In this task, you're given a passage that represents a legal contract or clause between multiple parties. Your job is to write questions that ask the basic details corresponding to the legal contracts or clauses. Avoid questions that can be answered correctly without actually understanding the paragraph, and which might have multiple answers. The answer to each question should be unambiguous.

Input: Consider Input: FRANCHISE AGREEMENT                                                   TABLE OF CONTENTS

1.       INTRODUCTION AND DEFINITIONS.......................................1          1.A.     INTRODUCTION..............................................1          1.B.     DEFINITIONS...............................................3

2.       GRANT OF FRANCHISE RIGHTS..........................................7          2.A.     GRANT OF FRANCHISE........................................7          2.B.     PRINCIPAL OWNERS' GUARANTY................................7          2.C.     TERRITORIAL RIGHTS........................................8          2.D.     RESERVATION OF RIGHTS.....................................8          2.E.     OPTION TO DEVELOP OTHER SITES WITHIN THE TERRITORY........9          2.F.     TERM OF FRANCHISE.........................................9

3.       OTHER DISTRIBUTION METHODS........................................10          3.A.     SPECIAL DISTRIBUTION ARRANGEMENTS........................10

4.       FRANCHISE AND OTHER FEES..........................................10          4.A.     INITIAL FRANCHISE FEE....................................10          4.B.     DEFERRAL OF FRANCHISE FEE................................10          4.C.     ROYALTY FEE..............................................10          4.D.     ADVERTISING FUND FEE.....................................11          4.E.     TRANSFER FEE.............................................11          4.F.     FEES FOR ADDITIONAL FRANCHISES...........................11          4.G.     FEES FOR RENEWAL OF FRANCHISE............................12          4.H.     PAYMENT BY ELECTRONIC FUNDS TRANSFER.....................12          4.I.     LATE CHARGE AND INTEREST. ...............................12

5.       RENEWAL OF FRANCHISE TERM.........................................13          5.A.     FRANCHISEE'S RIGHT TO A SUCCESSOR FRANCHISE..............13          5.B.     RELEASES.................................................14          5.C.     NOTICES..................................................15

6.       TRADEMARKS AND LIMITATIONS........................................15          6.A.     OWNERSHIP OF MARKS.......................................15          6.B.     DISCONTINUANCE OF USE OF MARKS...........................16          6.C.     CORPORATE NAME...........................................16          6.D.     TERMINATION..............................................17          6.E.     TRADEMARK ENFORCEMENT....................................17          6.F.     USE OF SERVICE MARK......................................17

7.       SELECTION OF FRANCHISE LOCATION...................................18          7.A.     SITE SELECTION...........................................18          7.B.     LEASE....................................................18          7.C.     RELOCATION...............................................20

8.       DEVELOPMENT OF UNIT...............................................21          8.A.     UNIT DESIGN SPECIFICATIONS AND CONSTRUCTION PLANS........21          8.B.     DEVELOPMENT OF THE UNIT..................................21          8.C.     EQUIPMENT, FIXTURES, FURNISHINGS, AND SIGNS..............22          8.D.     EXCEPTIONS TO EQUIPMENT OR FURNISHINGS...................22          8.E.     CONSTRUCTION ASSISTANCE..................................23          8.F.     LIMITATION ON LIABILITY..................................23

9.       UNIT OPENING......................................................24          9.A.     COMMENCEMENT OF OPERATIONS...............................24

10.      FRANCHISEE TRAINING...............................................24          10.A.    INITIAL TRAINING.........................................24          10.B.    EMPLOYEE TRAINING........................................25          10.C.  ON-SITE TRAINING...........................................26          10.D.    COMPANY GROWTH...........................................26          10.E.    RETRAINING PROGRAMS......................................26          10.F.    OTHER GUIDANCE...........................................26

11.      ADVERTISING AND OTHER PROMOTIONS..................................27          11.A.    PROVIDING OF ADVERTISING MATERIALS.......................27          11.B.    CONTROL OF ADVERTISING PROGRAMS AND CONCEPTS.............27          11.C.    SEGREGATION OF ADVERTISING FUND..........................28          11.D.    SUSPENSION OF ADVERTISING FUND FEES......................29          11.E.    FRANCHISEE'S REQUIRED ADVERTISING EXPENDITURES...........29          11.F.    USE OF TRADEMARK REFERENCES AND APPROVAL...............                                     OF FRANCHISEE'S MARKETING..............29

12.      ADHERENCE TO UNIFORM STANDARDS....................................30          12.A.    STANDARDS AND OPERATIONS MANUAL..........................30          12.B.    CONFIDENTIALITY OF OPERATIONS MANUAL.....................32          12.C.    INCORPORATION OF OPERATIONS MANUAL INTO AGREEMENT........32          12.D.    MODIFICATIONS/UPDATES OF OPERATIONS MANUAL...............33

13.      UNIT IMAGE AND OPERATION..........................................33          13.A.    CONDITION AND APPEARANCE OF UNIT.........................33          13.B.  UNIT MENU..................................................35          13.C.    ADHERENCE TO APPROVED ITEMS..............................35          13.D.    EXCEPTION PROCESS........................................36          13.E.  PROMOTIONAL ALLOWANCES.....................................37

14.      FRANCHISEE OPERATIONS.............................................37          14.A.    MANAGEMENT...............................................37          14.B.  SUFFICIENT WORKING CAPITAL.................................38          14.C.  FILING OF OPERATIONS AND SALES REPORTS.....................38          14.D.    EMPLOYEE DRESS AND CUSTOMER SERVICE......................38





         14.E.  COMPLIANCE WITH LAWS AND GOOD BUSINESS PRACTICES...........38          14.F.    PAYMENT OF TAXES.........................................39          14.G.    SALE OF PRODUCT..........................................39          14.H.    COOPERATION..............................................39          14.I.    INSURANCE................................................39          14.J.    SUGGESTED RETAIL PRICES..................................40

15.      ACCOUNTING, REPORTS AND FINANCIAL STATEMENTS......................41          15.A.  ESTABLISHMENT OF ACCOUNTING SYSTEM.........................41          15.B.   MAINTENANCE OF RECORDS....................................41

16.      AUDITS AND INSPECTIONS............................................42          16.A.    AUDITS...................................................42          16.B.    RIGHT OF ENTRY AND INSPECTION............................42

17.      TRANSFER, ASSIGNMENT AND REPURCHASE. .............................43          17.A.  BY PRETZEL TIME............................................43          17.B.  BY FRANCHISEE..............................................43          17.C.  CONDITIONS FOR APPROVAL OF TRANSFER........................44          17.D.    TRANSFER TO A WHOLLY-OWNED CORPORATION...................45          17.E.  FORMATION OF A CORPORATION.................................46          17.F.  DEATH OR DISABILITY OF FRANCHISEE..........................47          17.G.    PRETZEL TIME'S FIRST RIGHT OF REFUSAL....................47          17.H.    PUBLIC OR PRIVATE OFFERINGS..............................48

18.      TERMINATION OF AGREEMENT BY FRANCHISEE............................49          18.A.  FRANCHISEE'S RIGHT TO TERMINATE............................49

19.      DEFAULT AND TERMINATION...........................................50          19.A.  EXACT AND COMPLETE PERFORMANCE REQUIRED....................50          19.B.    DEFAULT AND RIGHT TO CURE................................50          19.C.  EXTENSION OF NOTICE........................................50          19.D.  REPEATED BREACHES..........................................50          19.E.    EVENTS OF DEFAULT - 30 DAYS NOTICE - CURABLE DEFAULTS....51          19.F.    EVENTS OF DEFAULT - IMMEDIATE TERMINATION - NO                   RIGHT TO CURE............................................53

20.      RIGHTS AND OBLIGATIONS OF PRETZEL TIME AND FRANCHISEE UPON TERMINATION            OR EXPIRATION OF THE FRANCHISE..................................56          20.A.  AMOUNTS OWED...............................................56          20.B.    DISCONTINUANCE OF MARKS..................................56          20.C.    RETURN OF MATERIALS......................................57          20.D.    TELEPHONE COMPANY........................................57          20.E.    CONFIDENTIAL INFORMATION.................................58          20.F.    LEASING..................................................58          20.G.    COVENANT NOT TO COMPETE..................................58          20.H.  PRETZEL TIME'S RIGHT TO PURCHASE ASSETS OF THE UNIT........59

21.      RELATIONSHIP OF THE PARTIES/INDEMNIFICATION.......................60          21.A.    EXCLUSIVE RELATIONSHIP...................................60          21.B.  NO LIABILITY FOR ACTS OF OTHER PARTY.......................61          21.C.    TAXES....................................................61          21.D.    INDEMNIFICATION..........................................62          21.E.  INDEPENDENT CONTRACTOR.....................................62

22.      PROTECTION OF TRADE SECRETS.......................................63          22.A.  CONFIDENTIAL INFORMATION...................................63          22.B.  DISCLOSURE OF IDEAS AND NEW PROCEDURES.....................64

23.      ENFORCEMENT.......................................................65          23.A.    UNAVOIDABLE DELAYS.......................................65          23.B.    RIGHTS OF PARTIES ARE CUMULATIVE.........................65          23.C.    WAIVER OF OBLIGATIONS....................................65          23.D.    CONTINUING OBLIGATIONS...................................66          23.E.    INVALID OR UNENFORCEABLE PROVISIONS......................66          23.F.  INJUNCTIVE RELIEF..........................................66          23.G.    APPLICABLE LAW...........................................67          23.H.    ENTIRE STATUS OF AGREEMENT...............................67          23.I.    AMENDMENT OF AGREEMENT...................................67          23.J.    HEIRS, SUCCESSORS AND ASSIGNS............................67          23.K.    CONDITIONS AND CONTINGENCIES.............................67          23.L.    WAIVER BY PRETZEL TIME...................................68          23.M.    COSTS AND EXPENSES OF ENFORCEMENT........................68          23.N.    RIGHTS OF PARTIES ARE CUMULATIVE ........................69          23.O.    WAIVER OF JURY TRIAL.....................................69          23.P.  WAIVER OF PUNITIVE DAMAGES.................................69          23.Q.  EXCLUSIVE JURISDICTION.....................................69          23.R.    LIMITATIONS OF CLAIMS....................................69

24.      ACKNOWLEDGMENTS AND REPRESENTATIONS...............................70

25.      CONSTRUCTION......................................................70          25.A.    HEADINGS.................................................70          25.B.  TERMINOLOGY................................................70          25.C.    COUNTERPARTS.............................................71          25.D.  REASONABLENESS.............................................71

26.      SECURITY AGREEMENT................................................70          26.A.    SECURITY INTEREST........................................71          26.B.  DEFAULT REMEDIES UNDER U.C.C...............................72

27.      NOTICES...........................................................72          27.A.    DELIVERY OF NOTICES......................................72





EXHIBITS

         FRANCHISE ACKNOWLEDGMENTS AND REPRESENTATIONS            STATEMENT        . . . . . . . . . . . . . . . . . . . . . . .. A

         PRINCIPAL OWNER, OTHER OWNERS, DESIGNATED PRINCIPAL            OWNERS, UNIT AND MANAGER, SUPERVISING OWNERS AND INITIAL            CAPITALIZATION           . . . . . . . . . . . . . . . .. . . . B

         PERMITTED COMPETITIVE BUSINESSES, FORM DEVELOPMENT            AGREEMENT (FOR SINGLE-UNIT FRANCHISES), IDENTITY OF           DEVELOPER AND DATE OR DEVELOPMENT AGREEMENT               . . . .C

         OWNER'S AND GUARANTOR'S UNDERTAKING AND ASSUMPTION OF                  OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . D

         AUTHORIZATION AGREEMENT FOR PREARRANGED PAYMENTS (DIRECT DEBITS). E

         UNIT SITE AGREEMENT               . . . . . . . . . . . . . . .   F

         COLLATERAL ASSIGNMENT OF TELEPHONE NUMBERS AND LISTINGS       . . G

         MUTUAL CONFIDENTIALITY AGREEMENT                            . .  .H

         TCBY YOGURT PRODUCTS ADDENDUM                        . . . . . .  I

FRAN.AGT 6.5.96

         SATELLITE UNIT ADDENDUM            . . . . .  . . . . . . . . .   J

         RELEASE AGREEMENT                  .  .  . . . . . . . . . . . .  K

         THIRD PARTY ASSIGNMENT AGREEMENT            . . . . . . . . .     L

         SUBLEASE                   .  .  . . . . . . . . . . . . . . .    M

         COLLATERAL ASSIGNMENT OF LEASE              . . . . . . . . .     N

                               PRETZEL TIME, INC.                                FRANCHISE AGREEMENT

         This  agreement is made and entered into this day of , 19  (hereinafter referred  to  as  Effective  Date)  by  and  between  Pretzel  Time,  Inc.,  a Pennsylvania   corporation   with  its  principal  place  of  business  at  4800 Linglestown Road, Suite 202,  Harrisburg,  Pennsylvania  17112 trading and doing business  as  Pretzel  Time  (hereinafter  referred  to  as  Pretzel  Time)  and Franchisee (as defined below) who hereby agrees to the following:

Franchisee:

,

a

,

with its principal address at:

         NOW  THEREFORE,   in  consideration  of  the  mutual  covenants  herein contained,  and  intending  to be legally  bound  hereby,  the parties  agree as follows:

1.       INTRODUCTION AND DEFINITIONS.

         1.A.     INTRODUCTION.

         Pretzel Time and its  Affiliates  (as defined below) have developed and continue to develop methods of operating food service businesses,  including the food  service  business  referred to in this  Agreement  as a Pretzel  Time Unit (defined  below),  which  feature  Products  (defined  below)  for off  premises consumption.  Pretzel Time has established  quality  products and services which will  continue to be a unique  benefit to Pretzel Time and its  Franchisees.  In addition to off-premises dining, Pretzel Time may, in its sole discretion, offer to a Pretzel  Time Unit the right to offer  TCBY  frozen  yogurt  and other TCBY yogurt  products.  Pretzel  Time  Units  operate  at  locations  that  feature a distinctive  food  service  format and Trade Dress  (defined  below) and utilize distinctive  business formats,  specifications,  employee selection and training programs,  signs, equipment,  layouts, unit fronts, operation systems,  recipes,





methods,  procedures,  designs  and  marketing  and  advertising  standards  and formats,  all of which  Pretzel  Time may  modify  from time to time in its sole discretion  (the Pretzel Time System).  Pretzel Time operates,  and franchises certain  qualified  persons and entities to license and grants the  privildge to operate, Pretzel Time Units using the Pretzel Time System and the Marks (defined below).

         Pretzel Time has  developed and perfected a System for providing to the public, at retail, in an efficient manner, a variety of distinctive, hand-rolled soft pretzels,  pretzel-related  products (such as pretzel dogs), beverages, and complimentary  pretzel  toppings.  These  Products and services which comprise a part of the Pretzel  Time System are  delineated  and set forth in detail in the Pretzel Time Operations Manual (hereinafter  Operations Manual). These Pretzel Time Units,  which may include stores,  carts, and kiosks, are known as Pretzel Time Units.

         Franchisee  acknowledges  and agrees that  Pretzel  Time has expended a considerable  amount of time and effort in  developing  and refining the recipes for, the methods of preparation of, the Products.  Pretzel Time may from time to time modify such recipes and methods of preparation, which may include requiring Franchisee  to prepare  pretzels and other  Products  from scratch  mixes and to purchase  prepared food  products from Pretzel Time or an approved  Pretzel Time Affiliate.  Pretzel Time and its Affiliates  currently operate and will continue to operate  Pretzel Time Units  offering and selling the Products.  Pretzel Time franchises  others to operate Pretzel Time Units and other outlets  offering and selling the Products.  Pretzel Time owns, uses,  promotes and franchises certain trade names, trademarks,  service marks and other commercial symbols,  including the trade and service marks,  Pretzel Time and  associated  logos,  which have gained and continue to gain public  acceptance  and goodwill,  and may hereafter create, use and franchise  additional  trademarks,  service marks and commercial symbols in conjunction with the operation of Pretzel Time Units.

         The distinguishing  characteristics of the Pretzel Time System include, but are not limited to, the following:

                  (a) The Pretzel Time trade name and in combination  with other          commercial  symbols owned by Pretzel Time with a color scheme  pattern,          Unit design,  insignia,  slogans,  coordinating  Pretzel Time's overall          operation, retail facilities,  advertising, training, and other related          matters;

                  (b) A developed  marketing  concept and uniform  procedure for          the operation of a Pretzel Time Unit,  including  stylized  designs and          display  facilities  to provide  the  highest  quality of Pretzel  Time          pretzels,  soft  beverages,  toppings and other  Pretzel  Time-approved          products; and

                  (c) Rules of  operation  and a  procedure  for  operating  and          training Franchisees, managers and employees.

         Franchisee  recognizes the benefits to be derived from being identified with and  licensed by Pretzel  Time,  and being able to utilize the Pretzel Time System of retailing  Pretzel Time  Products  and related  products,  service and trademarks which Pretzel Time makes available to its Franchisees. Franchisee has applied  for a  franchise  to operate a Pretzel  Time Unit at the Site  (defined below). Franchisee's application and the Site have been approved by Pretzel Time in reliance upon all of the  representations  made in such  application  and the Franchisee's  Acknowledgments and Representations  Statement, a copy of which is attached hereto as Exhibit A, which shall be executed by Franchisee concurrently with this  Agreement.  Franchisee  desires to operate a Pretzel  Time  Franchise pursuant  to the  provisions  hereof  and  at the  Site  specified  herein,  and Franchisee has had a full and adequate  opportunity to be thoroughly  advised of the terms and conditions of this Franchise Agreement by legal counsel of its own choosing.

         1.B.     DEFINITIONS.

         For  purposes  of this  Agreement,  the  terms  listed  below  have the following meanings: Other terms used in this Agreement are defined and construed in the context in which they occur.

         Affiliate  - Any person or legal entity that  directly or  indirectly owns or  controls  Pretzel  Time,  that  is  directly  or  indirectly  owned  or controlled by Pretzel  Time, or that is under common  control with Pretzel Time. For purposes of this  definition,  control  means the power to direct or cause the direction of the management and policies of an entity.

         Cart - It is a type of Pretzel Time Unit which is  free-standing  and sells Pretzel Time pretzels and other Pretzel  Time-approved  Products which are produced  or  manufactured  at a  co-existing  Kiosk  (defined  below)  or Store (defined below) situated in the Territory.

     Competitive  Business  - A business or  enterprise,  other than a Pretzel Time Unit,  that:  (1) Offers food products  which are the same as or similar to the  products  for  consumer  consumption  off  premises  or other  distribution channels;  or (2) Grants or has granted franchises or licenses or establishes or has  established  joint  ventures  for the  development  and/or  operation  of a business or an enterprise described in the foregoing clause (1).

         Controlling  Interest - An interest,  the ownership of which empowers the holder  thereof to exercise a  controlling  influence  over the  management, policies  or  personnel  of an entity on any issue and shall  prevent  any other person, group, combination,  or entity from blocking voting control on any issue or exercising any veto power. If a limited  partnership,  a general  partnership interest or such percentage of limited partnership interests as shall permit the





replacement or removal of any general  partner.  Without limiting the generality of the  foregoing,  ownership  of forty  percent  (40%) or more of the equity or voting  securities  of a  corporation  or ownership  of any general  partnership interest in a  partnership  or joint  venture  shall be deemed  conclusively  to constitute a  Controlling  Interest in the  corporation,  partnership,  or joint venture, as the case may be.

         Area  Developer's  Agreement  -  Agreement  pursuant to which an area developer  is granted the right to develop one (1) or more Pretzel Time Units in a geographic area in which the Unit is located.

         Franchisee  - The  party  to whom the  Franchise  is  granted  by the Franchisor,  Pretzel Time, Inc. The term is applicable to one or more persons, a corporation or a partnership,  as the case may be. If two or more persons are at any time the Franchisee hereunder,  their obligations and liabilities to Pretzel Time shall be joint and several. References to Franchisee and assignee which are applicable to an individual or individuals  shall mean the Owner (defined below) or Principal  Owners (defined  below) of the equity or operating  control of the Franchisee or the assignee,  if the  Franchisee or the assignee is a corporation or partnership.

         Net  Revenues  - For  purposes  of  this  Agreement,  the  term  Net Revenues  includes all gross sums, monies and other  consideration  received by Franchisee  of every kind and nature from sales and services  made in, upon,  or from any and all retail  Units  operated by  Franchisee  under the Pretzel  Time Marks in his  Territory,  whether  upon credit or for cash,  without  reserve or deduction for inability or failure to collect,  less all refunds and allowances, if any,  given in good faith to  customers,  and any sales,  use or excise taxes which are separately  stated and which Franchisee pays to any federal,  state or local tax authority.

         Immediate  family - (1) The spouse of a person;  and (2) the  natural and  adoptive  parents and natural and  adopted  children  and  siblings of such person and their spouses;  and (3) the natural and adoptive  parents and natural and adopted  children  and  siblings of the spouse of such  person;  and (4) any other member of the household of such person.

         Interest  - Eighteen  percent  (18%) per annum for the number of days overdue or the highest applicable rate allowed by law.

         Kiosk - Is a type of  Pretzel  Time  Unit,  which is a  free-standing enclosed area located within the common area of a mall which can manufacture and sell Pretzel Time pretzels and other Pretzel Time-approved  Products without the co-existence of a Pretzel Time Store within the territory.

         Marks - The  trademarks,  service marks,  logos and other  commercial symbols which Pretzel Time authorizes Franchisee to use to identify the services and/or products offered by Pretzel Time Units, including the mark Pretzel Time and the Trade Dress  (defined  below);  provided that such  trademarks,  service marks,  logos,  other  commercial  symbols  and the Trade  Dress are  subject to modification  and  discontinuance  at Pretzel  Time's  sole  discretion  and may include additional or substitute  trademarks,  service marks, logos,  commercial symbols and Trade Dress as provided in this Agreement.

         Owner - Each person or entity  holding  direct or indirect,  legal or beneficial Ownership Interests (defined below) in Franchisee and each person who has other direct or indirect property rights in Franchisee,  this Agreement, the Franchise or the Unit and as designated  in Exhibit B attached and  incorporated herein.

         Ownership Interests - In relation to a: (i) corporation, the legal or beneficial ownership of shares in the corporation;  (ii) partnership,  the legal or beneficial ownership of a general or limited partnership  interest;  or (iii) trust, the ownership of a beneficial interest of such trust.

         Permanent Disability - A mental or physical disability, impairment or condition  that is  reasonably  expected  to prevent or  actually  does  prevent Franchisee or an Owner of a Controlling  Interest in Franchisee from supervising the management and operation of the Unit for a period of six (6) months from the onset of such disability, impairment or condition.

         Permitted  Competitive  Business  - A business  which  constitutes  a Competitive  Business  and is  disclosed  in  Exhibit  C which  shall be made by Franchisee  and  Owners  as of the date of this  agreement  provided  that  such business does not offer hard or soft pretzels, or yogurt on its menu.

         Pretzel Time Unit  -  A food service business that:

                  (1) offers  Products  for consumer  consumption  off-premises,          provided  that  Pretzel  Time,  may in its sole  discretion,  authorize          and/or require such business to offer TCBY yogurt products  pursuant to          a  Yogurt  Product  Addendum  (defined  below)  or to  operate  Special          Distribution  Arrangements pursuant to a Special Distribution Agreement          (defined below); and

                  (2) operates using the Pretzel Time System and the Marks; and

                  (3) is either  operated by Pretzel Time or its  Affiliates  or          pursuant to a valid franchise from Pretzel Time.

         Pretzel Time Units are of three types: stores, carts, and kiosks.

         Principal Owner  - Each Owner which:





                  (1)  is a general partner in Franchisee; or

                  (2) has a direct or indirect equity interest:

                           (a) in  Franchisee  of twenty  percent  (20%) or more                            (regardless of whether such Owner is entitled to vote                            thereon); or

                           (b)  in any Pretzel Time unit; or

                  (3) is  designated  as a Principal  Owner in Exhibit B of this Agreement.

         Products - Products approved or required by Pretzel Time from time to time in its sole  discretion for sale at or from Pretzel Time Units,  including, without  limitation,  hand-rolled  soft pretzels of various  flavors  including, without limitation,  chocolate chip, raisin,  honey-wheat,  and cinnamon, frozen pretzels  and  other  pretzel-related  products  and  toppings,  frozen  yogurt, beverages, and other Pretzel Time-approved products, provided that the foregoing products are subject to  modification or  discontinuance  in Pretzel Time's sole discretion from time to time and may

include additional or substitute products.

         Site - The  location of the Pretzel  Time Unit as  described  in this Agreement. The term refers to the inside of the four walls of the Unit premises.

         Special Distribution Agreement - A separate agreement whereby Pretzel Time  authorizes  a  Franchisee  of a  Pretzel  Time  Unit to  operate a Special Distribution  Arrangement  at a  Special  Distribution  Location  designated  by Pretzel Time.

         Special Distribution  Arrangement - The sale of Products at or from a Special  Distribution  Location  (defined  below),  whether or not by or through on-premises food service  facilities or concessions,  pursuant to Pretzel Time's standards and  specifications for such sales, which Pretzel Time may change from time to time in its sole discretion.

         Special Distribution  Location - A facility or location,  which as by way of example and without limitation,  a school,  hospital,  office, work site, military facility, grocery store, convenience store, supermarket,  entertainment or sporting facility or event, bus or train station,  park, toll road or limited access highway  facility,  shopping mall or other similar  facility,  at or from which  Pretzel  Time,  in its sole  discretion,  authorizes  the  operation of a Special Distribution  Arrangement pursuant to a Special Distribution  Agreement, which facility may be located within or outside the Territory.

         Store - Is a traditional in-line Pretzel Time Unit where Pretzel Time Products  are  produced  and  sold  to  customers  at  retail  for  off-premises consumption.

         Territory  - The geographic area described in this Agreement.

         Trade  Dress - The unit  design,  decor and image which  Pretzel Time authorizes  and requires  Franchisee to use in connection  with the operation of Pretzel Time Units,  as it may be revised and further  developed by Pretzel Time or its Affiliates from time to time and as further described in the Manuals.

         Transfer - The voluntary, involuntary, direct or indirect assignment, sale, gift, pledge, mortgage, hypothecation, encumbrance or other disposition by Franchisee (or any of its Owners) or by operation of law of:

         (1)  Any interest in this Agreement;

         (2)  A Controlling Interest in Franchisee; or

         (3) Any interest in the Unit, equipment, furnishings or fixtures.

         A Transfer shall also be deemed to include a merger or consolidation of Franchisee  with  any  other  entity,  the  issuance  of  additional  securities representing,  or convertible into, an Ownership  Interest in Franchisee and any Transfer as a result of death  (subject to this Section),  divorce,  insolvency, corporate or  partnership  dissolution  proceedings or otherwise by operation of law.

Unit - The Pretzel Time Unit which  Franchisee is franchised to operate at the Site pursuant to this Agreement.

         Yogurt  Product  Addendum  - The form of  addendum  to the  Franchise Agreement used by Pretzel Time attached  hereto as Exhibit I from time to time to authorize or require, in its sole discretion,  a franchisee of a Pretzel Time Unit to offer TCBY frozen yogurt and other TCBY frozen yogurt products.

2.       GRANT OF FRANCHISE RIGHTS.

         2.A.     GRANT OF FRANCHISE.

         Pretzel  Time hereby  grants to  Franchisee  and  Franchisee  agrees to undertake,  during the term of this  Agreement and upon the terms and conditions stated in this Agreement, the right, license and privilege to operate,  conduct,





and do business  and to use certain  trade  names,  trademarks,  service  marks, logos,  and other  commercial  symbols,  including  Pretzel Time (referred to as Marks) solely and  exclusively for the operation of one retail  franchise Unit (referred to as Franchise), which is in the form of a (Store/Kiosk/Cart),  and to sell  those  Products  known as  Pretzel  Time  pretzels  and  other  Pretzel Time-approved   menu  items  and  Products   further   described  in  Section  2 (hereinafter Products) in accordance with the provisions of this Agreement and in accordance with rules,  standards,  systems,  and procedures as prescribed by Pretzel Time which may be changed,  improved and further  developed from time to time,  (hereinafter  Pretzel  Time  System),  at one (1) location  only,  such location to be

 (hereinafter Site).

         Pretzel  Time  will not,  as long as this  Agreement  is in effect  and Franchisee  is not in default,  enfranchise  or operate any other  Pretzel  Time Franchise  within the following  enclosed  mall or building  except as otherwise provided herein (hereinafter  referred to as Territory):  none. Franchisee has no territory other than the actual store location.  Franchisee acknowledges that Franchisee  has no rights  outside of the actual store location and that Pretzel Time has the right to sell certain  frozen  products as Pretzel Time desires and Pretzel  Time may conduct  Pretzel  Time's  business as Pretzel  Time so desires without hinderance from Franchisee.

         Franchisee  shall not  conduct  the  business of the Unit from any Site other  than  the  Site  specified,  except  as  otherwise  provided  under  this Agreement.  The form of addendum to the Franchise Agreement used by Pretzel Time is  attached  hereto  as  Exhibit  J to be  used  from  time  to time to add a satellite unit pursuant to the Satelite Unit Addendum.

         2.B.     PRINCIPAL OWNERS' GUARANTY.

         Franchisee shall cause all Principal Owners,  and their spouses,  as of the Effective Date to execute and deliver to Pretzel Time concurrently with this Agreement,  and all persons or entities which become Principal Owners, and their spouses,  thereafter to execute and deliver to Pretzel Time promptly thereafter, the  Owner's  and  Guarantor's  Undertaking  and  Assumption  of  Obligations, attached hereto as Exhibit D, or such other agreement as Pretzel Time prescribes from time to time,  undertaking  to be bound  jointly and  severally  by, and to guarantee the payment and  performance  of, all  provisions  of this  Agreement. Franchisee shall furnish to Pretzel Time, at any time upon request, in such form as Pretzel Time may require,  a list of its  shareholders or partners (of record and beneficially) reflecting their respective interests in Franchisee.

         2.C.     TERRITORIAL RIGHTS.

         Except as  otherwise  provided  in this  Agreement  and  provided  that Franchise  is in full  compliance  with  this  Agreement,  Pretzel  Time and its Affiliates  will  not  during  the  term  of this  Agreement  operate  or  grant franchises  for the operation of Pretzel Time Units within the  Territory  other than the Franchise granted to Franchisee pursuant to this Agreement.  Franchisee acknowledges  that  Franchisee  shall  have no  right  to any  Territory  unless Franchisee  and  Pretzel  Time have  entered  into a separate  Area  Developer's Agreement. Franchisee shall have no exclusive Territory based on this Agreement.

         2.D.     RESERVATION OF RIGHTS.

         Except as expressly limited by Section 2.C., Pretzel Time (on behalf of itself,  its Affiliates and its designees)  retains all rights,  in its sole and exclusive discretion,  to offer to sell the Products and services authorized for Pretzel Time Units under the Marks  hereinafter  described in Section 6 or other trade names, trademarks, service marks and commercial symbols through similar or dissimilar  channels of distribution and national  accounts and pursuant to such terms and  conditions  as Pretzel Time deems  appropriate.  Pretzel Time and its Affiliates  retain the right to offer for sale and sell, and franchise others to offer for sale and sell,  any other  Products or services  under the Marks and own and  operate  and grant to others  the right to operate  Pretzel  Time Units solely or in conjunction with TCBY stores or other snack food businesses at such locations  and on such  terms  and  conditions  as  Pretzel  Time,  in its  sole discretion,  deems appropriate.  Such Products shall include, but not be limited to, soft pretzels,  frozen pretzels and other pretzel-related  products,  frozen yogurt and other Pretzel Time-approved Products and such methods of distribution may include,  but shall not be limited to, sales at sports  arenas and stadiums, amusement  parks,   department  stores,   airports,  toll  road  travel  plazas, hospitals, office buildings, schools and colleges and other Non Traditional Unit venues  as  well  as  sales  to  wholesalers  and/or  distributors  for  resale. Notwithstanding  the foregoing,  Pretzel Time reserves the right both within and outside the  Territory  (if any) to sell at wholesale  all Products and services which comprise a part of the Pretzel Time System.

         FRANCHISEE  ACKNOWLEDGES  AND AGREES THAT PRETZEL TIME HAS THE RIGHT TO PLACE UNITS AT ANY LOCATION,  EXCEPT AS LIMITED BY THIS  AGREEMENT,  AT ITS SOLE DISCRETION  AND  WITHOUT  REGARD TO THE IMPACT UPON THE  FRANCHISEE'S  BUSINESS. FRANCHISEE  ACKNOWLEDGES  THAT  ABSENT A SEPARATE  AREA  DEVELOPER'S  AGREEMENT, PRETZEL  TIME  HAS THE  RIGHT  TO  PLACE  UNITS  AT ANY  LOCATION,  AT ITS  SOLE DISCRETION, AND WITHOUT REGARD TO THE IMPACT UPON THE FRANCHISEE'S BUSINESS.

         Franchisee  acknowledges that because complete and detailed  uniformity under many varying  conditions  may not be possible or  practical,  Pretzel Time specifically reserves the right and privilege,  at its sole discretion and as it may deem in the best  interests of all  concerned in any specific  instance,  to





vary standards for any Franchisee based upon the peculiarities of the particular Site,  landlords'  requirements,  business potential,  or other conditions which Pretzel  Time deems to be of  importance  to the  successful  operation  of such Franchisee's business.

         2.E.     OPTION TO DEVELOP OTHER SITES WITHIN THE TERRITORY.

         If Franchisee  seeks to add a different type of Pretzel Time Unit, such as a kiosk or a cart,  within the Territory,  then  Franchisee must seek Pretzel Time's  approval by  notifying  Pretzel  Time,  in  writing,  that he desires to develop  and  operate  other  units,  including  a cart  or  kiosk,  within  the Territory.  If Pretzel  Time has fully  negotiated  a lease  agreement  for such location,  then  Franchisee  shall (1) obtain the  consent  of the  landlord  to execute such lease and execute such lease,  if applicable;  (2) execute  Pretzel Time's then current form of Satellite Unit Addendum  (containing  Pretzel Time's then  current  fees  and  expense  requirements)  and such  ancillary  documents (including guarantees) as are then customarily used by Pretzel Time in the grant of franchises for Pretzel Time Units as modified for use in connection  with the Site, as necessary, and (3) pay Pretzel Time's reasonable out-of-pocket expenses incurred in locating such additional  Site and negotiating the lease  agreement, all within ten (10) business days after Pretzel Time's delivery to Franchisee of the lease agreement and the franchise documents.

         If Franchisee  timely notifies  Pretzel Time in writing that Franchisee desires to develop and operate an additional  Pretzel Time Unit, such as a kiosk or cart,  within its Territory and Pretzel Time has not fully negotiated a lease agreement for such location, then Franchisee will have thirty (30) days in which to negotiate and deliver to Pretzel Time a lease agreement for such site in form for execution.  If Pretzel Time  disapproves  the lease agreement for failure to meet  Pretzel  Time's  requirements,  Franchisee  will have ten (10) days within which to negotiate  and deliver to Pretzel Time a revised  lease  agreement  for such  location  in form for  execution.  If  Pretzel  Time  approves  the  lease agreement  for such  location  as  meeting  Pretzel  Time's  requirements,  then Franchisee  will (1) execute  such lease  agreement;  (2) execute the  franchise documents;   and  (3)  pay  Pretzel  Time's  reasonable  out-of-pocket  expenses incurred,  if any, in locating such  additional  Site and  negotiating the lease agreement,  all within ten (10) business days after Pretzel  Time's  delivery to Franchisee of the lease agreement and the franchise documents.

         2.F.     TERM OF FRANCHISE.

         The term of this Agreement shall commence on the Effective Date of this Agreement  and shall expire  twenty (20) years from the  effective  date of this Agreement.  References in this  Agreement to the term of this Agreement mean the initial term and any renewal term.

3.       OTHER DISTRIBUTION METHODS.

         3.A.     SPECIAL DISTRIBUTION ARRANGEMENTS.

         Franchisee  acknowledges  and agrees that (1) Franchisee is not granted any rights to operate Special  Distribution  Arrangements  within or outside the Territory  pursuant to this agreement;  and (2) the right to operate or grant to others the right to operate  Special  Distribution  Arrangements  is reserved to Pretzel Time;  and (3) Pretzel Time has no obligation to offer to Franchisee the right to operate Special Distribution Arrangements;  and (4) Pretzel Time or its designees  may instead  operate or grant to others the right to operate  Special Distribution Arrangements within and/or outside the Territory.

4.       FRANCHISE AND OTHER FEES.

         4.A.     INITIAL FRANCHISE FEE.

         The initial franchise fee is Twenty-Five Thousand Dollars ($25,000.00). Upon execution of this Agreement by Franchisee,  Franchisee shall pay to Pretzel Time, in consideration  of the franchise  granted herein,  Twenty-Five  Thousand Dollars  ($25,000.00)  payable by certified  check or cashier's  check in United States currency due upon execution of the Franchise Agreement. The franchise fee is fully  earned  by  Pretzel  Time  upon the  payment  in full  thereof  and is nonrefundable   (except  as   specifically   provided  in  this   agreement)  as consideration for expenses incurred by Pretzel Time in furnishing assistance and services to Franchisee  and for Pretzel  Time's lost or deferred  opportunity to franchise others,  and not as compensation for the use of the copyrighted works, Marks or Trade Dress. Franchisee acknowledges and agrees that this franchise fee is reasonable. The fee is not reduced if Pretzel Time is unable to obtain a TCBY Franchise.  An  additional  $1,000 is payable by Franchisee to Pretzel Time as a Yogurt Fee if Yogurt Product is included in the Franchise.

         4.B.     DEFERRAL OF FRANCHISE FEE.

         Payment of the initial  franchise fee is deferred for  franchises to be located in Minnesota and for Minnesota  residents until the franchise Unit opens at which time the franchise fee must be paid in full to Pretzel Time.  Franchise fees for Maryland  residents  and  franchises  to be located in Maryland will be escrowed  until the unit is  opened.  There may be other  stores in which  state administrators have required fees or royalties to be deferred or escrowed.

         4.C.     ROYALTY FEE.





         Franchisee,  in  partial  consideration  of the  grant of a  franchise, agrees to pay to Pretzel  Time a  continuing  Royalty of seven  percent  (7%) of Franchisee's  net  revenues  (as  defined  in  Section  1) on a weekly  basis as specified in this  Section;  provided  only 4% Royalty  shall be payable on TCBY frozen yogurt and other TCBY frozen yogurt products.  The Royalty is not uniform as to  all  franchisees,  it is  fully  earned,  and  is  nonrefundable  in  any circumstance.  Franchisee  shall pay weekly by electronic  funds  transfer (ACH) without offset,  defalcation,  credit or deduction of any nature to Pretzel Time the royalty fee, the advertising  fund fee and all other amounts due and payable on each Wednesday for the immediately  preceding week. The Royalty shall be paid by electronic funds transfer from Franchisee's  general operating  account.  The Royalty is paid,  in part,  to  compensate  Pretzel  Time for  various  services provided  to  Franchisee  after the Unit opens,  including,  but not limited to, quality, service, and cleanliness inspections. Pretzel Time, upon written notice to  Franchisee,  shall  have the right to  change  the  timing  of  Franchisee's payments of Royalty  Fees and  Advertising  Fund Fees due under this  Agreement. Franchisee  shall not subordinate to any other  obligation his obligation to pay the Royalty Fee or any other fee or charge hereunder.

         4.D.     ADVERTISING FUND FEE.

         Franchisee  agrees to pay on a weekly basis to Pretzel Time, as partial consideration  for the grant of the Franchise,  an  Advertising  Fund Fee of one percent  (1%) of Net revenues  for the  preceding  week as defined in Section 1. Franchisee  herein  acknowledges that the Advertising Fund Fee is not uniform as to all franchisees.  The Advertising Fund Fee is fully earned and nonrefundable. The  Advertising  Fund Fee shall be paid by electronic  funds  transfer from the Franchisee's  general  operating  account on Wednesday of each week based on the preceding week's Net revenues.

         4.E.     TRANSFER FEE.

         If Franchisee desires to assign his rights under the Franchise to a new franchisee,  Franchisee  (Assignor of the  Franchise),  agrees to pay to Pretzel Time a transfer  fee equal to the  greater of SIX  THOUSAND  TWO  HUNDRED  FIFTY DOLLARS  ($6,250.00) or the then current  transfer fee being paid by franchisees upon the assignment, gift, bequeath or transfer of ownership of the Franchise to cover administrative costs and expenses. The transfer fee is non-refundable. The fee shall be due and payable by the current  Franchisee to Pretzel Time five (5) days prior to the transfer of the Franchise to the assignee.  Additionally,  the assignee  of the  Franchisee  shall pay  Pretzel  Time an  additional  amount of Twenty-Five  Thousand Dollars  ($25,000.00) (plus $1,000.00 if Yogurt Product is included),  for any  additional  units that are not existing  stores or the then current initial franchisee fee for traditional Pretzel Time Units.

         4.F.     FEES FOR ADDITIONAL FRANCHISES.

          In the event that Franchisee  meets Pretzel Time's  qualifications  to open  additional  Franchises at sites  acceptable to both Franchisee and Pretzel Time,  which  approval is at the sole  discretion of Pretzel  Time,  the initial franchisee  fee shall be the greater of FIVE THOUSAND  DOLLARS  ($5,000.00)(plus $1,000.00 if Yogurt  Product is included) or the then current fee for additional franchises set by Pretzel Time, at its sole discretion. The decision to grant an additional  franchise  location shall be in the sole  discretion of Pretzel Time and at no time does Pretzel Time promise or guarantee that additional franchises will be offered  or  approved.  Such  decisions  will be made on a  case-to-case basis,  based on  factors  including,  but not  limited to the  availability  of suitable locations,  quality of standards maintained in the Franchisee's current Units,   the  impact  of  additional   locations  upon  the  operations  of  the Franchisee's  current Units, the geographical  distance between the Franchisee's existing and proposed  location,  the business  plan of Pretzel  Time,  national contracts  with  major  corporations,  the  population  of  the  area  near  the prospective  site,  the quality of the site,  and other  economic  and  business factors.  Under no  circumstances  is  Franchisee  entitled to demand or require Pretzel Time to grant to Franchisee a Franchise or a similar variation thereof.

         4.G.     FEES FOR RENEWAL OF FRANCHISE.

         Franchisee  agrees that in consideration of the grant of the Successor Franchise  (defined in Section 5.A.),  Franchisee shall pay the current renewal fee as of the  date of  renewal  and  execute  a  general  release  in the  form prescribed  by Pretzel Time in  accordance  with Section 5.B. The renewal fee is due and payable thirty (30) days prior to the renewal day.

