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EXHIBIT 10.25
May 25, 2000
Xx. Xxxxxx X. Xxxxxx
President
Miami Subs Corporation
0000 XX 00xx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter will confirm the agreement ("AGREEMENT") between Coca-Cola North
America Fountain, an operating unit of The Coca-Cola Company ("COMPANY"), and
Miami Subs Corporation, ("MSC") concerning the availability and promotion of
Company's Fountain Beverages within the fifty United States. As used in this
Agreement, the term "CORPORATE OUTLETS" means all outlets in which Fountain
Beverages are sold that are owned or operated by MSC; restaurants operated
under the Miami Subs Grill and Mr. Submarine trademarks and outlets operated
under another concept name are included in the definition. The parties
acknowledge that there are currently eleven Corporate Outlets. The term
"FRANCHISED OUTLETS" means all Miami Subs Grill and all Mr. Submarine outlets
owned or operated by authorized franchisees and/or licensees of MSC
(collectively, the "FRANCHISEES"), as well as any other type of outlet in which
Fountain Beverages are served that is owned or operated by a Franchisee. The
terms "MSC SYSTEM" and the "SYSTEM OUTLETS" refer to Corporate and Franchised
Outlets in the aggregate, including any Corporate Outlets that MSC opens or
acquires, or any additional Franchised Outlets that MSC authorizes after this
Agreement is signed. Outlets acquired by MSC that are governed by another
agreement with Company that is validly assigned to MSC as part of the
acquisition will not be considered Corporate Outlets and will not be covered by
this Agreement until the prior agreement with Company expires or is terminated
by mutual agreement of the parties. The term "PARTICIPATING FRANCHISEES" refers
to those Franchisees that elect to participate in Company's program and the
term "PARTICIPATING FRANCHISED OUTLETS" refers to the outlets owned by
Participating Franchisees.
When used in this Agreement, the following terms shall have the meanings set
forth below:
- "BEVERAGES" means all soft drinks and other non-alcoholic beverages,
including sports drinks, frozen beverages, juices, juice-containing
drinks, punches, ades, bar mixers and iced teas, whether carbonated or
non-carbonated, but "Beverages" does not include (i) non-flavored bottled
water, iced tea, lemonade, and flavored waters that are proprietary to MSC
and/or its affiliates; and (ii) hot chocolate, tea or coffee brewed on the
premises, other hot beverages, smoothies, and/or any dairy products.
- "FOUNTAIN BEVERAGES" means all Beverages that are (i) prepared from syrup,
powder or concentrate, and (ii) dispensed on the premises from post-mix or
frozen Beverage dispensers, bubblers, bar guns and similar equipment.
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- "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 post-mix syrup required to produce finished
Fountain Beverages, but does not include other forms of concentrate or
syrup for frozen beverages that is not purchased from Company but from a
full service supplier of frozen beverages.
The program described in this Agreement represents the entire program to be
provided to MSC by Company during the Term, and is in lieu of any other
generally available program(s). When executed by both parties hereto, this
Agreement will supersede all prior oral and written agreements between the
parties governing the subject matter of this Agreement, including specifically,
that certain letter of agreement between Company and MSC dated August 14, 1992
(the "1992 Agreement"). The parties specifically agree that the 1992 Agreement
will be terminated upon execution of this Agreement and each party is released
by the other from any and all claims, causes of action, demands, or other
liability under the 1992 Agreement.
1. TERM.
The term of this Agreement (the "TERM") will begin on the first day
of the month in which it is signed and will continue for a period of
six (6) years (as defined in Section 2(g) below) or until the
Participating MSC System (as defined below) has purchased 6,811,470
gallons of Company's Fountain Syrups, whichever occurs later;
provided, however, that MSC may "buy-out" the remaining Term of this
Agreement at any time after the fifth (5th) anniversary of this
Agreement by payment of those sums listed as Damages in Section 12.b
below; provided, however, funds paid under the Customer Development
Program Fund shall not be included in the buyout calculation.
2. AVAILABILITY AND PROMOTION OF COMPANY'S FOUNTAIN BEVERAGES.
a. The mutual objective of the parties is to unify the MSC System
so that Company's brands are served and promoted at all outlets
throughout the MSC System. Accordingly, subject to the
exceptions noted below, on a continuous basis during the Term,
MSC will serve to consumers in the Corporate Outlets a Fountain
Beverages brand set consisting solely of Company's Fountain
Beverages and will vigorously promote the sale and/or use of
Company's Fountain Beverages throughout the MSC System. A core
brand set of Fountain Beverages consisting of Coca-Cola(R)
classic (or Coke(R)), diet Coke(R) and Sprite(R) must be served
in all Corporate Outlets and MSC will make Company its Beverage
consultant in selecting from Company's available Fountain
Beverages those additional Fountain Beverages needed to complete
the brand set for individual Corporate Outlets.
