Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EL POLLO LOCO® FRANCHISE AGREEMENT
Location: |
Franchisee: |
Franchisee Notice Address: |
Franchisee Notice Facsimile Number: |
(Disclosure Document Control No. 033021)
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 1 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
TABLE OF CONTENTS:
1. SCOPE AND PURPOSE OF AGREEMENT4
2. THE EL POLLO LOCO® MARKS & SYSTEM6
5. IMPROVEMENTS, FIXTURES AND EQUIPMENT9
6. FEES, TAXES AND OTHER CHARGES12
7. FINANCIAL REPORTING, BILLING AND PAYMENT13
8. ADVERTISING AND MARKETING20
9. INSURANCE AND INDEMNIFICATION22
11. COMPLIANCE WITH MANUAL AND WITH SYSTEM STANDARDS26
12. RESTAURANT MAINTENANCE AND REPAIR30
18. DEFAULT AND TERMINATION43
19. RIGHTS AND OBLIGATIONS UPON TERMINATION46
20. RIGHTS TO A SUCCESSOR FRANCHISE48
21. PROPRIETARY RIGHTS AND UNFAIR COMPETITION50
23. MISCELLANEOUS PROVISIONS56
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 2 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBITS AND SCHEDULES:
EXHIBIT 1: MEMORANDUM OF OPENING DATE64
EXHIBIT 2: PERSONAL GUARANTEE OF FRANCHISE AGREEMENT65
EXHIBIT 3: INVESTOR COVENANTS REGARDING CONFIDENTIALITY AND NON-COMPETITION69
EXHIBIT 4: AUTHORIZATION AGREEMENT FOR PREARRANGED PAYMENTS (ACH)72
EXHIBIT 5: ADVERTISING ASSOCIATION DOCUMENTS73
EXHIBIT 6: EL POLLO LOCO® FINANCIAL REPORTING FORM94
EXHIBIT 7: IT SUPPORT SERVICES AGREEMENT95
EXHIBIT 8: GENERAL RELEASE108
EXHIBIT 9: CONSENT TO AND ASSIGNMENT OF FRANCHISE RIGHTS110
EXHIBIT 10: AMENDMENT TO FRANCHISE AGREEMENT TO APPLY DEVELOPMENT FEE120
EXHIBIT 11: AMENDMENT TO SUCCESSOR FRANCHISE AGREEMENT122
EXHIBIT 12: REMODEL SCHEDULE PARTICIPATION AGREEMENT125
EXHIBIT 13: AMENDMENT TO FRANCHISE AGREEMENT129
EL POLLO LOCO® FRANCHISE AGREEMENT SCHEDULE 1: STATEMENT OF OWNERSHIP OF FRANCHISEE131
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 3 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EL POLLO LOCO® FRANCHISE AGREEMENT
This Franchise Agreement ("Agreement"), dated for identification purposes only as of ____, 20__, is made and entered into by and between EL POLLO LOCO, INC., a Delaware corporation (the "Franchisor"), and , a__________ ("Franchisee").
1. | SCOPE AND PURPOSE OF AGREEMENT |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 4 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 5 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
2. | THE EL POLLO LOCO® MARKS & SYSTEM |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 6 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
3. | TERM |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 7 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
4. | SITE DEVELOPMENT |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 8 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
5. | IMPROVEMENTS, FIXTURES AND EQUIPMENT |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 9 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 10 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 11 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
6. | FEES, TAXES AND OTHER CHARGES |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 12 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
7. | FINANCIAL REPORTING, BILLING AND PAYMENT |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 13 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 14 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 15 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 16 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 17 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 18 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 19 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
8. | ADVERTISING AND MARKETING |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 20 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 21 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
9. | INSURANCE AND INDEMNIFICATION |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 22 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 23 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 24 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 25 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
10. | VENDING MACHINES |
11. | COMPLIANCE WITH MANUAL AND WITH SYSTEM STANDARDS |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 26 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 27 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 28 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 29 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
12. | RESTAURANT MAINTENANCE AND REPAIR |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 30 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
13. | HOURS OF OPERATION |
14. | PERSONNEL STANDARDS |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 31 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
15. | INSPECTIONS |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 32 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 33 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
16. | TRAINING |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 34 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 35 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
17. | ASSIGNMENT |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 36 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 37 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 38 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 39 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 40 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 41 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 42 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
18. | DEFAULT AND TERMINATION |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 43 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 44 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 45 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
19. | RIGHTS AND OBLIGATIONS UPON TERMINATION |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 46 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 47 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
20. | RIGHTS TO A SUCCESSOR FRANCHISE |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 48 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 49 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
21. | PROPRIETARY RIGHTS AND UNFAIR COMPETITION |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 50 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 51 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 52 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 53 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 54 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
22. | DISPUTE RESOLUTION |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 55 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
23. | MISCELLANEOUS PROVISIONS |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 56 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 57 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 58 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 59 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 60 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
24. | EFFECTIVE DATE |
25. | ACKNOWLEDGMENTS |
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 61 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 62 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
26. | ANTI-TERRORISM LAW |
27. | SIGNATURES |
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date(s) first set forth below.
FRANCHISOR: | | FRANCHISEE: | ||
EL POLLO LOCO, INC., a Delaware Corporation | | ____________________________, a_______________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
1
Exhibit D of Multi-State Disclosure Document Control No. 033021
Franchise Agreement - Page 63 of 128
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 1: MEMORANDUM OF OPENING DATE
On or about _________________, 20__ EL POLLO LOCO, INC., a Delaware corporation (“Franchisor”), and ____________________________, a _____________ (“Franchisee”), entered into a Franchise Agreement (the “Franchise Agreement”) for an “El Pollo Loco” Restaurant Unit No. _______ located at ____________________________________(the “Location”).
The parties hereby agree that the Opening Date of the Restaurant at the Location was ____________________, 20___.
The term of the Franchise Agreement shall expire on ________________, 20___, unless sooner terminated as provided in the Franchise Agreement.
This Memorandum of Opening Date may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. A signature on this Memorandum of Opening Date transmitted via facsimile or electronic mail/PDF or equivalent, electronic signature (such as DocuSign or equivalent), shall be considered an original for all purposes hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Memorandum of Opening Date to be executed as of the date(s) below.
| FRANCHISEE: | |||
EL POLLO LOCO, INC., a Delaware Corporation | | ____________________________, a___________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
Exhibit 1 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Memorandum of Opening Date - Page 64 of 62
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 2: PERSONAL GUARANTEE OF FRANCHISE AGREEMENT
The undersigned hereby unconditionally guarantees, absolutely and irrevocably the performance and payment by Franchisee (as defined below) of, and expressly agrees to adopt and be individually bound by as if the undersigned were a party to each and all of the terms, covenants and conditions of that certain Franchise Agreement dated _______________, 20___ (the “Agreement”) between EL POLLO LOCO, INC., a Delaware corporation (“Franchisor”) whose address is 3535 Harbor Blvd, Suite 100, Costa Mesa, CA 92626 and _________________, a _________ (“Franchisee”) whose address is ____________________. The undersigned further agrees as follows:
1.This guarantee will continue unchanged by any bankruptcy, reorganization or insolvency of Franchisee or by any disaffirmance or abandonment by a trustee of Franchisee.
2.This covenant and agreement on the part of the undersigned shall continue in favor of Franchisor notwithstanding any extension, modification or alteration of the Agreement entered into by and between the parties thereto, or their successors or assigns, and no extension, modification, alteration or assignment of the Agreement shall in any manner release or discharge the undersigned and the undersigned does hereby consent thereto.
3.The liability of the undersigned under this guarantee shall be primary and in any right of action which shall accrue to Franchisor under the Agreement, Franchisor may, at its option, proceed against the undersigned without having commenced any action or having obtained any judgment against Franchisee.
4.The undersigned shall pay Franchisor’s reasonable attorneys’ fees (both internal and external) and all costs and other expenses (both internal and external) incurred in any collection or attempted collection or in any negotiations relative to the obligations hereby guaranteed or enforcing this guarantee against the undersigned, individually and jointly from commencing and prosecuting the legal proceeding and until the proceeding has come to a complete end (including appeals and settlements), only if final judgment is entered in favor of Franchisor.
5.The undersigned hereby waives notice of any demand by Franchisor as well as any notice of default in the payment of any and all amounts contained or reserved in the Agreement.
6.All sums due under this guarantee shall bear interest from the date due until the date paid at the maximum contract rate permitted by law. The obligations under this guarantee include, without limitation, payment when due of any and all sums due under the Agreement and all damages to which Franchisor is or may be entitled whether under applicable law, indemnification payments and payment of any and all legal fees, courts costs and litigation expenses incurred by Franchisor in endeavoring to collect or enforce any of the foregoing against Franchisee, the undersigned, or in connection with any property securing any or all of the foregoing or this guarantee.
Exhibit 2 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Personal Guarantee of Franchise Agreement - Page 65 of 66
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
7.The undersigned agrees that one or more successive or concurrent actions may be brought on this guarantee, in the same action in which Franchisee may be sued or in separate actions, as often as deemed advisable by Franchisor. The obligations under this guarantee are joint and several, and independent of the obligations of Franchisee.
8.No election in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of Franchisor’s right to proceed in any other form of action or proceeding or against any other party. The failure of Franchisor to enforce any of the provisions of this guarantee at any time or for a period of time shall not be construed to be a waiver of any such provision or the right thereafter to enforce the same. All remedies under this guarantee shall be cumulative and shall be in addition to all rights, powers and remedies given to Franchisor by law or under any other instrument or agreement.
9.All rights, benefits and privileges under this guarantee shall inure to the benefit of and be enforceable by Franchisor and its successors and assigns and shall be binding upon the undersigned and his heirs, representatives, successors and assigns. Neither the death of the undersigned nor notice thereof to Franchisor shall terminate this guarantee as to his estate, and, notwithstanding the death of the undersigned or notice thereof to Franchisor, this guarantee shall continue in full force and effect. The provisions of this guarantee may not be waived or amended except in writing executed by the undersigned and a duly authorized representative of Franchisor.
