Coca-Cola USA
FOUNTAIN
November 13, 1997
Xx. Xxxxx Xxxxxx
President
Mrs. Xxxxx's Original Cookies, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Dear Xx. Xxxxxx:
This letter will constitute an amendment (the "Amendment") to that certain
amended and restated marketing agreement between Mrs. Xxxxx's Original Cookies,
Inc. ("MFOC") and Coca-Cola USA Fountain ("CCF") dated January 9, 1997 (the
"Restated Agreement"). The capitalized terms contained in this Amendment will
have the same meanings set forth in the Restated Agreement unless otherwise
defined herein.
Effective as of the date of execution of this Amendment, the Restated Agreement
is amended to reflect that the Term will end the later of December 31, 2002 or
when the MFOC System has purchased the Volume Commitment of CCF's Fountain
Syrups, unless terminated earlier pursuant to the terms of the Restated
Agreement. The Restated Agreement is further amended to reflect the fact that
CCF forgives MFOC's repayment of the Unearned 1993 Funding which currently
amounts to Five Hundred Four Thousand Dollars ($504,000). Accordingly, the
second to the last sentence of Section 4 of the Restated Agreement is deleted in
its entirety and the last sentence of such section is replaced by the following:
"Once the $600,000 advance has been earned, Company will begin to pay any
additional funding earned by the MFOC System to MFOC on a quarterly basis, after
the end of the three month period in which it is earned."
Except as specifically set forth above, the Restated Agreement and the terms and
conditions thereof will remain in full force and effect for the remainder of the
Term. From and after the date of execution of this Amendment, all references to
the Restated Agreement shall be deemed to be references to the Restated
Agreement as amended hereby.
Xx. Xxxxx Xxxxxx
November 13, 1997
Page 2
Sincerely,
Xxx Xxxxx /s/ MES for LLM
Vice President, Field Sales
Accepted and agreed to this day, of , 1997.
MRS. FIELD'S ORIGINAL COOKIES, INC.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, President
Date:
[LE972800 0031
Xxxxx X. Xxxxxxx
Coca- Cola USA
January 9. 1997
Xx. Xxxxx Xxxxxx, President
Mrs. Xxxxx's Original Cookies, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Dear Xx. Xxxxxx:
This letter (the "Restated Agreement") will amend and restate the marketing
agreement between Coca-Cola USA Fountain ("Company") and Mrs. Xxxxx's Cookies
("MFC") dated April 1. 1996 (the "Mrs. Xxxxx's Agreement") concerning the
availability and promotion of Company's Fountain Beverages in Mrs. Xxxxx's
Cookies outlets. The Mrs. Xxxxx's Agreement is being amended at this time due to
the acquisition of MFC by a newly formed corporation, Mrs. Xxxxx's Original
Cookies, Inc. ("MFOC"). MFOC has also acquired Hot Xxx Companies, Inc. ("Hot
Xxx") and The Original Cookie Company, Inc. ("TOCC"), and this Restated
Agreement will also apply to the outlets previously owned by those companies.
Accordingly, the agreement dated July 12. 1993 among Company and Hot Xxx and
TOCC (the "TOCC Agreement") is hereby superseded in its entirety. The parties
specifically acknowledge and agree that certain funding paid under the TOCC
Agreement remains unearned as of the execution of this Restated Agreement and
that Company's right to recover any portion of the unearned amount will
hereafter be governed by the provisions of this Restated Agreement. This
Restated Agreement will also supersede all prior oral and written agreements or
proposals between the parties governing the subject matter of this Restated
Agreement.
This Restated Agreement will apply to all outlets located in the continental
United States that are owned by MFOC and in which Fountain Beverages are served
(the "Corporate Outlets"), without regard to the trade name under which they are
operated. It will also apply to all MFOC outlets within the continental United
States that are owned by franchisees (the "Franchised Outlets"). The Corporate
and Franchised Outlets together are referred to as the "MFOC System" or the
"System Outlets".