For the Term of this Agreement, MSC's list of approved Fountain
Beverage Suppliers for the MSC System shall list only Company's
brands (except as otherwise provided in this Agreement);
however, MSC shall have the sole
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and exclusive right to determine when and whether to enforce or
waive such requirement as to a particular Franchisee. MSC agrees
to take reasonable steps, in its sole discretion, to convince
the Franchisees to comply. Company further agrees that it is
not, and shall not be deemed, a third party beneficiary or other
interested party in the relationship between MSC and its
franchisees.
b. When used in this Agreement, the terms "COMPETITIVE BEVERAGES,"
"COMPETITIVE BOTTLE/CAN BEVERAGES" and "COMPETITIVE FOUNTAIN
BEVERAGES" mean, respectively, any Beverage, Bottle/Can Beverage
or Fountain Beverage that is not marketed under a brand name or
trademark owned by or licensed for use to The Coca-Cola Company.
MSC acknowledges that the sale of Competitive Bottle/Can
Beverages would diminish the Fountain Beverages availability
rights granted to Company, and therefore agrees to provide
Company with a right of first refusal as to all Bottle/Can or
pre-mix Beverages for which Company has a product in the
category. For purposes of this Agreement, the "RIGHT OF FIRST
REFUSAL" means that MSC shall not accept an offer from a
Beverage supplier other than Company or its authorized bottlers
with respect to the provision of such Beverages unless it has
first offered Company the right to supply such Bottle/Can or
pre-mix Beverages and allowed Company to meet the competitive
offer. In no event shall MSC enter into a contract with another
Beverage supplier for any Competitive Bottle/Can or pre-mix
Beverage availability, merchandising, promotional and/or
advertising rights that are more favorable to the Competitive
Beverage supplier than those previously offered to Company. Any
sale by a Corporate Outlet of Competitive Fountain, Bottle/Can
or pre-mix Beverages not specifically permitted by this
Agreement constitutes a material breach of this Agreement.
c. In the event that compliance with the Beverage availability
requirements set forth in this Agreement would constitute a
breach of a binding, pre-existing contract with another Fountain
Beverage supplier, or if MSC in its capacity as a franchisee of
another food service company is not permitted to serve Company's
Fountain Beverages by the terms of its franchise agreement with
such other franchisor, such occurrence will not be considered a
default of this Agreement. This Agreement does, however,
obligate MSC to make Company's Fountain Beverages available once
it is contractually able to do so.
d. In addition, MSC will strongly endorse Company's Fountain
Beverages for sale in the Franchised Outlets, and will use
reasonable efforts, with due regard for franchisees' rights
under their franchise agreement and consistent with the
requirements of federal and state antitrust law, to strongly
encourage the Franchised Outlets to make available Company's
Fountain Beverages in their outlets. Franchisees will not be
deemed to have elected to participate in Company's program until
they have executed a written agreement with Company. In this
Agreement, the terms "PARTICIPATING MSC SYSTEM" and
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"PARTICIPATING SYSTEM" shall refer to all Corporate Outlets and
all Participating Franchised Outlets.
e. While this Agreement does not require that Company's products be
served in any Co-branded Outlet, MSC agrees to strongly
encourage the use of Company's products in both the "Miami Subs
Grill" and "Mr. Submarine," and other portions of a Co-branded
Outlet. For purposes of this Agreement, the term "CO-BRANDED
OUTLET" means any outlet which houses more than one foodservice
concept but dispenses Fountain Beverages by means of a common
dispenser or dispensers. Outlets that do not share dispensers
will not be considered "Co-branded" for purposes of this
Agreement. The program available for Co-branded Outlets will be
determined in the following manner:
(1) For those System Outlets that are co-branded with an outlet
that is owned or franchised by any subsidiary of Nathan's
Famous, Inc. ("NFI") (an "AFFILIATED CONCEPT"), the program
available for the entire Co-branded Outlet will be the
program available to the predominant concept located in the
Co-branded Outlet. However, if no concept is predominant,
the parties will mutually agree on which of the programs
that are available to the applicable Affiliated Concepts
will be applied to the Co-branded Outlet, taking into
consideration the nature of the combined entity. If the
parties are unable to agree on a program for such outlet,
MSC will advise as to which Affiliated Concept will apply.
(2) Should NFI develop a standard co-branded concept that
combines two or more Affiliated Concepts, the provisions
set forth in part (1) above will not apply. Instead, MSC,
NFI and the applicable affiliated entity will develop a new
program that is appropriate to the needs and commercial
circumstances of the new co-branded concept.
For those System Outlets that are co-branded with a
non-Affiliated Concept that is eligible to receive a
marketing program from Company, the program available for
the entire Co-branded Outlet will be the program available
to the predominant concept located in the Co-branded
Outlet, unless prohibited by Company's agreement with the
non-Affiliated Concept. If so prohibited, or if there is no
dominant concept, the program set forth in this Agreement
will be available to the Co-branded Outlet.
(3) For those System Outlets that are co-branded with a
non-Affiliated Concept that is not eligible to receive a
marketing program from Company, the program set forth in
this Agreement will be available to the Co-branded Outlet.
