant by Licensee will result in imminent danger
to public health or safety;
K. Except as expressly permitted by this Agreement, Licensee
discloses or divulges any portion of the contents of the Confidential
Information;
L. Licensee, directly or indirectly, commences any business
operation, or markets any product or services, under any other name or xxxx or
employs trade dress which, in Licensor's sole opinion, is confusingly similar to
the Proprietary Marks or Trade Dress described herein;
M. Licensee fails or refuses to submit any report or document
required herein by the date it is due, or to obtain Licensor's prior written
approval or consent as required by this Agreement;
N. Licensee fails to comply with any other material provisions
of this Agreement or other agreements between Licensor and Licensee relating to
the Licensed Restaurant.
15. TERMINATION
15.1 Termination by Licensee. In general, Licensee has no right to
terminate this Agreement, except such rights as it may have under common law by
reason of a material breach of Licensor's obligations hereunder. As a condition
precedent to such right of termination, Licensee shall give Licensor thirty (30)
days notice of the alleged default and opportunity to cure. If Licensor has not
cured any such default within thirty (30) days of receiving notice of such
default, then Licensee shall send a notice of termination to Licensor and this
Agreement and the License granted hereunder will terminate thirty (30) days
after Licensor receives such termination letter. In the event Licensee
terminates this Agreement, all of the obligations upon termination in Section
15.3 and 15.4 shall apply.
Licensee acknowledges that any attempted termination by Licensee other
than for a material breach by Licensor shall be deemed a default by Licensee.
15.2 Termination by Licensor After Notice. Upon the occurrence of any
default described under subsection 14 of this Agreement, Licensor may, at its
option, terminate Licensee's rights under this Agreement if such default shall
not have been remedied to Licensor's satisfaction within thirty (30) days after
written notice thereof has been given Licensee or such reasonably shorter period
as is specified in such notice if such shorter period affords Licensee a
reasonable opportunity to cure the default given the nature thereof; provided
that such termination will not in any event be effective until the end of such
longer period as may be specified in the notice or required by applicable
governmental law or regulation. All of the obligations upon termination in
Section 15.3 and 15.4 shall apply upon such termination.
15.3 Licensor's Obligations Upon Termination or Expiration. Upon the
termination or expiration of Licensee's rights under this Agreement, the
obligations of Licensor to Licensee under this Agreement shall terminate, except
where it is specifically provided herein that any obligation of Licensor will
survive such termination or expiration.
15.4 Licensee's Obligations Upon Termination or Expiration. Upon
termination or expiration of the rights granted hereunder to Licensee (whether
by Licensor or Licensee), Licensee shall comply with each of the following
provisions:
A. Cease Operations. Licensee shall immediately cease
operating the Licensed Restaurant, and shall not thereafter, directly or
indirectly, represent itself to the public or hold itself out as a licensee of
Licensor.
B. Cease Use of System, Etc. Licensee shall immediately and
permanently cease to use, in any manner whatsoever (i) any Confidential
Information, (ii) any methods, procedures and techniques associated with the
System, (iii) Licensor's trade name, the Proprietary Marks, distinctive forms,
slogans, signs, symbols or logos or devices associated with the System, and (iv)
any Trade Dress feature which could reasonably be expected to cause the public
to believe that Licensee is doing business at or with a restaurant which is
owned, operated or licensed by Licensor.
C. Other Businesses. Licensee shall not, in the operation of
any other business, use any reproduction, counterfeit, copy or colorable
imitation of the Proprietary Marks or Trade Dress, either in connection with
such other business or the promotion thereof which infringes upon Licensor's
rights in and to the Proprietary Marks or Trade Dress, and shall not utilize any
designation of origin or description or representation which falsely suggest or
represents an association or connection with Licensor.
D. Changes Upon Termination or Expiration. Licensee shall make
such modifications or alterations to the Licensed Restaurant upon termination or
expiration of its rights under this Agreement as may be necessary to prevent the
operation of any business thereon by itself or others in derogation of this
Section.
E. Payment of Indebtedness. Licensee shall promptly pay all
sums owing to Licensor. In the event of termination for any default of Licensee,
such sums shall include reasonable expenses incurred by Licensor as a result of
the default.
