Exhibit 10.2


 


AGREEMENT FOR RELOCATION SERVICES


 


THIS
AGREEMENT is made as of the 13th day of April 2004 (the “Effective
Date”), between Friendly Ice Cream Corporation, a Massachusetts Corporation,
hereinafter referred to as “the Company,” and Primacy Relocation, LLC, a
Tennessee limited liability company, hereinafter referred to as “PRIMACY”.  Capitalized terms which are not specifically
defined in this Agreement and any attached Addenda will have the meaning
ascribed to such terms in PRIMACY’S customary policies and procedures.


 


For
and in consideration of the mutual promises and covenants hereinafter set
forth, the Company and PRIMACY agree as follows:


 


ARTICLE 1        General Description of the
Work to be Performed


 


The
Company hereby engages PRIMACY to perform the services described herein and PRIMACY
agrees to perform such services in accordance with this Agreement including any
attached Addenda.  The Company agrees to
the Fee Structure and Billing Procedures as described herein.


 


ARTICLE 2        Authorized Services


 


The
Company and PRIMACY agree that the following services are authorized under this
Agreement. The provision of service must be initiated from the Company or its
authorized agents to PRIMACY before PRIMACY and the Company are bound by this
Agreement. Initiation will occur when PRIMACY is in receipt of a written
authorization, including facsimiles and e-mails, from the Company or its
authorized agents.


 


Authorized
Services include:


 


	
   

  	
   

  	
  INITIAL HERE TO AUTHORIZE

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
  PRIMACY

  	
   

  
	
  Home Sale – Company Funded – EAS integrated

  	
  Addendum 1

  	
   

  	
  /s/ GJU

  	
   

  	
  /s/ GOS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BVO – Company Funded – EAS Integrated

  	
  Addendum 2

  	
   

  	
  /s/ GJU

  	
   

  	
  /s/ GOS

  	
   

  



 


Other
Authorized Services shall include the following:


 


A.                        Appraisal Review


 


The Company may request
that PRIMACY obtain an appraisal and/or a Brokers Market Analysis to help
determine the feasibility of a transfer under consideration. PRIMACY will
arrange for such and have the PRIMACY Consultant review it for accuracy.  The Company will reimburse PRIMACY for any
and all Home Sale Program Costs incurred in relation to each appraisal review
including, but not limited to, appraisal fees, Broker Market Analysis fees,
inspection costs, and any other costs considered necessary by the Company and PRIMACY
to satisfactorily complete the review. 
This service is included at no additional charge as part of any homesale
or BVO program.


 


1





















 


B.                        Destination Services


 


The Company may request PRIMACY
to provide professional counseling and assistance in finding a community and
home in the Employee’s new location that meets the family’s specific needs. PRIMACY
will work with the Employee to carefully assess and select a Broker and/or
Agent.  The Broker and/or Agent will send
the Employee a complete information packet on the destination city, offer area
orientation tours, and coordinate arrangements to help the Employee find a
suitable home. PRIMACY will also order pre-purchase appraisals, if requested,
and review settlement costs. The PRIMACY Consultant will assist the Employee
throughout the entire home finding process.


 


C.                        Expense Administration (EAS)


 


PRIMACY will diligently
track all Employee expenses related to the transfer, handle reimbursements by
check according to the Company’s policy, compute federal withholding taxes,
calculate the gross-up amount due an Employee, and provide reports for the
Company and the Employee.


 


D.                        Marketing
Assistance


 


The Company may request PRIMACY
to assist the Employee in selling the Home. PRIMACY will work with the Employee
to carefully assess and select a Broker and/or Agent. The PRIMACY consultant
will stay in contact with the Broker and/or Agent to monitor the real estate
sales process to insure that effective marketing techniques are being followed
to achieve a timely sale for the best possible price.


 


E.                          Renter Assistance


 


The Company may request
that PRIMACY provide Renter Assistance to find a rental property in the
Employee’s new location.  Upon
notification initiating the service a PRIMACY Consultant will contact the
Employee, explain the service and arrange for a rental agent in the destination
city to contact the Employee within 24 hours. 
The rental agent will send the Employee a complete information packet on
the destination city and coordinate arrangements to assist the Employee in
locating a rental property.  The PRIMACY
Consultant will remain in contact with the Employee to ensure the Employee’s
needs are satisfactorily met.


 


ARTICLE 3     Administrative
Procedures


 


A.                        Audit


 


PRIMACY
shall maintain accurate and complete records, including supporting bills and
invoices, accounting for all charges and expenses incurred pursuant to and
during the term of this Agreement and for a period of three years following the
termination of this Agreement.  Such records
shall be maintained in conformance with generally accepted accounting
principles. PRIMACY further agrees to permit the Company or its representatives
to examine and audit such records upon reasonable notice at all reasonable
times during the term of this Agreement.


 


Company understands and acknowledges that, in
connection with any of the services provided or coordinated by PRIMACY pursuant
to this Agreement or any Addendum, PRIMACY may refer the Employee to various
providers of services and that PRIMACY may be entitled to receive a reasonable
referral fee in connection with any such referral.  Company agrees that any referral fee paid by
the person or supplier to whom the Employee is referred shall be the sole property
of PRIMACY, and neither Company nor the Employee shall have any right, title or
interest therein or thereto.


 


2





















 


B.                        Insurance


 


PRIMACY
shall carry broad form property insurance and comprehensive general liability
insurance on each Home and Special Property commencing on the Date of
Possession. Comprehensive general liability insurance coverage limit shall not
be less than $1,000,000 per occurrence with a $3,000,000 general aggregate and
a deductible not to exceed $25,000. For each Home and Special Property, Primacy
shall maintain Property insurance coverage with a limit equal to the lower of
the replacement cost or the Appraised Value, with deductible as set forth
below.


