Exhibit 10.1





Exhibit 10.1




Buffalo Wild Wings® Franchise Agreement




Between




Buffalo Wild Wings International, Inc.

5500 Wayzata Blvd., Suite 1600

Minneapolis, MN 55416




And




AMC Traverse City, Inc.

27680 Franklin Road

Southfield, MI 48034

248-894-0434




Authorized Location:




3480 South Airport Road West, Suite A

Traverse City, MI 49684




Effective Date:




September 7, 2010

(To be completed by us)




 


 









 







—TABLE OF CONTENTS—




BUFFALO WILD WINGS® FRANCHISE AGREEMENT




	 	 	 	 	 
	SECTION	 	PAGE	 
	 
	 	 	 	 
	DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	GRANT OF LICENSE
	 	 	2	 
	 
	 	 	 	 
	TRADEMARK STANDARDS AND REQUIREMENTS
	 	 	5	 
	 
	 	 	 	 
	TERM AND RENEWAL
	 	 	6	 
	 
	 	 	 	 
	FACILITY STANDARDS AND MAINTENANCE
	 	 	6	 
	 
	 	 	 	 
	PRODUCTS AND OPERATIONS STANDARDS AND REQUIREMENTS
	 	 	10	 
	 
	 	 	 	 
	PERSONNEL AND SUPERVISION STANDARDS
	 	 	14	 
	 
	 	 	 	 
	ADVERTISING
	 	 	15	 
	 
	 	 	 	 
	FEES, REPORTING AND AUDIT RIGHTS
	 	 	17	 
	 
	 	 	 	 
	YOUR OTHER OBLIGATIONS; NONCOMPETE COVENANTS
	 	 	20	 
	 
	 	 	 	 
	TRANSFER OF FRANCHISE
	 	 	22	 
	 
	 	 	 	 
	DISPUTE RESOLUTION
	 	 	25	 
	 
	 	 	 	 
	DEFAULT AND TERMINATION
	 	 	26	 
	 
	 	 	 	 
	POST-TERM OBLIGATIONS
	 	 	28	 
	 
	 	 	 	 
	GENERAL PROVISIONS
	 	 	30	 







APPENDICES



	 	 	 
	A.

	 	Trademarks
	B.

	 	Designated Area
	C.

	 	Addendum to Lease
	D.

	 	Electronic Transfer of Funds Authorization
	E.

	 	Gift Cards Affiliated Seller Agreement






 


 









 







BUFFALO WILD WINGS® FRANCHISE AGREEMENT




This Franchise Agreement is made this 7th day of September, 2010 between BUFFALO WILD WINGS
INTERNATIONAL, INC., an Ohio corporation with its principal business located at 5500 Wayzata Blvd.,
Suite 1600, Minneapolis, Minnesota 55416 (“we” or “us”), and AMC TRAVERSE CITY, INC., a Michigan
corporation whose principal business address is 27680 Franklin Road, Southfield, Michigan 48034
(“franchisee” or “you”). If the franchisee is a corporation, partnership, limited liability
company or other legal entity, certain provisions to this Agreement also apply to its owners.



RECITALS




A. Our parent company has developed a unique system for video entertainment-oriented,
casual/fast casual restaurants that feature chicken wings, sandwiches, unique food service and
other products, beverages and services using certain standards and specifications;



B. Many of the food and beverage products are prepared according to specified recipes and
procedures, some of which include proprietary sauces and mixes;



C. Our parent company owns the Buffalo Wild Wings® Trademark and other
trademarks used in connection with the operation of a Buffalo Wild Wings®
restaurant;



D. Our parent company has granted to us the right to sublicense the right to develop and
operate Buffalo Wild Wings®restaurants; and



E. You desire to develop and operate a Buffalo Wild Wings® restaurant and
we, in reliance on your representations, have approved your franchise application.



In consideration of the foregoing and the mutual covenants and consideration below, you and we
agree as follows:



DEFINITIONS





1. For purposes of this Agreement, the terms below have the following definitions:




A. “Control Person” means the individual who has the authority to, and does in fact,
actively direct your business affairs in regard to the Restaurant, is responsible for
overseeing the general management of the day-to-day operations of the Restaurant and has
authority to sign on your behalf on all contracts and commercial documents. The Control
Person is identified on the Ownership and Management Addendum attached to this Agreement.




B. “Gross Sales” includes the total revenues and receipts from the sale of all
products, services and merchandise sold in your Restaurant whether under any of the
Trademarks or otherwise, including any cover charges or fees, vending or similar activities
in your Restaurant or on its premises as well as all license and use fees. Gross Sales
excludes sales taxes.




C. “Menu Items” means the chicken wings, sandwiches and other products and beverages
prepared according to our specified recipes and procedures, as we may modify and change them
from time to time.


 


1









 






D. “Principal Owner” means any person or entity who, now or hereafter, directly or
indirectly owns a 10% or greater interest in the franchisee when the franchisee is a
corporation, limited liability company, partnership, or a similar entity. However, if we
are entering into this Agreement totally or partially based on the financial qualifications, experience, skills or
managerial qualifications of any person or entity who directly or indirectly owns less than
a 10% interest in the franchisee, we have the right to designate that person or entity as a
Principal Owner for all purposes under this Agreement. In addition, if the franchisee is a
partnership entity, then each person or entity who, now or hereafter is or becomes a general
partner is a Principal Owner, regardless of the percentage ownership interest. If the
franchisee is one or more individuals, each individual is a Principal Owner of the
franchisee. Each franchisee must have at least one Principal Owner. Your Principal
Owner(s) are identified on the Ownership and Management Addendum attached to this Agreement.
Every time there is a change in the persons who are your Principal Owners, you must, within
10 days from the date of each such change, update the Ownership and Management Addendum. As
used in this Agreement, any reference to Principal Owner includes all Principal Owners.




E. “Restaurant” means the Buffalo Wild Wings® Restaurant you
develop and operate pursuant to this Agreement.




F. “System” means the Buffalo Wild Wings® System, which consists of
distinctive food and beverage products prepared according to special and confidential
recipes and formulas with unique storage, preparation, service and delivery procedures and
techniques, offered in a setting of distinctive exterior and interior layout, design and
color scheme, signage, furnishings and materials and using certain distinctive types of
facilities, equipment, supplies, ingredients, business techniques, methods and procedures
together with sales promotion programs, all of which we may modify and change from time to
time.




G. “Trademarks” means the Buffalo Wild Wings® Trademark
and Service Mark that have been registered in the United States and elsewhere and the
trademarks, service marks and trade names set forth on Appendix A, as we may modify and
change from time to time, and the trade dress and other commercial symbols used in the
Restaurant. Trade dress includes the designs, color schemes and image we authorize you to
use in the operation of the Restaurant from time to time.




H. “Unit General Manager” means the individual who (i) personally invests his or her
full time and attention and devotes his or her best efforts to the on-premises general
management of the day-to-day operations of the Restaurant and (ii) meets our training
requirements. The Unit General Manager must be appointed at least 60 days prior to the
Restaurant opening and fully trained 20 days prior to the Restaurant opening.



GRANT OF LICENSE





2. The following provisions control with respect to the license granted hereunder:




A. Authorized Location. We grant to you the right and license to establish and
operate a retail Restaurant identified by the Buffalo Wild Wings®
Trademarks or such other marks as we may direct, to be located at 3480 South Airport Road
West, Suite A, Traverse City, Michigan 49684 or a location to be designated within 90 days
from the date of this Agreement (the “Authorized Location”). When a location has been
designated by you and approved by us, it will become part of this subparagraph 2.A as if
originally stated. You acknowledge and agree that our approval of a site does not
constitute a warranty of any kind, express or implied, as to the suitability of the site for
your Restaurant. You acknowledge and agree that your acceptance of a franchise for the
operation of a Restaurant at this Authorized Location is based on your own independent
investigation. If an Authorized Location is not designated by you and approved by us within
90 days from the date of this Agreement, we have the right to declare this Agreement null
and void without the return of any Initial Franchise Fee or other amounts paid to us. You
accept the license and undertake the obligation to operate the Restaurant at the Authorized Location using the Trademarks and the System in compliance with the terms
and conditions of this Agreement.


 


2









 






B. Designated Area. You must locate and operate the Restaurant at an
Authorized Location within the area described in Appendix B (the “Designated Area”). We and
our affiliates will not locate and operate or grant to anyone else a franchise to locate and
operate a Buffalo Wild Wings® restaurant within the Designated Area so
long as this Agreement is in effect, except as provided in subparagraph 2.D. You do not
have any right to sublicense or subfranchise within or outside of the Designated Area and do
not have the right to operate more than one Restaurant within the Designated Area.




C. Opening. You agree that the Restaurant will be open and operating by the
required open date (“Required Open Date”). If you are entering this Agreement pursuant to
an Area Development Agreement executed between you and us, the Required Open Date is defined
in the Development Schedule. If you are not entering this Agreement pursuant to an Area
Development Agreement, you and we agree that the Required Open Date is NA. If you
fail to have your Restaurant open and in operation according to the provisions of this
subparagraph 2.C, we will have the right to terminate this Agreement without opportunity to
cure pursuant to subparagraph 13.B.2.




D. Nonexclusivity; Our Reservation of Rights. The license is limited to the
right to develop and operate one Restaurant at the Authorized Location located in the
Designated Area, and does not include (i) any right to sell products and Menu Items
identified by the Trademarks at any location other than the Authorized Location, except for
authorized catering and delivery services as noted in subparagraph 2.E, or through any other
channels or methods of distribution, including the internet (or any other existing or future
form of electronic commerce), (ii) any right to sell products and Menu Items identified by
the Trademarks to any person or entity for resale or further distribution, or (iii) any
right to exclude, control or impose conditions on our development of future franchised,
company or affiliate owned restaurants at any time outside of the Designated Area. You
acknowledge that the consumer service area or trade area of another Buffalo Wild
Wings® restaurant may overlap with your Designated Area.




You also acknowledge and agree that we and our affiliates have the right to operate and
franchise others the right to operate restaurants or any other business within and outside
the Designated Area under trademarks other than the Buffalo Wild Wings®
Trademarks, without compensation to any franchisee, except that our operation of, or
association or affiliation with, restaurants (through franchising or otherwise) in the
Designated Area that compete with Buffalo Wild Wings® restaurants in the video entertainment-oriented, fast casual restaurant segment will only occur through some
form of merger or acquisition with an existing restaurant chain (except as otherwise
provided for in this subparagraph). Outside of the Designated Area, we and our affiliates
have the right to grant other franchises or develop and operate company or affiliate owned
Buffalo Wild Wings® restaurants and offer, sell or distribute any
products or services associated with the System (now or in the future) under the Trademarks
or any other trademarks, service marks or trade names, all without compensation to any
franchisee.


 


3









 






We and our affiliates further have the right to offer, sell or distribute, within and
outside the Designated Area, through any distribution channel or method, any frozen,
pre-packaged items or other products or services associated with the System (now or in the
future) or identified by the Trademarks, or any other trademarks, service marks or trade
names, except for Prohibited Items (as defined below), through any distribution channels or
methods, without compensation to any franchisee. The distribution channels or methods
include, without limitation, grocery stores, club stores, convenience stores, wholesale,
hospitals, clinics, health care facilities, business or industry locations (e.g.
manufacturing site, office building), military installations, military commissaries or the
internet (or any other existing or future form of electronic commerce). The Prohibited Items are the following items that
we will not sell in the Designated Area through other distribution channels or methods: any
retail food service Menu Items that are cooked or prepared to be served to the end user or
customer for consumption at the retail location (unless sold at the limited seating
facilities referenced in subparagraph (i) of the paragraph above). For example, chicken
wings cooked and served to customers at a grocery store or convenience store would be a
Prohibited Item, but the sale of frozen or pre-packaged chicken wings at a grocery store or
convenience store would be a permitted form of distribution in the Designated Area.




You acknowledge and agree that certain locations within and outside the Designated Area
are by their nature unique and separate in character from sites generally developed as
Buffalo Wild Wings® restaurants. As a result, you agree that the
following locations (“Special Sites”) are excluded from the Designated Area and we have the
right to develop, license or franchise such locations: (1) military bases; (2) public
transportation facilities, including, without limitation, airports and other transportation
terminals; (3) sports facilities, including race tracks; (4) student unions or other similar
buildings on college or university campuses; (5) amusement and theme parks; and (6)
community and special events.




In addition, you acknowledge and agree that, subject to your right of first refusal as
set forth below, we and our affiliates have the right to operate or franchise within and
outside the Designated Area one or more facilities selling, for dine in or take out, all or
some of the Menu Items, using the Trademarks or any other trademarks, service marks or trade
names, without compensation to any franchisee, provided, however, that such facilities shall
not have an interior area larger than 2,400 square feet and shall not have seating capacity
for more than 48 people (“Limited Seating Facilities”). If we develop a model for a Limited
Seating Facility and determine that your Designated Territory is an appropriate market for
such a facility, we will provide to you a written offer (“Offer”) specifying the terms and
conditions for your development of the Limited Seating Facility. You will have 90 days
following your receipt of the Offer to accept the Offer by delivering written notice to us
of your acceptance, provided that you are not in default under this Agreement or any other
Agreement with us or our affiliates. If you do not provide written notice to us within the
time period or if you are in default under this Agreement or any other agreement with us or
our affiliates, you will lose the right to develop the Limited Seating Facility and we may
develop or franchise others to develop the Limited Seating Facility within your Designated
Area. You acknowledge and agree that if you accept the Offer, we may require you to submit
a full application, pay an initial fee and sign a new form of franchise agreement.




E. Catering and Delivery. You may not engage in catering and delivery services
and activities within or outside of the Designated Area, unless we authorize you in writing,
as further described in subparagraph 6.L. We and our affiliate companies will not engage in
catering and delivery services and activities in the Designated Area; however, we have no
obligation to enforce similar covenants against any other franchisee.




 


4









 




TRADEMARK STANDARDS AND REQUIREMENTS




3. You acknowledge and agree that the Trademarks are our parent company’s property and it has
licensed the use of the Trademarks to us with the right to sublicense to others. You further
acknowledge that your right to use the Trademarks is specifically conditioned upon the following:



A. Trademark Ownership. The Trademarks are our parent company’s valuable
property, and it is the owner of all right, title and interest in and to the Trademarks and
all past, present or future goodwill of the Restaurant and of the business conducted at the
Authorized Location that is associated with or attributable to the Trademarks. Your use of
the Trademarks will inure to our parent company’s benefit. You may not, during or after the term of this Agreement, engage in any
conduct directly or indirectly that would infringe upon, harm or contest our parent
company’s rights in any of the Trademarks or the goodwill associated with the Trademarks,
including any use of the Trademarks in a derogatory, negative, or other inappropriate manner
in any media, including but not limited to print or electronic media.




B. Trademark Use. You may not use, or permit the use of, any trademarks, trade
names or service marks in connection with the Restaurant except those set forth in Appendix
A or except as we otherwise direct in writing. You may use the Trademarks only in
connection with such products and services as we specify and only in the form and manner we
prescribe in writing. You must comply with all trademark, trade name and service mark
notice marking requirements. You may use the Trademarks only in association with products
and services approved by us and that meet our standards or requirements with respect to
quality, mode and condition of storage, production, preparation and sale, and portion and
packaging.




C. Restaurant Identification. You must use the name Buffalo Wild Wings
Grill & Bar® as the trade name of the Restaurant and you may not use any
other mark or words to identify the Restaurant without our prior written consent. You may
not use the phrase “Buffalo Wild Wings" or any of the other Trademarks as part of
the name of your corporation, partnership, limited liability company or other similar
entity. You may use the Trademarks on various materials, such as business cards, stationery
and checks, provided you (i) accurately depict the Trademarks on the materials as we
prescribe, (ii) include a statement on the materials indicating that the business is
independently owned and operated by you, (iii) do not use the Trademarks in connection with
any other trademarks, trade names or service marks unless we specifically approve in writing
prior to such use, and (iv) make available to us, upon our request, a copy of any materials
depicting the Trademarks. You must post a prominent sign in the Restaurant identifying you
as a Buffalo Wild Wings® franchisee in a format we deem reasonably
acceptable, including an acknowledgment that you independently own and operate the
Restaurant and that the Buffalo Wild Wings® Trademark is owned by our
parent company and your use is under a license we have issued to you. All your internal and
external signs must comply at all times with our outdoor/indoor guidelines and practices, as
they are modified from time to time.




D. Litigation. In the event any person or entity improperly uses or infringes
the Trademarks or challenges your use or our use or ownership of the Trademarks, we will
control all litigation and we have the right to determine whether suit will be instituted,
prosecuted or settled, the terms of settlement and whether any other action will be taken.
You must promptly notify us of any such use or infringement of which you are aware or any
challenge or claim arising out of your use of any Trademark. You must take reasonable
steps, without compensation, to assist us with any action we undertake. We will be
responsible for our fees and expenses with any such action, unless the challenge or claim
results from your misuse of the Trademarks in violation of this Agreement, in which case you
must reimburse us for our fees and expenses.




E. Changes. You may not make any changes or substitutions to the Trademarks
unless we direct in writing. We reserve the right to change the Trademarks at any time.
Upon receipt of our notice to change the Trademarks, you must cease using the former
Trademarks and commence using the changed Trademarks, at your expense. If the changes to
the Trademarks result in a required change to outdoor signage, such changes will be subject
to the provisions in 5.F.


 


5









 





TERM AND RENEWAL




4. The following provisions control with respect to the term and renewal of this Agreement:




A. Term. The initial term of this Agreement commences on the Effective Date
(as defined in Section 15.R) and expires 20 years after the Restaurant opens for business or
the Required Open Date, which ever happens first, unless this Agreement is sooner terminated
in accordance with Paragraph 13.