F. Return of Confidential Information. Licensee shall
immediately turn over to Licensor all copies of Confidential Information and
other materials in Licensee's possession bearing the Proprietary Marks and all
copies thereof (all of which are acknowledged to be Licensor's property) and
shall retain no copy or record of the foregoing, except only Licensee's copy of
this Agreement and of any correspondence between the parties, and any other
documents which Licensee reasonably needs for compliance with any provision of
law. Licensee shall additionally turn over to Licensor a copy of all records,
files, correspondence, receipts and other materials relating to the operation of
the Licensed Restaurant in the Licensee's possession.
G. Telephone Number. Licensee shall assign to Licensor or its
designee all of Licensee's right, title and interest in and to Licensee's
telephone numbers relating to the Licensed Restaurant.
H. Continued Compliance. Licensee shall continue to comply
with all provisions of this Agreement which by their terms are intended to
survive the termination or expiration of Licensee's rights hereunder, including,
without limitation, the confidentiality restrictions contained in Section 10.
16. TAXES, PERMITS AND INDEBTEDNESS
16.1 Payment. Licensee shall promptly pay when due all taxes levied or
assessed, including, without limitation, unemployment and sales taxes, and all
accounts and other indebtedness of every kind incurred by Licensee in conducting
the business of the Licensed Restaurant.
16.2 Dispute as to Tax. In the event of any bona fide dispute as to
liability for taxes assessed or other indebtedness, Licensee may contest the
validity or the amount of the tax or indebtedness in accordance with procedures
of the taxing authority or applicable law; however, in no event shall Licensee
permit a tax sale, or seizure by levy or execution, or similar writ or warrant,
or attachment by a taxing authority or a creditor, to occur against the Licensed
Restaurant, or any material portion of the equipment, supplies or inventory of
the Licensed Restaurant.
16.3 Compliance With Laws. Licensee shall, at Licensee's expense,
comply with all federal, state and local laws, rules and regulations, and shall
timely obtain, and shall keep in force as required throughout the Term of this
Agreement all permits and certificates necessary for the full and proper conduct
of the Licensed Restaurant, including, without limitation, any building and
other required construction permits, assumed name registrations, liquor
licenses, sales tax permits, health and sanitation permits and ratings, and fire
clearance.
16.4 Notice of Action. Licensee shall notify Licensor in writing within
ten (10) days of the commencement of any action, suit or proceeding, and of the
issuance of an order, writ, injunction, award or decree of any court, agency or
other governmental instrumentality, which may adversely affect the operation or
financial condition of the Licensed Restaurant.
17. INDEPENDENT CONTRACTOR AND INDEMNIFICATION
17.1 Independent Contractor. This Agreement does not create a fiduciary
relationship between the parties hereto, and Licensee shall be deemed to be an
independent contractor of Licensor. Nothing in this Agreement is intended to
constitute either party as an agent, legal representative, subsidiary, joint
venturer, partner, employee or servant of the other for any purpose whatsoever.
17.2 Representation of Status. In all public records, in Licensee's
relationship with other persons, and on stationary, business forms and checks,
Licensee shall indicate Licensee's independent ownership of the Licensed
Restaurant and status as a licensee of Licensor. Licensee shall exhibit on the
premise, in such place as Licensor may designate, a notification that the
Licensed Restaurant is operated by an independent operator and not by Licensor.
17.3 Authority and Indemnity. Nothing in this Agreement authorizes
Licensee to make any contract, agreement, warranty or representation on
Licensor's behalf, or to incur any debt or other obligation in Licensor's name,
and Licensor shall in no event assume liability for, or be deemed liable
hereunder as a result of any such action, or by reason of any act or omission of
Licensee in its conduct of the business of the Licensed Restaurant or any claim
or judgment arising therefrom.
18. APPROVALS AND WAIVERS
18.1 Written Request. Whenever this Agreement requires the prior
approval or consent of Licensor, Licensee shall make a written request to
Licensor therefor, and such approval or consent shall be obtained in writing,
and shall not be unreasonably withheld by Licensor.
18.2 Lack of Warranties and Liabilities. Licensor makes no warranties
or guaranties upon which Licensee may rely, and assumes no liability or
obligation to Licensee, by providing any waiver, approval, consent or suggestion
to Licensee in connection with this Agreement, or by reason of any neglect,
delay or denial of any request therefor.
18.3 No Assumption of Liability. Licensor shall not, by virtue of any
approvals, advice or services provided to Licensee, assume responsibility or
liability to Licensee or to any third parties to which Licensor would not
otherwise be subject.
19. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given on the earlier of actual receipt whether
by personal delivery, messenger, courier, telecopy, telex or similar form of
rapid transmission or ten (10) days after being mailed if mailed by certified
mail, return receipt requested, postage prepaid, to the addresses set forth
below or to such other addresses of which a party has given the other party
written notice.
(a) If to Licensor:
Atomic Burrito, Inc.
0000 X.X. Xxxxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
(b) If to Licensee:
20. ENTIRE AGREEMENT
This Agreement and the agreements referenced herein constitute the
complete understanding and agreement between Licensor and Licensee concerning
the subject matter hereof. Except as referenced herein, there are no other oral
or written understandings or agreements between Licensor and Licensee or any
affiliates of either relating to the subject matter of this Agreement, and all
prior and contemporaneous agreements, understandings, conditions, warranties,
negotiations, conversations, and representations of each of the parties and
their representatives concerning the subject matter hereof are hereby superseded
and merged herein. No statement, representation or other act, event or
communication, except as referenced or set forth herein, is binding on Licensor
in connection with the subject matter of this Agreement or the grant of the
License. This Agreement may only be amended by a written document duly executed
by both parties.
21. MISCELLANEOUS
21.1 Rights of Parties. This Agreement is binding upon the parties
hereto and their respective executors, administrators, heirs, and their
permitted assigns and successors in interest. Nothing in this Agreement is
intended or shall be deemed to confer upon any person or legal entity other than
Licensor and Licensee, and such of their respective successors and assigns as
may be permitted hereunder, any rights or remedies under or by reason of this
Agreement.
21.2 Captions. All captions in this Agreement are intended solely for
the convenience of the parties, and none shall be deemed to affect the meaning
or construction of any provisions hereof.
21.3 Gender. All references herein to the masculine, neuter or singular
shall be construed to include the masculine, feminine, neuter or plural, where
applicable.
21.4 Counterparts. This Agreement may be executed in two or more
counterparts, and each copy so executed shall be deemed an original.
21.5 Effect of Termination. Licensee's obligations to Licensor
contained in this Agreement shall not be affected by termination, cancellation
or expiration of this Agreement.
22. ENFORCEMENT
22.1 Governing Law. This Agreement shall be governed by and interpreted
and constructed under the substantive laws of the State of Oklahoma. In the
event of any conflict of law, the laws of Oklahoma shall prevail, without regard
to the application of the conflict of law rules of the State of Oklahoma.
- 00 -
00.0 Xxxxxx xx Xxxx, Xxxxx of Punitive and Consequential Damages, Time
Limitation for Actions. Both Licensor and Licensee agree that neither shall be
entitled to nor shall either demand a jury trial in the event of litigation
between Licensor and Licensee. Except as specifically provided in this
agreement, neither Licensor nor Licensee is entitled to any compensation or
reimbursement for loss of prospective profits, anticipated sales or
consequential damages occasioned by the breach, cancellation or termination of
this Agreement. Both Licensor and Licensee specifically agree that neither shall
be liable to the other for punitive, exemplary or enhance damages of any nature
for any breach, cancellation or termination of this Agreement or the negotiation
hereof or the relationship and dealings between the parties in any way relating
to this Agreement. Any and all claims and actions arising out of or relating to
this Agreement, the relationship of Licensee and Licensor, Licensor's management
of the system, or Licensee's development and operation of any Licensed
Restaurant, brought by any party hereto against the other, shall be commenced
one (1) year from the occurrence of the facts giving rise to such claim or
action. Licensee agrees that any action against Licensor hereunder shall be
brought on an individual basis and not consolidated on a class-wide or other
basis unless Licensor consents thereto.
22.3 Jurisdiction and Venue. Licensor and Licensee acknowledge that
Licensor is a Oklahoma Corporation, this Agreement was offered from Oklahoma
County, Oklahoma, this Agreement was negotiated, in whole or in part, in
Oklahoma County, Oklahoma, the principal place of business and corporate
headquarters of Licensor are in Oklahoma County, Oklahoma, and that Licensee has
and will continue to develop a substantial and continuing relationship with the
Licensor at its principal offices in Oklahoma County, Oklahoma, where the
Licensor's decision-making authority is vested. Accordingly, Licensee and
Licensor agree that any legal action arising out of or relating to this
agreement shall be instituted and maintained in any state or federal court in
Oklahoma. Licensee irrevocably submits to the jurisdiction of such courts and
waives any objection it may have to either the jurisdiction or venue of such
courts.
