FRANCHISE RENEWAL AGREEMENT AND SECOND AMENDMENT …

[Pages:5]FRANCHISE REN EWAL AGREEMENT AND SECOND AMENDMENT TO AU BON PAlN FRANCHISE AGREEMENT

This Franchise Renewal Agreement and Second Amendment to the Au Bon Pain Franchise Agreement is effective as of January 19, 2014, by and between ABP Corporation ("Franchisor'') and Virginia Polytechnic Institu te and State University ("Franchisee").

Whereas, Franchisor and Franchisee are party to that certain Franchise Agreement dated January 18, 2004, and an Amendment to Au Bon Pain Franchise Agreement dated July 12, 2005, granting Franchisee the right to operate an Au Bon Pain franchise (2 locations) at the Squires Student C~nter, 290 College Ave, Blacksburg, VA 24061 and the Graduate Life Center, 155 Otey Street NW Blacksburg, VA 24061 (collectively, as amended and renewed to date, the "Franchise Agreement'');

Whereas, Franchisee desires to operate an additional Au Bon Pain location in the Signature Engineering Building on Franchisee's campus, located at 635 Prices Fork Road, Blacksburg, Virginia 24061 (the "Signature Engineering Building Site"); and

Whereas, Franchisor desires to grant to Franchisee the right and franchise to operate an Au Bon Pain location at the Signature Engineering Building Site;

Whereas, the current term of the Franchise Agreement shall expire on January 18, 2014, and Franchisor and Franchisee wish to renew the Franchise Agreement for an additional five year term commencing on January 19, 2014 and ending on January 18, 2019;

Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend the Franchise Agreement as follows:

1. .t\11 references to Franchised Business and Au Bon Pain Bakery Cafe in this Amendment and the Franchise Agreement sh all refer to the Au Bon Pain Bakery Cafe and kiosks at the Student Center Site, the Graduate Site and the Signatw:e Engineering Building Site, individually and collectively. For purposes of clarification, all duties and obligations of Franchisee in the Franchise Agreement shall apply to the Au Bon Pain Bakery Cafe and kiosks at the Student Center Site, the Graduate Site and the Signature Engineering Building Site, individually and collectively.

2~

Paragraph I.A. of the Franchise Agreement entitled "APPOINTMENT" is

hereby deleted in its entiretjr and replaced with the following:

A. Franchisor hereby grants to Franchisee, upon the terms and conditions herein contained, the right and franchise, and Franchisee undertakes the obligation, to operate one (1) Au Bon Pain Bakery Cafe and three (3) Au Bon Pain kiosks (hereinafter collectively referred to as the "Franchised Business'') for the sale of ABP Products under the Proprietary Marks and to use the ABP System

solely in connection therewith. Franchisee shall locate the one (1) Au Bon Pain Bakery Cafe and three (3) kiosks at the following locations:

1. one (1) Au Bon Pain Bakery Cafe and one (1) kiosk located at Squires Student Center on Franchisee's campus (the " Student Center Site"); and

2.

one (1) kiosk located at Donaldson Brown Graduate

Housing, Otey Street, Blacksburg, Virginia 24061 (the

"Graduate Site"); and

3. one (1) kiosk located at the Signature Engineering Building, 635 Prices Fork Road, Blacksburg, Virginia 24061 (the "Signature Engineering Building Site'').

The Student Center Site, Graduate Site and Signature Engineering Building Site shall be collectively referred to herein as the "Site." Franchisee shall not relocate the Franchised Business without the prior written approval of Franchisor. Franchisee may not sell ABP Products or any materials, supplies or inventory bearing the Prop1ietary Marks at any other location or through any alternative channel of distribution without Franchisor's prior written approval.

3. Paragraph II.A. of the Franchise Agreement entitled "TERM AND RENEWAL" is hereby deleted in its entirety and replaced with the following:

A. Except as otherwise provided in this Agreement, the initial term of this franchise for the Au Bon Pain Bakery Cafe and kiosk located at the Student Center Site and the Graduate Site shall commence on January 19, 2014, and shall expire on January 18, 2019. The initial term of this franchise for the Au Bon Pain kiosk located at the Signature Engineering Building Site shall conunence on the first day of operations of the Au Boo Pain kiosk (projected to be August, 2014), and shall expire on January 18, 2019.