B. Renewal Term and Conditions of Renewal. You may renew your license for two
renewal terms, (the first renewal term is 10 years; the second renewal term is 5 years),
provided that with respect to each renewal: (i) you have given us written notice of your
decision to renew at least 6 months but not more than 12 months prior to the end of the
expiring term; (ii) you sign our then-current form of franchise agreement (modified to
reflect no additional renewal term upon expiration and other modifications to reflect that
the agreement relates to the grant of a renewal), the terms of which may differ from this
Agreement, including higher fees and a modification to the Designated Area (although in no
event will the revised Designated Area have a residential population of the lesser of
approximately 30,000 to 40,000 or the residential population that existed as of the
Effective Date); (iii) you have complied with the provisions of subparagraph 5.E regarding
modernization and you perform any further items of modernization and/or replacement of the
building, premises, trade dress, equipment and grounds as may be necessary for your
Restaurant to conform to the standards then applicable to new Buffalo Wild Wings
restaurants, regardless of the cost of such modernizations and/or replacements, unless we
determine that you should relocate your Restaurant because your Authorized Location no
longer meets our then-current site criteria, in which case you must comply with the 90 and
270 day relocation requirements of subparagraph 5.D; (iv) you are not in default of this
Agreement or any other agreement pertaining to the franchise granted, have satisfied all
monetary and material obligations on a timely basis during the term and are in good
standing; (v) if leasing the Restaurant premises (and not subject to relocation under (iii)
above), you have renewed the lease and have provided written proof of your ability to remain
in possession of the premises throughout the renewal period; (vi) you comply with our
then-current training requirements; (vii) you pay us, at least 30 days prior to the end of
the expiring term, a renewal fee in the amount of $20,000; and (viii) you and your Principal
Owners and guarantors execute a general release of claims in a form we prescribe.




C. Relocation Upon Renewal. If, as a condition of renewal, we require you to
relocate your Restaurant pursuant to subparagraph 4.B(iii) above, you may renew your license
for 20 years, provided that with respect to the renewal, you meet all conditions stated in
subparagraph 4.B.



FACILITY STANDARDS AND MAINTENANCE




5. You acknowledge and agree that we have the right to establish, from time to time, quality
standards regarding the business operations of Buffalo Wild Wings® restaurants
and stores to protect the distinction, goodwill and uniformity symbolized by the Trademarks and the
System. Accordingly, you agree to maintain and comply with our quality standards and agree to the
following terms and conditions:




A. Restaurant Facility; Site Under Control. You are responsible for purchasing
or leasing a site that meets our site selection criteria. You must obtain our written
consent to the site. Prior to granting our consent to a site, you must obtain and submit
third-party demographic information and such other analysis and information related to the
site and market as we may require. You may not use the Restaurant premises or Authorized
Location for any purpose other than the operation of a Buffalo Wild
Wings® Restaurant during the term of this Agreement. We make no guarantees
concerning the success of the Restaurant located on any site to which we consent.




You may not open your Restaurant for business until we have notified you in writing
that you have satisfied your pre-opening obligations as set forth in subparagraphs 5.A and
5.B and we have approved your opening date. We are not responsible or liable for any of
your pre-opening obligations, losses or expenses you might incur for your failure to comply
with these obligations or your failure to open by a particular date. We also are entitled to injunctive relief or specific
performance under subparagraph 12.C for your failure to comply with your obligations.


 


6









 






In the event that you plan to enter into any type of lease for the Restaurant premises,
you and your landlord must sign the Lease Addendum attached as Appendix C. We recommend you
submit the Lease Addendum to the landlord at the beginning of your lease review and
negotiation, although the terms of the Lease Addendum may not be negotiated without our
prior approval. If the landlord requires us to negotiate the Lease Addendum, we reserve the
right to charge you a fee, which will not exceed our actual costs associated with the
negotiation. You must provide us a copy of the executed lease and Lease Addendum within 5
days of its execution. We have no responsibility for the lease; it is your sole
responsibility to evaluate, negotiate and enter into the lease for the Restaurant premises.




You must execute, and provide us an executed copy of your lease (including an executed
copy of the Lease Addendum) or the purchase agreement for the selected and approved site for
your Restaurant within 120 days from the date of execution of this Agreement. If you fail
to have your “site under control” (execute the lease or the purchase agreement within the
periods set forth in this subparagraph), we will have the right to terminate this Agreement
without opportunity to cure pursuant to subparagraph 13.B.2.




B. Construction; Future Alteration. You must construct and equip the
Restaurant in strict accordance with our current approved specifications and standards
pertaining to equipment, inventory, signage, fixtures, furnishings, accessory features
(including sports memorabilia) and design and layout of the building. You may not commence
construction of the Restaurant until you have received our written consent to your building
plans. If your Restaurant is not constructed strictly according to the previously consented
building plans, we will not approve your Restaurant for opening. You will have 30 days from
the date we deny our approval for opening your Restaurant to correct all the construction
problems so that your Restaurant is strictly constructed according to the consented building
plans. If you fail to correct the problems within the 30-day period we may immediately
terminate this Agreement pursuant to subparagraph 13.B.2. If the Restaurant opening is
delayed for the foregoing reasons, you will be responsible for any losses and costs related
to such delay.




Without limiting the generality of the prior paragraph, you must promptly after
obtaining possession of the site for the Restaurant: (i) retain the services of an
architect; (ii) retain the services of a general contractor and audio/visual equipment
providers and installers,; (iii) have prepared and submitted for our approval a site survey
and basic architectural plans and specifications (not for construction) consistent with our
general atmosphere, image, color scheme and ambience requirements as set forth from time to
time in the manuals for a Buffalo Wild Wings® restaurant (including
requirements for dimensions, exterior design, materials, interior design and layout,
equipment, fixtures, furniture, signs and decorating); (iv) purchase or lease and then, in
the construction of the Restaurant, use only the approved building materials, equipment,
fixtures, audio visual equipment, furniture and signs; (v) complete the construction and/or
remodeling, equipment, fixtures, furniture and sign installation and decorating of the
Restaurant in full and strict compliance with plans and specifications we approve and all
applicable ordinances, building codes and permit requirements without any unauthorized
alterations; (vi) obtain all customary contractors’ sworn statements and partial and final
waiver; (vii) obtain all necessary permits, licenses and architectural seals and comply with
applicable legal requirements relating to the building, signs, equipment and premises,
including, but not limited to, the Americans With Disabilities Act; and (viii) obtain and
maintain all required zoning changes, building, utility, health, sanitation, liquor and sign
permits and licenses and any other required permits and licenses (if this Agreement is for
your first Buffalo Wild Wings® restaurant or if in any previous
franchise agreement executed between you or any of your affiliates and us, you or any of
your affiliates have not met your obligations regarding the build out of any previous
Buffalo Wild Wings® restaurant, we reserve the right to require you to
retain the services of a company specialized in assisting restaurant operators during the
construction process to assist you in submitting, processing, monitoring and obtaining in a
timely manner all necessary construction documents, licenses and permits and to advise you
throughout the construction of your Restaurant). It is your responsibility to comply with
the foregoing conditions.


 


7









 






You must use the prototype architectural drawings made available to you by us when
working with your architect and general contractor. You, your affiliates or your Principal
Owners, or any person related to, or any entity controlled by your Principal Owners may not
be your general contractor unless you have requested our approval and we have approved your
request.




Your general contractor may not be your audio/visual equipment provider and installer,
unless your general contractor shows expertise in this field to our satisfaction and is
approved by us prior to performing any work.




Any change to the building plans or any replacement, reconstruction, addition or
modification in the building, interior or exterior decor or image, equipment or signage of
the Restaurant to be made after our consent is granted for initial plans, whether at the
request of you or of us, must be made in accordance with specifications that have received
our prior written consent. You may not commence such replacement, reconstruction, addition
or modification until you have received our written consent to your revised plans.




You must begin substantial construction (site work, utility infrastructure and building
erection) of the Restaurant at least 150 days before the deadline to open the Restaurant if
the Restaurant will be in a free standing location or at least 120 days before the deadline
to open the Restaurant if the Restaurant will be in a non-free standing location. We may
require you to provide us weekly development and construction progress reports in the form
we designate from the date you begin development until the date you open the Restaurant.
For instance, you may be required to contact the designated project manager and provide
construction manual checklists and digital photos during construction on a weekly basis. In
addition, on or before the deadlines to start construction you must submit to us executed
copies of any loan documents and any other document that proves that you have secured
adequate financing to complete the construction of the Restaurant by the date you are
obligated to have the Restaurant open and in operation. In the event that you fail to begin
construction or to secure financing pursuant to this paragraph, we will have the right to
terminate this Agreement without opportunity to cure pursuant to subparagraph 13.B.2.




C. Maintenance. The building, equipment, fixtures, furnishings, signage and
trade dress (including the interior and exterior appearance) employed in the operation of
your Restaurant must be maintained and refreshed in accordance with our requirements
established periodically and any of our reasonable schedules prepared based upon periodic
evaluations of the premises by our representatives. Within a period of 30-45 days (as we
determine depending on the work needed) after the receipt of any particular report prepared
following such an evaluation, you must effect the items of maintenance we designate,
including the repair of defective items and/or the replacement of irreparable or obsolete
items of equipment and interior signage. If, however, any condition presents a threat to
customers or public health or safety, you must effect the items of maintenance immediately,
as further described in subparagraph 6.G. The items of maintenance generally result from
common wear and tear over a period of time, accidents or lack of care. Examples include,
but are not limited to, repairing or replacing HVAC equipment, plumbing and electrical
systems that are not functioning properly; repairing a leaking roof; repairing or replacing
broken operational and audio-visual equipment; refreshing general appearance items such as
paint (interior and exterior) and landscaping; replacing worn carpet, furniture and other
furnishings; and conducting routine maintenance of areas that affect the appearance of the
Restaurant and goodwill of the Trademarks such as the appearance of the outdoor signage, the
parking lot and dumpster area.


 


8









 






D. Relocation. If you need to relocate because of condemnation, destruction,
or expiration or cancellation of your lease for reasons other than your breach, we will
grant you authority to do so at a site acceptable to us that is within your Designated Area;
provided that (i) you have submitted third-party demographic information and such other
analysis and information related to the site and market as we may require; (ii) we have
consented in writing to the new site; (iii) the new Restaurant is under construction within
90 days after you discontinue operation of the Restaurant at the Authorized Location; and
(iv) the new Restaurant is open and operating within 270 days after construction commences,
all in accordance with our then-current standards. If you voluntarily decide to relocate
the Restaurant, your right to relocate the Restaurant will be void and your interest in this
Agreement will be voluntarily abandoned, unless you have given us notice of your intent to
relocate not less than 60 days prior to closing the Restaurant, have procured a site that we
have consented to in writing within 60 days after closing the prior Restaurant, have opened
the new Restaurant for business within 180 days of such closure and complied with any other
conditions that we reasonably require. You must pay the costs of any relocation, and we
reserve the right to charge you for any reasonable costs that we incur.




In the event your Restaurant is destroyed or damaged and you repair the Restaurant at
the Authorized Location (rather than relocate the Restaurant), you must repair and reopen
the Restaurant at the Authorized Location in accordance with our then-current standards for
the destroyed or damaged area within 270 days of the date of occurrence of the destruction
or damage.




You do not have the right to relocate in the event you lose the right to occupy the
Restaurant premises because of the cancellation of your lease due to your breach. The
termination or cancellation of your lease due to your breach is grounds for immediate
termination under subparagraph 13.B.2.




E. Modernization or Remodel. You agree that you will make such capital
improvement or modifications necessary to modernize, redecorate and upgrade your Restaurant,
including an upgrade of your audio/visual equipment to reflect the current image of new
Buffalo Wild Wings® restaurants as reasonably requested by Franchisor
during the term of this Agreement (taking into consideration the cost of the modernization,
the life expectancy of the equipment and the then-remaining term of this Agreement). We
will not impose any new standards or specifications requiring structural changes or
remodeling of your Restaurant more frequently than once every seven (7) years.




You must complete to our satisfaction any changes we require within a reasonable time,
not to exceed 12 months from the date you are notified of any required changes, except for
outdoor signage as set forth in subparagraph 5.F.




You acknowledge and agree that the requirements of this subparagraph 5.E are both
reasonable and necessary to ensure continued public acceptance and patronage of Buffalo
Wild Wings® restaurants and to avoid deterioration or obsolescence in
connection with the operation of the Restaurant. If you fail to make any improvement as
required by this subparagraph or perform the maintenance described in subparagraph 5.C, we
may, in addition to our other rights in this Agreement, effect such improvement or
maintenance and you must reimburse us for the costs we incur.




Except for transfers under Subparagraph 11.G, every other transfer of any interest in
this Agreement or your business governed by Paragraph 11 or any renewal covered by Paragraph
4 is expressly conditioned upon your compliance with these requirements at the time of
transfer or renewal.




F. Signage. The outdoor signage at your Restaurant must comply with our
then-current specifications, which we may modify and change from time to time due to
modifications to the System, including changes to the Trademarks. You must make such
changes to the outdoor signage as we require. We will pay for 1/3 of the cost to replace
your outdoor signage if: (i) your Restaurant’s sign is less than 2 years old and (ii) we
require that you replace the sign within one year from the date of notification. In any case, your failure to replace the signage within 15 months from
the date of notification will constitute a default of this Agreement under Paragraph 13.
Any upgrades to the type or size of your outdoor signage will be at your expense.


 


9









 





PRODUCTS AND OPERATIONS STANDARDS AND REQUIREMENTS




6. You must implement and abide by our requirements and recommendations directed to enhancing
substantial System uniformity. The following provisions control with respect to products and
operations:




A. Authorized Menu. Your business must be confined to the preparation and sale
of only such Menu Items and other food and beverage products as we designate and approve in
writing from time to time for sale by your Restaurant. You must offer for sale from the
Restaurant all items and only those items listed as Menu Items and other approved food and
beverage products. You must offer the full Authorized Menu during all hours of operation.
We have the right to make modifications to these items from time to time, and you agree to
comply with any modifications. You may not offer or sell any other product or service at
the Authorized Location without our prior written consent.




B. Authorized Products and Ingredients. You must use in the operation of the
Restaurant and in the preparation of Menu Items and other food and beverage products only
the proprietary sauces and mixes and other proprietary and non-proprietary ingredients,
recipes, formulas, cooking techniques and processes and supplies, and must prepare and serve
Menu Items and products in such portions, sizes, appearance, taste and packaging, all as we
specify in our most current product preparation materials or otherwise in writing. We will
supply to you a copy of the current product preparation materials prior to opening the
Restaurant. You acknowledge and agree that we may change these periodically and that you
are obligated to conform to the requirements. All supplies, including containers, cups,
plates, wrapping, eating utensils, and napkins, and all other customer service materials of
all descriptions and types must meet our standards of uniformity and quality. You
acknowledge that the Restaurant must at all times maintain an inventory of ingredients, food
and beverage products and other products, material and supplies that will permit operation
of the Restaurant at maximum capacity.




C. Approved Supplies and Suppliers. We will furnish to you from time to time
lists of approved supplies or approved suppliers. You must only use approved products,
services, inventory, equipment, fixtures, furnishings, signs, advertising materials,
trademarked items and novelties, and other items or services (collectively, “approved
supplies”) in connection with the design, construction and operation of the Restaurant as
set forth in the approved supplies and approved suppliers lists, as we may amend from time
to time. Although we do not do so for every item, we have the right to approve the
manufacturer, distributor and/or supplier of approved supplies and in some instances,
require that you use designated sources or suppliers. Along with a number of other approval
criteria, to be an approved supplier, the supplier must have the ability to provide the
product and/or service, on a national basis, to at least 80% of the then existing
Restaurants. You acknowledge and agree that certain approved supplies may only be available
from one source, and we or our affiliates may be that source. You will pay the then-current
price in effect for all products and supplies that you purchase from us or our affiliates.
All inventory, products, materials and other items and supplies used in the operation of the
Restaurant that are not included in the approved supplies or approved suppliers lists must
conform to the specifications and standards we establish from time to time. ALTHOUGH
APPROVED OR DESIGNATED BY US, WE AND OUR AFFILIATES MAKE NO WARRANTY AND EXPRESSLY DISCLAIM
ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR
PURPOSE, WITH RESPECT TO SERVICES, PRODUCTS, EQUIPMENT (INCLUDING, WITHOUT LIMITATION, ANY
REQUIRED COMPUTER SYSTEMS), SUPPLIES, FIXTURES, FURNISHINGS OR OTHER APPROVED ITEMS. IN
ADDITION, WE DISCLAIM ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES RENDERED OR PRODUCTS FURNISHED BY ANY SUPPLIER APPROVED OR DESIGNATED BY
US. OUR APPROVAL OR CONSENT TO ANY SERVICES, GOODS, SUPPLIERS, OR ANY OTHER INDIVIDUAL,
ENTITY OR ANY ITEM SHALL NOT CREATE ANY LIABILITY TO US.


 


10









 






D. Computer System. You must purchase and use any computer system that we
develop or select for the Restaurant, including all future updates, supplements and
modifications (the “Computer System”). The Computer System may include all hardware and
software used in the operation of the Restaurant, including electronic point-of-sale cash
registers and back office programs used to record, analyze and report sales, labor,
inventory and tax information. The computer software package developed for use in the
Restaurant may include proprietary software. You may be required to license the proprietary
software from us, an affiliate or a third party and you also may be required to pay a
software licensing or user fee in connection with your use of the proprietary software. All
right, title and interest in the software will remain with the licensor of the software.
The computer hardware component of the Computer System must conform to specifications we
develop. We reserve the right to designate a single source from whom you must purchase the
Computer System. You acknowledge and agree that we will have full and complete access to
information and data entered and produced by the Computer System. You must, at all times,
have at the Authorized Location internet access with a form of high speed connection as we
require and you must maintain: (i) an email account for our direct correspondence with the
Control Person; and (ii) a separate email account for the Restaurant.




E. Serving and Promotional Items. All sales promotion material, customer
goodwill items, cartons, containers, wrappers and paper goods, eating and serving utensils
and other items, and customer convenience items used in the sales promotion, sale and
distribution of products covered by this Agreement are subject to our approval and must,
where practicable, contain one or more of the Trademarks. We may require you to carry and
offer for sale in the Restaurant a representative supply of approved trademarked clothing
and other novelty items, including special promotional items that we develop and market from
time to time.