10.The undersigned represents and warrants that (i) it is in the undersigned’s direct interest to assist Franchisee in procuring the Agreement, because Franchisee has a direct or indirect corporate or business relationship with the undersigned, (ii) this guarantee has been duly and validly authorized executed and delivered and constitutes the binding obligation of the undersigned, enforceable in accordance with its terms, and (iii) the execution and delivery of this guarantee does not violate (with or without the giving of notice, the passage of time, or both) any order, judgment, decree, instrument or agreement to which the undersigned is a party or by which it or its assets are affected or bound.
11.If any provision of this guarantee or the application thereof to any party or circumstance is held invalid, void, inoperative, or unenforceable, the remainder of this guarantee and the application of such provision to other parties or circumstances shall not be affected thereby, the provisions of this guarantee being severable in any such instance. This guarantee is the entire and only agreement between the undersigned and Franchisor respecting the guarantee of the Agreement, and all representations, warranties, agreements, or undertakings heretofore or contemporaneously made, which are not set forth in this guarantee, are superseded.
12.Any notice which a party shall be requested or shall desire to give to the other under this guarantee shall be given by personal delivery or by depositing the same in the United States mail, first class postage pre-paid, addressed to Franchisor at its address
Exhibit 2 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Personal Guarantee of Franchise Agreement - Page 66 of 66
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
set forth above and to the undersigned at its address set forth above, and such notices shall be deemed duly given on the date of personal delivery or three (3) days after the date of mailing as aforesaid. Either party may change their address for purposes of receiving notices under this guarantee by giving written notice thereof to the other party in accordance with this section.
13.This guarantee is governed by and construed according to the laws of the State of California applicable to contracts made and to be performed in such state. In order to induce Franchisor to accept this guarantee, and as a material part of the consideration therefore, the undersigned (i) agrees that all actions or proceedings relating directly or indirectly to this guarantee shall, at the option of the Franchisor, be litigated in courts located within the State of California, and (ii) consents to the jurisdiction of any such court and consents to the service of process in any such action or proceeding by personal delivery or any other method permitted by law.
The undersigned waives and relinquishes any rights it may have under California Civil Code 2845, 2849 and 2850 or otherwise to require Franchisor to (a) proceed against Franchisee or any other guarantor, pledgor or person liable under the Agreement; (b) proceed against or exhaust any security for the Franchisee or this guarantee; or (c) pursue any other remedy in Franchisor’s power whatsoever. In other words, Franchisor may proceed against the undersigned for the obligations guaranteed without first taking any action against Franchisee or any other guarantor, pledgor or person liable under the Agreement and without proceeding against any security. The undersigned shall not have, and herby waives (a) any right of subrogation, contribution, indemnity and any similar right that the undersigned may otherwise have, (b) any right to any remedy which Franchisor now has or may hereafter have against Franchisee, and (c) any benefit of any security now or hereafter held by Franchisor. The undersigned waives (a) all presentments, demands for performance, notices of non-performance, protests, notices of protests and notices of dishonor; (b) all other notices and demands to which the undersigned might be entitled, including without limitation notice of all the following: the acceptance hereof; any adverse change in Franchisee’s financial position; any other fact which might increase the undersigned’s risk; any default, partial payment or non-payment under the Franchisee and any changes, modifications, or extensions thereof; and any revocation, modification or release of any guarantee of any or all of the Agreement by any person (including without limitation any other person signing this guarantee): (c) any defense arising by reason of any failure of Franchisor to obtain, perfect, maintain or keep in force any security interest in any property of Franchisee or any other person; (d) any defense based upon or arising out of any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against Franchisee or any other guarantor or any person liable under the Agreement.
Without limiting the generality of the foregoing or any other provision of this guarantee, the undersigned expressly waives any and all benefits which might otherwise be available to it under California Civil Code 2839 (which provides that a surety is exonerated by the performance or the offer of performance of the principal obligation), 2899 (which provides for the order of resort to different funds held by the creditor) and 3433 (which provides for
Exhibit 2 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Personal Guarantee of Franchise Agreement - Page 67 of 66
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
the right of a creditor to require that another creditor entitled to resort to several sources of payments first resort to sources not available to the first creditor). The undersigned waives the rights and benefits under California Civil Code 2819 and agrees that by doing so its liability shall continue even if Franchisor alters any obligations under the Agreement in any respect or Franchisor’s rights or remedies against Franchisee are in any way impaired or suspended without the undersigned’s consent. Franchisor may without notice assign this guarantee in whole or in part.
14.The undersigned has had the opportunity to review this guarantee with its counsel and such counsel has explained to it the meaning and significance of the provisions of this guarantee, including but not limited to the waivers and consents contained in this guarantee, and answered any questions that it had regarding the meaning, significance and effect of the provisions of this guarantee.
15.This guarantee of the Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. A signature on this guarantee of the Agreement transmitted via facsimile or electronic mail/PDF or equivalent, electronic signature (such as DocuSign or equivalent), shall be considered an original for all purposes hereunder.
The use of the singular herein shall include the plural. The obligations of two or more parties shall be joint and several. The terms and provisions of this guarantee of the Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties herein named.
IN WITNESS WHEREOF, the undersigned executed this guarantee on the date(s) set forth below.
| |
By: | |
Name: | |
Title: | An individual |
Date: | |
Exhibit 2 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Personal Guarantee of Franchise Agreement - Page 68 of 66
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 3: INVESTOR COVENANTS REGARDING CONFIDENTIALITY AND NON-COMPETITION
Statement of Ownership of Franchisee:
Name of Principal/Investor | Percentage of Ownership Interest |
| |
| |
| |
In conjunction with your investment in __________ a ____________("Franchisee") you (Investor" or "you"), acknowledge and agree as follows:
Exhibit 3 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Investor Covenants Regarding Confidentiality and Non-Competition - Page 69 of 69
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 3 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Investor Covenants Regarding Confidentiality and Non-Competition - Page 70 of 69
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement on the date(s) set forth below.
INVESTOR:
If an Individual:
By: | | | By: | |
Name: | | | Name: | |
Title: | An individual | | Title: | An individual |
Date: | | | Date: | |
If a corporation, partnership, limited liability company or other legal entity:
_______________________________, a ___________________________ | |||
| | ||
By: | | ||
Name: | | ||
Title: | | ||
Date: | | ||
| | ||
By: | | ||
Name: | | ||
Title: | | ||
Date: | |
OWNERS:
By: | | | By: | |
Name: | | | Name: | |
Title: | An individual | | Title: | An individual |
Date: | | | Date: | |
Exhibit 3 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Investor Covenants Regarding Confidentiality and Non-Competition - Page 71 of 69
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 4: AUTHORIZATION AGREEMENT FOR PREARRANGED PAYMENTS (ACH)
On _____________,_______ and going forth, the undersigned depositor (“Depositor”) hereby authorizes El Pollo Loco, Inc. (“El Pollo Loco”) to initiate debit entries and/or credit correction entries to the Depositor’s checking and/or savings account(s) indicated below and the depository (“Depository”) to debit such account pursuant to El Pollo Loco’s instructions (“Authorization”).
Depository: | Branch: | |
Street Address, City, State, Zip Code: | ||
Bank Transit/ABA Number: | Account Number: |
This authority is to remain in full force and effect until Depository has received joint written notification from El Pollo Loco® and Depositor of the Depositor’s termination of such authority in such time and in such manner as to afford Depository a reasonable opportunity to act on it. Notwithstanding the foregoing, Depository shall provide El Pollo Loco® and Depositor with thirty (30) days’ prior written notice of the termination of this authority. If an erroneous debit entry is initiated to Depositor’s account, Depositor shall have the right to have the amount of such entry credited to such account by Depository, if within fifteen (15) calendar days following the date on which Depository sent to Depositor a statement of account or a written notice pertaining to such entry or forty five (45) days after posting, whichever occurs first, Depositor shall have sent to Depository a written notice identifying such entry, stating that such entry was in error and requesting Depository to credit the amount thereof to such account. These rights are in addition to any rights Depositor may have under federal and state banking laws.
This Authorization may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. A signature on this Authorization transmitted via facsimile or electronic mail/PDF or equivalent, electronic signature (such as DocuSign, or equivalent) shall be considered an original for all purposes hereunder.
Depositor: ________________________, a _______________ | ||||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
ATTACH VOID CHECK
Exhibit 4 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Authorization Agreement for Prearranged Payments (ACH) - Page 72 of 70
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 5: ADVERTISING ASSOCIATION DOCUMENTS
ADVERTISING ASSOCIATION MEMBERSHIP AGREEMENT
THE [NAME OF AREA] EL POLLO LOCO® RESTAURANT ADVERTISING ASSOCIATION
MEMBERSHIP AGREEMENT
THIS [NAME OF AREA] EL POLLO LOCO® RESTAURANT ADVERTISING ASSOCIATION MEMBERSHIP AGREEMENT is effective as of _____________________, 20___, by and between the [NAME OF AREA] EL POLLO LOCO® RESTAURANT ADVERTISING ASSOCIATION, INC. a ______________ Nonprofit Corporation [the “Association”] and ________________________________, a________________(the “Member”).
BACKGROUND INFORMATION:
EL POLLO LOCO, INC. (the “Franchisor”) owns, operates and franchises quick service restaurants which specialize in the sale of retail marinated ________ grilled chicken and Mexican food items related to the El Pollo Loco® concept (“Restaurants”). The Member owns and operates one or more Restaurants within the ____________________________[described geographic area]____________________ (the “Association Area”). The Association was organized by the Franchisor and its franchisees that own Restaurants in the Association Area in order to pool advertising funds.
OPERATIVE TERMS:
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 73 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
In the event this Agreement terminates pursuant to Section 6(b), the Member’s voting and other membership rights in the Association automatically terminate on the effective date of termination of the Franchise Agreement (or closure of the Restaurant, if the Franchisor or its affiliate is the Member), provided however, if the Member owes contributions at the time of such termination (or closure), then it will still be obligated and responsible for all contributions that accrued prior to the date of such termination (or closure).
