FIRST AMENDMENT TO MANAGEMENT AGREEMENT
Exhibit
10(w)
FIRST
AMENDMENT TO MANAGEMENT AGREEMENT
This
First Amendment to Management Agreement (this "Amendment") is made and entered
into as of this 30 day of March 2007,
("Effective Date") by and between Bayshore Rawbar, LLC, a Florida limited liability company
("Owner") and RMI, LLC, a Florida limited liability company
("Operator").
RECITALS:
A. Owner
and Operator entered into that certain Management Agreement dated as of August
20, 2004 (the "Management Agreement") whereby Operator operates the Monty's Raw
Bar Restaurant ("Restaurant") on the first floor of the Project located at 0000
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000.
B. Owner
and Operator desire to amend the Management Agreement as more particularly set
forth herein. The Management Agreement as modified by this Amendment
is collectively referred to herein as the "Agreement."
NOW,
THEREFORE, in consideration of $10.00 and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Owner and Operator
agree as follows:
1. Incorporation
of Recitals. The above recitals are true and correct and are
incorporated herein as if set forth in full.
2. General
Provisions. All capitalized terms in this Amendment shall have the
same meaning as in the Management Agreement, except if otherwise
noted. Except as amended and modified by this Amendment, all of the
terms, covenants, conditions, and agreements of the Agreement shall remain in
full force and effect. In the event of any conflict between the
provisions of the Agreement and the provisions of this Amendment, this Amendment
shall control.
3. Effective
Date. Unless otherwise specifically stated herein, to the contrary,
the Effective Date of the terms and provisions of this Amendment shall be April
2, 2007.
4. Appointment
of Manager. Article I of the Management Agreement is deleted and
replaced with the following:
a. Owner
hereby employs Operator as an independent contractor to perform the Revised
Services (as defined in Section 6 of this Amendment) for the
Restaurant.
b. The
Term of this Agreement expires on December 31, 2007; however Operator may be required to complete
certain tasks not finished by December 31, 2007 as more particularly set forth
in Section 6 (a) of the Amendment. .
5. Compensation
of Manager.
a. The
Management Fee in Section 2.01(a) and (b) is deleted and replaced with the fee
of $15,000 per month ("Monthly Management Fee") which shall be payable by Owner
to Operator on or before the first day of each month commencing May 1, 2007. The last Monthly
Management Fee (for services rendered for the month of December 2007)
shall be payable on December 31, 2007.
1
All
references in the Agreement to Base Management Fee, Incentive Management Fee or
the Management Fee shall mean and refer to the Monthly Management Fee as
described in this Section 5.
b. On April
1, 2007 Owner shall pay to Operator a total fee of
$110,979.69 which is comprised of : (i) the regularly scheduled April 1, 2007
payment of $25,000 (for services rendered for March 2007)
and a one time management fee in the amount of $85,979.69.
c. Sections
2.02, 2.03 and 2.04 of the Management Agreement are hereby deleted.
6. Articles
III (Duties of the Manager), IV (Owner's Financial Obligations), V (Accounts and
Reserves), VII (Insurance and Indemnity), VIII (Damage and Destruction), and IX
(Eminent Domain) are deleted in their entirety and replaced with the
following:
(a) Operator
shall be responsible for providing the following limited services to Owner and
the Restaurant (collectively. "Revised Services"):
1. Accounting
Services. In addition to the accounting duties set forth in Article
VI, Operator shall :
(A)
assist in the transfer of payroll services to Owner and prepare all payroll for
employees of the Restaurant; and prepare
for filing all tax returns and other forms required by law relating to payroll,
including, but not limited to, payroll taxes and unemployment taxes, and for
withholding and remitting to the IRS the correct amount of federal income taxes
relating to payroll.
(B) allow
the Owner
Representatives full access to financial software utilized by Operator
including chart of accounts, trial balances and general ledgers used in
preparing monthly financial statements and provide any data relating to the
Restaurant as may be reasonably requested
from any Owner Representative.
(C) incorporate budget provided by Owner into
accounting software as directed by any
Owner Representative.
(D)
despite the fact that this Agreement terminates as of December 31, 2007,
Operator shall be responsible for preparing the Monthly Statement for December
2007 on or before January 15, 2008 and the Annual Statement for the calendar
year 2007, on or before February 15, 2008. A list of the schedules to be prepared by Operator for
the Annual Statements is attached hereto as Exhibit
"A." Operator shall also assist 2007 year end audit to
be performed in 2008. The obligations set forth in this
subsection shall survive termination or expiration of this
Agreement.
