Exhibit 10.13
RESTAURANT MANAGEMENT AGREEMENT made as of the ______ day of February,
1991, by and between XXXXX XXXXXXXXX, having an office at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, and XXXXX XXXXXXXXX, having an office at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, ("xxx Chartounis"), and THE NEW YORK RESTAURANT GROUP,
INC., a domestic New York Corporation, with offices at 0000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, ("Restaurant Group").
W I T N E S S E T H:
WHEREAS, the Chartounis have entered into a contract dated November 20,
1990 with Post House Associates, for the purpose of (i) acquiring a Lease on
the property located in the City, County and State of New York and known as
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Premises"); (ii) owning,
operating, managing and maintaining a first-class restaurant on the Premises
known as "The Post House" (the "Restaurant"); and
WHEREAS, the Restaurant Group is a New York corporation experienced in
the business of restaurant administration; and
WHEREAS, upon consummation of such November 20, 1990 Contract of Sale,
the Chartounis wish to retain the Restaurant Group as an independent
contractor to provide administrative, managerial and operating services in
connection with the operation of the restaurant.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration receipt and sufficiency of which is
hereby acknowledged, it is agreed as follows:
1. HIRING OF THE RESTAURANT GROUP. The Chartounis hereby retain the
Restaurant Group to provide administrative, managerial and operating services
in connection with the operation of the Restaurant and Room Service
(including a full Breakfast Service if requested by the Chartounis) for the
Xxxxxx Hotel at the Premises during such hours as the Chartounis shall
require from time to time. The Restaurant Group shall render such services
upon the terms and conditions hereinafter set forth. The Chartounis
acknowledge that the Restaurant Group renders similar services to other
restaurants, which are competitive with the Restaurant and agree that it may
continue to render such services to those entities and accept employment with
other entities. The Restaurant Group acknowledges that it is the essence of
this agreement that the Post House continue to be operated as a first-class
Manhattan restaurant, in essentially the same manner that the premises have
been operated for the past five years.
2. SERVICES BY THE RESTAURANT GROUP. Subject to the discretion of the
Chartounis, the administrative services rendered by the Restaurant Group
shall include the maintenance of all bookkeeping and accounting records,
ledgers, and journals for the Restaurant, including such records as are
necessary to prepare and file timely all tax withholding forms for all
Restaurant employees and all sales and tax records and returns for the
Restaurant and pay timely to the appropriate tax authorities all taxes
required to be reported on such
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forms or returns. In addition, also subject to the direction and at the
expense of the Chartounis, the Restaurant Group shall perform the following:
comply with all governmental health and safety regulations, including the
maintenance of all necessary business, food and beverage licenses; maintain
all necessary fire, theft, accident and other insurance policies and renewals
thereof; purchase all supplies and equipment, food, food products and
beverages to be used in the operation of the Restaurant; supervise, manage,
hire and discharge Restaurant personnel; supervise the making of all
necessary repairs, decorations and alterations to the Restaurant; implement
promotional and advertising programs; recommend menu and wine list content
and pricing; manage collections, cash receipts and deposit arrangements and
make payments for those items chargeable to the Chartounis under this
Agreement out of the account referred to in, and as otherwise provided, in
Section 6 hereof; prepare financial budgets and information; furnish to the
Chartounis a fidelity bond covering the Restaurant Group's operations of the
Restaurant; generally act as liaison between the Chartounis and the employees
of the Restaurant, and continue the current operating policies of the
Restaurant Group with respect to the Post House Restaurant so as to maintain
the Restaurant as a first-class Manhattan restaurant. The Restaurant Group
will make all discount and bulk purchase arrangements which it has with third
parties available to the Chartounis on the same basis and furnish the
Chartounis with appropriate vouchers and backup information to support the
charges to the Chartounis.
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Without limiting the generality of the foregoing, the Restaurant
Group, shall:
(a) Within fifteen (15) business days after the end of each
calendar month commencing with the effective date of this agreement, furnish
to the Chartounis a monthly report of income, sales, expenses and cash flow.
