**Exhibit 10.9**

 

 

**T.G.I. FRIDAY’S® RESTAURANTS**

 

**DEVELOPMENT AGREEMENT**

 

**CORNERSTONE PRODUCTIONS, INC.**

 

**Date: March 15, 2004**

 

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**T.G.I. FRIDAY’S® RESTAURANTS**

 

**DEVELOPMENT AGREEMENT**

 

**TABLE OF CONTENTS**

 
| 1.     | DEFINITIONS                                                                          |   |
|--------|--------------------------------------------------------------------------------------|--------|
|   |                                                                                 |   |
| 2.     | EXCLUSIVE  RIGHTS; TERM                                                              |   |
|   |                                                                                 |   |
| 3.     | DEVELOPMENT  SCHEDULE; SITE SELECTION; OCCUPANCY CONTRACT; DEVELOPMENT MANUALS       |   |
|   |                                                                                 |   |
| 4.     | FEES AND  PAYMENTS                                                                   |   |
|   |                                                                                 |   |
| 5.     | REPRESENTATIVE;  OPERATOR; RESTAURANT MANAGERS; TRAINING                             |   |
|   |                                                                                 |   |
| 6.     | CONFIDENTIAL INFORMATION                                                             |   |
|   |                                                                                 |   |
| 7.     | DEVELOPER’S  REPRESENTATIONS AND WARRANTIES; AFFIRMATIVE AND NEGATIVE COVENANTS |   |
|   |                                                                                 |   |
| 8.     | TRANSFER                                                                             |   |
|   |                                                                                 |   |
| 9.     | CONSENT  AND WAIVER                                                                  |   |
|   |                                                                                 |   |
| 10.    | DEFAULT  AND REMEDIES                                                                |   |
|   |                                                                                 |   |
| 11.    | INSURANCE                                                                            |   |
|   |                                                                                 |   |
| 12.    | INDEMNIFICATION                                                                      |   |
|   |                                                                                 |   |
| 13.    | NOTICES                                                                              |   |
|   |                                                                                 |   |
| 14.    | FORCE MAJEURE                                                                        |   |
|   |                                                                                 |   |
| 15.    | SEVERABILITY                                                                         |   |
|   |                                                                                 |   |
| 16.    | INDEPENDENT  CONTRACTOR                                                              |   |
|   |                                                                                 |   |
| 17.    | DUE DILIGENCE AND  ASSUMPTION OF RISK                                                |   |
|   |                                                                                 |   |
| 18.    | MISCELLANEOUS                                                                        |   |
|   |                                                                                 |   |
| 19.    | CHOICE OF LAW;  JURISDICTION; VENUE                                                  |   |
|   |                                                                                 |   |
| 20.    | ENTIRE  AGREEMENT                                                                    |   |

 

 

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| ADDENDUM A | COVENANT  AND AGREEMENT FOR CONFIDENTIALITY (PRINCIPAL) |   |
|------------|---------------------------------------------------------|--------|
|       |                                                    |   |
| ADDENDUM B | COVENANT  AND AGREEMENT FOR CONFIDENTIALITY (OTHERS)    |   |
|       |                                                    |   |
| EXHIBIT A  | FRANCHISE  AGREEMENT                                    |   |
|       |                                                    |   |
| EXHIBIT B  | GUARANTY  AGREEMENT                                     |   |
|       |                                                    |   |
| EXHIBIT C  | TERRITORY                                               |   |

 

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**DEVELOPMENT AGREEMENT**

 

ThisDevelopment Agreement is entered into as of the            day of                   ,2004 but effective January 1, 2004 by and between TGI Friday’s Inc., a NewYork corporation (“Friday’s”), with its principal place of business located at4201 Marsh Lane, Carrollton, Texas, 75007, and Cornerstone Productions, Inc., aDelaware corporation (“Developer”), with its principal place of businesslocated at 5050 North 40th Street, Suite 200, Phoenix, Arizona 85018and its Principals (as defined herein below).

 

**RECITALS**

 

WHEREAS,Friday’s has developed and owns the System;

 

WHEREAS,Friday’s intends to identify the System in the Territory with the ProprietaryMarks; and

 

WHEREAS,Developer wishes to obtain certain rights to develop Restaurants under theSystem in the Territory.

 

NOW,THEREFORE, the parties, in consideration of the undertakings and commitmentsset forth herein, agree as follows:

 

# **1.  DEFINITIONS**

# ** **

As used in this Agreementthe following words and phrases shall have the meanings attributed to them inthis Section:

 

Action- any cause of action, suit, proceeding, claim, demand, investigation orinquiry (whether a formal proceeding or otherwise) asserted or instituted by athird party with respect to which the indemnity described in Section 12applies.

 

Affiliate- Carlson Restaurants Worldwide Inc., or any subsidiary thereof or anysubsidiary of TGI Friday’s Inc.

 

Agreement -this Development Agreement.

 

Appraiser(s)- one or more independent third parties selected by the parties to thisAgreement in accordance with the terms and conditions hereof.

 

Business Days- Each day except Saturday, Sunday and national legal holidays.

 

Commencement Date– January 1, 2004.

 

Competing Business- a restaurant business offering the same or similar products and services asoffered by restaurants in the System or restaurants in any other concept orsystem owned, operated or franchised by Friday’s or any Affiliate, including,without limitation, waiter/waitress service, sit-down dining and bar services.

 

 

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ConfidentialInformation - the System, the Development Manual, the Manuals(as defined in the Franchise Agreement), other manuals, the Standards, writtendirectives and all drawings, equipment, recipes, computer and point of saleprograms (and output from such programs), and any other information, know-how,techniques, materials and data imparted or made available by Friday’s which is(i) designated as confidential, (ii) known by Developer to be consideredconfidential by Friday’s, or (iii) by its nature inherently or reasonablyconsidered confidential.

 

Developer - Cornerstone Productions,Inc., a Delaware corporation.

 

DeveloperIndemnitees - Developer, Principals, and their respectivedirectors, officers, employees, agents, shareholders, affiliates, successorsand assigns and the respective directors, officers, employees, agents,shareholders, affiliates, successors and assigns of each.

 

Development Fee- a fee equal to the sum of ten percent (10%) of the Franchise Fee for eachRestaurant to be developed pursuant to the Development Schedule.

 

Development Manual- Friday’s manual, as amended from time to time, describing (generally) theprocedures and parameters for the development of T.G.I. Friday’s®Restaurants.

 

DevelopmentMaterials - a description of the Site, a feasibility study(including, without limitation, demographic data, photographs, maps, artists’renderings, site plans, a copy of the Occupancy Contract, and documentationindicating Developer’s prospects to acquire the Site) and such otherinformation related to the development of the Site as Friday’s reasonablyrequests.

 

Development Schedule -the schedule pursuant to which Developer shall develop Restaurants in theTerritory (see Section 3.A).

 

Entertainment Park– includes, but is not limited to any amusement park, theme park, or any otherentertainment venue which has a national presence of at least two (2) or moresuch parks in existence, and which has averaged at least 1.5 million persons inannual attendance for the preceding three (3) calendar years at any one (1)park location.

 

Event of Default- as defined in Section 10.

 

FranchiseAgreement - an agreement pursuant to which Developerconstructs and operates a Restaurant during the Development Schedule, whichshall be substantially in the form attached as Exhibit A.

 

Franchisee- as defined in the Franchise Agreement.

 

Franchise Fee- an initial per Restaurant fee (more fully defined in the Franchise Agreement)paid by Developer to Friday’s, which fee varies in accordance with the numberof Restaurants previously developed under each Development Schedule.

 

Friday’s- TGI Friday’s Inc., a New York corporation.

 

Friday’sIndemnitees - Friday’s, its directors, officers, employees,agents, shareholders, affiliates, successors and assigns and the respectivedirectors, officers, employees, agents, shareholders and affiliates of each.

 

Headquarters- the location(s) designated from time to time by Friday’s as its principalplace of business.

 

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Indemnitees- Friday’s Indemnitees and Developer Indemnitees.

 

Losses andExpenses - all compensatory, exemplary or punitive damages,fines, charges, costs, expenses, lost profits, reasonable fees of attorneys andother engaged professionals, court costs, settlement amounts, judgments, costsof or resulting from delays, financing, costs of advertising material and mediatime/space, and costs of changing, substituting or replacing the same, and anyand all expenses of recall, refunds, compensation, public notices and othersuch amounts incurred in connection with the matters described in Section 12.

 

Material Event ofDefault - an Event of Default which constitutes a substantialdeviation from the performance required.

 

Multi-UnitManager(s) - the individual(s) designated as described in Section 5.Ewho shall be solely dedicated to the management and supervision of the Restaurants.

 

NSO-Team- a “new store opening team” consisting of Friday’s employees and certain ofFranchisee’s employees to whom Friday’s has consented which shall perform thefunctions described in Section 5.I.

 

Occupancy Contract- the proposed agreement or document (including, without limitation, any lease,deed, contract for sale, contract for deed, land contract, management contract,license, or other agreement purporting to grant any right, title, or interestin or to the Site) pursuant to which Developer shall occupy or acquire rightsin any Site.

 

Operator- an individual designated as described in Section 5.B. who shall devotehis full time and best efforts to the management and supervision of (i)Developer’s duties and obligations hereunder; and (ii) the operation of theRestaurants.

 

Other Concepts- Retail, wholesale, restaurant, bar, tavern, take-out or any other type ofbusiness involving the production, distribution or sale of food products,beverages, services, merchandise or other items in connection with the use ofone, some or all of the Proprietary Marks or other names or marks, bututilizing a system other than the System pursuant to which a T.G.I. Friday’sRestaurant is operated.

 

Owner- the party (if other than the Developer) owning or controlling the Site andbeing a party (with Developer) to the Occupancy Contract.

 

Payments- all transfers of funds from Developer to Friday’s including, withoutlimitation, the Development Fee and reimbursement of expenses.

 

PermanentDisability - any physical, emotional or mental injury,illness or incapacity which would prevent the afflicted person from performinghis obligations hereunder for more then ninety (90) consecutive days asdetermined by a licensed physician selected by Friday’s.

 

Preliminary SiteConsent - written communication from Friday’s to Developernotifying Developer that a proposed site has received the consent of the Friday’sSite Review Committee.

 

Principal(s)– Main Street and Main Incorporated who is (and such other persons or entitiesto whom Friday’s shall consent from time to time) the record and beneficialowner of, and has the right to vote its respective interest (collectively 100%)in the Securities of Developer or the securities or partnership

 

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interest of any person orentity designated by Friday’s which owns or controls a direct or indirectinterest in the Securities of the Developer.

 

Project Manager- an individual designated as described in Section 5.C who shall devotehis full-time and best efforts to the coordination and completion of Restaurantconstruction.

 

Proprietary Marks- certain trademarks, trade names, trade dress, service marks, emblems andindicia of origin designated by Friday’s from time to time for use inconnection with the operation of Restaurants pursuant to the System in theTerritory, including, without limitation, “**TGI Friday’s®**”,“**Friday’s®**” and “**The American Bistro®**”.

 

Publicly - HeldEntity - a corporation or other entity whose equity securitiesare (i) registered pursuant to applicable law; (ii) widely held by the public;and (iii) traded on a public securities exchange or over the counter pursuantto applicable law.

 

Representative- an individual, designated as described in Section 5.A. who (i) owns anequity interest in the Developer and (ii) is authorized to act on behalf of,and bind, Developer with respect to this Agreement.

 

Restaurant(s)- T.G.I. Friday’s® Restaurant(s) developed pursuant to thisAgreement.

 

RestaurantManager(s) - general manager, assistant general manager,kitchen manager and other managers required for the management, operation,supervision and promotion of the Restaurant pursuant to the terms hereof.

 

Security- the capital stock of, partner’s interest in, or other equity or votinginterest in Developer including such interests issued or created subsequent tothe date hereof.

 

Site- the proposed location of any Restaurant.

 

Standards- Friday’s standards and specifications, as amended from time to time by Friday’s,contained in, and being a part of, the Confidential Information pursuant towhich Developer shall develop and operate Restaurants in the Territory.

 

System- a unique, proprietary system developed and owned by Friday’s (which may bemodified or further developed from time to time by Friday’s) for theestablishment and operation of full-service restaurants and restaurant/barsunder the Proprietary Marks, which includes, without limitation, a distinctiveimage consisting of exterior and interior design, decor, color scheme andfurnishings; special recipes, menu items and full service bar; uniformstandards, products, services and specifications; procedures with respect tooperations, inventory and management control (including accounting proceduresand policies); training and assistance; and advertising and promotionalprograms.

 

Term- the duration of this Agreement commencing on the Commencement Date andcontinuing until the date specified on the Development Schedule for thelast restaurant to be opened.