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 74 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 75 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
[NAME OF AREA] EL POLLO LOCO® RESTAURANT
By:
Name:
Title:
Date:
ADVERTISING ASSOCIATION, INC.
[Name of Member]
By:
Name:
Title:
Date:
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 76 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
BYLAWS OF _____[NAME OF AREA]_____EL POLLO LOCO® RESTAURANT ADVERTISING ASSOCIATION, INC.
Adopted as of _______________, 20___
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 77 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
TABLE OF CONTENTS
ARTICLE
ARTICLE 1 OFFICES
SECTION 1.1 | REGISTERED AND PRINCIPAL OFFICE |
SECTION 1.2 | OTHER OFFICES |
SECTION 1.3 | REGISTERED AGENT FOR SERVICE OF PROCESS |
ARTICLE 2 POWERS AND PURPOSE
SECTION 2.1 | POWERS |
SECTION 2.2 | PURPOSES |
SECTION 2.3 | USE OF TRADEMARKS |
ARTICLE 3 MEMBERS
SECTION 3.1MEMBERS
SECTION 3.2ENROLLMENT
SECTION 3.3ENTITY MEMBERSHIP
SECTION 3.4MEMBERS IN GOOD STANDING
SECTION 3.5ANNUAL AND QUARTERLY MEETINGS OF THE MEMBERS
SECTION 3.6SPECIAL MEETINGS
SECTION 3.7PLACE OF MEETING
SECTION 3.8NOTICE OF MEETINGS
SECTION 3.10CLOSURE OF BOOKS AND FIXING OF RECORD DATE
SECTION 3.11QUORUM
SECTION 3.12VOTING
SECTION 3.13REPRESENTATIVES
SECTION 3.14ACTION WITHOUT MEETING
SECTION 3.15ORGANIZATION
SECTION 3.16MEMBER MEETINGS BY TELEPHONE
ARTICLE 4 DIRECTORS
SECTION 4.1 | NUMBER |
SECTION 4.2 | VACANCIES |
SECTION 4.3 | REMOVAL OF DIRECTORS |
SECTION 4.4 | QUALIFICATION |
SECTION 4.5 | TERMS |
SECTION 4.6 | RESIGNATION |
SECTION 4.7 | POWERS |
SECTION 4.8 | MEETINGS |
SECTION 4.9 | NOTICE OF SPECIAL MEETING |
SECTION 4.10 | ACTION WITHOUT A MEETING |
SECTION 4.11 | QUORUM AND VOTING |
SECTION 4.12 | ORGANIZATION |
SECTION 4.13 | COMPENSATION |
SECTION 4.14 | ATTENDANCE BY TELEPHONE |
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 78 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
ARTICLE 5 OFFICERS
SECTION 5.1 | OFFICES |
SECTION 5.2 | TERM OF OFFICE; VACANCIES |
SECTION 5.3 | REMOVAL OF OFFICERS |
SECTION 5.4 | RESIGNATIONS |
SECTION 5.5 | COMPENSATION |
SECTION 5.6 | REFUND OF PAYMENT |
SECTION 5.7 | POWERS AND DUTIES |
SECTION 5.8 | DELEGATION OF DUTIES |
ARTICLE 6 CONTRIBUTIONS
SECTION 6.1 | CONTRIBUTIONS |
SECTION 6.2 | PAYMENT OF CONTRIBUTIONS |
SESTION 6.3 | PAYMENT IN PAYMENTS |
ARTICLE 7 NOTICES
SECTION 7.1 | RECORDING |
SECTION 7.2 | WAIVER |
ARTICLE 8 DESIGNATED FINANCIAL AGENTS, SIGNATURES AND SEAL
SECTION 8.1 | DESIGNATED FINANCIAL AGENTS |
SECTION 8.2 | OTHER AGREEMENTS |
ARTICLE 9 AMENDMENTS OF BYLAWS
ARTICLE 10 INDEMNIFICATION
SECTION 10.1 | INDEMNIFICATION IN PROCEEDINGS OTHER THAN ACTIONS BY, OR IN THE RIGHT OF THE CORPORATION |
SECTION 10.2 | INDEMNIFICATION OF PERSONS PARTIES TO A PROCEEDING BY OR IN THE RIGHT OF CORPORATION |
SECTION 10.3 | MANDATORY INDEMNIFICATION |
SECTION 10.4 | AUTHORIZATION OF INDEMNIFICATION IS REQUIRED |
SECTION 10.5 | ADDITIONAL CONDITIONS TO INDEMNIFICATION |
SECTION 10.6 | PREPAYMENT OF EXPENSES |
SECTION 10.7 | INDEMNIFICATION DISALLOWED IN CERTAIN CIRCUMSTANCES |
SECTION 10.8 | NONEXCLUSIVITY |
ARTICLE 11 GENERAL PROVISIONS
SECTION 11.1 | FISCAL YEAR |
SECTION 11.2 | GENDER AND NUMBER |
SECTION 11.3 | ARTICLES AND OTHER HEADINGS |
SECTION 11.4 | MINUTES, BOOKS AND RECORDS OF ACCOUNT |
SECTION 11.5 | STATUTORY CITES |
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 79 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
BYLAWS OF _______[NAME OF AREA]_______EL POLLO LOCO® RESTAURANT ADVERTISING ASSOCIATION, INC.
ARTICLE 1 - Officers
Section 1.1 - Registered and Principal Office. The initial registered office of the _______ ______ [NAME OF AREA] El Pollo Loco® restaurant Advertising Association, Inc. (the “Corporation”) will be located at _________________________. The initial principal office of the Corporation will be located at __________________________________.
Section 1.2 - Other Offices. The Corporation may have offices at such other place or places within or without the State of Delaware as the Board of Directors may from time to tie establish.
Section 1.3 - Registered Agent for Service of Process. The Corporation’s Board of Directors will have the right to designate a registered agent for service of process, who may be an individual or a corporation. The registered agent so designated will serve until a successor is elected by the Board of Directors.
ARTICLE 2 - Powers and Purposes
Section 2.1 - Powers. The Corporation will have all of the powers accorded nonprofit corporations under the Missouri Nonprofit Corporation Act (the “Act”). The Corporation will utilize such powers to engage in any lawful activity which is consistent with its purposes as set forth in the Articles of Incorporation.
Section 2.2 - Purposes. The purposes for which the Corporation is formed are to establish, maintain, administer and operate a promotional and advertising fund (the “Fund”) for the benefit of the El Pollo Loco® restaurants (“EPL’s”) of its members located in _____________[describe geographic area]_______________ (the “Association Area”) and to further any and all purposes consistent with the objectives of the Corporation.
Section 2.3 - Use of Trademarks. The Corporation recognizes that its activities will necessarily involve advertising and promotional programs that contain the intellectual property rights, including copyrights, trademarks, service marks, logos, and designs derived from El Pollo Loco, Inc. (the “Franchisor”). As such, the Corporation has entered into, or will enter into, the [NAME OF AREA] ______El Pollo Loco® restaurant Advertising Association Authorization Agreement.
ARTICLE 3 - Members
Section 3.1 - Members. The members will consist of (a) owners of franchised Restaurants located in the Association Area operating under valid and effective Franchise Agreements with Franchisor; and (b) the Franchisor or any of its affiliates, to the extent that it or any of its affiliates owns or operates any Restaurants located within the Association Area.
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 80 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Any Franchisee who ceases to be a party to any valid and effective Franchise Agreement with the Franchisor for a El Pollo Loco® restaurant located in the Association Area, whether due to transfer, expiration or termination, will automatically cease to be a member of the Corporation, but will continue to remain liable to the Corporation for past due unpaid contributions or other amounts payable to the Corporation at the time membership ceases. However, if a Franchisee operates under multiple Franchise Agreements and ceases to be bound by one or more Franchise Agreements, whether due to transfer, expiration or termination, but continues to be bound by other Franchise Agreements for Restaurants located in the Association Area, the Franchisee shall continue to be a member, but its voting rights shall be reduced to reflect the number of remaining Restaurants that the Franchisee owns in the Association Area. Likewise, to the extent the Franchisor or an affiliate of Franchisor owns or operates one or more Bakery Cafes in the Association Area and has been a member of the Corporation and ceases to own or operate any such Restaurants in the Association Area, then its membership with respect to such Restaurants will automatically terminate.
In accordance with the terms of the ________[NAME OF AREA]_________El Pollo Loco® restaurant Advertising Association Authorization Agreement, a representative of Franchisor shall be entitled to notice of all regular and special meetings of the Members of the corporation and shall have the right to attend all meetings, either in person or in any other manner of attendance authorized in these Bylaws. However, unless the Franchisor is a Member of the Corporation by virtue to vote at a meeting of the Members in accordance with Section 3.12 of these Bylaws.
Section 3.2 – Enrollment. Notwithstanding any of the foregoing, no person will be enrolled as a Member of the Corporation nor will it have any rights as a Member unless and until it has signed a Membership Agreement with the Corporation. Notwithstanding the foregoing, Members shall be required to make contributions as required by their Franchise Agreements, regardless of whether they have signed Membership Agreements.
Section 3.3 - Entity Membership. For all membership purposes, any business entity (corporation, partnership, limited liability company, etc.), together with its owners, is deemed a single Member.
Section 3.4 - Members in Good Standing. A Member will be in good standing as long as: (a) the Member is not delinquent in the payment of any contribution or other monetary obligation to the Corporation; and (b) Member shall not have received a notice of default from Franchisor with respect to one or more Restaurants located in the Association Area which default remains uncured to the satisfaction of Franchisor. Loss of good standing will not relieve the Member of the obligation to make contributions, when due.
Section 3.5 - Annual and Quarterly Meetings of the Members. The annual meeting of the Members shall be held for the election of directors, consideration and approval of the succeeding year’s advertising budget and the transaction of such other business as may properly come before the meeting. The annual meeting will be held at such time
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 81 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
within the first quarter of the Corporation’s fiscal year as the Board of Directors may determine. Quarterly meetings of the Members shall be held for consideration and approval of advertising and promotional programs and the transaction of such other business as may properly come before the meeting. In addition, at the final quarterly meeting of the fiscal year, the Members shall consider and approve the level(s) of Member contributions for the succeeding fiscal year. Quarterly meetings will be held at times within the second, third and fourth quarters of the Corporation’s fiscal year as the Board of Directors may determine.