 


Base
Coverage:


•                  Up
to $1,250,000 any one location for buildings;


•                  $5,000
for personal property


•                  10%
of reported property value for appurtenant structures


 


Earth
Movement:


•                  Any
one occurrence and aggregate coverage up to $5,000,000 ($10,000 deductible,
except in California where it is 10% of the reported value per location.)


 


Flood
Coverage:


•                  Any
one occurrence up to $5,000,000 - $5,000,000 in the aggregate ($1,000
deductible.)


 


Wind
Deductibles:


 


•                  5%
of reported value per location subject to a minimum of $1,000 for High Hazard
Wind Counties as defined.


 


Other:


•                  In
addition to the exclusions set forth in the policies, water backing up through
sewers or drains, water rising through the ground causing damage and sump pump
failure is not covered.


•                  All
other damages deductible - $500


•                  Coverage
over $1,250,000 will be on a specific quote basis


 


The
Company shall be named as an additional insured under all such policies of
insurance which shall not be modified or terminated unless the Company receives
30 days’ prior notice thereof. Upon the written request of Company, Primacy shall
provide Company with a certificate of insurance evidencing that Primacy has
such coverage in place.


 


Promptly
upon learning of a loss or a threatened loss on any Home or Special Property, PRIMACY
shall notify the Company and shall investigate the loss. PRIMACY shall obtain
the Company’s prior approval before making any settlements with insurance
carriers or repairing or rebuilding the Home or Special Property.  Any insurance proceeds paid to PRIMACY shall
be credited to the Company as an offset against Costs otherwise subject to
reimbursement by the Company.  Any loss
or damage not covered by this insurance, including, but not limited to, any
deductible, shall be deemed a Cost subject to reimbursement by the Company.


 


The insurance coverage
described above shall be considered excess coverage over and above any other
valid coverage maintained by the Employee and actually collected.


 


3





















 


C.                        Responsibilities
of Parties


 


1. INDEMNIFICATION


 


Notwithstanding
anything else contained herein to the contrary, except to the proportionate
extent of any negligence or willful misconduct on the part of Primacy, Company
agrees to indemnify and hold Primacy harmless from all claims, liability,
damages and expenses (including reasonable attorneys’ fees) arising in
connection with or as a result of the services contemplated under this
Agreement, or breach thereof, or arising out of or in connection with any
action or failure to act by any Employee or any other person to whom relocation
services are provided pursuant to the terms of this Agreement.


 


Except
to the proportionate extent of any negligence or breach of this Agreement on
the part of Company, Primacy agrees to indemnify and hold Company harmless from
all claims, liability, damages and expenses (including reasonable attorneys’
fees) incurred or suffered by Company arising in connection with any demand,
claim or legal action asserted against Company by a third party (other than an
Employee or another person to whom relocation services are provided under this
Agreement) by reason of any act or thing done or omitted by Primacy pursuant to
this Agreement and caused by the negligence or willful misconduct of Primacy.


 


The
provisions of this section shall survive termination of this Agreement.
Upon performance of its obligation to indemnify, the indemnifying party shall
be subrogated to any rights of the indemnified party with respect to such
claim.


 


2.                          PRIMACY
shall be responsible for providing its services under this Agreement and any
Addenda in a commercially reasonable manner and in accordance with all
applicable federal, state and local laws.


 


3.              Force
Majeure. Neither party shall be liable to the other party for any delay or
failure in performance due to any cause beyond its reasonable control. This
provision shall not excuse the non-payment or late payment of any monetary
obligation by any party.


 


D.                        TERM;
Termination


 


The
term of this Agreement shall commence on the Effective Date and shall expire on
December 31, 2005 (the “Term”) unless terminated by either party as
provided for herein. The Agreement shall automatically renew for additional
one-year Term(s), unless either party provided notice to the other not less
than sixty (60) days prior to the end of the then current Term of its intent
not to extend or renew the Agreement.


 


Either
party hereto may terminate this Agreement for any reason by giving the other
party thirty (30) days prior written notice of such termination.
Notwithstanding the foregoing, upon giving notice of termination of this
Agreement, Company shall not make and Primacy shall not accept any further
Initiations.


 


In the
event of such termination, PRIMACY may choose to continue to perform the
services referred to in this Agreement for any Homes being handled by PRIMACY
at the time this Agreement is terminated. 
With respect to such Homes, the provisions of this Agreement shall
continue to govern the rights and obligations of the parties including, but not
limited to, the Company’s obligation to make the payments called for in this
Agreement.


 


Notwithstanding the
foregoing, the Company shall have the option regarding any Home being handled
by PRIMACY pursuant to and at the termination of the Agreement that is not then
subject to a purchase and sale contract, of transferring such Home to the
Company or its designee after payment to PRIMACY of the Service Fee and any
outstanding Home Sale Program Costs and


 


4





















 


reimbursement of any
equity payments, mortgage payoffs, or interest costs incurred, without any
further liability to PRIMACY. PRIMACY shall have the right to sell such Homes
without limitation on loss on sale, provided it first offers to sell the Homes
to the Company or its designee for the amount that PRIMACY has invested
therein.


 


E.                          PRIMACY
Status Disclaimer


 


PRIMACY
is an independent contractor and is not acting as an agent for purposes of
acquiring Homes. PRIMACY is a relocation service provider.  We are not tax or legal counsel.  Nor do we guarantee tax treatment for
services rendered.  We advise you, our
client, to seek your own tax and legal advice.


