EXHIBIT 10.37
BEVERAGE MARKETING AGREEMENT
SYBRA, INC.
SCOPE OF MARKETING AGREEMENT
The parties to the Marketing Agreement (the "Agreement") are SYBRA, Inc. ("SI")
and Coca-Cola North America Fountain ("CCF"). The Agreement will apply to all
Arby's outlets owned or operated by SI or any of its subsidiaries, including any
Arby's outlets that are opened after the Agreement is signed. The Agreement will
also apply to acquired Arby's outlets (including outlets owned or operated by an
acquired business), unless those outlets are already governed by an agreement
with CCF and that agreement is validly assigned to SI as part of the
acquisition. However, nothing in this Agreement shall be construed to require SI
to breach a pre-existing contract with another Fountain Beverage manufacturer or
supplier that is binding on and enforceable against the acquired company or
outlet. This Agreement does, however, obligate SI to serve CCF's Fountain
Beverages in the acquired outlets in accordance with the Beverage Availability
section of this Agreement upon the expiration of the pre-existing contract. The
Agreement will not apply to any outlets outside the fifty United States. All
outlets to which the Agreement applies are referred to as "Covered Outlets."
When signed by the parties, this Agreement will supersede all prior agreements
between the parties regarding the subject matter of this Agreement, including
specifically the Term Sheet dated December 30, 1997.
TERM
The Agreement will go into effect as of January 1, 2001 and will continue for a
period of ten (10) years or until the Covered Outlets have purchased the Volume
Commitment of CCF's Fountain Syrups, whichever occurs last. When used in the
Agreement, the term "Year" means each calendar year during the Term, beginning
with the first day of the Term.
BEVERAGE AVAILABILITY
The term "Beverage" means all soft drinks and other non-alcoholic, non-dairy
beverages, including waters, sports drinks, frozen beverages, juices,
juice-containing drinks, punches, ades, bar mixers and iced teas, whether
carbonated or non-carbonated. "Fountain Beverages" are those Beverages that are
dispensed from post-mix, pre-mix or frozen beverage dispensers, bubblers, or
similar equipment. Coffee or tea that is fresh-brewed on the premises is not
considered a Fountain Beverage. The term "Fountain Syrup" means the post-mix
syrup used to prepare Fountain Beverages, but does not include other forms of
concentrate, BreakMate(R) syrup, or syrup for frozen Beverages that is purchased
from a full service supplier of frozen Beverages to which CCF provides
promotional funding.
SI will serve in each Covered Outlet a core brand set of Fountain Beverages that
consists of Coca-Cola(R) classic, diet Coke(R) and Sprite(R), and the remaining
products will be jointly selected by SI and CCF. All Fountain Beverages served
in the Covered Outlets will be CCF's brands. However, SI may serve ▇▇ ▇▇▇▇▇▇
and/or Diet ▇▇ ▇▇▇▇▇▇ on one valve per dispenser in the Covered Outlets located
in Texas. SI agrees that if any Covered Outlet that is permitted to sell ▇▇
▇▇▇▇▇▇ is serving Diet ▇▇ ▇▇▇▇▇▇ on a separate valve, SI will immediately either
(i) remove Diet ▇▇ ▇▇▇▇▇▇ from the outlet; or (ii) place Diet ▇▇ ▇▇▇▇▇▇ on the
same valve that dispenses ▇▇ ▇▇▇▇▇▇.
SI further recognizes that the sale of competitive Beverages in bottles,
cans, or other packaging would diminish the product availability rights given
to CCF, and therefore also agrees not to serve competitive Beverages in
bottles, cans or other packaging in the Covered Outlets.
VOLUME COMMITMENT
SI agrees that the Covered Outlets will purchase 8,147,100 gallons of CCF's
Fountain Syrup during the Term. This Term Volume Commitment will be increased by
CCF if SI acquires additional outlets to which the Agreement will apply. In such
case, the Volume Commitment will be increased to reflect the projected volume of
the additional Covered Outlets during the remainder of the Term.