The notice of annual or quarterly meetings of Members, except as otherwise required by law, need not state the matters to be considered at such meetings.
Section 3.6 - Special Meetings. Special meetings of the Members, for any purpose or purposes, unless otherwise prescribed by applicable law, may be called on the written request of (i) a majority of the Board of Directors, or (ii) Members constituting 25% of the voting rights of the Members in good standing, or (iii) Franchisor. Requests for a special meeting must state the purpose or purposes of the proposed meeting. The notice of any special meeting of the Members must state the purpose or purposes for which the meeting is called.
Section 3.7 - Place of Meeting. All meetings of the Members will be at such places as will be determined from time to time by the Board of Directors of the Corporation.
Section 3.8 - Notice of Meetings. Written notice of each meeting of the Members stating the Place, day and hour thereof, must be delivered to each Member of record entitled to vote at such meeting, personally or by telephone, telegram, cablegram, e-mail, first class mail, confirmed facsimile transmission or any other means of personal delivery providing evidence of actual delivery; and if mailed, the notice shall be deemed to be given when deposited in the United States mail addressed to the Members at the Members’ addresses, as they appear in the records of the Corporation, with postage thereon prepaid. Notice must be given by or under the direction of the Secretary, or the officer or persons calling the meeting not more than sixty (60) not less than ten (10) days before the date of the meeting; provided that oral notice to the Member may be given in lieu of written notice so long as the party giving the notice to the Member files with the Corporation a written statement of the date, time, place and manner of the oral notice. No notice need be given of the time and place of reconvening of any adjourned meeting, if the time and place to which the meeting is adjourned are announced at the adjourned meeting.
Section 3.9 - Waiver of Notice. A written waiver of notice signed by any Member, whether before or after any meeting, shall be equivalent to the giving of timely notice to said Member. Attendance of a Member at a meeting shall constitute a waiver of notice of such meeting and waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when a Member attends a meeting for the express purpose, as stated at the beginning of the meeting, of objecting to the transaction of business because the meeting is not lawfully called or convened. Neither the business to be transacted at, not the purpose of, any
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 82 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
meeting of the Member need be specified in any written waiver of notice.
Section 3.10 - Closure of Books and Fixing of Record Date. For the purpose of determining Members entitled to notice of, or to vote at, any meeting of the Members or any adjournment thereof, the Board of Directors may provide that the books will be closed for a period of not less than three (3) and not more than thirty (30) days immediately preceding such meeting. If the books are not closed and no record date is fixed by the Board of Directors, the date on which notice of the meeting is mailed will be the record date for the determination of Members entitled to notice and to vote.
Section 3.11 – Quorum. Except as otherwise required by the Act, the Articles of Incorporation or these Bylaws, the presence of Members holding a majority of the votes will constitute a quorum at all meetings of the Members. In case a quorum is not present at any meeting, a majority of the Members present will have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place to which the meeting is adjourned, until a quorum is present. At any such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those Members entitled to vote at the meeting as originally noticed will be entitled to vote at any adjournment or adjournments thereof.
Section 3.12 – Voting. Each Member will be entitled at each Members’ meeting and upon each matter presented at such meeting to one vote for each El Pollo Loco® restaurant located in the Association Area that the Member owns, or, in the case of Franchisor, owns or operates. Notwithstanding the fixing of the record date in Section 3.10, Members may only participate in and vote at meetings subject to being in good standing, in accordance with the Bylaws, both on the record date and at the time of the meeting. Furthermore, in the event that a meeting is postponed or continue, a Member must be in good standing at the time the meeting is reconvened in order to participate and vote at the meeting.
Any Member who is not in good standing pursuant to Section 3.4(a) hereof shall have all rights and privileges of membership (including the right to vote and participate as a Member, director or officer in any meeting) suspended. Any Member who is not in good standing pursuant to Section 3.4(b) hereof shall have its right to vote (but not its right to participate) suspended at any meeting of the members or the board of directors of the Corporation. Any dispute regarding the good standing of a Member and its right to vote at a membership meeting will be determined conclusively by the Chairman of the meeting, in conjunction with the representative of the Franchisor present at the meeting, which determination will be final and binding. Any such suspension shall continue until the Member is in good standing again.
The list of Members must be produced at any Member’s meeting upon the request of any Member. Upon the demand of any Member, the note upon any question before the meeting must be by written ballot. Except as otherwise provided by these bylaws, by the Act, or by the Articles of Incorporation, all matters will be decided by a majority of the votes of Members present at the meeting. There is no cumulative voting for directors or
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 83 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
on any other matter.
Section 3.13 – Representatives. If a Member is a corporation, limited liability company, partnership or other business entity, the Member will duly authorize one (1) person to represent its interests at Association meetings (the “Representative”). The Representative must be a: (i) shareholder, partner, member (in case of an LLC), director or officer of the Member; or (ii) the Member’s Operating Partner, as defined in the Member’s Franchise Agreement; or (iii) in the event the Member is Franchisor or one of its affiliates, an officer or other designated representative of Franchisor or its affiliate. The Corporation shall be entitled to rely on any written authorization appointing the Representative that the Corporation in good faith believes to be valid unless and until the Corporation shall have received an authorization for a successor Representative that the Corporation in good faith believes to be valid. The Corporation shall be entitled to rely on the Representative’s decisions, votes and consents to bind the Member at any such meeting without any further inquiry. The same person can be a Representative for more than one (1) Member.
Section 3.14 - Action Without Meeting. Any action of the Members of the Corporation may be taken without a meeting, without prior notice and without a vote, if one or more consents in writing, setting forth the action so taken, are signed by the Members having not less than two-thirds (2/3) of the votes that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and voted. Such consents must be delivered to the Corporation in the manner required by the Act. Neither the Articles of Incorporation nor these Bylaws will be construed, interpreted or deemed to have, in any way, limited or prevented the utilization of the ability to take written action in lieu of formal meetings as may be permitted by the Act.
Section 3.15 – Organization. Meeting of the Members must be presided over by the President, or if he is not present, by the Vice President, if a Vice President has been elected, or if neither the President not the Vice President is present, then by a chairman to be chosen by a majority of the Members entitled to vote who are present in person at the meeting. The Secretary of the Corporation, or in his absence, the Assistant Secretary, will act as secretary of every meeting, but if neither is present, the Members entitled to vote who are present in person may choose any person present to act as secretary of the meeting.
At all meetings of the Members the order of business will be as follows:
(1) | Calling meeting to order. |
(2) | Proof of notice of meeting and determination of quorum. |
(3) | Reading and disposing of minutes of previous meeting. |
(4) | Announcement of purposes for the meeting. |
(5) | Reports of officers. |
(6) | Unfinished business. |
(7) | New business, including election of directors if an annual meeting. |
(8) | Adjournment. |
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 84 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Section 3.16 - Member Meetings by Telephone. Any Member may participate in a Members’ meeting or may conduct a Members’ meeting through the use of, any means of communication enabling all persons participating in the meeting to hear each other at the same time during the meeting. Participating by such means will constitute presence in person at a meeting.
ARTICLE 4 - Directors
Section 4.1 – Number. There will be at least three (3) directors on the Board. From time to time, the exact number of directors may be determined by vote of the Members at any time, but never less than three (3) and never an amount less than as otherwise required by the Act.
Section 4.2 – Vacancies. Whenever a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors or the removal of one (1) or more directors, it may be filled by the affirmative vote of a majority of the remaining directors even if the remaining directors constitute less than a quorum.
Section 4.3 - Removal of Directors. Any director may be removed with or without cause by vote of a majority of the Members at a membership meeting, or by written action in lieu of meeting signed by the Members having not less than two-thirds (2/3) of the votes that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present an voted.
Section 4.4 – Qualification. Each director must be either a Member (if the Member is an individual) or the Member’s Representative. If there are less than three (3) Members at any time, then the franchisor, through Franchisor’s representative designated as its “Member’s Representative”, shall have the right to designate two (2) directors one of which shall be the Member’s Representative and the other shall be an officer of Franchisor. However, any director serving on the Board of Directors will be automatically suspended at any time during which he or she, or the business organization for which he or she is the Representative, is not in good standing. In addition, directors will be automatically removed as directors if, at any time, the Member with which they are associated is expelled from membership or is no longer a franchise of the Franchisor either because the Franchise Agreement has expired, or it has been terminated or transferred.
Section 4.5 – Terms. Directors will hold office until their respective successors are duly elected and qualified or until there is a decrease in the number of directors.
Section 4.6 – Resignation. Any director may resign at any time. Such resignation will be made in writing and will take effect upon its delivery to the President or the Board of Directors or its Chairman.
Section 4.7 – Powers. Except for those rights reserved to the Members under these bylaws, the business of the Corporation will be managed by its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not prohibited by the Act, by the Articles of Incorporation or by these Bylaws. The
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 85 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Board of Directors will determine the compensation, if any, to be paid to each officer and director of the Corporation, including those officers who may also be directors.
Section 4.8 – Meetings. The Board of Directors of the Corporation may hold meetings, whether annual or special, either within or without the State of Missouri, The annual meeting of the Board of Directors for the purpose of electing officers and transacting such other business as may be brought before the meeting will be held at such time and place as the Board of Directors may determine. The Board of Directors may by resolution provide for the time and place of other regular meetings, and no notice of such regular meetings need to be given.
All other meetings of the Board may be called on the written request of (i) any director or (ii) Members with 25% of the voting rights of Members in good standing, at such time and place as may be stated in such request.
In accordance with the terms of the ___[NAME OF AREA]_ El Pollo Loco® restaurant Advertising Association Authorization Agreement, a representative of Franchisor shall be entitled to notice of all regular an special meetings of the Board of Directors of the Corporation and shall have the right to attend all meetings, either in person or in any other manner of attendance authorized in these Bylaws. However, unless the Franchisor is a Director of the Corporation, the Franchisor representative shall have no right to participate in any action of the Board of Directors in accordance with Sections 4.10 and 4.11 of these Bylaws.