 


ARTICLE 4     Fees and Billing Procedures


 


SECTION 1     Fees


 


BUNDLED
FEES


 


	
  Tier IH
  and 2H

  	
   

  	
  $0* per Employee, plus Direct Costs

  	
   

  
	
  (Homeowner Buyer
  Value Program)

  	
   

  	
   

  	
   

  
	
  Executives /
  Regional Directors

  	
   

  	
   

  	
   

  
	
  Exempt /
  District Managers

  	
   

  	
   

  	
   

  
	
  Services
  included:

  	
   

  	
   

  	
   

  
	
  Policy Counseling

  	
   

  	
   

  	
   

  
	
  Expense Administration (EAS) (first calendar year)

  	
   

  	
   

  	
   

  
	
  Home Marketing

  	
   

  	
   

  	
   

  
	
  Home Sale

  	
   

  	
   

  	
   

  
	
   •

  	
  Buyer Value Option (BVO)

  	
   

  	
   

  	
   

  
	
   •

  	
  Amended Value

  	
   

  	
   

  	
   

  
	
   •

  	
  Full Buy-out

  	
   

  	
   

  	
   

  
	
  Destination Services

  	
   

  	
   

  	
   

  
	
  Mortgage Assistance

  	
   

  	
   

  	
   

  
	
  Temporary Living

  	
   

  	
   

  	
   

  
	
  Transportation Coordination

  	
   

  	
   

  	
   

  
	
  Website

  	
   

  	
   

  	
   

  
	
  Appraisal Review

  	
   

  	
   

  	
   

  



 










* Non-Compliance Fee. The fee stated above is
dependent upon Primacy capturing a referral fee from both the listing broker on
the sale of the Employee’s current Home and the selling broker on the purchase
of a home in the destination location, if not the following service fee will
apply:  $1,000 if one referral fee is
captured; $2,000 if no referral fees are captured. This fee is termed a
non-compliance fee.  This fee is also
dependent upon Primacy Relocation retaining the option to present Primacy
preferred mortgage lenders as the only direct bill option to employees seeking
to purchase a home in the new location and will be the only suppliers allowed
to direct bill approved new home purchase closing costs.


 


5





















 


	
  Tier 3H

  	
   

  	
  $0** per Employee, plus Direct Costs

  	
   

  
	
  (Homeowner
  Relocation Allowance)

  	
   

  	
   

  	
   

  
	
  Exempt District
  Managers

  	
   

  	
   

  	
   

  
	
  Services
  included:

  	
   

  	
   

  	
   

  
	
  Policy Counseling

  	
   

  	
   

  	
   

  
	
  Expense Administration (EAS) (first calendar year)

  	
   

  	
   

  	
   

  
	
  Home Marketing

  	
   

  	
   

  	
   

  
	
  Destination Services

  	
   

  	
   

  	
   

  
	
  Mortgage Assistance

  	
   

  	
   

  	
   

  
	
  Temporary Living

  	
   

  	
   

  	
   

  
	
  Transportation Coordination

  	
   

  	
   

  	
   

  
	
  Website

  	
   

  	
   

  	
   

  



 










** Non-Compliance Fee. The fee stated above is dependent upon
Primacy capturing a referral fee from either the listing broker on the sale of
the Employee’s current Home or the selling broker on the purchase of a home in
the destination location, if not an additional fee of $750 will apply. This fee
is termed a non-compliance fee.  This fee
is also dependent upon Primacy Relocation retaining the option to present
Primacy preferred mortgage lenders as the only direct bill option to employees
seeking to purchase a home in the new location and will be the only suppliers
allowed to direct bill approved new home purchase closing costs.


 


	
  Tier IR,
  2R, 3R

  	
   

  	
  $550 per Employee, plus Direct Costs

  	
   

  
	
  (Renters
  Program)

  	
   

  	
   

  	
   

  
	
  Executives /
  Regional Directors

  	
   

  	
   

  	
   

  
	
  Exempt / District
  Managers

  	
   

  	
   

  	
   

  
	
  Exempt / General
  Managers

  	
   

  	
   

  	
   

  
	
  Services
  included:

  	
   

  	
   

  	
   

  
	
  Policy Counseling

  	
   

  	
   

  	
   

  
	
  Expense Administration (EAS) (first calendar year)

  	
   

  	
   

  	
   

  
	
  Renter Assistance

  	
   

  	
   

  	
   

  
	
  Temporary Living

  	
   

  	
   

  	
   

  
	
  Transportation Coordination

  	
   

  	
   

  	
   

  
	
  Website

  	
   

  	
   

  	
   

  



 


Individual
Fees (if applicable or requested):


 


	
  Appraisal Review

  	
   

  	
  $250

  
	
   

  	
   

  	
   

  
	
  Closing Services

  	
   

  	
  $600

  
	
   

  	
   

  	
   

  
	
  Cancellation Fee

  	
   

  	
  $600 Homeowners

  
	
   

  	
   

  	
  $300 Renters

  
	
   

  	
   

  	
   

  
	
  Cost of Living
  Analysis

  	
   

  	
  $35 per analysis

  



 


6





















 


Expense Administration


 


	
  For Additional
  Calendar Year(s)

  	
   

  	
  $150 per
  additional calendar year (applicable all files)

  
	
   

  	
   

  	
   

  
	
  Interest on
  Monies Funded

  	
   

  	
  Wall Street
  Journal Prime plus 11⁄2%

  
	
   

  	
   

  	
   

  
	
  Special Property
  Fee

  	
   

  	
  Standard Fee
  plus $250/Month

  
	
   

  	
   

  	
   

  
	
  Travel
  Arrangements

  	
   

  	
  $75 per file

  
	
   

  	
   

  	
   

  
	
  Communication
  Fee

  	
   

  	
  $70 per file
  (applicable to all BVO files)

  



 


Other
Administrative Charges


 


A.           International
Wire Transfer Charges


B.             Domestic
Wire Transfer Charges


C.             One
time Express Mail Charges


D.            Expedited
Employee Payment (Out Of Cycle)


E.              Title
and Closing Services


F.              Accounting,
Reconciliation, Research


 


SECTION 2       Billing
Procedures


 


A.                        PRIMACY will be entitled to
receive (1) a Service Fee for each Home transferred to PRIMACY hereunder; (2) the
non-compliance fee (Article 4, Section 1) which will be reconciled as
described below (item D); (3) a Special Property Fee for each Special
Property transferred to PRIMACY; (4) fees and charges for other services
as provided; (5) reimbursement of Home Sale Program Costs and applicable
administrative charges expended by PRIMACY pursuant to the provisions of this
Agreement; (6) reimbursement of Equity paid to Employees and for the
payoff of any mortgage loans;  (7) interest
on all funds expended by PRIMACY; (8) employee expenses, if any,  paid by PRIMACY as authorized by the Company’s
relocation policy;  (9) and vendor
payments made by PRIMACY for the Company.