4.

Paragraph H.B. of the Franchise Agreement entitled "TERM AND

RENEWAL" is hereby amended by deleting the leading first sentence and

replacing it witl1 the following:

B. Franchisee may, at its option, renew the franchise for the Au Boo Pain Bake1y Cafe and kiosks located at the Student Center Site, the Graduate Site, and the Signature Engineering Building Site for one additional term of five (5) years prc;>vided at the end of the initial tcm1 the following conditions are satisfied for each Site:

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5. Paragraph XIV.B. of the Franchise Agreement entitled "DEFAULT AND TERMINATION" is hereby amended by deleting the leading first sentence and replacing it with the following:

B. Franchisee shall be deemed to be in default and Franchisor may, at its option, terminate this Agreement and all rights granted hereW1der, in whole or in part, without affording Franchisee any opportunity to cure the default (except as noted hereinafter in this Paragraph XN.B.), effective immediately upon receipt of notice by Franchisee, upon the occurrence of any of the following events with respect to the Franchised Business at any or all of the Student Center Site, the Graduate Site and the Signature Engineering Building Site:

6. Paragraph }._ry_ of the Franchise Agreement entitled "OBLI GATIONS U PON TERMINATION" is hereby amended by deleting the leading first sentence and replacing it with the following:

Upon termination or expiration of this Agreement pursuant to the terms hereof, this Agreement and all rights granted hereunder to Franchisee shall forthwith terminate and, with respect to the Franchised Business at any or all the Student Center Site, the Graduate Site and the Signature Engineering Building S~te (as applicable):

7.

The Franchise Agreement is hereby renewed effective Janua1y 19, 2014 and

will terminate on January 18, 2019.

8.

Except as expressly amended hereby, all other terms, conditions and

provisions of the Franchise Agreement remain in full force and effect. Any

reference to the Franchise Agreement shall mean the Franchise Agreement,

as amended by this Amendment.

In Witness Whereof, Franchisee and Franchisor, execute this agreement as of the date first set forth above by their duly authorized representatives.

VIRGINIA POLYTECHNIC INSTITIJTE AND STATE STATE UNfVERSITY:

Name:

wight Shelton,

Title: ?ce President for Finance

and Chief Financial Officer

ABP CORPORATIQN:?? - ?~-.

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13eroard E.J. Platt Senior Vice President, Franchising

3

February 4, 2014

VIA COURIER

Tracey Gallagher University Legal Counsel Burruss Hall, Suite 236, Virginia Tech 800 Drillfield Drive Blacksburg, VA 24061 540-231-1262

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FEB 06 201~

UNIVERSITY LEGAL COUNSEL

Re: Au Bon Pain at Virginia Tech Franchise Renewal and Second Amendment

Dear Tracey,

Enclosed is one (1} copy of the fully executed Au Bon Pain at Virginia Tech Franchise Renewal Agreement and Second Amendment to Agreement for your files. Please let me know if you need anything further.

Regards,

Qr Executive Assistant, Franchise

ABP Corporation I One Au Bon Pain W ay I Boston, MA 02210 I (617} 423-2100 (O) I (617) 423-7879 (F)

Gallagher, Tracey

From: Sent: To: Cc: Subject:

Wilson, Trisha Tuesday, February 11, 2014 10:40 AM Gallagher, Tracey; Grove, Brian Boling, Christine RE: ABP Renewal Document

------ c~ to Lek's atten-~i~:.~" . . _ _ _ _ ___.. . ) ~ 7'Zida 1(/~

Virginia Tech Senior Buyer Procurement Department (MC 033 3) 300 Turner Street NW Suite 2100 Blacks burg, VA 24061 Phone: 540-231-7402 Fax: 540-231-9628 wilsont@vt.edu

I-a.k- )

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From: Gallagher, Tracey Sent: Tuesday, February 11, 2014 10:32 AM To: Grove, Brian; Wilson, Trisha Cc: Boling, Christine Subject: RE: ABP Renewal Document

A copy of the fully signed amendment is attached.