 

TerritorialExpenses - such costs and expenses incurred by or assessedwith respect to Friday’s (or other described party’s) employees, agents and/orrepresentatives in connection with activities in the Territory which Developeris obligated to pay pursuant to this Agreement, including, without limitation,hotel/lodging, transportation and meals, and other related or incidentalexpenses.

 

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Territory- the geographical area described in Exhibit C; provided, however, theTerritory shall not include any airport properties, professional sportsstadiums, military bases, Entertainment Parks or casinos otherwise locatedwithin the Territory, nor a specifically identified restricted area surroundingany Restaurant located within the Territory as of the date of this Agreementnor shall it be deemed to convey any exclusivity with respect to the use of theProprietary Marks.

 

TGIFM -TGI Friday’s of Minnesota Inc., a Minnesota corporation and a subsidiary ofFriday’s.

 

T.G.I. Friday’s®Restaurants - restaurants operated in accordance with theSystem under the registered service marks “**Friday’s®**”or “**T.G.I. Friday’s®**”.

 

Training Center- the location(s) specified from time to time by Friday’s as the trainingcenter.

 

Transfer- the sale, assignment, conveyance, license, devise, bequest, pledge, mortgageor other encumbrance, whether direct or indirect, of (i) this Agreement; (ii)any or all rights or obligations of Developer herein; or (iii) any interest inany Security, including the issuance of any new Securities.

 

TransfereeOwner(s) - the owner of any and all record or beneficialinterest in the capital stock of, partner’s interest in, or other equity orvoting interest in any transferee of a Transfer occurring pursuant to the termsof Section 8.

 

Wage Expenses- such wages and/or salaries (including a reasonable allocation of the cost ofbenefits) of, or with respect to, Friday’s (or other described party’s)employees, agents and/or representatives to be reimbursed to Friday’s or suchparty as described herein.

 

# **2.**                                      EXCLUSIVERIGHTS; TERM

# ** **

A.                                   Friday’sgrants to Developer the right, and Developer accepts the obligation, subject tothe terms and conditions herein, to develop and operate the number ofRestaurants set forth in the Development Schedule (set forth in Section 3.A)as may be approved by Friday’s in accordance with its then current site consentprocedures.  The Restaurants shall bedeveloped and operated in the Territory pursuant to the System.  For so long as no Event of Default hasoccurred and is continuing and no event has occurred which, with the giving ofnotice or lapse of time, or both, would constitute an Event of Default, Friday’swill neither develop, nor authorize any other person to develop, T.G.I. Friday’sRestaurants in the Territory during the Term.

 

B.                                     Friday’sreserves the right to use the Proprietary Marks in connection with OtherConcepts.

 

C.                                     Friday’sexpressly reserves the right, and Developer acknowledges that Friday’s has theexclusive unrestricted right, to engage, directly and indirectly, through itsemployees, developers, franchisees, licensees, agents and others within theTerritory, in Other Concepts.  Such OtherConcepts may compete with Developer directly or indirectly.

 

D.                                    Subjectto Sections 3 and 4 hereof, Developer shall exercise the rights granted hereinfor each Restaurant by executing, delivering and otherwise performing pursuantto a Franchise Agreement.

 

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E.                                      Unlesssooner terminated as provided herein, this Agreement shall commence on theCommencement Date and continue until the expiration of the Term.  This Agreement shall automatically expire at11:59 p.m. on the date specified in Section 3.A. as the opening date forthe last restaurant to be opened.

 

F.                                      Uponany termination or expiration of this Agreement, (i) Developer shall notdevelop additional Restaurants in the Territory pursuant to this Agreement; provided,however, that Developer may complete development of and/or operate Restaurantsunder then existing Franchise Agreements subject to the terms and conditionsthereof; and (ii) Friday’s may develop, or authorize others to develop,Restaurants in the Territory.

 

# **3.**                                      DEVELOPMENTSCHEDULE; SITE SELECTION; OCCUPANCY CONTRACT; DEVELOPMENT MANUALS

# ** **

A.                                   Developershall develop, open, commence operation of and continuously operate pursuant tothe respective Franchise Agreements six (6) Restaurants in the Territory,pursuant to the Development Schedule as follows:

 
| **Restaurant No.** | ** ** | **Date of Preliminary  Site Consent** | ** ** | **Date Franchise  Agreement Signed  & Fees Paid** | ** ** | **Date Open &  Operating** | ** ** |
|--------------------|------------|---------------------------------------|------------|-------------------------------------------------------|------------|--------------------------------|------------|
| 1                  |       | 9/23/04                               |       | 12/23/04                                              |       |    3/23/05*     |       |
| 2                  |       | 6/23/05                               |       | 9/23/05                                               |       | 12/23/05                       |       |
| 3                  |       | 6/23/06                               |       | 9/23/06                                               |       | 12/23/06                       |       |
| 4                  |       | 6/23/07                               |       | 9/23/07                                               |       | 12/23/07                       |       |
| 5                  |       | 6/23/08                               |       | 9/23/08                                               |       | 12/23/08                       |       |
| 6                  |       | 6/23/09                               |       | 9/23/09                                               |       | 12/23/09                       |       |

 

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*RestaurantNo. 1 must be under construction by December 31, 2004.

 

(i).                                  Tosatisfy a particular deadline for preliminary site consent, Developer mustsubmit a site that can be open and operating by the corresponding restaurantopening deadline.  If Developer submits asite for preliminary site consent, but the site cannot be open and operating bythe next restaurant opening deadline, that site will not satisfy the deadlinefor preliminary site consent that corresponds to the next restaurant openingdeadline.

 

(ii).                               TheFranchise Agreement for each restaurant location must be fully executed and allfranchise fees paid within the time frames set forth in the foregoingDevelopment Schedule.

 

(iii).                            Timeis of the essence, with respect to each of the development obligationsspecified in this Section 3.

 

(iv).                           TheDevelopment Schedule contains a specific minimum number of Friday’sRestaurants to be open and operating by Developer within the Territory during certaintime periods, and if any Restaurants are temporarily or permanently closed forbusiness (except for authorized holidays or temporarily for major repairs),such closed Restaurants will not be included, while closed, as open andoperating in computing such minimum numbers of open and operating Friday’sRestaurants and in satisfying the deadlines set forth in the DevelopmentSchedule.

 

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B.                                     Thenumber of Restaurants indicated in the Development Schedule shall be **OPEN AND OPERATING** by the date(s) specified therein.  Friday’s consent to any Site or execution ofa Franchise Agreement shall not waive, extend or modify the DevelopmentSchedule.  Unless otherwise agreed andapproved by Friday’s, the Restaurants shall refer to traditional T.G.I. Friday’sRestaurants.

 

C.                                     Developerassumes all cost, liability, expense, risk and responsibility for locating,obtaining and developing Sites for Restaurants, and for constructing andequipping Restaurants at such Sites.  Prior to execution of each FranchiseAgreement, Developer shall obtain Friday’s consent to each Site (including,without limitation, the Proprietary Mark which shall be used to identify theRestaurant at the Site to the public) pursuant to the time frames set forth in Section 3.A.above in accordance with Friday’s then existing Site selection criteria andprocedures including:

 

(1)                                  submissionof all Development Materials to Friday’s; and

 

(2)                                  withrespect to each Restaurant to be developed hereunder, completion of one (1)Site visit by Friday’s at Friday’s sole cost and expense, if required by Friday’s.

 

D.                                    Withinthirty (30) days following receipt of all Development Materials and completionof any such visit, Friday’s shall consent to or reject such Site.  Friday’s failure to consent shall constituterejection of such Site.  Promptly afterFriday’s consent is obtained, but prior to commencing construction at suchSite, Developer shall execute a Franchise Agreement and pay the Franchise Fee.

 

E.                                      NeitherFriday’s (i) consent to nor (ii) assistance in the selection of, any Site shallconstitute Friday’s representation or warranty that a Restaurant operated atsuch Site will be profitable or meet any financial projection.

 

F.                                      Friday’sshall have the right to review and consent to the Occupancy Contract prior tothe execution thereof.  A copy of theproposed Occupancy Contract shall be provided to Friday’s within sixty (60)days of the date of Preliminary Site Consent. The Occupancy Contract shall be executed by all necessary parties withinthirty (30) days following Friday’s consent thereto.  Developer shall furnish Friday’s a completecopy of the executed Occupancy Contract within ten (10) days after execution.Unless it conveys to Developer fee simple title to the Site, the OccupancyContract shall include the following covenants:

 

(1)                                  Ownershall deliver to Friday’s, simultaneously with delivery to Developer, anynotice alleging Developer’s default under the Occupancy Contract whichthreatens or purports to terminate the Occupancy Contract;

 

(2)                                  Friday’smay enter the Restaurant premises to protect the Proprietary Marks or theSystem or to cure any Event of Default or default under the Occupancy Contractor the applicable Franchise Agreement;

 

(3)                                  Developermay assign the Occupancy Contract to Friday’s without any fee or modificationthereof and Friday’s may assign or sublease the Occupancy Contract or licensethe Restaurant premises for any part of the remaining term of the OccupancyContract, each without Owner’s consent; and

 

(4)                                  Ownerand Developer shall not amend the Occupancy Contract in any way which isinconsistent with the provisions of Sections 3.F(1) through (4), inclusive.

 

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G.                                     Notwithstandingthe terms of Section 3.F, Developer shall:

 

(1)                                  deliverto Friday’s, immediately after delivery to or by Developer, any notice ofdefault under the Occupancy Contract which threatens or purports to terminatethe Occupancy Contract or result in a foreclosure thereof;

 

(2)                                  permitFriday’s to enter the Restaurant premises to protect the Proprietary Marks orthe System or to cure any Event of Default or default under the OccupancyContract or the applicable Franchise Agreement, all at Developer’s expense; and

 

(3)                                  notamend the Occupancy Contract in any way which is inconsistent with theprovisions of Sections 3.F.(1) through (4), inclusive.

 

H.                                    Friday’sshall provide Developer with one (1) Development Manual “on loan” and two (2)sets of Friday’s standard plans and specifications as of the date hereof forthe construction of a typical Restaurant. Developer acknowledges Friday’s ownership of the Development Manual andany such plans and specifications, together with any copyright rights in or tosuch materials.  Developer shall observeFriday’s reasonable requests concerning copyright notices.  The Development Manual and such plans shallbe returned to Friday’s immediately upon termination or expiration of thisAgreement.

 

I.                                         Friday’sshall provide such consultation as it reasonably deems necessary to consent tovendors and products proposed to be used in Restaurant development andoperation.

 

# **4.**                                      FEESAND PAYMENTS

# ** **

A.                                   Inconsideration of the development rights granted herein, Developer shall pay toFriday’s upon execution of this Agreement the Development Fee. Under nocircumstances shall Developer be entitled to any refund of any portion of theDevelopment Fee.

 

B.                                     TheFranchise Fee to be paid by Developer for each new Restaurant to be developedunder the Development Schedule set forth in Section 3.A hereof shallbe Fifty Thousand Dollars ($50,000.00) for each Restaurant, payable uponexecution of the Franchise Agreement for each Restaurant in accordance with theDevelopment Schedule.  Developer shallreceive a credit of $5,000 against the payment of the Franchise Fee due foreach Restaurant developed pursuant to the Development Schedule.

 

 
| **Restaurant No.** | ** ** | **Amount of Credit**               | ** ** |
|--------------------|------------|------------------------------------|------------|
| 6 or more          |       | Five Thousand  Dollars ($5,000.00) |       |

 

C.                                     (1)                                  AllPayments shall be submitted to Friday’s at the address provided in Section 13hereof, in care of the “Treasurer”, or such other address as Friday’s shalldesignate in writing.

 

(2)                                  Paymentsshall be received by Friday’s (i) upon execution hereof in the case of theDevelopment Fee; (ii) upon execution of each Franchise Agreement; and (iii) notmore than thirty (30) days after date of invoice for all other Payments.  Delinquent Payments shall bear interest fromthe due date until received by Friday’s at eighteen percent (18%) per annum orthe maximum rate permitted by law, whichever is less.

 

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D.                                    Developershall not withhold or off-set any portion of any Payment due to Friday’salleged non-performance under this Agreement or any other agreement by and betweenFriday’s and Developer or their respective parent corporations, subsidiaries oraffiliates.

 

# **5.**                                      REPRESENTATIVE;OPERATOR; RESTAURANT MANAGERS;TRAINING

# ** **

A.                                   Developerhereby designates **Bill Shrader** asthe Representative.  Any replacementRepresentative shall be designated within ten (10) days of the priorRepresentatives’ resignation or termination. Each Representative shall attend and successfully complete at theTraining Center Friday’s “Owner’s Orientation Program” (currently approximatelyfour (4) weeks).  The Representativehereunder and under each Franchise Agreement shall be the same individual.

 

B.                                     Developerhereby designates **Jeff L. Smit** asthe Operator.  Any replacement Operatorshall be designated within ten (10) days of the prior Operator’s resignation ortermination.  Each Operator shall attendand successfully complete at the Training Center within six (6) months ofappointment Friday’s training program required for Restaurant Managers (seeSection 5.D.).  The Operatorhereunder and under each Franchise Agreement shall be the same individual.