 


B.                        The Company will reimburse PRIMACY
all out-of-pocket Costs incurred to expedite payments made to Employees.  In order to expedite Employee payments, PRIMACY
will select ACH deposit, wire deposit or overnight courier service if
necessary.


 


C.                        The
Company will reimburse PRIMACY all out-of-pocket Costs incurred to perform
on-site inspections deemed necessary by PRIMACY and the Company. PRIMACY will
request and receive approval from the Company before making on-site inspections
where the Company will pay expenses for the on-site visit.  Such authorizations will apply for one
individual unless other persons are authorized.


 


7





















 


D.                        At
least quarterly, PRIMACY will prepare and deliver to the Company an adjustment
invoice for each Home or Special Property for which an adjustment occurred
during the preceding quarter. The adjustment invoice will be in an amount equal
to the adjustment incurred or received (such as a utility credit received after
escrow is closed). A quarterly adjustment will be made of the non-compliance
fee if referral fees are captured on the sale and purchase of homes by the
Employee.


 


E.                          On
any funds that may be advanced by PRIMACY including but not limited to amounts
to pay Equity payments, any mortgage payoffs, and any deposits required from
the Company but not paid within terms specified, the Company will pay PRIMACY
monthly for interest from the date the funds are advanced at a annual rate
equal to Wall Street Journal prime plus one and one half percent (11⁄2%) as part
of the weekly invoice payment, if property related expenses are integrated with
Expense Administration. Otherwise, interest will be paid as incurred and
billed, not to exceed monthly.


 


F.                          After the closing of a sale
of a Home to a buyer, PRIMACY will prepare a final disposition billing in which
PRIMACY will total all costs and charges due to PRIMACY pursuant to this
Agreement, and will then bill or credit the Company for the difference between
that total and the advanced billing amount previously billed and received.  Final disposition billing will be sent to
Company within 60 days after the end of the month in which the closing of a
sale of a Home occurs.


 


G.                        For any direct billing of new
home closing costs through PRIMACY, Company agrees to pay PRIMACY’S invoice for
direct billed new home closing costs within 10 days of receipt.


 


H.                        It is explicitly agreed that the service fee
for any ancillary service will be earned by PRIMACY at the time of initiation. It is further
agreed that the home sale or BVO service fee and non-compliance fee will be
earned by PRIMACY 30 days after
initiation for any home sale or BVO program. The Cancellation Fee (Article 4,
Section 1) shall apply to files cancelled within 30 days of initiation.
Notwithstanding the preceding, for all programs involving a bundled fee, the
bundled fee, and any applicable non-compliance fee, will be earned by PRIMACY should PRIMACY provide any one or more of the services that are a part of that bundled
fee program.  The individual fees, the
bundled service fee and non-compliance fee will be billed to Company, at time
of initiation, as part of the weekly billing process.


 


ARTICLE 5     Default


 


The following shall be
events of default hereunder;


 


A.                        the
failure or refusal by PRIMACY or the Company to perform any of their respective
obligations under this Agreement, including but not limited to, the payment of
monies due in a timely manner or the deterioration of their financial status.


 


B.                        the filing of a petition of
bankruptcy or insolvency or for reorganization under the bankruptcy laws of the
United States or under any insolvency act of any state or the making of an
assignment for the benefit of creditors;


 


C.                        the default in the punctual
payment of amounts due hereunder to a party and such default continues for 15
days after written notice thereof; and


 


8





















 


D.                        the filing of involuntary
proceedings under any such bankruptcy law or for the dissolution of a party or
the appointment of a receiver or trustee for all or substantially all of the
Homes or Special Properties of a party and such proceedings are not dismissed
or such appointment vacated within 60 days after the institution or appointment
thereof.


 


ARTICLE 6     Remedies
for Default


 


A.                        In the event of a default by
either party, then the non-defaulting party shall be entitled to all remedies
as provided in law and equity, including, but not limited to, the right to
immediately terminate this Agreement.


 


B.                        In
addition, in the event of the Company’s default for failure to pay PRIMACY in a
timely manner, PRIMACY shall be entitled to elect any one or more of the
following remedies:


 


1.                          PRIMACY
may record in its own name, or that of an affiliate, the legal title to any and
all property subject to this Agreement. 
The proceeds from any resale of such property shall be credited to the
sums due from the Company.


 


2.                          PRIMACY
may declare the entire amount of all sums due under this Agreement immediately
due and payable.  In such event, all sums
not immediately paid shall earn interest at the maximum rate allowed by law.


 


3.                          PRIMACY
shall be entitled to recover all costs, including reasonable attorney fees,
incurred in collecting all sums due.


 


4.                          PRIMACY
may assign to the Company, and the Company shall be deemed to have accepted
such assignment, any Contract of Sale entered into with an Employee.  Any such assignment shall take effect upon PRIMACY
so notifying the Company in accordance with the Agreement. Thereafter, the
Company shall assume all responsibility under said assignment of Contract of
Sale(s) and PRIMACY shall be relieved of all responsibility.


 


C.                        The rights and remedies of the
respective parties are cumulative. 
Neither party need resort to any particular right or remedy before
exercising or enforcing any other right or remedy.


