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SUBLICENSE AGREEMENT
THIS SUBLICENSE AGREEMENT (the "Agreement") is made as of the 30th
day of June, 1995, by and between Transmedia Europe, Inc., a Delaware
corporation ("Europe") and International Advance Inc., a Delaware corporation
("Advance").
W I T N E S S E T H:
WHEREAS, TMNI owns the Marks in the business developed and operated
in the United States by Transmedia Network, Inc. ("Network"). Except as
otherwise provided the term Network shall include both Network and TMNI;
WHEREAS, pursuant to a license agreement made December 14, 1992, as
amended on April 12, 1993 and May 11, 1993 TMNI International, Inc., a Delaware
corporation ("TMNI") licensed to Europe, among other things certain exclusive
rights to use trademarks owned by TMNI;
WHEREAS, it is the intention of Advance to transfer the rights and
obligations under this Agreement to an entity formed in France to be known as
Transmedia La Carte Restaurant, S.A. ("La Carte"); and
WHEREAS, Advance desires to obtain from Europe, and Europe wishes to
grant to Advance, a sublicense to use the Marks under the terms and conditions
hereinafter specified.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings as hereinafter set forth.
1.1 "Business" shall mean the business which (a) acquires from
Member Restaurants "rights-to-receive" meal credits which are held as inventory
for use by consumers who have been issued a TRANSMEDIA Card; and (b) provides
such other services to TRANSMEDIA Cardholders or Member Restaurants as may be
authorized by Europe under the terms of this Agreement.
1.2 The "European Software" shall mean the proprietary computer
software programs developed and owned by Europe which will be used by Advance in
the operation of the Business. These shall also be included any and all
modifications, improvements, corrections, updates and enhancements, whether
furnished by Europe or developed by Advance.
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1.3 "Indicia" shall mean all specialized procedures and techniques
developed by Europe directly or through the assistance of Network contained in
the Operations Manual or otherwise disclosed to Advance with respect to:
soliciting, marketing and acquiring Member Restaurants and TRANSMEDIA
Cardholders; processing, monitoring and tracking all Member Restaurant accounts
and credit transactions; providing support services for TRANSMEDIA Cardholders;
and handling record keeping, reporting, personnel management, sales promotion,
marketing and advertising.
1.4 "Marks" shall mean the name and style "TRANSMEDIA" as well as
any other trademarks or tradenames whose use may be granted by Europe to Advance
in the future in connection with the Business.
1.5 "Master License" shall mean the license granted by TMNI to
Europe pursuant to an agreement dated December 14, 1992 as thereafter amended.
1.6 "Member Restaurants" shall mean restaurants which from which
Advance acquires rights-to-receive meal credits.
1.7 "Operations Manual" shall mean the confidential operations
manual used by Europe, in the operation of its Business.
1.8 "Sublicense" shall mean the rights granted under Section 2.1 and
2.2 of this Agreement.
1.9 "Term" shall mean the period from the date of this Agreement
through any termination date set forth this Agreement.
1.10 "Territory" shall mean the Republic of France and
Monaco.
1.11 "TRANSMEDIA Card" shall mean the card provided to cardholders
by any entity authorized to issue TRANSMEDIA Cards. Such entities to be
collectively referred to as "TRANSMEDIA Card Issuers."
2. GRANT
2.1 All rights granted hereunder by Europe to Advance, are strictly
subject to the limitations on the rights and obligations of Europe set forth in
the Master License. To the extent that the grant made hereunder is at any time
in conflict with the Master License, the terms of the Master License shall
govern, and the grant hereunder shall be deemed to be amended, ab initio, to be
consistent therewith, except as may otherwise be specifically provided in this
Agreement. No changes in the consideration payable under this Agreement shall
result from any
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deemed amendment nor shall Advance be able to bring any action for damages or
specific performance against Europe based upon such deemed amendment.
2.2 Europe hereby grants to Advance, subject to the terms,
conditions and limitations hereof, an exclusive Sublicense to use the Marks and
the Europe Software in connection with the operation of the Business in the
Territory. It is understood and agreed that Advance may transfer the Sublicense
to La Carte or an other entity in which Advance wishes to operate the Business,
prior to the commencement of the Business provided that such entity has
sufficient capital to commence the Business including the payment of the initial
Sublicense fee of $US1,000,000 (one million U.S. Dollars) provided for in
Section 2.13 of this Agreement.
2.3 Advance acknowledges that it has no ownership interest in the
Europe Software or the Marks, and accepts the rights granted to it under the
Sublicense as specifically described and limited by the terms of this Agreement.
2.4 Advance represents, warrants and agrees that neither during the
Term of this Agreement nor thereafter, will Advance take any action whatsoever
in derogation of the rights of Europe or Network as set forth in this Agreement
and the Master License.