Section 4.9 - Notice of Special Meetings. Written notice of the place, day and hour of any special meeting of the Board of Directors must be given by or under direction of the Secretary, to each director at least two (2) days before the meeting; provided, however, that oral notice may be given to directors in lieu of written notice so long as the party giving the notice to the directors files with the Corporation a written statement of the date, time, place and manner of the oral notices. Neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors, need be stated in the notice or waiver of notice of such meeting.
Section 4.10 - Action Without a Meeting. Any action required to be taken, or which may be taken, at a meeting of the Board of Directors may be taken without a meeting, if a consent in writing, setting forth the action so to be taken, is signed by all of the directors entitled to vote. Such consent will have the same effect as a unanimous vote.
Section 4.11 - Quorum and Voting. At all meetings of the Board, a majority of the directors then in office will constitute a quorum for the transaction of business. The act of a majority of directors present at a meeting where a quorum is present will be the act of the Board of Directors, except as may be otherwise specifically provided by law, the Articles of Incorporation or these Bylaws. If at any meeting of the Board of Directors there is less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time and place to place until a quorum will have been obtained.
Section 4.12 – Organization. The President of the Corporation will act as Chairman and
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 86 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
the Secretary will act as Secretary at all meetings of the Board.
Section 4.13 – Compensation. Directors must not receive any stated salary for their services as directors or as members of committees, but by resolution of the Board a fixed fee and /or expenses of attendance may be allowed for attendance at each meeting.
Section 4.14 - Attendance by Telephone. Any member or members of the Board of Directors will be deemed present and voting at a meeting of the Board if said member or members participate in the meeting by means of a conference telephone or other communications equipment enabling all persons participating in the meeting to hear other at the same time. Participation by such means will constitute presence in person at a meeting.
ARTICLE 5 - Officers
Section 5.1 – Officers. The officers of this Corporation will consist of a President, a Secretary and a Treasurer, and may consist of such other officers, including but not limited to one (1) or more Vice Presidents, Assistant Secretaries and Assistant Treasurers with such titles, powers and duties as may be prescribed from time to time by the Board of Directors. They will be elected by the Board of Directors at its annual meeting.
Section 5.2 - Term of Office; Vacancies. Each officer shall hold office for one (1) year and until such officer’s successor is duly elected and qualified. A vacancy in any office arising from any cause may be filled for the unexpired portion of the term by the Board of Directors.
Section 5.3 - Removal of Officers. Any officer may be removed at any time with or without cause by action of the Board of Directors by the affirmative vote of a majority of the directors then in office. Election or appointment of an officer will not of itself create contract rights.
Section 5.4 – Resignations. An officer may resign at any time by delivering notice to the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. If a resignation is made effective at a later date and the Corporation accepts the future effective date, the Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date of the pending vacancy.
Section 5.5 – Compensation. No compensation will be paid to any officer of the Corporation, except the Board of Directors may determine a fixed fee or other reimbursement for expenses.
Section 5.6 - Refund of Payment. In the event that the Internal Revenue Service disallows, in whole or in part, the deduction by the Corporation as an ordinary and necessary business expense of any payment made to an officer of the Corporation, whether as salary, commission, bonus or other form of compensation or as interest, rent or reimbursement of expenses incurred by such officer, such officer must reimburse the Corporation to the full extent of such disallowance. The Board of Directors of the
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 87 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Corporation will have the duty to require each such officer to make such reimbursement, and it will be the legal duty of each such officer thus to reimburse the Corporation.
Section 5.7 - Powers and Duties.
A.In General. The officers of the Corporation will have such powers and duties as generally pertain to their respective offices, including the powers and duties provided by these Bylaws, as well as such powers and duties as from time to time may be conferred by the Board of Directors.
B.President. The President will:
(1) preside at all meetings of the Board of Directors in the absence of the Chairman of the Board, if any;
(2) present at each annual meeting of the directors a report of the condition of the business of the Corporation;
(3) cause to be called regular and special meetings of the directors in accordance with these Bylaws;
(4) jointly with the Treasurer, sign and make contracts and agreements in the name of the Corporation;
(5) see that the books, reports, statements and certificates required by statute are properly kept and filed according to law;
(6) jointly with the Treasurer, sign notes, drafts or bills of exchange, warrants or other orders for the payment of money duly drawn on behalf of the Corporation;
(7) supervise all employees of the Corporation including the hiring and firing of such employees as he or she deems advisable;
(8) jointly with the Treasurer, purchase on behalf of the Corporation, tangible or intangible assets; and
(9) have general charge of and control over the affairs of the Corporation and perform the entire duties incident to such position and office, the enforcement of these Bylaws and all other things which the President is required to do by law.
C. Vice President. The Vice President, if any will;
(1) in the absence or disability of the President, perform the duties and exercise the powers of the President;
(2) perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
D. Secretary. The Secretary will:
(1) prepare the minutes of the meetings of the Board of Directors and keep the minutes in appropriate permanent books of record;
(2) give and serve all notices of the Corporation;
(3) be the custodian of the records and of the seal, and affix the latter when required, and authenticate records of the Corporation when required; and
(4) attend to all correspondence and perform all the duties incident to the
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 88 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
office of the Secretary.
E. Treasurer. The Treasurer will:
(1) keep accounts of and have the care and custody of and responsible for all the funds and securities of the Corporation;
(2) deposit all such funds in the name of the Corporation in such back or banks, trust company or trust companies, or safe deposit vaults as the Board of Directors may designate;
(3) exhibit, at times required by law or these Bylaws, the corporate financial books and accounts to any director upon application at the office of the Corporation during business hours;
(4) render a statement of the condition of the finances of the Corporation (at each regular meeting of the Board of Directors, and at such other times as it will be required of the Treasurer) and a full financial report at the annual meeting of the directors;
(5) keep at the office of the Corporation current books of account of all its business transactions and such other books of account that the Board of Directors may require;
(6) jointly with the President, sign and make contracts and agreements in the name of the Corporation;
(7) jointly with the President, sign notes, drafts or bills of exchange, warrants or other orders for the payment of money duly drawn on behalf of the Corporation;
(8) jointly with the President, purchase on behalf of the corporation, tangible or intangible assets, and
(9) do and perform all other duties pertaining to the office of the Treasurer.
F. Assistant Secretary and Assistant Treasurer. The Assistant Secretary or Assistant Secretaries and the Assistant Treasurer will, in the absence or disability of the Secretary, or Treasurer, respectively, perform the duties of such officer and generally assist, in the case of an Assistant Secretary, the Secretary, or an Assistant Treasurer, the Treasurer.
Section 5.8 - Delegation of Duties. In the case of the absence or disability of any officer of the Corporation or for any other reason deemed sufficient by a majority of the Board, the Board of Directors may delegate such officer’s respective powers or duties to any other officer or to any director or agent of the Corporation for a specified period or until said delegation is revoked by the Board of Directors, provided that such delegation is otherwise permitted by law and by the Articles of Incorporation and these Bylaws.
ARTICLE 6 - Contributions
Section 6.1 – Contributions. The Members will determine at the final quarterly Member meeting of the fiscal year the amount of contributions to be paid to the Corporation by its Members during the succeeding fiscal year. The amount of the contributions will generally be a percentage of Gross Sales, as defined in the most recent Disclosure
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 89 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Document issued by the Franchisors, uniform among Members on a per El Pollo Loco® restaurant basis. The Members may, subject to Franchisor’s approval, vary the level of benefits and/or contributions for any El Pollo Loco® restaurant that is located in a geographical area in which broadcast coverage is less than eighty-five percent (85%), according to the most recent A.C. Nielsen or Arbitron coverage study, in order to achieve approximate equivalence in contributions and benefits of Members. If any Restaurants of a Member are located in geographical areas covered, according to the most recent A.C. Nielsen or Arbitron coverage study, by more than one regional advertising association, the variation in benefits and/or contribution may be coordinated with such other regional advertising association.
Section 6.2 Payment of Contributions
Subject to the terms of the ________[NAME OF AREA] El Pollo Loco® restaurant Advertising Association Authorization Agreement, the Board of Directors will set the dates and method of payment for contributions. However, Members will not have to pay their contributions for new Restaurants until after their El Pollo Loco® restaurant have opened for business.
Section 6.3 - Default in Payments. The Board of Directors will establish policies and procedures for dealing with situations in which Members have not timely paid contributions. The Board of Directors may set interest rates and fees to offset administrative expenses, collection costs, etc. for delinquent payments.
ARTICLE 7- Notices
Section 7.1 – Recording. Whenever these Bylaws require notice to be given to Members, directors, or committee members, proof of such notice whether given by mail, e-mail, telecopy, telephone, telegraph, cablegram or by personal contact will be recorded and filed by the Secretary in the minute book and incorporated into the minutes for the meeting to which such notice pertains.
Section 7.2 – Waiver. Whenever any notice of a meeting is required to be given under the provisions of the Act, of the Articles of Incorporation, or of these bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice either before, at, or after the meeting, will be deemed equivalent to such required notice. Attendance of a person entitled to notice at a meeting will also constitute a waiver of notice of such meeting; provided, however, that such attendance will not constitute such a waiver if said person attends said meeting solely for the purpose of, and limits his participation at the meeting to, objecting to the transaction of any business because the meeting is not lawfully called or convened and states such objection at the beginning of the meeting.
ARTICLE 8 - Designated Financial Agents, Signatures and Seal
Section 8.1 - Designated Financial Agents. All funds of the Corporation will be deposited in the name of the Corporation in such bank or other financial institutions as the Board of Directors may from time to time designate and will be drawn out on checks, drafts or other order signed on behalf of the Corporation by such person or persons as
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 90 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
the Board of Directors may from time to time designate.
Section 8.2 - Other Agreements. Except as otherwise specifically provided by these Bylaws, all contacts, agreements, deeds, bonds, mortgages and other obligations and instruments must be signed on behalf of the Corporation by the President and Treasurer or by such other officers or agents as the Board of Directors may from time to time by resolution provide.