 


ARTICLE 7     Notices


 


A.                        All
notices and other forms of communication between the parties relating to this
Agreement, unless otherwise stated herein, shall be in writing and shall be
deemed to have been received when delivered in person, two (2) business
days after being sent via overnight courier, or three (3) business days
after being deposited in the United States mail, postage prepaid, and addressed
as follows:


 


	
  TO:

  	
   

  	
  PRIMACY
  RELOCATION, LLC

  	
   

  	
  TO:

  	
   

  	
  Friendly
  Ice Cream Corporation

  
	
   

  	
   

  	
  Attn: Matthew Spinolo

  	
   

  	
   

  	
   

  	
  Attn: Garrett J. Ulrich

  
	
   

  	
   

  	
  6077 Primacy
  Parkway, Suite 300

  	
   

  	
   

  	
   

  	
  1855 Boston Road

  
	
   

  	
   

  	
  Memphis, TN
  38119

  	
   

  	
   

  	
   

  	
  Wilbraham, MA
  01095

  
	
   

  	
   

  	
  Tel # (901) 291-5510

  	
   

  	
   

  	
   

  	
  Tel # (413) 543-2400
  x2012

  
	
   

  	
   

  	
  Fax # (901) 291-5710

  	
   

  	
   

  	
   

  	
  Fax # (413) 543-3186

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  E-Mail: Matt.Spinolo@primacy.com

  	
   

  	
   

  	
   

  	
  E-Mail: Gary.Ulrich@friendlys.com

  



 


9





















 


B.                        Either
party may change its address, telephone number or fax number for notice
purposes by so notifying the other party in accordance with this Article.


 


ARTICLE 8     Subsidiaries
and Affiliates


 


If the Company directs PRIMACY
to provide its services hereunder to any subsidiary, affiliate or other entity,
PRIMACY is hereby authorized to provide such services. PRIMACY’S receipt of an
initiation to provides services shall be conclusive evidence that the Company
is directing PRIMACY to provide service under this Agreement. The Company is
responsible for and guarantees all payments due PRIMACY under the provisions of
this Agreement should any such entity not pay PRIMACY within the terms of this
Agreement.


 


ARTICLE 9     Governing
Law


 


The provisions of this
Agreement shall be governed by the laws of the State of Tennessee.


 


ARTICLE 10     Attorneys’
Fees


 


In any action or
proceeding arising out of any matter associated with this Agreement, the
prevailing party shall be entitled to reimbursement of its reasonable attorneys’
fees and costs from the other party.


 


ARTICLE 11     Captions


 


The captions in this
Agreement are for convenience and reference only and are not intended as part
of this Agreement.


 


ARTICLE 12     Entire
Agreement


 


This Agreement and the attached
Addenda represents the entire agreement between the parties and supersedes all
prior Agreements and communications. 
This Agreement may not be amended, modified, altered, or changed in any
way whatsoever, except in writing signed by all parties.


 


ARTICLE 13     Security


 


It is expressly
understood that PRIMACY shall be advancing significant sums of money under this
Agreement.  In this regard, should PRIMACY
deem itself insecure concerning the payment of monies under this Agreement,
then PRIMACY shall be entitled to suspend any further advancement of monies
until the Company has provided PRIMACY with adequate evidence of financial
security.


 


ARTICLE 14     Waiver


 


The failure by either
party in one or more instances to insist upon the other party’s strict
compliance with any provision of this Agreement shall not be deemed a waiver or
relinquishment of the right to assert or rely upon any such provision on any
future occasion.


 


ARTICLE 15     Authority


 


Each of the parties
executing this Agreement warrants and represents to the other party that the
executing party has complete corporate power and authority to execute this
Agreement.  Neither party shall be
required to make further inquiry into the other’s authority.


 


ARTICLE 16     Counterparts


 


This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all such counterparts together shall constitute but one
agreement.


 


10





















 


ARTICLE 17     Severability


 


In the event any term or
provision of this Agreement is determined to be illegal, unenforceable, or
invalid for any reason whatsoever, such illegality, unenforceability, or
invalidity shall not affect the remaining terms and provisions of this
Agreement.


 


ARTICLE 18     Nondiscrimination


 


Unless exempt under the rules and
regulations of the Secretary of Labor or other proper authority, this Agreement
is subject to applicable laws and executive orders relating to equal
opportunity and nondiscrimination in employment.


 


This Agreement for
Relocation Services shall expire if not fully executed by all parties within 90
days of issue date (March 31, 2004). 
This Agreement for Relocation Services supercedes any other Agreement
for Relocation Services executed prior to the date of this Agreement.


 


In witness whereof, the
parties have executed this Agreement effective as of the day and year first
above written.


 


 


	
  PRIMACY
  RELOCATION, LLC

  	
  Friendly
  Ice Cream Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  by

  	
  /s/ Gilbert O.
  Saunders, Jr.

  	
   

  	
  by

  	
  /s/ Garrett J.
  Ulrich

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  title

  	
  Director, Legal
  Department

  	
   

  	
  title

  	
  Vice President,
  Human Resources

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  date

  	
  4-16-04

  	
   

  	
  date

  	
  4/13/04

  	
   

  
											



 


11





















 


Addendum 1


 


Home
Sale – Company Funded Equity – EAS Integrated


 


When
the Company desires to use PRIMACY’S Home Sale Program in connection with the
relocation of an Employee, the following procedures will be followed:


 


Section 1                     Initiation of Employee Into the Home Sale Program


 


The
Company will notify PRIMACY in writing (the “Relocation Authorization”) that
the Employee is to be transferred and that the Company desires PRIMACY to make
an offer to purchase the Employee’s Home. 
Within two Business Days, PRIMACY will telephone the Employee to explain
the Company’s relocation program pursuant to the Agreement for Relocation
Services.