         4.H.     PAYMENT BY ELECTRONIC FUNDS TRANSFER.

         Franchisee agrees to pay all Royalties,  Advertising Fund Fees, amounts due Pretzel Time for purchases by Franchisee from Pretzel Time or its Affiliates and other amounts which  Franchisee  owes to Pretzel Time via  electronic  funds transfer from Franchisee's general account,  which shall be initiated by Pretzel Time and any transfer fees shall be paid by Franchisee  every  Wednesday for the preceding week based upon the Net Revenues.  Franchisee herein agrees to execute and complete all necessary  documentation required by Pretzel Time to permit the wire transfer to Pretzel Time (in the form attached  hereto as Exhibit E or such other form as Pretzel Time shall accept). Under this procedure, Franchisee shall authorize  Pretzel  Time to initiate  debit  entries  and/or  credit  correction entries  to  Franchisee's   general  operating  bank  account  for  payments  of Royalties,  Advertising Fund Fees and other amounts payable under this Agreement and any late or interest  charges due thereon.  Franchisee  shall make the funds





available to Pretzel Time for  withdrawal by  electronic  transfer no later than one day prior to the due date for payment therefor.  The Royalty and Advertising Fund Fees amount actually  transferred from Franchisee's  account shall be based on the Unit's Net Revenues  indicated on the reports  submitted by Franchisee as required  hereunder.  If Franchisee  has not reported the Unit's Net Revenues to Pretzel  Time  for any week as  required  herein,  then  Pretzel  Time  shall be authorized  to  debit  Franchisee's  account  in an  amount  equal  to the  fees transferred from Franchisee's  account for the last reporting period for which a report of the Unit's Net  Revenues  was  provided  to Pretzel  Time as  required hereunder.  If,  at any  time,  Pretzel  Time  determines  that  Franchisee  has under-reported the Unit's Net Revenues, or underpaid Royalty or Advertising Fund Fees or other  amounts  due  hereunder,  Pretzel  Time  shall be  authorized  to initiate  immediately a debit to Franchisee's  account in the appropriate amount in  accordance  with the foregoing  procedure,  plus interest as provided for in this  Agreement.  Any  overpayment  shall be  credited to  Franchisee's  account through a credit  effective  as of the first week after  Franchisee  and Pretzel Time  determine  that such credit is due.  Notwithstanding  any  designation  by Franchisee, Pretzel Time shall have the sole discretion to apply any payments by Franchisee to any past  indebtedness  of Franchisee  for Royalty or  Advertising Fund Fees,  purchases from Pretzel Time and/or its  Affiliates,  interest or any other indebtedness,  including,  without  limitation,  payment of rental sums in arrears for the Unit.

         4.I.     LATE CHARGE AND INTEREST.

         To compensate Pretzel Time for the increased  administrative expense of handling late payments,  Pretzel Time may charge Franchisee a $50.00 late charge for each delinquent payment.  All Royalty and Advertising Fund Fees, amounts due for  purchases by  Franchisee  from Pretzel  Time or its  Affiliates,  and other amounts  which  Franchisee  owes to Pretzel  Time or its  Affiliates  shall bear interest  after  their due date at a rate equal to the  lesser of: (1)  eighteen percent (18%) per annum for the number of days which such payment is due; or (2) the highest  applicable  legal rate  permitted  by  applicable  law.  Franchisee acknowledges  that this  Section  shall  not  constitute  Pretzel  Time's or its Affiliates' agreement to accept such payments after they are due or a commitment by Pretzel  Time or its  Affiliates  to extend  credit to or  otherwise  finance operation of the Unit.  Notwithstanding  the  provisions  of this Section  4.I., Franchisee  acknowledges and agrees that his failure to pay all amounts when due shall constitute grounds for termination of this Agreement.

5.       RENEWAL OF FRANCHISE TERM.

         5.A.     FRANCHISEE'S RIGHT TO A SUCCESSOR FRANCHISE.

         Upon the expiration of the initial term of this  Agreement,  Franchisee shall  have the one time  right to obtain a  successor  franchise  to  operate a Pretzel  Time Unit at the Site (a  Successor  Franchise)  for a single term of five (5) years  immediately  following the expiration of the initial term of the Franchise upon giving Pretzel Time six (6) months notice prior to the expiration of the then current term if:

         (1) Franchisee and its Owners have complied with this Agreement and any          amendment  during the initial  term of this  Agreement  in all material          respects; and

         (2) Franchisee  maintains  possession of the Site and agrees to remodel          and/or expand the Unit, add or replace equipment, furnishings, fixtures          and signs and  otherwise  modify  the Unit to bring it into  compliance          with   specifications  and  standards  then  applicable  under  new  or          Successor Franchises for Pretzel Time Units; or if Franchisee is unable          to maintain  possession  of the Site, or if, in the judgment of Pretzel          Time,  the Unit should be  relocated,  Franchisee  secures a substitute          site approved by Pretzel Time and agrees to develop  expeditiously such          substitute  site in compliance with  specifications  and standards then          applicable  under new or successor  franchises  for Pretzel Time units;          and

         (3) Pretzel  Time has not given notice of its election not to renew six          (6) months  prior to the  expiration  of the  initial  twenty (20) year          term; and

         (4)  Franchisee  is not in default of any material term or condition of          the lease  agreement,  or any other agreement  between Pretzel Time and          Franchisee; and

         (5) Franchisee executes Pretzel Time's then current Franchise Agreement          and  other  ancillary  agreements  required  and being  offered  to new          Franchisees on the date of renewal, which agreements shall supersede in          all respects this  Agreement and the terms of which may differ from the          terms of this Agreement,  including,  without limitation,  Royalty Fees          and  Advertising  Fund  Fees,  other  fees  and  charges,   performance          criteria,  and a provision which allows Pretzel Time and its Affiliates          to reserve  the right,  both within and  outside of the  Territory,  to          offer and sell at wholesale or retail, through channels of distribution          distinct  from  those  of a  Franchise,  Products  and  services  which          comprise,  or may in the  future  comprise a part of the  Pretzel  Time          System, which Products may be resold at retail to the general public by          such entities; and

         (6) Franchisee is in full  compliance  with Pretzel  Time's  Operations Manual; and

         (7) On renewal,  Franchisee  agrees to pay the current renewal fee, the          Royalty and  Advertising  Fund fees specified in Pretzel Time's current





         Franchise  Agreement then being offered new  Franchisees on the date of          renewal; and

         (8) Franchisee shall execute general releases,  in form satisfactory to          Pretzel  Time,  of any and all  claims  against  Pretzel  Time  and its          Affiliates and their officers, directors, employees, agents, successors          and assigns arising under this Agreement; and

         (10)   Franchisee   has  complied  with  Pretzel  Time's  then  current          qualification and training requirements.

         Following receipt of Franchisee's election to renew, Pretzel Time shall provide Franchisee with an execution copy of the form of Franchise  Agreement to be entered into for the renewal  term.  If the  Franchisee  does not execute and return the renewal Franchise Agreement within thirty (30) days of receipt,  then Franchisee  shall be deemed to have  withdrawn  its notice of renewal,  and this Agreement shall terminate at the end of the current term.

         Pretzel Time may, at its option, with reasonable cause and upon written notice,  elect not to renew the Franchise  Agreement.  Pretzel Time shall notify Franchisee  of the  nonrenewal  not  less  than  six  (6)  months  prior  to the expiration  of the term of this  Agreement.  If  applicable  law  requires  that Pretzel Time give longer  notice to  Franchisee  prior to the  expiration of the term than is specified in the Franchise Agreement,  the Franchise Agreement will remain in effect on a  month-to-month  basis until the requisite notice has been given.

         5.B.     RELEASES.

         Franchisee  and its Owners  shall  execute  general  releases,  in form satisfactory  to Pretzel Time (the  general form of which is attached  hereto as Exhibit K), of any and all claims against  Pretzel Time and its Affiliates and their  respective  shareholders,   officers,   directors,   employees,   agents, successors and assigns. Failure by Franchisee and its Owners to sign and deliver to Pretzel  Time,  such  agreements  and releases  within thirty (30) days after delivery  thereof to Franchisee shall be deemed an election by Franchisee not to obtain a Successor Franchise.

         5.C.     NOTICES.

         Franchisee  shall give Pretzel  Time written  notice of its election to obtain a Successor  Franchise not more than twelve (12) months and not less than six (6) months prior to the expiration of this Agreement. Pretzel Time agrees to give Franchisee, written notice, not more than thirty (30) days after receipt of Franchisee's notice of (a) Pretzel Time's  determination  whether or not it will grant Franchisee a Successor  Franchise  pursuant to this Section and/or (b) any deficiencies  in  Franchisee's  operation  of the Unit (or any other  failure to comply  with the terms of this  Agreement)  which could  cause  Pretzel  Time to refuse to grant a  Successor  Franchise.  Such notice  shall state what  actions Franchisee  must take to correct  the  deficiencies  and shall  specify the time period in which such  deficiencies  must be  corrected.  Pretzel Time shall give Franchisee written notice of a decision not to grant a Successor Franchise based upon  Franchisee's  failure to cure  deficiencies not less than ninety (90) days prior to the expiration of the initial term of this Agreement. Such notice shall state the reasons for Pretzel Time's refusal to grant a Successor Franchise.  In the event Pretzel Time fails to give  Franchisee (a) notice of  deficiencies  in the Unit or in Franchisee's operation of the Unit, within thirty (30) days after receipt of Franchisee's timely election to obtain a Successor Franchise,  or (b) notice of Pretzel  Time's  decision not to grant a Successor  Franchise at least ninety (90) days prior to the expiration of the term of this Agreement,  Pretzel Time  may  extend  the term of this  Agreement  for  such  period  of time as is necessary in order to provide Franchisee reasonable time to cure deficiencies or to provide ninety (90) days notice of Pretzel Time's  determination not to grant a Successor  Franchise.  The grant of a Successor Franchise shall be conditioned upon Franchisee's continued compliance with all the terms and conditions of this Agreement until the date of expiration.

6.       TRADEMARKS AND LIMITATIONS.

         6.A.     OWNERSHIP OF MARKS.

          Franchisee  acknowledges  that Pretzel Time is the owner of all right, title  and  interest  together  with  all  the  goodwill  in and  to the  Marks. Franchisee  acknowledges  that his right to use the Marks is derived solely from this  Agreement  and is limited to his  conduct of  business  pursuant to and in compliance with this agreement and all applicable standards,  specifications and operating  procedures Pretzel Time prescribes from time to time during its term. Franchisee  shall not have nor assert any right,  title or  interest  in Pretzel Time's Marks or any goodwill of Pretzel Time. Franchisee agrees that he will not register  such  trade  name or marks in his own name or that of any other  firm, person  or  corporation.  The  following  Marks  are  currently  authorized  for Franchisee's use in the Franchised Business as follows:

         Pretzel TimeJ          Pretzel Time Stylized7          Pretzel Time Clock DesignJ          Pretzel Time StorefrontJ          Fitness with a twist.J

         Franchisee  acknowledges  and recognizes  Pretzel  Time's  interest and exclusive   right  to  the   concepts  of  the  Pretzel   Time  System  and  its distinguishing characteristics, including the name and style of the unique decor





of the Pretzel Time  stylized  literature,  display and  promotional  materials, marketing methods, operating procedures, training program and the manufacture of Pretzel Time Products. Pretzel Time makes no representation or warranty, express or implied,  as to the use, exclusive  ownership,  validity or enforceability of the Marks. Pretzel Time reserves the right to develop other trademarks,  service marks,  copyrights  and patents for use in other  businesses.  Pretzel  Time and Franchisee  acknowledge  and agree that it is not required to defend  Franchisee against  a claim  against  his use of  Pretzel  Time  Marks.  Pretzel  Time  may reimburse  Franchisee for his liability and reasonable  costs in connection with defending Pretzel Time's registered  trademarks provided Franchisee has notified Pretzel Time immediately when he learned about the infringement or challenge.

         Franchisee  agrees to use  Pretzel  Time's  trade name and Marks as the sole trade  identification  of the Unit and in connection  with, and exclusively for the  promotion  and conduct of the  Franchise as provided  hereunder  and in accordance with instructions,  rules, and procedures  prescribed by Pretzel Time from  time  to  time  with  respect  thereto.   Notwithstanding  the  foregoing, Franchisee  shall identify  himself as the independent  owner of the Unit in the manner  prescribed  by Pretzel Time.  Franchisee  agrees to give such notices of trademark  and service  mark  registrations  as Pretzel  Time may specify and to obtain such business name registrations as may be required under applicable law. Franchisee  shall not at any time during the term of this Agreement or after its termination, contest the validity or ownership of any of the Marks or assist any other person in contesting the validity or ownership of the Marks.

         6.B.     DISCONTINUANCE OF USE OF MARKS.

         If it becomes advisable at any time, in Pretzel Time's sole discretion, for Pretzel Time or the Unit to modify or  discontinue  use of any Mark,  and/or use of one or more  additional or substitute  trade names,  trademarks,  service marks, or other commercial symbols,  Franchisee shall comply with Pretzel Time's directions  within a reasonable time after notice to Franchisee by Pretzel Time. Neither  Pretzel Time nor its Affiliates  shall have any obligation to reimburse Franchisee for any expenditures  made by Franchisee to modify or discontinue the use of a Mark or to adopt  additional  marks or  substitutes  for a discontinued Mark, including, without limitation, any expenditures relating to advertising or promotional  materials or to compensate  Franchisee for any goodwill  related to the discontinued Mark.

         6.C.     CORPORATE NAME.

         Franchisee  agrees not to use any Mark or trade name of Pretzel Time or any part thereof or with any prefix,  suffix or other  modifying  words,  terms, designs,  or symbols or in any modified  form as part of any  corporate or trade name  nor  shall  Franchisee  use any  Mark in  connection  with the sale of any unauthorized  product or service or in any other manner not expressly authorized in writing by Pretzel Time.

         6.D.     TERMINATION.

         Immediately  upon the  termination  of this  Agreement,  the Franchisee agrees to cease and forever  abstain  from using the Pretzel Time trade name and Marks and return to Pretzel Time all documents, manuals,  instructions,  display items and the like bearing the aforesaid trade names or any of the Marks.

         6.E.     TRADEMARK ENFORCEMENT.

         Pretzel  Time shall  police and enforce its rights with  respect to its trademarks  and other  proprietary  aspects of the Pretzel  Time System with the cooperation of Franchisee,  and shall bring  appropriate  actions or proceedings against infringers or other unlawful users at its sole expense.

         Franchisee  agrees to  immediately  notify  Pretzel  Time of any claim, demand or suit based upon or arising from or of any attempt by any other person, firm or corporation to use Pretzel Time's trademarks, service marks, copyrights, trade secrets,  or Systems licensed hereunder or colorable  variation thereof in which Pretzel Time has a proprietary interest. Pretzel Time will take the action it thinks  appropriate.  In the event Pretzel Time undertakes any prosecution of litigation or defense  relating to the  proprietary  Marks  licensed  hereunder, Franchisee  agrees to execute any and all  documents and do such acts and things as may in Pretzel  Time's  opinion,  be  necessary  to carry out such defense or prosecution.  Franchisee  agrees  that  Pretzel  Time has the  right to  control administrative proceedings or litigation with respect to this issue.

         Franchisee  agrees to participate  and cooperate in the  prosecution of any action to prevent the infringement,  imitation, illegal use or misuse of the Marks and  agrees  to be named as a party in any such  action  if  requested  by Pretzel  Time.  Pretzel  Time  agrees to bear the  legal  expenses  incident  to Franchisee's  participation in such action,  except for the cost of Franchisee's personal legal counsel if Franchisee  elects to be represented by counsel of his own choosing.

         6.F.     USE OF SERVICE MARK.

         Except  with the prior  written  consent  of Pretzel  Time,  Franchisee agrees not to infringe upon, use or imitate Pretzel Time's System, or any of its distinguishing  characteristics,  and  further  agrees not to cause or allow any other person to infringe upon, use or imitate  Pretzel Time's System,  or any of its  distinguishing  characteristics.  Franchisee  agrees to use and display the Marks at all times only in  accordance  with the quality  control  standards set forth in this  Agreement and in the Operations  Manual.  During the term of this Agreement, and renewal term, if any, Franchisee will operate the Unit only under the Marks . Franchisee  will use or display the Marks only within the designated Territory.  Franchisee  will cause a sign  bearing the name  Pretzel  Time which meets Pretzel Time's  specifications for color, design and size, to be installed





on the outside of the retail Unit.  Franchise  shall not, at any time during the term of this  Agreement or after its  termination  or expiration use any Mark in connection with the sale of any unauthorized  product or service or in any other manner not expressly authorized in writing by Pretzel Time.

7.       SELECTION OF FRANCHISE LOCATION.

         7.A.     SITE SELECTION.

         Franchisee  shall be  responsible  for leasing a suitable  site for the Franchise  subject to Pretzel  Time's  approval.  Pretzel  Time agrees to assist Franchisee  in locating and securing a location for the unit which is acceptable to both Pretzel Time and Franchisee.  Franchisee  shall submit to Pretzel Time a list of desired locations on the Location Agreement attached hereto as Exhibit W or if Pretzel  Time  directs on a form  prepared  by Pretzel  Time and  attached hereto as Exhibit F, and  Pretzel  Time shall  contact the  appropriate  leasing representatives to determine the availability of sites at those locations. After obtaining  information from appropriate  leasing  representatives,  Pretzel Time shall notify Franchisee  whether or not the sites made available to Pretzel Time are  acceptable  by Pretzel  Time.  In the event  that a site for the  franchise cannot be located  which is  acceptable  and  suitable to both  Pretzel Time and Franchisee  within One Hundred Twenty (120) days,  then the Franchise  Agreement shall be terminated and all franchise fees paid by Franchisee shall be refunded.

         Pretzel  Time  shall  approve  the site for the unit in  reliance  upon information furnished and representations made by Franchisee with respect to the size, appearance, and other physical characteristics of the site, photographs of the site, demographic characteristics,  traffic patterns, competition from other businesses in the area,  and other  commercial  characteristics.  Pretzel Time's approval of the site  indicates  only that Pretzel Time  believes  that the site falls  within  acceptable  criteria  established  by Pretzel Time as of the time period  encompassing the evaluation.  Franchisee  agrees that Pretzel Time shall not be responsible for the failure of a franchise, site and/or premises approved by Pretzel  Time to meet  expectations  as to potential  revenue or  operational criteria.  Franchisee acknowledges and agrees that his acceptance of a Franchise for the  operation of a Unit in the  Territory  is based on his own  independent investigation of the suitability of the mall location.

         Franchisee  acknowledges  that Pretzel Time's  approval of the lease or sublease  for the Unit does not  constitute  a guarantee  or warranty by Pretzel Time, express or implied, of the successful operation or profitability of a Unit operated at the designated Site. Such approval  indicates only that Pretzel Time believes  that the Unit and the terms of the lease fall  within  the  acceptable criteria  established  by Pretzel  Time as of the time period  encompassing  the evaluation.

         7.B.     LEASE.

         Pretzel  Time and  Franchisee  further  agree that  Pretzel  Time shall negotiate  the  basic  economic  terms  of the  lease in  consultation  with the Franchisee.  Franchisee  agrees to  execute  a letter  of  intent  for the lease premises  which  outlines the basic economic terms of the lease and return it to Pretzel  Time within five (5) days of receipt of same.  Franchisee  acknowledges and agrees that he is  responsible  for reviewing the terms of the agreement and making  any  necessary  changes  to the lease  agreement.  Franchisee  shall not execute any lease  agreement  without the prior approval of Pretzel Time,  which shall be conditioned  upon inclusion of terms in the lease acceptable to Pretzel Time and at Pretzel Time's option shall contain such provisions,  including, but not limited, to:

          (1). Notice to Pretzel  Time of,  and  Pretzel  Time's  right to cure,                Franchisee's default under the lease provided,  however,  that if                Pretzel  Time  cures any such  default,  the total  amount of all                costs and payments incurred by Pretzel Time in effecting the cure                shall be immediately due and owing to Pretzel Time by Franchisee;

          (2). Franchisee's  right to  assign  his  interest  under the lease or                sublease  to Pretzel  Time  without the  lessor's or  sublessor's                consent;

          (3). Allowing  Franchisee  to  transfer  the lease to Pretzel  Time or                another  approved  franchisee in the event that Franchisee  sells                his  business (a copy of the form of the third  party  assignment                agreement that  Franchisee and the  prospective  purchaser  would                sign is attached hereto as Exhibit L);

          (4). Authorizing  and requiring the Lessor or sublessor to disclose to                Pretzel Time, upon its request,  sales and other information that                Franchisee furnishes to the lessor or sublessor; and

          (5). Providing  that  Pretzel  Time (or one of its  Affiliates  or its                Assignee) shall have the right (but not the obligation) to assume                the lease or sublease:

                  (i) Upon termination of this Agreement by Pretzel Time or upon                   expiration of this Agreement (unless a Successor  Franchise is





                  granted to Franchisee), or

                  (ii) If  Franchisee  fails to exercise any options to renew or                   extend the lease or sublease or,

                  (iii) If Franchisee commits a default that gives the lessor or                   sublessor the right to terminate the lease or sublease, or

                  (iv)  If  Pretzel  Time  or  one  of  its  Affiliates  or  its                   designee/assignee purchases the Unit.

          (6). A provision allowing sampling in front of the retail Unit;

          (7). A provision  that the premises are to be used  exclusively  for a                Pretzel Time Unit only; and

          (8). A provision which permits alterations to the premises in a good          and workman-like manner by Franchisee as required by Pretzel Time.

         Franchisee further agrees to execute and return the lease and any other riders,  guaranties or sureties  required by the Landlord  within seven (7) days from receipt of the same and no later than sixty (60) days after signing of this Agreement.  If any lease  expires  prior to the  expiration  of this  Agreement, Franchisee  will be  required to arrange  any  necessary  lease for the Unit and Pretzel Time shall have the right to approve the terms of the renewal  lease for the Unit prior to Franchisee's execution thereof. Franchisee agrees that he will not execute a lease or sublease which Pretzel Time has  disapproved.  Franchisee shall  deliver a copy of the signed  lease to Pretzel  Time for the Unit  within five (5) business days after its full execution.  The copy shall be complete and include copies of all signature pages and exhibits.

         A copy of the form of the sublease  that  Franchisee  shall execute (if Pretzel Time is the tenant  pursuant to the lease) is attached hereto as Exhibit M. A copy of the form of the  collateral  assignement  of lease that  Franchisee shall execute (if  Franchisee  is the tenant  pursuant to the lease) is attached hereto as Exhibit N.

         Franchisee  shall be  responsible  for all terms and  conditions of the lease covering the franchise  location,  including any required security deposit and  prepaid  rent.  Franchisee  agrees  to pay the Unit  rent  directly  to the landlord at the rate and terms  specified in the primary lease between  landlord and Franchisee. Rent is generally paid monthly on the first day of the month and is  non-refundable.  Franchisee  agrees  that the Unit  shall be used  only as a Pretzel Time franchise.

         If  Franchisee  fails to obtain  lawful  possession of an approved Site (through a lease or assignment) within sixty (60) days after delivery of Pretzel Time's approval of the Site, Pretzel Time, may, in its sole discretion, withdraw approval of such Site at any time.

         7.C.     RELOCATION.

         In the event that  Franchisee's  lease is  terminated,  with or without fault of  Franchisee,  if the Site is damaged,  condemned or otherwise  rendered unusable as a Pretzel Time Unit in accordance with this Agreement, or if, in the judgment of Pretzel Time and  Franchisee,  there is a change in the character of the location of the Site sufficiently  detrimental to his business  potential to warrant its relocation,  Pretzel Time will not unreasonably  withhold permission for  relocation  of the  Unit  to  another  Site,  which  meets  Pretzel  Time's then-current  site  criteria,  subject to the rights of  existing  Pretzel  Time franchisees  under their  franchise  agreements  with Pretzel  Time.  Franchisee acknowledges  and agrees that Pretzel Time is under no  obligation  to approve a relocation of the Franchise.  However,  upon written approval from Pretzel Time, Franchisee may relocate the Franchise to another  location.  Such approval shall not be granted unless  Franchisee is in compliance with all terms and conditions of this  Agreement  and  Franchisee  has the  financial  resources  available to relocate the Unit and construct a new and  comparable  Unit according to Pretzel Time's then current design  standards.  Any such  relocation of the Franchise is subject to Pretzel Time's prior  approval of the new Unit  location.  Relocation shall be at  Franchisee's  sole expense and Pretzel Time shall have the right to charge  Franchisee  for  any and all  costs  incurred  by  Pretzel  Time,  and a reasonable  fee  for  its  services,  in  connection  with  any  such  approval, evaluation  and  relocation  of the  Franchise.  The Unit  shall  re-open at the replacement  Site as soon as  reasonably  practicable  but in no event more than ninety (90) days after the closing of the original location.

8.       DEVELOPMENT OF UNIT.

         8.A.     UNIT DESIGN SPECIFICATIONS AND CONSTRUCTION PLANS.

         Franchisee  shall be responsible  for  constructing  and developing the Unit,  including payment of all costs.  Pretzel Time shall furnish to Franchisee prototypical plans and  specifications  for the Unit,  reflecting Pretzel Time's requirements for dimensions,  interior design and decor, layout, image, building materials,  color scheme, exterior and interior finishes,  fixtures,  equipment, furnishings, and signs.

         Franchisee shall promptly after obtaining  approval of the Site for the Franchise:

         (1).  cause to be prepared by a Pretzel  Time  approved  architect  and





         submit for approval by Pretzel Time a site survey and any modifications          to Pretzel Time's basic  architectural plans and specifications for the          Pretzel Time Unit  (including  requirements  for  dimensions,  exterior          design,  materials,  interior design and layout,  equipment,  fixtures,          furniture,  signs and decorating)  required for the construction of the          Franchise at the Site leased  therefor.  Franchisee shall have all such          modifications   approved  by  Pretzel   Time  and  prior  to  obtaining          permitting;

         (2). insure that such plans and  specifications  comply with applicable          ordinances,  building  codes,  and permit  requirements  and with lease          requirements  and  restrictions  and all modification to Pretzel Time's          basic plans and  specifications are modified to the extent necessary to          comply with local  ordinances and state laws,  building  codes,  permit          requirements, lease restrictions and federal law; and

         (3).  Franchisee  shall also submit all revised or as built plans and          specifications  during the course of such  construction upon request of          Pretzel Time.  Franchisee  agrees to pay for any and all architect fees          and pay the architectural fees for the architect to review, approve and          modify the plans.

         8.B.     DEVELOPMENT OF THE UNIT.

         Pretzel  Time shall have the right to approve any  contractor  hired by Franchisee  to develop the Unit.  Within  one-hundred  twenty  (120) days of the execution of the Franchise Agreement, Franchisee agrees, at his sole expense, to do or cause to be done the following with respect to developing the Unit:

          (1). Familiarizing   himself  with  the  physical   condition  of  the                property, local laws, ordinances and          other requirements in connection with the construction of the Unit;

          (2). Secure all financing required to develop and operate the Unit;

          (3). Obtain all required building,  utility, sign, health, sanitation,                business,  environmental  and other permits and licenses required                for construction and operation of the Unit;

          (4). Extending all utilities to the Site and constructing all required                improvements to the Unit and decorate the Unit in compliance with                plans and specifications Pretzel Time approves within four to six                weeks  of  possession  of the  Site  and two  days  prior  to the                commencement date set forth in the lease for the Unit;

          (5). Purchase   and  install  all  required   fixtures,   furnishings,                equipment  and signs  required for the Unit  (provided,  however,                that Pretzel Time shall have the right,  in its sole  discretion,                to install all required  signs at the Unit at  Franchisee's  sole                expense);

          (6). Purchase  an  opening  inventory  of  Products,   materials,  and                supplies;

          (7). In  accordance  with  Pretzel  Time's  standard   specifications,                Franchisee  shall totally equip,  ready and inventory the Site at                its sole cost for opening to the public two (2) days prior to the                opening date specified in the lease; and

          (8). Franchisee  agrees  that it will not  open the Unit for  business                without Pretzel Time's prior approval and training.

         8.C.     EQUIPMENT, FIXTURES, FURNISHINGS, AND SIGNS.

         Franchisee agrees to use in developing and operating the Unit only such fixtures,  furnishings,  equipment, and signs that Pretzel Time requires and has approved for Pretzel Time Units as meeting its  specifications and standards for quality, design, appearance, function and performance. Franchisee further agrees to place or display at the Unit only such signs, emblems,  lettering,  logos and display  materials  that  Pretzel  Time  approves in writing  from time to time; provided,  however,  that  Pretzel  Time  shall  have  the  right,  in its  sole discretion,  to install  all  required  signs at the Unit at  Franchisee's  sole expense.  Franchisee shall purchase or lease approved brands, types or models of fixtures,  furnishings,  equipment and signs only from  suppliers  designated or approved by Pretzel Time (which may include Pretzel Time and/or its Affiliates). Franchisee  further agrees that all fixtures,  furnishings and equipment used in connection  with the operation of the Unit shall be free and clear of all liens, claims and  encumbrances  whatsoever,  except  with  respect to any such  liens, claims or  encumbrances  asserted by Pretzel Time or third party  purchase money security interests.

         8.D.     EXCEPTIONS TO EQUIPMENT OR FURNISHINGS.

         If Franchisee proposes to purchase any brand or type of construction or decorating material, fixture, equipment,  furniture or sign not then approved by Pretzel  Time,  or any such item from a supplier  which is not then  approved by Pretzel Time,  Franchisee shall first notify Pretzel Time, in writing, and shall submit  to  Pretzel   Time,   upon  its  request,   sufficient   specifications, photographs,  drawings and other  information or samples for a determination  by Pretzel  Time of  whether  such  brand  or type of  construction  or  decorating material, fixture, equipment, furniture or sign complies with its specifications and standards or such supplier meets Pretzel Time's approved supplier  criteria, which  determination  shall be made and  communicated  in writing to  Franchisee within a reasonable time.  Additionally,  Franchisee shall pay all fees for said





testing and be responsible for acquiring and submitting  equipment necessary for such testing.

         8.E.     CONSTRUCTION ASSISTANCE.

         Upon request by Franchisee and without  liability,  Pretzel Time agrees to provide construction assistance to Franchisee in one or more of the following areas:

          (1). Assist  Franchisee in finding an architect  for the  construction                and development of the Unit;

          (2). Assist  Franchisee  in  finding  a  general  contractor  for  the                construction and development of the Unit; and

          (3). Respond to a  reasonable  amount of questions  from  Franchisee's                contractor  relating to construction  and development of the Unit                in accordance with the requirements of Pretzel Time.

         8.F.     LIMITATION ON LIABILITY.

         Pretzel Time shall not be liable to Franchisee,  the contractor, or any other person,  and Franchisee  waives all claims for liability or damages of any type  whatsoever  (whether  direct,  indirect,  incidental,   consequential,  or exemplary),  on account of the  rendition  of any  services  by Pretzel  Time in accordance  with  this  Section,  except  to the  extent  caused  by  the  gross negligence  or  intentional  misconduct  of  Pretzel  Time,  and  then  any such liability  or damages  shall be limited to five  thousand  dollars  ($5,000.00). Without  limiting the generality of the  foregoing,  Pretzel Time shall not have liability  with  respect  to any of the  following,  all of  which  are the sole responsibility of Franchisee:

          (1). if   construction   of  the  Unit  does  not  fully  satisfy  the                requirements  (if  any)  of  the  landlord,  the  architect,  the                contractor,  and any governmental  agency having  jurisdiction or                does not fully satisfy the criteria  established  by Pretzel Time                for construction and development of Pretzel Time Units;

          (2). if the Unit improvements are not structurally  sound or free from                defects or deficiencies;

          (3). if there are any construction delays or cost overruns; or

          (4). if  there  are  any  disputes  with  any  landlord,   contractor,                subcontractor,  architect,  supplier or governmental  agency with                respect to any aspect of the design, construction,  provision, or                equipping of the Unit.

9.       UNIT OPENING.

         9.A.     COMMENCEMENT OF OPERATIONS.

         Franchisee shall commence operation of the Franchise the earlier of: 1) one  hundred  fifty (150) days after the  execution  of this  Agreement;  (2) as specified in the lease for the Site; or (3) as otherwise required or approved in writing by Pretzel Time. Failure to open the Unit within the aforementioned time period shall  result in the  termination  of this  Franchise  Agreement  and all franchise fees paid by Franchisee shall be nonrefundable.  Franchisee agrees not to open the Unit for business until the following has occurred:

          (1). Pretzel  Time  approves  the  Unit  pursuant  to its  Pre-Opening                Checklist;

          (2). Pre-opening  training of Franchisee  and Unit  personnel has been                completed to Pretzel Time's satisfaction;

          (3). The  initial  franchise  fee and all  other  amounts  then due to                Pretzel Time have been paid in full;

         (4).  Pretzel  Time has been  furnished  with  copies of all  insurance          policies  required  by  this  Agreement,  or  such  other  evidence  of          insurance  coverage and payment of premiums as Pretzel  Time  requests;          and

     (5) Franchisee has executed Pretzel Time's wire transfer agreement.

         Franchisee  agrees  to open the  Unit for  business  on or  before  the opening date specified in the lease if it has the  Landlord's  approval and only after Pretzel Time notifies Franchisee that the conditions set forth in Sections 8 and 9 have been satisfied.

10.      FRANCHISEE TRAINING.

         10.A.    INITIAL TRAINING.

         Franchisee  acknowledges and agrees that, while Pretzel Time's training program will provide  Franchisee  with the  fundamental  knowledge  necessary to operate a unit,  Franchisee  cannot  expect  success  unless he devotes his best personal efforts to the business and exercises good business judgment in dealing with customers,  suppliers, and employees.  Prior to the Unit's opening, Pretzel Time shall  furnish an initial  training  program on the  operation of a Pretzel Time Unit which shall take place at Pretzel Time's  headquarters  in Harrisburg, Pennsylvania,  or at a location  which will  provide the best  training  for the





Franchisee,  which may or may not be close to Pretzel Time's  headquarters.  The Franchisee agrees that he and his Unit Manager shall attend the initial training session held four (4) to eight (8) weeks prior to the Unit's  projected  opening date. Pretzel Time will not charge for the initial training of the Franchisee or if a corporation or partnership,  the Principal Owners of the Franchisee and the Unit  Manager.  All  incidental  expenses  relative  to the  required  training, including  travel  expenses,  hotel/motel  expenses,  and  meals  shall  be  the responsibility  of  the  Franchisee  while  attending  training.  Prior  to  the commencement  of the  operation  of the Unit,  the  manager  of the Unit  (Unit Manager) and the  Franchisee or if a corporation or  partnership,  one Owner of the Franchisee as identified in Exhibit B, who will be personally overseeing the Unit shall attend and  successfully  complete the Pretzel Time initial  training program to the satisfaction of Pretzel Time.

         The  Franchisee  and his  Unit  Manager  must  satisfactorily  complete Pretzel  Time's  training as  determined  by Pretzel  Time, in its sole opinion, before  Franchisee is allowed to operate the Franchise.  If Pretzel Time, in its sole discretion, determines that Franchisee is unable to satisfactorily complete the  training  program,  Pretzel  Time  shall have the right to  terminate  this Agreement and no franchise fees shall be refunded.  The initial training program shall cover material aspects of the operation of a Pretzel Time Unit,  including financial   controls,   employee  relations,   food  preparation,   service  and operational techniques,  sampling, recipes and cooking procedures, marketing and public  relations,  cleanliness and maintenance  procedures,  and maintenance of Pretzel  Time  System  standards.  Franchisee  shall  receive  one  copy  of the Operations Manual, which cannot be reproduced, in whole or in part. In the event that  the  Franchisee's  copy  is  lost  destroyed  or  significantly   damaged, Franchisee  shall be  obligated  to obtain from Pretzel  Time,  at  Franchisee's expense a replacement copy of the Operations Manual.

         10.B.    EMPLOYEE TRAINING.

         Pretzel  Time may  provide  to  Franchisee,  at  Franchisee's  request, guidance in the selection of a Unit Manager and may provide periodic evaluations of  Franchisee's  Unit,  Managers  and  employees,  but  without  any  liability therefore to Pretzel Time. Franchisee shall hire all employees of the franchise, be exclusively  responsible for the terms of their employment and  compensation, and  implement a training  program for  employees of the  franchise.  Franchisee agrees  to  maintain  a staff  of  trained  employees  to  operate  the  Unit in compliance with Pretzel Time's standards.

         In the event the Unit Manager ceases to hold such full-time position at the  Unit,  Franchisee  shall  have  thirty  (30)  days in  which to  appoint  a substitute  or  replacement  Unit  Manager,  who must  attend  and  successfully complete,  to  Pretzel  Time's  satisfaction  the  initial  training  program as specified  above within sixty (60) days after  employment  as Unit  Manager.  If Pretzel  Time in its sole  discretion  determines  that the Unit  Manager or any subsequently  appointed Unit Manager has failed to  satisfactorily  complete the initial  training  program or any  additional  or  refresher  training  program, Franchisee  agrees to  immediately  hire a substitute  Unit Manager and promptly arrange  for such  person  to  complete  the  initial  training  program  to the satisfaction  of Pretzel Time.  Franchisee  agrees to notify Pretzel Time of any new  Unit  Managers  for the  Unit  within  seven  (7)  business  days of  their employment.  In the event  Franchisee  operates more than one (1) Unit, at least one (1)  trained and  competent  Unit  Manager  referred to above shall act as a full-time manager in each Territory. Franchisee shall keep Pretzel Time informed at all times of the identity of any Unit Manager(s) of the Unit.

         All Unit  Managers  of the Unit must  have  successfully  completed  an initial training program as specified by Pretzel Time at the sole expense of the Franchisee, including, but not limited to, salary and incidental travel expenses attendant to any training provided by Pretzel Time. Franchisee and Unit Managers who  successfully  complete  training will receive a Training  Certificate  from Pretzel Time.  Pretzel Time shall make training  available to Franchisee's  Unit Manager during Pretzel Time's regularly  scheduled training course. In no event, will  Pretzel Time be under any  obligation  to provide  individual  training to Franchisee's  Unit  Managers.  Franchisee  agrees that each Unit  Manager  shall participate at Franchisee's  expense in Pretzel Time's initial  training program and all other mandatory  training  programs which may subsequently be offered by Pretzel Time.

         10.C.  ON-SITE TRAINING.

         Additionally,   Pretzel   Time  will   provide   on-site   training  at Franchisee's  business  location for a period of five (5) days,  generally to be commenced  immediately  prior to  Franchisee's  day of opening and continued the first three (3) days of operation.  Franchisee  herein agrees to notify  Pretzel Time,  in writing,  of his opening  date  twenty (20) days prior  thereto.  This training  will include all  functions  required for the proper  operation of the franchise.

         Should Franchisee  request  additional  assistance from Pretzel Time in order to facilitate  the opening of the  Franchise,  and should Pretzel Time, in its discretion,  deem it necessary,  feasible and appropriate to comply with the request or should Pretzel Time determine that  additional  training is required, Franchisee  shall  reimburse  Pretzel Time at Pretzel  Time's then current daily training  service fee, for the expense of Pretzel Time providing such additional assistance and for its training  related  expenses,  which may include,  travel, room and board.

         10.D.    COMPANY GROWTH.

         Throughout  the  term of  this  Agreement,  Pretzel  Time  may  provide Franchisee  with  information  on company  growth and  operations as well as new





techniques developed to reduce costs and/or enhance sales or profits.

         10.E.    RETRAINING PROGRAMS.

         Pretzel  Time shall  provide  re-training  programs  at a  location  of Pretzel Time's choice from time to time for  experienced  franchisees  and their managers and/or employees.  Pretzel Time may charge fees for refresher  training courses  for  previously  trained  and  experienced  managers.  Fees for special programs will be based upon Pretzel Time's actual costs and attendance  shall be required. Attendance at retraining programs or seminars shall be at Franchisee's sole expense,  provided,  however,  that attendance will not be required at more than two (2) such  programs  in any  calendar  year and shall  not  collectively exceed ten (10) business days in duration during any calendar year.

         10.F.    OTHER GUIDANCE.

         Pretzel  Time may  advise  Franchisee  from  time to time of  operating problems of the Unit which come to Pretzel Time's attention and, at Franchisee's request but without any liability  therefore to Pretzel Time, Pretzel Time shall furnish to Franchisee guidance in connection with:                             (i)  Methods,  standards,   specifications  and  operating  procedures                utilized by Pretzel Time Units;

          (ii) Purchasing  required  fixtures,  furnishings,  equipment,  signs,                Products, materials and supplies;

          (iii) Advertising and Promotional programs;

          (iv) Employee training; and

          (v)  Administrative, bookkeeping, accounting and general operating and                management procedures.

Such guidance shall, in Pretzel Time's  discretion,  be furnished in the form of Pretzel  Time's  Operations  Manual,  bulletins  and  other  written  materials, electronic computer messages,  telephone  conversations  and/or consultations at Pretzel Time's offices or at the Unit. Pretzel Time will make no separate charge to  Franchisee  for  such  operating  assistance  as  Pretzel  Time  customarily provides.  From time to time, Pretzel Time may make special assistance  programs available to  Franchisee,  however,  Franchisee  will be required to pay the per diem fees and charges that Pretzel Time  establishes  from time to time for such special assistance programs.

11.      ADVERTISING AND OTHER PROMOTIONS.

         11.A.    PROVIDING OF ADVERTISING MATERIALS.

         Franchisee  and Pretzel Time agree and  recognize  the value of uniform advertising to the goodwill and public image of Pretzel Time Units. Pretzel Time has  instituted  and  maintains and  administers  an  advertising  fund for such advertising  or  public  relations   programs  as  Pretzel  Time,  in  its  sole discretion,  may deem  necessary  or  appropriate  to  advertise  or promote the Pretzel Time System,  nationally or regionally.  Pretzel Time will  periodically provide Franchisee with programs,  promotional  concepts,  and other information designed to enhance the operation of the  Franchise.  In addition,  Pretzel Time may  provide  optional  special  promotions  from time to time  which will be at Franchisee's cost, which may be mandatory. At its initial opening, Pretzel Time, at  Franchisee's  expense,  shall  designate  and supply an initial  quantity of forms,  literature,   display,  and  promotional  materials.  Pretzel  Time,  in consideration of the Advertising Fund Fee, shall periodically provide Franchisee with  camera  ready  advertising  materials.   Multiple  copies  of  advertising materials will be furnished to Franchisee for an additional  fee,  including any related shipping, handling and storage charges.