2.5 Advance agrees that any and all goodwill associated with or
identified by the Marks shall inure directly and exclusively to the benefit of
Europe and Network. Advance agrees that any future trademarks, service marks,
trade names, trade secrets or copyrighted materials which may be developed shall
inure and accrue to the sole benefit of Europe and Network.
2.6 No advertising by Advance or other use of the Marks by Advance
shall contain any statement or material which may, in the judgment of Europe, be
in bad taste or inconsistent with Europe's public image, or tend to bring
disparagement, ridicule or scorn upon Europe, the Marks or the goodwill
associated therewith. Advance shall advertise and promote the Business only
under the Marks, without any accompanying words or symbols except as otherwise
required by law and approved in writing by Europe.
2.7 Advance shall use the Marks only in the manner expressly
specified and approved in writing by the Europe.
2.8 In order to ensure the quality of the Business being conducted
in connection with which the Marks Europe shall have the right of entry and
inspection of Advance's principal place of business at all reasonable times and
the right to observe the manner in which Advance is conducting its operations.
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Such right shall include the ability to confer with Advance's employees and
customers, and to inspect, without limitation, forms, agreements, applications
and relating items and activities utilized for soliciting accounts for Member
Restaurants and TRANSMEDIA Cardholders to ensure that the sales, promotion and
enlisting activities are satisfactory and meet the quality control provisions
and performance standards established by Europe.
2.9 On the request of Europe, Advance shall assist Network, at
Network's cost, in the procurement and maintenance of Network's rights in the
Marks. Advance agrees to execute and deliver to Network, in such form as Network
may reasonably request, all instruments necessary to effectuate protection of
the Marks or to record Advance as a registered user of the Marks or to file or
record this Agreement. If Advance fails to execute such instruments, Advance
hereby appoints Network its attorney-in-fact to do so on its behalf. The power
granted to Network in the preceding sentence is acknowledged by Advance to be
coupled with an interest and shall be irrevocable. Advance understands and
agrees that Network makes no warranty or representation that protection shall be
secured in the Marks.
2.10 Advance shall at all times use its best efforts, consistent
with reasonable commercial practice, to promote the use of the Marks and the
Business in the Territory, including, but not limited to, effecting the widest
and best possible distribution of the TRANSMEDIA Card in the Territory;
procuring Membership Restaurants and providing related services and activities
throughout the Territory. Upon the failure of Advance to use its best efforts,
consistent with reasonable commercial practice, to promote the use of the Marks
and the Business in the Territory, Europe shall have the right to terminate this
Agreement.
2.11 Advance acknowledges that it is a sophisticated entity
represented by counsel, and that it is entering into this Agreement with ample
knowledge of the legal and business risks relating to the Agreement. Advance
further acknowledges that it believes that this Agreement is not a franchise
agreement and that no official registration or approval of this Agreement or any
offer to enter into this Agreement is required. To the extent that this
Agreement can be interpreted as a franchise agreement Advance waives all rights,
including, without limitation, rights of rescission of the Agreement or rights
to recover civil penalties or damages from Europe.
2.12 (a) Holders of a TRANSMEDIA Card issued by TRANSMEDIA Card
Issuers shall have the ability to use the TRANSMEDIA Card in Member Restaurants
wherever located. TRANSMEDIA Card Issuers shall each be responsible for
TRANSMEDIA Cards which are issued by them.
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(b) Operating procedures with respect to the processing,
billing and collection of charges by TRANSMEDIA Issuers shall be included in the
Operations Manual and shall be updated periodically to reflect then current
procedures. Procedures shall be designed to maximize the prompt crediting of
Member Restaurant Credits used to the operating entity in which the Member
Restaurant is located, such credit to be in the currency of such region.
Similarly, charge backs shall be promptly recorded for charges that are rejected
for whatever reason. Advance shall provide periodically to Europe a listing of
its TRANSMEDIA Cardholders in a format and at a frequency to be determined by
Europe.
2.13 Upon the execution of this Agreement and as consideration for
the rights granted by Europe to Advance hereunder, Advance will pay to Europe by
bank wire transfer, the sum of One Million ($1,000,000) U.S. Dollars of which
Two Hundred Fifty Thousand U.S. Dollars shall be promptly remitted to Network.
Such payment shall be in immediately available funds.
3. DEVELOPMENT OBLIGATIONS
Advance shall commence operating in the Territory as promptly as
possible following the execution of this Agreement. If after six months Advance
has not commenced operations, Europe may, in its sole and absolute discretion,
terminate this Agreement.
4. TERM
The Term of this Agreement shall commence on the date first above
written and shall continue on a perpetual basis unless otherwise terminated
pursuant to this Agreement or by mutual agreement of Europe and Advance.
5. TRAINING AND MAINTENANCE
5.1 Advance will purchase, at its own expense, adequate computer
hardware to be used by Advance for the operation of the Business.