(E)
Prepare and remit all sales tax and other tax returns for filing with the
applicable governmental agencies.
(F) prepare
all accounts payable checks on a weekly basis or more frequently upon request of
any Owner
Representative.
(G) prepare additional accounting or
inventory reports as reasonably requested by any Owner
Representative.
2
(H) Operator's accounting staff shall be
available to meet with any Owner
Representative as requested from time to time.
2. Purchasing
Assistance. At Owner's request, Operator shall assist the Owner
Representatives in connection with its purchasing for the
Restaurant. Operator shall also make available to Owner the contact
information (name, address, phone, fax and e-mail) for all vendors used at the
Restaurant.
3.
Operator's staff. In connection with
providing the Revised Services Operator shall have on staff the necessary persons to provided the Revised
Services in a timely and professional manner; however Operator's staff
shall not be required to work exclusively for Owner.
4. Owner Representatives. Owner
shall designate two people to be the Owner's representatives (collectively
"Owner Representatives") to be the primary contact
persons and to communicate directly with the Operator regarding the
provisions of the Related Services and Operator's performance under this
Agreement. The Owner shall designate the names of the
Owner Representatives in writing and deliver the same to
Operator. Owner may change the name of either or both of the
Owner Representatives, from time to time, upon written notice to
Operator. Initially, the Owner Representatives shall be
Xxxxxxx Xxxxxxxx and Xxxxxx Camorotti.
(b) Owner
shall be responsible for all expenses of the Restaurant except for the cost of
preparing and processing any of the Revised Services, which shall be paid for by
Operator. For example, Operator shall pay for the cost for the accounting software and to assemble the
information necessary to prepare and prepare the payroll and tax returns. Owner shall be required to pay for the fee charged by the payroll company to process
the pay roll, postage and any amounts due on any tax returns.
(c) Upon
request from Owner, Operator shall execute any and all documentation reasonably requested by Owner with respect to the
reduction in its obligations under the Management Agreement to the Revised
Services including, but not limited to: (i) any bank forms necessary to remove
Xxxxxxx X. Xxxxxxxx and/or Operator as a signatory from any bank
accounts and (ii) transfer of any operating licenses or permits for the
operation of the Restaurant.
(d) Upon
written request of Operator, Owner shall promptly execute any and all
documentation reasonably necessary to relinquish any of Owner's rights to any
keyman or other life insurance policy naming Xxxxxxx X. Xxxxxxxx as the
insured.
(e) From and after April 2, 2007, neither Operator
nor Xxxxxxx X. Xxxxxxxx shall: (i) have any authority to act as agent for the
Owner of the Restaurant; or (i) hold himself /itself out to the
public as an owner, manager or agent of the Owner or the
Restaurant.
(f) In
connection with the operation of its duties hereunder, Operator shall comply
with all applicable local, state and federal laws.
(g) Operator
and Owner shall reasonably cooperate with each other in order to perform their
respective obligations under the Agreement.
(h)
Neither RMI nor any of its employees shall maintain office space in the
Restaurant unless specifically requested by
Owner.
7. Employees.
a. Change in employees. After the closing of the
Restaurant and the completion of the last shift on April 1, 2007, ("Employee
Termination Date") Operator shall cause all employees to be
terminated. Operator shall comply with and be solely responsible for
compliance with all local, state and federal laws with respect to the hiring and
firing of employees for the Restaurant including but not limited to
the WARN Act (Worker Adjustment Retraining Notification Act 29 U.S.C. 2101, et.
seq.), if applicable. Operator
shall prepare an
employee information list containing the name, address,
phone, job and salary for each employee and deliver to Owner no later
than March 28, 2007. Operator shall
reasonably make available to Owner Representatives
for review the personnel files of all employees who work at the
Restaurant. Operator shall also deliver to Owner Representatives a written detail for each
employee stating any accrued vacation time, sick time or other benefits due to
any employee of Operator who works at the Restaurant immediately prior to the
Employee Termination Date. From and after the Employee
Termination Date Owner shall have the right but not the obligation to hire any
or all of the employees working for Operator at the Restaurant.
b. Representations. The Operator is
currently in compliance with applicable laws and regulations respecting
employment, discrimination in employment, terms and conditions of employment,
wages, hours, and occupational safety and health and employment
practices and is not engaged in any unfair labor practice with respect to the
Operator's employees. Except as set forth on Exhibit "B" attached
hereto, no claim, suit or other action has been made or claimed and
to Operator's knowledge, threatened, by any employee of Operator with
respect to its employment at the Restaurant. Except as set
forth on Exhibit "B" Operator does not offer any 401 K, retirement, health
insurance or any other benefits to any of its
employees.