         11.B.    CONTROL OF ADVERTISING PROGRAMS AND CONCEPTS.

         Pretzel Time shall direct all such programs,  with sole discretion over the creative concepts, materials,  endorsements, and media used therein, and the placement  and  allocation  thereof.   The  manner,   media  and  cost  of  such advertising,  public  relations  and  promotional  mailings  shall be solely and completely  within the  discretion of Pretzel Time.  Pretzel Time shall have the right to determine, in its sole discretion,  the target and market areas for the development  and  implementation  of such  programs.  Pretzel  Time may  expend, disburse and use funds from the Advertising  Fund, in its sole  discretion,  for the following purposes:

                  (1) The  creation  and  development  of nonlocal  advertising,          promotional campaigns,  and public relations to promote and enhance the          value of the Service  Marks and the  business  of all the Pretzel  Time          retail establishments;

                  (2) Payments to Pretzel Time of such reasonable sums as may be          necessary  for actual  costs of  advertising  production,  direct  mail          purchases, and other media marketing tools;

                  (3) Payment of salaries and  benefits  for staff  personnel in          the  marketing  and  public  relations  department  as  well  as  other          administrative  costs and overhead expenses of the department  incurred          by Pretzel Time;

                  (4) The  costs of  employing  advertising,  marketing,  public          relations and promotion  agencies to assist in preparing and conducting          media programs and activities and supporting public  relations,  market





         research and other advertising, promotion and marketing activities;

                  (5) Market  research  expenditures  related to the development          and evaluation of the effectiveness of advertising and sales promotion;          and

                  (6)  Costs  of  organizing   and  providing   facilities   for          international, national, or regional franchisee conferences.

         Franchisee  understands and  acknowledges  that the Advertising Fund is intended to maximize  recognition  of the Marks and  patronage  of Pretzel  Time Units.  Although  Pretzel Time will endeavor to utilize the Advertising  Fund to develop   advertising  and  marketing   materials  and  programs  and  to  place advertising that will benefit all Pretzel Time Units, Pretzel Time undertakes no obligation to ensure that  expenditures by the Advertising  Fund in or affecting any geographic area are  proportionate or equivalent to the contributions to the Advertising Fund by Pretzel Time Units operating in that geographic area or that any  Pretzel  Time  Units  will  benefit   directly  or  in  proportion  to  its contribution  to the  Advertising  Fund from the  development of advertising and marketing materials or the placement of Advertising.

         11.C.    SEGREGATION OF ADVERTISING FUND.

         Pretzel  Time  herein   agrees  to   administratively   segregate   the Advertising  Fund on its books and  records.  Fees paid by  Franchisee  into the advertising  fund  shall  not  under any  circumstance  be used for the  general operating  expenses of Pretzel Time but shall and will be used  exclusively  for advertising  as outlined  herein.  Pretzel  Time may spend in any fiscal year an amount greater or less than the aggregate  contributions  of the  franchisees to the fund in that  year and  Pretzel  Time  may  make  loans to the fund  bearing reasonable  interest  to cover  any  deficits  of the fund and cause the fund to invest any surplus for future use by the fund. It is anticipated,  and it is the intent of Pretzel Time that all  contributions to the Fund shall be expended for advertising  and  promotional  purposes during Pretzel Time's fiscal year within which  contributions  are made.  Any monies not  expended  in the fiscal year in which they were  contributed  shall be applied and used for Fund expenses in the following year.

                   11.D. SUSPENSION OF ADVERTISING FUND FEES.

         Pretzel  Time  reserves  the right to  suspend  contributions/fees  and operations of the  Advertising  Fund for one or more  periods,  and the right to terminate the  Advertising  Fund, upon thirty (30) days' prior written notice to Franchisee.  All unspent monies on the date of termination  shall be distributed to Pretzel Time's  franchisees and Pretzel Time, its Affiliates and designees in proportion to their  respective  contributions  to the Advertising Fund upon the same terms and  conditions set forth herein upon thirty (30) days' prior written notice Franchisee.

         11.E.    FRANCHISEE'S REQUIRED ADVERTISING EXPENDITURES.

         In addition to any contributions by Franchisee to the Advertising Fund, Franchisee is required to spend on marketing and related programs such amount as is  required  pursuant  to the terms and  conditions  of  Franchisee's  lease or sublease.  Franchisee  acknowledges  such amounts will vary from lease to lease, and therefore, all Pretzel Time Unit franchisees will not be obligated to expend the same amount on local advertising and marketing of the Unit.

         11.F.    USE OF TRADEMARK REFERENCES AND APPROVAL                   OF FRANCHISEE'S MARKETING.

         Franchisee further agrees that all advertising, promotion and marketing by Franchisee shall be completely clear and factual and not misleading and shall conform to the highest  standards of ethical  marketing and  promotion  policies which may be prescribed from time to time by Pretzel Time.  Franchisee agrees to use the  registration  symbol of R within a circle (7 ) in connection with its use of the Marks.  Franchisee  agrees to refrain  from any business or marketing practice  which may be  injurious  to the  business of Pretzel Time and the good will associated with the Marks and other Pretzel Time Units.  Prior to their use by  Franchisee,  all  press  releases,  literature,  and  samples  of all  local advertising, marketing, point-of-purchase, and related materials not prepared or previously  approved  by Pretzel  Time shall be  submitted  to Pretzel  Time for approval,  which shall not be unreasonably  withheld.  If written disapproval is not received within twenty (20) days from the date of receipt by Pretzel Time of such  materials,  Pretzel Time shall be deemed to have  approved the  materials. Franchisee  agrees not to use  promotional or advertising  materials  which have been  disapproved  by Pretzel Time or that have not been approved for use within the preceding twelve months.

         In  addition,  any  pamphlets,  brochures,  cards or other  promotional materials  offering  free Products may only be used if prepared by Pretzel Time, unless  otherwise  approved  in  advance by Pretzel  Time.  Notwithstanding  the foregoing, Pretzel Time will give favorable consideration to Franchisee's use of free product cards developed by Franchisee, if the cards clearly state that they may only be  redeemed  at Pretzel  Time Units  owned by  Franchisee.  Franchisee agrees to list and advertise the Franchise in the regular white pages  telephone directories distributed within Franchisee's metropolitan area.

         Franchisee  agrees to distribute and display at Franchisee's  location, literature,  display and promotional  materials  including  special  promotional materials  as  Pretzel  Time may from  time to time make  available.  Franchisee agrees that only those advertising,  promotional  materials,  or items which are authorized  by  Pretzel  Time in  writing  prior to use  shall be used,  sold or





distributed,  and no  alternate  display or use of the Pretzel Time Service Mark shall be made without the prior written permission of Pretzel Time.  Replacement or updated literature, display,  point-of-purchase and promotional materials may be obtained from Pretzel Time for a fee including shipping.

12.      ADHERENCE TO UNIFORM STANDARDS.

         12.A.    STANDARDS AND OPERATIONS MANUAL.

         Franchisee  acknowledges  and agrees that the  operation of the Pretzel Time Unit in accordance with the specifications, standards, operating procedures and rules Pretzel Time prescribes for the operation of Pretzel Time Units is the essence of this Agreement and is essential to preserve the goodwill of the Marks and all  Pretzel  Time  Units.  Franchisee  agrees to operate his Unit in strict compliance and adhere to Pretzel Time's Unit design,  signage,  interior  decor, equipment and  inventory  requirements  and rules and  standards and  procedures (hereinafter  referred to as Standards) set forth in any Operations  Manual or Training  Manual,  as periodically  modified and supplemented by Pretzel Time in its  discretion  during the term of this  Agreement  (Operations  Manual)  and acknowledges that the same are reasonable,  necessary and essential to the image and success of each Unit and the  Pretzel  Time System and agrees to comply with all such  requirements  and  procedures.  The  Operations  Manual shall  contain mandatory and suggested specifications,  standards and operating procedures that Pretzel Time prescribes from time to time for Pretzel Time Units and information relating to Franchisee's other obligations under this Agreement.  The Operations Manual  sets forth  Standards  regulating  and  relating  to  certain  important obligations  on  the  part  of  franchisees   and  sanctions  in  the  event  of noncompliance  with such  obligations.  Pretzel Time may regulate,  designate or approve any one or more of the following with respect to the Pretzel Time Unit:

         (1) Design, layout, decor, appearance and lighting;  periodic and daily          maintenance,  cleaning  and  sanitation;  replacement  of  obsolete  or          worn-out  fixtures,  furnishings,  equipment and signs; use of interior          and exterior signs,  emblems,  lettering and logos and the illumination          thereof;

         (2) Types,  models,  brands,  maintenance  and  replacement of required          equipment, fixtures, furnishings and signs;

         (3) Approved,  disapproved and required  Products and other items to be offered for sale;

         (4) Designated and approved  suppliers  (including  Pretzel Time and/or          its Affiliates) of equipment, fixtures,  furnishings,  signs, Products,          materials and supplies;

         (5)      Use and operation of an approved point of sale register;

         (6) Payment of vendors;  terms and  conditions  of sale and delivery of          and payment for  Products,  materials,  supplies and  services  sold by          Pretzel Time, its Affiliates or unaffiliated suppliers;

         (7) Marketing,  advertising  and  promotional  activities and materials required or authorized for use;

          (8)  Use of the Marks;

          (9)  Qualifications,  training,  dress,  appearance  and  staffing  of                employees;

          (10) Minimum hours of operation;

          (11) Participation  in market  research  and  testing  and Product and                service development programs prescribed by Pretzel Time;

          (12) Management  by Unit  Managers  who  have  successfully  completed                Pretzel Time's initial training program; communication to Pretzel                Time of the  identities  of such Unit  Managers;  replacement  of                managers whom Pretzel Time determines to be unqualified to manage                the  Pretzel  Time  Unit;  and  other  matters  relating  to  the                management of the Pretzel Time Unit and its management personnel;

          (13) Use of a designated  computer  hardware  and software  system and                equipment  with  telecommunications  capability,   including  the                procedures for providing sales information of the Unit to Pretzel                Time;

          (14) Bookkeeping,  accounting,  data  processing  and  record  keeping                systems and forms,  methods,  formats,  content and  frequency of                reports to Pretzel Time of sales, revenues, financial performance                and  condition;  operational  information;  tax returns and other                operating   and   financial   information,    including   without                limitation, audited yearly financial statements;

          (15) Types,  amounts,  terms and conditions and approved  underwriters                and          brokers of public, product, business interruption, crime loss, fire and          other  required  insurance  coverage;  Pretzel Time's rights under such          policies as an  additional  named  insured;  required or  impermissible          insurance contract  provisions;  assignment of policy rights to Pretzel          Time; Pretzel Time's right to obtain insurance coverage for the Unit at          Franchisee's  expense if Franchisee fails to obtain required  coverage;          Pretzel Time's right to defend claims;  and similar matters relating to





         insured and uninsured claims;

          (16) Compliance with applicable laws;  obtaining required licenses and                permits;  adherence to good business  practices;  observing  high                standards  of  honesty,   integrity,  fair  dealing  and  ethical                business  conduct in all dealings with  customers,  suppliers and                Pretzel   Time  and  its   Affiliates   and/or   designees;   and                notification  of Pretzel  Time in the event any  action,  suit or                proceeding  is commenced  against  Franchisee  or relating to the                Unit; and

          (17) Regulation of such other elements and aspects of the  appearance,                operation  of and conduct of business  by,  Pretzel Time Units as                Pretzel  Time   determines   from  time  to  time,  in  its  sole                discretion,  to be required to preserve or enhance the  efficient                operation, image or goodwill of Pretzel Time Units and the Marks.

         12.B.    CONFIDENTIALITY OF OPERATIONS MANUAL.

         Pretzel Time will make  available to Franchisee  during the term of the Franchise (1) copy of the Operations  Manual by loaning a copy of the Operations Manual to Franchisee. Franchisee acknowledges and agrees that all manuals loaned to Franchisee contain  confidential and proprietary  material and information of Pretzel  Time  provided  to  Franchisee  is to be  used  by  Franchisee  only in connection  with the  operation of the  franchised  Unit and other  Pretzel Time Units. The Operations Manual contains trade secrets and confidential information and will  remain the  property  of Pretzel  Time and shall be  returned to it on termination of this Agreement.  Franchisee  covenants not to reveal the contents of the Operations  Manual to  unauthorized  persons.  Franchisee may not, at any time,  copy the Operations  Manual,  in whole or in part,  either  physically or electronically. In the event Franchisee's copy of the Operations Manual is lost, destroyed or significantly damaged, Franchisee shall be obligated to obtain from Pretzel Time, at Pretzel Time's then applicable  charge,  a replacement  copy of the Operations Manual.

         12.C.    INCORPORATION OF OPERATIONS MANUAL INTO AGREEMENT.

         The  Operations  Manual's  specifications,   standards,  and  operating procedures  communicated to Franchisee in writing shall be deemed a part of this Agreement and are  incorporated  herein by  reference.  Such  Operations  Manual provisions and all reasonable  modifications shall be binding upon Franchisee to the same extent as if set forth verbatim in this Franchise  Agreement,  and such provisions  may be  changed  from  time to time by  Pretzel  Time,  in its  sole discretion,  provided that changes are  reasonably  designed to enhance  Pretzel Time's  Products,  the Pretzel  Time  System,  or  franchise  operation  and are uniformly  applied  with  respect  to all  franchisees.  Any  administrative  or financial  Section set forth in the  Operations  Manual shall be in addition to, and not in derogation or limitation  of, any right or remedy  granted to Pretzel Time  under  the  Franchise  Agreement,  the  Operations  Manual,  or any  other document,  or  otherwise  available  to  Pretzel  Time,  at  law  or in  equity, including,  without limitation,  the right to terminate a franchise in the event of certain defaults or delinquencies.

         12.D.    MODIFICATIONS/UPDATES OF OPERATIONS MANUAL.

          Franchisee  understands  and agrees  that the  Pretzel  Time System is constantly  being  modified  and  improved,  and  that  such  modifications  and improvements  require  changes  from time to time in the  system of  operations. Franchisee  further  agrees  to  accept  and  comply  with  such  modifications, revisions,  and additions to the Pretzel Time System and Operations Manual which Pretzel Time in the good faith exercise of its judgment believes to be desirable and reasonably necessary in the time period indicated by Pretzel Time.

         Franchisee  agrees  that  Standards  may be  periodically  modified  by Pretzel  Time and that such  modifications  may  obligate  Franchisee  to invest additional capital in the Unit and/or incur higher operating costs. Pretzel Time will not obligate  Franchisee to invest  additional  capital at a time when such investment cannot in Pretzel Time's reasonable  judgment be amortized during the remaining term of this  Agreement.  Franchisee  hereby agrees that standards and specifications  prescribed  from  time  to  time in the  Operations  Manual,  or otherwise  communicated  to  Franchisee  in  writing  or  electronically,  shall constitute provisions of this Agreement as if fully set forth herein.

13.      UNIT IMAGE AND OPERATION.

         13.A.    CONDITION AND APPEARANCE OF UNIT.

         Franchisee agrees that:

                  (1) neither the Unit nor the Site will be used for any purpose          other than the operation of a Pretzel Time Unit in full compliance with          this Agreement or other agreements with Pretzel Time; and

                  (2)  Franchisee  will maintain the condition and appearance of          the Unit, its equipment, furnishings, fixtures, and signs in accordance          with the  specifications  and standards of Pretzel Time and  consistent          with  the  image  of a  Pretzel  Time  Unit  as a  first-class,  clean,          sanitary,  attractive and efficiently  operated food service  business;          and

                  (3)  Franchisee  will  perform  such  maintenance  (including,          without limitation,  maintenance  procedures and routines which Pretzel          Time  prescribes  from  time  to  time)  with  respect  to  the  decor,





         equipment, fixtures,  furnishings,  vehicles, and signs of the Unit and          the Site,  as may be required or directed by Pretzel  Time from time to          time to maintain such condition,  appearance,  and efficient operation,          including, without limitation:

          (a)  continuous  and thorough  cleaning and sanitation of the interior                and exterior of the Unit;

          (b)  thorough repainting and redecorating of the interior and exterior                of the Unit and/or the Site at reasonable intervals;

          (c)  interior and exterior repair of the Unit and/or Site; and

          (d)  repair or replacement of damaged, worn out or obsolete                   furnishings,  equipment,  fixtures  and signs,  provided  that                   Pretzel  Time  will not  require  Franchisee  to  replace  any                   obsolete equipment unless Pretzel Time has initiated a program                   to  replace  such  equipment  as it becomes  necessary  in its                   company-owned Pretzel Time Units; and

                  (4) Franchisee  will not make any material  alterations to the          Site or to the appearance of the Unit as originally developed,  without          prior approval in writing by Pretzel Time; and

                  (5) Upon notice from Pretzel  Time,  Franchisee  shall remodel          and conform  Franchisee's  building design, Trade Dress, color schemes,          and  presentation  of Marks to Pretzel Time's then current public image          within a  reasonable  amount of time,  which  shall not  exceed six (6)          months.  Such a remodeling may include extensive  structural changes to          the Unit  fixtures and  improvements  as well as such other  changes as          Pretzel Time may direct and Franchisee  shall  undertake such a program          promptly upon notice from Pretzel Time;  provided the remodeling  shall          not be  required  until  such time as  Pretzel  Time has  commenced  or          completed a similar  program in at least fifty  percent  (50%) of those          Pretzel Time Units owned and operated by Pretzel Time. This requirement          shall not apply in the  event  notice  from  Pretzel  Time is  received          during the last year of the term hereof or the term of any agreement by          virtue of which Franchisee occupies the Unit.

         In addition to Pretzel Time's rights to terminate this Agreement as set forth herein,  if Franchisee  does not maintain the condition and  appearance of the Unit as herein  required,  Pretzel  Time,  may,  upon not less than ten (10) days'  written  notice  (or, in cases of health or  sanitation  hazards or other public endangerment, immediately on oral or written notice) to Franchisee:

          (i)  arrange  for  the  necessary  cleaning  or  sanitation,   repair,                remodeling, upgrading, painting or decorating; or

          (ii) replace the necessary fixtures, furnishings, equipment, signs.

         If Franchisee  fails or refuses to initiate  within ten (10) days after receipt  of  a  notice  that  the  general  state  of  repair,  appearance,  and cleanliness of your store does not meet Pretzel Time's standards, and thereafter continue in good faith and with due  diligence a bona fide  program to undertake and complete required  maintenance or refurbishing,  Pretzel Time has the right, but is not  obligated,  to enter upon the  premises  of the Unit and effect such maintenance and  refurbishing on Franchisee's  behalf,  and Franchisee shall pay the entire cost thereof to Pretzel Time on demand.

         13.B.  UNIT MENU.

         Franchisee  agrees that the Unit shall offer for sale all  Products and no other  products,  which Pretzel Time, in its sole  discretion,  may authorize and/or require from time to time for the Unit.  Franchisee  agrees that the Unit shall not offer for sale or sell any  Products  or  services at or from the Unit which have not been  approved in writing by Pretzel Time or use the Site or Unit for any purpose  other than the  operation  of a Pretzel  Time Unit.  Franchisee agrees that the Unit shall not sell any  Products at, from or away from the Site until Pretzel Time, in its sole discretion,  has approved the same, provided the foregoing  shall not limit  Franchisee  to sample in front of the lease  line as limited in  Franchisee's  lease.  Pretzel Time  reserves the right to change the types of  authorized  Products and require  Franchisee to offer to sell and sell the  new,  modified  or  substituted  Products.  Pretzel  Time may  develop  new Products,  methods  of  operations,  and  standards  and may  provide  you  with information about developments.  Franchisee also acknowledges and agrees that if Pretzel Time requires the Unit to use new or  substitute  products not currently offered at Pretzel  Time  Units,  Franchisee  agrees to offer such  Products  in compliance  with  Pretzel  Time's   specifications,   standards  and  procedures prescribed in the  Operations  Manuals or otherwise in writing and to diligently pursue  obtaining  any  permits  and  take  such  actions  (including,   without limitation,  constructing  improvements  and  acquiring  fixtures,  furnishings, equipment,  supplies, and materials) required to offer such Products. Franchisee acknowledges  and  understands  that such  modifications  to the  Products to be offered  by the Unit  may  require  Franchisee  to incur  additional  costs  and expenses to operate the Unit, including, without limitation, the purchase and/or lease of additional or substitute furnishings,  furniture, fixtures or equipment and Franchisee agrees to incur such expenses in connection therewith.

         13.C.    ADHERENCE TO APPROVED ITEMS.





         The  reputation  and goodwill of all Pretzel Time Units are based upon, and can only be maintained by, the sale of  distinctive,  high-quality  Products and the  presentation,  packaging  and service of Products in an  efficient  and appealing  manner.  Pretzel  Time has  developed  and shall  continue to develop certain  proprietary food products which will be prepared by or for Pretzel Time according to Pretzel Time's recipes and formulas. Pretzel Time has developed and shall continue to develop  standards and  specifications  for fresh  hand-rolled pretzels, frozen pretzels,  pretzel toppings,  beverages and other healthy snack food  products,   materials  and  supplies   incorporated  in  or  used  in  the preparation, baking, or serving of Products authorized by Pretzel Time. The need for quality and quantity control in the Products offered for sale at the Unit is acknowledged  by  Franchisee.  All  Products  offered by  Franchisee  must be of uniform  quality and quantity  and offered for sale to the public in  accordance with Pretzel Time's  specifications  as set forth in Pretzel  Time's  Operations Manual and as may be amended from time to time.

         Pretzel  Time has  approved  and shall  review and  continue to approve suppliers and  distributors  of the  foregoing  Products,  supplies,  materials, equipment,  fixtures  and  machines  that  meet  Pretzel  Time's  standards  and requirements  including,  without  limitation,  quality,  quantity and portions, prices,  output requirements,  distribution methods and locations,  standards of service, financial capability,  customer service and other criteria.  Franchisee agrees that minimum standards for items of inventory,  Products,  machines,  and equipment  may  be  recognized  by  brand  name  rather  than  by  technical  or engineering description.

         Franchisee  agrees  that  it  will  use  all  equipment  and  Products, including, without limitation, food products,  smallwares,  equipment, and paper products as designated by Pretzel Time and shall purchase Pretzel Time's private label  food  products,   materials,  supplies  and  proprietary  food  products, ingredients,  spices, sauces, mixes,  beverages,  materials and supplies used in the  preparation of Products  developed by or for Pretzel Time or its Affiliates whether or not pursuant to a special recipe or formula or bearing the Marks only from Pretzel  Time,  its  Affiliates  or  non-affiliated  sources  designated by Pretzel Time.  Franchisee  further agrees to purchase only from distributors and suppliers  approved  or  required by Pretzel  Time.  Franchisee  agrees that the approved Products, equipment, smallwares, and inventory used on the premises may alter from time to time as Pretzel Time reasonably deems  necessary.  Franchisee agrees to offer for sale only those  Products  approved  by Pretzel  Time and no others without the prior written approval of Pretzel Time. Franchisee shall not, after receipt in writing of any modification of an approved or required supplier or distributor,  manufacturer  of equipment,  products,  materials,  supplies or other items  reorder any product  from any  supplier or  distributor  that is no longer  approved.  Pretzel Time may approve or require a single  distributor  or supplier  for any  Products,  materials or supplies and may approve or require a distributor or supplier only as to certain products, materials and supplies, and such approval may be temporary pending a further  evaluation of such distributor or supplier by Pretzel Time. Pretzel Time may concentrate  purchases with one or more distributors or suppliers to obtain lower prices and/or advertising support and/or  services for the benefit of Pretzel Time, the Pretzel Time System and/or Pretzel Time Units.

         Pretzel Time will loan to Franchisee a list of approved  brand Products for use during the term of this  Franchise  Agreement  at the  initial  training session.  Franchisee  agrees to not copy the list.  Franchisee will,  during the term of this Agreement and after its  termination  or  expiration,  maintain the list  and its  contents  in  strict  confidence,  and  upon  the  expiration  or termination of this Franchise Agreement,  whichever is earlier, will immediately return it to Pretzel Time.  Pretzel Time shall promptly provide  Franchisee with any  amendments to the  designated  list of inventory of available  Products and supplies to be carried and sold at Franchisee's  location.  Franchisee  shall at all times  maintain an adequate  inventory of approved  Products  sufficient  in quality and variety to realize the full potential of the Unit.

         13.D.    EXCEPTION PROCESS.

         If   Franchisee   proposes  to  purchase   materials  or  supplies  not theretofore  approved by Pretzel Time as meeting its  specifications,  or from a supplier or  distributor  not  previously  approved by Pretzel Time,  Franchisee shall first notify Pretzel Time and request  Pretzel  Time's  approval using the special exception form provided to Franchisee in its Operations  Manual, and pay any reasonable fees that Pretzel Time designates therefor.  Further,  Franchisee agrees to use all forms  specified and developed by Pretzel Time for  requesting any exceptions in products or suppliers.  Pretzel Time may require submission of sufficient information and samples to determine whether such materials, supplies or suppliers meet its specifications as well as financial  information regarding the  supplier.  Pretzel Time will advise  Franchisee  within a  reasonable  time whether such

materials or supplies meet its specifications.  Pretzel Time does not maintain a formal criteria for approving materials,  supplies or suppliers.  All approvals, disapprovals  and  revocations of approval of suppliers will be  communicated to Franchisee,  in writing,  and shall be in the sole  discretion  of Pretzel Time. Franchisee  must  comply  with  the  following  conditions  in  order  to seek a substitution for a Pretzel Time approved Product:

                  (1) Franchisee  shall submit a written request to Pretzel Time





                  for approval of a non-approved supplier or product;

                  (2)  Franchisee  and  supplier  shall  demonstrate  to Pretzel                   Time's  reasonable  satisfaction that it is able to supply the                   commodity  which  meets  Pretzel  Time's   specifications   to                   Franchisee; and

                  (3)  The  supplier   shall   demonstrate   to  Pretzel  Time's                   reasonable  satisfaction that the supplier is of good standing                   in the  business  community  with  respect  to  its  financial                   soundness and the  reliability  of its product and service and                   shall  request  in  writing  to  Pretzel  Time to be  named an                   approved supplier.

         13.E.  PROMOTIONAL ALLOWANCES.

         Franchisee  acknowledges  and agrees that Pretzel Time may, in its sole discretion,  collect  and  retain all  allowances,  benefits,  credits,  monies, payments  or  rebates   (collectively   Promotional   Rebates),   whether  for promotional,  advertising  or other  purposes,  offered to Franchisee or Pretzel Time or its Affiliates by manufacturers,  suppliers and distributors  based upon Franchisee's  purchases of Products or other products and materials.  Franchisee assigns to Pretzel  Time or its designee all of  Franchisee's  right,  title and interest  in and to any and  all  such  Promotional  Allowances  and  authorizes Pretzel  Time or its  designee to collect any such  Promotional  Allowances  for remission to the general operating funds of Pretzel Time.

14.      FRANCHISEE OPERATIONS.

         14.A.    MANAGEMENT.

         Franchisee agrees that he will at all times faithfully,  honestly,  and diligently  perform his obligations  hereunder,  that he will continuously exert his best efforts and shall  continually  train and  supervise  his  personnel to Pretzel Time's  reasonable  standards,  in  furtherance  of the mutual  business interests of both Pretzel Time and Franchisee and that he will not engage in any other business or activity that may conflict with his obligations  hereunder.  A Unit  shall be under  the  direct,  on-premises  supervision  of a  trained  and competent  Franchisee  or a  trained  and  competent  employee  acting as a Unit Manager  at  all  times.  Franchisee  shall  remain  active  in  overseeing  the operations of the Unit  conducted  under the  supervision  of such Unit Manager. Pretzel  Time shall have the right to deal with the Unit  Manager and  assistant managers on matters  pertaining to the  day-to-day  operations of, and reporting requirements  for the Unit.  Franchisee shall be required to notify Pretzel Time within seven (7) business days of changing Unit Managers.  Franchisee shall hire all employees of the Unit and shall be exclusively  responsible for the terms of their  employment and compensation and for the proper training of such employees in the operation of the Unit.

         If the Unit at any time is not being  managed by you or a Unit  Manager who shall have satisfactorily completed Pretzel Time's training program, Pretzel Time is  authorized,  but is not  required to  immediately  appoint a Manager to maintain  the  operations  of the Unit for you.  Pretzel  Time has the  right to change a reasonable fee for such management  services,  not to exceed our costs, and to cease to provide such  management  services at any time.  Pretzel  Time's right to manage a Unit and obtain  reimbursement  for costs also  applies in the event of your death or disability.

         14.B.  SUFFICIENT WORKING CAPITAL.

         Franchisee shall maintain an adequate sales force to serve properly all customers,  and shall  carry at all times a stock of  merchandise  of such size, character,  quality and price to produce the maximum return to Franchisee and so as to produce all of the gross  revenue  which may be produced by such manner of operation.

         14.C.  FILING OF OPERATIONS AND SALES REPORTS.

         Franchisee's  net revenues and operational  analysis are to be reported on or before Tuesday at 12:00 P.M.  Eastern  Standard Time (or Eastern  Daylight Savings  Time) or any other  time  reasonably  designated  by Pretzel  Time,  to Pretzel Time on forms  designated by Pretzel Time for the immediately  preceding week.  If the gross sales report is not submitted as herein  specified,  Pretzel Time may, at its option,  charge a late fee of $50.00 to Franchisee.  There will only be one late fee for each late report.

         14.D.    EMPLOYEE DRESS AND CUSTOMER SERVICE.

         The  presentation  of an uniform  image is  essential  to a  successful franchise  system.  Franchisee  shall cause all  employees of  Franchisee  while working  at the  franchise  location  to dress  appropriately  (in the  specific uniform  approved and  designated  by Pretzel  Time) in keeping with the Pretzel Time image,  as Pretzel Time may designate  from time to time, to present a neat and clean  appearance  and to render  confident  and  courteous  service  to the Franchise's customers.

         14.E.  COMPLIANCE WITH LAWS AND GOOD BUSINESS PRACTICES.

         Franchisee  shall secure and maintain in force in his name all required licenses,  permits,  and  certificates  relating to the conduct of his  business pursuant to this  Agreement.  Franchisee  will  conduct the  Franchise in strict compliance  with  all  applicable  laws,  ordinances,   regulations,  and  other requirements  of any federal,  state,  county,  municipal  or other  government, including,   without  limitation,  those  laws  and  regulations  pertaining  to preparation,  purchase  and  handling of food  products,  occupational  hazards,





health,  safety and sanitation,  worker's compensation  insurance,  unemployment insurance,  and  withholding  and payment of all taxes.  While  Pretzel Time may advise  Franchisee  as  a  courtesy  on  any  applicable  laws,  ordinances,  or regulations,  Pretzel Time  undertakes  no duty to do so and  Franchisee  hereby acknowledges  it is Franchisee's  sole duty to inquire  regarding and concerning all laws,  ordinances,  and  regulations  affecting  the Unit,  its  operations, employees and Franchisee.

         Franchisee shall in all dealings with its customers, suppliers, Pretzel Time, and public officials adhere to high standards of honesty,  integrity, fair dealing and ethical conduct.  Franchisee  agrees to refrain from any business or advertising  practice which may be injurious to the business of Pretzel Time and the goodwill associated with the Marks and other Pretzel Time Units.

         Franchisee  shall notify  Pretzel  Time within three (3) business  days after the commencement of any action, suit, proceeding or issuance of any order, writ, injunction, award or court decree which may adversely affect the operation or financial  condition of Franchisee or the unit or immediately  notify Pretzel Time of any notice of health or sanitation violation.

         14.F.    PAYMENT OF TAXES.

         Franchisee  shall be  solely  responsible  for  payment  of all  taxes, including, but not limited to, real estate, sales, payroll,  franchise,  income, personal  property,  and gross  receipts taxes which are assessed as a result of Franchisee's operation of the Franchise.

         14.G.    SALE OF PRODUCT.

         Franchisee agrees not to sell or offer to sell any materials, supplies, or  inventory  used in the  preparation  of any of the  Products  other  than to Pretzel  Time and that he shall  not  sell,  dispense,  give  away or  otherwise provide without Pretzel Time's prior written consent any product except by means of retail sales in the  franchise  location.  Franchisee  may only sell finished Products  and may not sell any Products to any person or entity  purchasing  the Products for resale.  Notwithstanding  the foregoing,  Franchisee may offer free samples of  Products  at or  directly  in front of the Unit to retail  customers only.

         14.H.    COOPERATION.

         Franchisee  agrees that he shall  cooperate with Pretzel Time in taking any action, or refraining from any action, which in the judgment of Pretzel Time is  necessary or desirable to promote and enhance the quality of the products of the Franchise location, the service provided by the Franchisee,  or the image of the Franchise in the community.

         14.I.    INSURANCE.

         Franchisee shall maintain at Franchisee's expense, in form, amounts and with insurers  satisfactory  to Pretzel Time,  which  insurers must have an A.M. Best  Company  rating of A- or better and naming  Pretzel  Time an  additional insured,  insurance  against all types of public  liability with personal injury coverage and property damage coverage. In addition to coverage as aforesaid such insurance  shall  include  coverages as set forth in the  Operations  Manual and shall contain a provision  obligating  all insurers to provide a written  notice Pretzel Time of any  cancellation  or  modification  of coverage at least thirty (30) days prior to the effective date of such modification or cancellation.

         The insurance afforded by the policy or policies  respecting  liability shall  not be  limited  in any  way by  reason  of any  insurance  which  may be maintained  by  Pretzel  Time.  Within  sixty  (60) days of the  signing of this Agreement,  but in no event later than the date on which Franchisee  acquires an interest in the real  property  (by lease or  purchase) on which it will develop and operate the Franchise,  a Certificate of Insurance  showing  compliance with the foregoing  requirements shall be furnished by Franchisee to Pretzel Time for approval.  Such certificate shall state that said policy or policies will not be canceled or altered  without at least thirty (30) days prior  written  notice to Pretzel Time and shall reflect proof of payment of premiums. Maintenance of such insurance  and the  performance  by  Franchisee  of the  obligations  under this Section shall not relieve Franchisee of liability under the indemnity  provision set forth in this  Agreement.  Minimum  limits as required above may be modified from time to time, as conditions require by written notice to Franchisee.

         Should  Franchisee not procure and maintain such insurance  coverage as required  by Pretzel  Time,  Pretzel  Time  shall have the right and  authority, without any obligation to do so, immediately procure such insurance coverage and to charge same to Franchisee,  which charges  together with a reasonable fee for expenses incurred by Pretzel Time in connection with such procurement,  shall be payable by Franchisee immediately upon notice.

         Franchisee  shall fully  cooperate  with Pretzel Time in its efforts to obtain  such  insurance  policies,  promptly  execute  all forms or  instruments required to obtain or maintain such insurance policies, allow inspections of the Unit or vehicles  which are  required to obtain and maintain  insurance  and pay Pretzel Time on demand for any costs or premiums.

         14.J.    SUGGESTED RETAIL PRICES.

         Pretzel  Time  may  from  time to time  advise  or  offer  guidance  to Franchisee  relative to prices for Products  offered for sale by Franchisee that in Pretzel Time's judgment  constitute good business practice.  Franchisee shall not be  obligated  to accept any such advice or guidance and shall have the sole right  to  determine  and to sell  products  at any  price  that it  determines.





Whenever Pretzel Time recommends a retail price, such  recommendations are based on Pretzel  Time's  experience  concerning  all factors that enter into a proper price, but such recommendation is in no manner binding on Franchisee and no such advice or guidance  shall be deemed or construed to impose upon  Franchisee  any obligation  to charge any  fixed,  minimum  or  maximum  prices for any  product offered for sale by the Franchise.  Pretzel Time reserves the right to advertise retail  prices of Pretzel Time  Products,  provided  that such retail prices are qualified as suggested. The parties understand and agree that such advertising shall not be  construed  as  requiring  Franchisee  to adhere to such prices but Franchisee shall have complete freedom to establish retail prices.

15.      ACCOUNTING, REPORTS AND FINANCIAL STATEMENTS.

         15.A.  ESTABLISHMENT OF ACCOUNTING SYSTEM.

         Franchisee  shall  establish at his own expense a complete and accurate bookkeeping,  accounting,  record keeping and data processing system prepared in accordance with generally accepted  accounting  principles and conforming to the requirements and formats that Pretzel Time prescribes from time to time. Pretzel Time shall provide  Franchisee with forms on which to maintain certain sales and operational  data.  Franchisee  shall furnish to Pretzel Time on said forms that Pretzel Time prescribes from time to time:

         (i) On Tuesday of each week,  a report on the Unit's net  revenues  and          sales and operations for the previous week;

         (ii) Every six calendar month period,  a balance sheet and a profit and          loss statement for the Unit for the previous  semi-annual  period and a          year to-date  statement  of  financial  condition as of the end of such          previous period; and

         (iii) Within  thirty (30) days after  Franchisee's  year end, an annual financial report.

The reports  required in Section 15.A. (ii) and (iii) if not audited,  should be signed  by the  Franchisee  or its  financial  officer,  attesting  that (1) the reports are true and accurate,  (2) they are prepared in accordance with GAPP on a basis  consistent  with prior periods,  (3) they fully describe and completely disclose the information sought, and (4) the signer has made diligent efforts to ascertain the truth and completeness of the information.

         15.B.   MAINTENANCE OF RECORDS.

         Franchisee  agrees, at all times, he shall keep and maintain  adequate, accurate,  true, and proper records, books, reports, data, and accounts relative to the  franchise  in the English  language  and in  accordance  with  generally accepted accounting principles, and retain the records for a period of three (3) years  after  the date they  were  prepared,  from  which  there may be  readily determined the  information  required in the operating  reports to be filed with Pretzel Time. Such records include, without limitation, daily cash reports, cash receipts  journal  and general  ledger,  cash  disbursements  journal and weekly payroll register,  monthly bank statements and daily deposit slips and cancelled checks;  tax returns,  supplier  invoices,  dated cash  register  tapes,  weekly inventories, sales reports, financial statements and tax returns.

         Franchisee hereby authorizes  Pretzel Time to utilize the data supplied by  Franchisee  under this  Section  in any  publication,  discovery  statement, Offering  Circular,  or  advertisements  related  to the sale of  Franchises  or related  entities  by Pretzel  Time,  anywhere,  at any time,  without  specific compensation therefor.

16.      AUDITS AND INSPECTIONS.

         16.A.    AUDITS.

         Pretzel  Time or its  designee  shall have the right at any time during business  hours and without prior notice to  Franchisee,  to inspect,  audit and copy or the right to cause to be  inspected,  audited and copied,  the  business records,  bookkeeping and accounting  records,  sales and income tax records and returns and other records of the Franchised Business,  including but not limited to,  daily  cash  reports,  cash  receipts  journal  and  general  ledger,  cash disbursements  journal and weekly payroll register,  monthly bank statements and daily deposit slips and cancelled checks; tax returns,  supplier invoices, dated cash register tapes, weekly inventories, sales reports, financial statements and tax returns and the books and records of any  corporation or  partnership  which holds the Franchise  including the personal financial records and tax returns of the Franchisee during and after the term of the Franchise Agreement.  Franchisee agrees to maintain on the premises  all sales and  operational  information  for four weeks.

         Any such  inspection  or audit will take place at a time which will not interfere with  Franchisee's  normal business.  Franchisee shall fully cooperate with Pretzel Time's representatives and independent accountants hired by Pretzel Time to conduct any such inspection or audit.  If Pretzel Time deems  necessary, Franchisee shall deliver to Pretzel Time or its designated  agents copies of all bookkeeping  records not already in the  possession of Pretzel  Time,  including customer  records,  cash  register  tapes,  sales and  purchase  records and tax records,  to enable Pretzel Time or its representative or designee to adequately audit Franchisee's  gross sales.  Franchisee hereby waives any right to withhold tax records relative to the Franchise as privileged information. Each report and





financial  statement  shall be signed and verified by  Franchisee  in the manner Pretzel Time prescribes.  Pretzel Time reserves the right to require  Franchisee to have audited or reviewed financial statements prepared on an annual basis.

         In the event  that an audit  discloses  that  Franchisee's  actual  net revenues exceed  Franchisee's  reported net revenues by two percent (2%) or more for any thirty day  period,  Franchisee  is  obligated  to pay to Pretzel  Time, within  fifteen (15) days after receipt of the  inspection or audit report,  the royalty of seven percent (7%) and the  Advertising  Fund Fee of one percent (1%) of the amount of such  understatement  plus interest from the date such payments were originally due. The audit will be conducted at the expense of Pretzel Time, provided that if an audit  disclosed an  understatement  of two percent (2%), as described above,  Franchisee will bear the cost of the audit,  including without limitation,  the charges of attorneys  and any  independent  accountants,  their travel   expenses,   room  and  board,   and   compensation  of  Pretzel  Time's representatives  and  independent  accountants.  Providing  that in no case will Franchisee be obligated to pay more than ten thousand dollars ($10,000) for such inspection  or audit  costs.  The  foregoing  remedies  shall be in  addition to Pretzel Time's other remedies and rights under this Agreement or applicable law.

         16.B.    RIGHT OF ENTRY AND INSPECTION.

         To determine  whether  Franchisee  and the Unit are complying with this Agreement and with all Pretzel Time's  standards and operations as prescribed by Pretzel Time,  Pretzel Time or its designated agents shall have the right at any reasonable time and without prior notice to Franchisee to:

         a.  Inspect the Unit;

         b. Observe,  photograph  and video tape the Unit's  operations for such          consecutive or intermittent periods as Pretzel Time deems necessary;

         c. Remove  samples of any  Products,  materials or supplies for testing and analysis;

         d.  Interview personnel of the Unit;

         e.  Interview customers of the Unit; and

         f. Inspect and copy any books,  records and  documents  relating to the          operation  of the Unit.  Franchisee  agrees  to  cooperate  fully  with          Pretzel Time in connection with any such inspections, observations,  photographing,  video  taping,  Product  removal and  interviews. Franchisee  shall present to his customers  such comment or evaluation  forms as Pretzel Time periodically  prescribes and shall  participate  and/or request his customers  to  participate  in any surveys  performed by or on behalf of Pretzel Time. At the conclusion of his inspection,  Pretzel Time's field  representative shall prepare a written report which shall contain all of his  observations  and conclusions.  If the field representative  determines that a condition amounting to a default of this Agreement has occurred or exists,  this conclusion shall be promptly communicated to Franchisee and Pretzel Time.