F. Health and Sanitation. Your Restaurant must be operated and maintained at
all times in compliance with any and all applicable health and sanitary standards prescribed
by governmental authority. You also must comply with any standards that we prescribe. In
addition to complying with such standards, if the Restaurant is subject to any sanitary or
health inspection by any governmental authorities under which it may be rated in one or more
than one classification, it must be maintained and operated so as to be rated in the highest
available health and sanitary classification with respect to each governmental agency
inspecting the same. In the event you fail to be rated in the highest classification or
receive any notice that you are not in compliance with all applicable health and sanitary
standards, you must immediately notify us of such failure or noncompliance.




G. Evaluations. We or our authorized representative have the right to enter
your Restaurant at all reasonable times during the business day for the purpose of making
periodic evaluations and to ascertain if the provisions of this Agreement are being observed
by you, to inspect and evaluate your building, land and equipment, and to test, sample,
inspect and evaluate your supplies, ingredients and products, as well as the storage,
preparation and formulation and the conditions of sanitation and cleanliness in the storage,
production, handling and serving. If we determine that any condition in the Restaurant
presents a threat to customers or public health or safety, we may take whatever measures we
deem necessary, including requiring you to immediately close the Restaurant until the
situation is remedied to our satisfaction. Our inspections and evaluations may include a
“mystery shopper” program from time to time throughout the term of this Agreement. We hire
various vendors who send the “mystery shoppers” into the Buffalo Wild
Wings® restaurants. If you fail an evaluation by us or by a mystery shopper
or if we receive a specific customer complaint, you must pay for the mystery shopper(s) we
send to your Restaurant (until the issue is resolved to our
satisfaction). The current fee charged by the vendors is approximately $100 fee per visit, which you
must pay directly to the vendor. The fee per visit includes the reimbursement of the tab
paid by the mystery shopper for the items consumed at your Restaurant and, therefore, the
actual fee for each visit will vary.


 


11









 










H. Period of Operation. Subject to any contrary requirements of local law,
your Restaurant must be opened to the public and operated with the full Authorized Menu at
least 12 hours each day of the year, although you have the option to close your Restaurant,
with prior notification to us, 5 days per year, although never 2 consecutive days (with the
exception of Christmas Eve and Christmas Day). Any variance from this provision must be
authorized by us in writing. You acknowledge and agree that if your Restaurant is closed
for a period of 2 consecutive days or 5 or more days in any 12-month period without our
prior written consent, such closure constitutes your voluntary abandonment of the franchise
and business and we have the right, in addition to other remedies provided for herein, to
terminate this Agreement. Acts of force majeure, as defined in subparagraph 16.M,
preventing you temporarily from complying with the foregoing, will suspend compliance for
the duration of such interference.




I. Operating Procedures. You must adopt and use as your continuing operational
routine the required standards, service style, procedures, techniques and management systems
described in our manuals or other written materials relating to product preparation, menu,
storage, uniforms, financial management, equipment, facility and sanitation. We will revise
the manuals and these standards, procedures, techniques and management systems periodically
to meet changing conditions of retail operation in the best interest of restaurants
operating under the Trademarks. Any required standards exist to protect our interests in
the System and the Trademarks and not for the purpose of establishing any control or duty to
take control over those matters that are reserved to you. You must use your best efforts to
promote and increase the sales and service of Menu Items and to effect the widest and best
possible distribution throughout the Designated Area.




You acknowledge having received one copy of the manuals on loan from us for the term of
this Agreement. You acknowledge and agree that the manuals and other system communications
may only be available on the internet or other online or computer communications. The
manuals at all times are our sole property. You must at all times treat the manuals, and
the information they contain, as secret and confidential, and must use all reasonable
efforts to maintain such information as secret and confidential. We may from time to time
revise the contents of the manuals and you expressly agree to comply with each new or
changed requirement. You must at all times ensure that your copy of the manuals are kept
current and up to date, and in the event of any dispute as to the contents of said manuals,
the terms of the master copy of the manuals that we maintain are controlling.




J. Confidential Information. You, the Principal Owners, the Unit General
Manager, your guarantors, officers, directors, members, managers, partners, employees or
agents, or any other individual or entity related to, or controlled by, you may not, during
the term of this Agreement or thereafter, disclose, copy, reproduce, sell or use any such
information in any other business or in any manner not specifically authorized or approved
in advance in writing by us any Confidential Information. For purposes of this Agreement,
“Confidential Information” means the whole or any portion of know-how, knowledge, methods,
specifications, processes, procedures and/or improvements regarding the business that is
valuable and secret in the sense that it is not generally known to our competitors and any
proprietary information contained in the manuals or otherwise communicated to you in
writing, verbally or through the internet or other online or computer communications, and
any other knowledge or know-how concerning the methods of operation of the Restaurant, as
well as the content of this Agreement and any other document executed in connection with
this Agreement. Any and all Confidential Information, including, without limitation,
proprietary ingredients, sauces and mixes, secret formulas and recipes, methods, procedures,
suggested pricing, specifications, processes, materials, techniques and other data, may not
be used for any purpose other than operating the Restaurant. We may require that you obtain nondisclosure and
confidentiality agreements in a form satisfactory to us from any persons owning a minority
interest in the franchisee, the Principal Owners, the Unit General Manager and other key
employees. You must provide executed copies of these agreements to us upon our request.
Notwithstanding the foregoing, you are authorized to disclose the terms of this Agreement to
any lender providing you financing for the Restaurant as well as to your landlord.


 


12









 






K. Vending Services. If you install or maintain on the premises any newspaper
racks, video games, jukeboxes, gum machines, games, rides, vending machines, or other
similar devices that do not meet with our approval, you must remove them within three days
from receiving written notice from us. Pool tables, cigarette vending machines, gambling
and gaming machines or games of chance are not allowed unless you receive our prior written
approval. Any income from vending services in the Restaurant or on its premises, regardless
of which person or entity collects the money, and regardless of whether we authorized you to
install them, must be included in Gross Sales for purposes of your Royalty Fee and
Advertising Fee. Upon our written approval, the money derived from services provided by
charitable organizations or services that are for customer convenience, such as pay phones
or cash machines, will not be included in Gross Sales.




L. Catering and Delivery Services. If you want to offer catering or delivery
service to customers, you must obtain our prior written approval, which we will not withhold
unreasonably, although we reserve the right to require you to offer catering service to
customers located within the Designated Area. Any catering or delivery services must meet
our written standards. You also must charge the same price for products offered by the
Restaurant whether delivered or catered by or sold in the Restaurant. Any income from
catering or delivery services must be included in Gross Sales for purposes of your Royalty
Fee and Advertising Fee.




M. Compliance with Law; Licenses and Permits. You must at all times maintain
your premises and conduct your Restaurant operations in compliance with all applicable laws,
regulations, codes and ordinances. You must secure and maintain in force all required
licenses, including a liquor license that permits alcohol sales 7 days a week (full liquor
Monday through Saturday and either full liquor or at least beer only on Sundays), permits
and certificates relating to your Restaurant. If your Restaurant is open and operating and
a change occurs in applicable state or local law that does not permit liquor sales on
Sundays, it will not be deemed a breach of this Agreement. In the event your liquor license
is suspended or revoked, in addition to our right to terminate this Agreement pursuant to
subparagraph 13.B, we reserve the right to charge you the Royalty Fee on the Gross Sales you
would have received on the lost liquor sales during the license suspension. We will
estimate the Gross Sales based on the prior year’s Gross Sales for the suspension period.




You acknowledge that you are an independent business and responsible for control and
management of your Restaurant, including, but not limited to, the hiring and discharging of
your employees and setting and paying wages and benefits of your employees. You acknowledge
that we have no power, responsibility or liability in respect to the hiring, discharging,
setting and paying of wages or related matters.




You must immediately notify us in writing of any claim, litigation or proceeding that
arises from or affects the operation or financial condition of your Buffalo Wild
Wings® business or Restaurant, including any notices of health code
violations or liquor license violations.


 


13









 






N. Participation in Internet Web Sites or Other Online Communications. You
must, at your expense, participate in our Buffalo Wild Wings® web site
on the internet, our intranet system or other online communications as we may require. For
instance, you must submit to us daily reports via our intranet system, as further described
in subparagraph 9.H. We have the right to determine the content and use of our web site and intranet system and will establish the rules under
which franchisees may or must participate. You may not separately register any domain name
containing any of the Trademarks nor participate in any web site that markets goods and
services similar to a Buffalo Wild Wings® restaurant. You may not use
or reference the Marks in any online communication or web site (including, without
limitation, all current and future social media platforms) absent our prior approval. We
retain all rights relating to our web site and intranet system and may alter or terminate
our web site or intranet system. Your general conduct on our web site and intranet system
or other online communications and specifically your use of the Trademarks or any
advertising is subject to the provisions of this Agreement. You acknowledge that certain
information related to your participation in our web site or intranet system may be
considered Confidential Information, including access codes and identification codes. Your
right to participate in our web site and intranet system, or otherwise use the Trademarks or
System on the internet or other online communications, will terminate when this Agreement
expires or terminates.




O. System Modifications. You acknowledge and agree that we have the right to
modify, add to or rescind any requirement, standard or specification that we prescribe under
this Agreement to adapt the System to changing conditions, competitive circumstances,
business strategies, business practices and technological innovations and other changes as
we deem appropriate. You must comply with these modifications, additions or rescissions at
your expense, subject to the requirements of subparagraph 5.E and any other express
limitations set forth in this Agreement.




P. Suggested Pricing Policies. We may, from time to time, make suggestions to
you with regard to your pricing policies. Notwithstanding any suggestions, you have the
sole and exclusive right as to the minimum prices you charge for the services offered at the
Restaurant. We retain the right to establish maximum prices to be charged by you for sales
promotions, subject to subparagraph 8.F, or otherwise. Any list or schedule of prices we
furnish to you may, unless otherwise specifically stated as to the maximum price, be treated
as a recommendation only and failure to accept or implement any such suggestion will not in
any way affect the relationship between you and us.



PERSONNEL AND SUPERVISION STANDARDS




7. The following provisions and conditions control with respect to personnel, training and
supervision:




A. Supervision. You must have a Control Person and a Unit General Manager that
meet our standards and qualifications at all times during the term of this Agreement. Your
Control Person and Unit General Manager must attend and successfully complete all required
training, as set forth in subparagraphs 7.B — E. Should any actions (or inactions) of your
Control Person or Unit General Manager cause the individual to fail to meet our standards
and qualifications or should the action (or inaction) bring or tend to bring any of the
Trademarks into disrepute or impair or tend to impair your or your Restaurant’s reputation
or the goodwill of the Trademarks, your Restaurant or the Buffalo Wild
Wings® system, we have the right to require that you replace the Control
Person or Unit General Manager with an individual who meets our standards and qualifications
within 30 days. Any new Control Person or Unit General Manager must attend and successfully
complete our training requirements immediately after being appointed by you. The Control
Person and Unit General Manager must ensure that the Restaurant is operated in accordance
with the terms and conditions of this Agreement, although this in no way relieves you of
your responsibilities to do so. Your Control Person also must be readily and continuously
available to us. In addition to the Control Person and your Unit General Manager, you must
have at least two assistant managers at all times during the term of this Agreement.


 


14









 






B. Training. You must, at your expense, comply with all of the training
requirements we prescribe for the Restaurant to be developed under this Agreement. The
Control Person, the Unit General Manager and at least two of your assistant managers must
attend training and complete training to our satisfaction (such that at all times you have 3
trained managers for your Restaurant). All replacement managers must complete training to
our satisfaction, and must begin training within 6 weeks of the time of hire. The training
requirements may vary depending on our assessment of the experience of the Control Person,
the Unit General Manager and the assistant managers or other factors specific to the
Restaurant. In the event you are given notice of default as set forth in subparagraphs 13.A
and B and the default relates, in whole or in part, to your failure to meet any operational
standards, we have the right to require as a condition of curing the default that you, the
Control Person, the Unit General Manager and the assistant managers, at your expense, comply
with the additional training requirements we prescribe. Any new Control Person or Unit
General Manager must comply with our training requirements. Under no circumstances may you
permit management of the Restaurant’s operations by a person who has not successfully
completed to our reasonable satisfaction all applicable training we require.




C. Ongoing Training. We may require the Control Person, the Unit General
Manager, the assistant managers and other key employees of the Restaurant to attend, at your
expense, ongoing training at our training facility, the Authorized Location or other
location we designate. In addition, we may develop and require you to purchase an
in-restaurant training program.




D. Staffing. You will employ a sufficient number of competent and trained
employees to ensure efficient service to your customers. You must require all your
employees to work in clean uniforms approved by us, but furnished at your cost or the
employees’ cost as you may determine. No employee of yours will be deemed to be an employee
of ours for any purpose whatsoever.




E. Attendance at Meetings. You and the Control Person must attend, at your
expense, all annual franchise conventions we may hold or sponsor and all meetings relating
to new products or product preparation procedures, new operational procedures or programs,
training, restaurant management, sales or sales promotion, or similar topics. If you or the
Control Person are not able to attend a meeting or convention, you must notify us prior to
the meeting and must have a substitute person acceptable to us attend the meeting. In
addition, your Unit General Manager(s) must attend the annual training meeting for Unit
General Managers that we may hold or sponsor, at your own expense. We reserve the right to
require that you and/or your Control Person attend any additional meetings that we deem
appropriate under special circumstances, provided however, that we will not require more
than one additional meeting every year and we will give you written notice of any such
meeting at least 10 days prior to the meeting.



ADVERTISING




8. You agree to actively promote your Restaurant, to abide by all of our advertising
requirements and to comply with the following provisions:




A. Advertising Fund. You must pay to us an Advertising Fee as set forth in
subparagraph 9.C. All Advertising Fees will be placed in an Advertising Fund that we own
and manage. On behalf of our company and affiliate owned restaurants (except for “Special
Sites”), we will pay the same Advertising Fee as similarly situated franchised restaurants
(based on age and type of location) in the same local marketing area. The Advertising Fund
is not a trust or escrow account, and we have no fiduciary obligation to franchisees with
respect to the Advertising Fund; provided, however, we will make a good faith effort to
expend such fees in a manner that we determine is in the general best interests of the System. We have the right to determine the expenditures of the amounts collected
and the methods of marketing, advertising, media employed and contents, terms and conditions
of marketing campaigns and promotional programs. Because of the methods used, we are not
required to spend a prorated amount on each restaurant or in each advertising market. We
have the right to make disbursements from the Advertising Fund for expenses incurred in
connection with the cost of formulating, developing and implementing marketing, advertising
and promotional campaigns. The disbursements may include payments to us for the expense of
administering the Advertising Fund, including accounting expenses and salaries and benefits
paid to our employees engaged in the advertising functions. If requested, we will provide
you an annual unaudited statement of the financial condition of the Advertising Fund.


 


15









 






B. Required Local Expenditures. You must use your best efforts to promote and
advertise the Restaurant and participate in any local marketing and promotional programs we
establish from time to time. In addition to the Advertising Fee, you are required to spend
1/2% of your Gross Sales on approved local marketing and promotion. Upon our request, you
must provide us with itemization and proof of marketing and an accounting of the monies that
you have spent for approved local marketing. If you fail to make the required expenditure,
we have the right to collect and contribute the deficiency to the Advertising Fund.




C. Approved Materials. You must use only such advertising materials (including
any print, radio, television, electronic, or other media forms that may become available in
the future) as we furnish, approve or make available, and the materials must be used only in
a manner that we prescribe. Furthermore, any promotional activities you conduct in the
Restaurant or on its premises are subject to our approval. We will not unreasonably
withhold approval of any sales promotion materials or media and activities; provided that
they are current, in good condition, in good taste and accurately depict the Trademarks.
Any point-of-sale posters or other promotional materials used by you must be current and in
good condition. We may make available at a reasonable cost to you annually or at other
reasonable intervals, a sales promotion kit containing new (or replacement) point-of-sale
and other promotional materials.




D. Advertising Cooperatives. We have the right to designate local advertising
markets and if designated, you must participate in and contribute to the cooperative
advertising and marketing programs in your designated local advertising market. If
established, you must contribute a minimum of 1/2% of Gross Sales to the local cooperative,
which satisfies the local marketing requirement described in subparagraph 8.B. If, however,
the cooperative votes to spend a percentage greater than 1/2% per location, you must
contribute such amount. Each Buffalo Wild Wings® restaurant,
including those operated by us, our parent company or our affiliates (except Special Sites)
within a designated local advertising area is a member of the local advertising cooperative
and each restaurant has one vote on all matters requiring a vote. Each advertising
cooperative will be required to adopt governing bylaws that meet our approval. We will
provide each advertising cooperative with a sample form of bylaws, containing certain terms
and conditions that we require, although the bylaws can not modify the voting structure set
forth in this paragraph. You will be required to contribute to the cooperative the
percentage as designated by a majority vote of the cooperative members. We reserve the
right to administer the advertising cooperatives’ funds and require payment from its members
via electronic funds transfer. The contribution amount designated by the cooperative must
be on a percentage of Gross Sales basis and per Restaurant, and must be at least 1/2%. The
members of each cooperative and their elected officers will be responsible for the
administration of the advertising cooperative. Each advertising cooperative must engage the
services of a professional advertising agency or media buyer that meets with our approval
and has expertise in the industry and in the particular market. Further, you must obtain
our written approval of all promotional and advertising materials, creative execution and
media schedules prior to their implementation. Each advertising cooperative will be
required to prepare annual financial statements, which must be made available to all members
of the cooperative and to us upon request. Also, each advertising cooperative must submit to us its meeting minutes upon our
request. We have the right to require advertising cooperatives to be formed, changed,
dissolved or merged.