Trisha, I am going to send the original over to maintain with Procurement's file. Should I send it to Lek or to your attention?

Tracey

From: Grove, Brian Sent: Thursday, January 23, 2014 10:52 AM To: Gallagher, Tracey; Wiison, Trisha Cc: Boling, Christine Subject: RE: ABP Renewal Document

We are estimating $4 million per year total for all 3 operations. Brian

From: Gallagher, Tracey Sent: Thursday, January 23, 2014 9:49 AM To: Wilson, Trisha Cc: Boling, Christine; Grove, Brian Subject: Re: ABP Renewal Document

Trisha,

1

Link, Krista

From: Sent: To: Subject:

Wilson, Trisha Monday, February 17, 20 14 10:46 AM Jackson, Lek RE: "Scanned Doc. this morning"

The Au Bon Pain renewal agreement has to be scanned.

From: Jackson, Lek Sent: Monday, February 17, 2014 10:45 AM To : Wilson, Trisha Subject : RE: "Scanned Doc. this morning"

Scan folder, Trisha?

Tuanchit "Lek" Jackson Procurement Department (MC 0333) 300 Turner St., NW, Ste . 2100, Virginia Tech Blacksburg, VA (540) 231-6675

24061

-----Original Message----From: Wilson, Trisha Sent: Monday, February 17, 2014 10:36 AM To: Jackson, Lek Subject: RE: "Scanned Doc . this morning"

I almost forgot ... . it also has to be scanned !

From: Jackson , Lek Sent: Monday, February 17, 2014 10:34 AM To: Wilson, Trisha Subject: RE : "Scanned Doc. this morning"

Done!

: -)

Tuanchit "Le k" Jackson Procurement Department (MC 0333) 300 Turner St., NW, Ste . 2100, Virginia Tech Blacksburg, VA (540) 231-6675

24061

---- -Original Message----From: Wilson, Trisha Sent: Monday, February 17, 2014 10:11 AM To: Jackson, Lek Subject : RE: "Scanned Doc. this morning"

Lek,

Please prepare a folder for this titled "Franchise Renewal Agreement & Second Amendment'' &

put it into the Au Bon Pain contract folder TL -001-03.

1

From: Jackson, Lek Sent: Wednesday, February 12, 2014 10 : 21 AM To: Wilson, Trisha Subject: "Scanned Doc. this morning"

Trisha, What do you want me to do with this one? Please let me know, okay.

?

Tuanchit "Lek" Jackson Procurement Department (MC 0333) 300 Turner St., NW, Ste. 2100, Virginia Tech Blacksburg, VA (540) 231-6675 [cid:image001.jpg@01CF27DC.42699DA0]

24061

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FRANCHISE RENEWAL AGREEMENT

This FRANCHISE RENEWAL AGREEMENT is entered into this 13" day of November, 2008 by and between ABP Corporation ("Franchisor") and Virginia Polytechnic Institute and State University ("Franchisee").

Whereas, Franchisor and Franchisee are party to that certain Franchise Agreement dated January 18, 2004, and Amendment to Au Bon Pain Franchise Agreement dated July 12, 2005, granting Franchisee the right to operate an Au Bon Pain franchise at the Squires Student Center on Franchisee's campus and at the Donaldson Brown Graduate Housing on Franchisee's campus (collectively, the "Franchise Agreement");

Whereas, the first five year term of the Franchise Agreement shall expire on January 18, 2009, and Franchisee wishes to renew the Franchise Agreement for a second five year term commencing on January 19, 2009 and ending on January 18, 2014;

Whereas, Franchisor wishes to renew the Franchise Agreement for a second term, ending on January 18,2014:

Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.

The Franchise Agreement is hereby renewed effective January 19, 2009 and

will terminate on January 18, 2014.

2.

Except as expressly amended hereby, the Franchise Agreement remains in

full force and effect

In Wituess Whereof, Franchisee and Franchisor, execute this agreement as of the date first set forth above by their duly authorized representatives.

VIRGINIAP INSTITUTE STATE UN

ABP CORPORATION:

W. Thomas Kaloupek Director of Materials Management

Senior Vice President, Franchising

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