 

C.                                     Notless than sixty (60) days prior to the commencement of Restaurant construction,Developer shall designate the Project Manager. Any replacement Project Manager shall be designated within ten (10) daysof the prior Project Manager’s resignation/termination.

 

D.                                    Therequisite number of Restaurant Managers, as determined by Friday’s, shall beemployed by Developer for each Restaurant developed hereunder.  All Restaurant Managers shall attend and successfullycomplete at the Training Center Friday’s training program for RestaurantManagers of T.G.I. Friday’s® Restaurants (currently, one (1)week).  Additionally, the RestaurantManagers shall attend and successfully complete additional training (currently,approximately fourteen (14) weeks) at such then existing T.G.I. Friday’sRestaurants as shall be designated by Friday’s. Any previously trained Restaurant Manager who is not a general manager,but has been selected to become a general manager shall attend and successfullycomplete such additional training as Friday’s may require.  Friday’s may require general and kitchenmanagers, at Developer’s expense, to attend and successfully completeadditional training at the Training Center.

 

E.                                      Whenthe Franchise Agreement for the third Restaurant is executed, Developer shalldesignate a Multi-Unit Manager. Additional Multi-Unit Managers shall be designated from time to time asreasonably required by Friday’s.  Priorto assuming his duties, each Multi-Unit Manager shall have successfullycompleted Restaurant Manager training and shall attend at the Training Centerand successfully complete Friday’s training program for Multi-Unit Managers(currently, two (2) days at the Training Center and approximately four (4)weeks at such then existing T.G.I. Friday’s® Restaurant locations asshall be designated by Friday’s).

 

F.                                      Friday’sshall have the right to interview and consent to each Operator, each Multi-UnitManager, Project Manager and all Restaurant Managers.  Friday’s shall endeavor to conduct suchinterviews in the Territory, but may require that such interviews occur atHeadquarters.  Developer shall bear allcosts and expenses related to making the Restaurant Managers available for suchinterviews.

 

G.                                     Friday’sshall provide instructors, facilities and materials for training at theTraining Center, and shall provide, at its option, other training programs atnon-Training Center locations as may be designated by Friday’s from time totime in the Manuals or otherwise in writing. Developer shall

 

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reimburse Friday’s forany Territorial Expenses or other direct expenses incurred by Friday’s for suchother training programs.

 

H.                                    Exceptas provided herein, Developer shall bear all costs and expenses relating to anyRepresentative, Operator, Multi-Unit Manager, Project Manager and RestaurantManager training.

 

I.                                         TheNSO Team shall assist in (i) training Developer’s/Franchisee’s employees ateach Restaurant; and (ii) the opening of each Restaurant.  The NSO Team for a Restaurant typicallyconsists of a combined total of approximately twelve (12) employees of Friday’sand Developer/Franchisee (the actual number of members shall be determined byFriday’s depending upon the number of Restaurant locations already open andoperating by Developer and such other criteria as Friday’s deemsrelevant).  The members of the NSO Teamshall be subject to Friday’s consent. The number of Friday’s employees selected to serve on the NSO Team for aRestaurant is determined according to the following schedule, provided however,Friday’s may elect to modify this schedule in the event the total numberof people on the NSO Team is greater or less than twelve (12):

 
| **No. of Restaurants  Operated  By Developer** | ** ** | **No. of Friday’s  Employees  on the NSO Team** | ** ** | **Team Members  Paid for by  Developer** |
|------------------------------------------------|------------|------------------------------------------------------|------------|------------------------------------------|
| 7 or more                                      |       | 2                                                    |       | 10                                       |

 

In the event Friday’sdetermines that more than 12 NSO team members are necessary for an opening,Developers with five or more restaurants open (inclusive of the new restaurant)shall be responsible for the costs associated with the team members in excessof 12.  For Developers with less thanfive restaurants open, Friday’s will bear the costs of the additional teammembers.

 

If Developer/Franchiseefails or is unable to timely provide such employees, Friday’s may, but shallnot be obligated to, staff the NSO-Team with Friday’s employees.  Friday’s and Developer/Franchisee shall eachbe responsible for: (a) making all travel, food and lodging arrangements, and(b) the wage and other expenses of the NSO-Team members provided by each;provided, however, that Developer/Franchisee shall reimburse Friday’s for theTerritorial Expenses and the Wage Expenses of Friday’s employees who areprovided as a result of Developer’s/Franchisee’s failure or inability toprovide Developer/Franchisee employees for participation on the NSO-Team.

 

# **6.**                                      CONFIDENTIALINFORMATION

# ** **

A.                                   (1)                                  Neither Developer nor any Principal shall communicate,disclose or use any Confidential Information except as (i) permitted herein or(ii) required by law, and shall use all reasonable efforts to maintain suchinformation as secret and confidential. Neither Developer nor any Principal shall, without Friday’s priorconsent, copy, duplicate, record or otherwise reproduce any ConfidentialInformation.  Confidential Informationmay be provided to employees, agents, consultants and contractors only to theextent necessary for such parties to provide services to Developer.  Prior to such disclosure of any ConfidentialInformation, each of such employees, agents, consultants and contractors shall(a) be advised by Developer of the confidential and proprietary nature of theConfidential Information, and (b) agree to be bound by the terms and conditionsof Section 6 of this Agreement. Notwithstanding such agreement, Developer shall indemnify the Friday’sIndemnitees from any damages, costs or expenses resulting from or related toany disclosure or use of Confidential Information by its agents, employees,consultants and contractors.

 

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(2)                                  Inthe event Developer or Developer’s employees, agents, consultants, orcontractors receive notice of any request, demand, or order to transfer ordisclose all or any portion of the Confidential Information, Developer shallimmediately notify Friday’s thereof, and shall fully cooperate with and assistFriday’s in prohibiting or denying any such transfer or disclosure.  Should such transfer or disclosure berequired by a valid, final, non-appealable court order, Developer shall fullycooperate with and assist Friday’s in protecting the confidentiality of theConfidential Information to the maximum extent permitted by law.

 

(3)                                  Developerand each Principal acknowledge Friday’s exclusive ownership of the ConfidentialInformation and the System, and TGIFM’s exclusive ownership of, and Friday’slicense with respect to, the Proprietary Marks. Neither Developer nor anyPrincipal shall, directly or indirectly, contest or impair Friday’s or TGIFM’sexclusive ownership of, and/or license with respect to, the ConfidentialInformation, the System or the Proprietary Marks.

 

B.                                     IfDeveloper develops improvements (as determined by Friday’s) to the ConfidentialInformation, Developer and the Principals shall each, without additionalconsideration, execute such agreements and other documentation as shall bedeemed necessary by Friday’s, granting exclusive ownership thereof to Friday’s.  All such improvements shall be ConfidentialInformation.

 

C.                                     EachPrincipal shall execute and deliver to Friday’s a covenant in the form attachedas Addendum A.  Developer shallcause each Operator, Representative, Multi-Unit Manager, Project Manager, andRestaurant Manager and such other employees of Developer whom Friday’s shalldesignate to execute and (if requested) deliver to Friday’s a covenant in theform attached as Addendum B. Notwithstanding the execution of such covenant, Developer shallindemnify the Friday’s Indemnitees from any damages, costs or expensesresulting from or related to any disclosure or use of Confidential Informationby any Principal, Operator, Representative, Multi-Unit Manager, Project Manageror Restaurant Manager.

 

D.                                    Immediatelyupon any termination or expiration hereof, Developer and each Principal shallreturn the Confidential Information including, without limitation, that portionof the Confidential Information which consists of analyses, compilations,studies or other documents containing or referring to any part of the ConfidentialInformation, prepared by Developer or such Principal, their agents,representatives or employees, and all copies thereof.

 

# **7.**                                      DEVELOPER’SREPRESENTATIONS AND WARRANTIES; AFFIRMATIVE AND NEGATIVE COVENANTS

# ** **

A.                                   Inthe event Developer is a corporation, limited liability company or partnership,Developer represents and warrants to Friday’s as follows:

 

(1)                                  Developeris duly organized, validly existing and in good standing under the laws of thejurisdiction of its organization with all requisite power and authority to own,operate and lease its assets (real or personal), to carry on its business, toenter into this Agreement and perform its obligations hereunder.  Developer is duly qualified to do businessand is in good standing in each jurisdiction in which its business or theownership of its assets requires.

 

(2)                                  Theexecution, delivery and performance by Developer of this Agreement, anyFranchise Agreement and all other agreements contemplated herein has been dulyauthorized by all requisite action and no further action is necessary to makethis Agreement, any Franchise Agreement or

 

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such other agreementsvalid and binding upon it and enforceable against it in accordance with theirrespective terms.  Neither the execution,delivery nor performance by Developer of this Agreement, any FranchiseAgreement or any other agreements contemplated hereby will conflict with, orresult in a breach of any term or provision of Developer’s articles ofincorporation, by-laws, partnership agreement or other governing documents orunder any mortgage, deed of trust or other contract or agreement to whichDeveloper is a party or by which it or any of its assets are bound, or breachany order, writ, injunction or decree of any court, administrative agency orgovernmental body.

 

(3)                                  Developer’sarticles of incorporation, by-laws, partnership agreement and other governingdocuments expressly limit Developer’s business activities solely to thedevelopment and operation (pursuant to this Agreement and the FranchiseAgreements) of the Restaurants.

 

(4)                                  Certifiedcopies of Developer’s articles of incorporation, by-laws, partnershipagreement, other governing documents and any amendments thereto, includingboard of director’s or partner’s resolutions authorizing this Agreement, havebeen delivered to Friday’s.

 

(5)                                  Acertified current list of all Principals has been delivered to Friday’s.

 

(6)                                  Developer’sarticles of incorporation or other governing documents, or partnership agreementlimit Transfers as described in Sections 8.B.(2) and 8.C.

 

(7)                                  EachSecurity shall bear a legend (in a form to which Friday’s shall consent)indicating that any Transfer is subject to Sections 8.B and 8.C.

 

B.                                     Developeraffirmatively covenants with Friday’s as follows:

 

(1)                                  Developershall perform its duties and obligations hereunder and under any FranchiseAgreement and shall require each Operator, Multi-Unit Manager, Project Managerand Restaurant Manager to dedicate their respective full time and best effortsto the development, construction, management, operation, supervision andpromotion of the Restaurants in accordance with the terms and conditionshereof.

 

(2)                                  Developershall promptly provide Friday’s with all information concerning any new processor improvements in the development, construction, management, operation,supervision or promotion of the Restaurants developed by Developer or anyPrincipal without compensation. Developer and the Principals shall each execute such agreements and otherdocumentation as shall be deemed necessary by Friday’s, granting Friday’sexclusive ownership thereof.

 

(3)                                  Developershall comply with all requirements of applicable rules, regulations, statutes,laws and ordinances.

 

(4)                                  Developershall maintain a current list of all Principals and deliver a certified copythereof to Friday’s upon (i) any Transfer; or (ii) request.

 

(5)                                  EachSecurity issued subsequent to the date hereof shall be in compliance with Section 7.A.(7).

 

(6)                                  Developerand each Principal represent and warrant to Friday’s that: (a) neitherDeveloper nor any Principal is named, either directly or by an alias, pseudonymor nickname, on the lists of “Specially Designated Nationals” or “BlockedPersons” maintained by the U.S. Treasury

 

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Department’s Office ofForeign Assets Control currently located atwww.treas.gov/offices/enforcement/ofac/; (b) Developer and each Principal willtake no action that would constitute a violation of any applicable laws againstcorrupt business practices, against money laundering and against facilitatingor supporting persons or entities who conspire to commit acts of terror againstany person or entity, including as prohibited by the U.S. Patriot Act(currently located at http://www.epic.org/privacy/terrorism/hr3162.html), U.S.Executive Order 13244 (currently located athttp://www.treas.gov/offices/enforcement/ofac/sanctions/terrorism.html) or anysimilar laws; and (c) that Developer and each Principal shall immediatelynotify Friday’s in writing of the occurrence of any event or the development ofany circumstance that might render any of the foregoing representations andwarranties false, inaccurate or misleading.

 

C.                                     Developeracknowledges and/or negatively covenants with Friday’s as follows:

 

(1) Developer shall not amend its articles ofincorporation, by-laws, partnership agreement or other governing documents in amanner which is inconsistent with Sections 7.A.(3), 8.B.(2) and 8.C.

 

(2)  Developer shall not remove or permit removalfrom any Security or its partnership agreement, or issue any Security that doesnot have endorsed upon it, the legend described in Section 7.A.(7).