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f. The Participating System must purchase from Company or any
authorized wholesaler of Company's Fountain Syrups during the
Term a minimum of 6,811,470 gallons of Company's Fountain Syrups
(the "VOLUME COMMITMENT"). The parties currently anticipate that
the Volume Commitment will be purchased according to the
following schedule:
Year One 589,485 gallons
Year Two 716,437 gallons
Year Three 924,008 gallons
Year Four 1,195,628 gallons
Year Five 1,511,036 gallons
Year Six 1,874,876 gallons
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Total: 6,811,470 gallons
g. When used in this Agreement, the term "YEAR" means each of the
consecutive twelve (12) month periods during the Term, which
begin on the first day of the month in which this Agreement is
signed.
h. Company will make available to MSC Company's Fountain Syrups at
prices that are no higher than the lowest price for the same
package and flavors offered to other Quick Serve Restaurant
("QSR") customers using the same method of purchasing and
distribution as MSC. MSC may also elect to purchase Company's
Fountain Syrups from Company's authorized bottlers or from other
authorized distributors of Company's Fountain Syrups at prices
established by such bottlers or distributors.
3. QUALIFICATION FOR AND CALCULATION OF FUNDING; PAYMENT OF SYSTEM
FUNDING.
a. To qualify for funding under this Agreement, MSC and the
Franchised Outlets must provide proof of performance of the
activities required under the specific programs set forth
herein. Funding paid on a per gallon basis will be paid only on
the volume of those outlets that have performed the qualifying
activities. If for any reason Company elects to pay funding
before the MSC System has purchased syrup volume sufficient to
earn such sums or before the required proof of performance has
been provided, that payment represents a prepayment of funding
which must be refunded in the event of early termination or at
the end of the Term if any portion of the prepaid sum remains
unearned.
b. For purposes of calculating funding, Fountain Syrup purchased
from Company under its direct xxxx or agent xxxx programs will
be automatically counted, without the submission of any
additional documentation by MSC or the Franchised Outlets. If,
however, MSC or the Franchised Outlets purchase syrup not from
Company but directly from authorized distributors of
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Company's Fountain Syrup, they will be required to submit
documentation of such purchases in order to qualify for funding.
x. Xxxxxxxx Syrup will not be considered to have been "purchased"
until it has been paid for in full. Accordingly, any funding
based on the purchase of Fountain Syrup will be due and payable
only to the extent that MSC and the Franchised Outlets have paid
for such syrup.
d. Company shall not be obligated to pay to MSC any of the funding
that would otherwise be payable pursuant to this Agreement to
the extent that MSC is in default under Company's credit terms
or on any financial obligation to Company, and Company may
offset any arrearage against funding that would otherwise be
payable to MSC under this Agreement; provided however, that
Company shall not set off any amount due to MSC without
providing MSC written notice of default and thirty (30) days to
cure same and MSC has failed to cure the default. In the event
that the funding earned pursuant to this Agreement is
insufficient to pay any charges for which this Agreement
provides for a deduction from earned funding, MSC agrees to pay
any such charges at the end of the Term or upon any earlier
termination.
e. Brand Funds, Philanthropic Funds, Marketing Allowances and
Promotional Support Funds will be paid directly to the Miami
Subs Advertising Fund on behalf of the Participating System. All
other funding, specifically, the Consumer Communication Fund,
the Customer Development Fund and the Multi-Brand Fund, will be
paid under this Agreement to MSC to develop and implement
activities designed to benefit the entire Participating System,
including specifically Participating Franchisees, and to
increase the sale of Company's Fountain Beverages throughout the
System.
f. MSC agrees to indemnify and hold Company harmless from any and
all claims or other liabilities arising out of Company's payment
of System funds, per this Agreement, to MSC and/or the Miami
Subs Advertising Fund (instead of to one or more particular
franchisees).
4. MARKETING ALLOWANCES.
a. Company's Marketing and Cooperative Media Advertising Program
will pay to the Miami Subs Advertising Fund an amount equal to
seventy cents ($0.70) in Marketing Allowances for each gallon of
Fountain Syrup the Participating System Outlets purchase during
the Term. To qualify for funding under this program, MSC agrees
to prominently display in all Corporate Outlets, and to strongly
advise and use commercially reasonable efforts to require
franchisees operating Participating System Outlets that they
also must display approved renditions of Company's trademarks on
all menus, menu boards and point-of-sale materials where
Beverages are featured. Company recognizes that MSC cannot
ensure 100% compliance within the MSC System and Company will
work with MSC to bring a non-
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compliant Participating System Outlet into compliance. If MSC's
and Company's commercially reasonable efforts are not successful
and the Participating System Outlet still does not perform the
required activities, then that Outlet will not be deemed a
"Participating" System Outlet and MSC will not earn Marketing
Allowances on that Outlet's volume.
b. Marketing Allowances will be advanced to the Miami Subs
Advertising Fund upon execution of this Agreement and on an
annual basis thereafter. The amount of each such advance will
be the amount that Company then estimates will be earned by the
Participating System during the twelve-month period for which
the advance is made. At the end of each advance period, the
Participating System's actual earnings under this program will
be reconciled against the amount advanced. If the
reconciliation indicates that additional Marketing Allowances
are due to MSC, such additional sum will be paid to the Miami
Subs Advertising Fund within thirty (30) days after the
reconciliation is complete. If, however, the reconciliation
indicates that an overpayment has been made, the overpayment
will be deducted from Company's payment of Marketing Allowances
or other funding earned by the Participating MSC System in the
next Year and, if necessary, in subsequent Years.