Comparable quarterly reports will be delivered within fifteen (15) business
days of the end of each calendar quarter. A weekly sales report will also be
furnished within three (3) business days after the end of each week.
(b) Furnish to the Chartounis an annual financial statement of
Restaurant operations prepared (at the sole cost and expense of the
Chartounis) by a firm of certified public accountants chosen by the
Chartounis. The entire cost of all direct expenses of the business of the
Chartounis (other than salaries of the Restaurant Group employees) including,
without limitation, the cost of business licenses, taxes, insurance premiums,
food, beverages, payroll servicing, salaries of employees at the Restaurant,
office supplies, advertising, and legal and outside accounting fees for
services rendered to the Chartounis shall be paid by the Chartounis.
3. COMPENSATION.
(a) As compensation for the Restaurant Group's services hereunder,
the Chartounis shall pay to the Restaurant Group an interim amount equal to 3%
of all Restaurant Sales (as hereinafter defined) with respect to each month (or
portion thereof at the beginning and end
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of the term of this Agreement). Such amount shall be paid within seven (7) days
after the end of each calendar month and, until adjusted by the parties as
hereafter provided, the amount paid shall equal 3% of the Gross Sales for the
immediately preceding month.
(b) If at the close of any fiscal year (but not later than 90 days
thereafter) it is determined that the aggregate of the monthly payments for the
fiscal year has (i) exceeded or (ii) fallen short of 3% of Restaurant Sales for
such fiscal year, then the Restaurant Group and the Chartounis shall promptly
adjust the amount owing not later than 90 days after such fiscal year.
(c) For the purposes of this paragraph, the parties shall be bound
by the financial statement of the certified public accountants retained by the
Chartounis as accountants for the Restaurant.
(d) The term "Gross Sales" shall mean all monies received by the
Chartounis or for their account from the operation of the Restaurant, Room
Service and Breakfast Service, in cash, by credit card or otherwise, but less,
as to all the foregoing, in respect to the Restaurant and such Services, bona
fide refunds to customers, uncollected amounts, gratuities and tips in fact paid
out by the Restaurant to employees of the Restaurant, and taxes imposed and paid
by the Restaurant on customer checks. For the purposes of clarification, Gross
Sales shall be calculated in the same manner as on the calendar year 1990
Financial Statement of the Post House Restaurant, a true copy of which is
attached hereto as Exhibit "A".
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4. ADDITIONAL COMPENSATION
(a) Notwithstanding the contents of paragraph 3 above, should the
Gross Profits, as below defined, exceed 69% of Gross Sales on a quarterly basis
(or portion thereof at the beginning and end of the term of this Agreement), the
Restaurant Group shall be paid an additional percentage of Gross Sales as below
set forth, on a quarterly basis:
Percentage of Gross Sales
Gross Profit Paid to Restaurant Group
------------ ------------------------
69.1% .1%
69.2% .2%
69.3% .3%
69.4% .4%
69.5% or more .5%
(b) For the purpose of 4(a) above, Gross Profits and Gross Sales
shall be calculated in the same manner as in the Financial Statement of the Post
House Restaurant for the calendar year 1990, a true copy of which is attached
hereto as Exhibit "A".
(c) The sums due under paragraph 4(a) shall be calculated and
payable on an interim, quarterly basis, with any such sums due to be paid within
the later of fifteen (15) days after the end of each quarter or three (3)
business days after delivery of the quarterly report.
(d) If at the end of any fiscal year (but not later than 90 days
thereafter) it is determined that the aggregate of the
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quarterly payments made pursuant to this paragraph 4 is either more or less than
the payments that would be due if Gross Profits and Gross Sales referred to in
paragraph 4(a) were computed and applied on a fiscal year basis, then the
Restaurant Group and the Chartounis shall promptly adjust the amount owing
under this subparagraph (d) but not later than 90 days after such fiscal year,
and any disputes shall be reconciled as provided in paragraph 4.
