Buffalo Wild Wings 2005 Annual Report Download - page 109

Before the filing of any arbitration, the parties agree to mediate
any dispute that does not include injunctive relief or specific
performance actions covered under subparagraph 12.B, provided that
the party seeking mediation must notify the other party of its
intent to mediate prior to the termination of this Agreement.
Mediation will be conducted by a mediator or mediation program
agreed to by the parties. Persons authorized to settle the dispute
must attend any mediation session. The parties agree to participate
in the mediation proceedings in good faith with the intention of
resolving the dispute if at all possible within 30 days of the
notice from the party seeking to initiate the mediation procedures.
If not resolved within 30 days, the parties are free to pursue
arbitration. Mediation is a compromise negotiation for purposes of
the federal and state rules of evidence, and the entire process is
confidential.
B. Injunctive Relief. Notwithstanding subparagraph 12.A above, you
recognize that the Restaurant is one of a large number of
restaurants and stores identified by the Trademarks and similarly
situated and selling to the public similar products, and the failure
on the part of a single franchisee to comply with the terms of its
agreement could cause irreparable damage to us and/or to some or all
of our other franchisees. Therefore, it is mutually agreed that in
the event of a breach or threatened breach of any of the terms of
this Agreement by you, we will forthwith be entitled to an
injunction restraining such breach or to a decree of specific
performance, without showing or proving any actual damage, together
with recovery of reasonable attorneys' fees and other costs incurred
in obtaining said equitable relief, until such time as a final and
binding determination is made by the arbitrators. The foregoing
equitable remedies are in addition to, and not in lieu of, all other
remedies or rights that the parties might otherwise have by virtue
of any breach of this Agreement by the other party. Finally, we and
our affiliates have the right to commence a civil action against you
or take other appropriate action for the following reasons: to
collect sums of money due to us; to compel your compliance with
trademark standards and requirements to protect the goodwill of the
Trademarks; to compel you to compile and submit required reports to
us; or to permit evaluations or audits authorized by this Agreement.
C. Attorneys' Fees. The prevailing party in any action or proceeding
arising under, out of, in connection with, or in relation to this
Agreement, any lease or sublease for the Restaurant or Authorized
Location, or the business will be entitled to recover its reasonable
attorneys' fees and costs.
DEFAULT AND TERMINATION
13. The following provisions apply with respect to default and
termination:
A. Defaults. You are in default if we determine that you or any
Principal Owner or guarantor has breached any of the terms of this
Agreement or any other agreement between you and us or our
affiliates, which without limiting the generality of the foregoing
includes making any false report to us, intentionally understating
or underreporting or failure to pay when due any amounts required to
be paid to us or any of our affiliates, conviction of you, a
Principal Owner, or a guarantor of (or pleading no contest to) any
misdemeanor that brings or tends to bring any of the Trademarks into
disrepute or impairs or tends to impair your reputation or the
goodwill of any of the Trademarks or the Restaurant, any felony,
filing of tax or other liens that may affect this Agreement,
voluntary or involuntary bankruptcy by or against you or any
Principal Owner or guarantor, insolvency, making an assignment for
the benefit of creditors or any similar voluntary or involuntary
arrangement for the disposition of assets for the benefit of
creditors.
B. Termination by Us. We have the right to terminate this Agreement
in accordance with the following provisions:
1. Termination After Opportunity to Cure. Except as
otherwise expressly provided in this subparagraph 13.B
or elsewhere in the Agreement: (i) you will have 30 days
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