5. PROMOTIONAL SUPPORT FUNDS.
a. Company will pay to the Miami Subs Advertising Fund, on behalf
of the Participating MSC System, funding at the per gallon rate
of forty-four cents ($0.44) based on purchases of Company's
Fountain Syrups by the Participating MSC System. Funding is
provided to support the development and execution of promotional
activities featuring Company's Fountain Beverages and utilizing
approved renditions of Company's trademarks in a prominent
fashion. To qualify for funding, the Participating System
Outlet must participate in a minimum of three (3) mutually
agreed upon activities each Year. The specific activities to be
funded by this program will be mutually agreed upon and set
forth in writing on an annual basis and shall include combo
meals and in-store signage featuring Company's Fountain
Beverages, crew incentive programs, and other
Coca-Cola(R) merchandising programs.
b. Payment will be advanced to the Miami Subs Advertising Fund upon
execution of this Agreement and at the beginning of each Year
thereafter. The amount of each such advance will be the amount
that Company then estimates will be earned by the Participating
System during the Year for which the advance is made, and will
be reconciled in accordance with the procedure set forth in
Section 4.b. above for Marketing Allowances.
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6. CONSUMER COMMUNICATION FUND.
Consumer Communication Funds in the total amount of One Million One
Hundred Ninety Thousand Dollars ($1,190,000) will be advanced to MSC
upon execution of this Agreement. To qualify for Consumer
Communication Funds MSC must (i) recommend a mutually-agreed upon cup
set to all Participating System Outlets that includes no cup smaller
than a 16 oz. size, with the exception of a smaller kid's cup; and
(ii) redesign for and install in all Participating System Outlets
drive-thru, on-premise, and drive-thru pre-sell menu boards. Consumer
Communication Funds will be deemed fully earned over the course of
the Agreement and not subject to refund if this Agreement is
terminated after the end of Year Two.
7. PHILANTHROPIC FUND.
a. During each of Years One through Six of the Term, Company will
provide to the Miami Subs Advertising Fund an annual
Philanthropic Fund of Fifty-Five Thousand Dollars ($55,000) per
year. Funding is provided to support the development and
execution of promotional activities designed to benefit mutually
agreed upon charitable organizations such as the Boys and Girls
Clubs of America. Any charitable activities funded hereby must
feature Company's Fountain Beverages and use approved renditions
of Company's trademarks in a prominent fashion.
b. The Philanthropic Fund will be advanced to the Miami Subs
Advertising Fund upon execution of this Agreement and at the
beginning of each Year thereafter.
8. BRAND FUNDS.
Upon execution of this Agreement, Company shall advance One Million
Eight Hundred Thousand Dollars ($1,800,000) to the Miami Subs
Advertising Fund as advance payment of Brand Funds, which shall be
considered earned when the Participating System purchases 1,714,286
gallons of Company's Fountain Syrups. After the amount of earned
Brand Funds exceed Company's initial $1,800,000 advance, Company will
pay additional amounts at the per gallon rate of One Dollar and five
cents ($1.05), in advance, at the beginning of each Year to MSC's
Advertising Fund based on the amount that Company then estimates will
be earned by the Participating System during the Year for which the
advance is made. Payment will be reconciled in accordance with the
procedure set forth above for Marketing Allowances. To qualify for
this fund, MSC agrees to (i) conduct research to determine the most
appropriate brand set based on consumer trends, geography and
strategy; and (ii) implement in all Participating System Outlets the
recommended brand set after the research has been completed; and
(iii) strongly endorse implementation of the recommended brand set in
all Franchised Outlets.
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9. CUSTOMER DEVELOPMENT FUND.
Company will provide to MSC a Customer Development Fund in the total
amount of Eight Hundred Thousand Dollars ($800,000) upon execution of
this Agreement. Such funding is provided on a one time basis, in
consideration of MSC's commitment to develop a marketing campaign to
link CCF's Fountain Beverages with the "Miami Subs Grill" and "Mr.
Submarine" names and to activate such campaign throughout the Term of
this Agreement. This amount will be fully earned over the course of
the Agreement and not subject to refund upon termination or
expiration of this Agreement.
10. MULTI-BRAND FUND.
Multi-Brand Funds in the total amount of Five Hundred Thousand
Dollars ($500,000) will be advanced to MSC upon execution of this
Agreement. Funding is provided to offset the cost of developing joint
programs with the franchisors of the "Nathan's Famous" and "Xxxxx
Xxxxxx Roasters" brands.
11. EQUIPMENT AND SERVICE PROGRAMS.
The following programs relating to post-mix dispensing equipment for
Fountain Beverages will be provided to MSC for the Corporate Outlets
and Participating Franchisees during the Term. The programs described
below are not applicable to frozen Beverage dispensers, ice makers or
water filters.
a. Equipment.
