EMPLOYEE.
(B)
FRANCHISE AGREEMENT.
BUYER AND FRANCHISOR (A WHOLLY-OWNED DIRECT
OR INDIRECT SUBSIDIARY OF PARENT), SHALL EXECUTE A FRANCHISE AGREEMENT WITH A
TERM FROM THE EFFECTIVE DATE THROUGH [*****************] (THE "FRANCHISE
AGREEMENT").
THE FRANCHISE AGREEMENT SHALL BE IN SUBSTANTIALLY THE SAME FORM AS
THE FRANCHISE AGREEMENT BETWEEN THE FRANCHISOR AND M&J, BUYER'S AFFILIATE, FOR
THE DETROIT, MICHIGAN TERRITORY.
SELLER FURTHER ACKNOWLEDGES AND AGREES THAT
BUYER SHALL HAVE THE RIGHT TO SETOFF OR RECOUP AGAINST AMOUNTS THAT MAY BECOME
DUE TO BUYER UNDER THIS AGREEMENT ANY AMOUNTS NOW OR HEREAFTER OWING BY BUYER TO
FRANCHISOR OR ITS AFFILIATES UNDER THE FRANCHISE AGREEMENT AS PROVIDED IN THE
FRANCHISOR CONSENT.
(C)
CONSENTS AND APPROVALS.
ALL CONSENTS, APPROVALS OR AUTHORIZATIONS
OF ANY GOVERNMENTAL AGENCY, THE LANDLORD NAMED IN THE FACILITIES LEASE AND ANY
OTHER PERSON WHOSE APPROVAL IS REQUIRED TO ASSIGN AND CONVEY TO BUYER THE
ASSIGNED CONTRACTS AND ANY OTHER
18
PURCHASED ASSETS SHALL HAVE BEEN OBTAINED ON TERMS SATISFACTORY TO BUYER AND
SHALL BE IN FULL FORCE AND EFFECT; AND, EXCEPT AS CONTEMPLATED IN SECTION
4.3(D), ALL PERMITS REQUIRED TO ALLOW BUYER TO CONDUCT THE OPERATIONS OF THE
BUSINESS FOLLOWING THE EFFECTIVE DATE SHALL HAVE BEEN ASSIGNED TO BUYER BY
SELLER OR OTHERWISE OBTAINED BY BUYER.
SECTION 5
ADDITIONAL COVENANTS AND AGREEMENTS
5.1
INDEMNITY OF M&J REGARDING GUARANTEE OF FACILITIES LEASES.
BUYER
IS ACQUIRING, BY WAY OF ASSIGNMENT, THE LEASEHOLD INTEREST OF SELLER UNDER THE
FACILITIES LEASE.
PARENT IS OR MAY BE A GUARANTOR OR OTHERWISE OBLIGATED FOR
THE PERFORMANCE BY THE TENANT OR LESSEE NAMED IN THE FACILITIES LEASE, WHICH
TENANT OR LESSEE WILL INCLUDE BUYER OR ITS AFFILIATES FROM AND AFTER THE
EFFECTIVE DATE, AND PARENT MAY NOT BE PERMITTED TO MODIFY OR CANCEL ITS GUARANTY
OF THE FACILITIES LEASE IN CONNECTION WITH THE ASSIGNMENT OF THE FACILITIES
LEASE.
ACCORDINGLY, PARENT MAY REMAIN LIABLE ON THE FACILITIES LEASE IN THE
EVENT BUYER IS UNABLE TO PERFORM THEREUNDER AS REQUIRED IN THE ASSIGNMENT OF
LEASE.
IN CONSIDERATION OF THE TRANSFERS CONTEMPLATED IN THIS AGREEMENT AND THE
ASSIGNMENT OF THE FACILITIES LEASE, IF AND FOR SO LONG AS PARENT IS A GUARANTOR
OF THE FACILITIES LEASE, M&J AGREES AND DOES HEREBY INDEMNIFY AND AGREE TO HOLD
PARENT HARMLESS OF AND FROM ANY CLAIMS MADE BY THE LANDLORD NAMED IN THE
FACILITIES LEASE BASED ON A BREACH BY BUYER OF SUCH FACILITIES LEASE; PROVIDED,
HOWEVER, THE AGGREGATE LIABILITY OF M&J HEREUNDER IN RESPECT TO THE FACILITIES
LEASE SHALL BE AND IS LIMITED TO THE SUM OF [***************************].
5.2
NON-SOLICITATION.
EXCLUDING PERSONS EMPLOYED BY SELLER IN
CONNECTION WITH THE BUSINESS TO WHOM BUYER MAY MAKE OFFERS OF EMPLOYMENT AS
PROVIDED FOR IN SECTION 4.5(A), EXCEPT AS OTHERWISE AGREED BY SELLER AND BUYER,
BUYER AND SELLER, ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE AFFILIATES, AGREE
NOT TO SOLICIT, RECRUIT OR HIRE ANY EMPLOYEES OF THE OTHER PARTY, OR THE OTHER
PARTY'S AFFILIATES, FOR SO LONG AS THE FRANCHISE AGREEMENT REMAINS IN EFFECT OR,
IF A SHORTER PERIOD OF TIME, FOR SIX (6) MONTHS FOLLOWING