3
8. Default/Termination.
a. Section
11.02 of the Agreement is amended by deleting 1 subparagraph (b) and the last
sentence of subparagraph (c).
b. Section
11.03 is amended by deleting subparagraphs (a)(i); 1 (d), (e), (f), (g), (i),
(j) and (k).
c. Section
11.04 of the Agreement is hereby deleted.
d. The
following is hereby added to Section 11.05:
(e) Operator shall reasonably cooperate with
Owner in connection with the turnover of the day to day Restaurant
operations. Said cooperation shall start immediately upon execution
of this Agreement and before April 1, 2007. On April 2, 2007 Operator shall turn over all books and
records of the Restaurant from August 20, 2004 to the present and immediately
upon termination of this Agreement and the Operator's duties hereunder, Operator
shall turn over all other books and records of the Restaurant. To the
extent reasonably possible, the books and records should be in electronic
format.
(f) This Agreement shall automatically terminate
as of the closing of the sale of the Restaurant by Owner. provided Owner pays Operator the Monthly Management
Fees due through December 31, 2007.
9. Adjustment
for 2003 Rent. Operator shall have the right to seek reimbursement
from the City of Miami of any purported overpayment of Rent in the amount of up
to $14,020.31 for the period from October 1, 2004 through September 30, 2005
based upon a change in calculation of gross sales from October 1, 2003 through
September 30, 2004, as determined by the City of Miami per audit letter dated
August 24, 2006. Owner shall execute
and deliver to Operator the assignment of claim as per the attached Exhibit
"C." All communications with the City of Miami must be
coordinated through Owner.
10. Notices. The
notice address for Operator is hereby changed to:
RMI,
LLC
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx _____
Xxxxxxx Xxxxx,
XX 00000
Attn : Xxxxxxx X.
Xxxxxxxx
with a
copy to:
Xxxxxxxx
Xxxx, Esq.
000 Xxxxx
Xxxxx Xxxxxxx
Xxxxx
Xxxxxx, Xxxxxxx 00000
4
11. Counterparts. This
Amendment may be executed by counterpart signature pages, which, when taken
together and annexed to the remainder of this Amendment, shall constitute an
original instrument.
12. Reaffirmation. Expect
as provided herein, all terms and condition of the lease shall remain
unchanged.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
5
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day
and year first written above.
WITNESS:
|
OWNER:
|
BAYSHORE
RAWBAR, LLC, a Florida limited
|
|
liability
company
|
|
/s/
Xxxxxxx Xxxxxxxx
|
By:
/s/ Xxxxxx X. Xxxxxxxxx,
Xx.
|
Print
Name: Xxxxxxx Xxxxxxxx
|
Name: Xxxxxx
X. Xxxxxxxxx, Xx., Manager
|
Print
Name:
|
By:
|
Name:
Xxxxx Xxxxxxxxx, Manager
|
|
WITNESS:
|
OPERATOR:
|
RMI,
LLC, a Florida limited liability company
|
|
Print
Name:
|
By:
|
Name:
|
|
Title:
|
|
Print
Name:
|
6
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day
and year first written above.
WITNESS:
|
OWNER:
|
BAYSHORE
RAWBAR, LLC, a Florida limited
|
|
liability
company
|
|
|
By:
|
Print
Name:
|
Name: Xxxxxx
X. Xxxxxxxxx, Xx., Manager
|
/s/ Xxxxxx Xxxxxxxxx | |
Print
Name: Xxxxxx Xxxxxxxxx
|
By:
/s/ Xxxxx
Xxxxxxxxx
|
Name:
Xxxxx Xxxxxxxxx, Manager
|
|
WITNESS:
|
OPERATOR:
|
RMI,
LLC, a Florida limited liability company
|
|
/s/ Xxxxxx Xxxxxxxxx | |
Print
Name: Xxxxxx Xxxxxxxxx
|
By:
/s/ Xxxxx
Xxxxxxxx
|
Name:
Xxxxx Xxxxxxxx
|
|
/s/ Wanoa Xxxxxxxxxx |
Title:
Mg Member
|
Print
Name: Wanoa Xxxxxxxxxx
|
7
Exhibit "A"
List of Schedules for Annual
Statement
8
Exhibit "B"
Employee Claims and Benefits
9
Exhibit "C"
Assignment of City of Miami
Claim
10