Company will provide for all Participating System Outlets' use
without charge during the Term the post-mix dispensing equipment
owned by Company that is currently installed in the
Participating System Outlets. The dispensing equipment provided
by Company (including any Bag-in-Box pumps and racks) will at
all times remain the property of Company and is subject to the
terms and conditions of the Lease Agreement attached as Exhibit
A, but no lease payment will be charged. To the extent that any
of the terms and conditions set forth in the Lease Agreement are
in conflict with the terms and conditions set forth in this
Agreement, the terms of this Agreement shall control.
b. Service Program.
Each Participating System Outlet may use Company's Service
Network without charge for up to seven (7) regular mechanical
repair calls for post-mix dispensers each Year. These calls are
calculated on a per outlet basis and may not be aggregated. MSC
or the Participating Franchisee, as applicable, will be invoiced
at Company's actual cost for other types of service calls or for
regular mechanical repair calls in excess of those available
under this program.
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12. TERMINATION AND DAMAGES.
a. Termination.
When fully executed, this Agreement will constitute a binding
obligation of both parties which may be canceled or terminated
only as set forth herein.
i. Either party may terminate this Agreement in the event of a
material breach of the terms of this Agreement by the other
party. For purposes of this provision, the term "material
breach" shall include, but not be limited to, any action
taken by or on behalf of a party that substantially impairs
either party's ability to perform its obligations under
this Agreement. The breaching party shall be given written
notice of breach and allowed ninety (90) days from its
receipt of notice (the "Grace Period") to remedy such
breach. Should the breaching party fail to remedy the
breach within the Grace Period, the non-breaching party may
elect to terminate the Agreement by providing thirty (30)
days' prior written notice of termination. Such notice
period shall commence no earlier than the end of the Grace
Period.
ii. Company, at its sole option, may terminate this Agreement
if there is any transfer or conveyance of a substantial
portion of the stock or assets of MSC that (a) is not in
the ordinary course of business, and (b) is to a transferee
that is a competitor to Company. Should Company elect to
exercise its rights under this Section 12.a.ii, MSC will
not be obligated to pay to Company the damages specified in
subpart "ii" of Subsection 12.b. below, but must return all
equipment owned by Company.
b. DAMAGES.
In the event of any termination or cancellation of this
Agreement, all Corporate Outlets shall surrender to Company all
equipment owned by Company. Further, in the event of any
cancellation or termination of this Agreement other than a
termination as provided in Subsection 12.a.ii., MSC shall pay
(or, in the case of the Miami Subs Advertising Fund, cause said
Advertising Fund to pay) to Company all of the following
damages, which the parties agree do not constitute a penalty:
i. The following:
(1) Any prepaid but unearned Marketing Allowances,
Promotional Support Funds, Brand Funds, Multi-Brand
Funds and Philanthropic Funds; plus
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(2) A pro rata refund of the Consumer Communication Funds
earned at the rate of $49,583.33 per month if MSC
terminates the Agreement before the end of Year Two.
ii. Interest on all sums due to Company under this Subsection
12.b, at the rate of one percent (1%) per month, or such
lesser percentage as is required by law, accrued from the
date funds were paid or costs were incurred, through the
date of repayment.
If this Agreement is terminated by either party for breach under
Section 12.a.i., the list of damages above shall not affect the
right of either party to pursue any other remedies or damages to
which it may be entitled.
13. ADDITIONAL TERMS.
a. AUTHORIZATION.
Company and MSC each represent and warrant to the other that it
has the unrestricted right and is authorized to enter into and
perform the obligations under this Agreement.
b. WAIVER.
No delay, waiver, omission, or forbearance on the part of either
party to exercise any right, option, duty or power arising out
of any breach or default by the other party under any of the
terms, provisions, covenants or conditions hereof, shall
constitute a waiver by the non-defaulting party to enforce any
such right, option, duty or power as against the other party, or
as to subsequent breach or default by the non-defaulting party.
Subsequent acceptance by the non-defaulting party of any
payments due to it hereunder shall not be deemed to be a waiver
by the non-defaulting party of any preceding breach by the other
party of any terms, provisions, covenants or conditions of this
Agreement.
c. 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 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.
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d. FRANCHISEES.
Company understands and acknowledges that MSC cannot and does
not guarantee the obligations (financial and otherwise) of its
Franchisees, and Company shall not look to MSC, MSC's affiliates
(excluding Franchisees that are affiliates of MSC), the Miami
Subs Advertising Fund, or their respective officers, directors,
agents, employees, and/or shareholders for payment of any sums
due from the Franchisees.
e. 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 MSC 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 fail 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.
f. NOTICES.
Any notice required by this Agreement shall be directed to the
addresses used herein unless otherwise specified in writing and
shall be given by personal delivery, certified or registered
mail, or facsimile (with confirmation of receipt) or by other
means which affords the sender evidence of delivery or of
rejected delivery, including reputable overnight delivery
services, to the respective parties at the addresses designated
on the signature page of this Agreement unless and until a
different address has been designated by written notice to the
other party. Any notice by a means that affords the sender
evidence of delivery or rejected delivery shall be deemed to
have been given at the date and time of receipt or attempted
delivery. Notice given by facsimile will be deemed received on
the first business day following the day on which the facsimile
is transmitted.