ARTICLE 9 - Amendments of Bylaws
The Bylaws may be altered, amended or repealed only by the Members at a meeting of Members, provided that the notice of the meeting contains a written proposal to amend these Bylaws along with the text of the amendments, and subject to the prior written approval of Franchisor in accordance with the _______[NAME OF AREA]________El Pollo Loco® restaurant Advertising Association Authorization Agreement. Nevertheless, the amendment of any Bylaw or replacement of these Bylaws will not be effective unless it has been approved by a voting requirement that is in excess of the voting requirement that it is replacing. In other words, voting requirement specifying approval by two-thirds (2/3) can only be changed by a vote of at least that number.
ARTICLE 10 - Indemnification
Section 10.1 - Indemnification in Proceedings Other Than Actions by, or in the Right of, the Corporation. The Corporation will indemnify any person who was or is a party to any proceedings (other than an action by, or in the right of, the Corporation), by reason of the fact that he or she is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, committee member, officer, employee or agent of another corporation, partnership, joint venture, trust, or other enterprise against liability incurred in connection with such proceeding, including any appeal thereof, if the indemnitee acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 10.2 - Indemnification of Persons Parties to a Proceeding by or in the Right of the Corporation. The Corporation will indemnify any person who was or is a party to any proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as the director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses and amounts paid in settlement not exceeding, in the judgment of the Board of Directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification may be authorized if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation. Provided, however, that no indemnification may be made hereunder in respect of any claim, issue,
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 91 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
or matter as to which such person has been adjudged to be liable, unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, determines upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court deems proper.
Section 10.3 - Mandatory Indemnification. To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any proceeding referred to in Sections 10.0 and 10.2 above, or in defense of any claim, issue or matter therein, he or she must be indemnified against expenses actually and reasonably incurred by him or her in connection therewith.
Section 10.4 - Authorized of Indemnification is Required. Any indemnification under Sections 10.1 and 10.2, unless pursuant to a determination by a court, may be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 10.1 or 10.2. Such determination must be made pursuant to any procedures outlined by the Act, if any.
Section 10.5 - Additional Conditions to Indemnification. The Board, by a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding to which the indemnification relates, may impose such additional conditions upon any form of indemnification as the Board may deem appropriate, including, but not limited to, the right to assume the defense in appropriate circumstances, the right to select the attorney representing the indemnified person and the right to settle.
Section 10.6 - Prepayment of Expenses. Expenses (including attorneys’ fees and expenses) incurred in defending a civil or criminal action, suit or proceeding must be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon a preliminary determination following the procedures set forth in Section 10.04 that such indemnified person meets the applicable standard of conduct referred to therein and subject to any conditions imposed by the Board pursuant to this Article and the prior receipt by the Corporation of an undertaking satisfactory in form and substance to the Corporation that such person will promptly repay such amount unless it is ultimately determined that the person is entitled to be indemnified by the Corporation as authorized in this Article 10.
Section 10.7 - Indemnification Disallowed in Certain Circumstances. The indemnification provided pursuant to this article may not be made to or on behalf of any director, officer, employee, or agent if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute:
A. a violation of the criminal law, unless the director, officer, employee or agent had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful;
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 92 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
B. a transaction from which the director, officer, employee or agent directly or indirectly derived an improper personal benefit;
C. in the case of a director, a circumstance under which the director would be liable to the Corporation under the Act; or
D. willful misconduct or a conscious disregard for the best interests of the Corporation in a proceeding by or in the right of the Corporation to procure a judgment in its favor.
Section 10.8 – Nonexclusively. The Corporation has the power to make any other or further indemnification of any of its directors, officers, members of any committee, or any other person that the Corporation has the power by law to indemnify, including without limitation, employees or agents of the Corporation, under any bylaw, agreement, vote of disinterested directors, or otherwise, both as to action in any official capacity and as to action in another capacity while holding such office, except an indemnification against gross negligence or willful misconduct. The indemnification as provided in this Article will continue as to any person who has ceased to be a director, officer, or agent and will insure to the benefit of such person’s heirs and personal representatives.
ARTICLE 11 - General Provisions
Section 11.1 - Fiscal Year. The fiscal year of the Corporation shall be either fifty-two (52) or fifty-three (53) weeks and end on the last Saturday in December of each year.
Section 11.2 - Gender and Number. Whenever the context requires, the gender of all words used herein includes the masculine, feminine and neuter, and the number of all words includes the singular and plural thereof.
Section 11.3 - Articles and Other Headings. The Articles and other headings contained in these Bylaws are for reference purposes only and will not affect the meaning or interpretation of these Bylaws.
Section 11.4 - Minutes, Books and Records of Account. The Corporation will keep correct and complete books and records of account and will keep minutes of the proceedings of its Board of Directors and other records as required by the Act.
Section 11.5 - Statutory Cites. Any reference in these Bylaws to the Act will include all revisions and amendments to the Act.
Exhibit 5 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Advertising Association Documents - Page 93 of 91
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 6: EL POLLO LOCO® FINANCIAL REPORTING FORM
You will be required to submit quarterly and year-end financial statements electronically in the following format. The financials should be comparative showing the prior year amounts for the same periods. There should be columns for both the recently completed quarter and a Year-to-date column, if applicable. Do not include officer’s salary, auto expenses, or any other above restaurant expenses should not be included.
| | Amount | % | |
Gross Sales | | $ 0 | | |
| | | | |
Net Sales | | 0 | 100.0% | |
| | | | |
Food Cost | | 0 | 0.0% | |
Paper Cost | | 0 | 0.0% | |
Total Food & Paper | | 0 | 0.0% | |
Gross Profit | | 0 | 0.0% | |
| | | | |
Hourly and Manager labor | | 0 | 0.0% | |
Fringe Benefits (a) | | 0 | 0.0% | |
Total Labor | | 0 | 0.0% | |
| | | | |
Utilities | | 0 | 0.0% | |
Repair and Maintenance | | 0 | 0.0% | |
Cash Over/Short | | 0 | 0.0% | |
Controllable Costs (b) | | 0 | 0.0% | |
Restaurant Controllable Profit | | 0 | 0.0% | |
| | | | |
Advertising | | 0 | 0.0% | |
Royalties | | 0 | 0.0% | |
Indirect Costs (c ) | | 0 | 0.0% | |
Occupancy Costs (d) | | 0 | 0.0% | |
| | | | |
Restaurant Operating Profit | | $____ | ____% |
(a) | To include payroll taxes, health benefits, vacation, and workers compensation expense |
(b) | To include trash, store security, uniforms, laundry, cleaning/janitorial, operating supplies, music and plant service, landscape, and other misc. restaurant costs not captured elsewhere. |
(c) | To include credit card fees, bank charges, licenses, permits, fees, and pre-opening costs |
(d) | To include minimum and percentage rent, property taxes and insurance. |
Exhibit 6 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
El Pollo Loco® Financial Reporting Form - Page 94 of 92
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 7: IT SUPPORT SERVICES AGREEMENT
Customer: | |
Franchise Store Number(s) Covered: | |
Customer Site(s): | |
Date of Franchise Agreement(s): | |
Effective Date: | |
Customer’s Authorized Representative(s)/Contacts: | |
Invoices to Customer to be sent to: | |
Notices, if to Customer, to be sent to: | |
El Pollo Loco IT: | |
Notices, if to El Pollo Loco IT, to be sent to: | El Pollo Loco, Inc. 3535 Harbor Blvd., Suite 100 Costa Mesa, CA 92626 |
Term Commencement Date: | |
Term Expiration Date: | Upon expiration of the Franchise Agreement(s), unless sooner terminated as provided by the Franchise Agreement(s) |
Service Level Description | See Attached EPL IT Standard Platinum Service Description |
Annual Fees: | See Attached Franchise Support Options |
Special Terms: | See Website |
The authorized representatives of Customer and El Pollo Loco, intending to be legally bound, agree to the terms and conditions of this IT Support Services Agreement (“Agreement”), including without limitation documents incorporated by reference, as of the Effective Date.
El Pollo Loco IT: El Pollo Loco, Inc., a Delaware corporation | | Customer: ___________________, a _________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
Exhibit 7 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
IT Support Services Agreement - Page 95 of 93
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
TERMS AND CONDITIONS
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 96 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 97 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 98 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 99 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 100 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 101 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 102 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EPL IT STANDARD SERVICES DESCRIPTIONS
(Date: March 30, 2021)
For a current/updated EPL IT Standard Services Descriptions, click on:
Platinum Service Descriptions
Unlimited number of calls per month per store
Standard Store Configuration includes:
● | Back of house system |
● | Two front counter POS terminals with receipt printers |
● | Two drive thru POS terminals with receipt printer |
● | Four KDS systems (four monitors and four controllers) |
● | BROADBAND Wide Area Network connection, router and firewall |
● | All local area network components including equipment rack, UPS, patch panel, patch cords, cabling infrastructure and data jacks |
● | Normal Business Hours are 8:00 A.M. to 5:00 P.M., Pacific Time Monday through Friday excluding EPL IT’s normal published holidays and schedule downtimes for maintenance and support* |
● | Backup internet |
● | WIFI (Consumer/Guest and Internal) |
● | Android Tablet (e.g., Samsung Galaxy Tab A) |
● | Optional - Three (3) digital menu boards (three (3) panels and three (3) controllers) |
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 103 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
COMPLETE I.T. OPERATIONS SUPPORT
Hardware Service and Support:
Restaurant POS Equipment: Helpdesk will initiate advance depot repair and/or replacement for all POS hardware, including back of house server, KDS system, front of house terminals and cash drawers, receipt printers, network switch, UPS, (digital menu boards and controllers if requested by Customer) and line conditioners will be supported through an approved depot partner. Customer may enroll in the depot warranty program offered. Customer must notify EPL IT in writing at least 30 days prior to any changes in hardware support agreements Customer has established. Equipment replaced via our current approved depot partner “Washburn” is covered against breakage for 90 days after replacement depot processing. Customer is responsible for all costs associated with depot or any other hardware provider. All depot payments are processed directly to Customer accounts setup with the depot company directly. Customer may opt to maintain hardware support agreements with Micros or any other hardware provider at their own discretion. The EPL helpdesk will support full dispatch and implementation management of Customer that opt into the Washburn depot program. The EPL helpdesk will NOT support any hardware related issues for Customers that are not using an approved depot partner.