 


16









 










E. Telephone Directory Listing. You must place a separate listing, or
participate in a joint listing, in the primary yellow page directory serving the geographic
area in which your Restaurant is located. The listing must contain such copy and proper use
of the Trademarks as we specify. The cost of the listing must be paid by you or, in the
case of a joint listing, by you and other participating Buffalo Wild
Wings® restaurants. Your cost to advertise in the yellow pages as
we direct will be included as part of your local advertising requirements under subparagraph
8.B. We will not specify an unreasonably expensive listing; we may, however, require you to
advertise in more than one local telephone directory.




F. Participation in Certain Programs and Promotions. You must participate in
all required advertising and promotional programs we establish. If the promotional program
involves alcohol, or any Menu Item that is listed on the then-current Buffalo Wild
Wings® printed menu (including any limited time offers), we may suggest, but
will not require, that you offer the item at a price lower than the every day menu price.
You must use and honor only system-wide gift cards, certificates and checks that we
designate and you must obtain all certificates, cards or checks from an approved supplier.
We have developed a gift card program and require that you sign the Affiliated Seller
Agreement attached as Appendix E. At the time of termination or expiration, or the transfer
of your rights under this Agreement, you must pay all amounts owed by you under the
Affiliated Seller Agreement.




G. New Restaurant Opening Promotion. You must conduct certain advertising and
public relations activities in connection with the opening of your Restaurant. We require
you to spend, in addition to the required local advertising contribution described above,
$12,500 for such opening activities, which must be spent some time within 45 days prior and
45 days following the opening of your Restaurant, unless otherwise approved by us. In
addition, you must perform opening advertising and promotions as required by this paragraph
every time that you (i) relocate the Restaurant or (ii) reopen the Restaurant after having
it closed for 30 days or more. Upon our request, you must provide to us proof of these
expenditures. We have the right, but not the obligation, to collect and administer these
funds on your behalf.



FEES, REPORTING AND AUDIT RIGHTS





9. You must pay the fees described below and comply with the following provisions:




A. Initial Franchise Fee. You must pay to us a nonrefundable Initial Franchise
Fee of $10,000. The Initial Franchise Fee, payable in full on the date you sign this
Agreement, is earned upon receipt and is in consideration for our expenses incurred and
services rendered in granting you the franchise rights.




B. Royalty Fee. In addition to the Initial Franchise Fee, during the full term
of this Agreement and in consideration of the rights granted to you, you must pay to us a
weekly Royalty Fee. The Royalty Fee for the first half of the initial term of this
Agreement shall be an amount equal to 5% of Gross Sales. The Royalty Fee for the second
half of the initial term of this Agreement shall be an amount equal to the greater of (i) 5%
of Gross Sales or (ii) the Royalty Fee being charged by us under our form of franchise
agreement being used by us at any time during the second half of the initial term of the
Agreement (or, if no form of franchise agreement is being used by us on such date, the
Royalty Fee being charged by us under our latest form of franchise agreement), provided that
the Royalty Fee may not be increased by more than 1/2% at any time during the initial term of
the Agreement. The amount of the Royalty Fee for any renewal term shall be that provided in
the franchise agreement executed for such renewal term.


 


17









 






C. Advertising Fee. You must pay to us a weekly Advertising Fee in an amount
equal to 3% of Gross Sales. We reserve the right to increase this percentage upon 60 days
written notice to you, provided, however, that we may not increase the Advertising Fee by
more than 1/2% per year and that the Advertising Fee will not exceed 4% for the initial term
of this Agreement. These fees are not held by us in trust and become our property to be
spent in accordance with Paragraph 8 of this Agreement.




D. Computations and Remittances. Except for the Initial Franchise Fee, you
must compute all amounts due and owing at the end of each week’s operation and remittance
for the amounts must be made to us on or before Friday of the following week, accompanied by
any reports we may require under subparagraph 9.H of this Agreement. We reserve the right
to change the reporting day of the week for any or all amounts. You must certify the
computation of the amounts in the manner and form we specify, and you must supply to us any
supporting or supplementary materials as we reasonably require to verify the accuracy of
remittances. You waive any and all existing and future claims and offsets against any
amounts due under this Agreement, which amounts you must pay when due. We have the right to
apply or cause to be applied against amounts due to us or any of our affiliates any amounts
that we or our affiliates may hold from time to time on your behalf or that we or our
affiliates owe to you. Further, if you are delinquent in the payment of any amounts owed to
us, we have the right to require you to prepay estimated Royalty Fees and Advertising Fees.




E. Electronic Transfer of Funds. You must sign an electronic transfer of funds
authorization, attached as Appendix D, to authorize and direct your bank or financial
institution to transfer electronically, on a weekly basis, directly to our account or our
affiliates’ and to charge to your account all amounts due to us or our affiliates. You must
maintain a balance in your account sufficient to allow us and our affiliates to collect the
amounts owed when due. You are responsible for any penalties, fines or other similar
expenses associated with the transfer of funds described in this subparagraph.




F. Interest Charges; Late Fees. Any and all amounts that you owe to us or to
our affiliates will bear interest at the rate of 18% per annum or the maximum contract rate
of interest permitted by governing law, whichever is less, from and after the date of
accrual. In addition to interest charges on late Royalty Fee and Advertising Fee payments,
you must pay to us a service charge of $150 for each delinquent report or payment that you
owe to us under this Agreement. A payment is delinquent for any of the following reasons:
(i) we do not receive the payment on or before the date due; or (ii) there are insufficient
funds in your bank account to collect the total payment by a transfer of funds on or after
the date due. The service charge is not interest or a penalty, it is only to compensate us
for increased administrative and management costs due to late payment.




G. Financial Planning and Management. You must record daily all sales on a
cash register tape or similar device. You must keep books and records and submit reports as
we periodically require, including but not limited to a monthly profit plan, monthly balance
sheet and monthly statement of profit and loss, records of prices and special sales, check
registers, purchase records, invoices, sales summaries and inventories, sales tax records
and returns, payroll records, cash disbursement journals and general ledger, all of which
accurately reflect the operations and condition of your Restaurant operations. You must
compile, keep and submit to us the books, records and reports on the forms and using the
methods of bookkeeping and accounting as we periodically may prescribe. The records that
you are required to keep for your Restaurant must include detailed daily sales, cost of
sales, and other relevant records or information maintained in an electronic media format
and methodology we approve. You must provide this information to us according to reporting
formats, methodologies and time schedules that we establish from time to time. You also
must preserve and retain the books, records and reports for not less than 36 months. You
must allow us electronic and manual access to any and all records relating to your
Restaurant.


 


18









 






H. Reports and Audit. You must submit your Gross Sales daily via our intranet
system. You must verify the accuracy of the Gross Sales figure by Tuesday at midnight of
each week for the preceding week. You must submit to us all reports with respect to the
preceding month by the dates and in the form and content as we periodically prescribe. The
reports we may require include, but are not limited to, the following information for the
preceding month: (i) amount of Gross Sales and gross receipts of the Restaurant, amount of
sales tax and the computation of the Royalty Fee and the Advertising Fee; (ii) quantities of
products purchased and the sources from which each were obtained; (iii) if we request,
copies of your most recent sales tax return, monthly cash register sales summary or details
and monthly balance sheet and statement of profit and loss, including a summary of your
costs for utilities, labor, rent and other material cost items; and (iv) if requested by us
to verify your Gross Sales, all such books and records as we may require under our audit
policies published from time to time. You also must, at your expense, submit to us within
90 days after the end of each fiscal year a detailed balance sheet, profit and loss
statement and statement of cash flows for such fiscal year, prepared on an accrual basis
including all adjustments necessary for fair presentation of the financial statements,
including a supplemental schedule of revenue and expenses prepared in the format we may
periodically prescribe. We may require that the annual financial statements be reviewed or
audited by a certified public accountant. You must certify all reports to be true and
correct. You acknowledge and agree that we have the right to impose these requirements on
you regardless of whether we impose the same requirement on our other franchisees.




We or our authorized representative have the right at all times during the business day
to enter the premises where your books and records relative to the Restaurant are kept and
to evaluate, copy and audit such books and records. We also have the right to request
information from your suppliers and vendors. In the event that any evaluation or audit
reveals any understatement of your Gross Sales, Royalty Fees or Advertising Fees in any
month by an individual or combined total of 1.25% or more from data reported to us, then, in
addition to any other rights we may have (including collection of amounts owed with respect
to any understatement), you must reimburse us for all audit costs including, but not limited
to, related professional fees, travel, and room and board expenses. Furthermore, we may
conduct additional periodic audits and/or evaluations of your books and records, at your
sole expense, as we reasonably deem necessary for up to 3 years thereafter. You acknowledge
and agree that if you intentionally understate or underreport Gross Sales, Royalty Fees or
Advertising Fees, or if a subsequent audit or evaluation conducted within the 3-year period
reveals any understatement or a variance of these fees by an individual or combined total of
1.25% or more, in addition to any other remedies provided in this Agreement, at law or in
equity, we have the right to terminate this Agreement in accordance with Subparagraph
13.B.2. To verify the information you supply, we have the right to reconstruct your sales
through the inventory extension method or any other reasonable method of analyzing and
reconstructing sales. You agree to accept any such reconstruction of sales unless you
provide evidence in a form satisfactory to us of your sales within a period of 14 days from
the date of notice of understatement or variance. You must fully cooperate with us or our
representative in performing these activities and any expenses incurred by us from your lack
of cooperation shall be reimbursed by you.




We will keep your financial books, records and reports confidential, unless the
information is requested by tax authorities or used as part of a legal proceeding or in a
manner as set forth in subparagraph 11.D.8 or where your information is grouped with similar
information from other restaurants to produce shared results like high-low ranges or average
gross sales or expenses on a system-wide or regional basis.


 


19









 





YOUR OTHER OBLIGATIONS; NONCOMPETE COVENANTS




10. You agree to comply with the following terms and conditions:




A. Payment of Debts. You agree to pay promptly when due: (i) all payments,
obligations, assessments and taxes due and payable to us and our affiliates, vendors,
suppliers, lessors, federal, state or local governments, or creditors in connection with
your business; (ii) all liens and encumbrances of every kind and character created or placed
upon or against any of the property used in connection with the Restaurant or business; and
(iii) all accounts and other indebtedness of every kind incurred by you in the conduct of
the Restaurant or business. In the event you default in making any such payment, we are
authorized, but not required, to pay the same on your behalf and you agree promptly to
reimburse us on demand for any such payment.




B. Indemnification. You hereby waive all claims against us for damages to
property or injuries to persons arising out of the operation of your Restaurant. You must
fully protect, indemnify and hold us and our owners, directors, officers, insurers,
successors and assigns and our affiliates harmless from and against any and all claims,
demands, damages and liabilities of any nature whatsoever arising in any manner, directly or
indirectly, out of or in connection with or incidental to the operation of your Restaurant
(regardless of cause or any concurrent or contributing fault or negligence of us or our
affiliates) or any breach by you or your failure to comply with the terms and conditions of
this Agreement. We also reserve the right to select our own legal counsel to represent our
interests, and you must reimburse us for all our costs and all attorneys’ fees immediately
upon our request as they are incurred.




We hereby waive all claims against you for damages to property or injuries to persons
arising out of the operation of our company or affiliate owned restaurants. We must fully
protect, indemnify and defend you and your affiliates and hold you and them harmless from
and against any and all claims, demands, damages and liabilities of any nature whatsoever
arising in any manner, directly or indirectly, out of or in connection with or incidental to
the operation of our company or affiliate owned restaurants (regardless of cause or any
concurrent or contributing fault or negligence of you) or any breach by us or our failure to
comply with the terms and conditions of this Agreement.




C. Insurance. You must purchase and maintain in full force and effect, at your
expense and from a company we accept, insurance that insures both you and us, our affiliates
and any other persons we designate by name. The insurance policy or policies shall be
written in accordance with the standards and specifications (including minimum coverage
amounts) set forth in writing by us from time to time, and, at a minimum, shall include the
following (except as different coverages and policy limits may be specified for all
franchisees from time to time in writing): (i) property insurance on the Restaurant,
restaurant improvements and all fixtures, equipment, supplies and other property used in the
operation of the Restaurant; (ii) business interruption insurance that covers your loss of
income and our Royalty Fees; (iii) comprehensive general liability insurance (which may
include umbrella liability); (iv) liquor liability insurance; (v) automobile liability
insurance on all owned, hired, rented and non-owned vehicles; and (vi) workers’ compensation
and employer’s liability insurance covering all of your employees. In addition, the
required liability insurance must (i) name Buffalo Wild Wings, Inc., Buffalo Wild Wings
International, Inc. and affiliates (collectively, “BWW Entities”) as additional insureds;
(ii) provide severability of interests and/or separation of insureds coverage; and (iii) be
primary and non-contributory with any insurance policy carried by the BWW Entities.




You must deliver to us at commencement and thereafter annually or at our request a
proper certificate evidencing the existence of such insurance coverage and your compliance
with the provisions of this subparagraph. The insurance certificate must show compliance
with all required insurance specifications. We also may request copies of all policies.
We may from time to time modify the required minimum limits and require additional insurance
coverage, by providing written notice to you, as conditions require, to reflect changes in
relevant circumstances, industry standards, experiences in the Buffalo Wild Wings
system, standards of liability and higher damage awards. If you do not procure and maintain the insurance coverage required by this Agreement,
we have the right, but not the obligation, to procure insurance coverage and to charge the
costs to you, together with a reasonable fee for the expenses we incur in doing so. You
must pay these amounts to us immediately upon written notice.


 


20









 










D. Noncompete Covenants. You agree that you will receive valuable training and
Confidential Information that you otherwise would not receive or have access to but for the
rights licensed to you under this Agreement. You therefore agree to the following
noncompetition covenants:




1. Unless otherwise specified, the term “you” as used in this subparagraph 10.D
includes, collectively and individually, your Control Person, all Principal Owners,
guarantors, officers, directors, members, managers, partners, as the case may be, and
holders of any ownership interest in you. We may require you to obtain from your
Control Person and other individuals identified in the preceding sentence a signed
non-compete agreement in a form satisfactory to us that contains the non-compete
provisions of this subparagraph 10.D.




2. You covenant that during the term of this Agreement you will not, either
directly or indirectly, for yourself, or through, on behalf of, or in conjunction
with any person or entity, own, manage, operate, maintain, engage in, consult with or
have any interest in any restaurant or food business other than one authorized by
this Agreement or any other agreement between us and you, except any interest you may
have, at the Effective Date of this Agreement, in a restaurant or food business other
than a casual or fast casual restaurant. Under no circumstances may you be a member
of a franchisee advisory council, committee, board or other similar group for a
restaurant or food business, unless you receive our prior written approval.




3. You covenant that you will not, for a period of 2 years after the expiration
or termination of this Agreement, regardless of the cause of termination, or within 2
years of the sale of the Restaurant or any interest in you, either directly or
indirectly, for yourself, or through, on behalf of, or in conjunction with any person
or entity, own, manage, operate, maintain, engage in, consult with or have any
interest in (i) a casual or fast casual restaurant that sells or offers to dispense
prepared food products the same as or similar to the type sold in Buffalo Wild
Wings®restaurants; (ii) a video entertainment-oriented,
casual or fast casual restaurant or bar business; or (iii) any business establishment
that sells or offers to dispense prepared chicken wings or legs:




a. At the premises of the former Restaurant;




b. Within a 5-mile radius of the former Restaurant; or




c. Within a 5-mile radius of the location of any other business or
restaurant using the Buffalo Wild Wings® System, whether
franchised or owned by us or our affiliates.




For purposes of this subparagraph, a video entertainment-oriented, casual or fast
casual restaurant or bar is one with more than two screens, or any screen larger than
21 inches, available for the viewing of different events.




4. You agree that the length of time in subpart (3) will be tolled for any
period during which you are in breach of the covenants or any other period during
which we seek to enforce this Agreement. The parties agree that each of the foregoing covenants
will be construed as independent of any other covenant or provision of this
Agreement.


 


21









 





TRANSFER OF FRANCHISE





11. You agree that the following provisions govern any transfer or proposed transfer:




A. Transfers. We have entered into this Agreement with specific reliance upon
your financial qualifications, experience, skills and managerial qualifications as being
essential to the satisfactory operation of the Restaurant. Consequently, neither your
interest in this Agreement or you nor in the Restaurant may be transferred or assigned to or
assumed by any other person or entity (the “assignee”), in whole or in part, unless you have
first tendered to us the right of first refusal to acquire this Agreement in accordance with
subparagraph 11.F, and, if we do not exercise such right, unless our prior written consent
is obtained, the transfer fee provided for in subparagraph 11.C is paid, and the transfer
conditions described in subparagraph 11.D are satisfied. Any sale (including installment
sale), lease, pledge, management agreement, contract for deed, option agreement, assignment,
bequest, gift or otherwise, or any arrangement pursuant to which you turn over all or part
of the daily operation of the business to a person or entity who shares in the losses or
profits of the business in a manner other than as an employee will be considered a transfer
for purposes of this Agreement. Specifically, but without limiting the generality of the
foregoing, the following events constitute a transfer and you must comply with the right of
first refusal, consent, transfer fee, and other transfer conditions in this Paragraph 11:




1. Any change or any series of changes in the percentage of the
franchisee entity owned, directly or indirectly, by any Principal Owner which
results in any addition or deletion of any person or entity who qualifies as
a Principal Owner;




2. Any change in the general partner of a franchisee that is a general,
limited or other partnership entity; or




3. For purposes of this subparagraph 11.A, a pledge or seizure of any
ownership interests in you or in any Principal Owner that affects the
ownership of 25% or more of you or any Principal Owner, which we have not
approved in advance in writing.




In the event of your insolvency or the filing of any petition by or against you under
any provisions of any bankruptcy or insolvency law, if your legal representative, successor,
receiver or trustee desires to succeed to your interest in this Agreement or the business
conducted hereunder, such person first must notify us, tender the right of first refusal
provided for in subparagraph 11.F, and if we do not exercise such right, must apply for and
obtain our consent to the transfer, pay the transfer fee provided for in subparagraph 11.C,
and satisfy the transfer conditions described in subparagraph 11.D. In addition, you or the
assignee must pay the attorneys’ fees and costs that we incur in any bankruptcy or
insolvency proceeding pertaining to you.