Projected annual volume is currently as follows:
Year One: 579,800 Year Six: 821,600
Year Two: 626,600 Year Seven: 880,100
Year Three: 673,400 Year Eight: 949,000
Year Four: 720,200 Year Nine: 1,024,400
Year Five: 769,600 Year Ten: 1,102,400
MARKETING PROGRAM
The following marketing programs will be provided to assist SI in maximizing the
sale of Fountain Beverages in the Covered Outlets:
MARKETING FUNDS. The amount of available funding is calculated at the rate
set forth in Exhibit "A" hereto for each gallon of CCF's Fountain Syrup
the Covered Outlets purchase. To qualify for funding, each Covered Outlet
must comply with all the following performance criteria throughout the
Term:
1. Develop and execute each Year a 52 week Fountain Beverage marketing
calendar; and
2. Feature approved renditions of CCF's trademarks and logos on all
indoor and drive-thru menuboards in all Covered Outlets,
including a mutually agreed upon CCF Fountain Beverage translites
on all menuboards; and
3. Display approved renditions of CCF's trademarks and logos on all
dispensing valves of all Fountain Beverage dispensing equipment;
and
4. Maintain a combo meal program featuring CCF's Fountain Beverages;
and
5. Perform those additional Fountain Beverage marketing activities
the parties mutually agree upon.
STORE OPERATING FUND. Funding is earned at the rate set forth in Exhibit
"A" hereto for each gallon of CCF's Fountain Syrups that the Covered
Outlets purchase. To qualify for this fund SI must fulfill the following
performance criteria:
1. Test and implement new CCF products that are mutually agreed upon in
the Covered Outlets; and
2. Test and implement new, mutually agreed upon merchandising and
promotions featuring CCF's Fountain Beverages in all Covered
Outlets; and
3. Implement and maintain a CCF refreshment center as mutually agreed
upon by the parties.
BUSINESS DEVELOPMENT FUND. Funding is earned at the rate set forth in
Exhibit "A" hereto for each gallon of CCF's Fountain Syrups that the
Covered Outlets purchase. To qualify for this fund SI must fulfill the
following performance criteria in each Covered Outlet:
1. Expand CCF's frozen Beverages to those Covered Outlets as
appropriate based upon mutually agreed upon sales and volume
criteria; and
2. Execute annually a minimum of two promotional programs
featuring CCF's Fountain Beverages; and
3. Conduct a test of a 20 oz., 32 oz. and 44 oz. cup set; and
4. Perform those additional Fountain Beverage promotional
activities that the parties mutually agree upon.
QUALITY DRINK FUND. Funding is earned at the rate set forth in Exhibit "A"
hereto for each gallon of CCF's Fountain Syrups that the Covered Outlets
purchase. To qualify for this fund SI must implement a mutually agreeable
quality assurance program to ensure that a high quality Fountain Beverage
is dispensed in the Covered Outlets. The details of such a program will be
mutually agreed upon by the parties, but will include, at a minimum,
adherence to CCF's recommended specifications, including a water to syrup
ratio of 4.75:1 for sugar and allied products, and a water to syrup ratio
of 5.25:1 for diet products and Mr. PiBB, when dispensed, to allow for
dilution caused by melting ice. In addition, SI must purchase for all
Covered Outlets opened during the Term CCF-approved Fountain Beverage
dispensers to ensure that CCF's quality standards are met.
NATIONAL BEVERAGE COUNCIL FUNDS. Funding is earned at the rate set forth
in Exhibit "A" hereto for each gallon of CCF's Fountain Syrups that the
Covered Outlets purchase. Funding will be retained and managed by CCF to
implement business-building initiatives as mutually agreed upon between
CCF and the Arby's National Beverage Council, and invested in Fountain
Beverage programs to be executed in the Covered Outlets.
Payment terms of the Marketing Funds, Store Operating Funds, Business
Development Funds and Quality Drink Funds are set forth in Exhibit "A" hereto.
MR. PiBB MARKET TEST
Beginning January 1, 2003, SI agrees to conduct with CCF a three to six month,
five to ten outlet, test of Mr. PiBB, or another CCF spicy cherry product, in
those Covered Outlets located in Texas currently serving ▇▇. ▇▇▇▇▇▇. If the test
is successful, based upon mutually agreed upon test criteria, SI agrees to
replace ▇▇. ▇▇▇▇▇▇ with Mr. PiBB in all Covered Outlets that currently serve ▇▇.