 


Section 2                     Inspections and Title Work


 


PRIMACY
will promptly order a title search on the Home or Special Property by a title
company selected by PRIMACY.


 


PRIMACY
will also order inspections on the Home or Special Property to include a
general home inspection and wood boring insect inspection. Other inspections as
deemed appropriate and necessary by PRIMACY (other inspections recommended on
an appraisal or broker market analysis, radon inspections as indicated by the
Environmental Protection Agency map of radon zones, etc.) will also be
ordered.  Such inspections and tests will
be performed by qualified companies.  The
results of all such inspections will be disclosed to prospective purchasers of
the Home or Special Property.


 


Section 3                     Home Marketing Assistance


 


PRIMACY
will compile and send to the Employee lists of qualified real estate brokers or
agents in the area in which the Home or Special Property is located.


 


The
Employee will choose a real estate agent from PRIMACY’S list or may elect to
use another agent. If the Employee uses another agent home sale cost
performance and the execution of the 11 step I.R.S. approved process may be
more difficult to achieve.


 


The
required marketing period will be 60 days, unless otherwise authorized by the
Company.


 


Section 4                     Appraisal Procedure


 


PRIMACY
will compile and send to the Employee lists of qualified appraisers in the area
in which the Home or Special Property is located.


 


The
Employee will choose two appraisers from PRIMACY’S list and the average of the
two appraisals will be the Appraised Value of the Home or Special
Property.  If the difference between the
two appraisals exceeds 5% of the higher value, a third appraisal from the third
appraiser selected by the Employee will be obtained. The average of the three
appraisals will constitute the Appraised Value.


 


Section 5                     Payments of Equity


 


The
Employee’s Equity (or balance if Equity advances have already been made) will
be paid to Employee by the Company, at PRIMACY’S direction, within 5 Business
Days after the Date of Possession.


 


12





















 


Section 6                     Responsibility for the Home or Special Property


 


From
and after the Date of Possession, PRIMACY will be responsible for and will
assume all the obligations of ownership of the Home or Special Property,
including without limitation payment of mortgages, taxes, insurance and
maintenance of the yard, interior and exterior of the property.  All such obligations will be performed in a
diligent, prudent manner.  All expenses
incurred by PRIMACY in performance of its obligations under this Section 6
will be deemed Home Sale Program Costs.


 


Section 7                     Procedures
for Resale


 


Upon receipt from the
Employee of a fully executed Contract of Sale and any additional documents and
information required and after any valid third party offers have terminated
without sale, PRIMACY will immediately list the Home for sale and will be
entitled to accept any offer which it deems satisfactory under prevailing
market conditions provided that PRIMACY will not accept any offer which is less
than 95% of the Appraised Value of the Home without prior approval of the
Company.


 


PRIMACY will be
authorized to make repairs and/or capital improvements to the Home in a
cumulative amount of up to 1% of the Appraised Value of the Home. Any repairs
and/or capital improvements in excess of said amount will require specific
authorization from the Company.  However,
if in PRIMACY ‘s judgment, repair work of an emergency nature is necessary, PRIMACY
is authorized to have such repair work performed without prior authorization.


 


PRIMACY may, at its
discretion, allow a third party to assume and agree to pay, by means of a
substitution of liability, any mortgages encumbering the Home, and PRIMACY
agrees to protect and hold harmless the Employee against any loss or expense
incurred by reason of such loan assumption.


 


Upon a Resale Closing,
the sale proceeds will be adjusted for Closing Costs typically assessed and
apportioned in the location where the Home is located. PRIMACY will be
responsible for ensuring that all such costs are apportioned properly.  Copies of the signed closing sheets will be
sent to the Company.


 


Section 8                     Mortgage Payoffs


 


The
Company may request PRIMACY to pay off any mortgage at any time.


 


Section 9                     Transfer of Title


 


PRIMACY will, as
designated by Company, arrange to have record title to a Home or Special
Property transferred to Company or its designee. Any transfer costs incurred,
including title insurance premiums, will be billed to Company as a direct
expense. Upon the sale of the Home Primacy shall arrange to have record title
transferred by Company or its designee to the new purchaser. Any transfer costs
incurred on the sale to the new purchaser will be billed to Company as a direct
expense. Company and its designee agree to cooperate in executing or providing
any documents reasonably required by Primacy to transfer record title to a new
purchaser.


 


Section 10              Billing and Payment


 


PRIMACY will prepare a
weekly invoice for amounts due which have been incurred.   Upon review and approval of the weekly
invoice by the Company Representative, said expenses will be paid by the
Company via ACH or wire transfer deposited in PRIMACY’S designated bank
account. PRIMACY will pay said expenses and Employee reimbursements upon
receipt of the ACH or wire deposit.


 


Company will pay any
amounts due with respect to final disposition billing as part of the weekly
invoice payment described above.


 


It is explicitly agreed that
service fees and any non-compliance fee will be earned by PRIMACY at the time
of initiation for any ancillary services and 30 days after initiation for any
homesale program.


 


13





















 


Addendum 2


 


BVO
– Company Funded Equity – EAS Integrated


 


When
the Company desires to use PRIMACY’S Buyer Value Option (“BVO”) program in
connection with the relocation of an Employee, the following procedures will be
followed:


 


Section 1                     Initiation of Employee Into the BVO Program


 


The
Company will notify PRIMACY in writing (the “Relocation Authorization”) that
the Employee is to be transferred and that the Company desires PRIMACY to make
an offer to purchase the Employee’s Home. 
Within two Business Days, PRIMACY will telephone the Employee to explain
the Company’s relocation program pursuant to the Agreement for Relocation
Services.


 


Section 2                     Inspections and Title Work


 


PRIMACY
will promptly order a title search on the Home or Special Property by a title
company selected by PRIMACY.