17.      TRANSFER, ASSIGNMENT AND REPURCHASE.

         17.A.  BY PRETZEL TIME.

         This Agreement is fully transferable by Pretzel Time and shall inure to the benefit of any  assignee,  transferee  or other legal  successor  to Pretzel Time's interest  herein.  If Pretzel Time's assignee will perform any of Pretzel Time's obligations under this Agreement,  then that assignee must be financially capable of performing  those  obligations and the assignee must expressly assume and agree to perform  them.  Franchisee  agrees that Pretzel Time shall have the right,  from time to time, to delegate the  performance of any portion or all of its obligations and duties under this Agreement.

         17.B.  BY FRANCHISEE.

         Franchisee  understands  and  acknowledges  that the  rights and duties created by this Franchise Agreement are personal to Franchisee (or if Franchisee is a  corporation  or  partnership,  to its  Owners) and that  Pretzel  Time has granted the Franchise to Franchisee in reliance upon Pretzel Time's  perceptions of the individual or collective character,  skill, aptitude,  attitude, business ability and  financial  capacity of  Franchisee  (or its  Owners).  Accordingly, Franchisee agrees no Transfer shall be made without Pretzel Time's prior written approval.  Any Transfer  without such approval shall constitute a breach of this Agreement  and shall be void and of no  effect.  Pretzel  Time's  consent to the assignment  shall  neither  constitute  a  novation  or change  in  Franchisee's obligations under this agreement,  nor constitute a waiver of any claims Pretzel Time may have  against  Franchisee  (or its  Owners)  nor be  deemed a waiver of Pretzel Time's right to demand the transferee's exact compliance with all of the terms or conditions of this Agreement.

         17.C.  CONDITIONS FOR APPROVAL OF TRANSFER.

         If  Franchisee  is in full  compliance  with this  Agreement  (and,  if Franchisee is a corporation or  partnership,  its Owners are in full  compliance with this Agreement),  Pretzel Time shall not unreasonably withhold its approval of a Transfer that meets all of the following requirements:

         (1) The  transferee  and its  Owners  must  meet  Pretzel  Time's  then          applicable  standards for Pretzel Time Unit  franchisees  and must have          had sufficient business experience,  aptitude,  and financial resources          to operate the Unit;





         (2) Franchisee has paid such royalty,  advertising  fund fees,  amounts          owed for purchases by Franchisee  from Pretzel Time and its  Affiliates          and all other amounts owed to Pretzel Time or its  Affiliates and third          party  creditors and shall have  submitted to Pretzel Time all required          reports and statements;

         (3)  Franchisee or the  transferee has paid Pretzel Time's then current          transfer fee to defray expenses  Pretzel Time incurs in connection with          the  transfer,  except that if the  proposed  Transfer  is, to or among          Owners of Franchisee, this provision shall not apply;

         (4) The  Transferee  and/or its Unit  Manager  have  agreed to complete          Pretzel  Time's  training  program to Pretzel Time's  satisfaction  and          prior to the date of transfer;

         (5) The  Transferee  has  agreed  to be bound by all of the  terms  and          conditions of this Agreement and executes a current Franchise Agreement          and other franchise documents, a sublease agreement,  if any, and other          documents required by Pretzel Time;

         (6) Franchisee  (and its  transferring  Owners) have executed a general          release,  in form  satisfactory  to Pretzel Time, of any and all claims          against Pretzel Time and its Affiliates and their officers,  directors,          employees and agents;

         (7) Pretzel Time has approved the material terms and conditions of such          Transfer,  including,  without limitation,  that the price and terms of          payment are not so burdensome as to affect  adversely the  transferee's          operation of the Unit; provided,  however, that Pretzel Time's approval          of such Transfer does not ensure the transferee's  success as a Pretzel          Time Unit  franchisee,  nor should  the  transferee  rely upon  Pretzel          Time's  approval  of such  Transfer in  determining  whether to acquire          Franchisee's  Pretzel Time Unit; (8) If Franchisee  (and/or its Owners)          finances  any  part of the  sale  price  of the  transferred  interest,          Franchisee  and/or its Owners have agreed that all  obligations  of the          transferee  under or pursuant to any  promissory  notes,  agreements or          security  interests  reserved by Franchisee or its Owners in the assets          of the Unit or the Premises shall be  subordinate  to the  transferee's          obligations  to pay royalty and service  fees and other  amounts due to          Pretzel  Time and its  Affiliates  and  otherwise  to comply  with this          Agreement;

         (9) Franchisee (and its Owners) have executed a noncompetition covenant          in favor of Pretzel Time and the transferee agreeing that, for a period          of twelve (12) months commencing on the effective date of the Transfer,          Franchisee,  its  Owners  and  members  of the  immediate  families  of          Franchisee  and each of its Owners will not hold any direct or indirect          interest  as  a  disclosed  or  beneficial  owner,  investor,  partner,          director,  officer manager,  employee,  consultant,  representative  or          agent, or in any other capacity,  in a Competitive  Business located or          operating  within  three (3) miles of the Unit,  and  within  three (3)          miles of any other Pretzel Time Unit;

         (10) If consent is required, the lessor of the Premises consents to the          assignment or sublease of the Premises to the transferee;

         (11)  Franchisee  has complied with all of its  obligations  to Pretzel          Time, its Affiliates,  suppliers,  and distributors,  and Franchisee is          not in default under this Agreement or any other Agreement with Pretzel          Time or Pretzel Time's Affiliates;

         (12)  All  improvements,  including  refurbishings,   remodelings,  new          equipment must be made prior to the Transfer; and

         (13)  Franchisee  (and its Owners) has agreed that he will not directly          or  indirectly  at any time or in any manner  (except  with  respect to          Pretzel Time Units owned and operated by Franchisee)  identify  himself          or any  business  as a current or former  Pretzel  Time  Unit,  or as a          franchisee,  licensee or dealer of Pretzel Time or its Affiliates,  use          any Mark, any colorable imitation thereof or other indicia of a Pretzel          Time Unit in any manner or for any  purpose or utilize  for any purpose          any tradename,  trade or service mark or other  commercial  symbol that          suggests or indicates a connection or association  with Pretzel Time or          its Affiliates.

         17.D.    TRANSFER TO A WHOLLY-OWNED CORPORATION.

         Notwithstanding Section 17.B., if Franchisee is in full compliance with this  Agreement,  Franchisee may transfer this Agreement to a corporation  which conducts no business  other than the Pretzel  Time Unit and in which  Franchisee maintains management control and owns and controls one hundred percent (100%) of the equity  and  voting  power of all  issued  and  outstanding  capital  stock. Transfers of shares of such  corporation  will be subject to the  provisions  of Section 17.C.(2) and 17.C.(8).  Notwithstanding anything to the contrary herein, Franchisee  shall  remain  personally  liable  under  this  Agreement  as if the Transfer to such  corporation had not occurred.  The articles of  incorporation, by-laws and other organizational documents of such corporation shall recite that the issuance and  assignment of any interest  therein is restricted by the terms of Section 17 of this Franchise Agreement,  and all issued and outstanding stock certificates  of such  corporation  shall bear a legend reciting or referring to the restrictions hereof.

         17.E.  FORMATION OF A CORPORATION.





         In the event,  Franchisee  desires to form a  corporation  for the sole purpose of acting as a  Franchisee  under this  Agreement,  in  addition  to the conditions  imposed under Section 17, the following terms and conditions must be complied with, unless otherwise agreed in writing by Pretzel Time:

                  (1) Franchisee  must be the owner of the majority  interest in                   the  voting  stock  of  the   corporation  and  the  principal                   executive officer thereof;

                  (2)  Franchisee's  shareholders  shall enter into an agreement                   under seal with Pretzel Time, on Pretzel Time's standard form,                   guaranteeing  the  full  payment  of the  corporation's  money                   obligations to Pretzel Time as individual  surety and agreeing                   to be bound  individually  by the  non-competition  obligation                   stated herein; and

                  (3) Franchisee and all shareholders  must continue to meet its                   obligations  under  the  noncompetition   provisions  of  this                   Agreement.

         In  the  event   Franchisee  or  its  successor  is  a  corporation  or partnership or similar entity, it is agreed as follows:

                  (1) That the  Articles  of  Incorporation  and  By-Laws or the                   Partnership  Agreement,  shall  reflect  that the issuance and                   transfer of voting stock or other ownership  interest therein,                   is restricted by the terms of this Agreement. Franchisee shall                   furnish  Pretzel  Time at the  time of the  execution  of this                   Agreement or of assignment to the  corporation  or partners of                   Franchisee, a written agreement stating that no stockholder or                   partner  will  sell,  assign  or  transfer  voluntarily  or by                   operation  of law  any  securities  of  Franchisee,  or  other                   ownership  interest  in  Franchisee,  to any  person or entity                   other than existing shareholders or partnership, to the extent                   permitted  hereunder,  without  the prior  written  consent of                   Pretzel Time.  All securities  issued by Franchisee  will bear                   the  following  legend  which  shall be  printed  legibly  and                   conspicuously  on each stock  certificate or other evidence of                   Ownership Interest:

                    The  transfer of these  securities  is subject to the terms                     and  conditions of a Franchise  Agreement with Pretzel Time,                     Inc.  dated , 199____.  Reference is made to said  Agreement                     and to  the  restrictive  provisions  of  the  Articles  and                     By-laws or Shareholders or Partnership Agreement.

                  (2) That if Franchisee or a successor,  is a corporation,  the                   majority of the capital stock thereof shall not at any time or                   in the  aggregate  be sold,  assigned,  pledged,  mortgaged or                   transferred without the prior written consent of Pretzel Time.

                  (3) Franchisee  represents and warrants that its Owners are as                   set  forth  on  Exhibit  B  attached  to  this  Agreement  and                   covenants that it will not vary from that ownership  structure                   without the prior written approval of Pretzel Time.

         17.F.  DEATH OR DISABILITY OF FRANCHISEE.

         Upon the death or Permanent  Disability of Franchisee or, if Franchisee is a  corporation  or  partnership,  the  Owner  of a  Controlling  Interest  in Franchisee, the executor, administrator, conservator, guardian or other personal representative  of such  person  shall  transfer  Franchisee's  interest in this Agreement or such interest in  Franchisee  to a third party  approved by Pretzel Time.  Such  disposition  of this  Agreement  or  such  interest  in  Franchisee (including,  without  limitation,  transfer by bequest or inheritance)  shall be completed  within a reasonable  time, not to exceed six (6) months from the date of death or  Permanent  Disability,  and shall be  subject  to all the terms and conditions  applicable to Transfers contained in Section 17.B. and 17.C. Failure to transfer the interest in this Agreement or such interest in Franchisee within said period of time shall constitute a breach of this Agreement.

         17.G.    PRETZEL TIME'S FIRST RIGHT OF REFUSAL.

          If  Franchisee  (or its Owners)  shall at any time  determine to sell, assign or transfer for consideration  this Agreement or an Ownership Interest in Franchisee  or the Unit,  Franchisee  (or its Owners)  shall obtain a bona fide, executed  written offer and earnest  money deposit from a responsible  and fully disclosed purchaser (including lists of the Owners of record and beneficially of any corporate  offeror and all general and limited  partners of any  partnership offeror and, in the case of a publicly-held  corporation or limited partnership, copies of the most current annual and quarterly  reports) and shall  immediately submit to Pretzel  Time a true and  complete  copy of such  offer,  which  shall include  details of the payment  terms of the proposed  sale and the sources and terms of any financing for the proposed purchase price. To be a valid, bona fide offer, the proposed purchase price shall be denominated in a dollar amount.  The offer must apply only to an interest in this  Agreement,  Franchisee or the Unit and may not  include  an offer to  purchase  any  other  property  or  rights of Franchisee (or its Owners).  However,  if the offeror  proposes to buy any other property  or  rights  from   Franchisee   (or  its  Owners)  under  a  separate, contemporaneous offer, the price and terms of purchase offered to Franchisee (or its Owners) for the  interest in this  Agreement,  Franchisee  or the Unit shall reflect the bona fide price  offered  therefore  and shall not reflect any value for any other property or rights.





          Pretzel  Time  shall  have the right,  exercisable  by written  notice delivered to Franchisee  (or its Owners) within sixty (60) days from the date of delivery  of an exact copy of such  offer to  Pretzel  Time,  to  purchase  such interest for the price and on the terms and conditions  contained in such offer, provided that Pretzel Time may substitute cash for any form of payment  proposed in such offer,  Pretzel Time's credit shall be deemed equal to the credit of any proposed  purchaser and Pretzel Time shall have not less than sixty (60) days to prepare  for  closing.  Without  regard to the  representations  and  warranties demanded by the proposed  purchaser,  if any,  Pretzel Time shall be entitled to purchase such interest subject to all customary  representations  and warranties given by the  Franchisee,  seller of the assets of a business or voting stock of an  incorporated  business,  as  applicable,   including,   without  limitation, representations  and  warranties as to ownership,  condition and title to stock, and /or assets,  liens and  encumbrances  relating to the stock  and/or  assets, validity  of  contracts  and  liabilities  of the  corporation  whose  stock  is purchased and affecting the assets, contingent or otherwise.

         If Pretzel Time exercises its right of first refusal,  Franchisee  (and its Owners)  agrees that,  for a period of twelve (12) months  commencing on the date of the closing,  neither  Franchisee (nor its Owners) shall have any direct or indirect interest  (through a member of the immediate  families of Franchisee or its Owners of  otherwise)  as a  disclosed  or  beneficial  owner,  investor, partner, director, officer, employee, consultant, representative, or agent or in any other capacity in any Competitive Business located or operating within three (3) miles of the Unit,  and/or  three (3) miles of any other  Pretzel Time Unit. The  restrictions  of this Section  shall not be  applicable to the ownership of shares  of a class of  securities  listed on a stock  exchange  or traded on the over-the-counter market that represent two percent (2%) or less of the number of shares of that class of  securities  issued  and  outstanding.  If Pretzel  Time exercises its right of first refusal, Franchisee (and its Owners) further agrees that he will abide by the restrictions of Section 17.C.(13).

          If  Pretzel  Time  does not  exercise  its  right  of  first  refusal, Franchisee or its Owners may complete the sale to such purchaser pursuant to and on the exact  terms of such  offer,  subject to Pretzel  Time's  approval of the Transfer as provided in Section 17,  provided that if the sale to such purchaser is not completed  within 120 days after  delivery of such offer to Pretzel Time, or if there is a  material  change  in the terms of the sale  (which  Franchisee shall  promptly  communicate  to Pretzel  Time),  Pretzel  Time's right to first refusal shall be extended for thirty (30) days after the  expiration of such 120 day period or after the material change in the terms of the sale so communicated to Pretzel Time.

         17.H.    PUBLIC OR PRIVATE OFFERINGS.

         In the event  Franchisee (or any of its Owners)  shall,  subject to the restrictions  and  conditions  of Transfer  contained in Section 17,  attempt to raise or secure funds by the sale of securities (including,  without limitation, common or preferred stock,  bonds,  debentures or general or limited partnership interests) in Franchisee or any affiliate of Franchisee, Franchisee, recognizing that the written information may reflect upon Pretzel Time, agrees to submit any such written information used with respect thereto prior to its inclusion in any registration  statement,  prospectus or similar offering  circular or memorandum and to obtain Pretzel Time's written consent to the method of financing prior to any offering or sale of such securities. Pretzel Time's written consent pursuant to this Section  shall not imply or  constitute  Pretzel  Time's  approval  with respect to the sale of the  securities,  the  offering  literature  submitted to Pretzel  Time or any other aspect of the  offering.  No  information  respecting Pretzel  Time  shall  be  included  in  any  disclosure   document  unless  such information  has  been  furnished  by  Pretzel  Time  in  writing   pursuant  to Franchisee's  written request,  in which Franchisee states the specific purposes for  which the  information  is to be used.  Should  Pretzel  Time,  in its sole discretion, object to any reference to it or its business or to the relationship of  Franchisee  or  a  controlled  affiliate  in  such  offering  literature  or prospectus,  such  literature or  prospectus  shall not be used unless and until Pretzel Time's objections are withdrawn.  Pretzel Time assumes no responsibility whatsoever for any offering.  Franchisee  shall pay Pretzel  Time's  expenses in connection with the offering or proposed offering.

         The prospectus or other literature  utilized in any such offering shall contain the  following  language in  bold-face  type on the first  textual  page thereof:

         PRETZEL  TIME,  INC. IS NOT  DIRECTLY OR  INDIRECTLY  THE ISSUER OF THE          SECURITIES OFFERED HEREBY AND ASSUMES NO RESPONSIBILITY WITH RESPECT TO          THIS OFFERING AND/OR THE SUFFICIENCY OR ACCURACY OF THE INFORMATION SET          FORTH HEREIN,  INCLUDING ANY  STATEMENTS  WITH RESPECT TO PRETZEL TIME,          INC.  PRETZEL TIME,  INC.  DOES NOT ENDORSE OR MAKE ANY  RECOMMENDATION          WITH RESPECT TO THE INVESTMENT CONTEMPLATED BY THIS OFFERING.

         Franchisee  (and each of its Owners)  agrees to  indemnify,  defend and hold harmless Pretzel Time, its parent company, subsidiaries, and Affiliates and their officers, directors, employees and agents from any and all claims, demands and  liabilities,  and all costs and expenses  (including,  without  limitation, reasonable  attorneys' fees) incurred in defending against such claims,  demands or  liabilities,  arising  from the  offer or sale of such  securities,  whether asserted  by a  purchaser  of any such  security  or by a  governmental  agency. Pretzel  Time shall have the right (but not the  obligation)  to defend any such claims,  demands or  liabilities  and/or to  participate  in the  defense of any action to which it is named as a party.

18.      TERMINATION OF AGREEMENT BY FRANCHISEE.





         18.A.  FRANCHISEE'S RIGHT TO TERMINATE.

         If  Franchisee is in  substantial  compliance  with this  Agreement and Pretzel Time  substantially  breaches a material provision of this Agreement and (1) fails to cure such  breach  within  thirty  (30) days after  written  notice thereof is delivered to Pretzel Time or (2) if such breach cannot  reasonably be cured  within  thirty (30) days after  Pretzel  Time's  receipt of such  notice, undertake  (within  thirty (30) days after Pretzel Time's receipt of such notice and  continue  until  completion),  reasonable  efforts  to  cure  such  breach, Franchisee may terminate this Agreement. Such termination shall be effective ten (10) days after delivery to Pretzel Time of notice that such breach has not been cured and Franchisee  elects to terminate this Agreement.  A termination of this Agreement  by  Franchisee  for any reason other than a  substantial  breach of a material provision of this Agreement by Pretzel Time, and Pretzel Time's failure to cure  such  breach  as  provided  above  shall  be  deemed a  termination  by Franchisee without cause.

19.      DEFAULT AND TERMINATION.

         19.A.  EXACT AND COMPLETE PERFORMANCE REQUIRED.

         Franchisee  acknowledges that complete  performance of all the terms of this  Agreement  is  necessary  for  the  protection  of  Pretzel  Time  and its franchisees.  It is therefore agreed that complete and exact  performance by the Franchisee  of each of his  promises  contained  herein  is a  condition  to the continuance of this Franchise.

         19.B.    DEFAULT AND RIGHT TO CURE.

         If Franchisee  defaults in the  performance of any of the terms of this Agreement  or the  Operations  Manual,  Pretzel  Time,  in addition to all other remedies  available to it at law or in equity and without prejudice to any other rights or remedies,  may  immediately  terminate  this Agreement by delivering a written notice to Franchisee of any breach of this Agreement and a notice period of  forty-five  (45) days shall be given to  Franchisee,  unless such default is cured by the  Franchisee  within thirty (30) days after written  notice  thereof from Pretzel Time to Franchisee.  Notwithstanding the foregoing,  if the default is other  than a failure to pay a monetary  obligation  to Pretzel  Time or to a related  company and of a nature that more than thirty (30) days are  reasonably required to cure,  Franchisee  shall  commence  to cure the default  within said thirty (30) day period and shall proceed with such cure with due diligence  with a view to accomplishing the cure at the earliest possible moment, and within the period,  if any,  designated  by Pretzel Time as the allowable  additional  time within which the cure must be accomplished.

         19.C.  EXTENSION OF NOTICE.

         If any  applicable  law or rule  requires  a  greater  prior  notice of termination,  the prior notice required by such law or rule shall be substituted for the notice requirements herein.

         19.D.  REPEATED BREACHES.

         Further,   notwithstanding  anything  herein  elsewhere  contained,  if Franchisee shall repeatedly fail to comply with the terms of this Agreement,  or any of them,  of any nature,  even though such  failures may be cured within the applicable  grace  periods,  Pretzel Time shall have the right by written notice given to Franchisee  immediately  to declare this  Agreement  terminated,  which right shall be in addition to and without prejudice to any other right or remedy to which Pretzel Time may be entitled  under this  Agreement or otherwise  under applicable law. As used in this Agreement the term repeatedly  fail shall mean three (3) defaults within any twelve (12) month period, even if the defaults are later cured.          19.E.    EVENTS OF DEFAULT - 30 DAYS NOTICE - CURABLE DEFAULTS.

         The  occurrence of any one of the following  events shall  constitute a default under this Agreement  requiring a 30 day notice period of termination by Pretzel Time to Franchisee:

                  (i) Franchisee  fails to pay money when due to Pretzel Time as                   required  under the Franchise  Agreement,  including,  without                   limitation,  the franchise  fee, the renewal fee, the transfer                   fee, royalties, and the advertising fund fee; or

                  (ii) If Franchisee or his Unit Manager fails to satisfactorily                   complete any mandatory  training  programs (except the initial                   training  in  which  case,  the  Franchise  Agreement  can  be                   terminated upon notice) offered by Pretzel Time; or

                  (iii) If Franchisee  fails to submit to Pretzel Time financial                   or other  information  when required  under this  Agreement or                   submits a financial statement which materially understates net                   revenues; or

                  (iv) If  Franchisee  fails to develop or construct the Unit in                   accordance  with  this  Agreement;  Pretzel  Time's  plans and                   specifications  or fails to equip and furnish the  location in                   accordance with Pretzel Time's plans and specifications; or

                  (v) A final judgment against Franchisee remains unsatisfied of                   record for thirty  (30) days,  unless a  supersedeas  or other                   appeal bond has been filed; or

                  (vi) Franchisee or any of its Owners  abandons,  surrenders or





                  transfers  control of the  operation  of the Unit  without the                   prior  written  approval  of Pretzel  Time,  or  threatens  to                   abandon the same; or

                  (vii) Franchisee fails to use Pretzel Time approved  marketing                   and  promotional  materials  or  Franchisee  fails to  receive                   Pretzel  Time's prior  approval of marketing  and  promotional                   materials; or

                  (viii) Failure to obtain Pretzel Time's prior written  consent                   or  approval  where   expressly   required  by  the  Franchise                   Agreement; or

                  (ix) If Franchisee  operates the franchise in such a manner so                   as  to  affect   materially  and  adversely  the  goodwill  or                   reputation  of  Pretzel  Time  or its  System  or any  product                   manufactured by any Affiliate; or

                  (x)  Franchisee  denies  Pretzel Time the right to inspect the                   Unit or to examine or audit his books; or

                  (xi)  Franchisee  misuses  Pretzel Time's Marks or asserts any                   interest  in  Pretzel   Time's  Marks;   uses  Pretzel  Time's                   tradename  or any  part  thereof  as part to of its  corporate                   name;  does not cooperate in the  enforcement  of any Mark; or                   challenges or seeks to challenge the validity of the Marks; or

                  (xii)  Franchisee  fails to  maintain  and operate the Unit in                   accordance  with standards and  specifications  established by                   Pretzel Time as to the services or  maintenance  of inventory;                   or

                  (xiii)  Franchisee  fails to obtain  all  permits,  insurance,                   licenses and other necessary  documents for the opening of the                   Unit; or

                  (xiv)  Franchisee  fails to maintain  uniform  Unit design and                   image,  and/or  fails to  refurbish  or remodel as required by                   Pretzel Time; or

                  (xv) Franchisee attempts or does mortgage, pledge or otherwise                   assign as security the premises,  any equipment,  furnishings,                   fixtures or any interest Franchisee may have; or

                  (xvi) Conduct by  Franchisee  which is of such a nature that a                   reasonably   objective   person  would  consider  same  to  be                   deleterious  to or to reflect  unfavorably  on Pretzel Time or                   the Pretzel Time Unit System; or

                  (xvii) Failure by Franchisee to maintain a responsible  credit                   rating by failing to make prompt payment of undisputed  bills,                   invoices and  statements  from  suppliers or  distributors  of                   goods and services to the Unit; or

                  (xviii)  Failure  to  comply  with  all  of the  terms  of the                   Operations  Manual as amended from time to time, the standards                   and  specifications  required  by  Pretzel  Time or any  other                   agreement between the Franchisee and Pretzel Time; or

                  (xix) Fails to pay any federal or state income, sales or other                   taxes due on the Unit's  operations  unless  Franchisee  is in                   good faith contesting his liability for such taxes; or

                  (xx)  Franchisee  knowingly  sells any product or service that                   does not  conform to Pretzel  Time's  specifications,  uses or                   sells products other

                  than  in  strict  accordance  with  the  requirements  of  the                   Franchise  Agreement or the Operations  Manual;  fails to sell                   products  or services  approved by Pretzel  Time or deals with                   vendors and suppliers not approved by Pretzel Time.

                  (xxi) Franchisee fails to pay any subcontractor, contractor or                   other  person  to whom  money is due and  that  subcontractor,                   contractor  or other  person  demands  said money from Pretzel                   Time.

                  (xxii)  Franchisee is late in paying rent to the landlord more                   than 2 times in any twleve month period.

         19.F.    EVENTS OF DEFAULT - IMMEDIATE TERMINATION - NO RIGHT TO CURE.

         The  following  acts of  default  will  result  in  termination  of the Franchise  effective  immediately upon delivery and receipt of written notice of same to Franchisee  and with no right to cure where the grounds for  termination or cancellation are:

          (i)  Franchisee or a Owner fails to complete all phases of the initial                training program to Pretzel Time's satisfaction; or





          (ii) Franchisee  fails to  commence  operation  of the Unit within the                time specified in this Agreement; or

          (iii) Any affirmative act of bankruptcy or insolvency by                   Franchisee,  or the filing by  Franchisee  of any  petition or                   action in bankruptcy or  insolvency,  or for  appointment of a                   receiver  or  trustee,   Franchisee   admits  in  writing  his                   inability to pay his debts or an assignment by Franchisee  for                   the benefit of creditors,  or the failure to vacate or dismiss                   within  five  (5)  days  after  filing  any  such  proceedings                   commenced  against  Franchisee  by a third  party.  Franchisee                   expressly  and  knowingly  waives any rights  that he may have                   under the provisions of the  Bankruptcy  Rules and consents to                   the  termination  of this  Agreement or any other relief which                   may be sought in a complaint filed by Pretzel Time to lift the                   provisions  of the  automatic  stay of the  Bankruptcy  Rules.                   Additionally Franchisee agrees not to seek an injunction order                   from any court in any  jurisdiction  relating  to  insolvency,                   reorganization of arrangement proceedings which would have the                   effect of staying or enjoining this provision.  THIS PROVISION                   MAY  NOT BE  ENFORCEABLE  UNDER  FEDERAL  BANKRUPTCY  LAW  (11                   U.S.C.A. Sec. 101 et seq.); or

                  (iv)  Failure to cure  within  seventy-two  (72)  hours  after                   delivery  of  written  notice of default  under the  Franchise                   Agreement  which  materially  impairs the goodwill  associated                   with Pretzel  Time's trade names,  trademarks,  service marks,                   logo types or other commercial

                    symbols or the use by Franchisee of any name,  mark,  system                     insignia or symbol not authorized by Pretzel Time; or

                  (v) The conviction of Franchisee,  or any if its principals if                   it is a partnership or corporation,  of a crime related to the                   business conducted pursuant to the franchise which may tend to                   affect  adversely the goodwill or  reputation  of  Franchisee,                   Pretzel Time or its System or the  products of Pretzel  Time's                   Affiliates; or

                  (vi)  Abandonment  of the  Franchise.  For  purposes  of  this                   agreement Abandonment shall mean Franchisee's failure (other                   than with Pretzel  Time's prior written  approval) to keep the                   franchise  open and operating for business  during the minimum                   opening hours specified in this Agreement or Lease  Agreement;                   or

                  (vii) Franchisee ceases to occupy the premises. If the loss of                   possession in the result of  governmental  exercise of eminent                   domain,  destruction  of the  site,  or  termination  of lease                   (except by reason of Franchisee's fault), Franchisee may (with                   Pretzel Time's consent and subject to  availability)  relocate                   to  other  premises  in  a  comparable  location.  Failure  to                   relocate to other Pretzel  Time-approved  premises  within the                   time specified in this Agreement  after loss of possession due                   to eminent  domain,  destruction of premises or termination of                   lease without  Franchisee's  fault shall  constitute an act of                   Default with no right to cure and immediate  termination  upon                   notice; or

                  (viii) The existence of an imminent danger to public health or                   safety or fails or refuses to comply with  standards  relating                   to the  cleanliness  or sanitation of the Unit or violates any                   health, safety or sanitation,  law ordinance or regulation and                   does not correct such  noncompliance  within  forty-eight (48)                   hours after written notice thereof is delivered to Franchisee;                   or

                  (ix) The loss of the right to occupy the  premises  from which                   the  franchise  is  operated by either  Franchisee  or Pretzel                   Time; or

                    (x) Material  falsification  of business records and reports                     required by Pretzel Time; or

                  (xi)  Franchisee  (or any of its Owners) makes an  assignment,                   surrenders  or  transfers  control of the Unit's  operation in                   violation of this Agreement; or

                  (xii)  Franchisee (or any of its Owners) has made any material                   misrepresentation  or  omission  in the  application  for  the                   Franchise or in materials submitted relating to a transfer; or

                  (xiii)  Franchisee,  (or  its  Owners)  or  members  of  their                   immediate  family violate the restrictions on the operation of                   Competitive Businesses during the term of this Agreement; or

                  (xiv)  Franchisee (or any of its Owners or employees) makes an                   unauthorized  use or disclosure  of or duplicates  any copy of





                  any Confidential  Information or uses, duplicates or discloses                   any  portion of the  Operations  Manual in  violation  of this                   Agreement; or

                  (xv) Failure on two (2) or more separate  occasions within any                   period  of  twelve  (12)  consecutive  months  or on three (3)                   occasions during the term of this Agreement to submit when due                   reports or other data, information or supporting records or to                   pay when due the  Royalty  and fees or other  payments  due to                   Pretzel Time or its  Affiliates  or otherwise  fails to comply                   with this  Agreement,  whether or not such  failures to comply                   with this Agreement,  Advertising Fund Fee are corrected after                   notice thereof is delivered to Franchisee; or

                  (xvi) Fails to cure a default under this Agreement  within the                   time specified or provide proof  acceptable to Pretzel Time of                   efforts  which  are  reasonably  calculated  to  correct  such                   failure within a reasonable  time,  which shall in no event be                   more than sixty (60) days after such  notice,  if such failure                   cannot  reasonably be corrected  within twenty (20) days after                   written  notice of such  notice of  default  is  delivered  to                   Franchisee; or

                  (xvii) Franchisee terminates this Agreement without cause; or

                  (xviii) Franchisee  understates the Unit's net revenues in any                   report or financial  statement  by an amount  greater than two                   (2) percent; or

                  (xix)  Franchisee  causes or permits to exist a default  under                   the  lease or  sublease  for the Site and  fails to cure  such                   default  within the  applicable  cure  period set forth in the                   lease or sublease; or

                  (xx)  Franchisee  (or any of its Owners) fails on three (3) or                   more separate  occasions within any period of twenty-four (24)                   consecutive  months to comply with this  Agreement  whether or                   not such  failures  to comply are  corrected  after  notice of                   default  is  given,  or  failure  on two (2) or more  separate                   occasions within any period of twelve (12) consecutive  months                   to comply within the same  requirement  under this  Agreement,                   whether or not such  failures  to comply are  corrected  after                   notice of default is given.

20. RIGHTS AND  OBLIGATIONS OF PRETZEL TIME AND FRANCHISEE  UPON  TERMINATION OR EXPIRATION OF THE FRANCHISE.

         20.A.  AMOUNTS OWED.

         Unless otherwise authorized by Pretzel Time in writing, in the event of expiration or termination  of this  Agreement for any reason,  or upon the sale, transfer or  assignment  of the  Franchise by  Franchisee,  all of  Franchisee's rights  hereunder  shall  terminate  and  Franchisee  shall cease to operate the Franchise.  Franchisee agrees to pay Pretzel Time within fifteen (15) days after the effective date of termination or expiration of this Agreement, or such later date that the amounts due to Pretzel Time are  determined,  such  Royalty  Fees, Advertising  Fund Fees,  amounts owed for purchases by  Franchisee  from Pretzel Time or its  Affiliates,  interest  due on any of the  foregoing  and all  other amounts owed to Pretzel Time or its Affiliates which are then unpaid.

         Expiration or  termination  of this  Agreement for any reason shall not affect,  modify, or discharge any note, account receivable,  or debt, contingent or otherwise,  existing or arising under this Agreement, or any prior agreement, contract, or dealing between Pretzel Time and Franchisee.

         20.B.    DISCONTINUANCE OF MARKS.

         Franchisee  agrees to immediately  discontinue  all use of trade names, trademarks,  logotypes,  forms of advertising  and other  commercial  symbols of Pretzel Time, and forms of advertising indicative of Pretzel Time and cancel all assumed  name  registrations.  Franchisee  further  shall  remove or cause to be removed all signs and  structures  indicative  of a Pretzel  Time Unit and shall alter the premises occupied by Franchisee so as to distinguish the same from its former appearance and from a Pretzel Time franchise.  Further,  Franchisee shall discontinue  the use of any and all printed goods and materials using said trade names,  trademarks,  logos and other  commercial  symbols  of Pretzel  Time.  If Franchisee  refuses to comply  with the terms of this  Section 20 after  Pretzel Time  requests  compliance,  Pretzel  Time  shall  have the right to enter  upon Franchisee's  premises  without being deemed guilty of  trespassing or any other offense,  and make or cause to be made such  changes  at  Franchisee's  expense, which Franchisee agrees to pay upon demand.

         Franchisee  agrees to not directly or  indirectly at any time or in any manner (except with respect to other Pretzel Time Units owned by the Franchisee) identify himself or any business as a current or former Pretzel Time Unit, or as a franchisee,  licensee or dealer of Pretzel Time or its Affiliates.  Franchisee further  agrees to not use any Mark,  any colorable  imitation  thereof or other indicia of a Pretzel  Time Unit in any manner or for any  purpose or utilize for any purpose any trade name,  trade or service  mark or other  commercial  symbol that suggests or indicates a connection or association  with Pretzel Time or its Affiliates.  Franchisee (or any of its Owners) agrees after  termination he will not do  business  under any name or in any  manner  that  might tend to give the general  public the  impression  that he is  associated,  affiliated,  licensed, franchised by or related to Pretzel Time.  The Franchisee (or any of its Owners) may not thereafter  use any name,  logo type, or symbol  confusingly  similar to





Pretzel  Time's  Service  Mark,  logo type or symbol.  If  Franchisee  continues operating a business at the franchised  location it will exert every  reasonable effort to inform the public of his new status,  including a change of  telephone number and advertising materials.

         The Franchise granted to Franchisee  hereunder to sell Products bearing Pretzel Time's Marks does not include the right to sell or advertise for sale of Franchisee's  Franchise itself or of its business location.  No advertisement by Franchisee  or  other  public  solicitation  for  sale of his  interest  in this Agreement  may  include a  representation  of Pretzel  Time's  trademark  or any reference to Pretzel Time or its trademark system.

         20.C.    RETURN OF MATERIALS.

         Franchisee  agrees to return to  Pretzel  Time all  signs,  sign-faces, forms,  invoices,  letterhead,  and  other  materials  containing  any  Mark  or otherwise identifying or relating to a Pretzel Time Unit and allow Pretzel Time, without liability to remove all such items from the Unit. Franchisee also agrees to return all  materials  and  confidential  information  loaned to  Franchisee, including,  without limitation,  all Operations Manuals and Training Manuals and videos. Franchisee agrees to return all materials and supplies identified by the Marks in full cases or  packages  to Pretzel  Time for credit and dispose of all other materials and supplies, but not equipment,  identified by the Marks within thirty (30) days after the effective  date of  termination or expiration of this Agreement.

         20.D.    TELEPHONE COMPANY.

         Franchisee  agrees to notify the  telephone  company and all  telephone directory  publishers of the termination or expiration of Franchisee's  right to use any  telephone  and telecopy  numbers and any regular,  classified  or other telephone  directory  listings  associated  with any Mark and to  authorize  the transfer  thereof to Pretzel Time or at its direction.  Franchisee  acknowledges and agrees  that as between  him and  Pretzel  Time,  Pretzel  Time has the sole rights to and  interest in all  telephone  and  telecopy  numbers and  directory listings  associated  with any Mark.  Franchisee  authorizes  Pretzel Time,  and hereby appoints Pretzel Time and any of its officers as Franchisee's attorney in fact, to direct the telephone company and all telephone directory  publishers to transfer any telephone and telecopy numbers and directory  listings  relating to the Pretzel Time Units to Pretzel Time or at its  direction,  should  Franchisee fail or refuse to do so, and the telephone  company and all telephone  directory publishers  may accept such direction or this agreement as conclusive of Pretzel Time's  exclusive  rights in such  telephone and telecopy  numbers and directory listings  and Pretzel  Time's  authority to direct  their  transfer.  Franchisee agrees to execute a  collateral  assignment  of  telephone  numbers and listings agreement  which is attached hereto as Exhibit G. In no event shall Pretzel Time be responsible  for any charges  incurred by Franchisee and associated  with the telephone company prior to the date of transfer.

         20.E.    CONFIDENTIAL INFORMATION.

         Franchisee (and its Owners) agrees that upon  termination or expiration of this Agreement, he will immediately cease to use any Confidential Information of Pretzel Time or its Affiliates disclosed to him pursuant to this Agreement in any business or otherwise.  This  provision is also  applicable to the Owners if the Franchise is a corporation or partnership.

         20.F.    LEASING.

         If Franchisee  has leased the  premises,  Pretzel Time may, in its sole discretion  and without any  obligation to do so,  assume the lease.  Franchisee will not be entitled to any refund of the initial franchise fee,  royalties,  or Advertising Fund Fees.

         20.G.    COVENANT NOT TO COMPETE.

         Upon  termination of this  Agreement,  in accordance with its terms and conditions or by Franchisee  without cause, or upon expiration of this Agreement (unless the Franchise is renewed as provided for in this Agreement),  Franchisee and its Owners agree that for a period of TWELVE (12) months  commencing  on the effective  date of  termination  or expiration  or the date on which  Franchisee complies  with this Section,  whichever is later,  neither  Franchisee,  nor its Owners,  nor any person or entity  affiliated  with  Franchisee or  Franchisee's shareholders or partners shall have any direct or indirect  interest  (through a member of the immediate  families of Franchisee or its Owners or otherwise) as a disclosed or beneficial owner, investor,  partner, director,  officer, employee, consultant,  representative,  agent or in any other capacity in any  Competitive Business  located or operating:  (1) at the Site;  (2) within three (3) miles of the Unit;  and/or (3) within  three (3) miles of any other  Pretzel Time Unit in operation  or  under  development  on  the  effective  date  of  termination  or expiration of this  agreement for a period of one year after the  termination or expiration.  The  restrictions  of this Section  shall not be  applicable to the ownership  of shares of a class of  securities  listed  on a stock  exchange  or traded on the over-the-counter market that represent two percent (2%) or less of the  number  of shares  of that  class of  securities  issued  and  outstanding. Franchisee  and its Owners  expressly  acknowledge  that they possess skills and abilities of a general nature and have other  opportunities  for exploiting such skills. Consequently, enforcement of the covenants made in this Section will not deprive the Franchisee or its Owners or shareholders of their personal  goodwill or ability to earn a living.

The Franchise  Agreement contains a covenant not to compete which extends beyond





the termination of the franchise. Franchisee and its Owners acknowledge that the covenant  not to compete is fair and  reasonable,  and will not impose any undue hardship,  since the Franchisee (and its Owners) has other considerable  skills, experience and education  which will afford him the opportunity to derive income from other endeavors.

Neither  Franchisee  nor any of its Owners shall divert or attempt to divert any business or any customers of any Pretzel Time Unit to any  Competitive  Business or employ or seek to employ any  person who is  employed  by Pretzel  Time,  its Affiliates  or a franchisee  of Pretzel Time nor induce or attempt to induce any such person to leave said  employment  without the prior written consent of such person's employer.

         20.H.  PRETZEL TIME'S RIGHT TO PURCHASE ASSETS OF THE UNIT.

         Upon  termination of this Agreement by Pretzel Time in accordance  with its terms and  conditions or by Franchisee  without cause or upon  expiration of this  Agreement  (unless the franchise  has been  renewed),  Pretzel  Time,  its Affiliates  or  its  assignee  shall  have  the  option  (not  the  obligation), exercisable  by giving  written  notice  thereof within sixty (60) days from the date of such  expiration  or  termination,  to acquire from  Franchisee  all the assets  in the Unit  including  the  equipment,  furnishings,  signs,  leasehold improvements,  usable  inventory  of  Products,  materials,  supplies  and other tangible assets of the Unit and an assignment of the lease for the Unit. Pretzel Time  shall  have the  unrestricted  right to assign  this  option to  purchase. Pretzel Time or its assignee  shall be entitled to all customary  warranties and representations  in  connection  with its  asset  purchase,  including,  without limitation,  representations  and  warranties as to ownership,  condition of and title to assets, no liens and encumbrances on the assets,  validity of contracts and agreements and liabilities  inuring to Pretzel Time or affecting the assets, contingent or otherwise.

         (1) The purchase price for the assets of the Unit shall be equal to the greater of:

                  The sum of the book  value  of the  Unit's  assets  (including                   furnishings,  fixtures, equipment, and leasehold improvements)                   amortized on a straight-line basis over a five (5) year period                   plus the lesser of costs and the then-current wholesale market                   value of all  usable  inventory  of  Products,  materials  and                   supplies (i.e. in good and saleable condition and not obsolete                   or discontinued), or

                  The  product of the Unit's  average  cash flow for the two (2)                   most recently  completed  fiscal years  multiplied by two (2).                   Cash  flow  represents  the  Unit's  net  revenues  less all                   pretzel  unit-related  costs (i.e., cost of goods sold, labor,                   occupancy   and  other  Unit   expenses)  as  well  as  annual                   administrative  costs of ten thousand dollars ($10,000.00) and                   royalty and  service  fees,  but not  including  interest  and                   depreciation.