▇▇▇▇▇▇. SI agrees not to enter into any inconsistent agreement with ▇▇. ▇▇▇▇▇▇
during the duration of the test, or after the test if the test is successful.
EQUIPMENT PROGRAM
CCF will continue to provide for SI's use without charge during the Term the
dispensing equipment used to dispense Nestea(R) Premium owned by CCF that is
currently installed in the Covered Outlets. The equipment provided by CCF will
at all times remain the property of CCF and is subject to the terms and
conditions of CCF's standard lease agreement, but no lease payment will be
charged. The standard lease terms are attached as Exhibit "B" and are a part of
this Agreement, except as specifically changed by this Agreement.
SI acknowledges that under the prior agreement between the parties, CCF withheld
funding from SI to pay on SI's behalf the payments due under SI's Promissory
Note with Coca-Cola Financial Corporation ("CCFC"), dated September 17, 1999 and
used to finance the purchase of frozen Beverage dispensing equipment for the
Covered Outlets. SI agrees that immediately upon signing this Agreement, it will
become solely responsible for making timely payments to CCFC under the
Promissory Note, and CCF will no longer have any obligation to pay these funds
on SI's behalf through a deduction in funding earned under this Agreement.
SI is responsible for purchasing all other dispensing equipment for all Covered
Outlets, and agrees to purchase only equipment authorized by CCF. SI may elect
to purchase equipment through CCF, subject to CCF's standard procedures. SI may
also elect to lease additional equipment from CCF. All such equipment will be
leased to SI at an annual lease rate calculated by multiplying the total
installed cost of equipment by the then-current lease factor. The lease factor
currently in effect for new equipment is .24. Should the standard lease factor
change during the Term, any equipment installed after the change goes into
effect will be subject to the new lease factor. Lease charges will be invoiced
on a semi-annual basis. The lease of equipment is subject to the terms and
conditions of CCF's standard lease agreement (Exhibit "B" hereto) except as
specifically changed by this Agreement.
SERVICE PROGRAM
SI may use CCF's Service Network for service to its post-mix dispensing
equipment and will be charged for labor (including travel time) and materials at
CCF's cost.
FAIR SHARE
If service is provided to an outlet that serves a competitive Fountain Beverage,
an annual Fair Share service charge of Twenty-Five Dollars ($25.00) per outlet
will be incurred. Fair share charges will be invoiced annually.
PRIOR AGREEMENT
SEE EXHIBIT "C" HERETO.
TERMINATION
Once the Agreement is signed by both parties, it may be terminated before the
scheduled expiration date only in the following circumstances:
(i) Either party may terminate the Agreement if the other party fails to
comply with a material term or condition of the Agreement and does not
remedy the failure within ninety (90) days after receiving written notice
(the "Cure Period"). Termination will be effective thirty (30) days after
the end of the Cure Period.
(ii) Either party may terminate the Agreement without cause after giving twelve
months' prior written notice.
(iii) CCF may terminate the Agreement if there is a transfer or closing of
substantially all of the Covered Outlets or a transfer of a substantially
all of the stock of SI.
Upon expiration or termination, SI must return any dispensing equipment owned by
CCF and, unless the Agreement is terminated by CCF without cause, SI will pay
the following damages at the time of termination:
o All unearned prepaid funding, including specifically a refund of all
unearned, advanced Marketing Funds, Business Development Funds,
Store Operating Funds and Quality Drink Funds.
o The unamortized portion of the cost of installation, and the entire
cost of remanufacturing and removal of all equipment owned by CCF.
o Interest on the damages due to CCF at the rate of one percent per
month, accrued from the date the unearned funds were paid or costs
were incurred.
This does not restrict the right of either party to pursue other remedies or
damages if the other party breaches the terms of the Agreement.
DISPUTE RESOLUTION
Should there be a dispute between CCF and SI relating in any way to the
Agreement or the breach of the Agreement, the parties agree that they will make
a good faith effort to settle the dispute in an amicable manner. If the parties
are unable to settle the dispute through direct discussions, they will attempt
to settle the dispute by mediation administered by the American Arbitration
Association (the "AAA"), and if that procedure is unsuccessful, the dispute will
be resolved by binding arbitration administered by AAA in accordance with its
Commercial Arbitration Rules. A judgment on the award of the arbitrator(s) may
be entered in any court with jurisdiction.