Software Service and Support includes:
● | Micros Enterprise Management, currently version 5.7 |
● | Patching of installed MyEpl.Net Web Based Portal |
● | Patching of critical security updates for installed operating system, currently version Windows 10 Professional |
● | Current updates on antivirus software |
● | Current updates on anti-malware software |
● | Endpoint DLP (data loss protection) which includes white listing |
● | Software disaster recovery tool |
● | Proactive monitoring via EPL Alerts program |
● | LMS (EDUonGO learning management solution) |
● | WIFI Cloud Management / Consumer WIFI |
● | Digital Menu Board management / price integration |
Credit Card Processing includes:
● | Acceptance of Visa, MasterCard, American Express and Discover |
● | Secure high speed credit card authorization as primary |
● | Secure low speed credit card authorization as backup |
● | NFC Payments (Apple Pay/Android Pay/Samsung Pay) |
● | Gift card Processing |
Payment Card Industry (“PCI”) Program includes:
● | Educating EPL Franchisees about cardholder data security, the Payment Card Industry (“PCI”) Data Security Standard (“DSS”) and PCI DSS |
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 104 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
compliance |
● | Providing Automated Quarterly Network Scanning of stores for potential security issues. |
● | Executing a compliance strategy that helps to: |
o | Eliminate the storage of prohibited data |
o | Protect stored data |
o | Secure the merchant network environment via compliance with the PCI DSS |
o | Identify the payment applications used and ensures merchants use or switch to Payment Application (“PA”) that comply with the PA-DSS |
● | Tracking and reporting on the program’s progress each month |
Firewall Service and Support includes:
● | Repair and/or replacement cost of firewall |
● | Software maintenance on firewall |
● | Remote monitoring of up/down state |
● | Latest security updates to prevent unauthorized intrusion attacks |
● | Quarterly PCI Scanning |
● | WIFI Firewall / SSID Configuration |
Broadband WAN Service and Support includes:
● | High speed access to all credit card processing |
● | High speed access to MyEpl.net Portal |
● | Does not include unrestricted Internet access |
● | 24x7 active monitoring and alerting |
Helpdesk includes:
● | 7:00 am to 12:00 am** Helpdesk via a toll free number 1-888-POLLO-IT |
● | Single point of contact for hardware and cabling dispatch |
● | Menu changes*** |
● | Pricing adjustments*** |
● | Full portal support |
● | WAN troubleshooting and support |
● | Support on all IT and POS issues |
MyEpl.Net Portal Service and Support includes:
● | Access to standard corporate reporting |
● | Near real time sales performance data for all stores |
Professional Service includes:
● | Any service outside of the scoop of this Agreement will be billing at the following rates: |
● | Helpdesk rate $60 per hour |
● | Networking rate $120 per hour |
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 105 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
● | Development rate $120 per hour |
* Business hours are subject to change
** Helpdesk hours are subject to change
*** Does not include Tax changes. Customer acknowledges and agrees that the data entered by EPL IT is on behalf of Customer. Customer acknowledges and agrees that it is their responsibility to verify the accuracy of the data inputted by EPL IT and also to maintain and update the data as needed. Any maintenance and/or updates Customer wishes EPL IT to perform must be communicated to EPL IT in writing in order for EPL IT to perform the maintenance and/or updates.
Franchise Support Options – Fee Schedule*
Service Description | Annual Cost* | Monthly Cost* | Platinum Support Option | Payable to: |
Oracle Micros SEL | $324 | $27 | Yes | EPL |
Quarterly PCI Scanning | $300** | $25** | Yes | EPL |
Unlimited Number of Calls for Helpdesk Support including Credit Card Support | $2,004 | $167 | Yes | EPL |
MyEpl.Net | $600 | $50 | Yes | EPL |
Backup Internet (3G or LTE) | $300 | $25 | Yes | EPL |
Network Management Fee | $300 | $25 | Yes | EPL |
Mobile Device Management (Per Tablet) | $36 | $3 | Yes | EPL |
Firewall Licensing 1 | $462 | $40 | | |
WIFI Controller (2 Access Points) | $135 | $11.25 | Yes | EPL |
Learning Management Platform | $228 | $19 | Yes | EPL |
Monthly Cost per Store 2 | | $365.25 | |
|
Broadband WAN 3 | $1,188 | $99 | Yes | EPL |
Digital Menu Board 4 | $672 | $56 | Yes | EPL |
| | | | |
Beyond Software 5 | $720 | $60 | Yes | EPL |
NOTE: Mixed services not allowed. All service levels must be the same for all stores per Franchisee.
*All fees listed in this Fee Schedule may change depending on vendor price changes.
**The Annual Cost/Monthly Cost listed for Complete Firewall Service and Support and Quarterly PCI Scanning. However, this fee may range up to $20 depending on vendor price increases. There may be additional charges if any remediation is required.
1 Cloud hosted and managed firewalls require licensing fees. These costs are pass-
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 106 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
through costs from the EPL approved licensing provider. The costs may actually be different than the amount shown due to price changes by vendor.
2 Monthly rate based on standard store configuration. Support cost for non-standard configuration subject to change, based on actual hardware deployed.
3 BROADBAND service cost is approximate and subject to increase if 2Mx1M Broadband is not available. Services subject to additional costs are wireless broadband, business class cable, and Fractional or full T1. These costs are pass-through costs from the EPL approved broadband provider. The costs may actually be different than the amount shown due to price changes by vendor.
4 Optional Digital Menu Board fees are determined by the count of digital menu panels. Each digital menu/preview board carries a vendor fee of $14 per panel. The costs may actually be different than the amount shown due to price changes by vendor and depending on the number of panels used.
5 Beyond software fees are $60 per month per restaurant location for application hosting and support. The fees will increase to $75 per month per restaurant location in 2022; $90 per month per restaurant location in 2023 and $110 per month per restaurant location in 2026. Beyond offers inventory, ordering, temperature line checks, log scheduling, and reports. The costs may actually be different than the amount shown due to price changes by vendor.
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 107 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
This General Release (“General Release”) is made effective _________________, 20__, by the undersigned, ____________________________________, a _______________ (referred herein after as the “Franchisee”).
In consideration of El Pollo Loco, Inc., a Delaware corporation (“Franchisor”): __________________________________; and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Franchisee hereby waives, releases, and forever discharges Franchisor, and all Franchisor’s affiliates, and all the respective directors, officers, employees, attorneys, representatives and agents of said corporations, as well as parent corporations, subsidiaries, affiliates and any other legal entities which it owns or controls, individually or jointly, from any and all obligations, liabilities, claims, demands, actions and causes of action in law or in equity of whatsoever kind or nature arising prior to and including the date hereof, which Franchisee now has or may hereafter have by reason of any act, omission, event, deed or course of action having taken place, or which should have taken place, or on account of or arising out of any claimed violation of the Franchise Agreement, any claim for breach of any other express or implied agreement, claim for breach of any implied violation of the covenant of good faith and fair dealing or any other claims which relate or refer in any way to the relationship between Franchisor and Franchisee which arises on or before the date hereof insofar as said claims relate to the Franchise Agreement or any other agreement between Franchisee and Franchisor, any claim arising under or alleged violation of the California Franchise Relations Act, any Federal antitrust law or State antitrust law except as prohibited by law.
This General Release extends to claims arising from representations made by the Franchisor in the Franchise Disclosure Document except as prohibited by law. Furthermore, it is expressly acknowledged by each of the undersigned that any and all rights granted under Section 1542 of the California Civil Code are hereby expressly waived. Such statute reads as follows:
“Section 1542.
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected the settlement with the debtor.”
Releasors voluntarily waive all benefits and protections of Civil Code Section 1542, and any comparable law, and intend the release above to apply to known and unknown claims alike.
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 108 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
This General Release may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. A signature on this General Release transmitted via facsimile or electronic mail/PDF or equivalent, electronic signature (such as DocuSign, or equivalent), shall be considered an original for all purposes hereunder.
IN WITNESS WHEREOF each of the parties either personally or through its duly authorized signatory, as applicable, has executed this General Release effective as of the date(s) written below.
FRANCHISEE: | |
If an entity: ___________________, a ______________ | |
By: | |
Name: | |
Title: | |
Date: | |
If an individual: ________________________, an Individual | |
By: | |
Name: | |
Title: | An Individual |
Date: | |
Exhibit 8 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
General Release - Page 109 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 9: CONSENT TO AND ASSIGNMENT OF FRANCHISE RIGHTS
A: To be Used for a Change of Ownership Interests in Franchisee
This Consent to and Assignment of Franchise Rights (the "Consent Agreement") is made as of this day of ____________, 20___ by and between EL POLLO LOCO, INC., a Delaware corporation (“Franchisor”), ________________________, a ___________ (the "Assignor") and ________________________, a _________ (the "Assignee").
A.Franchisor and Assignor are parties to that certain Franchise Agreement dated _________________________ (the "Franchise Agreement") pertaining to the operation of the El Pollo Loco restaurant located at _____________________ (the "Restaurant").
B.Assignor desires to assign all of his title, rights, privileges and interests and obligations under the Franchise Agreement to Assignee and to sell, transfer, and convey all of his title, rights, privileges, and interests to the Assets of the Restaurant to Assignee, all in accordance with the assignment provisions of the Franchise Agreement.