         (2)  Pretzel  Time and its  Affiliates  shall have the right to set off against and reduce the purchase  price by any and all amounts owed by Franchisee to Pretzel  Time and its  Affiliates.  Pretzel  Time may exclude from the assets purchased  hereunder any  equipment,  furnishings,  signs,  usable  inventory of Products,  materials  or supplies of the Unit that Pretzel Time has not approved as meeting its standards for Pretzel Time Unit,  and the purchase price shall be reduced by the  replacement  costs of such excluded  items which are required in the operation of the Unit.

         (3) The  purchase  price  shall be paid in cash at the  closing  of the purchase, which shall take place no later than ninety (90) days after receipt by Franchisee  of Pretzel  Time's notice of exercise of this option to purchase the Unit, at which time Franchisee shall deliver instruments transferring to Pretzel Time or its assignee good and merchantable  title to the assets purchased,  free and clear of all liens and encumbrances  with all sales and other transfer taxes paid by  Franchisee,  and all  licenses  or  permits  of the Unit  which  may be assigned or transferred. In the event the closing of the purchase does not occur within said ninety (90) day period because Franchisee fails to act diligently in connection therewith,  the purchase price shall be reduced by ten percent (10%). Franchisee  further agrees that the purchase  price shall be further  reduced by ten percent (10%) per month for each subsequent  month  Franchisee  fails to act diligently to consummate this  transaction.  In the event that Franchisee cannot deliver clear title to all of the purchased assets as aforesaid, or in the event there are other unresolved  issues, at Pretzel Time's option,  the losing of the sale shall be accomplished through an escrow.  Prior to closing,  Franchisee and Pretzel  Time shall  comply with the  applicable  Bulk Sales  provisions  of the Uniform Commercial Code as enacted in the state in which the Unit is located.

         (4) If Pretzel Time or its assignee  exercises this option to purchase, pending  the  closing of such  purchase,  Pretzel  Time may appoint a manager to maintain the operation of the Unit, at its option,  require  Franchisee to close the Unit during such time period  without  removing any assets.  If Pretzel Time appoints a manager to maintain the operation of the Unit pending closing of such purchase, all funds from the Unit's operation during the period of management by a  Pretzel  Time  appointed  manager  shall be kept in a  separate  fund and all expenses of the Unit, including compensation,  other costs and travel and living expenses of the Pretzel Time appointed  manager,  shall be charged to such fund. As compensation for the management services provided,  Pretzel Time shall charge such fund ten  percent  (10%) of the  Unit's net  revenues  during the period of Pretzel Time's management. Operation of the Unit during any such period shall be for and on behalf of  Franchisee,  provided  that Pretzel Time shall have a duty only to utilize its good faith  efforts and shall not be liable to Franchisee or





its Owners for any debts,  losses or obligations  incurred by the Unit or to any creditor  of  Franchisee  for any  merchandise  materials,  supplies  or service purchased by the Unit during any period in which it is managed by Pretzel Time's appointed  manager.  Franchisee  shall maintain in force all insurance  policies required for the Unit until the date of closing.

21.      RELATIONSHIP OF THE PARTIES/INDEMNIFICATION.

         21.A.    EXCLUSIVE RELATIONSHIP.

         Franchisee acknowledges and agrees that Pretzel Time would be unable to protect  Confidential  Information  against  unauthorized  use or disclosure and would be unable to  encourage  a free  exchange of ideas and  information  among Pretzel Time Units if  Franchisees  of Pretzel Time Units were permitted to hold interests in or perform services for a Competitive  Business except as specified in Exhibit C.  Franchisee  also  acknowledges  that Pretzel Time has granted the Franchise to  Franchisee  in  consideration  of and reliance  upon  Franchisee's agreement to deal  exclusively  with Pretzel Time.  Franchisee  therefore agrees that  during the term of the  Franchise  Agreement,  or the period of time which Franchisee operates a Unit under this Agreement,  whichever is shorter,  neither Franchisee  nor  any  Affiliate,  immediate  family  member,  or  in  the  event Franchisee is a corporation

any Owner thereof and member of his immediate  family or in the event  Franchise is a partnership any partner  (general or limited) thereof and any member of his immediate family, shall:

         (1) Have  any  direct  or  indirect  interest  as an  owner,  investor,          partner, director, officer, employee, consultant, representative, agent          or in  any  other  capacity  in any  Competitive  Business  located  or          operating  at the Site or within  three (3) miles of any  Pretzel  Time          Unit  in  operation  or  under  development  on the  effective  date of          termination or expiration of this Agreement, except a Pretzel Time Unit          operated by Franchisee under Franchise Agreements with Pretzel Time; or

         (2) Recruit or hire any employee who, within the immediately  preceding          six (6) month period,  was employed by Pretzel Time or any Pretzel Time          Unit operated by Pretzel Time, its Affiliates or another  franchisee or          licensee  of  Pretzel  Time,   without   obtaining  the  prior  written          permission of Pretzel Time or such franchisee.

         Notwithstanding the foregoing,  Franchisee shall not be prohibited from owning securities  listed on a stock exchange or traded on the  over-the-counter market that represents two percent (2%) or less of that class of securities.

         Covenants contained in this Section shall be construed as severable and independent,   and  shall  be  interpreted  and  applied   consistent  with  the requirements  of  reasonableness.  Any judicial  reformation of these  covenants consistent  with this  interpretation  shall be enforceable as though  contained herein  and shall not affect any other  provisions  or terms of this  Agreement. This non-compete provision may not be enforceable under the laws of your state.

         21.B.  NO LIABILITY FOR ACTS OF OTHER PARTY.

         Franchisee shall not employ any of the Marks in signing any contract or applying  for any  franchise or permit or in a manner that may result in Pretzel Time's  liability for any of Franchisee's  indebtedness or obligations,  nor may Franchisee  use the Marks in any way not  expressly  authorized by Pretzel Time. Except as expressly  authorized in writing,  neither Pretzel Time nor Franchisee shall  make  any  express  or  implied  agreements,  warranties,  guarantees  or representations  or  incur  any  debt in the  name or on  behalf  of the  other, represent that their relationship is other than Pretzel Time and franchisee,  or be obligated by or have any liability  under any  agreements or  representations made by the other that are not  expressly  authorized  in writing.  Pretzel Time shall not be  obligated  for any damages to any person or  property  directly or indirectly  arising out of the  operation of the Unit or  Franchisee's  business authorized by or conducted pursuant to this Agreement.

         21.C.    TAXES.

         Pretzel  Time shall have no  liability  for any  sales,  use,  service, occupation,  excise,  gross receipts,  income,  property or other taxes, whether levied upon Franchisee, the Unit, Franchisee's property or upon Pretzel Time, in connection with the sales made or business  conducted by Franchisee.  Payment of all such taxes shall be Franchisee's responsibility.

         21.D.    INDEMNIFICATION.

         Franchisee   agrees  to  indemnify   and  hold  Pretzel  Time  and  its subsidiaries,  Affiliates, stockholders,  directors, officers, employees, agents and assignees harmless against, and to reimburse them for, any loss,  liability, judgment  or damages  (actual or  consequential)  and all  reasonable  costs and expenses of  defending  any claim  brought  against any of them or any action in which any of them is named as a party (including, without limitation, reasonable accountants,  attorneys' and expert witness fees, costs of investigation,  court costs, other litigation expenses,  damages to Pretzel Time's reputation and good will, travel expenses) which any of them may suffer,  sustain or incur by reason of, arising from or in connection  with  Franchisee's  ownership or operation of the Unit, unless such loss, liability or damage is only due to the negligence of Pretzel  Time  (or  its  Affiliates,  subsidiaries).  Pretzel  Time's  right  to indemnity  under  this  agreement  shall  arise  notwithstanding  that  joint or concurrent  liability  may be  imposed on Pretzel  Time by  statute,  ordinance, regulation or other law.  Franchisee  acknowledges and agrees that any action or inaction by any third party which is not an  Affiliate of Pretzel Time shall not





be attributable to or constitute negligence of Pretzel Time. The indemnities and assumptions of liabilities and  obligations  herein shall continue in full force and effect  subsequent to and  notwithstanding  the expiration or termination of this Agreement.

         Pretzel Time shall notify Franchisee of any claims and Franchisee shall be given the  opportunity  to assume the  defense of the matter.  If  Franchisee fails to assume the defense  within  three (3) days of notice  thereof,  Pretzel Time may defend the action in the manner reasonably appropriate,  and Franchisee shall pay to Pretzel Time all reasonable  costs,  including  without  limitation attorney's  fees,  court  costs,  expert  witness  fees,  travel  and  telephone expenses, incurred by Pretzel Time in effecting such defense, in addition to any such sum which Pretzel Time may pay by reason of any settlement agreed to by the parties or reasonably  negotiated by Pretzel Time in the event  Franchisee fails to assume the defense, or judgment against Pretzel Time.

         21.E.  INDEPENDENT CONTRACTOR.

         It is understood and agreed by the parties hereto that Franchisee is an independent contractor and is not an agent, partner, joint venturer, or employee of  Pretzel  Time.  Pretzel  Time and  Franchisee  agree  that  nothing  in this Agreement  is  intended  to  create  a  fiduciary   relationship  between  them. Franchisee  shall have no right to bind or obligate  Pretzel Time in any way nor shall he  represent  that he has any right to do so.  Pretzel Time shall have no control over the terms and conditions of employment of Franchisee's employees.

         In all public records and in his  relationship  with other persons,  on stationery, business forms and checks, Franchisee shall indicate his independent ownership of the  franchised  Unit and that he is a franchisee  of Pretzel Time. Franchisee  shall exhibit on the premises in such places as may be designated by Pretzel  Time,  a Pretzel  Time  approved  notice  that the  franchised  Unit is operated by an  independent  operator and not by Pretzel Time or Pretzel  Time's Affiliates,  which operate company owned  franchises.  Franchisee shall take all legal  steps  such as a  fictitious  name  registration  to ensure  Franchisee's independent business status.

22.      PROTECTION OF TRADE SECRETS.

         22.A.  CONFIDENTIAL INFORMATION.

         Pretzel Time  possesses  and will further  develop and acquire  certain confidential  and  proprietary  information  and trade  secrets  relating to the operation  of  Pretzel  Time  Units,  which  includes,  but not  limited  to the following  categories  of  information,  methods,  techniques,  procedures,  and knowledge  developed or to be  developed by Pretzel  Time,  its  consultants  or contractors,  its Affiliates or its designees, and/or franchisees (Confidential Information):

         (1)  methods,   techniques,   equipment,   specifications,   standards,          policies, procedures, information, concepts and systems relating to and          knowledge  of  and  experience  in  the   development,   operation  and          franchising of Pretzel Time Units:

         (2) site selection criteria;

         (3) marketing and promotional programs for Pretzel Time Units;

         (4) recipes, ingredients,  formulas, mixes, spices, seasonings, sauces,          recipes for, and methods for the preparation,  cooking,  and serving of          the Products;

         (5)  techniques,  formats,  specifications,  systems,  procedures,  and          knowledge of and experience in the development and operation of Pretzel          Time Units;

         (6) knowledge of specifications  for and suppliers of certain Products,          materials, supplies, equipment, furnishings and fixtures;

         (7) sales data and information  concerning  inventory  requirements for          Products,  materials and supplies, and specifications for and knowledge          of suppliers of certain materials,  equipment, and fixtures for Pretzel          Time Units;

         (8) employee selection procedures, training and staffing levels;

         (9) Operations Manual and other Manuals prepared by Pretzel Time; and

         (10) information concerning Product sales, operating results, financial          performance and other financial data of Pretzel Time Units.

         Pretzel Time will disclose such parts of the  Confidential  Information as  Pretzel  Time deems  necessary  or  advisable  from time to time in its sole discretion  for the  operation  of a  Pretzel  Time  Unit to  Franchisee  during training, and in guidance and assistance furnished to Franchisee during the term of the Franchise, and Franchisee may learn or otherwise obtain from Pretzel Time additional  Confidential  Information  of  Pretzel  Time  during the term of the Franchise.  Franchisee acknowledges that the foregoing Confidential  Information is highly  confidential.  Franchisee  acknowledges  and agrees  that he will not acquire  any  interest  in  Confidential  Information,  other  than the right to utilize Confidential Information disclosed to Franchisee in the operation of the Pretzel  Time  Unit  during  the  term of this  Agreement,  and  that the use or duplication  of  any  Confidential  Information  in  any  other  business  would constitute an unfair method of competition. Franchisee, including its directors,





officers,  shareholders,  and partners agree(s) that Confidential Information is proprietary,  includes  trade  secrets  of  Pretzel  Time  and is  disclosed  to Franchisee solely on the condition that Franchisee  agrees,  and Franchisee (and its Owners) does hereby agree, that he:

         (1) shall not disclose any  information  pertaining to the Pretzel Time          System,  directly or indirectly,  to any person,  natural or corporate,          without the express prior written  consent of Pretzel Time.  Franchisee          may disclose to its Unit Manager such  information  deemed necessary to          disclose,  provided  such Unit  Manager  has  agreed to  maintain  such          information in confidence in Pretzel Time's  confidentiality  agreement          and Pretzel Time has received such executed agreement  (attached hereto          as Exhibit H);

         (2) Will not use  Confidential  Information  in any other  business  or capacity;

         (3)  Will  maintain  the  absolute   confidentiality   of  Confidential          Information during and after the term of this Agreement;

         (4) Will not make  unauthorized  copies of any portion of  Confidential          Information disclosed in written or other tangible form; and

         (5) Will adopt and implement  all  reasonable  procedures  that Pretzel          Time  prescribes  from  time  to time to  prevent  unauthorized  use or          disclosure of Confidential Information,  including, without limitation,          restrictions on disclosure thereof to his employees.

         This  confidentiality  requirement  shall  not apply in a  judicial  or administrative  proceeding  to the extent  Franchisee  is legally  compelled  to disclose such information,  provided Franchisee shall have used his best efforts and shall have afforded  Pretzel Time the  opportunity  to obtain an appropriate protective order or other assurance satisfactory to Pretzel Time of confidential treatment for the information required to be so disclosed.  This restrictions on Franchisee's  disclosure and use of the Confidential  Information shall also not apply to the  disclosure of  information,  methods,  procedures,  techniques and knowledge which are or become  generally  known in the food service  business in the Territory, other than through disclosure (whether deliberate or inadvertent) by Franchisee.

         Notwithstanding   the  foregoing  and  any  other   provision  of  this Agreement,  Franchisee may use the  Confidential  Information in connection with the operation of other Pretzel Time Units (in addition to the Unit)  pursuant to other Franchise Agreements with Pretzel Time.

         22.B.  DISCLOSURE OF IDEAS AND NEW PROCEDURES.

         Franchisee  shall  fully and  promptly  disclose to Pretzel  Time,  all ideas,  concepts,  methods  and  techniques  relating  to  the  development  and operation  of a dessert or snack food  business  conceived  or  developed by the Franchisee  and/or  Franchisee's  employees  during the term of this  Agreement. Franchisee  agrees and grants to Pretzel Time and its Affiliates a perpetual and worldwide  right to use and  authorize  other  Pretzel  Time Units or other food service businesses  operated by Pretzel Time or its Affiliates,  franchisees and designees  to  use  such  ideas,  recipes,  formulas,   concepts,  methods,  and techniques  relating to the development  and/or  operation of a dessert or snack food business.  If incorporated into the Pretzel Time System for the development and/or operation of Pretzel Time Units, such ideas, recipes, formulas, concepts, methods and techniques  shall become the sole and exclusive  property of Pretzel Time without any further consideration to Franchisee. Pretzel Time shall have no obligation to make any lump sum or on-going  payments to Franchisee with respect to any such idea, concept, method, technique or product.  Franchisee agrees that Franchisee  will not use nor will it allow any other person or entity to use any such concept,  method,  technique or product  without  obtaining  Pretzel Time's prior written approval.

23.      ENFORCEMENT.

         23.A.    UNAVOIDABLE DELAYS.

         Delays in the  performance  of any duties  hereunder  which are not the fault of, and not within the reasonable  preventive control of, the party due to perform,  including but not limited to, fire,  flood,  labor  disputes,  natural disasters, acts of God, civil disorders, riots,  insurrections,  work stoppages, slowdowns or disputes,  or other  similar  events,  shall not cause a default in said  performance,  but the parties shall extend the time of  performance  for a period of time equivalent to the length of delay,  or for such other  reasonable period of time as agreed by the parties.

         23.B.    RIGHTS OF PARTIES ARE CUMULATIVE.

         The rights of Pretzel Time and Franchisee  hereunder are cumulative and no exercise or  enforcement by Pretzel Time or Franchisee of any right or remedy hereunder  shall  preclude  the  exercise  or  enforcement  by  Pretzel  Time or Franchisee  of any  other  right  or  remedy  herein  or which  Pretzel  Time or Franchisee is entitled by law to enforce.

         23.C.    WAIVER OF OBLIGATIONS.

         Pretzel Time may by written instrument unilaterally waive or reduce any obligation  of  or  restriction  upon  Franchisee  under  this  Agreement,   and Franchisee may by written instrument unilaterally waive or reduce any obligation of or  restriction  upon  Pretzel  Time under  this  Agreement,  effective  upon delivery of written  notice  thereof to the other or such other  effective  date stated on the notice of waiver.  Whenever this Agreement requires Pretzel Time's





prior  approval  or  consent,  Franchisee  shall make a timely  written  request therefore, and such approval shall be obtained in writing. Pretzel Time makes no warranties  or  guaranties  upon  which  Franchisee  may rely,  and  assumes  no liability or  obligation  to  Franchisee,  by granting  any waiver,  approval or consent to  Franchisee,  or by reason of any  neglect,  delay,  or denial of any request therefore. Any waiver granted by Pretzel Time shall be without prejudice to any other rights Pretzel Time may have, will be subject

to continuing review by Pretzel Time, and may be revoked, in Pretzel Time's sole discretion,  at any  time  and  for  any  reason,  effective  upon  delivery  to Franchisee of ten (10) days' prior written notice.

         23.D.    CONTINUING OBLIGATIONS.

          All  obligations of Pretzel Time and Franchisee  which expressly or by their very nature survive the expiration or termination of this Agreement  shall continue  in  full  force  and  effect  subsequent  to and  notwithstanding  its expiration  or  termination  and until  they are  satisfied  or by their  nature expire.

         23.E.    INVALID OR UNENFORCEABLE PROVISIONS.

         If any provisions of this  Agreement,  or its application to any person or  circumstance,  is deemed  invalid or  unenforceable  by a court of competent jurisdiction,  then the remainder of this  Agreement or the  application of such provision  to other  persons or  circumstances  shall not be  affected  thereby, provided,  however,  that if any provision or application  thereof is invalid or unenforceable,  the court shall  substitute a suitable and  equitable  provision therefore  in order to carry out,  so far as may be valid and  enforceable,  the intent and purpose of the invalid or unenforceable provision.

         If any applicable and binding law or rule of any jurisdiction  requires a  greater  prior  notice  of the  termination  of or  refusal  to enter  into a successor Franchise  Agreement to this Agreement than is required hereunder,  or the  taking of some  other  action  not  required  hereunder,  or if,  under any applicable  and binding law or rule of any  jurisdiction,  any provision of this Agreement  or any  standard or procedure  outlined in the  Operations  Manual is invalid or unenforceable,  the prior notice and/or other action required by such law or rule shall be  substituted  for the  comparable  provisions  hereof,  and Pretzel  Time shall  have the  right,  in its sole  discretion,  to modify  such invalid or unenforceable operations procedure or standard to the extent required to be valid and enforceable.

         23.F.  INJUNCTIVE RELIEF.

         Franchisee  recognizes and  acknowledges the unique value and secondary meaning  attached to the Pretzel Time system,  its  trademarks,  service  marks, standards of operation and Pretzel Time's property.  Franchisee acknowledges and agrees that any noncompliance with the restrictive  covenants  contained herein, including  without  limitation  those provisions  pertaining to  noncompetition, confidentiality  and the improper or  unauthorized  use of Pretzel  Time's Marks will cause  irreparable  damage to Pretzel Time and its franchisees.  Franchisee therefore agrees that should it violate any restrictive covenant, or threaten to breach the  restrictive  covenants,  then Pretzel Time shall be entitled to both permanent  and temporary  injunctive  relief,  without  bond,  from any court of competent  jurisdiction  in addition to any other remedies to which Pretzel Time may be entitled,  at law or in equity,  under this agreement or otherwise  under applicable law.

         23.G.    APPLICABLE LAW.

         Except to the extent governed by the U.S. Trademark Act of 1946 (Lanham Act, 15 U.S.C.  1051 et seq.),  this Agreement,  the other agreements  referred herein,  and the offer and the sale of the  franchise  shall be  governed in all respects  and  aspects  by the  laws of the  Commonwealth  of  Pennsylvania  and expressly  excluding  the laws  pertaining  to the choice of law and conflict of laws.

         23.H.    ENTIRE STATUS OF AGREEMENT.

         This Agreement  contains the entire  agreement of the parties and there are no other oral or written  understandings or agreements  between Pretzel Time and Franchisee  relating to the subject matter of this agreement,  except as set forth in Pretzel  Time's  Offering  Circular  required by Rule under the Federal Trade  Commission  Act, a copy of which has been provided to  Franchisee  and of which   Franchisee   acknowledges   receipt,   there  are  no   representations, inducements, promises, agreements arrangements or undertakings, oral or written, between  the  parties  hereto  other than those set forth and duly  executed  in writing.  No agreement of any kind shall be binding upon either party unless and until the same has been made in writing and duly executed by both parties.

         Upon  acceptance  of this  Agreement  by  Pretzel  Time,  all  previous agreements,  contracts,  arrangements  or  understandings  of any kind,  oral or written,  relative to the franchise granted herein are cancelled, and all claims and demands  thereon are fully  satisfied.  This  agreement,  although  drawn by Pretzel Time,  shall be construed  fairly and reasonable,  and not more strictly against one party than against the other party hereto.

         23.I.    AMENDMENT OF AGREEMENT.

         This  Agreement  shall not be  modified  or  amended  except by written





agreement  executed by both parties hereto.  No oral amendment or waiver will be effective and that this provision cannot be orally amended or waived.  No waiver of default or rights will be effective unless in writing.

         23.J.    HEIRS, SUCCESSORS AND ASSIGNS.

         Subject to the provisions  hereof  relating to transfer and assignment, this Agreement is intended to and does bind the heirs, executors, administrators and successors of any or all of the parties hereto.

         23.K.    CONDITIONS AND CONTINGENCIES.

         The obligations of the parties hereunder are expressly  conditional and contingent  upon the full execution of and performance of all obligations by the parties  under this  Agreement.  This  Agreement is expressly  conditional  upon Franchisee  executing all documents  required by this Agreement  within ten (10) days of receipt of the document.  Failure by Franchisee to execute any documents shall result in the Agreement being null and void.

         In addition during Franchisee's  training,  all documents pertaining to the  franchising of Franchisee as a Pretzel Time Unit shall be held in escrow by Pretzel Time. Title in and to the Pretzel Time Unit shall not pass to Franchisee until  Franchisee  has  been  trained  as  a  Pretzel  Time  franchisee  to  the satisfaction  of Pretzel Time. If Franchisee  fails to  satisfactorily  complete Pretzel Time initial  training,  the appointment of Franchisee as a Pretzel Time franchisee  and the granting of the franchise  business to  Franchisee  shall be null and void, all documents executed between Franchisee and Pretzel Time or its designees with respect to the transaction shall be terminated and cancelled. The Franchisee acknowledges and agrees that no portion of the Franchise fee shall be refunded if Franchisee  fails to complete  Pretzel Time's initial training class to the  satisfaction  of Pretzel Time. If the  Franchisee  completes the initial training to the  satisfaction  of Pretzel  Time,  Pretzel  Time will  provide to Franchisee fully signed copies of the Franchise Agreement.

         It is  understood  and agreed by the parties  that the  granting of the franchise  and all  contracts  and  agreements  entered  into by and between the parties with respect to the Unit are specifically contingent upon the signing of a lease for the Site.  In the event that a lease for the Site cannot be obtained on or before sixty (60) days after  delivery of Pretzel  Time's  approval of the Site at no fault  or delay by  Franchisee,  then all  contracts  and  agreements entered into by Pretzel Time, and  Franchisee  shall become null and void and of no effect,  and all monies  deposited by Franchisee less a nonrefundable  fee of $2,500 shall be refunded.

         23.L.    WAIVER BY PRETZEL TIME.

         No waiver by  Pretzel  Time of any  default  or  failure  to perform by Franchisee,  or of any  breach of the  terms of this  Agreement  or no  failure, refusal or neglect of Pretzel Time to exercise any right,  option or power given it under this Agreement,  shall preclude Pretzel Time from thereafter  requiring strict  compliance or from declaring  this  Agreement and the franchise  granted herein  revoke or  terminated.  The failure of Pretzel  Time to  terminate  this Agreement upon the occurrence of one or more Acts of Default will not constitute a waiver  or  otherwise  affect  the right of  Pretzel  Time to  terminate  this Franchise  because of a continuing or subsequent  failure to cure one or more of the aforesaid events of default or any other default.

         23.M.    COSTS AND EXPENSES OF ENFORCEMENT.

         If a claim  for  amounts  owed by  Franchisee  to  Pretzel  Time or its Affiliates  is  asserted  in any  judicial or  arbitration  proceeding  or later appeal,  or if Pretzel Time is required to enforce the Franchise  Agreement in a judicial or arbitration proceeding or later appeal, the prevailing party will be entitled  to  reimbursement  of its costs  and  expenses,  including  reasonable arbitrators',  accountants'  and  legal  fees,  whether  incurred  prior  to, in preparation for or in contemplation of the filing of any written demand,  claim, action,  hearing or  proceeding  to enforce  the  obligations  of the  Franchise Agreement.  If Pretzel Time incurs  expenses in connection  with your failure to pay when due amounts  owing to Pretzel  Time,  to submit  when due any  reports, information  or  supporting  records or otherwise  to comply with the  Franchise Agreement,  including,  but not limited to legal,  arbitrators'  and  accounting fees, you are required to reimburse Pretzel Time for any such costs and expenses which it incurs.          23.N.    RIGHTS OF PARTIES ARE CUMULATIVE

         THE  RIGHTS  OF  FRANCHISEE  AND  PRETZEL  TIME ARE  CUMULATIVE  AND NO EXERCISE OR  ENFORCEMENT  BY PRETZEL TIME OR  FRANCHISEE  OF ANY RIGHT OR REMEDY HEREUNDER  SHALL  PRECLUDE  THE  EXERCISE  OR  ENFORCEMENT  BY  PRETZEL  TIME OR FRANCHISEE OF ANY OTHER RIGHT OR REMEDY TO WHICH THE PARTY IS ENTITLED.

         23.O.    WAIVER OF JURY TRIAL.

     BOTH PRETZEL TIME AND THE  FRANCHISEE  IRREVOCABLY  WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,  WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER PARTY.  THE PARTIES  FURTHER AGREE THAT NEITHER SHALL DEMAND A JURY TRIAL IN THE EVENT OF LITIGATION.

         23.P.  WAIVER OF PUNITIVE DAMAGES.

         EXCEPT WITH RESPECT TO  FRANCHISEE'S  OBLIGATION  TO INDEMNIFY  PRETZEL TIME, THE PARTIES WAIVE TO THE FULLEST  EXTENT  PERMITTED BY LAW ANY RIGHT TO OR CLAIM FOR ANY PUNITIVE OR EXEMPLARY DAMAGES AGAINST THE OTHER AND AGREE THAT, IN THE EVENT OF A DISPUTE  BETWEEN THEM,  THE PARTY MAKING A CLAIM SHALL BE LIMITED TO RECOVERY OF ANY ACTUAL DAMAGES IT SUSTAINS.





         23.Q.  EXCLUSIVE JURISDICTION.

         BOTH PRETZEL TIME AND  FRANCHISEE  AGREE THAT ANY ACTION ARISING OUT OF OR RELATING  TO THIS  AGREEMENT,  INCLUDING  WITHOUT  LIMITATION,  THE OFFER AND GRANTING OF THE FRANCHISE  RIGHTS  HEREUNDER  SHALL BE INSTITUTED AND MAINTAINED ONLY IN A STATE OR FEDERAL  COURT OF  GENERAL  JURISDICTION  IN DAUPHIN  COUNTY, PENNSYLVANIA  OR THE COUNTY IN WHICH PRETZEL TIME MAINTAINS ITS PRINCIPAL  PLACE OF BUSINESS.

         FRANCHISEE  IRREVOCABLY  SUBMITS TO THE  JURISDICTION OF SAID COURT AND WAIVES ANY OBJECTION  FRANCHISEE MAY HAVE TO EITHER THE JURISDICTION OR VENUE OF SUCH COURT.

         23.R.    LIMITATIONS OF CLAIMS

         EXCEPT FOR CLAIMS  BROUGHT BY PRETZEL TIME WITH REGARD TO  FRANCHISEE'S OBLIGATIONS  TO MAKE PAYMENTS TO PRETZEL TIME  PURSUANT TO THIS  AGREEMENT OR TO INDEMNIFY  PRETZEL TIME PURSUANT TO THIS  AGREEMENT,  ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS  AGREEMENT  OR THE  RELATIONSHIP  OF  FRANCHISEE  AND PRETZEL  TIME  PURSUANT TO THIS  AGREEMENT  SHALL BE BARRED  UNLESS AN ACTION IS COMMENCED  WITHIN:  (1) TWO (2)  YEARS  FROM THE DATE ON WHICH  THE ACT OR EVENT GIVING  RISE TO THE  CLAIM  OCCURRED  OR (2) ONE (1) YEAR FROM THE DATE ON WHICH FRANCHISEE  OR  PRETZEL  TIME KNEW OR SHOULD  HAVE  KNOWN,  IN THE  EXERCISE  OF REASONABLE  DILIGENCE OF THE FACTS GIVEN RISE TO SUCH CLAIMS,  WHICHEVER  OCCURS FIRST.

24.      ACKNOWLEDGMENTS AND REPRESENTATIONS.

         Franchisee  acknowledges  that he has read this  Agreement  and that he understands  and accepts the terms,  conditions and covenants  contained in this Agreement as being reasonably  necessary to maintain Pretzel Time's high quality and service and the uniformity of those  standards at all Pretzel Time Units and thereby to protect and preserve the goodwill of the Marks.

         Pretzel Time  disclaims  and  Franchisee  acknowledges  that he has not received or relied upon any representations, promises, guarantees or warranties, expressed  or  implied,  made to induce the  execution  hereof or in  connection herewith which is not expressly contained herein or in the disclosure statement. More specifically,  Franchisee  acknowledges and agrees that no person acting on behalf of Pretzel Time or its affiliated  companies has made any written or oral claim,  statement,  assurance,  promise or projection of any sort  regarding the actual  or  prospective  sales,  earnings,  gross  profit  or net  profit of the franchise,  which is the subject of this agreement.  Franchisee acknowledges and agrees that Pretzel Time's officers, directors, employees and agents act only in a representative  and not in a personal capacity in connection with any of their dealings with  Franchisee.  Franchisee  recognizes that neither Pretzel Time nor any other person can guarantee  Franchisee's success in the franchised business. Franchisee  further  represents  to Pretzel  Time, as an inducement to its entry into this  Agreement,  that all statements in  Franchisee's  application for the Franchise   are  accurate  and  complete  and  that   Franchisee   has  made  no misrepresentations or material omissions in obtaining the franchise.

25.      CONSTRUCTION.

         25.A.    HEADINGS.

         The Section headings  throughout this Agreement are for the convenience and reference only of the parties and their  attorneys,  and the words contained therein shall not be held to expand,  modify,  limit, define,  amplify or aid in the interpretation, construction or meaning of this Agreement.

         25.B.  TERMINOLOGY.

         All terms and words used in this  Agreement,  regardless  of the number and gender in which they are used,  shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine,  feminine, or neuter,  as the  context  or sense of this  Agreement  or any  Section or clause herein may require,  as if such word had been fully and properly  written in the appropriate number and gender.          The  term  Franchisee  as  used  herein  is  applicable  to one or more persons,  a  corporation  or a  partnership,  as the case may be. If two or more persons are at any time Franchisee hereunder,  their obligations and liabilities to  Pretzel  Time  shall be joint and  several.  References  to  Franchisee  and assignee  which are  applicable to an individual or  individuals  shall mean the Owners of  Franchisee or the  assignee,  if the  Franchisee or the assignee is a corporation nor partnership.

         25.C.    COUNTERPARTS.

         This Agreement may be executed in one or more counterparts, any and all of which shall constitute one and the same instrument.

         25.D.  REASONABLENESS.

         Pretzel Time and  Franchisee  agree to act  reasonably  in all dealings with each other pursuant to this Agreement.  Whenever the consent or approval of either party is required or  contemplated,  the party whose  consent is required agrees not to unreasonably  withhold the same,  unless such consent is expressly subject to such party's sole discretion pursuant to the terms of this Agreement. In no event shall Pretzel Time's withholding of consent allow Franchisee a claim for money damages.

26.      SECURITY AGREEMENT.





         26.A.    SECURITY INTEREST.

         In order  to  secure  full and  prompt  payment  of the fees and  other charges to be paid by Franchisee to Pretzel Time,  and to secure  performance of the other  obligations  and covenants to be performed by Franchisee,  under this Agreement,  Franchisee hereby grants Pretzel Time a valid and effectual security interest  in,  lien  upon,  and  right of set off  against  all of  Franchisee's interest  in  the  improvements,  fixtures,  inventory,  goods,  appliances  and equipment now or hereafter owned and located at the Unit (whether annexed to the Premises or not) or used in connection with the business  conducted at the Unit, including,  without in any manner limiting the generality of the foregoing,  all machinery,  materials,  appliances and fixtures for  generating or  distributing air, water, heat,  electricity,  light, fuel or refrigeration,  for ventilating, cooling or sanitary purposes, for the exclusion of vermin or insects and for the removal  of  dust,   refuse  or  garbage;   all   engines,   machinery,   ovens, refrigerators,   freezers,  furnaces,   partitions,  doors,  vaults,  sprinkling systems, light fixtures,  fire hoses, fire brackets,  fire boxes, alarm systems, brackets,  screens,  floor tile,  linoleum,  carpets,  plumbing,  water systems, appliances,  walk-in refrigerator boxes, cabinets,  dishwashers,  stoves, set-up tables,  rolling  counters,   kitchen  ranges,  display  counters  and  shelves, humidified  cabinets,  computers and computer software,  and other equipment and installations;  all other and  further  installations  and  appliances;  all raw materials,   work  in  process,  finished  goods  and  all  inventory;  and  all replacements  thereof,  attachments,   additions  and  accessions  thereto,  and products  and  proceeds  thereof  in any  form,  including  but not  limited  to insurance proceeds and any claims against third parties for loss or damage to or destruction  of any or all of the foregoing  (collectively,  the  Collateral). Without the prior  written  consent of Pretzel Time,  Franchisee  agrees that no lien upon or security  interest in the  Collateral  or any item  thereof will be created or suffered  to be created  and that no lease will be entered  into with respect to any item of Collateral. Franchisee will not sell or otherwise dispose of any item of Collateral,  or remove any Collateral  from the Premises,  unless the same is replaced by a similar item of equal or greater value, and except for the sale of  inventory in the  ordinary  course of  business,  without the prior written  consent  of Pretzel  Time.  Franchisee  agrees to give to Pretzel  Time advance notice in writing of any proposed change in Franchisee's name,  identity or structure and not to make any such change  without the prior written  consent of Pretzel Time and compliance with the provisions of this Agreement. Franchisee agrees  to  execute  for  filing  such  financing  statements  and  continuation statements as Pretzel Time may require from time to time. Pretzel Time agrees to pay all filing  fees,  including  fees for  filing  continuation  statements  in connection with such financing statements.

         26.B.  DEFAULT REMEDIES UNDER U.C.C.

         In the event of a default by Franchisee  under this Agreement,  Pretzel Time  shall  have the  remedies  and rights  available  as a secured  party with respect to the Collateral  under the Uniform  Commercial  Code as in effect from time to time in the  state  where the  premises  are  located.  The grant of the security interest to Franchisee  pursuant to this Section shall not be construed to derogate  from or impair any other rights  which  Pretzel Time may have under this Agreement or otherwise at law or equity.

27.      NOTICES.

         27.A.    DELIVERY OF NOTICES.

         All  written  notices  permitted  or required  to be  delivered  by the provisions  of this  Agreement  or of the  Operations  Manual shall be deemed so delivered to the Franchisee:

         a.   At the time delivered by hand; or

         b.  One  business  day  after  transmission  by  facsimile,   telecopy, telegraph or other electronic system;

         c. One  business  day after being  placed in the hands of a  commercial          carrier service for next business day delivery; or

         d. Three (3) business days after placement in the United States mail by          registered or certified mail, return receipt requested, postage prepaid          and addressed to the party to be notified at the addresses listed below          or the most current  business  address of which the notifying party has          been notified.  If Franchisee  refuses delivery of the same then notice          shall be deemed delivered when refused by Franchisee.

         IF TO PRETZEL TIME:

                  Pretzel Time, Inc.                   Attn:  Martin Lisiewski, CEO                   4800 Linglestown Road, Suite 202                   Harrisburg, Pennsylvania 17112

         WITH COPIES TO:

                  Rashti and Mitchell                   Attorneys at Law                   Attn:  Timothy T. Mitchell                   4422 Ridgeside Drive                   Dallas, Texas 75244





         IF TO FRANCHISEE:

         IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first written above.

WITNESSES:                                           PRETZEL TIME, INC.                                                               FRANCHISOR

- -----------------------                                                               BY:

_______________________                           NAME:  ____________________

                                                 TITLE:  _____________________

WITNESSES:                                  FRANCHISEE:                                                   ----------------------------

                                                              BY:

______________________                           NAME:  _____________________

                                                TITLE:

                                              CORPORATE ACKNOWLEDGMENT

STATE OF                                        )                                                      : ' COUNTY OF                                     )

On this _____ day of ___________, 19 __, before me, (Name of Notary)

     the undersigned  officer,  personally appeared and , known personally to me to be the Presidentand Secretary,  respectively, of the above-named corporation, and that  they,  as such  officers,  being  authorized  to do so,  executed  the foregoing  instrument for the purpose therein contained,  by signing the name of the corporation for themselves as such officers.

         IN WITNESS WHEREOF I have hereunto set my hand and official seal.

                                                              (Notary Public)

My Commission Expires:

(Notary Seal)

                INDIVIDUAL OR PARTNERSHIP ACKNOWLEDGMENT

STATE OF                                        )                                                      : ' COUNTY OF                                     )

         On this _____ day of ___________, 19 __, before me,                                 (Name of Notary)

     the undersigned  officer,  personally  appeared to me personally  known and known to me to be the same  person(s)  whose  name(s)  is  (are)  signed  to the foregoing  instrument,  and acknowledged the execution  thereof for the uses and purposes therein set forth.

         IN WITNESS WHEREOF I have hereunto set my hand and official seal.

                                                              (Notary Public)

My Commission Expires:





(Notary Seal)

FRAN.AGT 6.5.96                                FRANCHISE AGREEMENT

                                 By and between

          Pretzel Time, Inc., a Pennsylvania corporation as Franchisor

                                       and

                                  , Franchisee

                                    EXHIBIT C                             TO THE OFFERING CIRCULAR                               OF PRETZEL TIME, INC.

                               FRANCHISE AGREEMENT

                                   Exhibit M

                                    Sublease

           [Substitute 2 page short form - Karen to send Tim the disk]

Output: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?


Input: Consider Input: Exhibit 10.24   ***Text Omitted and Filed Separately with the Securities and Exchange Commission. Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and Rule 406 of the Securities Act of 1933, as amended.