If at any time during the Term MFOC opens or acquires additional outlets in
which Fountain Beverages are served, or authorizes additional Franchised
Outlets, the terms of this Restated Agreement will apply to those outlets unless
they are already governed by another
Xx. Xxxxx Xxxxxx
January 9, 1997
Page 2
agreement with Company that is validly assigned to MFOC as part of the
acquisition. Nothing in this Restated Agreement, however, will be construed to
require MFOC to sell Company's products in any outlets acquired after the
execution of this Restated Agreement in which such sale would constitute a
breach of a pre-existing binding and enforceable contract with another post-mix
supplier. Upon the expiration of any such pre-existing contract, MFOC shall make
Company's products available in such acquired outlets pursuant to the terms of
this Restated Agreement, if mutually agreed upon by the parties. If the parties
do not mutually agree that the terms of this Restated Agreement will apply to
those acquired outlets, MFOC will grant Company the opportunity to present a
marketing program for those acquired outlets and agrees not to accept an offer
from a competitor of Company with respect to those outlets without first
communicating such offer to Company and allowing Company the first right of
refusal.
When used in this Restated Agreement, the term "Beverages" means all soft drinks
and other non-alcoholic waters, sports drinks, frozen beverages, juices,
punches, ades and iced teas, whether carbonated or non-carbonated, but does not
include coffee or tea brewed on the premises, juice freshly squeezed on the
premises, or any dairy products. The term "Fountain Beverages" means all
Beverages prepared from syrup, powder or concentrate and dispensed on the
premises from post-rnix or frozen Beverage dispensers, bubblers and the like.
The term "Bottle/Can Beverages" means all Beverages packaged in bottles, cans or
other containers, excluding only those Beverages defined as Fountain Beverages.
"Fountain Syrup(s)" means the syrup required to produce the finished Fountain
Beverages.
The marketing program described In this Restated Agreement has been offered to
MFOC in response to current competitive conditions to afford Company the
opportunity to continue to provide Fountain Beverages on a competitive basis to
the MFOC System. Further, the collective program described herein represents the
entire program to be provided to the MFOC System by Company during the Term, and
is in lieu of any other generally available program(s).
In consideration of MFOC's agreement to serve and promote Company's Fountain
Beverages to consumers in the Corporate Outlets, and to cause the Franchised
Outlets to serve and promote Company's Fountain Beverages, and the other mutual
promises set forth in this Restated Agreement, the parties agree as follows:
MARKETING AGREEMENT
Pretzel Time, Inc.
November 13, 1997
SCOPE OF MARKETING AGREEMENT
The parties to this Marketing Agreement are Pretzel Time, Inc. ("PTI") and
Coca-Cola USA Fountain ("CCF"). This Agreement will apply to all outlets where
Fountain Beverages are served that are owned or operated by PTI, including any
outlets that are opened after this Agreement is signed. This Agreement will also
apply to outlets acquired by PTI, unless those outlets are already governed by
an agreement with CCF and that agreement is validly assigned to PTI as part of
the acquisition. This Agreement will not apply to any outlets outside the fifty
United States, and may not be assigned to a third party without CCF's approval.
All outlets to which this Agreement applies are referred to as "Covered
Outlets." Once signed, this Marketing Agreement will supersede all prior oral
and written agreements between the parties relating to the marketing program
provided by CCF.
TERM
This Agreement will go into effect as of the first day of the month in which it
is signed and will continue for a period of five (5) years or until PTI has
purchased its Volume Commitment of CCF's Fountain Syrups, whichever occurs last.
When used in this Agreement, the term "Year" means each consecutive twelve-month
period during the Term, beginning with the first day of the Term.
BEVERAGE AVAILABILITY
The term "Beverage" means all soft drinks and other non-alcoholic waters, sports
drinks, frozen beverages, juices, juice drinks, punches, ades, bar mixers and
iced teas, whether carbonated or non-carbonated, with the exception of fresh
squeezed lemonade, tea or coffee brewed on the premises and dairy beverages.
"Fountain Beverages" are those Beverages that are dispensed from post-mix,
pre-mix or frozen beverage dispensers, bubblers, or similar equipment. The term
"Fountain Syrup" means the post-mix syrup used to prepare Fountain Beverages,
but does not include other forms of concentrate, or syrup for frozen Beverages
that is purchased from a full service supplier of frozen Beverages to which CCF
provides promotional funding.