Address for Notices:
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Xxxx-Xxxx Xxxxx Xxxxxxx Fountain
X.X. Xxxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Vice President, Sales
With a copy to: Xxx Xxxxxxxx, Assistant
General Counsel
Miami Subs Corporation
0000 XX 00xx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: President
With copies to:
President Xxx X. Xxxxx, Esq.
Nathan's Famous, Inc. Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000 0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxx, XX 00000 Xxxxxxxxxx, X.X. 00000-0000
g. FORCE MAJEURE.
Either party is excused from performance hereunder to the extent
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.
h. REDISTRIBUTION.
MSC agrees not to resell Company's Fountain Syrups or act as a
wholesaler or distributor of Company's Fountain Syrups, unless
expressly authorized by Company in writing.
i. ACQUISITION OF OR DIVESTITURE BY MSC.
In the event that a third party merges with, acquires a
controlling interest in the stock of, or all or substantially
all of the assets of MSC or is successor to MSC, and Company
does not elect to terminate this Agreement pursuant to Section
12 above, MSC shall elect either to (i) cause the acquiring
party to ratify this Agreement and assume all of the obligations
of MSC hereunder, or (I) pay to Company all of the sums
specified in Section 12, "Termination and Damages." This
Agreement shall not be otherwise assignable without the express
written consent of Company, which shall not be unreasonably
withheld. Further, if at any time during the Term MSC divests
one or more Corporate Outlets or terminates any of its franchise
agreements, MSC agrees
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to provide Company with timely notice of such event. If MSC
fails to provide timely notice subsequent to termination, it
will pay for any of Company's dispensing equipment located in
the divested or closed outlet that Company is unsuccessful in
recovering.
j. TRADEMARKS.
Neither MSC nor Company 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 that party.
If this letter conforms to our agreement, please sign the enclosed copy and
return it to me for my files. By signing this Agreement, you each represent and
warrant that you are authorized to enter into contracts relating to the subject
matter of this Agreement on behalf of your respective companies.
Sincerely,
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
Group Vice President
Coca-Cola North America Fountain
Agreed to this 30th day of
May, 2000.
MIAMI SUBS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxx, President
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EXHIBIT "A"
COCA-COLA FOUNTAIN EQUIPMENT LEASE AGREEMENT
1. LEASE AGREEMENT AND TERM. The Coca-Cola Company, through its Coca-Cola USA
Fountain division, ("Company") hereby leases to the account identified on the
reverse side ("Lessee") all fountain beverage dispensing equipment described on
the reverse side (the "Equipment"), subject to the terms and conditions set
forth in this Lease Agreement. Unless otherwise agreed in writing, the
Equipment shall include all permanent merchandising, menu boards, lines,
fittings, carbonators, regulators, valves, refrigeration units, and bag-in-box
pumps and racks installed by Company on Lessee's premises. All Equipment is
leased for an initial period of one (1) year, commencing on the scheduled
installation date set forth on the reverse side (the "Commencement Date"), and
will continue on a year to year basis thereafter without further notice. This
Lease Agreement may be terminated by either party on any annual anniversary of
the Commencement Date by sending the other party notice of termination not less
than thirty (30) days prior to the end of the then-current year of the term. If
this Lease is terminated for any reason prior to 60 months from the
Commencement Date, other than a termination by Company pursuant to this
section, upon termination Lessee shall reimburse Company for the actual costs
of installation and removal and the standard costs for refurbishing such
Equipment incurred by Company. Following notice of termination, the terms of
this Lease will continue in effect until the Equipment has been removed from
Lessee's premises.
2. RENT FOR THE EQUIPMENT. Lessee shall pay to Company the amount set forth
on the reverse side plus all applicable sales and use taxes, if any, as rent
for the Equipment. Rent will be due monthly. At Company's discretion, Company
may utilize funds due Lessee to offset amounts due Company under this
Agreement. If Lessee fails to pay, within 10 days of its due date, rent or any
other amount required by this Lease to be paid to Company, Lessee shall pay to
Company a late charge equal to five percent (5%) per month of such overdue
payment, or such lesser amount that Company is entitled to receive under any
applicable law.
3. TITLE TO THE EQUIPMENT. Title to the Equipment is, and will at all times
remain, vested in Company. Lessee will have no right, title, or interest in or
to the Equipment, except the right to quiet use of the Equipment in the
ordinary course of its business as provided in this Lease. Lessee shall execute
such title documents, financing statements, fixture filings, certificates and
such other instruments and documents as Company shall reasonably request to
ensure to Company's satisfaction the protection of Company's title to the
Equipment and Company's interests and benefits under this Lease. Lessee shall
not transfer, pledge, lease, sell, hypothecate, mortgage, assign or in any
other way encumber or dispose of any of the Equipment. THE PARTIES AGREE, AND
LESSEE WARRANTS, THAT THE EQUIPMENT IS, AND WILL AT ALL TIMES REMAIN, PERSONAL
PROPERTY OF COMPANY NOTWITHSTANDING THAT THE EQUIPMENT OR ANY PART THEREOF MAY
NOW BE, OR HEREAFTER BECOME, IN ANY MANNER AFFIXED OR ATTACHED TO, OR EMBEDDED
IN, OR PERMANENTLY RESTING UPON, REAL PROPERTY OR IMPROVEMENTS ON REAL
PROPERTY. Lessee may perform ordinary maintenance and repairs to the Equipment
as required by this Lease, but shall not make any alterations, additions, or
improvements to the Equipment without the prior written consent of Company. All
parts added to the Equipment through alterations, repairs, additions or
improvements will constitute accessions to, and will be considered an item of,
the Equipment and title to such will immediately vest in Company. Lessee agrees
that Company may transfer or assign all or any part of Company's right, title
and interest in or to any Equipment (in whole or in part) and this Lease, and
any amounts due or to become due, to any third party ("Assignee") for any
reason. Upon receipt of written notice from Company of such assignment, Lessee
shall perform all its obligations with respect to any such Equipment for the
benefit of the applicable Assignee, and, if so directed, shall pay all amounts
due or to become due hereunder directly to the applicable Assignee or to any
other party designated by such Assignee.