   Collaboration Agreement, BII/ XENCOR



  Confidential

    COLLABORATION AGREEMENT   This Collaboration Agreement (Agreement) is made by and among     Xencor, Inc.  111 W. Lemon Ave. Monrovia, CA 91016 USA

(hereinafter called XENCOR),   and   Boehringer Ingelheim International GmbH   Binger Straße 173 55216 Ingelheim Germany   (hereinafter called BII)   (hereinafter BII an XENCOR each shall also be called Party and collectively Parties as the case may be).     EFFECTIVE DATE: February 10, 2012   1





  TABLE OF CONTENTS

                                                    1

  Definitions

  5

  1.1

  Acceptance Criteria   5

  1.2

  Affiliated Companies   5

  1.3

  Batch   5

  1.4

  BII Confidential Information and Know­How   5

  1.5

  BII Facility   6

  1.6

  BII Intellectual Property   6

  1.7

  BII Technology   6

  1.8

  Business Partner   6

  1.9

  Certificate of Analysis   6

  1.10

  Claim   6

  1.11

  CMO   6

  1.12

  Confidential Information­and Know­How   6

  1.13

  Confirmation of Compliance   6

  1.14

  Controlled Technology   6

  1.15

  cGMP   6

  1.16

  Deliverables   7

  1.17

  Due Date   7

  1.18

  Effective Date   7

  1.19

  FTE   7

  1.20

  Improvements   7

  1.21

  Knowledge   7

  1.22

  Latent Defects   7

  1.23

  Licensing Revenue   7

  1.24

  Losses   7

  1.25

  Major Territories   7

  1.26

  Material   7

  1.27

  MTA   7

  1.28

  Obvious Defects   8

  1.29

  Other Improvements   8

  1.30

  Principal Supplier   8

  1.31

  Process   8







    1.32

  Process Description   8

  1.33

  Product   8

  1.34

  Project   8

  1.35

  Project Fees   8

  1.36

  Project Manager   8

  1.37

  Project Plan   8

  1.38

  Project Team   8

  1.39

  QAA   9

  1.40

  Representatives   9

  1.41

  Service(s)   9

  1.42

  Specification(s)   9

  1.43

  Steering Committee   9

  1.44

  Technology   9

  1.45

  Technology Access Fee   9

  1.46

  Total Amount   9

  1.47

  XENCOR Confidential Information and Know­How   9

  1.48

  XENCOR Intellectual Property   9

  1.49

  XENCOR Technology   9

    2







                                                               2

  Cooperation between the Parties in the Course of a Project

  10

  2.1

  General

  10



 2.1.1   General

  10











 2.1.2   Priority

  10









  2.2

  Personnel

  10



 2.2.1   Designation of Project Manager

  10











 2.2.2   Project Team

  10











 2.2.3   Steering Committee

  11









  2.3

  Conduct of the Project and BII's Work and Tasks   11

  2.4

  Deliverables

  12

  2.5

  Nature of the Project

  12

  2.6

  Additional Work

  12

  2.7

  XENCOR Confidential Information and Know-How and Material

  12

  2.8

  Further Obligations of XENCOR

  13



 2.8.1   General

  13











 2.8.2   Obligations of XENCOR

  13











 2.8.3   Timelines and Information

  13









  3

  Payments

  14

  3.1

  Project Fee

  14



 3.1.1   Consideration for Services

  14











 3.1.2   Payment of the Project Fees

  14











 3.1.3   Invoicing

  15















     3.2

  Technology Access Fee

  15

  3.3

  VAT

  15







  4

  Delivery Terms of Product

  16

  4.1

  Delivery Terms

  16

  4.2

  Cancellation of Order

  17







  5

  Ownership and Use of Project Data

  17

  5.1

  Project Data

  17

  5.2

  Use of the Process; Right of Negotiation

  18



 5.2.1   Use of the Process outside this Agreement

  18











 5.2.2   Right of First Negotiation to Manufacture

  18











 5.2.3   Technology Access Fee and Technology Transfer

  20











 5.2.4   Payment Terms

  21











 5.2.5   License

  21









  5.3

  Acknowledgement

  21







  6

  Representations, Warranties and Indemnification

  22

  6.1

  Mutual Representations, Warranties and Covenants

  22

  6.2

  XENCOR Warranties

  22

  6.3

  BII Warranties

  22

  6.4

  Process for Defense of Infringement of Third Party Intellectual Property

  23

  6.5

  Disclaimer of Warranties

  24

    3







                                                       7

  Liability, Indemnification, Limitations and Insurance

  24

  7.1

  General

  24

  7.2

  Liability

  24

  7.3

  Indemnification

  25

  7.4

  Limitation of Liability and Indemnification Obligations

  25

  7.5

  Insurance

  26







  8

  Intellectual Property

  26

  8.1

  Existing Intellectual Property Rights

  26

  8.2

  New Intellectual Property, Project Results and Licenses

  26



 8.2.1   XENCOR

  26











 8.2.2   BII

  27











 8.2.3   Other Improvements

  27











 8.2.4   Licenses to Xencor

  27











 8.2.5   Licenses to BII

  27









  9

  Confidentiality

  28

  9.1

  General

  28

  9.2

  MTA Superseded

  30

  9.3

  Controlled Technology

  30







  10

  Term and Termination

  30

  10.1

  Term

  30

  10.2

  Termination of this Agreement

  30



 10.2.1



 30









 10.2.2



 30







  10.3

  Effects of Termination of this Agreement

  31









 10.3.2



 31









 10.3.3



 32







  10.4

  Surviving Provisions

  32







  11

  Miscellaneous

  32

  11.1

  Force Majeure

  32

  11.2

  Conflict with Improvements under the MTA

  33

  11.3

  Secrecy Agreement between the Parties

  33

  11.4

  Publicity

  33

  11.5

  Notices

  33

  11.6

  Applicable Law and Arbitration

  34

  11.7

  Entire Agreement

  34

  11.8

  Waiver; Amendment

  34

  11.9

  Severability

  35

  11.10

  Dispute Resolution

  35

  11.11

  Assignment

  35

  11.12

  Independent Contractors

  35

  11.13

  Counterparts

  35

    4

  Preamble   WHEREAS, XENCOR and an Affiliated Company (as defined below) of BII, the Boehringer Ingelheim Pharma GmbH & Co. KG, Birkendorfer Str. 65, 88397 Biberach, Germany (BI Pharma) entered into a Material Transfer and Initial Service Agreement dated as of June 28, 2011 relating to XENCOR's proprietary product, a monoclonal antibody directed against TNF­  known as Xtend­TNF or XmAb6755; and   WHEREAS, XENCOR is a company engaged in the design and development of biopharmaceutical drugs and is owner of a cell line expressing the Product (as defined below);   WHEREAS, BII has know-how and expertise to develop production processes for biopharmaceuticals towards commercial scale volumes and within international regulatory requirements;   WHEREAS, XENCOR and BII herewith agreed on a business collaboration for the mutual benefit of both Parties by having XENCOR providing the Material (as defined below) and the description of the Product and by having BII developing a fed­batch production process to have XENCOR's Product expressed from the Material in the quantity suitable for preclinical and completion of Phase 1 clinical testing; and   WHEREAS, as BII finances the Project in advance and receives a first right to negotiate to manufacture and payments at a later point in the future, XENCOR agrees, in order to make both Parties benefit from their collaboration, to use its commercially reasonable efforts to complete Phase 1 clinical testing of the Product and to find a business partner for the further development of the Product into a successful medicinal product;   NOW THEREFORE and in consideration of the mutual covenants set forth in this Agreement, BII and XENCOR hereby agree as follows:   1 Definitions   1.1 Acceptance Criteria





  shall mean either, (as the case may be) the following criteria with respect to a Batch of Product; (i) the preliminary specifications as agreed upon by the Parties with respect to the three (3) initial manufacturing runs as described in Section 2.5, or (ii) except as provided in clause (i), the Specifications accompanied by a Confirmation of Compliance and Certificate of Analysis.   1.2 Affiliated Companies   shall mean any company or business entity which controls, is controlled by, or is under common control with, either XENCOR or BII. For purposes of this definition, control shall mean the possession, directly or indirectly of the power to direct or cause the direction of the management and policies of an entity (other than a natural person), whether through the majority ownership of voting capital stock, by contract or otherwise.   1.3 Batch   shall mean Product from one fermentation run using the Process.   1.4 BII Confidential Information and Know­How   shall mean all existing or future technical or other information relating specifically to (a) the BII Facility, (b) the Process, (c) BII Intellectual Property, and/or (d) know-how for the development and manufacture of biopharmaceuticals generally, in each case (a)-(d) whether   5





  patented or not patented, including, without limitation, trade secrets, know-how, processes, concepts, experimental methods and results and business and scientific plans that are disclosed or supplied directly or indirectly to XENCOR or used in connection with the Project, but always excluding all confidential technical or other information of XENCOR specifically relating to XENCOR Technology.   1.5 BII Facility   shall mean the biotech buildings and all other buildings used by BII and/or its Affiliated Companies in performance of the Project in Fremont, CA, USA (it being understood that certain aspects of the Services may be performed in Germany, and, with respect thereto, such buildings in Germany used by BII and/or its Affiliated Companies in performance of the Project, shall also be deemed BII Facility).   1.6 BII Intellectual Property   shall have the meaning set forth in Section 8.2.2 hereof.   1.7 BII Technology   shall mean the Technology developed or obtained by or on behalf of BII or any of its Affiliated Companies without the use of the of XENCOR Confidential Information and Know-How or the Material, including without limitation, the Process.   1.8 Business Partner   shall have the meaning set forth in Section 2.8.2 hereof.   1.9 Certificate of Analysis   shall mean, with respect to a Batch, that complete and accurate document setting forth the conformance with the Specifications set forth in the QAA.   1.10 Claim   shall have the meaning set forth in section 6.4.(a)a) hereof.   1.11 CMO   shall mean Contract Manufacturing Organization.   1.12 Confidential Information­and Know­How   shall mean either or both Xencor Confidential Information and Know-How (as defined herein) or BII Confidential Information and Know- How (as defined herein), as applicable.   1.13 Confirmation of Compliance   shall mean BII's complete and accurate certificate, executed and delivered to XENCOR in connection with each Batch of Product, confirming that such Batch of Product was manufactured according to cGMP, the Process and applicable laws at the BI Facility, and setting forth any deviations therefrom and the results of final investigations performed by BII according to the QAA.   1.14 Controlled Technology   shall have the meaning specified in Section 9.3 hereof.   1.15 cGMP   shall mean current Good Manufacturing Practice regulations as codified in:   The Rules Governing Medicinal products supplied in the European Union: Volume 4 -Medicinal products supplied for Human and Veterinary Use: Good Manufacturing Practice, as amended from time to time; the United States Code of Federal Regulations, title 21, parts   6





  210, 211, 600 and 610, as amended from time to time; and the International Committee on Harmonisation and other comparable guidelines, directives or standards required by governmental authorities in the Major Territories or in any other country or countries agreed in writing by the Parties.   1.16 Deliverables   shall have the meaning specified in Section 2.4 hereof.   1.17 Due Date   shall have the meaning specified in Section 3.1.2 hereof.   1.18 Effective Date   shall mean the date of commencement of this Agreement as mentioned on the cover page above.   1.19 FTE   shall mean a fully allocated employee or consultant of BII and working on the Technology transfer with such time and effort to constitute the equivalent of one (1) employee on a full time basis consistent with normal business and scientific practice […***…].   1.20 Improvements   shall mean all discoveries and inventions, and all modifications, derivatives and improvements to Technology or new uses thereof (whether or not protectable under patent, trademark, copyright or similar laws) that are discovered, developed or reduced to practice by or on behalf of BII or any of its Affiliated Companies (alone or jointly with XENCOR) in the performance of this Agreement.   1.21 Knowledge   shall mean that which a Party knows or should have known following that inquiry a reasonable person would have made in light of the facts and circumstances.   1.22 Latent Defects   shall mean non-conformance of the Product with this Agreement other than Obvious Defects.   1.23 Licensing Revenue   shall have the meaning set forth in Section 3.1.2 hereof.   1.24 Losses   shall have the meaning set forth in Section 7.2.a hereof.   1.25 Major Territories   shall mean the United States, the European Union and/or Japan.   1.26 Material   shall mean the respective XENCOR proprietary cell line as laid down in detail in Appendix 1 and any know-how or data relating directly thereto and provided together with such cell line to BII by or on behalf of XENCOR (including any progeny or derivative thereof).   1.27 MTA   shall mean the Material Transfer and Initial Service Agreement entered into by XENCOR and BI Pharma on June 28, 2011 attached to this Agreement as Appendix 4.

***Confidential Treatment Requested   7





  1.28 Obvious Defects   shall mean any non-conformance of the Product with this Agreement, which is visible or easily detectable without any analysis in a laboratory, such as noticeable damages of the Product caused by the transport of Product.   1.29 Other Improvements   shall have the meaning set forth in Section 8.2.3 hereof.   1.30 Principal Supplier   shall mean the right to manufacture and supply commercial Product in the amount per annum of at least […***…] of the worldwide annual demand of commercial Product calculated based on XENCOR's reasonably forecasted request for commercial Product for the respective calendar year.   1.31 Process   shall mean all the respective steps involved in the process developed and performed by BII pursuant to this Agreement to produce the respective Product from the Material or having the Product expressed from the Material, including, without limitation, the manufacture, testing and packaging thereof.   1.32 Process Description   shall mean a controlled document, approved by authorized technical and quality representatives of both Parties, that documents the general outline of the respective Process. It includes all relevant Process parameters to be met and equipment and raw materials to be used.   1.33 Product   shall mean XENCOR's proprietary biopharmaceutical product, a monoclonal antibody directed against TNF­  known as Xtend­INF or XmAb6755, as further laid down in detail in Appendix 1, expressed from the Material disclosed by XENCOR to BII and formulated either as bulk drug substance or in final dosage form as drug product, as the context requires.   1.34 Project   shall mean the performance of the Services, including without limitation the Process development program for the Product.   1.35 Project Fees   shall have the meaning specified in Section 3.1 hereof.   1.36 Project Manager   shall have the meaning specified in Section 2.2.1 hereof.   1.37 Project Plan   shall mean the plan describing the Services to be performed by BII under the Project, including the Project timeline and the Project Fees, attached to this Agreement as Appendix 2.   1.38 Project Team   shall have the meaning specified in Section 2.2.2 hereof and at the Effective Date shall consist of the persons listed in Appendix 3.   1.39 QAA

***Confidential Treatment Requested   8





  shall mean the Quality (Assurance) Agreement entered into between the Parties simultaneously with this Agreement and attached hereto as Appendix 5.   1.40 Representatives   shall have the meaning specified in Section 7.3 a hereof.   1.41 Service(s)   shall mean those certain services performed by BII under this Agreement.   1.42 Specification(s)   shall mean all the tests, analytical methods and/or limits, and the results thereof, as applicable, agreed by the Parties, within which the Product has to conform to be considered acceptable by XENCOR for clinical use set forth in Appendix 6. The Parties are in agreement, that in the first instance they will agree on preliminary specifications which shall then be fixed to final Specifications in accordance with Section 2.5.   1.43 Steering Committee   shall have the meaning specified in Section 2.2.3 hereof.   1.44 Technology   shall mean all cDNA, cell lines, cell banks, master cell banks, constructs, reagents, antibodies and/or other tangible materials, methods, techniques, processes, trade secrets, copyrights, know-how, data, documentation, regulatory submissions, specifications and other intellectual property of any kind (whether or not protectable under patent, trademark, copyright or similar laws).   1.45 Technology Access Fee   is defined in Section 5.2.3.   1.46 Total Amount   shall have the meaning specified in Section 3.1.2 hereof.   1.47 XENCOR Confidential Information and Know­How   shall mean all existing or future technical or other information relating specifically to (a) the Material, (b) the Product (and any modification, derivative or fragment thereof), and/or (c) the XENCOR Technology, in each case (a), (b) and (c) whether patented or not patented, and including, without limitation, all know-how, trade secrets, inventions, patent applications, processes, concepts, experimental methods and any other information concerning XENCOR's financial situation, business plans, and its research and product designs, that are disclosed or supplied to BII in connection with the Project, but always excluding BII Confidential Information and Know-How.   1.48 XENCOR Intellectual Property   shall have the meaning specified in Section 8.2.1 hereof.   1.49 XENCOR Technology   shall mean (i) the Material, (ii) the Product, and any modifications, derivatives, or fragments thereof, and (iii) the Technology of XENCOR developed or obtained by or on behalf of XENCOR independent of and without the use of technical or other information disclosed or supplied by BII or its Affiliated Companies to XENCOR relating specifically to the BII Facility, the Process, BII Intellectual Property and/or know-how for the development and manufacturer of biopharmaceuticals generally, and which was introduced by XENCOR to the Project.   9





  2 Cooperation between the Parties in the Course of a Project   2.1 General   2.1.1 General   This Agreement sets forth the terms and conditions under which BII and XENCOR will perform their tasks regarding the Project. BII shall (by itself or by its Affiliated Companies) perform for XENCOR the Services as specified in this Agreement and the Project Plan and BII and XENCOR shall adhere to their obligations under this Agreement and the Project Plan.   2.1.2 Priority   In the event of a conflict or ambiguity between any term of this Agreement and an Appendix, the terms of this Agreement shall prevail. In case the Parties mutually agree that a specific Section of this Agreement shall be modified by the terms of a Project Plan (and that such term of the Project Plan shall prevail) for a specific Service, they may only do so by explicit reference to the Section of this Agreement that shall be modified.   2.2 Personnel   2.2.1 Designation of Project Manager   Upon commencement of the Project, BII and XFNCOR will each appoint a Project Manager, who will coordinate and supervise the Project including communication of all instructions and information concerning the Project to the other Party. The Project Manager will serve as the primary contact person for the other Party. Each Project Manager will be available on an agreed basis for consultation at prearranged times during the course of the Project. The Project Managers shall be copied on all correspondence by other Project Team members and all correspondence between the Parties. In the absence of the Project Manager, a substitute shall be appointed. Additional modes or methods of communication and decision making may be implemented with the mutual written consent of each Party. Each Party will use reasonable efforts to provide the other Party with […***…] prior written notice of any change in such Party's Project Manager.   2.2.2 Project Team   The Parties shall establish a Project Team consisting of representatives of each Party from the necessary disciplines and their respective Project Managers to (a) ensure the progress of the Project, (b) coordinate the performance of the Project, and (c) facilitate communication among the Parties. Each Project Team member shall have knowledge and ongoing familiarity with the Project and will possess the authority to make decisions on matters likely to be raised in the Project Team. Each Party shall have the right to substitute its members of the Project Team as needed from time to time by giving written notice to the other Party due time in advance.   The Project Team shall meet in person or by means of a video conference or teleconference on a periodic basis (a) as agreed by the Project Managers within [...***...] after written request for such meeting by either Party, or (b) as specified in the Project Plan (Appendix 2, as amended from time to time), but in any event, unless otherwise agreed in writing by the Parties, the Project Team shall meet at least one (1) time per calendar quarter (by means of a video conference or teleconference or in person, provided, however, that at least two (2) of these meetings per calendar year are held in person on an alternating basis between XENCOR's facilities and BII's facilities in Fremont, CA, USA).   The Project Team shall oversee the Project. Prior to each meeting of the Project Team the Parties will distribute to each other written copies of all materials, data and information arising out of the conduct of their activities hereunder.

***Confidential Treatment Requested   10





  Each Party shall bear its own costs associated with such meetings and communications. It is the right of each Party to call for a Project Team meeting according to the covenants of this Section 2.2 upon written request at any time.   The Parties shall alternate responsibility for preparing minutes of the meeting which shall be circulated promptly following the meeting.   The initial members of the Project Team and the Project Managers are set forth in Appendix 3 attached hereto which may be updated from time to time to reflect changes in the Project Team and/or Project Managers as provided in this Section 2.2.   2.2.3 Steering Committee   The Parties shall form a Steering Committee, to which each Party will appoint three (3) executive employees, including the Project Managers, all of whom shall be familiar with the Project. The Steering Committee shall have general oversight and review of the activities of the Project Team and shall resolve any issues referred to the Steering Committee by the Project Team. Each Party shall have the right to substitute its members of the Steering Committee as needed from time to time by giving written notice to the other Party due time in advance.   The Steering Committee shall meet within [...***...] after receipt of a written request by one Party to the other Party. The request shall describe the matter in dispute and the solution which the requesting Party proposes to be decided. Each Party shall bear its own costs associated with meetings and communications of the Steering Committee.   The Steering Committee will take action by unanimous consent of the Parties, with the representatives of BII collectively having a single vote and the representatives of XENCOR collectively having a single vote, or by a written resolution signed by all of the representatives. If the Steering Committee is unable to reach unanimous consent on a particular matter, then the matter will be referred to the chief executive officers of the Parties, who will use good faith efforts to resolve such matter, and the decision reached by mutual agreement of the chief executive officers of the Parties shall be final and binding on the Parties. If, (i) after good faith efforts, the chief executive officers of the Parties are unable to resolve such matter by mutual agreement, and (ii) such matter concerns the Product or the Process, but does not concern the BI Facility or the management of manufacturing slots, then the chief executive officer of XENCOR shall make the final decision about how to resolve such dispute, after good faith consideration of BII's position, which decision shall be final and binding on the Parties; provided, however, that, in resolving such matter, XENCOR's chief executive officer shall not have any authority to require BII or its Affiliated Companies to incur additional expenses or obligations not contemplated by this Agreement. In no event will the Steering Committee, or the executive officers of the Parties in resolving any Steering Committee matter, have any authority to amend or modify this Agreement; any such amendment or modification of this Agreement must be in accordance with Section 11.8. For the avoidance of doubt, nothing in this Section shall prevent any Party from seeking arbitration proceedings pursuant to Section 11.6 hereof with regard to any matters other than matters resolved by mutual agreement of the chief executive officers in accordance with this Section 2.2.3.   The members of the Steering Committee are set forth in Appendix 3 attached hereto, which may be updated from time to time to reflect changes in the Steering Committee as provided in this Section 2.2.3.   2.3 Conduct of the Project and BII's Work and Tasks   The Parties shall engage in the Project upon the terms and conditions set forth in this Agreement. In the course of this Agreement the Parties shall perform the Project as laid down and detailed in the Project Plan.   Each Party shall fully and reasonably cooperate with the other Party to provide appropriate information and assistance to the other Party in connection with the Project, responding in a

***Confidential Treatment Requested   11





  reasonable and timely manner with respect to all reasonable requests for information and approval. Neither Party shall be liable for any delays in its performance of the Project to the extent caused solely by the other Party's failure to provide in a reasonably timely manner any information or approval reasonably requested by the other Party.   The Parties shall assign a sufficient number of professionally qualified personnel to perform the Project and shall perform its tasks under this Agreement according to the generally acceptable professional and then current industry standards and subject to terms and conditions as set forth herein, at all times in compliance in all material respects with all requirements of applicable laws and regulations. The Parties will use commercially reasonable efforts to achieve the estimated timelines as laid down in the Project Plan.   Changes to the Project Plan, if any, shall require the written consent of both Parties.   2.4 Deliverables   BII will deliver such deliverables expressly laid down in detail in the Project Plan, including but not limited to the Product (the Deliverables) within the timelines laid down in the Project Plan to XENCOR. Following the completion of the activities required under the Project, BII will provide to XENCOR then available Product (if any), Batch records and a summary containing manufacturing and analytical testing, including without limitation, the information and the results of the development phase according to the workscope as further described in the Project Plan.   2.5 Nature of the Project   As the Product has never been produced by BII or on behalf of BII by its Affiliated Companies at the BI Facility, XENCOR acknowledges that the Project is experimental in nature and that no favorable or useful results can be assured by BII. However, after […***…], the Parties shall in good faith agree on a revision (if necessary) to the preliminary specifications for the Product (that have been mutually agreed upon by the Parties) that shall then be the Specifications for subsequent runs in subsequent campaigns that shall form a basis for rejection or acceptance of the respective Product produced in any additional runs at such scale under the provisions of Section 4.1, and, provided that the Process has not been materially changed (i.e. a change that is subject to the Change Control procedures of the QAA), the Project shall no longer be considered experimental in nature and the obligation to meet the respective Specification shall apply to all future runs at such scale.   2.6 Additional Work   In case the Parties mutually agree on additional work for the benefit of the Project by changing the Project Plan by written agreement of the Parties, BII shall perform such additional work to sustain the progress of the Project on conditions in terms of money, time and scope to be subject to agreement of the Parties hereto as set forth in the then amended Project plan.   2.7 XENCOR Confidential Information and Know-How and Material   To the extent not already transferred by XENCOR, XENCOR shall transfer the Material for the Project to BII to the BII Facility subject to the terms of this Section 2.7, and BII shall use or have used by its Affiliated Companies such Material solely to conduct the Project in accordance with the Project Plan, this Agreement, or as otherwise may be agreed to by the Parties in writing. The Material will not be used in connection with any animal studies or diagnosis, treatment or any activity in humans or for any use not directly related to the Project. BII's use of the Material will be in compliance with all applicable laws in the state or country where the Services are performed. BII accepts the Material with the knowledge that it is experimental. The Material may not be transferred or otherwise made available, in whole or in part, by BII to any other individual, entity or institution other than any Affiliated Companies

***Confidential Treatment Requested   12





  of BII without the prior written consent of XENCOR, which may be withheld by XENCOR for any reason. Such consent is hereby given for BII or its Affiliated Companies to transfer the Material for quality control testing performed by a third party on a blinded basis. For the avoidance of doubt, in the event of a transfer of Material to an Affiliated Company of BII or to any third party with the consent of XENCOR, BII shall ensure that the respective Affiliated Company or third party shall use such Material solely to conduct the Project in accordance with the Project Plan, this Agreement, or as otherwise may be agreed to by the Parties in writing and shall not transfer or otherwise make available, in whole or in part, the Material to any other individual, entity or institution.   The Material is the property of XENCOR. It is agreed that the transfer of the Material hereunder shall not constitute a sale of Material or a grant, option or license of any patent or other rights except to allow BII to perform the Project. XENCOR shall retain and have all right, title and interest in and to the Material.   XENCOR will inform BII in a timely manner about any safety issues of which XENCOR becomes aware relating to the handling of the Material and the Product after the date of the execution of this Agreement.   BII shall at all times take reasonable measures to protect the Material from loss or damage and in no event measures less than employed by BII in the protection of its own proprietary materials, and shall promptly notify XENCOR, if at any time it believes the Material has been damaged, lost or stolen.   XENCOR and BII hereby acknowledge and agree that XENCOR is providing XENCOR Confidential Information and Know-How to BII for its use by BII for the purposes of this Agreement, and BII will make use thereof solely for such purposes and XENCOR hereby consents to such use.   2.8 Further Obligations of XENCOR   2.8.1 General   The Parties acknowledge and agree, that. subject to the terms and conditions of this Agreement, BII substantially finances the Project at the costs and fees outlined in Appendix 2 in advance and receives payments at a later point in the future. Accordingly, XENCOR agrees, in order to make both Parties benefit from their collaboration, that the success of the collaboration between the Parties depends strongly on the fact whether or not XENCOR is able to find a suitable business partner for the further development of the Product into a successful medicinal product with one or more marketing authorisations worldwide.   2.8.2 Obligations of XENCOR   Therefore, XENCOR shall use commercially reasonable efforts to conduct and complete at its own cost and risk a Phase 1 clinical trial with the Product as described in Section 2.8.3 within the timelines set forth herein (subject to Section 2.8.3); and find one or more suitable third party/parties as business partner(s) for the further development of the Product into a medicinal product (Business Partner).   For the avoidance of doubt, XENCOR bears the sole responsibility for the conduct and completion of the clinical trials of the Product and the search for the Business Partner and shall bear all costs and expenses in connection therewith. In no event will it be a breach of this Agreement by XENCOR if the Phase 1 clinical trial or other clinical trials of the Product are not completed or an agreement is not entered into with a Business Partner so long as XENCOR uses commercially reasonable efforts to do so.   2.8.3 Timelines and Information   XENCOR shall use commercially reasonable efforts to conduct and complete a Phase 1 clinical trial of the Product in a timely fashion and to search for the Business Partner. A summary of the preliminary plan for the Phase 1 clinical trial of the Product to be conducted by XENCOR is attached as Appendix 7, it being understood that timing of such clinical trial   13





  may be delayed to the extent (i) caused primarily by BII's failure to provide Product conforming to the Specifications; or (ii) by safety issues relating to the Product; or (iii) by regulatory delays; or (iv) other causes outside the control of XENCOR.   XENCOR shall promptly provide BII notice of the completion and a summary overview of the outcome/observations of the Phase 1 clinical trial regarding the Product and a summary overview of any negotiations with a possible Business Partner regarding the further development of the Product. Moreover, XENCOR shall inform BII on an annual basis or, if there is good cause, upon request of BII (whichever is the case) about the actual status of such Phase 1 clinical trial or such negotiations, such request not to be more often than twice per year.   3 Payments   3.1 Project Fee   3.1.1 Consideration for Services   As consideration for the performance of BII's Services, XENCOR shall pay BII all fees to be paid to BII as set forth in the Project Plan (the Project Fees) according to the terms and conditions set forth in the following subsections of this Section 3.1.   The Project Fees as set forth in the Project Plan include BII's internal and out­of­pocket cost and expenses for its performance of the Project, including without limitation, ordinary and standard raw materials, components and consumables, and XENCOR shall not be obligated to make any payments with respect to any Services except the Project Fees or payments for additional work agreed upon according to Section 2.6 (which shall then be considered Project Fees).   3.1.2 Payment of the Project Fees   The Project Fees referred to in Section 3.1.1 above, together with interest at a […***…] percent ([...***...]%) annual interest rate on any unpaid Project Fees accruing from the earlier of (i) the date of completion of the clinical summary report for the Phase 1 clinical trials of the Product as planned according to Appendix 7 unless delayed as described in Section 2.8.3 or (ii) the date that is five (5) calendar years after the Effective Date (each of the alternatives above, the Due Date) until paid in full (the Project Fees together with any such interest, referred to as the Total Amount), shall become duly payable in accordance with the following schedule:   a. In case XENCOR has entered into an agreement with at least one Business Partner, then, beginning from the later of (i) the effective date of such agreement or (ii) the Due Date, XENCOR will pay BII the Total Amount in [...***...] installments of [...***...] of the [...***...] (defined below) that [...***...]; provided, however, that in no event will [...***...] of the annual Licensing Revenue [...***...]; provided that, for the avoidance of doubt, [...***...] shall be excluded from [...***...].

***Confidential Treatment Requested   14

  b. In case XENCOR decides to proceed with the further development of the Product without a Business Partner, XENCOR will pay BII the Total Amount in one or more lump sum payments within five (5) calendar years from the Due Date.   c. As long as XENCOR, notwithstanding its commercially reasonable efforts after the completion of the Phase 1 clinical trial either (i) is not able to further develop the Product for technical and/or scientific reasons or (ii) does not decide to proceed with the further development of the Product without a Business Partner and does not enter into an agreement with a Business Partner within two (2) calendar years from the Due Date, then XENCOR shall have no obligation to pay BII any or all of the Total Amount. For the avoidance of doubt, such obligations will become due as described in this Section 3.1.2, at any time XENCOR enters into an agreement with at least one Business Partner or further develops the Product within ten (10) calendar years following the Effective Date, as provided in Section 10.3.   3.1.3 Invoicing   XENCOR shall notify BII in writing of any of the circumstances listed in Section 3.1.2.a to 3.1.2.c. BII shall issue an invoice for the payments of the Total Amount agreed upon with XENCOR according to the payment schedule in Section 3.1.2 and payment of the Technology Access Fee, as applicable. The amount of the Project Fees and the interest (if any) will be shown separately in the invoice.   XENCOR shall make payments of all invoiced amounts for the payments of the Total Amount and of the Technology Access Fee due and payable in accordance with Section 5.2.3 and 5.2.4, as applicable [...***...] from the date of receipt of BII's invoice. If XENCOR fails to make timely payment of the invoiced amount, interest shall accrue on the amount of the Project Fees shown in the invoice at a fixed annual rate equal to the highest rate of interest quoted as the prime rate in The Wall Street Journal on the day that payment was due. All payments due under this Agreement shall be paid in US dollars by wire transfer or by such other means agreed to in writing by the Parties. XENCOR will provide at least twenty-four (24) hours advance notice to BII of each wire transfer to the bank account identified below or such other bank accounts as BII shall designate in writing.

       Account Name:

  [...***...]

  Account Number:

  [...***...]







Bank:

  [...***...]

  BIC (SWIFT-CODE):

  [...***...]

  IBAN:

  [...***...]

    3.2 Technology Access Fee   The Technology Access Fee (if any) is due according to Section 5.2.3 and 5.2.4 below. Section 3.1.3 shall apply accordingly.   3.3 VAT   All payments under this Agreement (including the Technology Access Fee) shall be understood as net payments without value added tax (VAT). VAT, if applicable, shall be added to the respective payment. The Parties will reasonably cooperate in completing and filing documents required under applicable law in connection with any refund of or credit for any such payment of VAT.

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  4 Delivery Terms of Product   4.1 Delivery Terms   BII shall (a) deliver to XENCOR or, (b) at the request of XENCOR, store, the agreed amounts of the Product produced according to the Project Plan in accordance with agreed upon schedule, at the price set forth in the Project Plan. Delivery of Product by BII shall be made [...***...] BII Facility (Incoterms 2010).   BII shall package and arrange for shipment of Product to the delivery address specified by XENCOR, all in accordance with the instructions of XENCOR provided that BII shall not be responsible for any damages with respect to Product or third party claims arising out of such arrangements for shipment of Product after delivery of such Product to the shipper in accordance with such instructions in accordance with XENCOR's instructions. Each shipment of cGMP Product will include a Certificate of Analysis, a Confirmation of Compliance and such other documentation as reasonably required to meet all applicable statutory and regulatory requirements. Delivery of the Product shall be subject to quality and other provisions set forth in the QAA. The Parties shall cooperate reasonably to obtain all customs licenses or permits necessary to ship the Product (the evaluation of which customs licenses or permits required shall be performed by XENCOR), and no shipment shall be made until such licenses or permits, if any, have been obtained.   XENCOR shall diligently examine all Product delivered under this Agreement as soon as practicable after receipt. Notice of all claims arising out of or relating to Obvious Defects shall be given in writing to BII within [...***...] after the date of XENCOR's receipt of Product, otherwise, such Product shall be considered free of any Obvious Defects as between BII and XENCOR. XENCOR shall make a damaged Product available for inspection and shall comply with the requirements of any insurance policy covering the Product, and BII shall offer XENCOR all reasonable assistance, at the cost and expense of XENCOR, in pursuing any claims arising out of the transportation of the Product.   Except as otherwise provided herein and as set forth in Section 2.5, XENCOR shall have [...***...] after the date of XENCOR's receipt of Product, for all claims arising out of or relating to any Latent Defects and to reject such delivered Product for Latent Defects; provided, however that XENCOR shall only be permitted to reject the Product if the Acceptance Criteria are not met.   If XENCOR determines after reviewing the relevant documentation and performing reasonable testing that any Batch does not meet the Acceptance Criteria, or if Product is determined by BII to be unsuitable for release, then the Parties will mutually agree, as promptly as reasonably possible, whether (a) to produce a new Batch at BII's cost and expense, including the costs of materials used in the manufacture of such Batch, or (b) to rework or reprocess the Batch, at BII's cost and expense, so that the Batch can be deemed to have been manufactured in compliance with cGMP and the agreed Process Description, and to conform to the Acceptance Criteria (provided that the Parties have mutually agreed in writing on any procedures for reworking or reprocessing a Batch). If the remedy set forth in either (a) or (b) is agreed to be performed by BII, then BII shall start the applicable work as soon as reasonably practicable, such that the next reasonably available (taking into consideration BII's entire contract manufacturing business) manufacturing slot shall be used by BII to produce Product, and BII will use commercially reasonable efforts to resupply within [...***...] but in any event no later than [...***...] from time of rejection by XENCOR. For the avoidance of doubt, if Product is not accepted by XENCOR as provided above, then BII's obligations set forth above shall apply both to the drug product and the bulk drug substance contained therein.   In the event XENCOR rejects the Product for Obvious Defects or Latent Defects as provided above, BII shall have the right to sample and retest the Product, which shall be done as soon as

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  practicable, provided that, if BII does not notify XENCOR in writing of its election to retest the Product within [...***...] after notice of rejection from XENCOR, BII shall be deemed to agree with XENCOR's rejection of the Product. In the event of a discrepancy between XENCOR's and BII' s test results such that one Party's results fall within the Acceptance Criteria and the other Party's test results fall outside the Acceptance Criteria, or there exists a dispute over whether such failure is due (in whole or in part) to acts or omissions of XENCOR or any third party after delivery, the Parties shall cause a testing laboratory agreeable to both Parties to perform comparative tests and/or analyses on samples of the alleged defective Product. The testing laboratory's results shall be in writing and shall be final and binding save for manifest error on the face of its report. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the testing laboratory result finally rules. The testing laboratory shall be required to enter into written undertakings of confidentiality no less burdensome than set forth or referred to by this Agreement.   4.2 Cancellation of Order   If XENCOR at any time cancels or postpones any campaign set forth in the Project Plan for the manufacture of Product for non-technical reasons later than [...***...] prior to the date on which inoculation of the respective production fermenter is to take place, XENCOR shall nevertheless be obliged to pay [...***...] percent ([...***...]%) of the Project Fees for such campaign to the extent that BII is not able to adequately use the respective capacity for such campaign alternatively (e.g. for production of any other material for any third party or itself) provided always that BII shall use its commercially reasonable efforts to use such capacity and mitigate any losses that may incur arising from such cancellation or postponement, including, for the avoidance of doubt, the reapplication of raw materials, if possible.   5 Ownership and Use of Project Data   5.1 Project Data   In consideration of the Project Fees:   a. BII shall carry out the Project by itself or by its Affiliated Companies) and provide XENCOR with a summary of the results from the Project, including manufacturing and analytical release and also shall provide XENCOR with a summary report about the results on the various stages of Process development;   b. BII shall supply XENCOR with data, results and information required to comply with any mandatory request of any applicable regulatory body in the Major Territories to comply with such regulatory body's requirements. BII shall provide complete Batch records for all cGMP runs and will provide to XENCOR all data reasonably necessary from all process development and manufacturing activities to enable XENCOR's preparation of any regulatory filings; and shall not unreasonably reject supplying data results and information required to comply with any requirement of any applicable regulatory body outside the Major Territories or cooperating with XENCOR's preparation of the chemistry, manufacturing and controls section of any regulatory filing supporting the clinical development of the Product in and outside the Major Territories.   BII shall bear the cost of such supply and cooperation by BII, provided that, if there are specific requirements of a given country that are significant and in addition to requirements of the Major Territories, the Parties will enter into good faith discussions whether additional resources and costs are required, with the intent of minimizing any additional cost to XENCOR.

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  c. Certain trade secret information may be provided by BII via DMF or similar filing (e.g. to a notified body) directly to the respective authorities.   d. For the avoidance of doubt, all summaries and/or reports generated as a result of the BII's performance under this Agreement and delivered to XENCOR by BII will be part of the Process and the sole and exclusive property of BII. Subject to XENCOR's confidentiality and non-use obligations hereunder and without affecting the ownership of Improvements as set forth in Section 8, BII hereby grants to XENCOR a non-exclusive, worldwide license to use and reproduce all such summaries and/or reports for all uses in connection with development activities relating to Product that do not involve manufacturing of Product (e.g., formulation work, toxicology studies or the development of a manufacturing process), regulatory activities relating to the Product and, to the extent necessary, any commercial activities relating to the Product, which XENCOR may sublicense in connection with any license of rights to the Product.   5.2 Use of the Process; Right of Negotiation   5.2.1 Use of the Process outside this Agreement   Except as set forth in this Agreement, the Process shall not be used by XENCOR or any third party outside the scope of this Agreement without the prior written consent of BII.   5.2.2 Right of First Negotiation to Manufacture   a. XENCOR hereby grants and will make an eventual Business Partner do so, BII a first right to negotiate to manufacture and supply Product for use in Phase 2 and 3 clinical trials. XENCOR shall provide BII written notice (i) of the completion of the Phase 1 clinical trials of the Product, which notice shall include reasonable documentation of the results of such Phase 1 clinical trials of the Product or (ii) that XENCOR has entered into an agreement with at least one Business Partner, whichever of (i) and (ii) occurs earlier. If BII provides XENCOR written notice of its exercise of the first right to negotiate within [...***...] after receipt of such written notice from XENCOR, then for a period of [...***...] following such written notice from BII or such longer period as agreed in writing by BII and XENCOR (or its Business Partner) (the Clinical Negotiation Period), XENCOR (or its Business Partner) and BII will negotiate in good faith an agreement for the manufacture and supply of Product for use in Phase 2 and 3 clinical trials, at market rate terms and conditions common for the contract manufacture of monoclonal antibodies within the contract manufacturing industry, to be mutually agreed in writing by the Parties. If BII does not provide written notice of its exercise of the first right to negotiate within such [...***...] period, XENCOR and any Business Partner shall be free to enter into one or more agreements with third parties for the manufacture and supply of Product for use in Phase 2 and 3 clinical trials. If BII provides written notice of its exercise of the first right to negotiate within such [...***...] period but BII and XENCOR (or its Business Partner) do not enter into such a contract manufacturing agreement within the Clinical Negotiation Period, XENCOR and any Business Partner shall be free to enter into one or more agreements with third parties for the manufacture and supply of Product for use in Phase 2 and 3 clinical trials (which may include an agreement for any Business Partner or its affiliate to manufacture and supply Product for clinical trials), provided that the supply price for Product is no more than [...***...] percent ([...***...]%) of the clinical supply price of Product last proposed by BII during the negotiations between the Parties (or BII and the Business Partner). If the supply price for Product proposed by a third party (which may include a Business Partner or its affiliate) is more than [...***...] percent ([...***...]%) of the clinical supply price of Product last proposed by BII during the negotiations between the Parties (or BII and the Business Partner) , XENCOR (or its Business Partner) shall provide written notice to BII that XENCOR (and its Business Partner) will accept the clinical supply price last proposed by BII, and BII and XENCOR (or its Business Partner) will enter into a contract manufacturing agreement reflecting such clinical supply price; provided that, if BII does not agree to enter into such contract

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  manufacturing agreement within [...***...] after such written notice, XENCOR (or its Business Partner) shall be free to enter into an agreement with a third party (or an agreement for the Business Partner or its affiliate to manufacture and supply Product).   b. In addition, if BI has exercised its first right of negotiation in Section 5.2.2.a, XENCOR hereby grants and will make an eventual Business Partner do so, BII a first right to negotiate to manufacture and supply commercial Product as Principal Supplier for a period up to the [...***...], starting with the first commercial launch of the Product. XENCOR shall provide BII written notice (i) of the decision to have the Product manufactured at a commercial scale and to launch the Product commercially or (ii) that XENCOR has entered into an agreement with at least one Business Partner, whichever of (i) and (ii) occurs earlier. If BII provides XENCOR written notice of its exercise of the first right to negotiate within [...***...] after receipt of such written notice from XENCOR, then for a period of [...***...] following such written notice, or such longer period as agreed in writing by BII and XENCOR (or its Business Partner) (the Commercial Negotiation Period), XENCOR (or its Business Partner) and BII will negotiate in good faith an agreement for the manufacture and supply of commercial Product as Principal Supplier, at market rate terms and conditions common for the contract manufacture of monoclonal antibodies within the contract manufacturing industry to be mutually agreed in writing by the Parties. If BII does not provide written notice of its exercise of the first right to negotiate within such [...***...] period, XENCOR and any Business Partner shall be free to enter into one or more agreements with third parties for the manufacture and supply of commercial Product (which may include an agreement for any Business Partner or its affiliate to manufacture and supply commercial Product). If BII provides written notice of its exercise of the first right to negotiate within such [...***...] period but BII and XENCOR (or its Business Partner) do not enter into such a contract manufacturing agreement within the Commercial Negotiation Period, XENCOR and any Business Partner shall be free to enter into one or more agreements with third parties for the manufacture and supply, of commercial Product (which may include an agreement for any Business Partner or its affiliate to manufacture and supply commercial Product); provided that the supply price for Product is no more than [...***...] percent ([...***...]%) of the commercial supply price of Product last proposed by BII during the negotiations between the Parties (or BII and the Business Partner). If the supply price for Product proposed by a third party (which may include a Business Partner or its affiliate) is more than [...***...] percent ([...***...]%) of the commercial supply price of Product last proposed by BII during the negotiations between the Parties (or BII and the Business Partner), XENCOR (or its Business Partner) shall provide written notice to BII that XENCOR (and its Business Partner) will accept the commercial supply price last proposed by BII, and BII and XENCOR (or its Business Partner) will enter into a contract manufacturing agreement reflecting such commercial supply price; provided that, if BII does not agree to enter into such contract manufacturing agreement within [...***...] after such written notice, XENCOR (or its Business Partner) shall be free to enter into an agreement with a third party (which may include an agreement for any Business Partner or its affiliate to manufacture and supply Product).   c. The right set forth in Section 5.2.2.b shall automatically terminate if BII does not exercise the first right of negotiation set forth in Section 5.2.2.a. The rights set forth in Section 5.2.2.a and b shall automatically terminate if BII does not produce a viable Process for manufacture of Product as evidenced by failure to produce cGMP Product within a timeframe reasonably and customary in the biopharmaceutical industry for companies of comparable size and the respective activities.   d. In both cases set forth above, in Section 5.2.2.a. and b., if BII exercises its first right of negotiation, BII and XENCOR (and/or its Business Partner, as applicable) will negotiate in good faith a respective contract manufacturing agreement based on the market rate

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  terms and conditions common for the contract manufacture of monoclonal antibodies within the contract manufacturing industry, it being understood that any such contract manufacturing agreement would provide for Technology transfer, payment of the Technology Access Fee (if applicable), and other terms set forth in Sections 5.2.3, 5.2.4 and 5.2.5 below.   e. Any use of the Process by XENCOR or any third party outside the terms and conditions set forth in such contract manufacturing agreement is always subject to the provisions set forth in Section 5.2.3 below.   f. In the event that BII elects not to exercise its first right of negotiation described in Section 5.2.2.a or 5.2.2.b, or, despite their commercially reasonably efforts and good faith negotiations the Parties (or BII and the Business Partner) are unable to agree upon a manufacturing agreement within the Clinical Negotiation Period or, Commercial Negotiation Period, as applicable; and/or XENCOR (and/or XENCOR's Business Partner) wishes to use the Process outside the terms and conditions set forth in a contract manufacturing agreement with BII, BII shall transfer the Process in accordance with Section 5.2.3 below.   g. All of BII's rights of negotiation set forth in this Secti6n 5.2.2 shall terminate upon payment of the Technology Access Fee by XENCOR.   5.2.3 Technology Access Fee and Technology Transfer   In the event that XENCOR wishes to use or have used (e.g. by a Business Partner) the Process outside this Agreement or the terms and conditions set forth in a contract manufacturing agreement with BII, except as provided below, XENCOR shall pay BII a technology access fee of three million five hundred thousand (3,500,000.00) US dollars (the Technology Access Fee).   In the event that XENCOR pays the Technology Access Fee set forth above, XENCOR shall have the right to use or have used (e.g. by a Business Partner) the Process worldwide for the manufacture of Product in accordance with the terms and conditions of this Agreement, without entering into a contract manufacturing agreement with BII.   Notwithstanding the foregoing, no Technology Access Fee shall be due or payable if BII does not produce a viable Process for manufacture of Product as evidenced by failure to produce cGMP Product within the timeframe agreed in the Project Plan or, if factors outside of the reasonable control of BII (such as e.g. a cell-line not suitable for production, delay in the growth of the cell line; shortage of raw materials and supplies, delay or non­performance of BII's suppliers, requests or orders of governments or regulatory authorities, etc.) require the timeframe in the Project Plan to be extended, the extended timeframe agreed upon in writing between BII and XENCOR that is reasonable and customary for paying customers in the biopharmaceutical industry for companies of comparable size and the respective activities. In addition, no Technology Access Fee shall be due or payable in connection with XENCOR's election to use or have used (e.g. by a Business Partner) the Process if (i) BII does not exercise its first right to negotiate under either Section 5.2.2.a or 5.2.2.b, (ii) BII exercises its first right to negotiate but demands a supply price for clinical/commercial supply of Product that exceeds the bid price for the clinical/ commercial supply of Product of a comparable quantity and quality by a third party biopharmaceutical CMO of comparable size and respective activities to BII and with registered headquarters in the Major Territories, or (iii) XENCOR (or its Business Partner) has entered into a contract manufacturing agreement with BII, but BII is not able to supply XENCOR and its Business Partners [...***...] of the Product required. For the avoidance of doubt, nothing in this Section 5.2.3 (ii) shall affect such contract manufacturing agreement or BII's position as Principal Supplier, but XENCOR may solely request the Technology Transfer pursuant to the following sentences of this Section without paying the Technology Access Fee in order to have manufactured the amount of Product missing to satisfy XENCOR's and its Business Partners' demand.