 


PRIMACY
will also order inspections on the Home or Special Property to include a
general home inspection and wood boring insect inspection. Other inspections as
deemed appropriate and necessary by PRIMACY (other inspections recommended on a
broker market analysis, radon inspections as indicated by the Environmental
Protection Agency map of radon zones, etc.) will also be ordered.  Such inspections will and tests will be
performed by qualified companies.  The
results of all such inspections will be disclosed to prospective purchasers of
the Home or Special Property.


 


Section 3                     Home Marketing Assistance


 


PRIMACY
will compile and send to the Employee lists of qualified real estate brokers or
agents in the area in which the Home or Special Property is located.


 


The
Employee will choose a real estate agent from PRIMACY’S list or may elect to
use another agent. If the Employee uses another agent home sale cost
performance and the execution of the 11 step I.R.S. approved process may be
more difficult to achieve.


 


Required
marketing period will be 60 days, unless otherwise authorized by the Company.


 


Section 4                     Payments of Equity


 


The
Employee’s Equity (or balance if Equity advances have already been made) will
be paid to Employee by the Company, at PRIMACY’S direction, within 5 Business
Days after the Date of Possession.


 


Section 5                     Responsibility for the Home or Special Property


 


From
and after the Date of Possession, PRIMACY will be responsible for and will
assume all the obligations of ownership of the Home or Special Property,
including without limitation payment of mortgages, taxes, insurance and
maintenance of the yard, interior and exterior of the property.  All such obligations will be performed in a
diligent, prudent manner.  All expenses
incurred by PRIMACY in performance of its obligations under this Section 5
will be deemed Home Sale Program Costs.


 


Section 6                     Mortgage Payoffs


 


The
Company may request PRIMACY to pay off any mortgage at any time.


 


14





















 


Section 7                     Procedures
for Resale


 


Upon receipt from the
Employee of a fully executed Contract of Sale and any additional documents and
information required and after any valid third party offers have terminated
without sale, PRIMACY will immediately list the Home for sale and will be
entitled to accept any offer which it deems satisfactory under prevailing
market conditions provided that PRIMACY will not accept any offer which is less
than 95% of the Appraised Value of the Home without prior approval of the
Company.


 


PRIMACY will be
authorized to make repairs and/or capital improvements to the Home in a
cumulative amount of up to 1% of the Appraised Value of the Home. Any repairs
and/or capital improvements in excess of said amount will require specific
authorization from the Company.  However,
if in PRIMACY ‘s judgment, repair work of an emergency nature is necessary, PRIMACY
is authorized to have such repair work performed without prior authorization.


 


PRIMACY may, at its
discretion, allow a third party to assume and agree to pay, by means of a
substitution of liability, any mortgages encumbering the Home, and PRIMACY
agrees to protect and hold harmless the Employee against any loss or expense
incurred by reason of such loan assumption.


 


Upon a Resale Closing,
the sale proceeds will be adjusted for Closing Costs typically assessed and
apportioned in the location where the Home is located. PRIMACY will be
responsible for ensuring that all such costs are apportioned properly.  Copies of the signed closing sheets will be
sent to the Company.


 


Section 8                     Transfer of Title


 


PRIMACY will, as
designated by Company, arrange to have record title to a Home or Special
Property transferred to Company or its designee. Any transfer costs incurred,
including title insurance premiums, will be billed to Company as a direct
expense. Upon the sale of the Home Primacy shall arrange to have record title
transferred by Company or its designee to the new purchaser. Any transfer costs
incurred on the sale to the new purchaser will be billed to Company as a direct
expense. Company and its designee agree to cooperate in executing or providing
any documents reasonably required by Primacy to transfer record title to a new
purchaser.


 


Section 9                     Billing and Payment


 


PRIMACY will prepare a
weekly invoice for amounts due which have been incurred.   Upon review and approval of the weekly
invoice by the Company Representative, said expenses will be paid by the
Company via ACH or wire transfer deposited in PRIMACY’S designated bank
account. PRIMACY will pay said expenses and Employee reimbursements upon
receipt of the ACH or wire deposit.


 


Company will pay any
amounts due with respect to final disposition billing as part of the weekly
invoice payment described above.


 


It is explicitly agreed
that service fees and any non-compliance fee will be earned by PRIMACY at the
time of initiation for any ancillary services and 30 days after initiation for
any homesale program.


 


Section 10              Failed Resale Transactions


 


If
a Home fails to resell after PRIMACY contracts to buy the Home or Special
Property from the Employee, the Home or Special Property will be an inventoried
Home Sale Program property and the service fee and operational procedures for
the Home or Special Property will be the same as that for an inventory property
in the Home Sale Program.


 


15





















 


Exhibit A


 


Definitions


 


A.           “Appraised
Value” means the offer price extended to an Employee, which price usually shall
be established as the average of two independent appraisals, performed by
qualified independent appraisers.


 


B.             “Contract
of Sale” means the contract between Primacy and the Employee outlining the
terms and conditions of Primacy’s purchase of the Employee’s Home.


 


C.             “Broker
Market Analysis” means a written market analysis, prepared by a real estate
agent knowledgeable as to real estate values and market conditions in the area
of the subject Home, based on recent comparable sales and listings with support
data.


 


D.            “Business
Day” means a day that is not a Saturday, Sunday, or a PRIMACY, Company or
federal holiday.


 


E.              “Date
of Possession” shall be the date PRIMACY assumes ownership responsibility for a
Home, which is the later of the contract date or the vacate date.


 


F.              “Designated
Representative” means an individual designated by the Company to perform
certain obligations herein.  The
Designated Representative shall be Garrett J. Ulrich with the address set forth
in Article 7, or such other individual designated by the Company to act in
his absence.


 


G.             “Direct
Costs” are all Home Sale Program costs except administration costs and interest
expense.


 


H.            “Employee”
means an individual designated by the Company whose relocation by PRIMACY has
been approved by the Company.