5.2 Europe will deliver to Advance one copy of the Europe Software
along with all associated user guides and reference documentation for the Europe
Software then in the possession or under the control of Europe.
5.3 Europe shall make available, at Advance's expense, training
which Europe deems reasonably sufficient with respect to all facets of the
Business including, but not limited to, sales, administration and operations.
Such training shall be scheduled consistent with the reasonable requirements of
Advance and the availability of Europe's personnel.
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6. OWNERSHIP, TITLE AND PROPRIETARY RIGHTS
Advance acknowledges that Europe is the sole owner of the Europe
Software. This sole right of ownership includes any and all modifications,
corrections, updates, changes, improvements and enhancements to the Europe
Software.
7. CONFIDENTIAL INFORMATION
7.1 Neither Advance nor any of its principals shall at any time,
either during or after the Term of this Agreement, reveal any trade secrets of
Network and/or Europe including without limitation TRANSMEDIA Cardholder base,
technical information, drawings, materials equipment, computer systems,
agreement forms, design, advertising format, support and service techniques and
other techniques and data except as required for the operation of the Business
in the Territory in compliance with this Agreement.
7.2 Due to the special and unique nature of the confidential
information, Advance hereby agrees and acknowledges that Europe and Network
shall be entitled to immediate equitable remedies, including, but not limited
to, restraining orders and injunctive relief in order to safeguard such
proprietary, confidential, unique, and special information of Network or Europe
and that money damages alone would be an insufficient remedy with which to
compensate Network or Europe for any breach of the terms of Article 7 of this
Agreement. Furthermore, Advance agrees that all employees and independent
contractors of Advance having access to confidential information shall be
required to execute non-disclosure agreements in a form acceptable to Europe.
Advance shall take all necessary action to ensure that its employees and
independent contractors comply with the terms and conditions of Article 7.
8. ADVERTISING
8.1 Advance shall pay for its own advertising, including, without
limitation, the cost of preparing and conducting direct mail, television, radio,
magazine and newspaper advertising campaigns and other public relations
activities; employing advertising agencies to assist therein; and providing
promotional brochures and other marketing and public relations materials.
8.2 Advance shall not advertise or use in advertising or any other
form of promotion, the trademarks, service marks or commercial symbols of
Network or Europe without appropriate trademark or copyright marks and
registration marks or the designations TM or SM where applicable. Advance shall
not in any manner whatsoever, including, but not limited to, advertising or any
form of promotion or public relations, make any reference to
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the Marks or any other forms of trademarks, service marks, or commercial symbols
of Network or Europe without appropriate designation protective of the rights of
copyright, trademark, trade name and service mark.
9. ROYALTIES AND OTHER FEES
9.1 For the Sublicense, in addition to the fee payable to Europe set
forth in Section 2.13, Advance shall pay to Europe, in U.S. dollars, a royalty
equal to five (5%) per cent of Advance's gross sales. For the purposes of this
Agreement, gross sales means all membership fees and the gross reduction in
rights-to-receive less any amounts for service charges or VAT.
9.2 Advance shall be solely responsible for the collection of all
monies due or rights-to-receive within the Territory from Member Restaurants and
shall be solely responsible for the payment to Member Restaurants located in the
Territory of monies due for the purchase of such rights-to-receive meal credits
from such Member Restaurants.
9.3 Europe will charge a fee of up to $50,000 per annum, against
documented upgrade or maintenance charges. Any upgrades performed directly by
Advance shall be provided without charge to Europe. No outside party may be
retained by Advance to perform upgrades or maintenance without Europe's prior
written approval.
9.4 In the event that Advance is authorized by Europe to engage in
other business activities, whether such activities are a derivative of the
restaurant discount charge business (e.g. an independent entity selling the
theater tickets at a discount to TRANSMEDIA Cardholders) or involve other
services offered directly or indirectly to TRANSMEDIA Cardholders or Member
Restaurants such as a program enabling Member Restaurants to buy equipment and
services at a discount, Europe shall be entitled to a royalty on all such
activities. The parties shall agree upon the royalties payable and the basis for
the computation of royalties payable as a condition to approval by Europe. The
terms by which such activities are authorized shall be deemed to be part of this
Agreement, as if initially included, and general terms such as those covering
payments, defaults and periodic reports shall be deemed to apply.
10. ACCOUNTING, RECORDS AND PAYMENTS
10.1 Within thirty (30) days after the end of each fiscal quarter
beginning with the fiscal quarter in which sales revenues commence, Advance
shall furnish to Europe full and accurate and complete financial statements,
including a balance sheet and profit and loss statements, showing gross sales
for such fiscal quarter, a computation of the royalty due on those
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gross sales, and full payment in U.S. dollars to Europe of such royalties due.