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  For the avoidance of doubt, the Technology Access Fee is only due one time, and if XENCOR pays the Technology Access Fee, except for the Project Fees, no additional amount will be payable for use or having used the Process worldwide.   The Technology Access Fee includes Technology transfer support of [...***...] FTEs of BII for a period of [...***...] for each of the [...***...] FTEs in a time frame of [...***...] beginning with XENCOR's written request to use or have used (e.g. by a Business Partner) the Process outside the terms and conditions set forth in a contract manufacturing agreement with BII. Further support of BII requested by XENCOR shall be reimbursed at an hourly rate of [...***...] US dollars. The Parties will agree upon the times when to render such Technology transfer support in good faith.   Promptly following XENCOR's election to use the Process, BII shall start to transfer the Process and all reasonably necessary related BII Confidential Information and Know-How) to XENCOR or such designee experienced in the biopharmaceutical production and shall use commercially reasonable efforts, taking into consideration BII's entire contract manufacturing business and other contract manufacturing contracts, to transfer the Process as quickly as possible (and in any event within [...***...] from receipt of XENCOR's written election notice). Both Parties agree and XENCOR will make its Business Partner agree that BII may, however, select the way how to render such support of any Technology transfer at its own discretion, in particular but not only any support of such Technology transfer to a company whose primary business is providing biopharmaceutical CMO services (including e.g. a Technology transfer outside the BI Facility), provided, however, that BII's exercise of such discretion is not unreasonable.   XENCOR and/or any third party may not use the Process outside the terms and conditions set forth in a contract manufacturing agreement with BII except as set forth in Section 5.2.2 and this Section 5.2.3 and provided that XENCOR or it Business Partner strictly adhere to the license conditions set forth in Sect ion 5.2.5 herein.   5.2.4 Payment Terms   The Technology Access Fee, as applicable, shall be paid to BII upon completion of the Technology transfer described in Section 5.2.3 and shall be payable in accordance with the provisions set forth under Sections 3.2 and 3.3 above. Parties agree that the Technology transfer shall be completed upon the transfer of Process and all reasonably necessary related BII Confidential Information and Know-How.   5.2.5 License   Subject to XENCOR's adherence to the obligations under this Agreement, BII hereby grants XENCOR a worldwide, irrevocable, exclusive, sublicensable and royalty free license to use the Process and all reasonably necessary related BII Confidential Information and Know- How, BII Technology and BII Intellectual Property for the sole purpose of making and having made the Product; provided that such license shall become effective only upon complete payment of the Technology Access Fee, as applicable.   5.3 Acknowledgement   The Parties acknowledge that nothing in this Agreement shall limit or restrict XENCOR, itself or with or through any third party, from developing and using any process (except for the Process) for the manufacture of any of its products, including the Product, provided that no BII Confidential Information and Know-How is used and XENCOR adheres to its confidentiality and non-use obligations hereunder and complies with the ownership of intellectual property and Improvements as set forth in Section 8 below.

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  6 Representations, Warranties and Indemnification   6.1 Mutual Representations, Warranties and Covenants   Each Party hereby represents, warrants and covenants to the other Party as follows as of the Effective Date:   a. it is a corporation duly organized and validly existing under the laws of the state or other jurisdiction of incorporation or formation; and   b. the execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite corporate action; and   c. it has full corporate authority to execute and deliver this Agreement and to perform its obligations hereunder, and the Agreement is binding upon it in accordance with it terms; and   d. it has the right, without restriction, to grant the licenses granted under this Agreement.   6.2 XENCOR Warranties   XENCOR hereby warrants that:   a. XENCOR has the right to provide the Material, the XENCOR Technology, the XENCOR Intellectual Property and all XENCOR Confidential. Information and Know-How under this Agreement and to the best of its Knowledge at the Effective Date that there are no third party rights that will limit or restrict use thereof by BII in accordance with this Agreement; and   b. to the best of its Knowledge at the Effective Date XENCOR is not aware of any special or unusual hazards involved in handling the Materials and/or Product of which it has failed to inform BII; and that it will inform BII immediately of any changes related thereto after the date of execution of this Agreement; and   c. at the Effective Date, no third party has asserted any claim or lawsuit against XENCOR claiming that use of the Material, XENCOR Technology, the XENCOR Intellectual Property and the XENCOR Confidential Information and Know-How infringes any intellectual property owned by a third party, and it will promptly notify BII in writing should it become aware of any claims by a third party asserting that use of such infringes any third part intellectual property rights owned by such third party.   d. it will use commercially reasonable efforts to conduct and complete a clinical trial phase 1 regarding the Product; and   e. it will use commercially reasonable efforts to find and enter into an agreement with a suitable Business Partner.   For avoidance of doubt, all XENCOR liability or indemnification obligations that might result from representations and the warranties under this Section 6 are always subject to the limitations set forth in Section 7.4 of this Agreement.   6.3 BII Warranties   BII hereby warrants that:   a. BI is entitled to use the BI Facility and BII Confidential Information and Know-How, for the purposes set forth in this Agreement; and   b. BII at the Effective Date, it is not aware of any special or unusual hazards that would arise as a result of its carrying out of the Projects as planned; and   c. at the Effective Date, it has not been debarred, nor is it subject to a pending debarment, and that it will not, to the best of its Knowledge, use in any capacity in connection with   22





  the Services under this Agreement any person, who has been debarred pursuant to section 306 of the FDCA, 21 U.S.C. § 335a, or who is the subject of a conviction described in such section. BII agrees to notify XENCOR in writing immediately if it has Knowledge that BII or any person who is performing Services is debarred or is the subject of a conviction described in section 306, or if any action, suit, claim, investigation, or proceeding is pending, or to BII's Knowledge, is threatened, relating to the debarment or conviction of BII or any person performing Services under this Agreement; and   d. to the best of its Knowledge at the Effective Date its performance under this Agreement including, but not limited to, the BII Technology and its use in the Process, by BII, XENCOR or a third party manufacturer of XENCOR does not infringe the intellectual property rights of any third party and it will promptly notify XENCOR in writing should it become aware of any claims asserting such infringement or of any third party intellectual property rights, that would be infringed by the BII Technology and its use in the Process. For the avoidance of doubt, the currently pending Cabilly dispute is excluded and will be addressed/ compensated by XENCOR once applicable: and   e. as of the Effective Date no third party has asserted any claim or lawsuit against BII claiming infringement of any intellectual property owned by a third party with relation to BII Technology and/or the Process, or any part or component thereof.   For avoidance of doubt, all BII liability or indemnification obligation that might result from representations and the warranties under this Section 6 are always subject to the limitations set forth in Section 7.4 of this Agreement.   6.4 Process for Defense of Infringement of Third Party Intellectual Property   Subject to each Party's indemnification obligations, in the event that there occurs a Claim (as defined below), the Parties shall follow the following procedures with respect to the defense of the Claim:   a. BII agrees that if a third party threatens or asserts any claim or files any lawsuit, claiming that BII Intellectual Property utilized under this Agreement and necessary for manufacture and production of the Product in accordance with this Agreement, including, without limitation, the BII Technology or the Process, or the use thereof, constitutes infringement of any intellectual property owned by a third party (each, a Claim), BII will promptly and timely inform XENCOR of such Claim, and BII shall have the first right to negotiate, litigate and/or settle any such Claim, and shall defend any such Claim unless it would not be commercially reasonable for BII to bear the reasonably anticipated losses, damages, costs and expenses arising from any settlement or judgment resulting from such Claim. For the avoidance of doubt, the term commercially reasonable, as used in this paragraph a. shall be determined (i) in the context of BII's entire business related to the intellectual property that is the subject to the Claim, where the Claim asserts infringement that impacts aspects of BII's business beyond the XENCOR relationship, and (ii) if the Claim asserts infringement that is limited only to activities performed for XENCOR, in the context of the entire relationship between XENCOR and BII.   b. BII will keep XENCOR reasonably informed about such negotiation or litigation at all times, including all material events related thereto, and in the event that the amounts paid or to be paid by BII in settlement of any such Claim or group of related or unrelated Claims appear reasonably likely to exceed, individually or in the aggregate, BII's indemnification obligations, or any contemplated settlement would place any obligations or restrictions upon XENCOR or the Product, then BII shall immediately inform XENCOR.   c. XENCOR shall not be responsible to pay for any costs of any settlement by BII of any Claim(s) (including, without limitation, any payments resulting of such settlement) that   23





  exceed BII's indemnification obligations or be bound by any obligations or restrictions agreed to by BII in any such settlement, in case such settlement is made without the prior written consent of XENCOR, which may be granted or withheld in its sole discretion.   d. In the case that BII decides not to negotiate, litigate or settle any Claim, XENCOR shall have the right to negotiate, litigate and settle any such Claim, and, provided that XENCOR decides to pursue such negotiation, litigation or settlement, BII will provide all commercially reasonable cooperation to XENCOR such that XENCOR may appropriately defend such Claims.   6.5 Disclaimer of Warranties   EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY INTELLECTUAL PROPERTY, TECHNOLOGY, RIGHTS, RESULTS OF THE PROJECTS, MATERIAL, THE DELIVERABLES OR OTHER SUBJECT MATTER OF THIS AGREEMENT OR THAT THE PROJECTS WILL RESULT IN A COMMERCIALLY-VIABLE PROCESS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABIIITY AND FITNESS FOR A PARTICULAR PURPOSE.   7 Liability, Indemnification, Limitations and Insurance   7.1 General   BII has no control over the manner in which XENCOR intends to use the results of the Project, the Product or the Deliverables, if any, obtained in the Project and in particular does not know or control how XENCOR intends to use such Product or results in clinical studies.   7.2 Liability   a. Of BII   Always subject Section 7.4, in consideration of the aspects set forth in Section 7.1, BII shall only be liable for any losses, damages, costs or expenses including, without limitation, reasonable attorneys' fees of any nature (Losses) incurred or suffered by XENCOR or its Affiliated Companies or any third party (including but not limited to Business Partners) to the extent such Losses are arising from either (i) BII's non­compliance with the warranties given under Sections 6.1 and 6.3 of this Agreement, or (ii) gross negligence or willful acts or omissions of BII or its Affiliated Companies in performing its obligations under this Agreement.   BII shall not be liable to XENCOR or be obligated to indemnify XENCOR or its Representatives under Section 7.3 for any Losses incurred or suffered by XENCOR, its Affiliated Companies or by any third party, arising out of any dispute or other claims or proceedings made by or brought against XENCOR and/or its Affiliated Companies with respect to XENCOR's use of any results of the Project, the Deliverables (including but not limited to the Product, if any), the Process, the BII Technology and/or the BII Confidential Information and Know-How, obtained (including but not limited to the use under a license that may be granted under this Agreement) under this Agreement including, without limitation, product liability claims, except to the extent such Losses are caused by the gross negligence or wilful acts or omissions of BII or its Affiliated Companies in performing its obligations under this Agreement, nor shall BII be responsible in any way for dealing with any such disputes, claims or proceedings.   24

  b. Of XENCOR   Always subject to Section 7.4, XENCOR shall be liable for any Losses incurred or suffered by BII, its Affiliated Companies or by any third party arising from either (i) XENCOR's non­compliance with the warranties given under Sections 6.1 and/or 6.2 of this Agreement, or (ii) BII's or XENCOR's use of XENCOR Confidential Information and Know­How, the Material, the XENCOR Intellectual Property and/or the XENCOR Technology in accordance with this Agreement, or (iii) XENCOR's use of the Deliverables (including but not limited to the Product, if any), or (iv) XENCOR' s use of the Process, the BII Technology, the BII Confidential Information and Know-How, and/or any other results of the Project or this Agreement, not in accordance with this Agreement.   XENCOR shall not be liable to BII or its Affiliated Companies or be ob1igated to indemnify BII or its Representatives under Section 7.3 for any Losses incurred or suffered by BII or its Affiliated Companies or any third party arising out of any dispute or other claims or proceedings made by or brought against BII or its Affiliated Companies with respect to BII's use of the BII Confidential Information and Know-How, the Material, the XENCOR Intellectual Property, and/or the XENCOR Technology or BII's use of the license granted to BII under Section 8.2.5.a outside the scope of this Agreement, in each case except to the extent such liability is caused by the gross negligence or wilful acts or omissions of XENCOR, or its Affiliated Companies in performing its obligations under this Agreement, nor shall XENCOR be responsible in any way for dealing with any such disputes, claims or proceedings.   7.3 Indemnification   a. BII's Indemnification Obligations   Always subject to Section 7.4, BII shall indemnify, defend and hold XENCOR, its Affiliated Companies and their respective officers, employees and agents (the Representatives) harmless from and against all Losses incurred by them as a result of third





party claims based on or resulting from (i) BII's non­compliance with the warranties given under Sections 6.1 and 6.3 of this Agreement, or (ii) any gross negligence or wilful acts or omissions of BII or any of its Affiliated Companies in performing its obligations under this Agreement.   b. XENCOR's Indemnification Obligations   Always subject to Section 7.4, XENCOR shall indemnify, defend and hold BII and its Representatives harmless from and against all Losses incurred by them as a result of third party claims based on or resulting from (i) BII's use of the XENCOR Confidential Information and Know-How, the Material, the XENCOR Intellectual Property and/or the XENCOR Technology in accordance with this Agreement; or (ii) XENCOR's non­compliance with the warranties given under Sections 6.1 and 6.2 of this Agreement, or (iii) XENCOR's use of the Deliverables (including but not limited to the Product, if any), or (iv) XENCOR' s use of the Process, the BII Technology, the BII Confidential Information and Know-How, and/or any other results of the Project or this Agreement, not in accordance with this Agreement.   7.4 Limitation of Liability and Indemnification Obligations   With the exception of wilful misconduct by a Party, and such cases where a limitation of liability and/or indemnification is not possible under applicable law, for which cases there shall be no limitation, any and all liability and/or indemnification obligations of each of BII and XENCOR under this Agreement shall be:   a. excluded for incidental, indirect, consequential, punitive or special damages (provided that the foregoing shall not exclude a Party's right to consequential or incidental   25





  damages for any negligent or intentional breach of confidentiality and non-use obligations under Section 9); and   b. each Party's aggregate liability and/or indemnification obligations towards the other Party under this Agreement shall not exceed an amount equal to the average annual aggregate amount paid or to be paid by XENCOR to BII hereunder; provided, however, that in the case of a Party's negligent or intentional breach of confidentiality and non­use obligations pursuant to Section 9, this limitation of liability shall be increased to twice the average annual aggregate amount paid or to be paid by XENCOR to BII hereunder;   provided however that the foregoing Subsections a. and b. of this Section 7.4 shall not limit XENCOR' s liability and indemnification obligation towards BII with respect to any third party claims according to clause (iii) and (iv) of Section 7.3 b. regarding any use of the Deliverables (in particular the Product) in humans and/or with respect to any third party claim that BII's use of the Material to manufacture the Product infringes any issued patent owed by such third party (excluding any such claim based specifically on use of the Process but not on the use of the Material).   7.5 Insurance   XENCOR and BII shall obtain and/or maintain during the term of this Agreement and for a period of [...***...] thereafter, liability insurance in amounts which are reasonable and customary in the biopharmaceutical industry for companies of comparable size and the respective activities (i.e. BII as CMO and XENCOR as sponsor/pharmaceutical company) at the respective place of business and such liability insurance shall insure against all mandatory liability, including liability for personal injury, physical injury and property damage. BII shall have the right to reasonably self insure.   8 Intellectual Property   8.1 Existing Intellectual Property Rights   BII hereby acknowledges that XENCOR is the owner of XENCOR Confidential Information and Know-How and the XENCOR Technology and BII shall acquire no rights, title or interest whatsoever in or to any of XENCOR Confidential Information and Know-How and/or XENCOR Technology, except as specifically provided for in this Agreement.   XENCOR hereby acknowledges that BII is the owner of BII Confidential Information and Know-How and the BII Technology and XENCOR shall acquire no rights, title or interest whatsoever in or to any of BII Confidential Information and Know-How and/or the BII Technology, except as specifically provided for in this Agreement.   8.2 New Intellectual Property, Project Results and Licenses   8.2.1 XENCOR   Improvements that (i) relate specifically to XENCOR Confidential Information and Know-How and/or the Product (or any modification, derivative or fragment thereof), and (ii) do not relate to BII Confidential Information and Know­How (collectively, XENCOR Intellectual Property), will be exclusively owned by XENCOR and XENCOR shall control patent prosecution and maintenance thereof. BII (on behalf of itself and its Affiliated Companies) agrees to assign and hereby assigns to XENCOR all right title and interest it may have in any XENCOR Intellectual Property. BII shall provide reasonable assistance to XENCOR for any action which may be necessary to assign or otherwise transfer any rights to XENCOR Intellectual Property contemplated by this Section 8.2.1. BII shall notify XENCOR within [...***...] of becoming aware of such XENCOR Intellectual Property.

***Confidential Treatment Requested   26





  8.2.2 BII   Improvements that (i) relate specifically to BII Confidential Information and Know-How, and (ii) do not relate to XENCOR Confidential Information and Know­How (collectively, BII Intellectual Property) will be exclusively owned by BII, and BII shall control patent prosecution and maintenance thereof. XENCOR agrees to assign and hereby assigns to BII all right title and interest it may have in any BII Intellectual Property. XENCOR shall provide reasonable assistance to BII for any action which may be necessary to assign or otherwise transfer such rights to BII Intellectual Property contemplated by this Section 8.2.2.   8.2.3 Other Improvements   Any Improvements that are neither XENCOR Intellectual Property nor BII Intellectual Property shall be defined as Other Improvements and shall be jointly owned by BII and XENCOR, with the Parties entitled to practice the same as joint owners, without duty of accounting to the other Party and with the right to license to others without consent of the other Party. BII shall notify XENCOR within [...***...] days of becoming aware of such Other Improvements. Each Party agrees to assign and hereby assigns to the other Party such right title and interest it may have in any Other Improvements as necessary to effect joint ownership of the Other Improvements by BII and XENCOR. Each Party shall provide reasonable assistance for any action which may be necessary to assign or otherwise transfer such rights to Other Improvements to Parties as joint owners. BII shall have the first right to prosecute and maintain patent rights within the Other Improvements, at its expense, provided that if BII elects not to prosecute or maintain an Other Improvement it shall provide written notice to XENCOR, and XENCOR may elect to take over responsibility for prosecution and maintenance of such Other Improvement, at its own expense, by providing written notice to BII, in which case all rights to such Other Improvement shall be assigned to XENCOR. For the avoidance of doubt, except as expressly stated otherwise in Section 10.3, Parties agree that XENCOR's use of the Process is always subject to Section 5.2.3, 5.2.4 and 5.2.5.   For the avoidance of doubt, (i) know-how pertaining to manufacturing of biopharmaceuticals generally and gained during the course of performing this Agreement may be freely used by BII in its biopharmaceutical business without any restrictions, provided, that, notwithstanding the foregoing, BII may not use any Other Improvement that relates specifically to the Product.   a. Each Party shall ensure that all of such Party's (or its Affiliated Company's) employees or contractors acting on its behalf pursuant to this Agreement are and will be obligated under a binding written agreement or by law to assign to such Party all inventions and rights on the inventions made under this Agreement so that such Party can comply with the terms of this Agreement.   b. Subject to the terms and conditions contained in this Agreement, BII shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by BR. XENCOR shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by XENCOR.   c. BII shall keep XENCOR and XENCOR shall keep BII reasonably informed about prosecution of any patent applications and maintenance of any patents generated under this Agreement.   8.2.4 Licenses to Xencor   BII grants to XENCOR the license set forth in Section 5.2.5 as provided therein.   8.2.5 Licenses to BII   a. Freedom to operate XENCOR hereby grants to BII and BII herewith accepts a non exclusive, worldwide, irrevocable, sublicensable (in several cascades), perpetual, royalty-free/fully paid up license under the XENCOR Intellectual Property to the extent it is generally applicable to the manufacturing of biopharmaceutical products, handling   27





  of cell lines and/or development of manufacturing processes, to use such XENCOR Intellectual Property in for the manufacture of biopharmaceutical products, handling of cell lines and/or development of manufacturing processes, but excluding any use with respect to the Product (or any modification, derivative or fragment thereof). BII expressly agrees not to practice any XENCOR Intellectual Property specific to the Product or for any purpose other than as expressly provided in this Section 8.2.5.   b. Performance of Project: During the term of this Agreement, XENCOR hereby grants to BII and BII hereby accepts for the purpose of pursuing the Project a non-exclusive, non-sub-licensable (except to Affiliated Companies), royalty-free, license to use the XENCOR Confidential Information and Know-How, the Material, the XENCOR Intellectual Property and/or any part of the Other Improvements for the sole purpose to develop the Process, and for the manufacturing of the Product for clinical purposes in accordance with this Agreement. BII expressly agrees not to use or practice any XENCOR Confidential Information and Know- How, the Material, and/or the XENCOR Intellectual Property for any purpose other than performance or the Services in accordance with this Agreement, except if otherwise expressly permitted in this Agreement.   9 Confidentiality   9.1 General   The Parties agree, for the duration of this Agreement and a term of [...***...] after the Effective Date: (a) to hold in strict confidence all Confidential Information and Know­How of a Party (Disclosing Party) or its Affiliated Companies which has been or will be made available to the other Party (Receiving Party) or its Affiliated Companies, and not to disclose such Confidential Information and Know­ How of the Disclosing Party to any third party whatsoever, (b) not to use such Confidential Information and Know-How of the Disclosing Party for any purpose other than those set forth herein. For clarification, all XENCOR Confidential Information and Know-How, XENCOR Technology and XENCOR Intellectual Property shall be Confidential Information and Know-How of XENCOR and XENCOR shall be the Disclosing Party and BII shall be the Receiving Party with respect thereto, and all BII Confidential Information and Know-How, BII Technology and BII Intellectual Property shall be Confidential Information and Know-How of BII and BII shall be the Disclosing Party and XENCOR shall be the Receiving Party with respect thereto.   The Receiving Party undertakes to protect the Disclosing Party's Confidential Information and Know ­How against unauthorized access by third parties using all commercially reasonable efforts.   If Confidential Information and Know-How is disclosed by Disclosing Party or its Affiliated Companies other than in written or electronic form, then Receiving Parties' obligations of confidentiality and non­use shall only apply if the Confidential Information and Know­How is indicated upon disclosure as being confidential and is then summarised electronically or in writing and provided to Receiving Party within [...***...] after initial disclosure. Notwithstanding the foregoing, in no event shall a failure to provide such an electronic or written summary preclude either Party from asserting that such information is Confidential Information and Know-How.   The obligations to keep secret, not to disclose and not to use the Disclosing Party's Confidential Information and Know­How or parts thereof shall not apply in the event that the respective Confidential Information or and Know-How such parts thereof:

***Confidential Treatment Requested   28





  a. can be shown by written documentation to have been known to Receiving Party or its Affiliated Companies prior to disclosure by the Disclosing Party or its Affiliated Companies hereunder or under the MTA (in no event will Confidential Information and Know- How of the Disclosing Party that is generated by the Receiving Party or its Affiliated Companies (e.g., Improvements that are XENCOR Intellectual Property) be considered to be known by the Receiving Party or its Affiliated Companies prior to disclosure by the Disclosing Party or its Affiliated Companies),   b. is or comes into the public domain by publication or otherwise through no breach of this Agreement or the MTA, or   c. can be shown by written documentation to have been made known to Receiving Party or its Affiliated Companies from another source free from any obligation of confidentiality and was not obtained either directly or indirectly from Disclosing Party or its Affiliated Companies, or   d. can be shown by written documentation to have been independently developed or created by Receiving Party or its Affiliated Companies without access to the other Party's Confidential Information and Know­How (in no event will Confidential Information and Know-How of the Disclosing Party that is generated by the Receiving Party or its Affiliated Companies (e.g., Improvements that are XENCOR Intellectual Property) be considered to be independently developed by the Receiving Party or its Affiliated Companies).   Confidential Information and Know-How not be deemed to be in the public domain merely because they may be derived from one or more items which are publicly known.   Receiving Party shall not disclose Disclosing Party Confidential Information and Know-How to any third party without the prior written consent of Disclosing Party, except to such of the Receiving Party's or its Affiliated Companies' responsible employees and/or advisors to whom it is necessary to disclose such Confidential Information and Know-How for purpose set forth herein. Before such Confidential Information and Know-How is disclosed to such employees and/or advisors, Receiving Party shall first impose on such employees and/or advisors confidentiality and non-use obligations not less stringent than those set forth herein, however, the imposition of such obligations shall not relieve Receiving Party of its obligations hereunder.   In the event that Receiving Party or its Affiliated Companies are required by law, regulation, rule, act or order of any governmental authority or agency to disclose the Disclosing Party's Confidential Information and Know­How, the Receiving Party or its Affiliated Companies shall be entitled to do so provided that Receiving Party shall first notify Disclosing Party forthwith of any such required disclosure and limit such disclosure as far as is possible under applicable law. Such disclosure shall, however, not relieve Receiving Party of its other obligations contained herein.   Furthermore, a Receiving Party may make such disclosures of the Disclosing Party's Confidential Information and Know­How to governmental entities to the extent reasonably necessary in connection with pursuit of intellectual property protection, development and commercialization activities related to the Product as contemplated by this Agreement, and approvals to use and sell the Product. Moreover, XENCOR may disclose BII Confidential Information and Know-How to entities (i) with whom XENCOR has (or may have) a marketing and/or development collaboration for the Product (including an actual or potential Business Partner) or (ii) that are actual or potential investors in or acquirers of XENCOR, to the extent reasonably necessary for the pursuit of such actual/ potential collaboration or relationship pursuant to (i) or (ii), and, in both cases, who have a specific need to know such information and who are bound by obligations of confidentiality and restrictions on use similar to those set forth in this Agreement, provided always that XENCOR may not disclose any BII   29





  Confidential Information and Know-How to any company whose primary business is providing biopharmaceutical CMO services except with BII's prior written consent.   9.2 MTA Superseded   The confidentiality and non-use obligations under the MTA shall be superseded hereby and all information disclosed pursuant to the MTA shall be Confidential Information and Know-How subject to this Agreement.   9.3 Controlled Technology   XENCOR hereby agrees and covenants that if it or its Affiliated Companies intend to provide Confidential Information and Know-How to BII or its Affiliated Companies that XENCOR has Knowledge may be listed on the Commerce Control List or the Chemical Weapons Convention Schedules of Chemicals, both contained within the U.S. Export Administration Regulations (hereinafter Controlled Technology), then XENCOR shall notify promptly BII of such Knowledge as soon as possible prior to such intended disclosure. In order for BII to take any appropriate precautionary actions before receipt of such Controlled Technology and to ensure compliance with U.S. export laws, XENCOR shall, before providing the Controlled Technology:   a. identify all Confidential Information and Know-How of XENCOR that may be Controlled Technology; and   b. inform BII, to the extent known to XENCOR, where the Controlled Technology is listed on the Commerce Control List or the Chemical Weapons Convention Schedules of Chemicals and what restrictions apply to the export or disclosure of the Controlled Technology under U.S. law.   XENCOR further agrees to cooperate with BII by providing upon request information and other assistance necessary for the export classification, export documentation and export licensing, if required, for the Controlled Technology under U.S. export laws.   In any event, XENCOR hereby agrees that it will not disclose Controlled Technology to BII or its Affiliated Companies without the express prior consent of BII.   10 Term and Termination   10.1 Term   This Agreement shall take effect as of the Effective Date and shall expire upon completion of the Project as set forth in the Project Plan and after payment of all payments due and payable according to this Agreement, unless terminated earlier in accordance with this Agreement.   10.2 Termination of this Agreement   10.2.1 If it is apparent to either Party at any stage of the Project that it will not be possible to carry out the Project for scientific, technical or business reasons, such Party may terminate this Agreement upon one hundred eighty (180) days prior written notice to the other Party.   10.2.2 Termination for Material Breach: This Agreement may be terminated at once by written notice by either Party, if the other Party breaches this Agreement in any material manner and shall have failed to remedy such default within thirty (30) days after written notice thereof from the terminating Party.   10.3 Effects of Termination of this Agreement   30





  10.3.1 Effect of Termination prior to completion of the Phase 1 clinical trial with the Product as described in Section 2.8.3.   a. In the event of termination by XENCOR according to Section 10.2.1 prior to completion of the Phase 1 clinical trial with the Product as described in Section 2.8.3 for technical and/or scientific reasons, XENCOR shall have no obligation to pay BII any or all of the Total Amount. For the avoidance of doubt, in such case, XENCOR may not use the Process outside BII, except as otherwise agreed in writing by XENCOR and BII.   b. In the event of termination by XENCOR according to Section 10.2.1 prior to completion of the Phase 1 clinical trial with the Product as described in Section 2.8.3. for any other reason than the reasons set forth under Section 10.3.1.a the Total Amount shall be limited to all non-cancellable expenses reasonably incurred by BII in accordance with the Project Plan prior to such termination in respect of the purchase of supplies or raw materials, and reasonable wind-down costs not to exceed sixty (60) days. BII shall mitigate all wind-down costs and non-cancellable expenses to the extent possible. Campaigns cancelled shall be paid as provided for in Section 4.2 above. For the avoidance of doubt, in such case, XENCOR many not use the Process outside BII, except as otherwise agreed in writing by XENCOR and BII.   c. In the event of termination by BII according to Section 10.2.1 prior to completion of the Phase 1 clinical trial with the Product, XENCOR shall have no obligation to pay BII any or all of the Total Amount. The use of the Process is subject to Section 5.2.3, 5.2.4 and 5.2.5.   d. In all of the foregoing cases a.-c., at the request of XENCOR and to the extent available at BII, BII shall destroy the Material or deliver the Material to XENCOR at XENCOR's cost and shall promptly return all XENCOR Confidential Information and Know­How to XENCOR; except for a copy and/or sample of each material for documentation purposes only, which shall remain to the confidentiality and non­use provisions in Section 9, and shall refrain from using the Material. Except for the foregoing, BII's responsibility to keep and store the Material and any other materials shall terminate one hundred eighty (180) days after expiration or termination of the respective Project or this Agreement.   In the foregoing cases a.-c., XENCOR shall promptly return all BII Confidential Information and Know-How to BII, except for a single copy and/or sample for documentation purposes only, which shall remain to the confidentiality and non-use provisions in Section 9, and shall refrain from using the Process, except as contemplated in Section 10.3.1.c or 10.3.1.d.   For the a voidance of doubt, in the event of a termination by XENCOR as contemplated in clause b of this Section 10.3.1, Section 3.1.2.c shall continue in effect, but Section 3.1.2 shall not survive in the event of any termination described in clause a. and c.   10.3.2 Effect of Termination after completion of the Phase 1 clinical trial with the Product as described in Section 2.8.3.   a. In the event of termination by XENCOR according to Section 10.2.1 after completion of the Phase 1 clinical trial with the Product as described in Section 2.8.3 for technical and/or scientific reasons, XENCOR shall have no obligation to pay BII any or all of the Total Amount. For the avoidance of doubt, in such case, XENCOR may not use the Process outside BII, except as otherwise agreed in writing by XENCOR and BII. For the avoidance of doubt, in the event of a termination as contemplated in this Section 10.3.2a, Section 3.1.2 c shall survive.   b. In the event of termination by XENCOR according to Section 10.2.1 after completion of the Phase 1 clinical trial with the Product as described in Section 2.8.3 for a reason not listed in Section 10.3.2.a, the Total Amount shall be limited to all non-cancellable expenses reasonably incurred by BII in accordance with the Project Plan prior to such   31





  termination in respect of the purchase of supplies or raw materials, and reasonable wind-down costs not to exceed sixty (60) days. BII shall mitigate all wind-down costs and non-cancellable expenses to the extent possible. Campaigns cancelled shall be paid as provided for in Section 4.2 above. For the avoidance of doubt, in the event of a termination as contemplated in this Section 10.3.2b, Section 3.1.2.c shall continue in effect. The use of the Process is subject to Sections 5.2.3, 5.2.4 and 5.2.5.   c. In the event of termination by BII according to Section 10.2.1 after completion of the Phase 1 clinical trial with the Product, XENCOR shall have no obligation to pay BII any or all of the Total Amount. The use of the Process is subject to Sections 5.2.3, 5.2.4 and 5.2.5. For the avoidance of doubt, in the event of a termination as contemplated in this Section 10.3.2c, Section 3.1.2 shall not survive.   10.3.3 Effect of Termination due to Material Breach   a. In case of a termination by BII according to Section 10.2.2, the Total Amount shall become immediately due and BII shall be free to claim for damages according to the applicable law and, subject to Section 7.4 above. All licenses granted by either Party to the other Party hereunder shall be null and void. For the avoidance of doubt, XENCOR may not use the Process outside BII, except as otherwise agreed in writing by XENCOR and BII; except that, if XENCOR has already exercised its rights under Sections 5.2.3, 5.2.4 and 5.2.5, all such rights granted prior to termination shall remain in effect.   b. In case of a termination by XENCOR according to Section 10.2.2, XENCOR shall have no obligation to pay BII any or all of the Total Amount, and subject to Section 7.4 above, XENCOR shall be free to claim for damages according to the applicable law. All licenses granted by XENCOR to BII hereunder shall be null and void. For the avoidance of doubt, Section 3.1.2 shall not survive in the event of termination as described in this Section 10.3.3.b. The use of the Process is subject to Sections 5.2.3, 5.2.4 and 5.2.5.   10.4 Surviving Provisions   Upon any expiration or termination of this Agreement by either Party pursuant to Section 10.2, all rights and obligations of the Parties under this Agreement shall terminate and be of no further force or effect, except as otherwise expressly set forth below in this Section 10.4 and in Section 10.3. The expiration or termination of this Agreement for any reason shall not release either Party from any liability that, at the time of such expiration or termination, has already accrued to the other Party or that is attributable to a period prior to such expiration or termination. The following provisions of this Agreement shall survive expiration or termination of this Agreement for any reason: Section 1 (Definitions), Section 3 (Payments) except as expressly set forth in Section 10.3; Section 5 (Ownership and Use of Project Data), Section 6.4 (Process for Defense of Infringement of Third Party Intellectual Property); Section 6.5 (Disclaimer of Warranties); Section 7 (Liability, Indemnification, Limitations and Insurance); Section 8 (Intellectual Property), but excluding the last sentence of the first paragraph of Section 8.2.3 (Other Improvements) referring to Sections 5.2.3, 5.2.4 and 5.2.4 except to the extent that those sections are expressly stated to survive termination as set forth in Section 10.3, and excluding Section 8.2.5b; Section 9 (Confidentiality); Section 10.3 (Effects of Termination of this Agreement), including the provisions referenced in Section 10.3 as continuing after termination, as applicable; Section 10.4 (Surviving Provisions); and Section 11 (Miscellaneous).   11 Miscellaneous   11.1 Force Majeure   Neither Party shall be in breach of this Agreement if there is any failure of performance under this Agreement (except for payment of any amounts due hereunder) occasioned by any reason   32





  beyond the control of either Party, including, without limitation, any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining energy or other utilities, or labour disputes of whatever nature.   11.2 Conflict with Improvements under the MTA   The Parties agree that with respect to the ownership of intellectual property rights and/or ownership of Improvements, this Agreement shall prevail over the terms and conditions of the MTA and shall also cover the term of the MTA.   11.3 Secrecy Agreement between the Parties   The Parties agree that all information exchanged pursuant to the Secrecy Agreement between the Parties with effectiveness as of June 28, 2011 shall be Confidential Information and Know-How protected in accordance with this Agreement, and such Secrecy Agreement shall be superseded by the terms of this Agreement and shall have no further force or effect.   11.4 Publicity   XENCOR or BII may issue the mutually agreed press release attached as Appendix 8 announcing the execution of this Agreement. Except as provided in the preceding sentence, no press release or other form of publicity regarding a Project or this Agreement shall be permitted by either Party to be published unless both Parties have indicated their consent to the form of the release in writing. The same applies, to any changes in the press release attached as Appendix 8. Nothing in this Section shall prevent the Parties from disclosing this Agreement, if and as far as required by applicable laws, rules or regulations. However, the disclosing Party shall inform the other Party well in advance whenever reasonably possible and shall provide the opportunity to comment on such required disclosure (e.g. under SEC rules). In addition, subject to XENCOR's compliance with Section 9.1, nothing in this Section shall prevent XENCOR from disclosing the status of development, regulatory approval or commercialization of the Product.   11.5 Notices   Any notice required or permitted to be given hereunder by either Party shall be in writing and shall be (i) delivered personally, (ii) sent by registered mail, return receipt requested, postage prepaid or (iii) delivered by facsimile with immediate confirmation of receipt, to the addresses or facsimile numbers set forth below:   If to BII:   Boehringer Ingelheim International GmbH Binger Straße 17355216 Ingelheim Federal Republic of Germany Attention: Mr. Alois Konrad (Global Dept. Biopharma Contract Manufacturing Business) Fax: 0049- 7351/54 - 4845 Phone: 0049- 7351/54 - 96145   33





  If to XENCOR:   111 West Lemon Avenue Monrovia, CA 91016 Attention: Chief Executive Officer Phone: (626) 305-5900 Fax: (626) 305-0350   11.6 Applicable Law and Arbitration   This Agreement shall be exclusively governed by and construed in accordance with the laws of the State of New York, USA without regard to its conflict of laws provisions.   The application of the UN Convention on Contracts for the International Sale of Goods is excluded.   The Parties agree that all disputes, claims or controversies arising out of, relating to, or in connection with this Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed in accordance with said rules.   The exclusive place of arbitration shall be New York State of New York, USA and the proceedings shall be conducted in English language.   The award for arbitration shall be final and binding and may be enforced in any court of competent jurisdiction against BII or XENCOR. Nothing in this Section shall prevent any Party, before an arbitration has commenced hereunder or any time thereafter during such arbitration proceedings, from seeking conservatory and interim measures, including, but not limited to temporary restraining orders or preliminary injunctions, or their equivalent, from any court of competent jurisdiction.   The Parties further agree that   a. except as may be otherwise required by applicable laws, rules or regulations, neither Party, its witnesses, or the arbitrator may disclose the existence, content, results of the arbitration hereunder without prior written consent of both Parties; and   b. neither Party shall be required to give general discovery of documents, but may be required only to produce specific, identified documents, or narrow and specific categories of documents, which are relevant to the case and material to its outcome and reasonably believed to be in the custody, possession or control of the other Party; and   c. decisions ex aequo et bono or in equity are not permissible.   11.7 Entire Agreement   This Agreement (including the Exhibits and Schedules attached hereto) constitutes the entire agreement between the Parties relating to its subject matter and supersedes all prior or contemporaneous agreements, understandings or representations, either written or oral, between XENCOR and BII with respect to such subject matter (including the Secrecy Agreement effective as of June 28, 2011).   11.8 Waiver; Amendment   No waiver of any term, provision or condition of this Agreement whether by conduct or otherwise in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition or of any other term, provision or   34

  condition of this Agreement. No amendment or modification of any provision of this Agreement shall be effective unless in writing signed by a duly authorized representative of each Party. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by a duly authorized representative of each Party.   11.9 Severability   If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction all other provisions shall continue in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.   11.10 Dispute Resolution   Any dispute relating to the Project shall first be submitted for resolution to the Steering Committee.   11.11 Assignment   This Agreement shall be binding upon the successors and assigns of the Parties and the name of a Party appearing herein shall be deemed to include, the names of its successors and assigns. This Agreement shall not be assignable by either Party, except with the written





consent of the other Party hereto; provided, however, that either Party may assign this Agreement without the other Party's consent to an acquiring party in connection with the transfer or sale of all or substantially all of the business of such Party to which this Agreement relates to such acquiring party, whether by merger, sale of stock, sale of assets or otherwise, provided that in the event of such a sale or transfer (whether this Agreement is actually assigned or is assumed by the acquiring party by operation of law (e.g,. in the context of a reverse triangular merger)).   11.12 Independent Contractors   Nothing in this Agreement is intended, or shall be deemed, to establish a joint venture or partnership (or any fiduciary duty) between XENCOR and BII. Neither Party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of, or in the name of, the other Party, or to bind the other Party to any contract, agreement or undertaking with any third party.   11.13 Counterparts   This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.   35





  IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the Effective Date.