 

(3)  Developerand each Principal shall receive valuable, unique training, trade secrets andthe Confidential Information which are beyond the present skills, experienceand knowledge of Developer, any Principal and Developer’s employees.  Developer and each Principal acknowledge that(i) such training, trade secrets and the Confidential Information (a) areessential to the development of the Restaurant and (b) provide a competitiveadvantage to Developer; and (ii) access to such training, trade secrets and theConfidential Information is a primary reason for their execution of thisAgreement.  In consideration thereof,Developer and each Principal covenant that, during the Term and for a period ofone (1) year after the expiration or termination hereof, neither Developer norany Principal shall, directly or indirectly:

 

(a)                                  employor seek to employ any person (or induce such person to leave his or heremployment) who is, or has within one (1) year been, employed as a director,officer or in any managerial capacity (i) by Friday’s, (ii) by any developer orfranchisee of Friday’s, or (iii) in any other concept or system owned, operatedor franchised by an Affiliate;

 

(b)                                 own,maintain, operate or have any interest in any Competing Business;

 

(c)                                  own,maintain, operate or have any interest in any Competing Business which businessis, or is intended to be, located in the Territory; or

 

(d)                                 own,maintain, operate or have any interest in any Competing Business which businessis, or is intended to be, located within a three (3) mile radius of anyrestaurant which is a part of a concept or system owned, operated, orfranchised by Friday’s or any Affiliate.

 

(4)                                  Sections7.C.(3)(b), (c) and (d) shall not apply to an interest for investment only offive percent (5%) or less of the capital stock of a Publicly-Held Entity ifsuch owner is not a director, officer or manager therefor or consultantthereto.

 

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D.                                    Eachof the foregoing covenants is independent of each other covenant or agreementcontained in this Agreement.

 

E.                                      Friday’shas the absolute right to reduce the area, duration or scope of any covenantcontained in Section 7.C. without Developer’s or any Principal’s consent,effective upon notice to Developer. Developer and each Principal shall comply with any covenant as somodified.

 

F.                                      Developer’srepresentations, warranties, covenants and agreements herein are continuingrepresentations, warranties, covenants and agreements each of which shallsurvive the expiration or termination hereof.

 

# **8.**                                      TRANSFER

# ** **

A.                                   Friday’smay assign this Agreement, or any of its rights or obligations herein, to anyperson or entity without Developer’s or any Principal’s consent; provided,however, that Friday’s obligations which are assigned shall be fully assumed bythe party to whom Friday’s assigns such obligations.

 

B.                                     (1)                                  Developer and each Principal acknowledge thatDeveloper’s rights and obligations herein and in each Franchise Agreement arepersonal to Developer and that Friday’s has entered into this Agreement andwill enter into each Franchise Agreement relying upon the business skill,experience and aptitude, financial resources and reputation of Developer andeach Principal.  Therefore, neitherDeveloper nor any Principal, their respective successors or permitted assigns,shall complete, or allow to be completed, any Transfer without Friday’sconsent.  Any purported Transfer, byoperation of law or otherwise, without Friday’s consent shall be null and voidand constitute an Event of Default.

 

(2)                                  Friday’smay require satisfaction of any of the following conditions and such otherconditions as Friday’s may reasonably require prior to consenting to anyTransfer, each of which Developer acknowledges and agrees is reasonable andnecessary:

 

(a)                                  noEvent of Default shall have occurred and be continuing and no event shall haveoccurred which, with the giving of notice or lapse of time, or both, wouldconstitute an Event of Default;

 

(b)                                 Developerand/or any affected Principal shall deliver a general release of any and allclaims against the Friday’s Indemnitees including, without limitation, claimsarising under this Agreement and any Franchise Agreement, in a form acceptableto Friday’s;

 

(c)                                  Developerand/or any affected Principal shall remain liable for the performance of itsobligations, covenants and agreements herein through the date of transfer andshall execute all instruments reasonably requested by Friday’s to evidence suchliability;

 

(d)                                 thetransferee and all Transferee Owners, as applicable, shall (i) make each ofDeveloper’s and Principal’s representations and warranties; (ii) assume full,unconditional, joint and several liability for, and agree to perform from thedate of Transfer, each of Developer’s and Principal’s obligations, covenantsand agreements herein; and (iii) execute all instruments (in a form acceptableto Friday’s) reasonably requested by Friday’s to evidence the foregoing;

 

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(e)                                  thetransferee and all Transferee Owners shall satisfy, in Friday’s reasonablejudgment, Friday’s then existing criteria for T.G.I. Friday’s®developers or principals, as applicable, including, without limitation: (i)education; (ii) business skill, experience and aptitude; (iii) character andreputation; and (iv) financial resources;

 

(f)                                    thetransferee and all Transferee Owners shall execute (without extending the Term)the standard form of development agreement then being offered to new Systemdevelopers or other form of this Agreement as Friday’s requests and such otherancillary agreements as Friday’s may request for the development of theRestaurants, which shall supersede this Agreement and its ancillary documentsand the terms of which may differ from the terms hereof; provided, however,that the transferee shall not be required to pay the Development Fee(transferee shall pay all Franchise Fees and other fees described in eachFranchise Agreement which have not already been paid in full by Developer); and

 

(g)                                 atthe transferee’s expense, the transferee’s Representative, any Multi-UnitManager(s), Operator, and Restaurant Managers shall complete such training asthen required (if not previously trained pursuant to the terms hereof), uponsuch terms and conditions as Friday’s may reasonably require.

 

C.                                     Developerand each Principal agree that:

 

(1)                                  (i)Friday’s shall have and is hereby granted a right of first refusal with respectto any Transfer; (ii) should Developer and/or any Principal desire to accept abona fide offer to make a Transfer, such party shall promptly notify Friday’sthereof and shall provide such information and documents relating thereto asFriday’s may require; (iii) within thirty (30) days after receipt of suchnotice, information and documents, Friday’s may notify such party that itintends to exercise its right of first refusal with regard to such Transferupon such terms and conditions; provided, however, that such transaction shallbe consummated within a reasonable period of time after Friday’s has given suchnotice; (iv) any material change in the terms of any offer or any change in theidentity of the proposed transferee shall constitute a new offer subject toFriday’s right of first refusal; and (v) Friday’s failure to exercise suchright shall not constitute a waiver of any other provision of this Agreement,including such right with respect to future offers; and

 

(2)                                  inthe event such offer provides for payment of consideration other than cash,Friday’s may elect to purchase the interest for the reasonable equivalent incash.  If the parties cannot agree withinthirty (30) days of the receipt of notice of Friday’s election to exercise suchright of first refusal on such reasonable equivalent in cash, an Appraiserdesignated by Friday’s shall determine such amount, and his determination shallbe final and binding.  If Friday’s electsto exercise the right of first refusal described above, the cost of theappraisal, if any, shall be set off against any payment made by Friday’shereunder.

 

D.                                    Inthe event Developer requests Friday’s consent to any proposed Transfer, thereshall be paid to Friday’s a non-refundable fee of Five Thousand Dollars($5,000.00), or such greater amount as is necessary to reimburse Friday’s forits costs and expenses associated with reviewing the proposed Transferincluding, without limitation, Territorial Expenses, legal and accounting feesand Wage Expenses.  No such fee shall bepayable with respect to a transaction with Friday’s described in Section 8.C.

 

E.                                      Inthe event Developer or any Principal is a natural person, Developer or hisadministrator, executor, guardian or personal representative shall promptlynotify Friday’s of the death or

 

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Permanent Disability ofsuch Developer or such Principal.  AnyTransfer upon death or Permanent Disability shall be subject to the terms andconditions described in Sections 8.B.(2) and 8.C. and shall be completed priorto a date which is (i) one (1) year after the date of death; or (ii) ninety(90) days after the date Developer or such Principal becomes, or is deemed tobe, Permanently Disabled.  Developer orany Principal refusing to submit to examination with respect to PermanentDisability shall be deemed Permanently Disabled.

 

F.                                      Friday’sconsent to any Transfer shall not constitute a waiver of (i) any claims it mayhave against the transferor; or (ii) the transferee’s compliance with the termshereof.

 

# **9.**                                      CONSENTAND WAIVER

# ** **

A.                                   When required, Developer or any Principalshall make a written request for Friday’s consent in advance and such consentshall be obtained in writing.  Friday’sconsent shall not be unreasonably withheld. The foregoing not withstanding, where either party’s consent isexpressly reserved to such party’s sole discretion, the exercise of suchdiscretion shall not be subject to contest.

 

**B.****                                    FRIDAY’SMAKES NO REPRESENTATIONS OR WARRANTIES UPON WHICH DEVELOPER OR ANY PRINCIPALMAY RELY AND ASSUMES NO LIABILITY OR OBLIGATION TO DEVELOPER, ANY PRINCIPAL ORANY THIRD PARTY BY PROVIDING ANY WAIVER, ADVICE, CONSENT OR SERVICES TODEVELOPER OR DUE TO ANY DELAY OR DENIAL THEREOF.**

 

# **10.**                               DEFAULTAND REMEDIES

# ** **

10.01                     A.                                   Thefollowing shall constitute Events of Default by Developer or any Principal: (i)failure to comply with the Development Schedule; (ii) the breach or falsity ofany representation or warranty herein; (iii) failure to deliver executedcovenants as required in Section 6.C; (iv) failure to comply with orperform its covenants, obligations and agreements herein; (v) any Transfer that(a) occurs other than as provided in Section 8 or (b) fails to occurwithin the time periods described in Section 8 (notwithstanding any lackof, or limits upon, the enforceability of any term or provision of Sections 7or 8); (vi) failure to make any Payment on or before the date payable; (vii)failure to meet and/or maintain the Standards; (viii) Developer (a) isadjudicated, or is, bankrupt or insolvent, (b) makes an assignment for thebenefit of creditors, or (c) seeks protection from creditors by petition inbankruptcy or otherwise or there is filed against Developer a similar petitionwhich is not dismissed within thirty (30) days; (ix) the appointment of aliquidator or receiver for (a) all or substantially all of Developer’s assetsor (b) any Restaurant is sought which is not dismissed within thirty (30) days;(x) breach or failure to perform any other term or condition of this Agreement;(xi) an event of default shall arise under any Franchise Agreement; (xii)Developer or any Principal pleads guilty or no contest to or is convicted of afelony or a crime involving moral turpitude or any other crime or offense thatFriday’s reasonably believes is likely to adversely affect the ProprietaryMarks, the System or the goodwill associated therewith (whether in theTerritory or elsewhere) or Friday’s interest therein; or (xiii) any (a) two (2)or more Events of Default shall arise under any single subsection of this Section 10.01.Aor (b) three (3) or more Events of Default shall arise under this Section 10.01.Ain any continuous twelve (12) month period notwithstanding the previous cure ofsuch Events of Default.

 

B.                                     Theparties agree that an Event of Default arising under Section 10.01.A.(i),(iii), (iv) [with respect to Events of Default arising, without limitation,under Section 7.C.(3)], (v), (vi), (viii), (ix), (xi), (xii) or (xiii) shallconstitute a Material Event of Default. The parties further agree that Events of

 

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Default committed byDeveloper or any Principal arising under other Sections of this Agreement mayalso be deemed to be Material Events of Default.

 

C.                                     Uponthe occurrence of an Event of Default by Developer or any Principal, Friday’smay exercise one or more of the following remedies or such other remedies asmay be available at law or in equity:

 

(1)                                  curesuch Event of Default at Developer’s expense and in connection therewithDeveloper (i) hereby grants to Friday’s all rights and powers necessary orappropriate to accomplish such cure; (ii) shall indemnify and hold the Friday’sIndemnitees harmless from and against all costs, expenses (including reasonablefees of attorneys and other engaged professionals), liabilities, claims,demands and causes of action (including actions of third parties) incurred byor alleged against any Friday’s Indemnitee in connection with Friday’s cure;and (iii) shall reimburse or pay such costs or damages within ten (10) days ofreceipt of Friday’s invoice therefor;

 

(2)                                  inthe event of a Material Event of Default, upon notice to Developer, terminatethis Agreement and all rights granted hereunder without waiving any (i) claimfor damages suffered by Friday’s; or (ii) other rights, remedies or claims (nonotice of termination shall be required with regard to a Material Event ofDefault under Section 10.01.A.(viii) or (ix)); or

 

(3)                                  withrespect to an Event of Default arising from a breach of covenant contained in Section 7.C.(3)(a),the affected former employer shall be compensated by the breaching party (andDeveloper shall be additionally liable for breaches by any Principal) for thereasonable costs and expenses incurred by such employer in connection withtraining such employee.  Developer andeach Principal acknowledge that such expenses are impossible to accuratelyquantify and agree that, as liquidated damages and not as a penalty, an amountequal to such employee’s annual rate of compensation in the final twelve (12)months of employment (or an annualized rate if employed for a shorter period)by such former employer shall be paid by the breaching party to the formeremployer at such time as such employee commences employment.