Within sixty (60) days after the end of each fiscal year, Advance shall furnish
to Europe full and accurate and complete certified financial statements,
including a balance sheet and profit and loss statements, showing gross sales
for such fiscal year, a computation of the royalty due on those gross sales, and
full payment in U.S. dollars to Europe of such royalties due. Receipt or
acceptance by Europe of any of the statements furnished or any sums paid
pursuant to this Agreement will not preclude Europe from questioning their
correctness at any time. Royalties on sales in a currency other than U.S.
dollars shall be computed and converted on the basis of the conversion rate for
purchase of U.S. dollars for such currency appearing in The New York Times on
the last day of the fiscal quarter or year being reported.
10.2 If all or part of any payment from Advance to Europe is not
made when due, Advance will pay interest on such unpaid amount at the rate of
15% per annum.
10.3 Advance will maintain appropriate and accurate books of account
reasonably required for the computation of the gross sales of all transactions
within the scope of this Agreement. Europe will have the right, through any
authorized representative of its choice, on reasonable advance notice to
Advance, to examine and photocopy all or part of the books of account and all
other records, documents and material in the possession or under the control of
Advance with respect to the subject matter of this Agreement. If following any
such examination, it is determined that additional royalty payments are due to
Europe, Advance will promptly pay such additional amount as well as interest
accrued thereon at a rate of fifteen (15%) per annum from the date when such
payment was originally due to the date when payment is made. If the additional
royalty payment due to Europe is equal to two (2%) per cent or more of the total
royalties paid in respect of the period concerned, Advance will also promptly
pay to Europe the costs incurred in connection with the examination. All books
of account and records will be kept available by Advance for at least two (2)
years after the calendar year to which they relate.
10.4 Advance covenants that it shall file and pay when due all taxes
applicable to the Business, and Advance hereby indemnifies Europe against any
and all claims, actions, costs, expenses, damages and liabilities which may
result from the failure by Advance to fulfill such covenant.
11. ADVANCE'S STANDARDS OF PERFORMANCE
11.1 Except as otherwise authorized in writing by Europe, Advance
shall not (i) enlist or attempt to enlist any entity other than a restaurant as
a provider of rights-to-receive
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credits; (ii) enlist or attempt to enlist any TRANSMEDIA Cardholder to use the
TRANSMEDIA Card other than as a discount food and beverage card; (iii) take any
direct or indirect action which would result in use of the TRANSMEDIA Card for
any purpose other than the receipt by the holder thereof of discounted food and
beverages; or (iv) take any direct or indirect action to redeem or attempt to
use or redeem rights-to-receive credits other than through use of the TRANSMEDIA
Card.
11.2 Advance shall secure and maintain in force all required
governmental licenses, permits and certificates relating to the operation of the
Business and shall operate the Business in full compliance with all applicable
laws, ordinances and regulations.
11.3 Advance shall notify Europe in writing within five (5) days of
the commencement of any action, suit, or proceeding, and of the issuance of any
order, writ, injunction, award or decree of any court, agency, or other
governmental instrumentality, which may affect the operation or financial
condition of Advance.
12. COVENANTS
12.1 Advance covenants that during the Term, except as otherwise
approved in writing by Europe, Advance shall not, either directly or indirectly,
for itself, or through, on behalf of, or in conjunction with any person,
persons, partnership, or corporation:
(a) divert or attempt to divert any business or customer of
the Business to any competitor, by direct or indirect inducement or otherwise,
or do or perform, directly or indirectly, any other act injurious or prejudicial
to the goodwill associated with the Marks;
(b) employ or seek to employ any person who is at that time
employed by TRANSMEDIA Issuer; or
(c) own, maintain, engage in, or have any interest in any
business (including any business operated by Advance prior to entry into this
Agreement) specializing, in whole or in part, in providing discount services,
whether through use of barter, trade credits, scrip or similar items, or in
printing, selling, distributing or soliciting of a charge card for discount
services or activities or promoting a charge card providing services the same as
or similar to some of those services provided, sold or offered through the
Business.
12.2 Advance specifically acknowledges that, pursuant to this
Agreement, Advance will receive valuable training and confidential information,
including, without limitation,
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information regarding the promotional, operational, sales, and marketing methods
and techniques of Network, Europe and the Business. Accordingly, Advance
covenants that, except as provided in this Agreement or as otherwise approved in
writing by Europe, Advance shall not, during the term and, for a period of two
(2) years thereafter after the expiration or termination of this Agreement,
regardless of the cause of termination, either directly or indirectly, for
itself, or through, on behalf of, or in conjunction with any person, persons,
partnership, or corporation, own, maintain, engage in, or have any interest in
any business engaging, in whole or in part, in providing discount services,
whether through use of barter, trade credits, scrip or similar items, or
printing, selling, distributing or soliciting of a charge card for discount
services or activities or promoting a charge card or providing services the same
as or similar to that sold, offered or provided or which Europe has the right to
offer or provide in the future under the Master License by Europe.