You may not place in, on or upon the location of the Restaurant, or in any
communication media or any form of advertising, any information relating to the sale of the
Restaurant or the rights under this Agreement, without our prior written consent.


 


22









 






B. Consent to Transfer. We will not unreasonably withhold our consent to
transfer, provided that all of the conditions described in this Paragraph 11 have been
satisfied. Application for our consent to a transfer and tender of the right of first
refusal provided for in subparagraph 11.F must be made by submission of our form of
application for consent to transfer. You also agree to submit other information and
documents (including a copy of the proposed purchase or other transfer agreement) we require under our then-current transfer procedures. The application must indicate
whether you or a Principal Owner proposes to retain a security interest in the property to
be transferred. No security interest may be retained or created, however, without our prior
written consent and except upon conditions acceptable to us. Any agreement used in
connection with a transfer shall be subject to our prior written approval, which approval
will not be withheld unreasonably. You immediately must notify us of any proposed transfer
and must submit promptly to us the application for consent to transfer. Any attempted
transfer by you without our prior written consent or otherwise not in compliance with the
terms of this Agreement will be void, your interest in this Agreement will be voluntarily
abandoned, and it will provide us with the right to elect either to deem you in default and
terminate this Agreement or to collect from you and the guarantors a transfer fee equal to
two times the transfer fee provided for in subparagraph 11.C.




C. Transfer Fee. The transfer fee is $12,500. You must submit to us a $5,000
deposit at the time you submit an application for consent to transfer. We have the right to
increase the deposit above $5,000 and up to $12,500 if we believe our costs and expenses
will exceed $5,000. We will refund the $5,000 (or any increased deposit amount) less our
costs and expenses (including our time) if the transfer is not completed. If the transfer
proceeds, the $7,500 balance (or any adjusted balance amount) on the transfer fee is due to
us prior to the closing of the transfer and the entire $12,500 transfer fee becomes
nonrefundable at that time. Payment of the transfer fee is a condition of transfer under
subparagraph 11.D. If the transfer is part of a simultaneous, multiple restaurant transfer,
the transfer fee will be modified as follows: the transfer fee for the first restaurant is
$12,500, the transfer fee for the second through tenth restaurants is $2,500 per restaurant,
with no additional transfer fee beyond the tenth restaurant. If, however, our costs and
expenses in reviewing and processing the transfer, including attorneys’ fees, exceed the
applicable transfer fee, then in addition to the transfer fee you agree to cover those
additional costs and expenses (including our time).




D. Conditions of Transfer. We condition our consent to any proposed transfer,
whether to an individual, a corporation, a partnership or any other entity upon the
following:




1. Assignee Requirements. The assignee must meet all of our
then-current requirements for any potential new franchisee at the time of the
proposed transfer.




2. Payment of Amounts Owed. All amounts owed by you to us or any of our
affiliates, your suppliers or any landlord for the Restaurant premises and Authorized
Location, or upon which we or any of our affiliates have any contingent liability
must be paid in full.




3. Reports. You must have provided all required reports to us in
accordance with subparagraphs 9.G and H.




4. Modernization. You must have complied with the provisions of
subparagraph 5.E.




5. Guarantee. In the case of an installment sale for which we have
consented to you or any Principal Owner retaining a security interest or other
financial interest in this Agreement or the business operated thereunder, you or such
Principal Owner, and the guarantors, are obligated to guarantee the performance under
this Agreement until the final close of the installment sale or the termination of
such interest, as the case may be.




6. General Release. You, each Principal Owner and each guarantor must
sign a general release of all claims arising out of or relating to this Agreement,
your Restaurant or the parties’ business relationship, in the form we designate,
releasing us and our affiliates.


 


23









 






7. Execution of Then-Current Franchise Agreement. The assignee executes
our then-current form of franchise agreement (modified to reflect that the term is
only the remainder of the term under this Agreement and other modifications to
reflect that the agreement relates to a transfer), the terms of which may differ from
this Agreement, including higher fees and modifications to the Designated Area
(although in no event will the revised Designated Area have a residential population
of the lesser of approximately 30,000 to 40,000 or the residential population that
existed as of the Effective Date).




8. Training. The assignee must, at your or assignee’s expense, comply
with the training requirements of subparagraph 7.B.




9. Financial Reports and Data. We have the right to require you to
prepare and furnish to assignee and/or us such financial reports and other data
relating to the Restaurant and its operations reasonably necessary or appropriate for
assignee and/or us to evaluate the Restaurant and the proposed transfer. You agree
that we have the right to confer with proposed assignees and furnish them with
information concerning the Restaurant and proposed transfer without being held liable
to you, except for intentional misstatements made to an assignee. Any information
furnished by us to proposed assignees is for the sole purpose of permitting the
assignees to evaluate the Restaurant and proposed transfer and must not be construed
in any manner or form whatsoever as earnings claims or claims of success or failure.




10. Other Franchise Agreements. You must be in full compliance with all
your obligations under any and all Franchise Agreements and Area Development
Agreements executed between you and us.




11. Other Conditions. You must have complied with any other conditions
that we reasonably require from time to time as part of our transfer policies,
provided that such conditions will not be more stringent than any conditions
otherwise imposed on new franchisees signing the then-current franchise agreement.




E. Death, Disability or Incapacity. If any individual who is a Principal Owner
dies or becomes disabled or incapacitated and the decedent’s or disabled or incapacitated
person’s heir or successor-in-interest wishes to continue as a Principal Owner, such person
or entity must apply for our consent under subparagraph 11.B, comply with the training
requirements of subparagraph 7.B if the Principal Owner also was the Control Person (unless
the heir or successor-in-interest finds another Principal Owner to qualify as the Control
Person), pay the applicable transfer fee under subparagraph 11.C, and satisfy the transfer
conditions under subparagraph 11.D, as in any other case of a proposed transfer, all within
180 days of the death or event of disability or incapacity. During any transition period to
an heir or successor-in-interest, the Restaurant still must be operated in accordance with
the terms and conditions of this Agreement. If the assignee of the decedent or disabled or
incapacitated person is the spouse or child of such person, no transfer fee will be payable
to us and we will not have a right of first refusal as set forth in subparagraph 11.F.




F. Right of First Refusal. If you propose to transfer or assign this Agreement
or your interest herein or in you or the business, in whole or in part, to any third party,
including, without limitation, any transfer contemplated by subparagraph 11.E or any
transfer described in subparagraph 11.A, you first must offer to sell to us your interest
under the same terms. In the event of a bona fide offer from such third party, you must
obtain from the third-party offeror and deliver to us a statement in writing, signed by the
offeror and by you, of the terms of the offer. In the event the proposed transfer results
from a transfer under subparagraphs 11.A.1 through 11.A.3, or your insolvency or the filing
of any petition by or against you under any provisions of any bankruptcy or insolvency law,
you first must offer to sell to us your interest in this


 


24









 






Agreement and the land, building,
equipment, furniture and fixtures, and any leasehold interest used in the operation of your Restaurant. Unless
otherwise agreed to in writing by us and you, the purchase price for our purchase of assets
in the event of a transfer that occurs by a transfer under subparagraphs 11.A.1 through
11.A.3, insolvency or bankruptcy filing will be established by a qualified appraiser
selected by the parties and in accordance with the price determination formula established
in subparagraph 14.B (the formula that includes the value of any goodwill of the business)
in connection with an asset purchase upon expiration. In addition, unless otherwise agreed
to in writing by us and you, the transaction documents, which we will prepare, will be those
customary for this type of transaction and will include representations and warranties then
customary for this type of transaction. If the parties cannot agree upon the selection of
such an appraiser, a Judge of the United States District Court for the District in which the
Authorized Location is located will appoint one upon petition of either party.




You or your legal representative must deliver to us a statement in writing
incorporating the appraiser’s report and all other information we have requested.




We then have 45 days from our receipt of the statement setting forth the third-party
offer or the appraiser’s report and other requested information to accept the offer by
delivering written notice of acceptance to you. Our acceptance of any right of first
refusal will be on the same price and terms set forth in the statement delivered to us;
provided, however, we have the right to substitute equivalent cash for any noncash
consideration included in the offer. If we fail to accept the offer within the 45-day
period, you will be free for 60 days after such period to effect the disposition described
in the statement delivered to us provided such transfer is in accordance with this Paragraph
11. You may effect no other sale or assignment of you, this Agreement or the business
without first offering the same to us in accordance with this subparagraph 11.F.




G. Transfer to Immediate Family Members and among Principal Owners. If the
transfer is between an original Principal Owner or an individual who has been a Principal
Owner for at least five years and an immediate family member of that owner, or if the
transfer is among individuals who have each been Principal Owners for at least five years,
then the following apply: (i) no transfer fee will be payable to us, although you must
reimburse us for our reasonable costs and expenses in an amount not to exceed $12,500; (ii)
we will waive our right of first refusal described in subparagraph 11.F; and (iii) we will
not require the execution of the then-current franchise agreement, as required by
subparagraph 11.D.7. All other provisions of this Paragraph 11 apply in full force and
effect to the type of transfer described in this subparagraph.




H. Transfer by Us. We have the right to sell or assign, in whole or in part,
our interest in this Agreement.



DISPUTE RESOLUTION





12. The following provisions apply with respect to dispute resolution:




A. Arbitration; Mediation. Except as qualified below, any dispute between you
and us or any of our or your affiliates arising under, out of, in connection with or in
relation to this Agreement, any lease or sublease for the Restaurant or Authorized Location,
the parties’ relationship, or the business must be submitted to binding arbitration under
the authority of the Federal Arbitration Act and must be arbitrated in accordance with the
then-current rules and procedures and under the auspices of the American Arbitration
Association. The arbitration must take place in Minneapolis, Minnesota, or at such other
place as may be mutually agreeable to the parties. Any arbitration must be resolved on an
individual basis and not joined as part of a class action or the claims of other parties.
The arbitrators must follow the law and not disregard the terms of this Agreement. The
decision of the arbitrators will be final and binding on all parties to the dispute;
however, the arbitrators may not under any circumstances: (i) stay the effectiveness of any pending termination of this
Agreement; (ii) assess punitive or exemplary damages; or (iii) make any award which extends,
modifies or suspends any lawful term of this Agreement or any reasonable standard of
business performance that we set. A judgment may be entered upon the arbitration award by
any state or federal court in Minnesota or the state of the Authorized Location.


 


25









 






Before the filing of any arbitration, the parties agree to mediate any dispute that
does not include injunctive relief or specific performance actions covered under
subparagraph 12.B, provided that the party seeking mediation must notify the other party of
its intent to mediate prior to the termination of this Agreement. Mediation will be
conducted by a mediator or mediation program agreed to by the parties. Persons authorized
to settle the dispute must attend any mediation session. The parties agree to participate
in the mediation proceedings in good faith with the intention of resolving the dispute if at
all possible within 30 days of the notice from the party seeking to initiate the mediation
procedures. If not resolved within 30 days, or if one party refuses to participate in
mediation as outlined herein, the parties are free to pursue arbitration. Mediation is a
compromise negotiation for purposes of the federal and state rules of evidence, and the
entire process is confidential.




B. Injunctive Relief. Notwithstanding subparagraph 12.A above, you recognize
that the Restaurant is one of a large number of restaurants and stores identified by the
Trademarks and similarly situated and selling to the public similar products, and the
failure on the part of a single franchisee to comply with the terms of its agreement could
cause irreparable damage to us and/or to some or all of our other franchisees. Therefore,
it is mutually agreed that in the event of a breach or threatened breach of any of the terms
of this Agreement by you, we will forthwith be entitled to an injunction restraining such
breach or to a decree of specific performance, without showing or proving any actual damage,
together with recovery of reasonable attorneys’ fees and other costs incurred in obtaining
said equitable relief, until such time as a final and binding determination is made by the
arbitrators. Similarly, it is mutually agreed that in the event of our breach or threatened
breach of any of the terms of this Agreement, you will forthwith be entitled to an
injunction restraining such breach or to a decree of specific performance, without showing
or proving any actual damage, together with recovery of reasonable attorneys’ fees and other
costs incurred in obtaining said equitable relief, until such time as a final and binding
determination is made by the arbitrators. The foregoing equitable remedies are in addition
to, and not in lieu of, all other remedies or rights that the parties might otherwise have
by virtue of any breach of this Agreement by the other party. Finally, we and our
affiliates have the right to commence a civil action against you or take other appropriate
action for the following reasons: to collect sums of money due to us; to compel your
compliance with trademark standards and requirements to protect the goodwill of the
Trademarks; to compel you to compile and submit required reports to us; or to permit
evaluations or audits authorized by this Agreement.




C. Attorneys’ Fees. The prevailing party in any action or proceeding arising
under, out of, in connection with, or in relation to this Agreement, any lease or sublease
for the Restaurant or Authorized Location, or the business will be entitled to recover its
reasonable attorneys’ fees and costs.



DEFAULT AND TERMINATION





13. The following provisions apply with respect to default and termination:




A. Defaults. You are in default if we determine that you or any Principal
Owner or guarantor has breached any of the terms of this Agreement or any other agreement
between you and us or our affiliates, which without limiting the generality of the foregoing
includes making any false report to us, intentionally understating or underreporting or
failure to pay when due any amounts required to be paid to us or any of our affiliates,
actions by you, a Principal Owner, or a guarantor that infringe upon, harm or contest our parent company’s rights in any of the Trademarks or the goodwill
associated with the Trademarks or impair or tend to impair your reputation, any felony,
filing of tax or other liens that may affect this Agreement, voluntary or involuntary
bankruptcy by or against you or any Principal Owner or guarantor, insolvency, making an
assignment for the benefit of creditors or any similar voluntary or involuntary arrangement
for the disposition of assets for the benefit of creditors.


 


26









 






B. Termination by Us. We have the right to terminate this Agreement in
accordance with the following provisions:




1. Termination After Opportunity to Cure. Except as otherwise expressly
provided in this subparagraph 13.B or elsewhere in the Agreement: (i) you will have
30 days from the date of our issuance of a written notice of default to cure any
default under this Agreement, other than a failure to pay amounts due or submit
required reports, in which case you will have 10 days to cure those defaults; (ii)
your failure to cure a default within the 30-day or 10-day period will provide us
with good cause to terminate this Agreement; (iii) the termination will be
accomplished by mailing or delivering to you written notice of termination that will
identify the grounds for the termination; and (iv) the termination will be effective
immediately upon our issuance of the written notice of termination.




2. Immediate Termination With No Opportunity to Cure. In the event any
of the following defaults occurs, you will have no right or opportunity to cure the
default and this Agreement will terminate effective immediately on our issuance of
written notice of termination: any material misrepresentation or omission in your
franchise application, your voluntary abandonment of this Agreement or the Authorized
Location, the loss or revocation of your liquor license or suspensions totaling 90
days over any 5 year period, the loss of your lease, the failure to timely cure a
default under the lease, the loss of your right of possession or failure to reopen or
relocate under subparagraph 5.D, the closing of the Restaurant by any state or local
authorities for health or public safety reasons, any unauthorized use of the
Confidential Information, insolvency of you, a Principal Owner, the Control Person or
guarantor, you, a Principal Owner, the Control Person or guarantor making an
assignment or entering into any similar arrangement for the benefit of creditors, any
default under this Agreement that materially impairs the goodwill associated with any
of the Trademarks, conviction of you, any Principal Owners, the Control Person, or
guarantors of (or pleading no contest to) any felony regardless of the nature of the
charges, or any actions that infringe upon, harm or contest or parent company’s
rights in any of the Trademarks or the goodwill associated with the Trademarks or
impair or tend to impair your reputation, intentionally understating or
underreporting Gross Sales, Royalty Fees or Advertising Fees or any understatement or
1.25% variance on a subsequent audit within a 3 year period under subparagraph 9.H,
failure to open the Restaurant by the Required Open Date, failure to execute the
lease (including the Lease Addendum) or the Purchase Agreement for the Restaurant by
the date stated subparagraph 5.A, failure to start substantial construction of the
Restaurant by the date established in subparagraph 5.B, failure to secure financing
for the construction of the Restaurant by the date set forth in subparagraph 5.B,
violation by you of the provisions of subparagraph 15.P, any unauthorized transfer or
assignment in violation of Paragraph 11 or any default by you that is the second same
or similar default within any 12-month consecutive period or the fourth default of
any type within any 24-month consecutive period.


 


27









 






3. Immediate Termination After No More than 24 Hours to Cure. In the
event that a default under this Agreement occurs that violates any health safety or
sanitation law or regulation, violates any system standard as to food handling,
cleanliness, health and sanitation, or if the operation of the Restaurant presents a
health or safety hazard to your customers or to the public (for example, improper
cooking or storage procedures used for
chicken wings): (i) you will have no more than 24 hours after we provide
written notice of the default to cure the default; and (ii) if you fail to cure the
default within the 24 hour period, this Agreement will terminate effective
immediately on our issuance of written notice of termination.




4. Effect of Other Laws. The provisions of any valid, applicable law or
regulation prescribing permissible grounds, cure rights or minimum periods of notice
for termination of this franchise supersede any provision of this Agreement that is
less favorable to you.




C. Termination by You. You may terminate this Agreement as a result of a
breach by us of a material provision of this Agreement provided that: (i) you provide us
with written notice of the breach that identifies the grounds for the breach; and (ii) we
fail to cure the breach within 30 days after our receipt of the written notice. If we fail
to cure the breach, the termination will be effective 60 days after our receipt of your
written notice of breach. Your termination of this Agreement under this Paragraph will not
release or modify your Post-Term obligations under Paragraph 14 of this Agreement.