 

D.                                    Friday’sshall not exercise any remedies available hereunder with respect to thefollowing described Events of Default unless such Events of Default remainuncured after notice from Friday’s thereof and the expiration of the followingcure periods:

 

(1)                                  withrespect to any Event of Default arising under Section 10.01.A.(vi) - ten(10) days; or

 

(2)                                  withrespect to any Event of Default arising under Sections 10.01.A.(i)-(v)inclusive, (vii) and (x) - thirty (30) days.

 

E.                                      Ifany Events of Default arising under Sections 10.01.A.(i) - (v) inclusive, (vii)or (x) cannot reasonably be cured within thirty (30) days, Developer shallprovide Friday’s notice thereof (together with Developer’s best estimate of thetime period required to complete such cure) and immediately undertake effortsto cure such default within the cure period, and continue such efforts withdiligence to completion.  In no event,however, shall such cure period be extended without the prior written consentof Friday’s.

 

F.                                      Developerand each Principal agree that Friday’s exercise of the rights and remedies setforth herein are reasonable.  Friday’smay, in addition to pursuing any other remedies, specifically enforce suchobligations, covenants and agreements or obtain injunctive or other equitablerelief in connection with the violation or anticipated violation of suchobligations, covenants and agreements.

 

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10.02                     A.                                   Thefollowing shall constitute Events of Default by Friday’s: (i) failure to complywith or perform its obligations and agreements herein, or (ii) Friday’s (a) isadjudicated, or is, bankrupt or insolvent, (b) makes an assignment for thebenefit of creditors, or (c) seeks protection from creditors by petition inbankruptcy or otherwise or there is filed against Friday’s a similar petitionwhich is not dismissed within thirty (30) days.

 

B.                                     Uponthe occurrence of a Material Event of Default by Friday’s, Developer may, uponnotice to Friday’s, terminate this Agreement and all rights granted hereunderwithout waiving any (i) claim for damages suffered by Developer; or (ii) otherrights, remedies or claims.  Anytermination of this Agreement by Developer other than as provided in this Section 10.02shall be deemed a termination by Developer without cause.

 

C.                                     Developershall not exercise any remedies available hereunder with respect to any Eventsof Default unless such Events of Default remain uncured after (i) notice fromDeveloper thereof and (ii) the expiration of thirty (30) days following suchnotice.

 

D.                                    Ifany Events of Default cannot reasonably be cured within thirty (30) days,Friday’s shall provide Developer notice thereof (together with Friday’s bestestimate of the time period required to complete such cure) and immediatelyundertake efforts to cure such default within the cure period, and continuesuch efforts with diligence to completion. In no event, however, shall such cure period be extended without theprior written consent of Developer.

 

10.03                     Subject tothe provisions of Section 10.06, all rights and remedies of either partyshall be cumulative, and not exclusive, of any other right or remedy describedherein or available at law or in equity. The expiration or termination of this Agreement shall not release anyparty from any liability or obligation then accrued or any liability orobligation continuing beyond, or arising from, such expiration ortermination.  Nothing in this Agreementshall impair either party’s right to obtain injunctive or other equitablerelief.

 

10.04                     The failureof any party to exercise any right or remedy or to enforce any obligation,covenant or agreement herein shall not constitute a waiver by, or estoppel of,that party’s right to any of the remedies described herein including, withoutlimitation, to enforce strict compliance with any such obligation, covenant oragreement. No custom or practice shall modify or amend this Agreement.  The waiver of, or failure or inability of anyparty to enforce, any right or remedy shall not impair that party’s rights orremedies with respect to subsequent Events of Default of the same, similar ordifferent nature.  The delay, forbearanceor failure of any party to exercise any right or remedy in connection with anyEvent of Default or default by any other developers shall not affect, impair orconstitute a waiver of such party’s rights or remedies herein.  Acceptance of any Payment shall not waive anyEvent of Default.

 

10.05                     Developer andeach Principal shall, jointly and severally, pay all costs and expenses(including reasonable fees of attorneys and other engaged professionals)incurred by Friday’s in successfully enforcing, or obtaining any remedy arisingfrom the breach of this Agreement.  Theexistence of any claims, demands or actions which Developer or any Principalmay have against Friday’s, whether arising from this Agreement or otherwise,shall not constitute a defense to Friday’s enforcement of Developer’s or anyPrincipal’s representations, warranties, covenants, obligations or agreementsherein.

 

**10.06****                 INTHE EVENT OF A DISPUTE BETWEEN THEM WHICH IS NOT SUBJECT TO, NOR ARISES UNDER, SECTION 12,FRIDAY’S, DEVELOPER AND PRINCIPALS**

 

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**HEREBYWAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO OR CLAIM FOR ANYPUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES(INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUT SPECIFICALLY EXCLUDING,HOWEVER, DAMAGES TO THE REPUTATION AND GOODWILL ASSOCIATED WITH AND/ORSYMBOLIZED BY THE PROPRIETARY MARKS) AGAINST THE OTHER ARISING OUT OF ANY CAUSEWHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICTLIABILITY, OTHER TORT OR OTHERWISE) AND AGREE THAT EACH SHALL BE LIMITED TO THERECOVERY OF ANY ACTUAL DAMAGES SUSTAINED BY IT. IF ANY OTHER TERM OF THIS AGREEMENT IS FOUND OR DETERMINED TO BEUNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, THE FOREGOING PROVISION SHALLCONTINUE IN FULL FORCE AND EFFECT.**

 

# **11.**                               INSURANCE

# ** **

A.                                   Developershall obtain within thirty (30) days from the date hereof and maintainthroughout the Term, such insurance coverage (including, without limitation,auto liability coverage and workers compensation insurance) as may be (i)required by law; or (ii) reasonably designed to protect Developer from therisks inherent in the development activities to be engaged in by Developerpursuant to this Agreement.  Friday’sshall have the right to reasonably consent to the types and amounts of coverageand the issuing companies.  Suchinsurance shall:

 

(1)                                  namethe Friday’s Indemnitees as additional insured parties and provide thatcoverage applies separately to each insured and additional insured partyagainst whom a claim is brought as though a separate policy had been issued toeach Friday’s Indemnitee;

 

(2)                                  containno provision which limits or reduces coverage in the event of a claim by anyone (1) or more of the insured or additional insured parties;

 

(3)                                  providethat policy limits shall not be reduced, coverage restricted, canceled, allowedto lapse or otherwise altered or such policy(ies) amended without Friday’sconsent, but in no event upon less than thirty (30) days prior written noticeto Friday’s;

 

(4)                                  beobtained from reputable insurance companies with an A.M. Best Rating of “A” andan A.M. Best Class Rating of XIV (or comparable ratings from a reputableinsurance rating service, in the event such A.M. Best ratings are discontinuedor materially altered), authorized to do business in the jurisdiction in whichthe Restaurant is located; and

 

(5)                                  bein an amount and form satisfactory to Friday’s; but in no event in amounts lessthan the following:

 

(a)                                  autoliability insurance, including coverage of owned, non-owned and hired vehicles,with a combination of primary and excess limits of not less than Five HundredThousand Dollars ($500,000.00) for bodily injury for each person, One MillionDollars ($1,000,000.00) for bodily injury for each occurrence and Two HundredFifty Thousand Dollars ($250,000.00) for each occurrence of property damage;

 

(b)                                 employer’sliability insurance with a limit of not less than Five Hundred Thousand Dollars($500,000.00); and

 

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(c)                                  workerscompensation insurance in such amount as may be required by applicable statuteor rule.

 

B.                                     Suchinsurance may provide for reasonable deductible amounts with Friday’s consent.

 

C.                                     Acertificate of insurance shall be submitted for Friday’s consent within ten(10) days following commencement of such coverage, and additional certificatesof insurance shall be submitted to Friday’s thereafter, evidencinguninterrupted coverage.  Developer shalldeliver a complete copy of such policy(ies) within ten (10) days of request.

 

D.                                    Inthe event of a claim of any one or more of the Friday’s Indemnitees againstDeveloper, Developer shall, on request of Friday’s, assign to Friday’s any andall rights which Developer then has or thereafter may have with respect to suchclaim against the insurer(s) providing the coverage described in this Section.

 

E.                                      Developer’sobligation to obtain and maintain insurance or to indemnify any Friday’sIndemnitee shall not be limited by reason of any insurance which may bemaintained by any Friday’s Indemnitee, nor shall such insurance relieve Developerof any liability under this Agreement. Developer’s insurance shall be primary to any policies maintained by anyFriday’s Indemnitee.

 

F.                                      IfDeveloper fails to obtain or maintain the insurance required by this Agreement,as such requirements may be revised from time to time, Friday’s may acquiresuch insurance, and the cost thereof, together with a reasonable fee for Friday’sexpenses in so acting and interest at eighteen percent (18%) per annum from thedate acquired, shall be payable by Developer upon notice.

 

# **12.**                               INDEMNIFICATION

# ** **

A.                                   Developerand each Principal will, at all times, indemnify and hold harmless, to thefullest extent permitted by law, Friday’s Indemnitees from all “losses andexpenses” (as defined below) incurred in connection with any action, suit,proceeding, claim, demand, investigation or inquiry (formal or informal), orany settlement thereof (whether or not a formal proceeding or action has beeninstituted) which arises out of or is based upon any of the following:

 

(1)                                  Theinfringement, alleged infringement, or any other violation or alleged violationby Developer or any Principal of any patent, mark or copyright or otherproprietary right owned or controlled by third parties.

 

(2)                                  Theviolation, breach or asserted violation or breach by Developer or any Principalof any contract, federal, state or local law, regulation, ruling, standard ordirective or any industry standard.

 

(3)                                  Libel,slander or any other form of defamation of Friday’s or the System, by Developeror any Principal.

 

(4)                                  Theviolation or breach by Developer or any Principal of any warranty,representation, agreement or obligation in this Agreement.

 

(5)                                  Acts,errors or omissions of Developer or any of its agents, servants, employees,

 

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contractors, partners,affiliates or representatives.

 

B.                                     Developerand each Principal agree to give Friday’s immediate notice of any such action,suit, proceeding, claim, demand, inquiry or investigation.

 

C.                                     Friday’sshall at all times have the absolute right to retain counsel of its ownchoosing in connection with any action, suit, proceeding, claim, demand,inquiry or investigation.  Friday’s shallat all times have the absolute right to investigate any action, suitproceeding, claim or demand itself.

 

D.                                    Developerand each Principal shall indemnify Friday’s Indemnitees for attorneys’ fees,expenses, and costs incurred in connection with the exercise of Friday’s rightsunder Section 12.  This provisionshall not be construed so as to limit or in any way affect Developer’sindemnity obligations pursuant to the other provisions of Section 12.

 

E.                                      Inthe event that Friday’s exercise of its rights under Section 12 actuallyresults in Developer’s insurer with respect to insurance required to bemaintained by Developer pursuant to Section 11 (hereinafter, the “Insurer”)refusing to pay on a third party claim, all causes of action and legal remedieswhich Developer might have against the Insurer shall be automatically assignedto Friday’s without the need for any further action on Friday’s or Developer’spart.  For the purposes of Section 12,“actually results” means that, but for Friday’s exercise of its rights under Section 12,the Insurer would not have refused to pay on said third-party claim.

 

F.                                      Inthe event that Friday’s exercise of its rights under Section 12 actuallyresults in the Insurer refusing to pay on a third-party claim, Developer shallnot be required to indemnify Friday’s for the latter’s attorneys’ fees,expenses and costs incurred in connection with that claim.

 

G.                                     Inthe event that the Insurer subsequently reverses its previous decision to notpay a claim, by in fact paying that claim, Developer shall be required toindemnify Friday’s for the latter’s attorneys’ fees, expenses and costsincurred in connection with that claim, just as if the Insurer had never deniedthe claim.

 

H.                                    Inthe event that Developer encourages, requests, or suggests that the Insurerdeny a claim, Developer shall indemnify Friday’s for its attorneys’ fees,expenses and costs in connection with that claim.

 

I.                                         Subjectto the provisions of Section 12.B. above, in order to protect persons orproperty, or its reputation or goodwill, or the reputation or goodwill ofothers, Friday’s may, at any time and without notice, as it, in its judgmentdeems appropriate, consent or agree to settlements or take such other remedialor corrective action as it deems expedient with respect to the action, suit,proceeding, claim, demand, inquiry or investigation if, in Friday’s solejudgment, there are reasonable grounds to believe that:

 

(1)                                  anyof the acts or circumstances enumerated in Section 12.A. above haveoccurred; or

 

(2)                                  anyact, error, or omission of Developer or any Principal may result directly orindirectly in damage, injury or harm to any person or any property.

 

J.                                        Inaddition to their indemnity obligations under Section 12.D., Developer andeach Principal shall indemnify Friday’s for any and all losses, compensatorydamages, exemplary or punitive

 

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damages, fines, charges,costs, expenses, lost profits, settlement amounts, judgments, compensation fordamages to Friday’s reputation and goodwill, costs of or resulting from delays,financing, costs of advertising material and media time/space, and costs ofchanging, substituting or replacing the same, and any and all expenses ofrecall, refunds, compensation, public notices and other such amounts incurredin connection with the matters described, which result from any of the itemsset forth in Section 12.