 


I.                 “Equity”
means an amount equal to the difference between (1) the Contract of Sale
price of the Home and (2) the amount of the sum of all outstanding
balances under all deeds of trust, mortgages and other liens on the Home, any
costs required to cure defects in title and any amounts for work required to be
done to the Home as agreed to by the Employee, and any prorated items such as
interest, property taxes, bonds, assessments and homeowner dues.


 


J.                “Estimate
of Most Probable Sales Price” means the price at which a Home or a Special
Property would most probably sell for cash or cash equivalent, “as is”, if
exposed to the market for a reasonable marketing time not to exceed 120
days.  Implicit in this definition are
the following conditions: both parties are well informed and acting in their best
interests; and financing is on terms generally available in the community.


 


K.            “Fixtures”
shall mean all items of personal property that are affixed to or used in
connection with the Premises, including but not limited to: built in kitchen
appliances including refrigerator, range, oven, microwave, dishwasher, disposal
and trash compactor; landscaping; fences; swimming pool; swimming pool
equipment; window shades; venetian blinds; draperies; curtain rods; storm
windows and doors; combination windows and doors; fireplace doors and
equipment; garage door openers; burglar and fire alarm systems and components;
attached shelving and mirrors; television antenna; electrical fixtures;
plumbing fixtures; heating and air conditioning systems and units; lighting fixtures;
carpeting permanently attached to the floors.


 





















 


L.              “Home”
means a single family residence, condominium or townhouse owned by an Employee,
the Employee’s spouse or a dependent living in the same home with the Employee,
and used as his/her principal residence; “Home” shall exclude cooperatives,
multiple dwellings, mobile homes, manufactured housing, any property which
exceeds five acres, any property located outside of the fifty United States; or
any property whose Appraised Value is established by means other than an
appraisal or any property whose appraised value exceeds $500,000 or where an
appraisal has been obtained that did not use the Employee Relocation Council’s
approved format, or any property subject to a directed offer where the Company
has directed PRIMACY to make an offer, usually for an amount which would exceed
the most probable selling price.  The
term “Home” shall include all Fixtures normally sold with a Home in accordance
with local custom.  Any additional real
property owned by an Employee shall not be deemed to be part of the Employee’s
property for the purposes of this Agreement; however, such additional property
may be treated as a “Special Property” as defined.


 


M.         “Home
Sale Program Costs” means the sum of the following with respect to a Home or
Special Property:


 


1.               Acquisition
costs including all costs incurred by PRIMACY to acquire the Employee’s Home or
Special Property, including but not limited to, relocation appraisal fees,
inspections and or testing costs, title search, certificates of occupancy, bank
information fees and all other miscellaneous acquisition costs, including
liabilities, and expenses incurred by PRIMACY in connection with the
acquisition of the Home or Special Property.


 


2.               Recurring
Carrying Costs including all recurring costs incurred by PRIMACY to carry or
manage the Home after its acquisition and until the close of its resale,
including, but not limited to, mortgage interest, equity interest, property
taxes, utilities, insurance, maintenance, condominium or homeowner association
common area fees, and all other miscellaneous recurring carrying costs,
including liabilities, and expenses incurred by PRIMACY in connection with
managing the Home or Special Property.


 


3.               Non-recurring
Carrying Costs including all non-recurring costs incurred by PRIMACY to carry
or manage the Home or Special Property after its acquisition and until the
close of its resale, including, but not limited to, repairs, capital
improvements, mortgage assumption fees, assessments, rental management fees,
and all other miscellaneous non-recurring carrying costs, including
liabilities, and expenses incurred by PRIMACY in connection with managing the
Home or Special Property.


 


4.               Disposition
Selling Costs including all costs incurred by PRIMACY in connection with the
resale of the Home or Special Property to a third party, including, but not
limited to, brokers’ commissions, title costs, cost to cure claims of title
defects, attorney fees, escrow fees, document preparation fees, pre-payment penalties,
mortgage release fees, state or local transfer and recording fees, closing and
other legal fees, F.H.A. or V.A. points, monetary concessions and incentives,
gains or losses on sale, survey charges, and all other resale costs, including
liabilities, and expenses incurred by PRIMACY in connection with the costs of
disposition and selling the Home or Special Property.


 


5.               Administrative
costs are all fees and charges incurred by PRIMACY administering its Home Sale
Program that are not solely related to a specific Home or Special Property,
including but not limited to, Home Sale Program fees, interest charges on funds
utilized other than interest on equity advances, and any other fees for
ancillary services.


 


Credits
received by PRIMACY in connection with the rental of the Home or any gain on
sale shall be calculated as a credit to the Company to offset Home Sale Program
Costs.


 


N.            “Inventory
Period” is the period of time from the Date of Possession to the Resale
Closing.


 





















 


O.            “Marketable
Title” means one that does not contain a defect, outstanding interest, or claim
which may conceivably operate to defeat or impair the owner’s title.  Issuance of a title insurance policy shall be
conclusive evidence of marketable title.


 


P.              “Resale
Closing” means the consummation of the sale of a Home or Special Property
acquired by PRIMACY to a third party.


 


Q.            “Service
Fee” is the agreed-upon fee payable by the Company to PRIMACY that applies for
services performed hereunder with respect to the Homes of Employees, whether or
not a Home or Special Property is transferred to the Company or its
designee.  The amount of the Service Fee
is set forth in Article 4.


 


R.             “Special
Property” means any property owned by an Employee which is not within the
definition of “Home” set forth above, but which is authorized in writing by the
Company to be a part of the Home Sale Program. 
A Special Property shall be a “Home” for all purposes other than
determination of the applicable fee.


 


S.              “Special
Property Fee” means the fee payable by the Company to PRIMACY for services
performed hereunder with respect to any Special Property.  The amount of the Special Property Fee is set
forth in Article 4.