4. USE OF EQUIPMENT. Lessee acknowledges that the rent set forth herein does
not fully compensate Company for its expenses concerning its research and
development efforts designed to improve fountain equipment or in providing the
Equipment to Lessee, and that Company provides the Equipment to Lessee for the
purpose of dispensing Company products. Therefore, Lessee agrees that if the
Equipment is a fountain beverage dispenser, then the Equipment will be used for
the purpose of dispensing fountain beverage products of Company, such as
Coca-Cola(R) classic (or Coke(R)), diet Coke(R) and Sprite(R), with the
understanding that, if the dispenser has four (4) or more valves, one (1) valve
may be used at Lessee's option for dispensing a non-Company, non-cola fountain
beverage product; provided, that no product of PepsiCo, Inc. or of an affiliate
thereof may be dispensed. In accordance with Company's Fair Share Policy,
Company will have the right to additional rent if any valve is used for a
non-Company beverage (including water), at a rate of not less than $40 per
year. If the Equipment is a pump for bag-in-box or similar container, such pump
may be used only to dispense Company products. If the Equipment is other than a
fountain beverage dispenser or a pump, then it will be used only in a location
where fountain beverage products of Company are served and where no fountain
beverage products of PepsiCo, Inc. or an affiliate of PepsiCo, Inc. are served.
This Section 4 shall not apply within the State of Wisconsin.
5. INSPECTION AND NOTIFICATION. Company shall have the right during Lessee's
regular business hours to inspect the Equipment at Lessee's premises or
wherever the Equipment may be located and to review all records that relate to
the Equipment. Lessee shall promptly notify Company of all details arising out
of any change in location of the Equipment, any alleged encumbrances thereon or
any accident allegedly resulting from the use or operation thereof.
6. WARRANTY DISCLAIMER: LESSEE ACKNOWLEDGES THAT COMPANY IS NOT A
MANUFACTURER OF THE EQUIPMENT AND THAT COMPANY HAS MADE NO REPRESENTATIONS OF
ANY NATURE WHATSOEVER PERTAINING TO THE EQUIPMENT OR ITS PERFORMANCE, WHETHER
EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES
RELATING TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP
OF THE EQUIPMENT OR ITS PERFORMANCE, OR ANY WARRANTY AGAINST INTERFERENCE OR
INFRINGEMENT, OR ANY WARRANTY WITH RESPECT TO PATENT RIGHTS, IF ANY, PERTAINING
TO THE EQUIPMENT. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, ANY
DIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, OR DAMAGES OF ANY NATURE
WHATSOEVER, RESULTING FROM THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATIONS,
SERVICE OR USE OF ANY EQUIPMENT OR OTHERWISE.
7. TAXES. Lessee shall pay all assessments, license fees, taxes (including
sales, use, excise, personal property, ad valorem, stamp, documentary and other
taxes) and all other governmental charges, fees, dines or penalties whatsoever,
whether payable by Company or Lessee, on or relating to the Equipment or the
use, xxxxxxxxxxxx, xxxxxx, shipment, transportation, delivery, or operation
thereof, and on or relating to this Lease.
8. MAINTENANCE AND REPAIRS. If Lessee elects to use one valve to dispense a
non-Company beverage pursuant to Section 4, Company may charge for its costs of
servicing such valve in accordance with Company's Fair Share Policy at a rate
of not less than $25 per year. Lessee shall, at its expense, keep the Equipment
in good condition, repair, and working order. Lessee shall pay all costs
incurred in connection with the shipment, use, operation, ownership, or
possession of the Equipment during the term of this Lease. Lessee's sole
recourse against Company with respect to service provided by Company or its
agents to the Equipment is that Company will correct any defective workmanship
at no additional charge to Lessee, provided that Company is given prompt
notification of any defective workmanship. Company shall not be otherwise
liable for negligent acts or omissions committed in regard to maintenance or
repair of the Equipment and assumes no responsibility for incidental,
consequential or special damages occasioned by such negligent acts or
omissions.
9. RISK OF LOSS. All risk of loss, including damage, theft or destruction, to
each item of Equipment will be borne by Lessee. No such loss, damage, theft or
destruction of Equipment, in whole or in part, will impair the obligations of
Lessee under this Lease, all of which will continue in full force and effect.