 

K.                                    Friday’sdoes not assume any liability whatsoever for acts, errors, or omissions ofthose with whom Developer or any Principal may contract, regardless of thepurpose.  Developer and each Principalshall hold harmless and indemnify Friday’s for all losses and expenses whichmay arise out of any acts, errors or omissions of these third parties.

 

L.                                      Underno circumstances shall Friday’s be required or obligated to seek recovery fromthird parties or otherwise mitigate its losses in order to maintain a claimagainst Developer or any Principal. Developer and each Principal agree that the failure to pursue suchrecovery or mitigate loss will in no way reduce the amounts recoverable byFriday’s from Developer or any Principal.

 

M.                                 Notwithstandinganything to the contrary contained in this Agreement, Developer is not requiredto indemnify Friday’s with regard to any infringement, alleged infringement orother violation or alleged violation by Developer or any Principal of anypatent, mark, or copyright or other proprietary right owned or controlled by athird party, arising in connection with the use of the Proprietary Marks andSystem franchised to Developer when used in the manner authorized and requiredby Friday’s pursuant to this Agreement. In the event Developer is involved in such an action, Friday’s agrees toindemnify Developer Indemnitees in connection with the defense thereof, and toindemnify and hold Developer Indemnitees harmless from any and all losses, damages,claims, liabilities, expenses, including attorney’s fees (prior to litigation,during litigation, and on appeal) and all costs (whether taxed or not taxed) inconnection with proceedings regarding the same. Developer shall give notice to Friday’s of any such claim no later thanfifteen (15) days after Developer becomes aware of same or is given noticethereof.  This indemnity shall beinoperative to the extent that failure to have timely provided such notice toFriday’s materially impairs Friday’s ability to defend any such claim, in wholeor in part, or to minimize the costs of this indemnity.  Developer shall not be required to defendFriday’s with regard to Developer’s utilization pursuant to this Agreement ofthe Proprietary Marks and System provided such utilization is in strictcompliance with that authorized and required by Friday’s pursuant to thisAgreement.

 

# **13.**                               NOTICES

# ** **

All notices required or desired to be given hereundershall be in writing and shall be sent by personal delivery, expedited deliveryservice, facsimile or certified mail, return receipt requested to the followingaddresses (or such other addresses as designated pursuant to this Section 13):

 
| if  to Friday’s:              |   | TGI Friday’s  Inc.        |
|------------------------------------|--------|--------------------------------|
|                               |   | Attention:  General Counsel    |
|                               |   | 4201 Marsh Lane                |
|                               |   | Carrollton,  Texas 75007       |
|                               |   | Facsimile No.:  (972) 662-5636 |
|                               |   |                           |
| if  to Developer or any Principal: |   | Cornerstone  Productions, Inc. |
|                               |   | Attention: Bill  Shrader       |
|                               |   | 5050 North 40th  Street        |

 

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|   |   | Suite 200                      |
|--------|--------|--------------------------------|
|   |   | Phoenix, Arizona  85018        |
|   |   | Facsimile No.:  (602) 852-0001 |

 

Noticesposted by personal delivery, expedited service or given by facsimile shall bedeemed given the next business day after transmission.  Notices posted by certified mail shall bedeemed received three (3) Business Days after the date of posting.  Any change in the foregoing addresses shallbe effected by giving fifteen (15) days written notice of such change to theother party.

 

# **14.**                               FORCEMAJEURE

# ** **

Noparty shall be liable for any inability to perform resulting from acts of Godor other causes (other than financial inability or insolvency) beyond theirreasonable control; provided, however, that nothing herein shall excuse orpermit any delay or failure (i) to remit any Payment on the date due; or (ii)for more than one-hundred eighty (180) days. The party whose performance is affected by an event of force majeureshall, within three (3) days of the occurrence of such event, give noticethereof to the other party setting forth the nature thereof and an estimate ofits duration.

 

# **15.**                               SEVERABILITY

# ** **

A.                                   Shouldany term, covenant or provision hereof, or the application thereof, bedetermined by a valid, final, non-appealable order to be invalid orunenforceable, the remaining terms, covenants or provisions hereof shallcontinue in full force and effect without regard to the invalid orunenforceable provision.  In such event,such term, covenant or provision shall be deemed modified to impose the maximumduty permitted by law and such term, covenant or provision shall be valid andenforceable in such modified form as if separately stated in and made a part ofthis Agreement.  Notwithstanding theforegoing, if any term hereof is so determined to be invalid or unenforceableand such determination adversely affects, in Friday’s reasonable judgment,Friday’s ability to realize the principal purpose of the Agreement or preserveits or TGIFM’s rights in, or the goodwill underlying, the Proprietary Marks,the System, or the Confidential Information, Friday’s may terminate thisAgreement upon notice to Developer.

 

B.                                     Captionsin this Agreement are for convenience only and shall not affect the meaning orconstruction of any provision hereof.

 

# **16.**                               INDEPENDENTCONTRACTOR

# ** **

A.                                   Developeris an independent contractor.  Friday’sdoes not operate the Developer’s business. Nothing herein shall create the relationship of principal and agent,legal representative, joint ventures, partners, employee and employer or masterand servant between the parties.  Nofiduciary duty is owed by, or exists between, the parties.

 

B.                                     Nothingherein authorizes Developer or any Principal to make any contract, agreement,warranty or representation or to incur any debt or obligation in Friday’s name.

 

# **17.**                               DUEDILIGENCE AND ASSUMPTION OF RISK

# ** **

A.                                   Developerand each Principal (i) have conducted such due diligence and investigation aseach desires; (ii) recognize that the business venture described hereininvolves risks; and (iii)

 

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acknowledge that the successof such business venture is dependent upon the abilities of Developer andPrincipals.  **FRIDAY’SEXPRESSLY DISCLAIMS THE MAKING OF, AND DEVELOPER AND EACH PRINCIPAL ACKNOWLEDGETHAT THEY HAVE NOT RECEIVED OR RELIED UPON, ANY REPRESENTATION OR WARRANTY,EXPRESS OR IMPLIED, AS TO THE POTENTIAL PERFORMANCE OR VIABILITY OF THEBUSINESS VENTURE CONTEMPLATED BY THIS AGREEMENT.**

 

B.                                     Developerand each Principal have received, read and understand this Agreement, thedocuments referred to herein and the Exhibits and Schedules hereto. Developerand each Principal have had ample time and opportunity to consult with theiradvisors concerning the potential benefits and risks of entering into thisAgreement.

 

# **18.**                               MISCELLANEOUS

# ** **

A.                                   Timeis of the essence to this Agreement.

 

B.                                     Thereare no third party beneficiaries to this Agreement except for the remedyprovided for breach of Developer’s or any Principal’s covenant contained in Section 7.C.(3)(a),the provision for liquidated damages contained in Section 10.01.C.(3), andthe rights and remedies provided for in Exhibit B.

 

C.                                     ThisAgreement may be executed in any number of counterparts each of which when soexecuted shall be an original, but all of which together shall constitute one(1) and the same instrument.

 

D.                                    Allreferences herein to the masculine, neuter or singular shall be construed toinclude the masculine, feminine, neuter or plural, unless otherwise suggestedby the text.

 

E.                                      ThisAgreement will become effective only upon execution hereof by the President ora vice president of Friday’s.

 

F.                                      ThisAgreement is not a franchise agreement and does not grant Developer or anyPrincipal any rights in or to the (i) System (except as expressly providedherein); or (ii) Proprietary Marks.

 

G.                                     Developershall not use the words “**Friday’s®**”,“**T.G.I.****Friday’s®**”,“**TGIF®**” or “**The American Bistro®**”, or any part thereof, aspart of its corporate or other name.

 

H.                                    Developerand each Principal acknowledge that each has received a complete copy of thisAgreement, the documents referred to herein and the Exhibits and Addenda heretoat least five (5) business days prior to the date on which this Agreement wasexecuted.  Developer and each Principalfurther acknowledge that each has received the disclosure document required bythe Trade Regulation Rule of the Federal Trade Commission entitled “DisclosureRequirements and Prohibitions Concerning Franchising and Business OpportunityVentures” at least ten (10) business days prior to the date on which thisAgreement was executed.

 

# **19.**                               CHOICEOF LAW; JURISDICTION; VENUE

# ** **

**A.**                                    **DEVELOPER AND EACH PRINCIPAL ACKNOWLEDGE THAT FRIDAY’S MAY GRANTDEVELOPMENT RIGHTS THROUGHOUT THE UNITED STATES ON TERMS**

 

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**ANDCONDITIONS SIMILAR IN CERTAIN MATERIAL RESPECTS TO THOSE SET FORTH IN THISAGREEMENT, AND THAT IT IS OF MUTUAL BENEFIT TO DEVELOPER AND EACH PRINCIPAL ANDTO FRIDAY’S THAT THESE TERMS AND CONDITIONS BE UNIFORMLY INTERPRETED.  THEREFORE, THE PARTIES AGREE THAT TO THEEXTENT THE LAW OF THE STATE OF TEXAS IS HELD ENFORCEABLE, TEXAS LAW SHALL APPLYTO THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT (EXCEPT FOR TEXASCHOICE OF LAW RULES) AND SHALL GOVERN ALL QUESTIONS WHICH ARISE WITH REFERENCEHERETO.**

 

**B**.**                                    THEPARTIES ACKNOWLEDGE THAT THIS AGREEMENT SHALL BE PERFORMED IN SUBSTANTIAL PARTIN DALLAS COUNTY, TEXAS.  THE PARTIESTHEREFORE AGREE THAT ANY CLAIM, CONTROVERSY OR DISPUTE ARISING OUT OF ORRELATING TO THIS AGREEMENT OR THE PERFORMANCE THEREOF WHICH CANNOT BE AMICABLYSETTLED, EXCEPT AS OTHERWISE PROVIDED HEREIN, SHALL BE RESOLVED BY A PROCEEDINGIN A COURT IN DALLAS COUNTY, TEXAS, AND DEVELOPER AND PRINCIPALS EACHIRREVOCABLY ACCEPT AND SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OFTEXAS AND THE FEDERAL COURTS LOCATED IN DALLAS COUNTY, TEXAS FOR SUCH CLAIMS,CONTROVERSIES OR DISPUTES; PROVIDED, HOWEVER, WITH RESPECT TO ANYACTION WHICH INCLUDES INJUNCTIVE RELIEF, OR ANY ACTION FOR THE RECOVERY OF ANYPROPERTY, REAL OR PERSONAL, FRIDAY’S MAY BRING SUCH ACTION IN ANY STATE WHICHHAS JURISDICTION.**

 

# **20.**                               ENTIREAGREEMENT

# ** **

ThisAgreement and the Exhibits, Addenda and Schedules hereto constitute the entireagreement between Friday’s, Developer and the Principals concerning the subjectmatter hereof.  All prior agreements,discussions, representations, warranties and covenants are merged herein.  **THERE ARE NO WARRANTIES,REPRESENTATIONS, COVENANTS OR AGREEMENTS, EXPRESS OR IMPLIED, BETWEEN THEPARTIES CONCERNING THE SUBJECT MATTER HEREOF, INCLUDING, WITHOUT LIMITATION,ANY IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, EXCEPT THOSE EXPRESSLY SETFORTH IN THIS AGREEMENT.  EXCEPT THOSEPERMITTED TO BE MADE UNILATERALLY BY FRIDAY’S HEREUNDER, NO AMENDMENT, CHANGEOR VARIANCE FROM THIS AGREEMENT SHALL BE BINDING ON EITHER PARTY UNLESSMUTUALLY AGREED TO BY FRIDAY’S AND DEVELOPER AND EXECUTED IN WRITING.**

 

INWITNESS WHEREOF, the parties hereto have executed and delivered this Agreementon the day and year first above written.

 
| **TGI  FRIDAY’S INC.** | **CORNERSTONE  PRODUCTIONS, INC.**  |
|-----------------------------|-------------------------------------|
| By:                         | /s/ Leslie Sharman                  |   | By: | /s/ William G.  Shrader |   |
| Name:                       | Leslie Sharman                      |   | Name: | William G.  Shrader |   |
| Title:                      | Sr. Vice  President-General Counsel |   | Title: | President-CEO |   |
| Date:                       | March 15,  2004                |   | Date: | March 11,  2004 |   |
|                             |                                     |  |  |  |  |  |  |  |  |

 

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EachPrincipal acknowledges, covenants and represents as follows:

 

(1)                                  eachhas read the terms and conditions of this Agreement;

 

(2)                                  eachis a “Principal” as described in this Agreement;

 

(3)                                  eachis the owner of and has the right to vote the percent of the Securities ofDeveloper indicated next to the signature below of each Principal;

 