22.4 Severability and Substitution of Valid Provisions.
A. Except as expressly provided to the contrary herein, each
section, paragraph, term and provision of this Agreement, and any portion
thereof, shall be considered severable and if, for any reason, any such portion
of this Agreement is held to be invalid, contrary to, or in conflict with any
applicable present or future law or regulation in a final, unappealable ruling
issued by any court, agency or tribunal with competent jurisdiction in a
proceeding to which Licensor is a party, that ruling shall not impair the
operation of, or have any other effect upon, such other portions of this
Agreement as may remain otherwise intelligible which shall continue to be given
full force and effect and bind the parties hereto, although any portion held to
be invalid shall be deemed not to be a part of this Agreement from the date the
time for appeal expires, if Licensee is a party thereto, otherwise upon
Licensee's receipt of a notice of non-enforcement thereof from Licensor.
B. Licensor and Licensee agree that if any provision of this
Agreement may be construed in two ways, one of which would render the provision
illegal or otherwise voidable or enforceable and the other of which would render
the provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable. The language of each provision of this
Agreement shall be construed according to its fair meaning and not strictly
against Licensor or Licensee.
22.5 Mediation. It is the intention of the parties to attempt to
resolve all disputes arising under or in connection with this Agreement in a
commercially reasonable manner so as to maintain a commercial relationship, if
possible. In the event of any litigation between Licensor and Licensee, either
party may, at its option, provide notice to the other that it desires attempted
mediation of the dispute between the parties. Such notice shall be in writing
and shall be sufficiently in advance of any trial on the merits to avoid delay.
Each party shall present written briefs, oral arguments, evidence and testimony
at the mediation proceeding which shall be conducted as a mini-trial type
proceeding involving a senior representative of each party having full
settlement authority and a mutually agreed upon mediator, or one selected by the
American Arbitration Association. The mediator shall be a licensed attorney with
experience as a court-appointed mediator. Prior to any mediation, each party
shall have had the opportunity to undertake reasonable discovery. In the event
settlement is not reached during mediation, the mediator shall promptly prepare
a written report detailing his proposed resolution of the matter including
factual findings and legal conclusion. The mediation proceedings shall be
non-binding upon the parties and the decision and/or report of the mediator
shall be confidential and the parties shall enter into a confidentiality
agreement for all aspects of the mediation effort. In the event of mediation,
the parties agree that no written or oral statements or legal positions or any
evidence presented at or in connection with the mediation or any aspect of the
mediation proceedings whatsoever may be used in any legal proceeding. All fees
and expenses of the mediator shall be split between the parties. Any mediation
proceeding shall be conducted in Oklahoma City, Oklahoma. In no event shall
mediation delay or impair the right of specific performance set forth in this
Section. Any party who refuses to be subject to mediation, or who does not
undertake good faith mediation efforts (as determined by the mediator in
writing), shall be responsible for the costs and expenses of the other party,
including attorney's fees, which are in any way connected with the mediation
effort, including reasonable discovery expenses incurred prior thereto. For
purposes of awarding costs and expenses pursuant to the foregoing sentence, a
court of competent jurisdiction may consider the written report of the mediator
which addresses that issue (which shall be separate from the report containing
the mediator's proposed resolution of the matter, factual findings and legal
conclusions). Any court of competent jurisdiction as determined in accordance
with Section 22.3 shall have the power to order the parties to mediation.
22.6 Rights of Parties are Cumulative. The rights of Licensor and
Licensee hereunder are cumulative and no exercise or enforcement by the Licensor
or Licensee of any right or remedy hereunder shall preclude the exercise or
enforcement by Licensor or Licensee of any other rights or remedy hereunder or
which Licensor or Licensee is entitled by law to enforce.
23. ACKNOWLEDGMENTS
23.1 Licensee's Time to Review. Licensee acknowledges that it has
received, read and understood this Agreement and has been accorded ample time
and opportunity to consult with advisors, including legal counsel, of its own
choosing, about the potential benefits and risks of entering into this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement of the day and year first above written.
LICENSOR:
Atomic Burrito, Inc.
By: ______________________________
Name: ______________________________
Title: ______________________________
LICENSEE:
By: ________________________________
Name: ________________________________
Title: ________________________________