PTI will serve in each Covered Outlet a core brand set of Fountain Beverages
that consists of Coca-Cola classic, diet Coke and Sprite, and the remaining
products will be jointly selected by Customer and CCF. CCF's Fountain Beverages
will be the only Fountain Beverages served in the Covered Outlets.
PTI 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. LE972800.086
VOLUME COMMITMENT
PTI agrees to purchase 825,000 gallons of CCF's Fountain Syrup during the Term.
This Term Volume Commitment will be increased by CCF if PTI opens additional
Covered Outlets or acquires additional outlets to which the Marketing Agreement
will apply. Projected annual volume is currently 165,000 gallons.
MARKETING PROGRAM
The following marketing programs will be provided to assist PTI in maximizing
the sale of Fountain Beverages in the Covered Outlets:
Conversion Fund. The amount of the fund is determined by multiplying One Dollar
($1.00) by documented volume of competitive Fountain Syrup purchased by PTI in
the year preceding the effective date of this Agreement. The purpose of the fund
is to offset costs associated with the conversion to CCF brands. Funding is
provided in return for PTI's commitment to serve CCF's Fountain Beverages in the
Covered Outlets throughout the Term, and will be paid when this Agreement is
signed.
Promotional Support Funds.
Funding is earned at the rate of One Dollar and sixty-five cents ($1.65) for
each gallon of CCF's Fountain Syrups that PTI purchases. To qualify for this
fund Customer must fulfill the following performance criteria:
3. List the available CCF Fountain Beverages, along with their
refill prices, and display approved versions of the related
trademarks on the menu boards of all Covered Outlets; and
3. Participate in the development and implementation of two (2) mutually
agreed upon brand development activities each Year; and
3. Participate in the development and implementation of at lease
three (3) mutually agreed upon promotions to be conducted on an
ongoing basis each Year. These promotions may include the use of
Coke To Go cups, "before 11 a.m." hot pricing promotions, combo
meal promotions and permanent refill pricing; and
4. Display in each Covered Outlet a mutually agreed upon neon sign
bearing approved versions of CCF's trademarks; and
5. Utilize a cap set comprised of 16, 20 and 32 ounce cups and a 44 ounce
promotional Coke To Go cup.
Upon execution of this Agreement, CCF will advance to PTI the sum of Two Hundred
Seventy-Two Thousand Two Hundred Fifty Dollars ($272,250) which
sum represents a portion of the Promotional Support Funds CCF anticipates that
PTI will earn during the Term. After such time as PTI has earned this advance
(i.e., after PTI has purchased 165,000 gallons of CCF's Fountain Syrups and
fulfilled the applicable performance requirements), Promotional Support Funds
will be paid quarterly, at the end of the three (3) month period in which they
are earned.
EOUIPMENT PROGRAM
CCF will provide for PTI's use the equipment owned by CCF that is currently
installed in the Covered Outlets. In addition, for each new Covered Outlet
opened during the Term, CCF will provide an equipment package consisting of the
following: one (1) six valve drop-in dispenser. one (1) carbonator, one (1)
regulator, six (6) Bag-in-Box pumps and one (1) Bag-in-Box rack.
The equipment is provided by CCF subject to the terms and conditions of CCF's
standard lease agreement, but no lease payment will be charged. A copy of the
standard lease agreement is attached hereto as Exhibit A and is made a part of
this Agreement, except as specifically changed by this Agreement.
SERVICE PROGRAM
Each Covered Outlet may use CCF's Service Network without charge for up to three
(3) regular mechanical repair calls per Year. These calls are calculated on a
per outlet basis and may not be aggregated. Parts required for these repair
calls that are valued at no more than Fifteen Dollars ($15) will also be
provided without charge.
PTI will be invoiced for the cost of other types of service calls or for regular
mechanical repair calls in excess of those available under this program.
TERMINATION
Once this 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 this Agreement if the other party
fails to comply with a material term or condition hereof and
does not remedy the failure within ninety (90) day's after
receiving written notice (the "Cure Period"). Termination will
be effective thirty (30) days after the end of the Cure
Period.
(ii) CCF may terminate the Agreement if there is a transfer of a
substantial portion of the stock or assets of PTI that is not
in the ordinary course of business.