POST-TERM OBLIGATIONS





14. Upon the expiration or termination of this Agreement:




A. Reversion of Rights; Discontinuation of Trademark Use. All of your rights
to the use of the Trademarks and all other rights and licenses granted herein and the right
and license to conduct business under the Trademarks at the Authorized Location will revert
to us without further act or deed of any party. All of your right, title and interest in,
to and under this Agreement will become our property. Upon our demand, you must assign to
us or our assignee your remaining interest in any lease then in effect for the Restaurant
(although we will not assume any past due obligations). You must immediately comply with
the post-term noncompete obligations under subparagraph 10.D, cease all use and display of
the Trademarks and of any proprietary material (including the manual and the product
preparation materials) and of all or any portion of point-of-sale materials furnished or
approved by us, assign all right, title and interest in the telephone numbers for the
Restaurant and cancel or assign, at our option, any assumed name rights or equivalent
registrations filed with authorities. You must pay all sums due to us, our affiliates or
designees and all sums you owe to third parties that have been guaranteed by us or any of
our affiliates. You must immediately return to us, at your expense, all copies of the
manuals and product preparation materials then in your possession or control or previously
disseminated to your employees and continue to comply with the confidentiality provisions of
subparagraph 6.J. You must promptly at your expense and subject to subparagraph 14.B,
remove or obliterate all Restaurant signage, displays or other materials (electronic or
tangible) in your possession at the Authorized Location or elsewhere that bear any of the
Trademarks or names or material confusingly similar to the Trademarks and so alter the
appearance of the Restaurant as to differentiate the Restaurant unmistakably from duly
licensed restaurants identified by the Trademarks. If, however, you refuse to comply with
the provisions of the preceding sentence within 30 days, we have the right to enter the
Authorized Location and remove all Restaurant signage, displays or other materials in your
possession at the Authorized Location or elsewhere that bear any of the Trademarks or names
or material confusingly similar to the Trademarks, and you must reimburse us for our costs
incurred. Notwithstanding the foregoing, in the event of expiration or termination of this
Agreement, you will remain liable for your obligations pursuant to this Agreement or any
other agreement between you and us or our affiliates that expressly or by their nature
survive the expiration or termination of this Agreement.


 


28









 






B. Purchase Option. We have the right to purchase or designate a third party
that will purchase all or any portion of the assets of your Restaurant that are owned by you
or any of your affiliates including, without limitation, the land, building, equipment,
fixtures, signage, furnishings, supplies, leasehold improvements, liquor license and inventory of the Restaurant at a
price determined by a qualified appraiser (or qualified appraisers if one party believes it
is better to have a real estate appraiser appraise the value of the land and building and a
business appraiser appraise the Restaurant’s other assets) selected with the consent of
both parties, provided we give you written notice of our preliminary intent to exercise our
purchase rights under this Paragraph within 30 days after the date of the expiration or
termination of this Agreement. If the parties cannot agree upon the selection of an
appraiser(s), one or both will be appointed by a Judge of the United States District Court
for the District in which the Authorized Location is located upon petition of either party.




In the event the Agreement is terminated (rather than if it expires), the price
determined by the appraiser(s) will be the reasonable fair market value of the assets based
on their continuing use in, as, and for the operation of a Buffalo Wild
Wings® Restaurant and the appraiser will designate a price for each category
of asset (e.g., land, building, equipment, fixtures, etc.), but shall not include the value
of any goodwill of the business, as the goodwill of the business is attributable to the
Trademarks and the System. In the event that the Agreement expires (rather than if it is
terminated), the price determined by the appraiser(s) will be the reasonable fair market
value of the assets, as stated in the prior sentence, plus the value of any goodwill of the
business, attributable to your operation of the Restaurant. In the event of expiration,
however, the parties agree that you may elect not to include the land in the appraisal and
option to purchase process. In this instance, you may elect to lease the land to us or our
designee for a lease term of at least 10 years with two 5-year options to renew and for a
primary rate equal to fair market value according to the applicable Building Office
Management Association Guidelines, unless otherwise agreed to by the parties.




Within 45 days after our receipt of the appraisal report, we or our designated
purchaser will identify the assets, if any, that we intend to purchase at the price
designated for those assets in the appraisal report. We or our designated purchaser and you
will then proceed to complete and close the purchase of the identified assets, and to
prepare and execute purchase and sale documents customary for the assets being purchased, in
a commercially reasonable time and manner. We and you will each pay one-half of the
appraiser’s fees and expenses. Our interest in the assets of the Restaurant that are owned
by you or your affiliates will constitute a lien thereon and may not be impaired or
terminated by the sale or other transfer of any of those assets to a third party. Upon our
or our designated purchaser’s exercise of the purchase option and tender of payment, you
agree to sell and deliver, and cause your affiliates to sell and deliver, the purchased
assets to us or our designated purchaser, free and clear of all encumbrances, and to execute
and deliver, and cause your affiliates to execute and deliver, to us or our designated
purchaser a bill of sale therefore and such other documents as may be commercially
reasonable and customary to effectuate the sale and transfer of the assets being purchased.




If we do not exercise our option to purchase under this subparagraph, you may sell or
lease the Restaurant premises to a third party purchaser, provided that your agreement with
the purchaser includes a covenant by the purchaser, which is expressly enforceable by us as
a third party beneficiary, pursuant to which the purchaser agrees, for a period of 2 years
after the expiration or termination of this Agreement, not to use the premises for the
operation of a restaurant business that has a menu or method of operation similar to that
employed by our company-owned or franchised restaurants.




C. Claims. You and your Principal Owners and guarantors may not assert any
claim or cause of action against us or our affiliates relating to this Agreement or the
Buffalo Wild Wings® business after the shorter period of the applicable
statute of limitations or one year following the effective date of termination of this
Agreement; provided that where the one-year limitation of time is prohibited or invalid by
or under any applicable law, then and in that event no suit or action may be commenced or
maintained unless commenced within the applicable statute of limitations.


 


29









 





GENERAL PROVISIONS





15. The parties agree to the following provisions:




A. Severability. Should one or more clauses of this Agreement be held void or
unenforceable for any reason by any court of competent jurisdiction, such clause or clauses
will be deemed to be separable in such jurisdiction and the remainder of this Agreement is
valid and in full force and effect and the terms of this Agreement must be equitably
adjusted so as to compensate the appropriate party for any consideration lost because of the
elimination of such clause or clauses. It is the intent and expectation of each of the
parties that each provision of this Agreement will be honored, carried out and enforced as
written. Consequently, each of the parties agrees that any provision of this Agreement
sought to be enforced in any proceeding must, at the election of the party seeking
enforcement and notwithstanding the availability of an adequate remedy at law, be enforced
by specific performance or any other equitable remedy.




B. Waiver/Integration. No waiver by us of any breach by you, nor any delay or
failure by us to enforce any provision of this Agreement, may be deemed to be a waiver of
any other or subsequent breach or be deemed an estoppel to enforce our rights with respect
to that or any other or subsequent breach. Subject to our rights to modify Appendices
and/or standards and as otherwise provided herein, this Agreement may not be waived, altered
or rescinded, in whole or in part, except by a writing signed by you and us. This Agreement
together with the addenda and appendices hereto and the application form executed by you
requesting us to enter into this Agreement constitute the sole agreement between the parties
with respect to the entire subject matter of this Agreement and embody all prior agreements
and negotiations with respect to the business. You acknowledge and agree that you have not
received any warranty or guarantee, express or implied, as to the potential volume, profits
or success of your business. There are no representations or warranties of any kind,
express or implied, except as contained herein and in the aforesaid application. Nothing in
the Agreement or in any related agreement is intended to disclaim the representations we
made in the franchise disclosure document that we furnished to you.




C. Notices. Except as otherwise provided in this Agreement, any notice, demand
or communication provided for herein must be in writing and signed by the party serving the
same and either delivered personally or by a reputable overnight service or deposited in the
United States mail, service or postage prepaid and addressed as follows:




1. If intended for us, addressed to General Counsel, Buffalo Wild Wings
International, Inc., 5500 Wayzata Blvd., Suite 1600, Minneapolis, Minnesota
55416;




2. If intended for you, addressed to you at 27680 Franklin Road,
Southfield, Michigan 48034 or at the Authorized Location; or,




in either case, as the intended party may change such address by written notice to the other
party. Notices for purposes of this Agreement will be deemed to have been received if
mailed or delivered as provided in this subparagraph.




D. Authority. Any modification, consent, approval, authorization or waiver
granted hereunder required to be effective by signature will be valid only if in writing
executed by the Control Person or, if on behalf of us, in writing executed by our President
or one of our authorized Vice Presidents.


 


30









 






E. References. If the franchisee is 2 or more individuals, the individuals are
jointly and severally liable, and references to you in this Agreement include all of the
individuals. Headings and captions contained herein are for convenience of reference and may not be taken into
account in construing or interpreting this Agreement.




F. Guarantee. All Principal Owners of a franchisee that is a corporation,
limited liability company, partnership or other legal entity must execute the form of
undertaking and guarantee at the end of this Agreement. Any person or entity that at any
time after the date of this Agreement becomes a Principal Owner pursuant to the provisions
of Paragraph 11 or otherwise must execute the form of undertaking and guarantee at the end
of this Agreement within 10 days from the date such person or entity becomes a Principal
Owner; provided, however, that any person or entity who becomes a Principal Owner shall
automatically acquire all the obligations of a Principal Owner under this Agreement at the
time such person or entity becomes a Principal Owner. Before approving and entering into
any transaction that would make any person or entity a Principal Owner, you must notify such
person about the content of this subparagraph.




G. Successors/Assigns. Subject to the terms of Paragraph 11 hereof, this
Agreement is binding upon and inures to the benefit of the administrators, executors, heirs,
successors and assigns of the parties.




H. Interpretation of Rights and Obligations. The following provisions apply to
and govern the interpretation of this Agreement, the parties’ rights under this Agreement,
and the relationship between the parties:




1. Applicable Law and Waiver. Subject to our rights under federal
trademark laws and the parties’ rights under the Federal Arbitration Act in
accordance with Paragraph 12 of this Agreement, the parties’ rights under this
Agreement, and the relationship between the parties is governed by, and will be
interpreted in accordance with, the laws (statutory and otherwise) of the state in
which the Authorized Location is located. You waive, to the fullest extent permitted
by law, the rights and protections that might be provided through the laws of any
state relating to franchises or business opportunities, other than those of the state
in which the Authorized Location is located.




2. Our Rights. Whenever this Agreement provides that we have a certain
right, that right is absolute and the parties intend that our exercise of that right
will not be subject to any limitation or review. We have the right to operate,
administrate, develop, and change the System in any manner that is not specifically
precluded by the provisions of this Agreement, although this right does not modify
the requirements of subparagraph 5.E and other express limitations set forth in this
Agreement.




3. Our Reasonable Business Judgment. Whenever we reserve discretion in
a particular area or where we agree to exercise our rights reasonably or in good
faith, we will satisfy our obligations whenever we exercise Reasonable Business
Judgment in making our decision or exercising our rights. Our decisions or actions
will be deemed to be the result of Reasonable Business Judgment, even if other
reasonable or even arguably preferable alternatives are available, if our decision or
action is intended, in whole or significant part, to promote or benefit the System
generally even if the decision or action also promotes our financial or other
individual interest. Examples of items that will promote or benefit the System
include, without limitation, enhancing the value of the Trademarks, improving
customer service and satisfaction, improving product quality, improving uniformity,
enhancing or encouraging modernization and improving the competitive position of the
System.


 


31









 






I. Venue. Any cause of action, claim, suit or demand allegedly arising from or
related to the terms of this Agreement or the relationship of the parties that is not
subject to arbitration under Paragraph 12, must be brought in the Federal District Court for
the District of Minnesota or in Hennepin County District Court, Fourth Judicial District,
Minneapolis, Minnesota. Both parties hereto irrevocably submit themselves to, and consent
to, the jurisdiction of said courts. The provisions of this subparagraph will survive the
termination of this Agreement. You are aware of the business purposes and needs underlying
the language of this subparagraph and, with a complete understanding thereof, agree to be
bound in the manner set forth.




J. Jury Waiver. All parties hereby waive any and all rights to a trial by jury
in connection with the enforcement or interpretation by judicial process of any provision of
this Agreement, and in connection with allegations of state or federal statutory violations,
fraud, misrepresentation or similar causes of action or any legal action initiated for the
recovery of damages for breach of this Agreement.




K. Waiver of Punitive Damages. You and your affiliates and we and our
affiliates agree to waive, to the fullest extent permitted by law, the right to or claim for
any punitive or exemplary damages against the other and agree that in the event of any
dispute between them, each will be limited to the recovery of actual damages sustained.




L Relationship of the Parties. You and we are independent contractors.
Neither party is the agent, legal representative, partner, subsidiary, joint venturer or
employee of the other. Neither party may obligate the other or represent any right to do
so. This Agreement does not reflect or create a fiduciary relationship or a relationship of
special trust or confidence. Without limiting the generality of the foregoing, we shall
have no liability in connection with or related to the products or services rendered to you
by any third party, even if we required, approved or consented to the product or service or
designated or approved the supplier.




M. Force Majeure. In the event of any failure of performance of this Agreement
according to its terms by any party due to force majeure will not be deemed a breach of this
Agreement. For purposes of this Agreement, “force majeure” shall mean acts of God, State or
governmental action, riots, disturbance, war, strikes, lockouts, slowdowns, prolonged
shortage of energy supplies or any raw material, epidemics, fire, flood, hurricane, typhoon,
earthquake, lightning and explosion or other similar event or condition, not existing as of
the date of signature of this Agreement, not reasonably foreseeable as of such date and not
reasonably within the control of any party hereto, which prevents in whole or in material
part the performance by one of the parties hereto of its obligations hereunder.




N. Adaptations and Variances. Complete and detailed uniformity under many
varying conditions may not always be possible, practical, or in the best interest of the
System. Accordingly, we have the right to vary the Menu Items and other standards,
specifications, and requirements for any franchised restaurant or franchisee based upon the
customs or circumstances of a particular franchise or operating agreement, site or location,
population density, business potential, trade area population, existing business practice,
competitive circumstance or any other condition that we deem to be of importance to the
operation of such restaurant or store, franchisee’s business or the System. We are not
required to grant to you a like or other variation as a result of any variation from
standard menus, specifications or requirements granted to any other franchisee. You
acknowledge that you are aware that our other franchisees operate under a number of
different forms of agreement that were entered into at different times and that,
consequently, the obligations and rights of the parties to other agreements may differ
materially in certain instances from your rights and obligations under this Agreement.




O. Notice of Potential Profit. We and/or our affiliates may from time to time
make available to you or require you to purchase goods, products and/or services for use in
your Restaurant on
the sale of which we and/or our affiliates may make a profit. Further, we and/or our
affiliates may from time to time receive consideration from suppliers and/or manufacturers
in respect to sales of goods, products or services to you or in consideration of services
rendered or rights licensed to such persons. You agree that we and/or our affiliates are
entitled to said profits and/or consideration.


 


32









 






P. Interference with Employment Relations. During the term of this Agreement,
neither we nor you may employ or seek to employ, directly or indirectly, any person who is
at the time or was at any time during the prior 6 months employed in any type of managerial
position by the other party or any of its affiliates, or by any franchisee in the system.
In the event that you violate this provision, we will have the right to terminate this
Agreement without opportunity to cure pursuant to subparagraph 13.B.2. In addition, any
party who violates this provision agrees to pay as fair and reasonable liquidated damages
(but not as a penalty) an amount equal to 2 times the annual compensation that the person
being hired away was receiving at the time the violating party offers her/him employment.
You agree that this amount is for the damages that the non-violating party will suffer for
the loss of the person hired away by the other party, including the costs of finding, hiring
and training a new employee and for the loss of the services and experience of the employee
hired away, and that it would be difficult to calculate with certainty the amount of damage
that the non-violating party will incur. Notwithstanding the foregoing, if a court
determines that this liquidated damages payment is unenforceable, then the non-violating
party may pursue all other available remedies, including consequential damages. This
subparagraph will not be violated if (i) at the time we or you employ or seek to employ the
person, the former employer has given its written consent or (ii) we employ or seek to
employ the person in connection with the transfer of the Restaurant to us or any of our
affiliates. The parties acknowledge and agree that any franchisee from whom an employee was
hired by you in violation of this subparagraph shall be a third-party beneficiary of this
provision, but only to the extent they may seek compensation from you.




Q. Updating Your Franchise Agreement. If at any time during the term of this
Agreement you and us enter into a subsequent franchise agreement (the “Subsequent
Agreement”) granting you the right to operate another Buffalo Wild
Wings®restaurant and the terms of the Subsequent Agreement are
different from the terms of this Agreement, you will have the right to request that this
Agreement be replaced by a franchise agreement containing terms and conditions similar to
the Subsequent Agreement (the “New Agreement”), but such right shall be conditioned upon you
meeting all the conditions stipulated in subparagraph 4.B of this Agreement, except that you
shall pay a fee of only $2,500; provided, however, that the term under the New Agreement
shall be equal to the term left under this Agreement at the time of the execution of the New
Agreement. You must exercise the rights granted under this subparagraph within 30 days
after the date you execute the Subsequent Agreement.




R. Effective Date. We will designate the “Effective Date” of this Agreement in
the space provided on the cover page. If no Effective Date is designated on the cover page,
the Effective Date is the date when we sign this Agreement. However, as described in
subparagraph 5.A, you do not have the right to, and may not, open and commence operation of
a Restaurant at the Authorized Location until we notify you that you have satisfied all of
the pre-opening conditions set forth in this Agreement.




S. Acknowledgment of Prohibition on Insider Trading. Federal law and our
parent company’s policy prohibit purchasing or selling stock in Buffalo Wild Wings, Inc.
(“BWW”) by anyone in possession of material, non-public information concerning BWW. While
it is not possible to define “material information” to cover every set of circumstances that
might arise, a general guide is that information is considered “material” if there is a
substantial likelihood that a reasonable investor would consider it important in determining
whether to buy, sell or hold stock. Violations of insider trading laws may be punishable by
fines and/or imprisonment. During the terms of this Agreement, you may be provided with
material, non-public information regarding BWW. You hereby acknowledge that you are familiar with insider trading laws and will not
purchase or sell BWW stock while in possession of material, non-public information.