  Monrovia, February 16 2012

  Biberach, February 13, 2012









  XENCOR, Inc.

  Boehringer Ingelheim International GmbH











 ppa.   ppa.







  /s/ Bassil Dahiyat





 /s/ Alois Konrad



 /s/ Dr. Andreas Felder   Bassil Dahiyat





 Alois Konrad



 Dr. Andreas Felder   President and CEO













  36





  List of Appendices:   Appendix 1: Material and Product   Appendix 2: Project Plan   Appendix 3: Members of the Project Team, Steering Committee and Chief Executive Officers   Appendix 4: MTA   Appendix 5: Quality Agreement   Appendix 6: Specifications, incl. shipping and packing instructions agreed by the Parties (to be attached upon agreement of the Parties)   Appendix 7: Summary Plan for Phase 1 Clinical Trials   Appendix 8: Press Release   37





  Appendix 1:   XmAb®6755 : Anti­TNF_Adalimumab_lgG1/2_M428L/N434S_Xtend Heavy Chain ORF (Protein) [...***...] [...***...]   [...***...]   [...***...] [...***...]   [...***...]

***Confidential Treatment Requested   38





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***Confidential Treatment Requested   39









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***Confidential Treatment Requested   40





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***Confidential Treatment Requested   41









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***Confidential Treatment Requested   42









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***Confidential Treatment Requested   43





  Appendix 2:   Appendix 2.1: Project Plan and Price Project Plan Xtend-TNF Process Development Manufacturing of Clinical Grade Material   44



  Appendix 2.1: Project Plan and Price Project Plan Xtend-TNF Process Development Manufacturing of Clinical Grade Material   Version of December 19, 2011   45





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***Confidential Treatment Requested   46





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***Confidential Treatment Requested   47





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***Confidential Treatment Requested   48





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***Confidential Treatment Requested   49







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***Confidential Treatment Requested   50





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***Confidential Treatment Requested   51





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***Confidential Treatment Requested   52







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***Confidential Treatment Requested   53





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***Confidential Treatment Requested   54

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***Confidential Treatment Requested   55









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***Confidential Treatment Requested   56





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***Confidential Treatment Requested   57







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***Confidential Treatment Requested   58





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***Confidential Treatment Requested   59





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***Confidential Treatment Requested   60





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***Confidential Treatment Requested   61







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***Confidential Treatment Requested   62





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***Confidential Treatment Requested   63





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***Confidential Treatment Requested   64

  Appendix 3:   Members of the Project Team and Steering Committee   […***…]   […***…]   […***…]   […***…]     […***…]   […***…]   […***…]   […***…]

***Confidential Treatment Requested   65





  Appendix 4:   MTA   […***…]     […***…]   […***…]   […***…]   […***…]   […***…]   […***…]   […***…]   […***…]   […***…]   […***…]   […***…]   […***…]

***Confidential Treatment Requested   66





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***Confidential Treatment Requested   67





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***Confidential Treatment Requested   68





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***Confidential Treatment Requested   69





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***Confidential Treatment Requested   70





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***Confidential Treatment Requested   71





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***Confidential Treatment Requested   72





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***Confidential Treatment Requested   73





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***Confidential Treatment Requested   74

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***Confidential Treatment Requested   75





  Appendix 5   Quality Agreement     […***…]   […***…]   […***…]     […***…]     […***…]   […***…]   […***…]   […***…]   […***…]     […***…]     […***…]     […***…]   […***…]   […***…]     […***…]

***Confidential Treatment Requested   76





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***Confidential Treatment Requested   77





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***Confidential Treatment Requested   78





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***Confidential Treatment Requested   79





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***Confidential Treatment Requested   80





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***Confidential Treatment Requested   81





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***Confidential Treatment Requested   82





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***Confidential Treatment Requested   83





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***Confidential Treatment Requested   85





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***Confidential Treatment Requested   86





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***Confidential Treatment Requested   87





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***Confidential Treatment Requested   88





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***Confidential Treatment Requested   89





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***Confidential Treatment Requested   90





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***Confidential Treatment Requested   91





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***Confidential Treatment Requested   92





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***Confidential Treatment Requested   93







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***Confidential Treatment Requested   94

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***Confidential Treatment Requested   95





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***Confidential Treatment Requested   96





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***Confidential Treatment Requested   97





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***Confidential Treatment Requested   98





  Appendix 6:   Specifications, incl. shipping and packing instructions agreed by the Parties (to be attached upon agreement of the Parties)   […***…]

***Confidential Treatment Requested   99





  Appendix 7:   Summary Plan for Phase I Clinical Trials   […***…]

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***Confidential Treatment Requested   100





  Appendix 8:   Press Release   February 8th, 2012   Boehringer Ingelheim GmbH Corporate Communications: Heidrun Thoma +49/6132 77 3966 Heidrun.Thoma@boehringer-ingelheim.com Twitter: www.twitter.com/boehringer   Xencor Media Contact Heidi Chokeir, Ph.D. Canale Communications Tel: 619-849-5377 heidi@canalecomm.com   Boehringer Ingelheim and Xencor Enter a Collaboration Agreement for the  Development, Manufacture, and Supply of Biosuperior Monoclonal Antibodies   Antibodies engineered with Xencor's proprietary Xtend™ technology for increasing antibody half­life   MONROVIA, Calif., USA and INGELHEIM, Germany — February 14 , 2012 — Xencor, Inc., a company using its proprietary Protein Design Automation® (PDA) platform technology to engineer next­generation antibodies, and Boehringer Ingelheim announced today a collaboration agreement for certain Xencor biosuperior monoclonal antibodies. Under the terms of the agreement, Boehringer Ingelheim will provide all manufacturing and product supply from preclinical through Phase I development. Xencor is responsible for preclinical and clinical studies and retains all development and commercial rights to products under the agreement. Upon successful advancement of clinical programs beyond Phase 1 development, Boehringer Ingelheim has certain manufacturing rights to supply clinical and commercial material to Xencor. Xencor has developed deep portfolio of biosuperior antibodies with the potential for superior clinical and commercial performance, and this collaboration agreement with Boehringer Ingelheim allows us to establish an important relationship with the leading global contract manufacturer of biologics, said Bassil Dahiyat, Ph.D., president and CEO of Xencor. Xencor and Boehringer Ingelheim will share the financial risk in early preclinical and clinical development with the incentive of sharing in future success of the programs.   We are delighted to start this collaboration with Xencor. It reflects one of our new business models in the contract manufacturing in which both parties are enabled to focus on their core competencies, stated Corporate Senior Vice President Simon Sturge at Boehringer Ingelheim Biopharmaceuticals. We are convinced that this creates a win­win situation for both parties. Xencor's lead biosuperior compound is an anti­TNF antibody engineered using the company's proprietary Xtend™ antibody engineering technology for increasing antibody half­life. Xencor expects to initiate a Phase 1 trial in 2013 potentially resulting in key human pharmacokinetic data validating Xtend technology.   101

th





  About Xencor, Inc.   Xencor, Inc. engineers superior biotherapeutics using its proprietary Protein Design Automation® technology platform, and is a leader in the field of antibody engineering to significantly improve antibody half-life, immune-regulatory function and potency. The company is advancing multiple XmAb® antibody drug candidates in the clinic, including XmAb®5871 targeting CD32b and CD19 for autoimmune diseases, and an anti­ CD30 candidate XmAb®2513 for the treatment of Hodgkin's lymphoma. Xencor is also advancing a portfolio of biosuperior versions of blockbuster antibody drugs engineered for superior half-life and dosing schedule. Xencor has entered into multiple partnerships with industry leaders such as Amgen, Pfizer, Centocor, MorphoSys, Boehringer Ingelheim, CSL Ltd. and Human Genome Sciences. In these partnerships Xencor is applying its suite of proprietary antibody Fc domains to improve antibody drug candidates for traits such as sustained half-life and/or potency. For more information, please visit www.xencor.com.   About Boehringer Ingelheim   The Boehringer Ingelheim group is one of the world's 20 leading pharmaceutical companies. Headquartered in Ingelheim, Germany, it operates globally with 145 affiliates in 50 countries and more than 42,000 employees. Since it was founded in 1885, the family-owned company has been committed for 125 years to researching, developing, manufacturing and marketing novel products of high therapeutic value for human and veterinary medicine.   Today, Boehringer Ingelheim is one of the world's leading companies for contract development and manufacture of biopharmaceuticals. All types of services from mammalian cell line or microbial strain development to final drug production can be delivered within a one-stop-shop concept. Boehringer Ingelheim delivers services for pre-clinical development up to global market supply with a strong commitment to its customers at its global manufacturing facilities for mammalian cell culture and microbial fermentation. Boehringer Ingelheim has brought 19 molecules to market and has many years of experience in multiple molecule classes such as monoclonal antibodies, recombinant proteins, interferons, enzymes, fusion molecules and plasmid DNA. Furthermore, high-titer platform technologies for new antibody mimetic formats such as scaffold proteins and antibody fragments are available for the manufacture of customer products. www.biopharma-cmo.com.   For more information, please contact:   Xencor Inc. Heidi Chokeir, Ph.D. Canale Communications for Xencor Tel: 619-849-5377 heidi@canalecomm.com   Boehringer Ingelheim GmbH Heidrun Thoma Corporate communications Boehringer Ingelheim GmbH 55216 Ingelheim/Germany Phone: +49/6132 77 3966   Twitter: www.twitter.com/boehringer More information: bio-cmo@boehringer-ingelheim.com   102

Output: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?


Input: Consider Input: Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

Exhibit 10.75

COLLABORATION & ENDORSEMENT AGREEMENT

THIS COLLABORATION & ENDORSEMENT AGREEMENT (the Agreement) is dated as of this 15th day of June, 2015 (Effective Date), between The Naked Brands Group, Inc., a Delaware corporation (Naked), and Wade Enterprises, LLC (Wade Enterprises), an Alaska limited liability company f/s/o Dwyane Wade (Athlete and together with Wade Enterprises, collectively Wade). Wade Enterprises, Athlete and together with Naked, are each referred to herein as a Party and collectively, the Parties.

AGREEMENT

1. Engagement. Naked hereby engages Wade for collaboration in business development for, and his endorsement as set forth herein of, the following items, which shall be known herein as Innerwear: Briefs, trunks, boxer briefs and boxers, non-athletic undershirts (i.e., t-shirts intended to be worn as innerwear and not intended specifically for athletic purposes), non-athletic lounge apparel (bottoms and tops), sleepwear (including pajama bottoms and tops), and robes (as may be expanded to include other mutually agreed upon innerwear and lounge apparel) which may now or hereafter during the Term be manufactured, distributed, marketed and/or sold by Naked (collectively, the Naked Products), and Wade hereby accepts such engagement. The Parties agree that the territory of such engagement shall be worldwide (the Territory).

2. Term of Agreement. The initial term of this Agreement shall be for a period of four (4) years, commencing on the Effective Date, which term may be extended for up to three (3) years by written agreement of both Parties prior to the expiration date of the initial term or any extension thereof (collectively, the Term). Each twelve-month period beginning on the Effective Date shall be known as a Contract Year. In the event that either Wade or Naked wishes to extend the Term of the Agreement as contemplated above, it shall provide the other Party with written notice at least ninety (90) days prior to the expiration of the Term. The other Party will then have a period of fourteen (14) days from the date of the notice to indicate whether it also desires to extend the Term, on the terms and conditions set forth herein and if no such indication is made, the other Party will be deemed to have declined the offer to extend. Notwithstanding the foregoing, Wade agrees that for a period of ninety (90) days prior to the expiration of the Term (unless the Agreement is terminated by Wade as permitted hereunder), Naked shall have the exclusive right to negotiate for continued endorsement by Athlete of the Naked Products. For a period of six (6) months at the end of the Term (the Sell-off Period); provided that the Agreement was not terminated by Wade as permitted herein, Naked will have the right to continue to sell the Wade Products (defined below) for which orders have already been placed at the end of the Term on the terms and conditions herein.

3. Use of Wade Image.

During the Term and subject to the limitations set forth in this Agreement, Naked shall have an exclusive right and license in the Territory to use Athlete's name, nickname, initials, autograph, image, likeness, photographs, biographical details, facsimile signature, voice, videos, electronic media depictions, any words, symbols or other depictions, as well as any other identifying attributes that would identify Athlete to the public, including any trade mark(s), copyrights which Wade has, as set forth on Schedule A attached hereto, and all multimedia assets that Wade owns or has right to use (collectively, the Wade Image) solely for the advertising, endorsement, promotion, or sale of the Naked Products (including the Wade Products) in the Territory as follows:

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

(1) On Naked's website(s) (Website);

(2) In social media channels, including, but not limited to Facebook, Instagram, Twitter, YouTube, Google+, Tumblr and other mutually agreeable channels, with reasonable frequency, to promote Naked Products and Wade Products;

(3) In marketing and media opportunities in connection with the Wade Services (as defined below); and

(4) For use on the packaging of the Naked Products and Wade Products and on Wade Products themselves.

All uses of Wade Image in connection with this Agreement shall be subject to the prior written approval of Wade, which Wade shall not unreasonably withhold. Naked agrees to submit to Wade or its authorized agent a copy of all new promotional and/or advertising material using Wade Image at least ten (10) days prior to the release to the general public. Wade and its authorized agent agree that they shall not unreasonably withhold such approval. In the absence of disapproval within three (3) business days of Wade's or  authorized agent's receipt of a request for approval, said advertising or promotional material shall be deemed approved. Any such usage featuring Athlete shall be and remain the property of Naked except as otherwise set forth herein; however, Naked shall have the right to such use only during the Term. Wade may use said materials in whole or in part for Wade's personal portfolio, website or otherwise. Such usage may not be sold or transferred. For the avoidance of doubt, that certain logo designed by Athlete prior to the date hereof (the Logo) shall remain the sole property of Wade and Naked shall have license during the Term to use the Logo for the advertising, endorsement, promotion, or sale of the Naked Products (including the Wade Products) in the Territory in accordance with the terms and conditions of the Agreement. During the Sell-off Period, Naked shall have the license to use the Logo solely on packaging and presentation of Wade Products already offered for sale at retail outlets or on-line in accordance with the terms and conditions of the Agreement.

Wade will allow Naked to use any quotes that are attributed to Wade to promote the Naked Products and Wade Products in any advertising campaign. Wade will allow Naked to use any such attributed quotes that Naked  requires to promote the Naked Products and Wade Products, subject to Wade's right to approve such quotes in writing, which approval shall not be unreasonably withheld.

The Parties acknowledge and agree that Athlete's  accomplishments and recognition as an outstanding basketball player, individual  and fashion icon, as well as his character, fame, likeness, image and reputation are the essence of this Agreement.

Wade hereby warrants that he is not a party to any agreement,  contract or understanding which would prevent, limit or hider his performance of any of the obligations under this Agreement, provided that Naked acknowledges that it is aware of Athlete's obligations under his existing endorsement agreement with Li Ning for athletic shoes and athletic apparel and nothing  herein shall obligate Athlete to endorse any athletic apparel other than Li Ning's.

2

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

4. Exclusivity. Wade agrees that during the Term of this Agreement, he will not represent or perform as a representative, spokesperson or provide Wade Services for, nor furnish services  or materials, or allow the use of the Wade Image to be used for the advertising,  endorsement, promotion, or sale of Innerwear in the Territory. Furthermore, Wade will not engage in any business or other transaction or have any financial or personal interest in any entity whose primary or core business is selling or  manufacturing Innerwear during the Term. Endorsement of any Innerwear other than the Naked Products or Wade Products without the express written consent of Naked will constitute a material breach of this Agreement.

5. Wade Services. During the  Term and subject to the limitations set forth in this Agreement, Wade agrees to  provide Naked with the following services (collectively, the Wade Services):

A. During the first Contract Year, Wade will be available for (i) one production day for the purpose of creating marketing assets for Naked Products for unlimited use in advertisements and the media and (ii) one production day for creating marketing assets for Wade Products and Naked Products for unlimited use in advertisements and the media, each as permitted herein. Wade shall be available to render services at such production day for a maximum of three (3) consecutive hours, not including scheduled breaks, during each such production day period; provided that, in the event an additional production day is reasonably required for the creation of marketing assets related to the Wade Product packaging, Athlete will be available to render services for up to an additional three (3) hours in either the first Contract Year or the second Contract Year but not both. The scheduling and content of said production days shall be mutually determined by Wade and Naked, subject to Wade's professional availability;

B. Beginning in the second Contract Year, Wade will be available for a maximum of one (1) production day for creating marketing assets for Wade Products and Naked Products for unlimited use in advertisements and the media, for a maximum of three (3) consecutive hours, not including scheduled breaks, during such production day period. The scheduling and content of said production days shall be mutually determined by Wade and Naked, subject to Wade's professional availability;

C. During each Contract Year, Wade will be available for two (2) personal appearances (each, a Personal Appearance) on behalf of Naked and the Naked Products and Wade Products in the media, including publicity shoots, interviews, print, television, radio and social media channels, each appearance for a maximum of sixty (60) consecutive minutes to be scheduled at a time mutually agreeable to Naked and Wade;

Wade has rights to websites or other social media channels promoting himself or any other promotional activity that is independent of this Agreement (Independent Promotions), including Wade's Facebook,  Instagram, Twitter and Google+ channels and Wade's YouTube channel. Wade agrees,  to generously and positively promote Naked Products and Wade Products in any  such Independent Promotions on a mutually agreed upon basis with reasonable frequency and in a manner consistent with drawing attention to the Wade/Naked relationship and promoting the Naked Products and Wade Products. Naked, in its sole and absolute discretion, may preview all references and other such materials referring to Naked in the Independent Promotions prior to the public dissemination of such Independent Promotions. Wade agrees to immediately remove all such materials in his Independent Promotions that Naked, in its sole and absolute discretion requests be removed. Naked has the right to request such removals at any time, even if Naked previously approved the Independent Promotions, and Naked agrees that all social media promotions it requests of Athlete shall comply with all applicable rules and regulations. Naked may also provide material regarding the Naked Products and Wade Products to Wade, and Wade agrees to include such materials in his Independent Promotions; and

3

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

E. Wade is currently engaged in  partnerships whereby its partners are selling and distributing other Athlete  endorsed products. Wade will use reasonable efforts to facilitate an introduction to Naked to existing sales and distributions channels and accounts.

F. Naked may reasonably request an additional production session(s), or a media tour or personal appearance(s), subject to mutual agreement by the Parties.

At all Personal Appearances, Wade will be available to sign a reasonable number of photographs, autographs, and any other items requested by and provided by Naked at its sole cost and expense, which Naked will have the right to distribute as giveaways but never for sale. If requested, Wade will pass out a reasonable number of samples of the Wade Product. Wade will also permit himself to be reasonably photographed at the Personal Appearances with customers and fans.

6. Commercial Materials. The results of the production days listed in subsections A and B in Section 5 may be used solely for the promotion of the Naked Products (including the Wade Products) and are hereinafter referred to individually and collectively as the Commercial Materials. Wade shall have the right of prior written approval with respect to his photographs, likeness and statements. During the Term, Naked shall have the right in the Territory to the unlimited broadcast use and re-use of the Commercial Materials in the Territory. During the Term, Naked shall have the right in the Territory to use the Wade Image in the Commercial Materials, for publication and display, as Naked shall in its sole discretion determine, in print magazines, including but not limited to, point-of-sale  material, product packaging, Naked's Annual Report, other shareholder communications, internal sales and marketing pieces, as well as the right to use  the same at meetings held or attended by Naked or for trade purposes. Naked shall have the right at any time during the term of this Agreement to make any  revision or versions of all or any part of the Commercial Materials to conform  to the requirements of individual markets as Naked may desire, subject to Wade's  reasonable approval as aforesaid. Naked may also propose to use the Commercial Materials as part of cooperative advertising and retail tie in promotions  subject to Wade's prior written approval which shall not be unreasonably withheld, provided that withholding approval because a potential tie in conflicts with one of Athlete's existing sponsors shall not be deemed  unreasonable. Notwithstanding the foregoing, in no case shall the Commercial Materials feature any commercial tie in or other use that could be perceived as an endorsement by Athlete of any products or services other than the Naked Products. Naked shall comply with all applicable rules and regulations  (including the NBA's) in its use of the Commercial Materials hereunder.

7. Design of Wade Products.

Naked and Wade (either Athlete or a team and/or agent and/or designer designated by Athlete, referred to as the Wade Team) agree to collaborate on the design and manufacture of a new line of Innerwear under the brand Wade By Naked or such other brand name as the Parties agree (collectively, the Wade Products). Athlete will have the title of Creative Director for the Wade Products, which title shall be featured on the Commercial Materials. During the Term and subject to the limitations set forth in this Agreement, the Wade Team and Naked agree that the process for approving designs for Wade Products will be as follows:

4

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

(1) Naked will develop detailed designs for each Wade Product, which shall include rough drawings, to be provided to Wade for review and comment;

(2) The Wade Team will provide Naked with comments on such designs within ten (10) days after they are provided to the Wade Team;

(3) Upon receipt of the Wade Team's comments, Naked will review such comments and work diligently to incorporate them into the design within commercial reason and thereafter, develop and create a prototype for such Wade Product for the Wade Team's approval;

(4) Within ten (10) days after the Wade Team's receipt of the prototype either in hand or via a photograph by email, the Wade Team shall review the prototype and provide any additional comments; and

(5) Upon the Wade Team's written approval of a prototype, such Wade Product will be considered approved for production (the Production Approval).

(6) In addition to the foregoing Wade Products, Naked shall have the right to produce and distribute, on a non-exclusive basis, printed or branded tee-shirts subject to Wade's existing endorsement agreements.

The Wade Team and Naked will collaborate to establish a mutually acceptable marketing campaign for Wade Products, and will schedule regular phone calls, video conferences, and/or other meetings to timely complete development of Wade Products.

8. Royalties. As consideration for Wade's services under this Agreement, Naked will pay Wade royalties as follows:

A. Royalties. Naked will report, and Wade will be paid, royalty payments at [***]

5

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

B. Payment Terms. Wade Product Royalties described above in Section 8A will be paid on a quarterly basis on the first day of each of the months of July, October, January, and April and shall be accompanied by backup documentation reasonably satisfactory to Wade.

C. [***]

D. Withholding Taxes. Wade will  be solely responsible for withholding and paying any and all federal, state and  local taxes, including but not limited to payroll, unemployment, social security and income taxes and any other payments which may be owed by Wade as a result of or in connection with payments made by Naked for Wade Services rendered under this Agreement. Wade acknowledges that he is not qualified for and will not receive any Naked employment benefits or other incidents of employment as a result of the Agreement.

E. Equity Ownership. Wade is hereby granted a warrant (the Grant Warrant) exercisable for a period of seven (7) years from the date of issuance for the number of shares of Common Stock equal to [***] shares of Common Stock (the Wade Grant), subject to the following terms:

(1) Exercise Price. The Grant Warrant will have an exercise price equal to the then-fair market value per  share of Common Stock as quoted on the OTCQB as of the Effective Date (the FMV Exercise Price). The form of the Grant Warrant shall be agreed to by the Parties.

(2) Vesting Schedule. The Grant Warrant will become exercisable for: (a) fifty percent (50%) of the Wade Grant on the one year anniversary of the Effective Date (the First Installment); (b) twenty-five percent (25%) of the Wade Grant on the second  anniversary of the Effective Date (the Second Installment); and (c) the remaining twenty-five percent (25%) of the Wade Grant will vest on the third anniversary of the Effective Date (the Third Installment and together with the First Installment and the Second Installment, the  Installments and each an Installment);  provided  however, that in the event of a change of control of Naked, the entire  unvested portion of the Grant Warrant will immediately vest. For purposes hereof, a change of control shall mean the sale of at least fifty percent (50%) of the assets of Naked, a merger or consolidation of Naked with, by or into another entity, or a change in the ownership of more than fifty percent (50%) of the voting capital stock of Naked in one or more related transactions.

6

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

(3) Exercise Upon Termination of the Agreement. In the event that the Agreement is terminated in accordance with Section 12A, than the [***] term of the Grant Warrant [***] shall expire ninety (90) days thereafter. [***]

(6) Designee of Wade Grant. Pursuant to the request of Wade, Naked shall issue [***] to Wade's exclusive representative, CAA Sports LLC. This grant shall be issued pursuant to the same terms and conditions as the Wade Grant, with the exception of the terms of [***].

(7) [***]

7

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

(8)  Grant Documents.  All  warrants referenced herein shall be issued pursuant to separate, mutually  negotiated grant documents, which shall contain all the terms referenced herein and shall be negotiated and executed promptly after the execution of the Agreement.

9. Board Membership.

A. Advisory Board. Upon entering into this Agreement, Athlete will join the Advisory Board of Naked (Advisory Board). As a member of the Advisory Board, Athlete agrees to the following:

(1) Athlete will participate in at least one (1) scheduled Advisory Board meeting by phone or in-person, provided that such meeting is held in Miami on a date acceptable to Wade.

(2) Athlete will provide Naked with access to Wade's contacts and Wade's expertise and breadth of experience as it pertains to the business of Naked;

(3) Wade will provide any reasonable additional assistance as may be mutually agreed upon by Naked and Wade from time to time; and

(4) Wade grants Naked the right to publicly identify Wade as a member of the Advisory Board, Creative Director, Stockholder, and Partner of Naked, and in the event that Wade joins the Board, as Director, and may include his name and biography in materials published by Naked, including any prospectus or offering materials or to publish any other information regarding Wade in any documents required to be filed pursuant to applicable laws and regulations.

B. Board of Directors. Further, Athlete will have the option in his sole discretion of becoming a member of the Board of Directors of Naked (the Board) (for a period of eighteen (18) months commencing on the Effective Date and provided that the Agreement has not  been terminated). If Athlete elects to become a member of the Board, he must satisfy the following requirements on an annual basis:

(1) Wade will participate in at least  four (4) scheduled board meetings, two (2) of which Wade must attend in-person, provided that at least one meeting is held in Miami, FL or, if no such meeting is held in Miami, FL then one (1) meeting if all meetings are held in New York, NY or another location. Subject to legal compliance requirements, Wade may  designate an individual acceptable to Naked serve as his representative to the meetings of the Board;

(2)  Wade will attend, subject to his  availability in his sole discretion, fundraising events and meetings with  potential investors, placement agents and representatives of the same at the request of Naked to be scheduled at the convenience of each of Naked and Wade;

If, while serving on the Board Wade does not satisfy any of the  above-listed requirements on more than one (1) occasion, the other members of the Board may remove Wade from the Board upon written notice to Wade.

8

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

10. Wade Obligations. During the Term of this Agreement, Athlete agrees to comply with the following obligations:

A. Comply with all rules and regulations of the National Basketball Association and its governing bodies rules and regulations;

B. Not do anything which damages Wade's name, reputation, or image in the eyes of a reasonable observer;

C.  Exercise reasonable constraints to  avoid taking any actions which damages Naked, its name, reputation, image, the  Naked Products and Wade Products;

D. When promoting the Naked Products or  Wade Products, mention when appropriate the name of Naked and/or the Naked Products and Wade Products in interviews with the press, social media channels and broadcast media;

E. Wear the Naked Products and/or Wade Products when appropriate and refrain from wearing any other Innerwear products that would be visible to the public.

11. Non-compete; Confidentiality. Wade represents and warrants that during the Term and in  the Territory, neither Wade nor any of his agents, representatives or employees will solicit, initiate, or encourage any proposal for an endorsement by Wade of any Innerwear to commence during the Term, or participate in any discussions or negotiations for the same. Wade will execute a non-disclosure and confidentiality agreement in a form mutually acceptable to each of Wade and Naked.

12. Termination.

A. Naked shall have the right to terminate this Agreement upon ten (10) days prior written notice to Wade in the event Wade fails to perform the Wade Services or breaches any other covenant or agreement set forth herein (including the essence of this Agreement), and fails to cure same (if curable) within seven (7) days of receipt of written notice. Such termination shall relieve Naked of its obligation to provide any further consideration pursuant to this Agreement provided that Wade shall retain all warrants he has received hereunder that have vested as of the date of such termination. In the event of such termination as a result of a material breach of this Agreement by Wade (i) Wade's contractual liabilities and obligations until the date of termination still exist notwithstanding such termination, (ii)  Naked shall be under no obligation to sell any Wade Products but shall nevertheless owe the Royalty on any Wade Products sold; and (iii) notwithstanding anything to the contrary herein, Wade shall forfeit all warrants he has received hereunder. Naked shall not have waived any of its rights at law or in equity by exercising any provision of this section.

B. Wade shall have the right to  terminate this Agreement upon ten (10) days prior written notice to Naked in the  event of the occurrence of any of the following: (i) Naked is adjudicated as insolvent or declares bankruptcy; or (ii) Naked fails to provide consideration due pursuant to this Agreement, within ten (10) days following the date such consideration is due hereunder (or, if Wade elects to receive stock in lieu of the cash consideration, if Naked fails to instruct its transfer agent to issue the appropriate amount of Common Stock to Wade within ten (10) days following the date such consideration is due in the event such consideration is payable in Common Stock); provided that Naked is notified in writing of such non-payment by Wade and such payment by Naked is not made within three (3) days following such notification; or (iii) Naked breaches any  covenant or agreement set forth herein and fails to cure same (if curable)  within seven (7) days of receipt of written notice. Furthermore, Naked agrees that such termination shall not relieve it of its obligation to provide consideration as contemplated hereunder. Wade shall not have waived any of his rights at law or in equity by exercising any provision of this section.

9

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

C. The Agreement shall be deemed terminated if neither Naked nor Wade elect to extend the Agreement as set forth in Section 2 hereof.

D. Naked's rights to the use of Wade Image shall end immediately should this Agreement be terminated pursuant to Section 12(A) or Section 12(B) above.

13. Notices. All notices provided for herein shall be given in writing by hand delivery, courier service,  or by certified mail return receipt requested to the addresses of the Parties set forth as follows (unless change of address by notice to the other Party is given as provided in this Section 13):

  If to Wade: If to Naked:         CAA Sports LLC Naked Brand Group, Inc.   405 Lexington Avenue, 19th Floor 10th Floor - 95 Madison Avenue   New York, NY 10174 New York, NY 10016   Attn: Lloyd Frischer Attn: Joel Primus         With a copy to: With a copy to:         Andrew B. Latack, Esq. Duane Morris LLP   at the same address 1540 Broadway, 14th Floor     New York, NY 10036     Attn: Nanette C. Heide, Esq.

14. Intellectual Property.

All rights to the use of the names, trademarks, service marks, symbols, logos, domain names, trade secrets, confidential know-how, patents, copyrights, any pending applications with respect to any of the foregoing, and  any other intellectual property and related proprietary rights, interests and protections (Intellectual Property Rights) in connection with Wade Products will be jointly owned by Wade and Naked. Wade will retain all ownership of the Intellectual Property Rights in connection with Wade Image including, for the avoidance of doubt, the Logo. For the avoidance of doubt, no rights are being granted hereunder to any intellectual property belonging to the NBA or its member clubs (including but not limited to the Miami Heat).

Subject to Section 14A, Naked will retain all ownership of the Intellectual Property Rights in connection with the Naked Products, the Naked brand and any and all related brands. All advertising material produced  hereunder will be and remain the absolute property of Naked. Wade acknowledges that he does not now have and in the future will assert no right, title or interest of any kind or nature whatsoever therein, or in or to any component part or tape, dub or copy or element or character or characterization thereof.

10

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

15. Representations and Warranties of Naked and Wade.

A. Wade relies upon Naked's skill  and judgment and also upon the following  representations of Naked which  shall be in effect throughout the term of this Agreement:

(1) Naked's products will be merchantable and fit for the purpose for which they are intended, and

(2) Naked's products will conform at all times to all applicable federal, state and local laws, rules, regulations, ordinances, and other enactments and industry standards, including, but not limited to, those relating to product safety.

B. Wade Enterprises and Athlete hereby jointly and severally represent to Naked the following:

(1) Authorization. Wade Enterprises is an entity duly organized and validly existing in good standing under the laws of its jurisdiction of organization. Wade Enterprises and Athlete  each have the requisite power and authority to enter into, execute and deliver  the Agreement to which it is a party and to perform all of the obligations to be  performed by each of them hereunder. The Agreement and the obligations and  transactions contemplated hereby have been, duly authorized, executed and  delivered by each of them, and the Agreement constitutes each of their valid and binding obligation, enforceable against such Party in accordance with its terms.

(2)  No Conflicts. Neither the  execution and delivery of this Agreement nor the performance or consummation of  the transactions contemplated hereby or thereby by either Wade Enterprises or Athlete will conflict with, result in the breach of, constitute a default under or accelerate the performance required by the terms of: (i) any law, rule or  regulation of any government or governmental or regulatory agency; (ii) any judgment, order, writ, decree, permit or license of any court or governmental or regulatory agency to which such Party may be subject; (iii) any contract,  agreement, commitment or instrument to which Wade Enterprises or Athlete is a  party; or (iv) Wade Enterprises' constituent documents or other governing instruments (or constitute an event which, with the passage of time or action by a third party, would result in any of the foregoing). The execution and delivery  of this Agreement by Wade Enterprises and Athlete and the performance and consummation of the transactions contemplated hereby do not require any registration, filing, qualification, consent or approval under any material law, rule, regulation, judgment, order, writ, decree, permit or license to which such Party is subject.

16. Indemnity.

Naked shall be solely responsible for all liability arising out  of production, distribution and sale of its product. Naked hereby agrees to indemnify, defend and hold harmless Wade Enterprises, Athlete, his agents,  representatives and employees (referred to collectively as Wade Indemnities) from and against any and all claims, actions, causes or action, damages, injuries, expenses, liabilities (joint and several), penalties fines, attorneys' fees, court costs, and any other expenses incurred by Wade Indemnities arising out of (1) breach by Naked of any of the terms, representations or warranties made by Naked in  this Agreement; or (2) Naked product liability or trademark patent or other  proprietary right infringement; or (3) errors, omissions, fraudulent or negligent acts by Naked, its employees, agents or subcontractors in connection with (i) any advertising featuring Athlete; (ii) the performance of Naked's  duties and obligations under this Agreement; (iii) the production, distribution, promotion, marketing and sales of products including related product packaging; and/or (iv) the operation and management of its production and distribution facilities, however caused. Naked shall not be obligated to indemnify Wade with respect to damages which are the result of the gross negligence or willful misconduct of Wade.

11

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

Athlete and Wade Enterprises, jointly and severally, hereby agree to indemnify, defend and hold harmless Naked, its shareholders, directors, officers, employees, agents, and affiliates (referred to collectively as Naked Indemnities) from and against any and all claims, actions, causes or action, damages, injuries, expenses, liabilities (joint and several), penalties fines, attorneys' fees, court costs, and any other expenses incurred by Naked Indemnities arising out of or are in any way connected directly or indirectly with any and all claims, suits, actions, costs, and other expenses, fines, judgments, investigations, proceedings, demands, liabilities, and obligations of any nature whatsoever, with respect to Wade Enterprises' or Athlete's breach of its respective representations and warranties, uncured  breach of this Agreement or Athlete's gross negligence or willful misconduct.

17. Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed to place the Parties in the relationship of partners, joint venturers, principal-agents, or employer-employee, it being understood that the Parties are and will remain independent contractors in all respects and neither Party shall have any right to obligate or bind the other in any manner whatsoever.

18. Assignment. Neither this Agreement nor any of the rights or obligations contained herein may be assigned or transferred by either Party without the prior written consent of the other Party.

19. Expenses. Each Party will bear its own expenses with respect to the execution of this Agreement and the  transactions contemplated thereunder, including but not limited to legal fees.

20. Authority to Contract. Each of the Parties represents and warrants that it has full right and power to enter  into this Agreement, to perform all obligations to be performed by it hereunder, and to grant all rights hereunder granted without violating the legal or equitable rights of any other person or entity, and that the execution and performance of this Agreement will not conflict with or result in a breach of or default under any of the terms or conditions of any agreement to which either Party has agreed, or is a Party, or may be bound.

21. Construction of Agreement. Each Party acknowledges that it has participated in the negotiation of this Agreement and that no provision of this Agreement shall be construed against or be interpreted to the disadvantage of any Party by any court or other governmental or judicial authority by reason of such Party having or deemed to have structured, dictated or drafted such provision.

12

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

22.  Merger; Modification. This  Agreement constitutes the entire agreement with respect to the subject matter  contained herein and supersedes all previous communications and agreements between the Parties pertaining to the subject matter hereof, whether written or oral. The terms of this Agreement may not be modified, waived, amended,  discharged, terminated, or supplemented, or otherwise changed, except by a written document executed by each Party.

23.  No Waiver. A waiver by  either Party of any of the terms or conditions of this Agreement in any instance  shall not be deemed or construed to be a waiver of such term or condition for  the future, or of any subsequent breach thereof, or any other term or condition  of this Agreement. All remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party.

24. Severability. If any  provision of this Agreement, as applied to either Party or to any circumstance,  shall be adjudged by a court of competent jurisdiction to be void or unenforceable, whether at law or in equity, then such determination shall in no way affect any other provision of this Agreement, or the validity or enforceability of this Agreement.

25. Choice of Law. This Agreement, all amendments hereto, and any and all issues or controversies arising here from or related hereto, shall be governed by and construed exclusively in accordance with the laws of the State of New York.

26. Arbitration of Disputes. The parties agree to use commercially reasonable efforts to settle amicably any controversy, or claim arising out of the Agreement or any breach thereof through a dispute resolution process involving Wade and members from the senior management of Naked. If the parties do not otherwise agree, either party may present any unresolved dispute for arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the Rules) then in effect. Such arbitration will be held in New York, NY. The arbitration will be by a single arbitrator chosen by the parties, provided that if the parties fail to agree and to appoint a single arbitrator within twenty (20) business days from the date that one of the parties has made a demand for  arbitration, then the arbitrator will be chosen in accordance with the Rules.  The decision of the arbitrator will be final and binding on the parties and any  award of the arbitrator may be entered in any court of competent jurisdiction.

27. Attorneys' Fees. If any action is necessary to enforce the provisions of this Agreement, including any claims or demands, or to interpret this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which it may otherwise be entitled.

28. Captions; Structure. Section headings used in this Agreement are for convenience of reference only and shall not in any way affect the interpretation of any section of this Agreement or of the Agreement itself.

29. Time is of the Essence. Time is of the essence with respect to the performance of the duties and obligations hereunder.

30. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which when taken together shall be construed as a single instrument. This Agreement may be executed by facsimile or other electronic transmissions, and signatures on any facsimile or electronic transmission copy hereof shall be deemed authorized original signatures.

13

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

31. No Third Party  Beneficiaries. This Agreement is not for the benefit of any third party and  shall be deemed not to give any right or remedy to such third party, whether referred to herein or not.

32. Recitals. The recitals contained in this Agreement are true and correct and are incorporated herein by reference.

[SIGNATURE PAGE TO FOLLOW]

14

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and date first above written.

WITNESS:   Naked Brand Group, Inc. (Naked)       By:     By: /s/ Carole Hochman       Date:   Title:       WITNESS:   Wade Enterprises, LLC (Wade)       By:     By: /s/ Dwyane Wade       Date:

15

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

Inducement Letter and Guarantee

In order to induce Naked to enter into this Agreement with Wade Enterprises, LLC, I agree to the execution and delivery of this Agreement by Wade Enterprises, LLC, and agree to render all the services herein provided to be rendered by me, to grant all the rights granted herein, and to be bound by and duly perform and observe each and all of the terms and conditions of this Agreement regarding performance or compliance on my part, and I hereby join in all warranties, representations, agreements and indemnities made by Wade Enterprises, LLC, and further confirm the rights granted to Naked under the Agreement. All notices to Wade Enterprises, LLC shall be deemed notices to me with the same effect as if given to me. I certify that my services are rendered as an employee of Wade Enterprises, LLC, and, unless substituted for Wade Enterprises, LLC by law, I agree to look solely to Wade Enterprises, LLC for payment of compensation for my services and the discharge all other obligations of an employer, subject to the terms of the Agreement.

By: /s/ Dwyane Wade     Name: Dwyane Wade     Date:     NAKED BRAND GROUP, INC.   By: /s/ Carole Hochman     Name:       Date:

16

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

SCHEDULE A

WADE TRADEMARKS AND COPYRIGHTS

Wade's Asterisk Logo



17

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

18

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015





Confidential Information has been omitted in places marked [***] and has been filed separately with the Securities and Exchange Commission.  Confidential Treatment has been requested with respect to this omitted information pursuant to an application for confidential treatment filed with  the Commission under Rule 406 under the Securities Act of 1934, as amended.

SCHEDULE B

[***]

19

Source: NAKED BRAND GROUP INC., POS AM (on S-1), 7/31/2015


Output: Highlight the parts (if any) of this contract related to Post-Termination Services that should be reviewed by a lawyer. Details: Is a party subject to obligations after the termination or expiration of a contract, including any post-termination transition, payment, transfer of IP, wind-down, last-buy, or similar commitments?