C.The Franchise Agreement requires that Assignor first obtain written consent of Franchisor before undertaking any assignment of the Franchise Agreement or sale of the assets of the Restaurant.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 110 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
a.that the Current Franchise Agreement and any related franchise disclosure documents, manuals, lists, forms and other documents previously transmitted to Assignee have been fully read and understood;
b.that Assignee is knowledgeable and experienced in regard to the operation of an El Pollo Loco restaurant and the Franchisor operating system;
c.that Assignee agrees to undertake, in accordance with the terms of the Current Franchise Agreement, such training as Franchisor may deem appropriate in connection with the operation and maintenance of the Restaurant;
d.that Assignee is fully aware that the initial term of the Current Franchise Agreement will expire on _____________________, and has no renewal option periods and the Current Franchise Agreement does not grant Assignee any territorial right or licenses, exclusive or otherwise; and
e.that as of the date of this Consent Agreement, the ownership interest in Assignee is divided as follows:
(i) ____________ - ____%
(ii) ____________ - ____%
f.that Assignee has conducted an independent study of the Restaurant, including consideration of any sales, profits or earnings figures that may have been made available to Assignee by or on behalf of Assignor, and in entering into this Agreement, Assignee relies solely upon such independent knowledge and in no respect has Assignee relied upon any representation, statement, endorsement or promise, either oral or written, by or on behalf of Franchisor.
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 111 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 112 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
a.Any unpaid amounts owed Franchisor under monthly franchise billing statements for periods up to the Changeover Date which, through __________, 20___ are estimated to be _____________Dollars ($_____) and shall be payable through escrow, by cashier's check or by direct debit (ACH) to Franchisor. If the Changeover Date is not ______________, 20___, the estimate should be adjusted by _____________Dollars ($_____) per diem;
b.Taxes due or accrued and unpaid, including, but not limited to, the sales tax on food and consumables sold in the Restaurant;
c.Any federal, state or local taxes required to be withheld from employees' salaries and wages; and
d.Any and all amounts due suppliers and vendors to the Restaurant.
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 113 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 114 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
IN WITNESS WHEREOF, the parties hereto have executed this Consent Agreement as of the date(s) written below.
FRANCHISOR: | | ASSIGNOR: | ||
EL POLLO LOCO, INC., a Delaware Corporation | | ____________________________, a___________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
ASSIGNEE: | |
__________________, a ____________ | |
By: | |
Name: | |
Title: | |
Date: | |
B: To be Used for an Entity Change by Franchisee
This Consent to and Assignment of Franchise Rights (the "Consent Agreement") is made as of this day of ____________, 20___ by and between EL POLLO LOCO, INC., a Delaware corporation (“Franchisor”), ________________________, a _________ (the "Assignor") and ___________________, a ________ (the "Assignee").
RECITALS
A.Franchisor and Assignor are parties to that certain Franchise Agreement dated _________________________ (the "Franchise Agreement") pertaining to the operation of the El Pollo Loco restaurant located at _____________________ (the "Restaurant").
B.Assignor desires to assign all of his title, rights, privileges and interests and obligations under the Franchise Agreement to Assignee and to sell, transfer, and convey all of his title, rights, privileges, and interests to the Assets of the Restaurant to Assignee, all in accordance with the assignment provisions of the Franchise Agreement.
C.The Franchise Agreement requires that Assignor first obtain written consent of Franchisor before undertaking any assignment of the Franchise Agreement or sale of the assets of the Restaurant.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 115 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
a.that the Franchise Agreement and any related franchise disclosure documents, manuals, lists, forms and other documents previously transmitted to Assignee have been fully read and understood;
b.that Assignee is knowledgeable and experienced in regard to the operation of an El Pollo Loco restaurant and the Franchisor operating system;
c.that Assignee is fully aware that the initial term of the Franchise Agreement will expire on _____________________, and has no renewal option periods and the Franchise Agreement does not grant Assignee any territorial right or licenses, exclusive or otherwise; and
d.that as of the date of this Consent Agreement, the ownership interest in Assignee is divided as follows:
(i) ____________ - ____%
(ii) ____________ - ____%
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 116 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 117 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 118 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
IN WITNESS WHEREOF, the parties hereto have executed this Consent Agreement as of the date(s) written below.
FRANCHISOR: | | ASSIGNOR: | ||
EL POLLO LOCO, INC., a Delaware Corporation | | ____________________________, a_____________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
ASSIGNEE: | |
__________________, a ____________ | |
By: | |
Name: | |
Title: | |
Date: | |
Exhibit 9 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Consent to and Assignment of Franchise Rights - Page 119 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 10: Amendment to Franchise agreement TO APPLY dEVELOPMENT FEE
This Amendment to the Franchise Agreement to Apply Development Fee (“Amendment”) is made on _____________,____ by and among EL POLLO LOCO, INC., a Delaware corporation (“Franchisor”) and ____________________, a__________ ("Franchisee").
RECITALS:
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties hereto, the parties agree as follows:
Exhibit 10 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Amendment to Franchise Agreement to Apply Development Fee - Page 120 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
IN WITNESS WHEREOF, this Amendment to the Franchise Agreement has been executed by the parties hereto as of the dates set forth below.
FRANCHISOR: | | FRANCHISEE: | ||
EL POLLO LOCO, INC., a Delaware Corporation | | ____________________________, a_____________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
Exhibit 10 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Amendment to Franchise Agreement to Apply Development Fee - Page 121 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 11: Amendment to successor Franchise agreement
This Amendment to the Successor Franchise Agreement (“Amendment”) is made on _____________,____ by and among EL POLLO LOCO, INC., a Delaware corporation (“Franchisor”) and ____________________, a___________ ("Franchisee").
RECITALS:
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties hereto, the parties agree as follows:
Exhibit 11 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Amendment to Successor Franchise Agreement - Page 122 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
(a) | The tenant entity on the lease must match the franchise entity on the successor franchise agreement; and |
(b) | The term (with renewal options) of the lease must match at least the initial term of the successor franchise agreement; and |
(c) | The landlord consents to your use of the premises as an El Pollo Loco® restaurant which will be open during the required days and hours set out in the El Pollo Loco® Manual. |
Should Franchisee be unable to lease the site of the Restaurant for a term equal to the Term, then as our sole and absolute right to determine, the Term of the Successor Franchise Agreement may be reduced to match the term of the lease or sublease and the renewal franchise fee will be appropriately pro-rated. Upon the expiration or earlier termination of this Successor Franchise Agreement, Franchisee shall have no right or option to extend the term of this Successor Franchise Agreement.”
Exhibit 11 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Amendment to Successor Franchise Agreement - Page 123 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
IN WITNESS WHEREOF, this Amendment to the Successor Franchise Agreement has been executed by the parties hereto as of the date(s) set forth below.
FRANCHISOR: | | FRANCHISEE: | ||
EL POLLO LOCO, INC., a Delaware Corporation | | ____________________________, a__________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
Exhibit 11 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Amendment to Successor Franchise Agreement - Page 124 of 105
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 12: REMODEL SCHEDULE PARTICIPATION agreement
THIS REMODEL SCHEDULE PARTICIPATION AGREEMENT (“Remodel Agreement”) is made and entered into as of _____________,______ (“Effective Date”), by and between EL POLLO LOCO, INC., a Delaware corporation (the “Franchisor”) and ____________________________, a _____________ (“Franchisee”).
RECITALS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Remodel Agreement the parties agree as follows:
AGREEMENT:
Exhibit 12 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Remodel Schedule Participation Agreement - Page 125 of 126
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Exhibit 12 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Remodel Schedule Participation Agreement - Page 126 of 126
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
IN WITNESS WHEREOF, Franchisor and Franchisee have duly executed this Remodel Agreement as of the date(s) set forth below.
FRANCHISOR: | | FRANCHISEE: | ||
EL POLLO LOCO, INC., a Delaware Corporation | | ____________________________, a _________________ | ||
By: | | | By: | |
Name: | | | Name: | |
Title: | | | Title: | |
Date: | | | Date: | |
Exhibit 12 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Remodel Schedule Participation Agreement - Page 127 of 126
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT A
FRANCHISE AGREEMENTS & REMODEL DEADLINES
Location No | Address | City | State | ZIP | Agreement Signed | Next Remodel Due |
| | | | | | |
| | | | | | |
| | | | | | |
| | | | | | |
| | | | | | |
Exhibit 12 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Remodel Schedule Participation Agreement - Page 128 of 126
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EXHIBIT 13: AMENDMENT TO FRANCHISE AGREEMENT
(To be offered if you qualify for the Development Incentive Program and provided you have sign a Franchise Development Agreement for a New Market)
THIS AMENDMENT TO FRANCHISE AGREEMENT (“Amendment”) is made and entered into this ___ day of ______________, by and between EL POLLO LOCO, INC., a Delaware corporation (“Franchisor”), with its principal place of business at 3535 Harbor Blvd, Suite 100, Costa Mesa, California 92626 and _____________________________, a ____________________, with its principal place of business at __________________________________________ (“Franchisee”).
RECITALS:
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and obligations herein contained, the parties hereto agree as follows:
1. | Recitals. Recitals listed above are incorporated herein and by this reference made a part of this Amendment. |
Reduced Royalty | Applicable Time Period (Measured from the Opening Date) |
2% | Year 1 |
3% | Year 2 |
4% | Year 3 |
5% | Year 4 and subsequent years |
Exhibit 13 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Amendment to Franchise Agreement (Development Incentive Program) - Page 129 of 126
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
IN WITNESS WHEREOF, the parties hereto have duly executed, sealed and delivered this Amendment in duplicate original as of the date(s) set forth below.
FRANCHISOR: EL POLLO LOCO, INC., a Delaware corporation | | FRANCHISEE: ________________________, a _______________ | |||
By: | | | By: | | |
Name: | | | Name: | | |
Title: | | | Title: | | |
Date: | | | Date: | |
Exhibit 13 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Amendment to Franchise Agreement (Development Incentive Program) - Page 130 of 126
Exhibit 10.17
El Pollo Loco Unit #3###
Location Test, CA
EL POLLO LOCO® FRANCHISE AGREEMENT SCHEDULE 1: STATEMENT OF OWNERSHIP OF FRANCHISEE
Name of Party to Franchisee Entity | Ownership Percent of Franchisee |
______________________________________ (This Party will be the Only Party to Receive Notice on behalf of Franchisee) | % |
| % |
Statement 1 to Franchise Agreement (Exhibit D of Multi-State Disclosure Document Control No. 033021)
Statement of Ownership of Franchisee - Page 131 of 126