 


33











 




IN WITNESS WHEREOF, the parties have executed this Franchise Agreement on the dates written
below.



	 	 	 	 	 	 	 	 	 	 	 
	FRANCHISEE:	 	 	 	US:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	AMC TRAVERSE CITY, INC.	 	 	 	BUFFALO WILD WINGS INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date: August 31, 2010	 	 	 	Date: September 7, 2010	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	AMC Wings, Inc.	 	 	 	/s/ Sally J. Smith	 	 
	 	 	 	 	 	 	 	 	 
	Its:

	 	Sole Shareholder of AMC Traverse City, Inc.
	 	 	 	By:
	 	Sally J. Smith	 	 
	 

	 	 	 	 	 	Its:
	 	President & CEO	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ T. Michael Ansley	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	By:

	 	Diversified Restaurant Holdings, Inc.	 	 	 	 	 	 	 	 
	 

	 	As Sole Shareholder of AMC Wings, Inc.	 	 	 	 	 	 	 	 
	Its:

	 	President & CEO, T. Michael Ansley	 	 	 	 	 	 	 	 






 


34









 







PERSONAL GUARANTY AND AGREEMENT TO BE BOUND

PERSONALLY BY THE TERMS AND CONDITIONS

OF THE FRANCHISE AGREEMENT




In consideration of the execution of the Franchise Agreement (the “Agreement”) between BUFFALO
WILD WINGS INTERNATIONAL, INC. (“we” or “us”) and AMC TRAVERSE CITY, INC. (the “Franchisee”), dated
September 7, 2010 and for other good and valuable consideration, the undersigned, for themselves,
their heirs, successors, and assigns, do jointly, individually and severally hereby become surety
and guarantor for the payment of all amounts and the performance of the covenants, terms and
conditions in the Agreement, to be paid, kept and performed by the Franchisee, including without
limitation the arbitration and other dispute resolution provisions of the Agreement.



Further, the undersigned, individually and jointly, hereby agree to be personally bound by
each and every condition and term contained in the Agreement, including but not limited to the
non-compete provisions in subparagraph 10.D, and agree that this Personal Guaranty will be
construed as though the undersigned and each of them executed an agreement containing the identical
terms and conditions of the Agreement.



The undersigned waive: (1) notice of demand for payment of any indebtedness or nonperformance
of any obligations hereby guaranteed; (2) protest and notice of default to any party respecting the
indebtedness or nonperformance of any obligations hereby guaranteed; (3) any right he/she may have
to require that an action be brought against the Franchisee or any other person as a condition of
liability; and (4) notice of any changes permitted by the terms of the Agreement or agreed to by
the Franchisee.



In addition, the undersigned consents and agrees that: (1) the undersigned’s liability will
not be contingent or conditioned upon our pursuit of any remedies against the Franchisee or any
other person; (2) such liability will not be diminished, relieved or otherwise affected by the
Franchisee’s insolvency, bankruptcy or reorganization, the invalidity, illegality or
unenforceability of all or any part of the Agreement, or the amendment or extension of the
Agreement with or without notice to the undersigned; and (3) this Personal Guaranty shall apply in
all modifications to the Agreement of any nature agreed to by Franchisee with or without the
undersigned receiving notice thereof.



It is further understood and agreed by the undersigned that the provisions, covenants and
conditions of this Personal Guaranty will inure to the benefit of our successors and assigns.



FRANCHISEE: AMC TRAVERSE CITY, INC.



PERSONAL GUARANTORS:



	 	 	 	 	 	 	 	 	 	 	 
	/s/ T. Michael Ansley	 	Diversified Restaurant Holdings, Inc.
	 	 	 
	Individually	 	Sole Shareholder of AMC Wings, Inc.
	 	 	 	 	 	 	 	 	 	 	 
	T. Michael Ansley	 	/s/ T. Michael Ansley
	 	 	 
	Print Name	 	By: T. Michael Ansley, Its President & CEO
	 	 	 	 	 	 	 	 	 	 	 
	27680 Franklin Road	 	27680 Franklin Road
	 	 	 
	Address	 	Address
	 	 	 	 	 	 	 	 	 	 	 
	Southfield, Michigan 48034	 	Southfield, Michigan 48034
	 	 	 
	City
	 	State
	 	Zip Code
	 	City
	 	State
	 	Zip Code
	 	 	 	 	 	 	 	 	 	 	 
	248-894-0434	 	248-894-0434
	 	 	 
	Telephone	 	Telephone






 


1









 







OWNERSHIP AND MANAGEMENT ADDENDUM TO

BUFFALO WILD WINGS® FRANCHISE AGREEMENT




1. Control Person. You represent and warrant to us that the following person, and
only the following person, is the Control Person:



	 	 	 	 	 
	NAME	 	TITLE	 	ADDRESS
	 	 	 	 	 
	T. Michael Ansley
	 	Control Person
	 	27680 Franklin Road, Southfield, MI 48034






2. Ownership. You represent and warrant to us that the following person(s) and
entities, and only the following person(s) and entities, have ownership interests in the franchisee
entity:



	 	 	 	 	 	 	 
	 	 	 	 	PERCENTAGE	 
	NAME	 	HOME ADDRESS	 	OF INTEREST	 
	 
	 	 	 	 	 	 
	AMC Wings, Inc.
	 	27680 Franklin Road, Southfield, MI 48034	 	 	100	%
	as Sole Shareholder of
AMC Traverse City, Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Diversified Restaurant Holdings, Inc.
	 	27680 Franklin Road, Southfield, MI 48034	 	 	100	%
	as Sole Shareholder of AMC Wings, Inc.
	 	 	 	 	 	 






3. Change. You must immediately notify us in writing of any change in the information
contained in this Addendum and, at our request, prepare and sign a new Addendum containing the
correct information.



4. Effective Date. This Addendum is effective as of this 7th
day of September, 2010.



	 	 	 	 	 	 	 
	/s/ TMA
 


	 	 	 	/s/ SJS
 

	 	 
	Your Initials

	 	 	 	Our Initials	 	 





 


 









 





Appendix A to the Franchise Agreement




Trademarks




You have the right to use the following Trademarks in accordance with the terms of the
Franchise Agreement:



	 	 	 
	Service Mark:
	 	BUFFALO WILD WINGS
	Registration No.:
	 	2,239,550
	Registration Date:
	 	April 13, 1999
	 
	 	 
	Service Mark:
	 	BUFFALO WILD WINGS GRILL & BAR (Design Mark)
	Registration No.:
	 	2,187,765
	Registration Date:
	 	September 8, 1998











	 	 	 
	Service Mark:
	 	BLAZIN’
	Registration No.:
	 	2,966,286
	Registration Date:
	 	July 7, 2005
	 
	 	 
	Service Mark:
	 	BONELESS THURSDAYS
	Registration No.:
	 	3,241,656
	Registration Date:
	 	May 15, 2007
	 
	 	 
	Service Mark:
	 	BUFFALITO
	Registration No.:
	 	2,914,520
	Registration Date:
	 	December 28, 2004
	 
	 	 
	Service Mark:
	 	WING TUESDAYS
	Registration No.:
	 	3,241,654
	Registration Date:
	 	May 15, 2007
	 
	 	 
	Service Mark:
	 	WINGS. BEER. SPORTS. ALL THE ESSENTIALS
	Registration No.:
	 	2,905,689
	Registration Date:
	 	November 30, 2004
	 
	 	 
	Service Mark:
	 	YOU HAVE TO BE HERE
	Registration No.:
	 	3,386,873
	Registration Date:
	 	February 19, 2008






We may amend this Appendix A from time to time in order to make available additional
Trademarks or to delete those Trademarks that become unavailable. You agree to use only those
Trademarks that are then-currently authorized.



The Trademarks must be used only in the manner that we specify. No deviations will be
permitted.


 


 









 





Appendix B to the Franchise Agreement




The Designated Area




The Authorized Location for your Restaurant as set forth in Paragraph 2.A of your Franchise
Agreement is as follows: 3480 South Airport Road West, Suite A, Traverse City, Michigan 49684.



As stated in Subparagraph 2.B. of the Franchise Agreement, subject to the terms and conditions of
the Franchise Agreement, the Designated Area in which you will locate and operate the Restaurant is
defined as follows:



The Designate Area shall be located within a five mile radius from the intersection of US 31 and
Airport Road, more precisely described as Latitude 44.72229/Longitude -85.6457.



The Designated Area is considered fixed as of the date of the Franchise Agreement.



	 	 	 	 	 	 	 	 	 	 	 
	FRANCHISEE:	 	 	 	US:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	AMC TRAVERSE CITY, INC.	 	 	 	BUFFALO WILD WINGS INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date: August 31, 2010	 	 	 	Date: September 7, 2010	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	AMC Wings, Inc.	 	 	 	/s/ Sally J. Smith	 	 
	 	 	 	 	 	 	 	 	 
	Its:

	 	Sole Shareholder of AMC Traverse City, Inc.
	 	 	 	By:
	 	Sally J. Smith	 	 
	 

	 	 	 	 	 	Its:
	 	President & CEO	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ T. Michael Ansley	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	By:

	 	Diversified Restaurant Holdings, Inc.	 	 	 	 	 	 	 	 
	 

	 	As Sole Shareholder of AMC Wings, Inc.	 	 	 	 	 	 	 	 
	Its:

	 	President & CEO, T. Michael Ansley	 	 	 	 	 	 	 	 





 


 









 










 


 









 







Appendix C to the Franchise Agreement

Addendum to Lease




This Addendum to Lease (“Addendum”), dated                     , 20     , is entered into between
                     (“Landlord”), and                      (“Tenant”).



RECITALS





	A.	 	The parties have entered into a Lease Agreement, dated                     , 20     , (the “Lease”)
pertaining to the premises located at                                          (the
“Premises”).







	B.	 	Landlord acknowledges that Tenant has agreed to operate a Restaurant at the Premises pursuant
to Tenant’s Franchise Agreement (the “Franchise Agreement”) with Buffalo Wild Wings
International, Inc. (“BWW”) under the name “Buffalo Wild Wings Grill & Bar” or other name
designated by BWW (the “Restaurant”).







	C.	 	The parties desire to amend the Lease in accordance with the terms and conditions contained
in this Addendum to provide BWW the opportunity to preserve the Premises as a BWW branded
restaurant as provided herein.






AGREEMENT




Landlord and Tenant agree to amend the Lease as follows:




	1.	 	Remodeling and Decor. Landlord agrees that Tenant has the right to remodel, equip,
paint and decorate the interior of the Premises and to display such proprietary marks and
signs on the interior and exterior of the Premises as Tenant is reasonably required to do
pursuant to the Franchise Agreement and any successor Franchise Agreement under which Tenant
may operate a Restaurant on the Premises. Any remodel of the building and/or its signs shall
be subject to Landlord’s prior and reasonable approval.







	2.	 	Assignment by Tenant.







	 	(a)	 	Tenant does not have the right to sublease or assign the Lease to any third
party without BWW’s and Landlord’s written approval.







	 	(b)	 	So long as Tenant is in good standing under the Lease, Tenant has the right to
assign all of its right, title and interest in the Lease to BWW, its affiliates or its
parent company, during the term of the Lease, including any extensions or renewals,
without first obtaining Landlord’s consent. No assignment will be effective, however,
until BWW or its designated affiliate (the “BWW Entity”) gives Landlord written notice
of its acceptance of the assignment. BWW will be responsible for the lease obligations
incurred after the effective date of the assignment.







	 	(c)	 	If BWW elects to assume the Lease, under this subparagraph or unilaterally
assumes the lease as provided for in subparagraph 3(a) or 4(a), Landlord and Tenant
agree that (i) Tenant will remain liable for the responsibilities and obligations,
including amounts owed to Landlord, prior to the date of assignment and assumption, and
(ii) BWW will have the right to sublease the Premises to another franchisee with
Landlord’s prior reasonable approval, provided the franchisee meets BWW’s then-current
standards and requirements for franchisees and agrees to operate the Restaurant as a
Buffalo Wild Wings restaurant pursuant to a Franchise Agreement with BWW. Upon receipt
by Landlord of an assumption agreement pursuant to which the assignee agrees to assume
the Lease and to
observe the terms, conditions and agreements on the part of Tenant to be performed
under the Lease, BWW shall thereupon be released from all liability as tenant under
the Lease from and after the date of assignment, without any need of a written
acknowledgment of such release by Landlord.




 


 









 











	3.	 	Default and Notice.







	 	(a)	 	Landlord shall send BWW copies of all notices of default it gives to Tenant
concurrently with giving such notices to Tenant. If Tenant fails to cure any defaults
within the period specified in the Lease, Landlord shall promptly give BWW written
notice thereof, specifying the defaults Tenant failed to cure. BWW has the right, but
not the obligation, to unilaterally assume the Lease if Tenant fails to cure. BWW
shall have 15 days from the date BWW receives such notice to exercise, by written
notice to Landlord and Tenant, its right for BWW or a BWW Entity to assume the Lease.
BWW shall have an additional 15 days from the expiration of Tenant’s cure period in
which to cure the default or violation.







	 	(b)	 	All notices to BWW must be sent by registered or certified mail, postage
prepaid, to the following address:







Buffalo Wild Wings International, Inc.

5500 Wayzata Boulevard, Suite 1600

Minneapolis, MN 55416

Attention: General Counsel



BWW may change its address for receiving notices by giving Landlord written notice of the new
address. Landlord agrees that it will notify both Tenant and BWW of any change in Landlord’s
mailing address to which notices should be sent.




	4.	 	Termination, Non-Renewal, Expiration. If the Franchise Agreement is
terminated for any reason during the term of the Lease or any extension thereof, BWW
has the right, but not the obligation, to unilaterally assume the Lease by giving
Landlord written notice. Within 30 days after receipt of such notice, Landlord shall
give BWW written notice specifying any defaults of Tenant under the Lease.







	5.	 	Access to Premises Following Expiration or Termination of Lease. Upon the expiration
or termination of the Lease, Landlord will cooperate with and assist BWW in gaining possession
of the Premises and if a BWW Entity does not elect to enter into a new lease for the Premises
with Landlord on terms reasonably acceptable to the BWW Entity, Landlord will allow BWW to
enter the Premises, without being guilty of trespass and without incurring any liability to
Landlord, except for any damages caused by BWW’s willful misconduct or gross negligence, to
remove all signs, awnings, and all other items identifying the Premises as a Buffalo Wild
Wings® Restaurant and to make such other modifications (such as repainting) as
are reasonably necessary to protect the Buffalo Wild Wings® marks and
system. In the event BWW exercises its option to purchase assets of Tenant, Landlord must
permit BWW to remove all such assets being purchased by BWW.







	6.	 	Additional Provisions.







	 	(a)	 	Landlord hereby acknowledges that the provisions of this Addendum are required
pursuant to the Franchise Agreement under which Tenant plans to operate its business
and the Tenant would not lease the Premises without this Addendum.




 


 









 











	 	(b)	 	Landlord further acknowledges that Tenant is not an agent or employee of BWW
and the Tenant has no authority or power to act for, or to create any liability on
behalf of, or to in
any way bind BWW or any affiliate of BWW, and that Landlord has entered into this
Addendum with full understanding that it creates no duties, obligations or
liabilities of or against BWW or any affiliate of BWW, unless and until the Lease is
assigned to, and accepted in writing by, BWW or its parent company.







	 	(c)	 	BWW Entity may elect not to assume or be bound by the terms of any amendment to
the Lease executed by Tenant without obtaining BWW’s prior written approval, which
shall not be unreasonably withheld or delayed.







	8.	 	Modification. No amendment or variation of the terms of this Addendum is valid
unless made in writing and signed by the parties and the parties have obtained the written
consent of BWW.







	9.	 	Reaffirmation of Lease. Except as amended or modified in this Addendum, all of the
terms, conditions and covenants of the Lease remain in full force and effect and are
incorporated by reference and made a part of this Addendum as though copied herein in full.
In the event of any conflict between the terms of this Addendum and those in the Lease, the
terms of this Addendum shall control.







	10.	 	Beneficiary. Landlord and Tenant expressly agree that BWW is a third party
beneficiary of this Addendum.






IN WITNESS WHEREOF, the parties have executed this Addendum as of the dates written below.



	 	 	 	 	 	 	 	 	 	 	 
	TENANT:	 	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By

	 	 	 	 	 	By	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	Its

	 	 	 	 	 	Its	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 





 


 









 





Appendix D to the Franchise Agreement




Electronic Transfer of Funds Authorization




	 	 	 
	Franchisee:

	 	AMC Traverse City, Inc.
	Location:

	 	Traverse City, Michigan
	Date:

	 	9/7/10






	 	 	 
	NEW	 	CHANGE
	 






Attention: Bookkeeping Department



The undersigned hereby authorizes Buffalo Wild Wings International, Inc., its parent company or any
affiliated entity (collectively, “BWW”), to initiate weekly ACH debit entries against the account
of the undersigned with you in payment of amounts for Royalty Fees, Advertising Fees or other
amounts that become payable by the undersigned to BWW. The dollar amount to be debited per payment
will vary.



Subject to the provisions of this letter of authorization, you are hereby directed to honor any
such ACH debit entry initiated by BWW.



This authorization is binding and will remain in full force and effect until 90 days prior written
notice has been given to you by the undersigned. The undersigned is responsible for, and must pay
on demand, all costs or charges relating to the handling of ACH debit entries pursuant to this
letter of authorization.



Please honor ACH debit entries initiated in accordance with the terms of this letter of
authorization, subject to there being sufficient funds in the undersigned’s account to cover such
ACH debit entries.