(4)                                  eachmakes all of the representations, warranties, covenants and agreements of theDeveloper (including liability to make Payments) and a Principal set forth inthis Agreement (including, without limitation, the covenants and agreementsconcerning Transfer, non-compete and maintenance of Confidential Information)and is obligated to perform thereunder;

 

(5)                                  eachindividually, jointly and severally, irrevocably and unconditionally guaranteesthat all of Developer’s obligations under the terms and conditions of thisAgreement will be timely paid and performed;

 

(6)                                  eachacknowledges that Friday’s may, without notice to Principals, waive, renew,extend, modify, amend or release any indebtedness or obligation of Developer,or settle, adjust, or compromise any claims against Developer;

 

(7)                                  eachwaives all demands and notices of every kind with respect to this guarantyincluding, without limitation, notice of presentment, demand for payment orperformance by Developer, any default by Developer or any guarantor, and anyrelease of any guarantor or other security for this Agreement or theobligations of Developer.  Friday’s maypursue its rights against Developer’s Principals without first exhausting itsremedies against Developer and without joining any other guarantor hereto, andno delay on the part of Friday’s in the exercise of any right or remedy shalloperate as a waiver of such right or remedy;

 

(8)                                  eachhas derived and expects to derive financial or other benefit, directly orindirectly, from this Agreement and the transaction described herein;

 

(9)                                  eachacknowledges that its execution of this Agreement, and its undertakings andagreements herein, has induced Friday’s to enter into the transactionsdescribed in, and to execute, this Agreement;

 

(10)                            eachconsents to and shall be bound by any amendment of this Agreement made byFriday’s and Developer pursuant to the terms hereof; and

 

(11)                            eachhas executed, concurrent herewith, the Guaranty Agreement on Exhibit B.

 
| ** **    | ** ** | **Securities** | ** ** |
|---------------|------------|----------------|------------|
| **PRINCIPAL** | ** ** | **Voting %**   | ** ** |
| ** **    | ** ** | 100            | %          |

 
| MAIN STREET AND  MAIN INCORPORATED |                    |
|------------------------------------|-------------------------|
| By:                                | /s/ William G.  Shrader |   |   |
| Name:                              | William G.  Shrader     |   |   |
| Title:                             | President-CEO           |   |   |
|                                    |                         |  |  |  |  |  |

 

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**ADDENDUM A****TO DEVELOPMENT AGREEMENT**

 

**COVENANT AND AGREEMENT FOR CONFIDENTIALITY**

 

Thisagreement (“Agreement”) is made by Main Street and Main Incorporated, acorporation organized under the laws of the state of Delaware (“Principal”),and TGI Friday’s Inc., a corporation organized under the laws of the state ofNew York (“Friday’s”), in connection with that certain Development Agreementdated                         ,2004 (the “Development Agreement”), by and between Friday’s and CornerstoneProductions, Inc. (“Developer”).

 

WHEREAS,Friday’s and Developer have entered into the Development Agreement; and

 

WHEREAS,the Confidential Information provides economic advantages to Friday’s and isnot generally known to, and not legally available to, third parties; and

 

WHEREAS,Friday’s has taken and intends to take all steps necessary to maintain theconfidentiality of the Confidential Information; and

 

WHEREAS,Principal will receive, and desires to receive, the Confidential Information inhis capacity as a Principal of Developer; and

 

WHEREAS,this Agreement is executed and delivered pursuant to Section 6.C. of theDevelopment Agreement.

 

NOW,THEREFORE, in consideration of the mutual covenants and obligations containedherein, Principal and Friday’s agree as follows:

 

1.                                       Capitalizedterms used herein and not otherwise defined shall have the meanings attributedto them in the Development Agreement.

 

2.                                       Friday’sshall disclose to Principal some or all of the Confidential Information whichmay be utilized by Principal solely (a) in his capacity as a Principal ofDeveloper and (b) in connection with Developer’s performance of its duties andobligations pursuant to the Development Agreement.  No other use or disclosure of any of theConfidential Information shall be made by Principal.  Principal acknowledges and agrees that Friday’sor TGIFM is the exclusive owner of the Confidential Information, the System andthe Proprietary Marks.  Principal shallnot, directly or indirectly, contest or impair Friday’s or TGIFM’s ownershipof, or interest in, the Confidential Information, the System or the ProprietaryMarks.

 

3.                                       Principalshall receive the Confidential Information in strict confidence.  The Confidential Information may be utilizedby Principal only (a) so long as Principal remains a Principal of Developer and(b) during the Term.  The ConfidentialInformation shall not be used in any manner that is adverse or detrimental to,or competitive with, Friday’s, TGIFM or Developer.  Except as permitted pursuant to theDevelopment Agreement or this Agreement, the Confidential Information shallnot, without the prior written consent of Friday’s, be (i) copied, (ii)compiled (in total or in part) with other information, or (iii) disclosed toany third party.

 

4.                                       Principalshall not communicate, disclose or use the Confidential Information, or anypart thereof, except as (a) permitted herein or (b) required by law.  The Confidential Information may be

 

1

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disclosed to Principal’sagents, consultants, contractors and employees who need to know theConfidential Information for the sole purpose of providing services toPrincipal in his capacity as a Principal of Developer.  Prior to such disclosure of any ConfidentialInformation, each of such agents, consultants, contractors and employees shall(a) be advised by Principal of the confidential and proprietary nature of theConfidential Information and (b) agree to be bound by the terms and conditionsof this Agreement.  Notwithstanding such agreement,Principal shall indemnify the Friday’s Indemnitees from and against anydamages, costs (including reasonable fees of attorneys and other engagedprofessionals) and expenses resulting from any disclosure or use of theConfidential Information, or any part thereof, by such agents, representativesor employees contrary to the terms hereof.

 

5.                                       Inthe event Principal or Principal’s agents, representatives, or employeesreceive notice of any request, demand or order to transfer or disclose all orany portion of the Confidential Information, Principal shall immediately notifyFriday’s thereof, and shall fully cooperate with and assist Friday’s inprohibiting or denying any such transfer or disclosure.  Should such transfer or disclosure berequired by a valid, final, non-appealable court order, Principal shall fullycooperate with and assist Friday’s in protecting the confidentiality of theConfidential Information to the maximum extent permitted by law.

 

6.                                       Immediatelyupon Friday’s request or upon any termination or expiration of the Term,Principal shall return the Confidential Information including, withoutlimitation, that portion of the Confidential Information which consists ofanalyses, compilations, studies or other documents containing or referring toany part of the Confidential Information, prepared by Principal, its agents,representatives or employees, and any copies thereof.

 

7.                                       Eachof the representations, warranties, covenants, acknowledgments and agreementsof Principal, and the rights and remedies of Friday’s in connection therewith,contained in the Development Agreement including, without limitation, thosecontained in Sections 6, 7.C.(3), 8.B, 8.C, 8.E and 10 of the DevelopmentAgreement, are incorporated in this Agreement by reference as if fully setforth.  In connection with Friday’senforcement of such rights and remedies (or other rights and remedies of Friday’sunder this Agreement), any court of competent jurisdiction selected by Friday’sshall have personal jurisdiction over Principal, to which jurisdictionPrincipal irrevocably consents.  Theparties agree that to the extent the law of the State of Texas is heldenforceable, Texas law shall apply to the interpretation and construction of thisAgreement (except for Texas choice of law rules) and shall govern all questionswhich arise with reference hereto.

 

8.                                       Friday’smay, in addition to pursuing any other remedies, specifically enforce suchobligations, covenants and agreements or obtain injunctive or other equitablerelief in connection with the violation or anticipated violation of suchobligations, covenants and agreements without the necessity of showing (i)actual or threatened harm; (ii) the inadequacy of damages as a remedy; or (iii)likelihood of success on the merits, and without being required to furnish bondor other security.  Nothing in thisAgreement shall impair Friday’s right to obtain equitable relief.

 

9.                                       Shouldany term, covenant or provision hereof, or the application thereof, bedetermined by a valid, final, non-appealable order to be invalid orunenforceable, the remaining terms, covenants or provisions hereof shallcontinue in full force and effect without regard to the invalid orunenforceable provision.  In such eventsuch term, covenant or provision shall be deemed modified to impose the maximumduty permitted by law and such term, covenant or provision shall be valid andenforceable in such modified form as if separately stated in and made a part ofthis Agreement.

 

10.                                 Anyof Principal’s agreements, obligations or covenants which contemplateperformance thereof after the termination or expiration of this Agreement shallsurvive such termination or expiration.

 

2

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11.                                 Principalacknowledges and warrants that he has derived and expects to derive financialor other advantage and benefit, directly or indirectly, from the DevelopmentAgreement, this Agreement and/or the provision of the Confidential Informationto Developer and/or Principal.

 

INWITNESS WHEREOF, this Agreement has been executed by the parties on the datesindicated below.

 
| **TGI  FRIDAY’S INC.** | **MAIN  STREET AND MAIN INCORPORATED** |
|-----------------------------|----------------------------------------|
| ** **                  | ** **                             |
| By:                         | /s/ Leslie Sharman                     |   |   | /s/ William G. Shrader |   |
| Name:                       | Leslie Sharman                         |   | Name: | William G.  Shrader |   |
| Title:                      | Sr. Vice President-General Counsel     |   | Date: | March 11,  2004 |   |
| Date:                       | March 15,  2004                   |   |   |   |   |
|                             |                                        |  |  |  |  |  |  |  |  |  |  |  |

 

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**ADDENDUM B****TO DEVELOPMENT AGREEMENT**

 

**COVENANT AND AGREEMENT FOR CONFIDENTIALITY**

 

Thisagreement (“Agreement”) is made by [Employee’s Name], an individualresiding in the state of                (“Employee”), Cornerstone Productions, Inc., a corporation organizedunder the laws of the State of Delaware (“Developer”), in connection with thatcertain Development Agreement dated                 ,2004 (the “Development Agreement”), by and between TGI Friday’s Inc. (“Friday’s”)and Developer.

 

WHEREAS,Friday’s and Developer have entered into the Development Agreement; and

 

WHEREAS,the Confidential Information provides economic advantages to Friday’s, and isnot generally known to, and is not legally available to, third parties; and

 

WHEREAS,Friday’s has taken and intends to take all steps necessary to maintain theconfidentiality of the Confidential Information; and

 

WHEREAS,it will be necessary for certain employees of Developer to have access to andto use some or all of the Confidential Information in connection with theperformance of their job functions related to the development, construction andoperation of Restaurants under the System; and

 

WHEREAS,Employee is the [insert title] of Developer; and

 

WHEREAS,Employee needs to receive, and desires to receive and use, the ConfidentialInformation in the course of his employment by Developer in order toeffectively perform his job function; and

 

WHEREAS,the Agreement is executed and delivered pursuant to Section 6.C. of theDevelopment Agreement.

 

NOW,THEREFORE, in consideration of the mutual covenants and obligations containedherein, Employee and Developer agree as follows:

 

1.                                       Capitalizedterms used herein and not otherwise defined shall have the meanings attributedto them on Annex A hereto.

 

2.                                       Developeror Friday’s, acting on behalf of Developer, shall disclose to Employee some orall of the Confidential Information which may be utilized by Employee solely(a) in his capacity as the [title] of Developer and (b) in connectionwith Employee’s performance of his job functions.  No other use or disclosure of any of theConfidential Information shall be made by Employee.  Employee acknowledges and agrees that Friday’sor TGIFM is the exclusive owner of the Confidential Information, the System andthe Proprietary Marks.  Employee shallnot, directly or indirectly, contest of impair Friday’s or TGIFM’s ownershipof, or interest in, the Confidential Information, the System or the ProprietaryMarks.

 

3.                                       Employeeshall receive the Confidential Information in strict confidence.  The Confidential Information may be utilizedby Employee only (a) so long as Employee is employed by Developer and (b) duringthe Term.  The Confidential Informationshall not be used in any manner that is adverse or detrimental to, orcompetitive with, Friday’s, TGIFM or Developer. Except as permitted

 

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pursuant to thisAgreement, the Confidential Information shall not, without the prior writtenconsent of Friday’s, be (i) copied, (ii) compiled (in total or in part) withother information, or (iii) disclosed to any third party.

 

4.                                       Employeeshall not communicate, disclose or use the Confidential Information, or anypart thereof, except as (a) permitted herein or (b) required by law.  The Confidential Information may be disclosedto fellow employees as necessary to train or assist such other employees ofDeveloper in the performance of their job functions with respect to thedevelopment, construction or operation of a Restaurant.  Prior to such disclosure of any ConfidentialInformation, each such employee shall (i) be advised by Employee of theconfidential and proprietary nature of the Confidential Information and (ii)agree to be bound by the terms and conditions of this Agreement.