12.3 The parties agree that each of the foregoing covenants shall be
construed as independent of any other covenant or provision of this Agreement.
If all or any portion of a covenant in this Article 12 is held unreasonable or
unenforceable by a court or agency having valid jurisdiction in an unappealed
final decision, Advance expressly agrees to be bound by any lesser covenant
subsumed within the terms of such covenant that imposes the maximum duty
permitted by law, as if the resulting covenant were separately stated in and
made a part of this Article 12.
12.4 Advance understands and acknowledges that Europe shall have the
right, in its sole discretion, to reduce the scope of any covenant set forth in
Sections 12.1 and 12.2 in this Agreement, or any portion thereof, without
Advance's consent, effective immediately upon receipt by Advance of written
notice thereof, and Advance agrees that it shall comply forthwith with any
covenant as so modified, which shall be fully enforceable.
13. DEFAULT AND TERMINATION
13.1 If Advance breaches any of its obligations under this
Agreement, Europe will have the right, without prejudice to any other rights
Europe may have, to terminate this Agreement by giving written notice to Advance
of such breach, and this notice will automatically become effective unless
Advance completely remedies the breach within ten (10) days after such notice of
breach is given to Advance.
13.2 This Agreement shall terminate automatically upon delivery of
notice of termination to Advance, if Europe makes a reasonable determination
that continued operation of the Business
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by Advance will result in an imminent danger to public safety, or if Advance or
its chief executive officer:
(a) is convicted of or pleads no contest to a felony, or a
crime involving moral turpitude, or any other crime or offense that is likely to
adversely affect the Business or the Marks;
(b) abandons or fails or refuses to actively operate the
Business for three (3) weeks in any twelve (12) month period, unless Advance's
operations have been closed for a purpose approved by Europe;
(c) makes any unauthorized use or duplication or sale of the
Member Restaurant list or TRANSMEDIA Cardholder base list or breaches any
obligation under Article 12;
(d) files a petition or seeks relief under or takes advantage
of any insolvency law; makes an assignment for the benefit of its creditors;
commences a proceeding for the appointment of a receiver, trustee, liquidator,
custodian or conservator of itself or of the whole or substantially all of its
property; files a petition or an answer to a petition under any bankruptcy or
similar law of any state, province, county or country;
(e) has a court of competent jurisdiction enter an order,
judgment or decree appointing or authorizing a receiver, trustee, liquidator,
custodian or conservator of it or of the whole or substantially all of its
property, or enter an order for relief against it in any case commenced under
any bankruptcy law, or grant relief under any other similar law of any state,
province, county or country; or, under the provisions of any law for the relief
or aid of debtors, has a court of competent jurisdiction or a receiver, trustee,
liquidator, custodian or conservator assume custody or control or take
possession of it or of the whole or substantially all of its property; or has
commenced against it any proceeding for any of the foregoing relief or has a
petition filed against it under any chapter of any bankruptcy or similar law or
any state, province, county or country thereof and such proceeding or petition
remains undismissed for a period of 60 days; or by any act indicates its consent
to, approval of or acquiescence in any such proceeding or petition;
13.3 To the extent that the provisions of this Agreement provide for
periods of notice less than those required by applicable law, or provide for
termination, cancellation, non-renewal or the like other than in accordance with
applicable law, such provisions shall, to the extent not in accordance with
applicable law, not be effective, and the parties hereto shall
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comply with applicable law in connection with each of these matters.
14. RIGHTS AND DUTIES OF PARTIES UPON EXPIRATION OR
TERMINATION
Upon the expiration or termination of this Agreement for any reason
whatsoever:
14.1 All rights granted under the Sublicense will automatically
revert to Europe, and Advance immediately will cease and, thereafter, refrain
from all use of the Marks and the Europe Software and any mark or name similar
to the Marks or that includes the Marks. Advance's obligation to refrain from
all use of the Marks, as stated in the preceding sentence, shall include
refraining from using any Marks as part of a company name or trade name. In
addition, all royalties and fees that have accrued prior to expiration or
termination shall be immediately payable, including damages, costs and expenses,
including attorneys' fees, incurred by Europe on a default by Advance
notwithstanding anything to the contrary contained in this Agreement.
14.2 Advance shall immediately cease to operate as a sublicensee of
Europe under this Agreement, and shall not thereafter, directly or indirectly,
represent to the public or hold itself out as a present or former sublicensee of
Europe.
14.3 Advance shall immediately and permanently cease to use, by
advertising or in any manner whatsoever, any confidential methods, procedures,
and techniques associated with the Business; the service mark and trade name
"TRANSMEDIA" and any Indicia, Marks and distinctive forms, slogans, signs,
symbols, logos, or devices associated with the Business.