	 	 	 	 	 	 	 
	 

	 	 	 	Sincerely yours,
	 
	 	 	 	 	 	 
	 	 	 	 	 
	*** We also need a VOIDED Check ***	 	 	 	Account Name
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Bank Name	 	 	 	Street Address
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Branch	 	 	 	City State Zip Code
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Street Address	 	 	 	Telephone Number
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	 
	City State Zip Code
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Its	 	 
	 

	 	 	 	 	 	 
	Bank Telephone Number
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Date	 	 
	 

	 	 	 	 	 	 
	Bank’s Account Number
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

Customer’s Account Number

	 	 	 	 	 	 






 


 









 







Appendix E to the Franchise Agreement




AFFILIATED SELLER AGREEMENT




This Affiliated Seller Agreement (“ASA”) dated September 7, 2010 is among ValueLink, LLC,
d/b/a First Data Prepaid Services (“FDPS”), AMC TRAVERSE CITY, INC. (“Affiliated Seller”) and
Blazin Wings Inc. (“Client”). Client and FDPS entered into a Stored Value Card Processing
Agreement dated March 20, 2009, as amended and supplemented from time to time (the “Client
Agreement”). The undersigned Affiliated Seller desires to receive and FDPS desires to provide
Services in accordance with the Client Agreement terms and the terms of this ASA.




	1.	 	Representations and Warranties of Affiliated Seller. Affiliated Seller represents and
warrants that Affiliated Seller: (i) has received and reviewed a true and correct copy of the
Client Agreement from Client; and (ii) subject to the limitations provided in this ASA, agrees
to be bound by the Client Agreement to the same extent as if it were “Client” whenever the
context requires Client performance (and irrespective of whether or not the term “Client” is
expressly mentioned.) Affiliated Seller hereby appoints Client as its representative with
FDPS for all matters arising out of or relating to the Client Agreement including all matters
that involve Client Agreement negotiation, modification and/or dispute resolution. Affiliated
Seller agrees that Affiliated Seller will be solely responsible for communicating with Client
concerning the status of such matters and the Client Agreement. Affiliated Seller represents
and warrants that FDPS will be entitled to communicate information concerning Affiliated
Seller, including its Confidential Information, its Program, Program Procedures, Cardholders
and Card Data to Client and to rely upon any statements made by Client related thereto to the
same extent as if FDPS were dealing directly with a duly authorized Affiliated Seller
representative.







	2.	 	Client Agreement. Client agrees to be jointly and severally liable for Affiliated
Seller obligations arising out of the Client Agreement. Each Affiliated Seller shall not be
responsible for the obligations of the Client or another Affiliated Seller, arising out of the
Client Agreement. Affiliated Seller agrees that Affiliated Seller’s rights under this ASA
will terminate immediately without need of notification from FDPS on termination or expiration
of this ASA.







	3.	 	Issuance of Cards. Notwithstanding anything to the contrary in this ASA, (i) Client
will be the sole issuer of all Cards issued under the Program, including with respect to all
Cards sold at locations operated by Affiliated Sellers, and (ii) Client will be solely
responsible for the responsibilities set forth in Section 3(b) of the Client Agreement.







	4.	 	Indemnification. The Client agrees to indemnify the Affiliated Seller for
escheatment claims by any State as follows:







	 	A.	 	For escheatment claims related to Cards sold at any time period prior
to September 15, 2007, the Client provides no indemnification.







	 	B.	 	For escheatment claims related to Cards sold during the time between
September 15, 2007 and September 15, 2008, the Client will indemnify the Affiliated
Seller up to the amount remitted by the Affiliated Seller to the Client for this
period of time.







	 	C.	 	For escheatment claims related to Cards sold after September 16, 2008,
the Client will indemnify the Affiliated Seller up to the amount remitted by the
Affiliated Seller to the Client for this period of time.





 


- 1 -









 






	5.	 	Limitation of Liability. Anything to the contrary notwithstanding, Affiliated Seller
agrees that FDPS’ cumulative aggregate liability under Client Agreement to Client and all
Affiliated Sellers will be subject to the limitations set forth in Section 14 of the Client
Agreement. For example, if Client and one additional Affiliated Seller participate under the
Client Agreement, FDPS’ cumulative aggregate liability to Client and such Affiliated Seller
for direct damages will not exceed two hundred fifty thousand dollars ($250,000.00) and will
not include any liability for claims arising out of or relating to services and/or items
supplied by the Card Company.







	6.	 	Conflict. Should a conflict exist between the provisions of the Client Agreement and
this ASA, this ASA will control. Terms in initial capital letters or all capital letters used
as a defined term but not defined in this ASA will have the meaning set forth in the Client
Agreement. References to this ASA in any document now or hereafter attached to or referenced
to this ASA will mean this ASA as amended or supplemented from time to time.






IN WITNESS WHEREOF, the Parties have caused this ASA to be executed by their authorized
representatives as of the date first set forth above.



	 	 	 	 	 	 	 	 	 
	AFFILIATED SELLER	 	 	 	ValueLink, LLC
	Address:	 	 	 	6200 South Quebec Street
	 	 	 	 	 	 	Greenwood Village, Colorado 80111
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ T. Michael Ansley
	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	T. Michael Ansley
	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 
	Title:

	 	President
	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BLAZIN WINGS INC.	 	 	 	 	 	 
	5500 Wayzata Blvd.	 	 	 	 	 	 
	Minneapolis, MN 55416	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Sally J. Smith
 

	 	 	 	 	 	 
	Name:

	 	Sally J. Smith	 	 	 	 	 	 
	Title:

	 	President & CEO	 	 	 	 	 	 







 


- 2 -









 







ACKNOWLEDGMENT ADDENDUM TO

BUFFALO WILD WINGS® FRANCHISE AGREEMENT




As you know, you and we are entering into a Franchise Agreement for the operation of a Buffalo
Wild Wings® franchise. The purpose of this Acknowledgment Addendum is to determine
whether any statements or promises were made to you that we have not authorized or that may be
untrue, inaccurate or misleading, and to be certain that you understand the limitations on claims
that may be made by you by reason of the offer and sale of the franchise and operation of your
business. Please review each of the following questions carefully and provide honest responses to
each question.



Acknowledgments and Representations*.




	1.	 	Did you receive a copy of our Disclosure Document (and all exhibits and attachments) at least
(a) 14 calendar days prior to signing the Franchise Agreement; or (b) if you are a
resident of Maryland, New York, or Rhode Island, at the earlier of the first personal meeting
or 10 business days before the execution of the Franchise Agreement (or other agreement) or
payment of any consideration; or (c) if you are a resident of Michigan, Oregon,
Washington or Wisconsin, at the earlier of 10 business days before the execution of any
binding agreement or payment of any consideration? Check one: þ Yes o
No.
If no, please comment:                                                                           
                                                                         

                                                                    
                                                      









	2.	 	Have you studied and reviewed carefully our Disclosure Document and Franchise Agreement?
Check one: þ Yes o No. If no, please comment:
                                                                          
                                                                              
        
                                                                    
                                                                                
                                               








	3.	 	If the Franchisor made any unilateral changes to the Franchise Agreement or Area Development
Agreement, did you receive a copy of the complete revised agreement at least 7 calendar days
prior to the date on which the Franchise Agreement or Area Development Agreement was executed?
Check one: þ Yes o No. If no, please comment:                                                                          
                                                                              
        

                                                                    
                                                                                
                                               








	4.	 	Did you understand all the information contained in both the Disclosure Document and
Franchise Agreement? Check one: þ Yes o No. If no, please comment:                                          
                                
                                                                                                                                                                                                    









	5.	 	Was any oral, written or visual claim or representation made to you that contradicted the
disclosures in the Disclosure Document? Check one: o Yes þ No. If
yes, please state in detail the oral, written or visual claim or representation:                                                                          
                                                                              
        

                                                                    
                                                                                
                                               









	6.	 	Did any employee or other person speaking on behalf of Buffalo Wild Wings International, Inc.
make any oral, written or visual claim, statement, promise or representation to you that
stated, suggested, predicted or projected sales, revenues, expenses, earnings, income or
profit levels at any Buffalo Wild Wings® location or business, or the
likelihood of success at your Franchised Business? Check one: o Yes þ)
No. If yes, please state in detail the oral, written or visual claim or representation:                                                                          
                                                                              
        

                                                                    
                                                                                
                                               








	7.	 	Did any employee or other person speaking on behalf of Buffalo Wild Wings International, Inc.
make any statement or promise regarding the costs involved in operating a franchise that is
not contained in the Disclosure Document or that is contrary to, or different from, the
information contained in the Disclosure Document. Check one: o Yes þ No. If yes,
please comment:                                                                          
                                                                              
        

                                                                    
                                                                                
                                               

                                                                    
                                                                                
                                               










 


 









 











	8.	 	Do you understand that the franchise granted is for the right to develop and operate the
Restaurants in the Designated Territory, as stated in Subparagraph 2.B, and that, according to
Subparagraph 2.D, we and our affiliates have the right to distribute products through
alternative methods of distribution and to issue franchises or operate competing businesses
for or at locations, as we determine, (i) outside of your Designated Area using any
trademarks; (ii) inside your Designated Territory using any trademarks other than the
Buffalo Wild Wings® Trademark; and (iii) inside the Designated Territory
using the Buffalo Wild Wings® Trademark, for facilities at Special Sites
and Limited Seating Facilities (subject to your right of first refusal with respect to Limited
Seating Facilities, as detailed in the Franchise Agreement)? Check one: þ Yes
o No.
 If no, please comment:                                                                                                  
                                                                                   
                                                                                                                  







	9.	 	Do you understand that the Franchise Agreement contains the entire agreement between you and
us concerning the franchise for the Restaurant, meaning that any prior oral or written
statements not set out in the Franchise Agreement or Disclosure Document will not be binding?
Check one: þ Yes o No. If no, please comment:                                                                           
                                                                              
                                                                                                                                                                                                       







	10.	 	Do you understand that the success or failure of your Restaurant will depend in large part
upon your skills and experience, your business acumen, your location, the local market for
products under the Buffalo Wild Wings® trademarks, interest rates, the
economy, inflation, the number of employees you hire and their compensation, competition and
other economic and business factors? Further, do you understand that the economic and
business factors that exist at the time you open your Business may change?
Check one þ Yes o No. If no, please comment:                                                                           
      







	11.	 	Do you understand that the current economic crisis and financial situation in the U.S. and
abroad could have a negative impact on the restaurant industry, the Buffalo Wild
Wings® franchise system and your business? Check one þ Yes o No. If no,
please comment:                                                                           
                                                                              
                                                                                                                                                                                                        







	12.	 	Do you understand that you are bound by the non-compete covenants (both in-term and
post-term) listed in Subparagraph 10.D and that an injunction is an appropriate remedy to
protect the interests of the Buffalo Wild Wings® system if you violate the
covenant(s)? Further, do you understand that the term “you” for purposes of the non-compete
covenants is defined broadly in subparagraph 10.D, such that any actions in violation of the
covenants by those holding any interest in the franchisee entity may result in an injunction,
default and termination of the Franchise Agreement? Check one þ Yes o No. If
no, please comment:                                                                           
                                                                              
                                                                                                                                                                                                        






YOU UNDERSTAND THAT YOUR ANSWERS ARE IMPORTANT TO US AND THAT WE WILL RELY ON THEM. BY SIGNING
THIS ADDENDUM, YOU ARE REPRESENTING THAT YOU HAVE CONSIDERED EACH QUESTION CAREFULLY AND RESPONDED
TRUTHFULLY TO THE ABOVE QUESTIONS. IF MORE SPACE IS NEEDED FOR ANY ANSWER, CONTINUE ON A SEPARATE
SHEET AND ATTACH.



NOTE: IF THE RECIPIENT IS A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER
ENTITY, EACH OF ITS PRINCIPAL OWNERS MUST EXECUTE THIS ACKNOWLEDGMENT.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	APPROVED ON BEHALF OF BUFFALO WILD WINGS INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signed:

	 	/s/ T. Michael Ansley
 

	 	 	 	By:
	 	/s/ Sally J. Smith
 

	 	 
	Print Name:

	 	T. Michael Ansley
	 	 	 	Title:
	 	Sally J. Smith, President & CEO	 	 
	Date:

	 	August 31, 2010
	 	 	 	Date:
	 	September 7, 2010	 	 








	 	 	 
	*	 	Such representations are not intended to nor shall they act as a release, estoppel or waiver of
any liability incurred under the Illinois Franchise Disclosure Act or under the Maryland Franchise
Registration and Disclosure Law.



 


 









 









ASSIGNMENT OF OPTION




This Assignment of Option is made and entered into by AMC Wings, Inc., a corporation
(“Developer”) and AMC Traverse City, Inc., a corporation (“Franchisee”) as of this



7th day of September, 2010.



RECITALS




A. Developer and Buffalo Wild Wings International, Inc. (“Franchisor”) are parties to that
certain Area Development Agreement executed as of July 18, 2003, as amended December 27, 2003,
March 20, 2007, November 5, 2007, and December 10, 2009 (the “Area Development Agreement”),
pursuant to which Franchisor granted to Developer options to obtain franchises to establish and
operate thirty-two (32) Buffalo Wild Wings restaurants (the “Restaurants”).



B. Developer desires to assign to Franchisee its next option under the Area Development
Agreement to establish and operate one Restaurant in the Development Territory, which Development
Territory is delimited in Appendix A to the Area Development Agreement (the “Option”).




NOW THEREFORE, the parties agree as follows:



1. Except as otherwise provided herein, capitalized terms used herein shall have the same
meaning as set for the in the Area Development Agreement.



2. Developer hereby assigns to Franchisee the Option. Franchisee hereby accepts the
assignment of the Option to it and agrees to exercise the Option by executing and delivering as of
the same date hereof a Buffalo Wild Wings Franchise Agreement (the “Franchise Agreement”).



3. Developer acknowledges and agrees that Franchisor’s consent to this Assignment shall not
release Developer from any of its obligations under the Area Development Agreement, including, but
not limited to, its obligations to comply with the Development Schedule and to continuously
maintain and operate the Restaurants established under the Area Development Agreement. Any failure
of Franchisee to comply with the terms and conditions of its Franchise Agreement shall constitute a
default by Developer under the Area Development Agreement.



4. Developer agrees that Franchisor and Franchisee shall have the right to select a Designated
Area for the Restaurant to be established under the Franchise Agreement in accordance with the
terms thereof; said Designated Area to be located within the Developer’s Development Territory, as
delimited in Appendix A to the Area Development Agreement.


 


 









 





IN WITNESS WHEREOF, the foregoing Assignment of Option has been executed by the parties as of
the date first set forth above.



	 	 	 	 	 	 	 	 	 
	AMC WINGS, INC.	 	 	 	AMC TRAVERSE CITY, INC.
	 
	 	 	 	 	 	 	 	 
	/s/ T. Michael Ansley	 	 	 	By:	 	AMC Wings, Inc.
	 	 	 	 	 	 	 
	By:

	 	Diversified Restaurant Holdings, Inc.
	 	 	 	Its:
	 	Sole Shareholder of AMC Traverse City, Inc.
	 

	 	As Sole Shareholder of AMC Wings, Inc.	 	 	 	 	 	 
	Its:

	 	President & CEO, T. Michael Ansley	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	/s/ T. Michael Ansley
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	Diversified Restaurant Holdings, Inc.
	 

	 	 	 	 	 	 	 	As Sole Shareholder of AMC Wings, Inc.
	 

	 	 	 	 	 	Its:
	 	President & CEO, T. Michael Ansley






Franchisor hereby consents to the above Assignment of Option subject to the terms and
conditions set forth therein.



BUFFALO WILD WINGS INTERNATIONAL, INC.



	 	 	 	 	 
	/s/ Sally J. Smith	 	 
	 	 	 
	By:

	 	Sally J. Smith	 	 
	Its:

	 	President & CEO	 	 





 


 









 





Addendum to Franchise Agreement




This Addendum is appended to, and made a part of, the Buffalo Wild Wings® Franchise
Agreement dated September 7th , 2010 (the “Agreement”) between Buffalo Wild
Wings International, Inc., an Ohio corporation (“we” or “us”) and AMC Traverse City, Inc., a
Michigan corporation (“you”) for the franchised restaurant to be located in Traverse City, Michigan
(the “Authorized Location”). Capitalized terms not defined in this Addendum have the meanings
given to them in the Agreement. In the event of any conflict between the terms of this Addendum
and those in the Agreement, the terms of this Addendum shall control.



The parties hereby agree as follows:




2. Section 10.D.2. of the Franchise Agreement is amended to read, in its entirety, as follows:




You covenant that during the term of this Agreement you will not either directly or
indirectly, for yourself, or through, on behalf of, or in conjunction with any person or
entity, own, manage, operate, maintain, engage in, consult with or have any interest in
(i) a casual or fast casual restaurant that sells or offers to dispense prepared food
products the same as or similar to the type sold in Buffalo Wild Wings restaurants; (ii)
a sports-themed restaurant or bar business; or (iii) any business establishment that
sells or offers to dispense prepared chicken wings or legs. For purposes of this
subparagraph, a sports-themed restaurant of bar is one with more than two screens, or
any screen larger than 25 inches, available for the viewing of sporting events.



IN WITNESS WHEREOF, the parties have duly executed this Addendum to the Franchise Agreement as
of the date and year first above written.



	 	 	 	 	 	 	 	 	 
	FRANCHISEE:	 	 	 	US
	 
	 	 	 	 	 	 	 	 
	AMC TRAVERSE CITY, INC.	 	 	 	BUFFALO WILD WINGS

INTERNATIONAL, INC.
	 
	 	 	 	 	 	 	 	 
	By:

	 	AMC Wings, Inc.	 	 	 	 	 	 
	Its:	 	Sole Shareholder of AMC Traverse City, Inc.	 	 	 	/s/ Sally J. Smith
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	Sally J. Smith
	 

	 	 	 	 	 	Its:
	 	President & CEO
	 
	 	 	 	 	 	 	 	 
	/s/ T. Michael Ansley	 	 	 	 	 	 
	 	 	 	 	 	 	 
	By:

	 	Diversified Restaurant Holdings, Inc.	 	 	 	 	 	 
	 

	 	As Sole Shareholder of AMC Wings, Inc.	 	 	 	 	 	 
	Its:

	 	President & CEO, T. Michael Ansley