5. COST CONTROL COMPENSATION.
(a) In addition to the compensation set forth in paragraphs 3 and 4
above, the Restaurant Group shall be entitled to additional compensation based
upon payroll control. Beginning with the calendar year commencing January 1,
1991, and for every year of the term of this agreement, the following
calculations shall be made:
(i) Payroll for the prior year;
(ii) Payroll for the calendar year in question;
(iii) Consumer Price Index increase for the prior year, plus 2 1/2%
(iv) Consumer Price Index increase for the calendar year in
question;
The percentage increase in payroll will then be calculated. If the
percentage increase in payroll is less then the percentage increase in Consumer
Price Index plus 2 1/2%, the Restaurant Group will be entitled to additional
compensation of .5% of Gross Sales as above defined, pro rated in the case of
less than a full calendar year during the term of this Agreement based on the
number of months of
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such year during which this Agreement is effective. This sum shall be payable on
an interim, quarterly basis, within fifteen (15) days after the end of each
quarter, calculations to be based upon the estimate of Consumer Price Index
increase published by Fortune magazine. Recalculations on an annual basis and
adjustments of the year's quarterly payments shall be made within fifteen (15)
days after the end of the calendar year in question and reconciled in the event
of disputes as provided in paragraph 4.
(b) For the purposes of this paragraph, the Consumer Price Index
shall be defined as follows: The term "Consumer Price Index" shall mean the
"Consumer Price Index" published by the Bureau of Labor Statistics of the U.S.
Department of Labor, all items, U.S. city average, all urban consumers
(presently denominated "CPI-U"), or a successor or substitute index
appropriately adjusted.
(c) An example of the additional compensation for payroll control
clause would be as follows:
1990 payroll - $1,000,000.00; 19991 payroll - $1,050,000.00;
increase of Consumer Price Index for 1991 over 1990, 4 1/2%. Since
the increase in payroll, 5% is less than the total of the CPI
increase plus 2 1/2%, the Restaurant Group would be entitled to the
additional compensation above set forth. If the Agreement was
effective for 9 months during 1991, the Restaurant Group would be
entitled to three-fourths of .5% or .375%.
(d) For the purpose of the payroll control provisions above set
forth, the Restaurant Group agrees to keep a base staff which is the same as the
current staff, and any additional hirings of additional personnel or salary
levels above the base staff not contemplated by the Restaurant Group as
indicated in an annual operating budget
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presented by the Restaurant Group to the Chartounis by December 15th for the
next succeeding fiscal year beginning on January 1st, but which are specifically
requested by the Chartounis, shall not be included in the payroll figures for
the purposes of this paragraph.
6. BANK ACCOUNTS.
The Chartounis shall establish a bank account at a bank of their
choice. The Chartounis and two (2) persons designated by the Restaurant Group,
who may be changed from time to time by the Restaurant Group with prior approval
by the Chartounis, shall be the authorized signatories for the account. Persons
designated as signatories by the Restaurant Group may be removed by the
Chartounis without notice and shall not have the authority to sign a check for
an amount in excess of [$2000.00]. Upon taking possession of the Restaurant,
Chartounis shall deposit $20,000 in the account. This amount shall be the
minimum balance maintained in the account by Chartounis during the term of this
Agreement, or any renewal thereof, but after the first twelve (12) full months
of operation the minimum shall in no event be less than the preceding one
month's operating expenses. The Chartounis from time to time as needed shall
replenish the account with sufficient funds to maintain such balance. All monies
received from the operation of the Restaurant, Room Service and Breakfast
Service and any and all expenses paid by Restaurant Group on account of the
operation of the Restaurant, Room Service and Breakfast Service shall pass
through this account. The Restaurant Group shall
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deliver copies of all invoices for which checks have been written by its
designees within five (5) business days of the date of the checks.