TRANSFER AND ASSIGNMENT
SI agrees that it will sell neither the substantially all of the stock nor
substantially all of the assets of SI without first obtaining CCF's written
consent. CCF's consent will not be unreasonably withheld, provided that SI
causes the acquiring party to assume this Agreement on terms acceptable to CCF,
in CCF's reasonable discretion.
If there is a transfer of substantially all of the Covered Outlets, or a
transfer of substantially all of the stock of SI and CCF does not elect to
terminate this Agreement under the "Termination" section above, SI will cause
the acquiring, surviving or newly-created business to assume all of SI's
obligations under this agreement with respect to the acquired Covered Outlets.
If, within two (2) years of the effective date of this Agreement, SI sells or
transfers (either in a single transaction or through a series of related
transactions) more than fifty (50) Covered Outlets which were Covered Outlets as
of the effective date of this Agreement, and if the acquiror of those Covered
Outlets does not agree to assume all of SI's obligations under this agreement
with respect to those Covered Outlets, then SI will repay to CCF within six (6)
months of the closing date of such transaction or transactions, any unearned
portion of the Total Advance attributable to those Covered Outlets, PROVIDED
HOWEVER, that the provisions of this paragraph will not apply to any sale or
transfer of Covered Outles by SI which is part of a larger transaction pursuant
to which SI is acquiring a greater number of Covered Outlets than it is selling.
The Agreement shall not otherwise be assignable without the express written
consent of CCF. If SI transfers or closes any Covered Outlets, SI will pay CCF
the unamortized portion of the cost of installation, and the entire cost of
remanufacturing and removal of all equipment owned by CCF in such Covered Outlet
installed less than 60 months prior to the transfer or closure, unless SI causes
the new owner or operator at the location to assume the lease of the equipment
on terms acceptable to CCF in its reasonable discretion.
ICH GUARANTY
This Agreement will not be deemed effective until ICH has signed the Performance
Guaranty, a copy of which is attached hereto as Exhibit "D."
TRADEMARKS
Neither SI nor CCF shall make use of any of the other party's trademarks or
logos without the prior written consent of that party, and all use of the other
party's trademarks shall inure to the benefit of the trademark owner.
ADDITIONAL TERMS
AUTHORIZATION
SI and CCF each represent and warrant that they have the unrestricted
right to enter into this Agreement and to make the commitments contained
in this Agreement.
CONFIDENTIALITY
Neither party shall disclose to any third party without the prior written
consent of the other party, any information concerning this Agreement or
the transactions contemplated hereby, except for disclosure to franchisees
or to any employees, attorneys, accountants and consultants involved in
assisting with the negotiation and closing of the contemplated
transactions, or unless such disclosure is required by law. A party that
makes a permitted disclosure must obtain assurances from the party to whom
disclosure is made that such party will keep confidential the information
disclosed. SI may also disclose the existence of this Agreement and the
basic elements of this program to the extent required by the SEC and/or
any other governmental authorities. SI agrees to work with CCF in
preparing any such disclosure, and not to file any such disclosure without
CCF's priorreview and comment.
OFFSET
Upon the occurrence of any default by SI under this Agreement, and during
the continuation of any such default, CCF may apply any sums owed to SI in
satisfaction of any of the indebtedness or obligations of SI under this
Agreement, or any other agreement between CCF and SI.
FORCE MAJEURE
Either party is excused from performance under this Agreement if such
nonperformance results from any acts of God, strikes, war, riots, acts of
governmental authorities, shortage of raw materials or any other cause
outside the reasonable control of the nonperforming party.
WAIVER
The failure of either party to seek redress for the breach of, or to
insist upon the strict performance of any term, clause or provision of the
Agreement, shall not constitute a waiver, unless the waiver is in writing
and signed by the party waiving performance.
Agreed to this 22nd day of Agreed to this 22nd day of
December, 2000. December, 2000.
COCA-COLA NORTH AMERICA FOUNTAIN, SYBRA, INC.
A DIVISION OF THE COCA-COLA COMPANY
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
VICE PRESIDENT, SALES AND MARKETING CO-CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
CO-CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