 

5.                                       Inthe event Employee receives notice of any request, demand, or order to transferor disclose all or any portion of the Confidential Information, Employee shallimmediately notify Developer thereof, and shall fully cooperate with and assistFriday’s in prohibiting or denying any such transfer or disclosure.  Should such transfer or disclosure berequired by a valid, final, non-appealable court order, Employee shall fullycooperate with and assist Friday’s in protecting the confidentiality of theConfidential Information to the maximum extent permitted by law.

 

6.                                       Immediatelyupon Friday’s request, upon Employee’s termination of employment withDeveloper, or upon the conclusion of the use for which any ConfidentialInformation was furnished, Employee shall return the Confidential Informationincluding, without limitation, that portion of the Confidential Informationwhich consists of analyses, compilations, studies or other documents containingor referring to any part of the Confidential Information, and any copiesthereof, to Developer or Friday’s.

 

7.                                       Inorder to protect the goodwill and unique qualities of the System and theconfidentiality and value of the Confidential Information, and in considerationof the disclosure to Employee of the Confidential Information, Employeecovenants that, during the period of his employment by Developer and for aperiod of one (1) year following termination of such employment, Employee shallnot, directly or indirectly:

 

A.                                   employor seek to employ any person (or induce such person to leave his or heremployment) who is, or has within one (1) year been, employed (i) by Friday’sor Developer, (ii) by any developer or franchisee of Friday’s, or (iii) in anyother concept or system owned, operated or franchised by an Affiliate, as adirector, officer or in any managerial capacity;

 

B.                                     own,maintain, operate or have any interest in any Competing Business;

 

C.                                     own,maintain, operate or have any interest in any Competing Business which businessis, or is intended to be, located in the Territory; or

 

D.                                    own,maintain, operate or have any interest in any Competing Business which businessis, or is intended to be, located within a radius of three (3) miles of anyrestaurant which is a part of any concept or system owned, operated orfranchised by Friday’s or any Affiliate.

 

8.                                       Inconnection with the enforcement of rights and remedies under this Agreement,any court of competent jurisdiction selected by Developer or Friday’s shallhave personal jurisdiction over Employee, to which jurisdiction Employeeirrevocably consents.  **THE PARTIES AGREE THAT TO THE EXTENT THE LAW OF THE STATE OF TEXAS ISHELD ENFORCEABLE, TEXAS**

 

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**LAW SHALLAPPLY TO THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT (EXCEPT FORTEXAS CHOICE OF LAW RULES) AND SHALL GOVERN ALL QUESTIONS WHICH ARISE WITHREFERENCE HERETO.**

 

9.                                       A.                                   Employeeacknowledges and agrees that (i) Friday’s is a third party beneficiary to thisAgreement and (ii) Friday’s exercise of the rights and remedies set forthherein is reasonable.

 

B.                                     Developeror Friday’s may, in addition to pursuing any other remedies, specificallyenforce such obligations and covenants or obtain injunctive or other equitablerelief in connection with the violation or anticipated violation of suchobligations and covenants without the necessity of showing (i) actual orthreatened harm; (ii) the inadequacy of damages as a remedy; or (iii)likelihood of success on the merits, and without being required to furnish bondor other security.  Nothing in thisAgreement shall impair Developer’s or Friday’s right to obtain equitablerelief.

 

C.                                     Withrespect to Employee’s breach of the covenants contained in Section 7.Ahereof, the affected former employer shall be compensated by Employee for thereasonable costs and expenses incurred by such employer in connection withtraining such employee.  Developer andEmployee acknowledge that such expenses are impossible to accurately quantifyand agree that, as liquidated damages and not as a penalty, an amount equal tosuch employee’s annual rate of compensation in the final twelve (12) months ofemployment (or an annualized rate if employed for a shorter period) by suchformer employer shall be paid by Employee to the former employer at such timeas such employee commences employment.

 

10.                                 Shouldany term, covenant or provision hereof, or the application thereof, bedetermined by a valid, final, non-appealable order to be invalid orunenforceable, the remaining terms, covenants or provisions hereof shallcontinue in full force and effect without regard to the invalid orunenforceable provision.  In such event,such term, covenant or provision shall be deemed modified to impose the maximumduty permitted by law and such term, covenant or provision shall be valid andenforceable in such modified form as if separately stated in and made a part ofthis Agreement.

 

11.                                 Anyof Employee’s agreements, obligations or covenants which contemplateperformance thereof after the termination or expiration of this Agreement shallsurvive such termination or expiration.

 

INWITNESS WHEREOF, this Agreement has been executed by the parties on the datesindicated below.

 
|   [Employee] |   | **CORNERSTONE  PRODUCTIONS, INC.** |
|------------------------|--------|------------------------------------|
|                   |   |                               |
| Name:                  |   |                               | By: |   |   |
| Date:                  |   |                               | Name: |   |   |
|                   |   | Title:                             |   |   |
|                   |   | Date:                              |   |   |
|                        |        |                                    |  |  |  |  |

 

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**Annex A to Covenant and Agreement forConfidentiality**

 

Affiliate– Carlson Restaurants Worldwide Inc., or any subsidiary thereof or anysubsidiary of TGI Friday’s Inc.

 

Commencement Date-                               ,2004.

 

Competing Business- a restaurant or bar/restaurant business offering the same or similar productsand services as offered by restaurants in the System or restaurants in anyother concept or system owned, operated or franchised by Friday’s or anyAffiliate, including, without limitation, waiter/waitress service, sit-downdining and bar services.

 

ConfidentialInformation - the System, the Development Manual, theManuals, other manuals, the Standards, written directives and all drawings,equipment, recipes, computer and point of sale programs (and output from suchprograms); and any other information, know-how, techniques, materials and dataimparted or made available by Friday’s which is (i) designated as confidential,(ii) known by Developer or Employee to be considered confidential by Friday’s,or (iii) by its nature inherently or reasonably considered confidential.

 

Development Manual- Friday’s manual, as amended from time to time, describing (generally) theprocedures and parameters required for the development of T.G.I. Friday’s®Restaurants in the United States.

 

Indemnitees- Friday’s, its directors, officers, employees, agents, shareholders,affiliates, successors and assigns and the respective directors, officers,employees, agents, shareholders and affiliates of each.

 

Manuals- Friday’s confidential operating manuals, as amended from time to time by Friday’s,which contain the instructions, requirements, Standards, specifications,methods and procedures for the operation of the Restaurants including (i) thoserelating to the selection, purchase, service and sale of all products beingsold at the Restaurants, (ii) those relating to the maintenance and repair ofthe Restaurants, buildings, grounds, equipment, signs, interior and exteriordecor items, fixtures and furnishings and (iii) those relating to employeeapparel and dress, accounting, bookkeeping, record retention and other businesssystems, procedures and operations.

 

Proprietary Marks- certain trademarks, trade names, service marks, emblems and indicia of origindesignated by Friday’s from time to time in connection with the operation ofRestaurants pursuant to the System in the Territory, including, withoutlimitation, “**TGI Friday’s®**”, “**Friday’s®**” and “**The AmericanBistro®**”.

 

Restaurant(s)- a T.G.I. Friday’s® Restaurant(s) developed pursuant to theDevelopment Agreement.

 

Standards- the standards and specifications, as amended from time to time by Friday’s,contained in, and being a part of, the Confidential Information pursuant towhich Developer shall develop and operate Restaurants in the Territory.

 

System- a unique, proprietary system developed and owned by Friday’s (which may bemodified or further developed from time to time by Friday’s) for theestablishment and operation of full-service restaurants under the ProprietaryMarks, which includes, without limitation, a distinctive image consisting ofexterior and interior design, decor, color scheme and furnishings; specialrecipes, menu

 

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items and full servicebar; employee uniform standards, products, services and specifications; procedureswith respect to operations and inventory and management control; training andassistance; and advertising and promotional programs.

 

Term- the duration of the Development Agreement, commencing on the CommencementDate and continuing until                       ,20    , unless sooner terminated.

 

Territory- the geographical area described and set forth in Exhibit C.

 

TGIFM- TGI Friday’s of Minnesota Inc., a Minnesota corporation and a subsidiary ofFriday’s.

 

T.G.I. Friday’s®Restaurants - restaurants operated in accordance with theSystem under the Proprietary Marks.

 

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**EXHIBIT B****TO DEVELOPMENT AGREEMENT**

 

**GUARANTY AGREEMENT**

 

THIS GUARANTY AGREEMENT (the “Guaranty”) is made as ofthe      day of                         ,2004, by the undersigned (hereinafter referred to individually and collectivelyas “Guarantors” whether one or more) in favor of TGI Friday’s Inc., a New YorkCorporation (“Friday’s”).

 

WHEREAS,Friday’s, Cornerstone Productions, Inc., and certain other individuals and/orentities entered into that certain Development Agreement dated                   ,2004 (the “Development Agreement”) regarding the development of T.G.I. Friday’s®restaurants located in certain territory stated therein (the “Restaurant”);

 

WHEREAS,as an inducement to Friday’s to enter into the Development Agreement, theundersigned Guarantors have agreed to make and deliver this Guaranty to Friday’s.

 

NOWTHEREFORE, FOR VALUE RECEIVED, Guarantors, jointly and severally, if more thanone, hereby acknowledge and agree as follows:

 

1.                                       Eachhas read the terms and conditions of this Guaranty and of the DevelopmentAgreement.

 

2.                                       Eachis a “Principal” as defined in the Development Agreement.

 

3.                                       Eachmakes all of the representations, warranties, covenants and agreements of theDeveloper (including liability to make Payments) and a Principal set forth inthe Development Agreement (including, without limitation, the covenants andagreements concerning Transfer, non-compete and maintenance of ConfidentialInformation) and is obligated to perform thereunder.

 

4.                                       Eachacknowledges that Friday’s may, without notice to Guarantors and withoutaffecting the obligations of any of the Guarantors under this Guaranty, waive,renew, extend, modify, amend or release any indebtedness or obligation ofDeveloper, or settle, adjust, or compromise any claims against Developer;

 

5.                                       Eachwaives all demands and notices of every kind with respect to this Guarantyincluding, without limitation, notice of presentment, demand for payment orperformance by Developer, notice of any default by Developer or any Guarantor,and any release of any Guarantor or other security for the DevelopmentAgreement or the obligations of Developer. Friday’s may pursue its rights against Guarantors without firstexhausting its remedies against Developer and without joining any otherGuarantor hereto, and no delay on the part of Friday’s in the exercise of anyright or remedy shall operate as a waiver of such right or remedy;

 

6.                                       Eachindividually, jointly and severally, irrevocably and unconditionally guaranteesthat all of Developer’s obligations under the terms and conditions of theDevelopment Agreement will be timely paid and performed;

 

7.                                       Eachhas derived and expects to derive financial or other benefit, directly orindirectly, from the Development Agreement and the transaction describedtherein;

 

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8.                                       Eachacknowledges that its execution of the Development Agreement, and itsundertakings and agreements herein, have induced Friday’s to enter into thetransactions described in, and to execute, the Development Agreement.

 

9.                                       Eachconsents to and shall be bound by any amendment of the Development Agreementmade by Friday’s and Developer pursuant to the terms thereof.

 

 
| GUARANTOR                          |
|------------------------------------|
|                               |
| MAIN STREET AND  MAIN INCORPORATED |
|                               |   |
| By:                                |   |   |   |
| Name:                              |   |   |
| Title:                             |   |   |

 

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**EXHIBIT C****TO DEVELOPMENT AGREEMENT**

 

**THE TERRITORY**

 

1)                                      Thefollowing counties in the State of Arizona:

 
| Apache  South | Greenlee | Pima       |
|---------------|----------|------------|
| Apache  North | La Paz   | Pinal      |
| Cochise       | Maricopa | Santa Cruz |
| Coconino      | Mohave   | Yavapai    |
| Gila          | Navajo   | Yuma       |
| Graham        |     |       |

 

2)                                      Thefollowing counties in the State of Nevada:

 
| City  Limits of Carson City | Eureka   | Nye        |
|-----------------------------|----------|------------|
| Churchill                   | Humboldt | Pershing   |
| Clark                       | Lander   | Storey     |
| Douglas                     | Lincoln  | Washoe     |
| Elko                        | Lyon     | White Pine |
| Esmeralda                   | Mineral  |       |

 

3)                                      Thefollowing counties in the State of New Mexico:

 
| Bernalillo | Harding    | San Juan   |
|------------|------------|------------|
| Catron     | Hidalgo    | San Miguel |
| Chaves     | Lea North  | Sandoval   |
| Cibola     | Lincoln    | Santa Fe   |
| Colfax     | Los Alamos | Sierra     |
| De  Baca   | Luna       | Socorro    |
| Donna  Ana | McKinley   | Taos       |
| Eddy       | Mora       | Torrance   |
| Grant      | Otero      | Valencia   |
| Guadalupe  | Rio Arriba |       |

 

4)                                      Thefollowing counties in the State of Texas:

 
| Culberson |   |   |
|-----------|--------|--------|
| El  Paso  |   |   |
| Hudspeth  |   |   |

 

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