If this Agreement is terminated before its expiration date, PTI must return any
dispensing equipment owned by CCF. Additionally, PTI will pay the following sums
at the time of termination:
a. Any pre-paid but unearned Promotional Support Funds.
b. Damages calculated at the rate of eighty cents ($0.80) for each gallon
by which PTI fails to meet its Term Volume Commitment.
c. The unamortized portion of the cost of installation, and the entire cost
of refurbishing and removal of all equipment owned by CCF that was installed
less than five years before termination.
d. Interest on the the sums due to CCF at the rate of one percent per
month, accrued.
in the case of sums due under the subparts a and b above, from
the date the Agreement as signed and, in the case of sums due
under subpart c above. from the date costs were incurred.
This list of damages is not intended to restrict the right of either party, to
pursue other remedies or damages if the other party breaches the terms of this
Agreement.
DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement or the breach thereof,
and if said dispute cannot be settled through direct discussions, the parties
agree to attempt to settle the dispute in an amicable manner by mediation
administered by the American Arbitration Association under its Commercial
Mediation Rules. Thereafter, any unresolved controversy or claim arising out of
or relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Any
arbitration brought under the terms of this agreement shall be conducted in the
following manner: Company shall appoint one person as an arbitrator and Customer
shall appoint one person as an arbitrator. The two arbitrators so chosen shall
select a third impartial arbitrator within ten (10) days of the date on which
the second arbitrator is selected. If the arbitrators selected by the parties
are unable or fall to agree upon the third arbitrator, such arbitrator shall be
selected by the American Arbitration Association. The three arbitrators shall
determine all questions presented to them by majority vote. The decision of a
majority of the arbitrators shall be final and conclusive on the parties hereto.
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
contemplated transaction, except for disclosure to any employees, attorneys,
accountants and consultants involved in assisting with the negotiation and
closing of the contemplated transaction, or unless such disclosure is required
by law.
ADDITIONAL TERMS
Authorization. Each party represents and warrants that it has the unrestricted
right and is authorized to enter into this Agreement and to perform the
obligations required of it under this Agreement.
Offset. CCF will not be obligated to pay to PTI any of the funding that would
otherwise be payable pursuant to this Agreement to the extent that PTI is in
default under CCF's credit terms or on any financial obligation to CCF, and CCF
may offset any arrearage against funding that would otherwise be payable to PTI
under this Agreement.
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.
I
Notices. All notices to be given under this Agreement must be in writing and
mailed by registered or certified mail, return receipt requested, postage
prepaid, to the other party at the following address:
If to PTI: Xxxxx Xxxxxx
Pretzel Time, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
If to CCF: Area Vice President
Coca-Cola USA Fountain
0000 Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxx
Xxxxxxx
Coca-Cola USA Fountain
One Coca-Cola Plaza
Atlanta, Georgia 30313
Trademarks. Neither party 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 such
trademarks shall inure to the benefit of the trademark owner.
Acquisition of PTI. CCF may terminate the Agreement if a controlling interest in
the stock or assets of PTI is acquired by or merged with a third party. In the
event that a controlling interest in PTI's stock or assets is acquired by or
merged with a third party and CCF does not elect to terminate this Agreement.
PTI shall elect either to (i) have the acquiring party ratify this
Agreement and assume all of PTI's obligations under this Agreement, or (ii) pay
to CCF all of the damages associated with early termination of the Agreement
specified in "Termination" above. If the acquiring party ratifies this Agreement
and assumes PTI's obligations hereunder and is subject to another agreement with
CCF that is applicable to acquired outlets, the parties will mutually determine
which agreement will govern the acquired outlets. This Agreement shall not be
otherwise assignable without the express written consent of CCF. If at any time
during the term PTI divests any Covered Outlets or terminates any franchise
agreements, PTI agrees to provide CCF with sufficient notice of such event to
allow CCF to protect its property interests.
Agreed to this day of , 1997.
PRETZEL TIME, INC. COCA-COLA USA FOUNTAIN
By:/s/Xxxxx Xxxxxx By: /s/Xxx Xxxxx
Xxx Xxxxx
Xxxxx Xxxxxx, President Vice President, Field Sales
Exhibit A
Lease Agreement