14.4 Advance shall be deemed to have assigned to Europe or Europe's
designee any assumed name or equivalent registration which contains the name
"TRANSMEDIA", any other Mark or any other service mark or trademark of Network
or Europe, and Advance shall furnish Europe with evidence satisfactory to Europe
of compliance with this obligation within thirty (30) days after termination or
expiration of this Agreement. Further, Advance hereby appoints Europe as
Advance's attorney-in-fact to execute such documents and take such actions as
are necessary in the event that Advance fails to comply with this Section 14.4.
14.5 Advance agrees, in the event it continues to operate or
subsequently begins to operate any other business, not to use any reproduction,
counterfeit, copy or colorable imitation the Marks either in connection with
such other business or the promotion thereof, which is likely to cause
confusion, mistake or deception, or which is likely to dilute Network's or
Europe's
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exclusive rights in and to the Marks and further agrees not to utilize any
designation of origin or description or representation which falsely suggests or
represents an association or connection with Network or Europe so as to
constitute unfair competition.
14.6 Advance shall pay to Europe all damages, costs and expenses,
including reasonable attorneys' fees, incurred by Europe subsequent to the
termination or expiration of the Business in obtaining injunctive or other
relief for the enforcement of any provisions of Articles 12 and 14.
14.7 Advance shall immediately turn over to Europe the Operations
Manual, records, files, instructions, brochures, agreements, disclosure
statements, manuals with respect to the Licensed Software, any copies of the
foregoing, and any and all other materials provided by Europe to Advance, or
copies thereof, relating to the operation of the Business.
14.8 Europe shall have the right, in its sole and absolute
discretion, to purchase from Advance its then on-going Member Restaurant
accounts for (i) twenty-five (25%) of the retail value of Advance's rights to
receive, upon the purchase of such rights to receive, and (ii) an additional
twenty-five (25%) per cent of the retail value of Advance's rights to receive,
at such time as Europe collects on the rights to receive from Advance's
TRANSMEDIA Cardholders, less any amounts remaining to be paid by Advance to
Member Restaurants.
14.9 Advance acknowledges that its failure to cease use of the Marks
at the termination or expiration of this Agreement will result in immediate and
irreparable damage to Europe. Advance acknowledges and admits that there is not
adequate remedy at law and Advance agrees that, in the event of such failure,
Network and Europe shall be entitled to equitable relief by way of temporary and
permanent injunctions and such other and further relief as any court with
jurisdiction may deem just and proper, other provisions to the contrary in this
Agreement notwithstanding.
15. INSURANCE
15.1 Advance will maintain, no later than two (2) months after the
Closing Date at its own expense, in full force and effect at all times during
which Advance is making any use of the Marks, with a responsible insurance
carrier acceptable to Europe, a comprehensive liability insurance policy,
including coverage for product and contractual liability, with combined single
coverage of at least Two Million ($2,000,000) U.S. Dollars. This insurance will
be for the benefit of Europe and Advance and will provide for at least ten (10)
days' prior
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written notice to Europe and Advance of the cancellation or any substantial
modification of the policy.
15.2 The insurance afforded by the policy or policies respecting
liability shall not be limited in any way be reason of any insurance which may
be maintained by Europe. No later than 30 days prior to the commencement of
operations, Advance shall provide Europe with a Certificate of Insurance showing
compliance with the foregoing requirements. Such certificate shall state that
said policy or policies will not be canceled or altered without at least twenty
(20) days' prior written notice to Europe and shall reflect proof of payment of
premiums. Maintenance of such insurance and the performance by Advance of the
obligations under this Article 15 shall not relieve Advance of liability under
the indemnity provision set forth in this Agreement.
15.3 Should Advance, for any reason, not procure and maintain such
insurance coverage as required by this Agreement, Europe shall have the right
and authority (without, however, any obligation to do so) immediately to procure
such insurance coverage and to charge same to Advance, which charges, together
with a reasonable fee for expenses incurred by Europe in connection with such
procurement, shall be payable by Advance immediately upon notice.
16. TRANSFERABILITY OF INTEREST
16.1 Advance may not assign or Transfer this Agreement or any of
Advance's rights or obligations hereunder without Europe's prior written
consent,except for an assignment to La Carte, which assignment shall be
permitted. Upon the assignment by Advance to La Carte, Advance shall be relieved
of all obligations within this Agreement. Except with respect to the assignment
to La Carte the assignor shall remain liable to Europe for the obligations of
the assignee.
17. INDEPENDENT CONTRACTOR: INDEMNIFICATION
17.1 This Agreement does not constitute Advance as an agent, legal
representative, joint venturer, partner, employee or servant of Europe or
Network for any purpose whatsoever; and it is understood between the parties
hereto that Advance shall be an independent contractor and is in no way
authorized to make any contract, agreement, warranty or representation on behalf
of Europe or Network, or to create any obligation, express or implied, on behalf
of Europe or Network. Under no circumstances shall Europe or Network be liable
for any act, omission, debt or any other obligation of Advance.