10. INDEMNITY. Lessee shall indemnify Company and Company's officers, agents,
employees, directors, shareholders, affiliates, successors, and assigns
(hereinafter the "Indemnified Parties") against, and hold Indemnified Parties
wholly harmless from, any and all claims, actions, suits, proceedings, demands,
damages, and liabilities of whatever nature, and all costs and expenses,
including without limitation Company's reasonable attorneys' fees and expenses,
relating to or in any way arising out of (a) the ordering, delivery, rejection,
installation, purchase, leasing, maintenance, possession, use, operation,
control or disposition of the Equipment or any portion thereof; (b) any act or
omission of Lessee, including but not limited to any loss or damage to or
sustained by Company arising out of Lessee's failure to comply with all the
terms and conditions of this Lease; (c) any claims for liability in tort with
respect to the Equipment, excepting only to the degree such claims are the
result of Company's negligent or willful acts. The provisions of this Section
10 will survive termination and expiration of this Lease.
11. DEFAULT. The occurrence of any of the following will constitute a
"Default" by Lessee: (a) nonpayment by Lessee when due of any amount due and
payable under this Lease; (b) failure of Lessee to comply with any provision of
this Lease, and failure of Lessee to remedy, cure, or remove such failure
within ten (10) days after receipt of written notice thereof from Company; (c)
any statement, representation, or warrant of Lessee to Company, at any time,
that is untrue as of the date made; (d) Lessee's becoming insolvent or unable
to pay its debts as they mature, or Lessee making an assignment for the benefit
of creditors, or any proceeding, whether voluntary or involuntary, being
instituted by or against Lessee alleging that Lessee is insolvent or unable to
pay its debts as they mature; (e) appointment of a receiver, liquidator,
trustee, custodian or other similar official for any of the Equipment or for
any property in which Lessee has an interest; (f) seizure of any of the
Equipment; (g) default by Lessee under the terms of any note, document,
agreement or instrument evidencing an obligation of Lessee to Company or to any
affiliate of Company, whether now existing or hereafter arising; (h) Lessee
taking any action with respect to the liquidation, dissolution, winding up or
otherwise discontinuing the conduct of its business; (i) Lessee transferring
all or substantially all of its assets to a third party; or (j) the transfer,
conveyance, assignment or pledge of a controlling interest or ownership of
Lessee to a third party without Company's prior written consent.
12. OPTION TO ACCELERATE AT WILL. If at any time Company in good faith
believes that the prospect for Lessee's payment or other performance under this
Lease is impaired, Company may demand immediate payment of all rents due and
scheduled to come due during the remainder of the Lease term. All future rent
accelerated under this or any other provision of this Agreement will be
discounted to present value, which will be computed at a discount rate of five
(5) percent. Failure of Lessee to make full payment within thirty (30) days of
its receipt of the demand for accelerated rent will constitute a "Default" by
Lessee as defined in Section 11.
13. REMEDIES. Upon the occurrence of any Default or at any time thereafter,
Company may terminate this Lease as to any or all items of Equipment, may enter
Lessee's premises and retake possession of the Equipment at Lessee's expense,
and will have all other remedies at law or in equity for breach of the Lease.
Lessee acknowledges that in the event of a breach of Sections 4 or 5 or a
failure or refusal of Lessee to relinquish possession of the Equipment in
breach of this section following termination or Default, Company's damages
would be difficult or impossible to ascertain, and Lessee therefore agrees that
Company will have the right to an injunction in any court of competent
jurisdiction restraining said breach and granting Company the right to
immediate possession of the Equipment.
14. LIQUIDATED DAMAGES. If Lessee acts in violation of the prohibitions
described in Section 3 of this Agreement, or is unable or unwilling to return
the Equipment to Company in good working order, normal usage wear and tear
excepted, at the expiration or termination of the Lease, Lessee shall pay as
liquidated damages the total of: (i) the amount of past-due lease payments,
discounted accelerated future lease payments, and the value of Company's
residual interest in the Equipment, plus (ii) all tax indemnities associated
with the Equipment to which Company would have been entitled if Lessee had
fully performed this Lease, plus (iii) costs, interest, and attorneys' fees
incurred by Company due to Lessee's violation of Section 3 or its failure to
return the Equipment to Company, minus (iv) any proceeds or offset from the
release or sale of the Equipment by Company.
15. OTHER TERMS. No failure by Company to exercise and no delay in exercising
any of Company's rights hereunder will operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or of any other rights. This Lease constitutes the
entire agreement of the parties and supersedes all prior oral and written
agreements between the parties governing the subject matter of this Lease;
provided, however, that if Company and Lessee have entered into a Marketing
Agreement into which this Lease is incorporated, to the extent that any of the
terms in this Lease conflict with the terms set forth in the Marketing
Agreement, the terms of the Marketing Agreement will control. No agreement will
be effective to amend this Lease unless such agreement is in writing and signed
by the party to be charged thereby. Any notices permitted or required by this
Lease will be in writing and mailed by certified mail or hand delivered,
addressed to the respective addresses of the parties on the reverse side of
this Lease. THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF GEORGIA.
Time is of the essence to each and all of the provisions of this Lease.