17.2 Advance covenants and agrees to indemnify and hold Europe and
Network harmless against and from any and all claims, demands, judgments,
damages, suits, losses, penalties, expenses,
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costs, settlements and liabilities of any kind or nature (including reasonable
attorneys' fees), arising or resulting from (i) any default in the observance,
performance or breach of any representation, warranty, covenant or agreement
made by Advance or required to be performed, observed or kept by it under this
Agreement or (ii) claims based upon products liability, which liability Europe
hereby specifically disclaims.
17.3 Advance agrees to indemnify and hold Europe and Network
harmless for any alteration or misuse of any service provided through the
Business, and for any such claims, loss or damage incurred therefrom.
17.4 Advance shall alone be responsible for all loss or damage
originating in or in connection with the operation of its Business and for all
claims or demands for damages to property or for injury, illness or death of
persons directly or indirectly resulting from its Business and Advance agrees to
indemnify and hold Europe and Network harmless from any such claims, loss or
damage. However, Advance shall not be required to indemnify for any claims
arising out of a breach of this Agreement or other civil wrongs of Europe.
18. REPRESENTATIONS AND WARRANTIES
18.1 Advance represents and warrants to Europe as follows:
(a) Advance is a corporation duly organized or formed, validly
existing and in good standing under the laws of Delaware and has all requisite
power and authority to enter into this Agreement and perform its obligations
hereunder.
(b) This Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all corporate actions
required to be taken by it. The Agreement has been duly and validly executed and
delivered by it and constitutes a valid and binding obligation enforceable
against it in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws or by
equitable principles relating to or limiting creditors' rights generally.
(c) The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein will not (i) violate any
provision of its Certificate of Incorporation, by-laws, or other charter or
organization documents, (ii) violate any provision of, or constitute a default
under or breach of, any agreement or instrument, or any judgment, decree or
order to which it is a party or by which it is bound, or (iii) constitute a
violation by it or of any law, rule or regulation of any governmental or
regulatory body, commission,
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agency or other authority applicable to it, and any of such events would have a
material adverse affect on this Agreement or the transactions contemplated
hereby.
18.2 Europe represents and warrants to Advance as follows:
(a) It is a corporation duly organized or formed, validly
existing and in good standing under the laws of the state of Delaware and has
all requisite power and authority to enter into this Agreement and perform its
obligations hereunder.
(b) This Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all corporate actions
required to be taken by it. The Agreement has been duly and validly executed and
delivered by it and constitutes a valid and binding obligation enforceable
against it in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws or by
equitable principles relating to or limiting creditors' rights generally.
(c) The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein will not (i) violate any
provision of its Certificate of Incorporation, by-laws, or other charter or
organization documents, (ii) violate any provision of, or constitute a default
under or breach of, any agreement or instrument, or any judgment, decree or
order to which it is a party or by which it is bound, or (iii) constitute a
violation by it or of any law, rule or regulation of any governmental or
regulatory body, commission, agency or other authority applicable to it, and any
of such events would have a material adverse affect on this Agreement or the
transactions contemplated hereby.
19. NON-WAIVER
19.1 No failure of Europe to exercise any power reserved to it
hereunder, or to insist upon strict compliance by Advance with any obligation or
condition hereunder, and no custom or practice of the parties in variance with
the terms hereof, shall constitute a waiver of Europe's right to demand exact
compliance with the terms hereof. Waiver by Europe of any particular default by
Advance shall not be binding unless in writing and executed by the party sought
to be charged and shall not affect or impair Europe's right with respect to any
subsequent default of the same or of a different nature; nor shall any delay,
waiver, forbearance, or omission of Europe to exercise any power or rights
arising out of any breach or default by Advance of any of the terms, provisions,
or covenants hereof, affect or impair Europe's rights nor shall such constitute
a waiver by Europe of any right hereunder or of the right to
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declare any subsequent breach or default. Subsequent acceptance by Europe of any
payment(s) due to it hereunder shall not be deemed to be a waiver by Europe of
any preceding breach by Advance of any terms, covenants or conditions of this
Agreement.
20. NOTICE
Any and all notices required or permitted under this Agreement shall
be in writing and shall be personally delivered, mailed by certified mail,
return receipt requested, or delivered by courier service requiting signature
UpOn delivery, to the respective parties at the following addresses unless and
until a different address has been designated by written notice to the other
party:
Notices to Advance:
International Advance, Inc.
11 St. James's Square
London SW1Y 4LB
ENGLAND
Notices to Europe:
Transmedia Europe Inc.
11 St James's Square
London SW1Y 4LB
ENGLAND
All notices hereunder shall be deemed to be effective upon delivery.
21. COST OF ENFORCEMENT OR DEFENSE
In the event that either party to this Agreement is required to
employ legal counsel or to incur other expenses to enforce any obligation of the
second party hereunder, or to defend against any claim, demand, action, or
proceeding by reason of the second party's failure to perform any obligation
imposed upon the second party by this Agreement, and provided that legal action
is filed and such action or the settlement thereof establishes the second
party's default hereunder, then the first party shall be entitled to recover
from the second party the amount of all reasonable attorneys' fees of such
counsel and all other expenses incurred in enforcing such obligation or in
defending against such claim, demand, action, or proceeding, whether incurred
prior to, or in preparation for, or in contemplation of the filing of such
action or thereafter.
22. ENTIRE AGREEMENT
This Agreement and any documents referred to herein, shall be
construed together and constitute the entire, full and complete agreement
between Europe and Advance concerning the
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subject matter hereof, and supersede all prior agreements. No other
representation has induced Advance to execute this Agreement, and there are no
representations, inducements, promises, or agreements, oral or otherwise,
between the parties not embodied herein, which are of any force or effect with
reference to this Agreement or otherwise. No amendment, change or variance from
this Agreement shall be binding on either party unless executed in writing by
both parties.
23. SEVERABILITY AND CONSTRUCTION
23.1 Each section, part, term and/or provision of this Agreement
shall be considered severable, and if, for any reason, any section, part, term
and/or provision herein is determined to be invalid and contrary to, or in
conflict with, any existing or future law or regulation, such shall not impair
the operation of or affect the remaining portions, sections, parts, terms and/or
provisions of this Agreement, and the latter will continue to be given full
force and effect and bind the parties hereto; and said invalid Sections , parts,
terms and/or provisions shall be deemed not part of this Agreement; provided,
however, that if Europe determines that said finding of illegality adversely
affects the basic consideration of this Agreement, Europe may, at its option,
terminate this Agreement.
23.2 Anything to the contrary herein notwithstanding, nothing in
this Agreement is intended, nor shall be deemed, to confer upon any person or
legal entity other than Europe or Advance and such of their respective
successors and assigns as may be contemplated by this Agreement, any rights or
remedies under or by reason of this Agreement.
23.3 Advance expressly agrees to be bound by any promise or covenant
imposing the maximum duty permitted by law which is contained within the terms
of any provision hereof, as though it were separately stated in and made a part
of this Agreement, that may result from striking from any of the provisions
hereof any portion or portions which a court may hold to be unreasonable and
unenforceable in a final decision to which Europe is a party, or from reducing
the scope of any promise or covenant to the extent required to comply with such
a court order.
23.4 All captions herein are intended solely for the convenience of
the parties, and none shall be deemed to affect the meaning or construction of
any provision hereof.
24. APPLICABLE LAW
24.1 This Agreement takes effect upon its acceptance and execution
by Europe in New York; and shall be interpreted and
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construed under the laws thereof, which laws shall prevail in the event of any
conflict of law.
24.2 Advance acknowledges and agrees that this Agreement is entered
into in New York County, New York and that any action sought to be brought by
either party for the purpose of enforcing the terms and provisions hereof shall
be brought in the United States District Court for the State of New York,
Southern District, or the State Court for the State of New York, and the parties
do hereby consent to personal jurisdiction and venue in said courts for such
purposes.
24.3 No right or remedy conferred upon or reserved to Europe or
Advance by this Agreement is intended to be, nor shall be deemed, exclusive of
any other right or remedy herein or by law or equity provided or permitted, but
each shall be cumulative of every other right or remedy.
24.4 Nothing herein contained shall bar Europe's right to obtain
injunctive relief against threatened conduct that will cause it loss or damages,
under the usual equity rules, including the applicable rules for obtaining
restraining orders and preliminary injunctions.
25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which when
so executed shall be deemed an original, but all such counterparts together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have duly executed, sealed and delivered this Agreement on the day
and year first above written.
TRANSMEDIA EUROPE INC.
ATTEST: By:_________________________________
____________________________________ Title:______________________________
INTERNATIONAL ADVANCE INC.
ATTEST: By:_________________________________
____________________________________ Title:______________________________
TMNI International Inc. ("TMNI") hereby approves the granting of this Sublicense
to International Advance, Inc. and to its anticipated assignee, Transmedia La
Carte Restaurant, S.A. subject to the receipt of payment by TMNI of the sum of
$US250,000. TMNI further agrees that upon a default under the Master License by
Europe, Advance shall be notified of such default and, provided that such
default has not been caused by a default of Advance, Advance shall continue to
have all rights granted under this Agreement except that the granting party
shall be thereafter deemed to be TMNI and all rights and obligations under this
Agreement shall be between TMNI and Advance.
TMNI INTERNATIONAL INC.
By:_____________________________________
Melvin Chasen, President
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