7. TERM.
This Agreement shall be effective on the date of the purchase by the
Chartounis of the Post House pursuant to the November 20, 1990 Asset Purchase
Agreement and shall terminate in three (3) years from such date, or upon the
earlier happening of any of the following events:
(a) The adjudicated bankruptcy or insolvency of the Restaurant Group
OR THE CHARTOUNIS.
(b) At the election of the Chartounis, upon 90 days' notice to the
Restaurant Group upon (i) a sale of the Restaurant or of the Xxxxxx Hotel to a
bona fide third party in which the Chartounis hold an equity interest (of less
than 25%) or (ii) the obtaining of a participating convertible share
appreciation or any other type of financing arrangement from a bona fide third
party lender in which the lender is entitled to receive payments, other than (or
in addition to) fixed amounts of interest and principal repayments, representing
more than 75k% of the net profits, cash flow or sales proceeds or a right to
convert into a greater than 75% equity interest, for the Restaurant or the
Xxxxxx Hotel, or both.
(c) At the election of the Chartounis, upon six months' notice to
the Restaurant Group, if the Chartounis enter into a joint venture in the
operation of the Restaurant or the Xxxxxx Hotel with a bona fide third party in
which the Chartounis hold an equity interest
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of less then 75% or if the Chartounis obtain participating, convertible or
share appreciation or any other type of financing arrangement from a bona
fide third party lender in which lender is entitled to receive payments,
other than (or in addition to) fixed amounts of interest and principal
repayments, representing more than 25% of the net profits, cash flow or sales
proceeds or a right to convert into a greater than 25% equity interest.
(d) At the election of the Chartounis, upon one year's notice to
the Restaurant without cause.
(e) At the election of the Chartounis, upon 30 days' notice to the
Restaurant Group, "for cause", which shall be limited to the following grounds:
(i) the failure or refusal by the Restaurant Group, after written
notice thereof by the Chartounis to the Restaurant Group,
substantially to perform its duties and responsibilities (including
maintaining the current general atmosphere and administering cost
controls at least as effective as those in place at similar
restaurants) under this Agreement;
(ii) any willful or grossly negligent act which materially injures
the reputation, business or any business relationship of the
Restaurant, the Xxxxxx Hotel or the Chartounis;
(iii) any act of moral turpitude or violation of law which would
materially affect the reputation of the Restaurant, the Xxxxxx Hotel
or the Chartounis.
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(f) At the election of the Chartounis on 30 days' notice if Xxxx X.
Xxxxxxxx (i) ceases to be the controlling owner and chief operating officer of
the Restaurant Group or (ii) ceases to supervise and be closely associated with
the rendering of services by the Restaurant Group under this agreement.
(g) At the election of the Chartounis at any time and without any
notice called for in the subparagraphs above, provided the Chartounis deliver a
notice of termination which refers to this subparagraph (g) and the subparagraph
pursuant to which termination is effected and states the amount payable to the
Restaurant Group as compensation for the notice period in the subparagraph
pursuant to which termination is effected which amount shall equal THE SAME
PERCENTAGE of Restaurant Sales WHICH WAS paid for the equivalent period in the
immediately prior year.
(h) At the election of the Restaurant Group, upon one year's notice
to the Chartounis.
(i) At the election of the Restaurant Group, upon 30 days' notice to
the Chartounis for cause, which shall be limited to the Chartounis' insistence
upon an operating policy of the Restaurant so different from the prior operating
policy at the Restaurant, and so different from the operating policy of the
other restaurants operated by the Restaurant Group, as would have a material
negative impact upon the business of the Restaurant Group, and upon the
reputation of the Restaurant Group. As an illustration, an insistence by the
Chartounis upon a substantial increase or decrease in prices would constitute
cause under this paragraph.
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Upon the termination of this Agreement, all fees owing to the
Restaurant Group shall be prorated to the date of termination and paid within
thirty (30) days thereof.
8. INSURANCE.
The Restaurant Group at present maintains insurance coverage for
public liability, automobile, elevator, theft, casualty and property damage,
comprehensive dishonesty, disappearance and destruction, and workmen's
compensation, all as reflected in the policies attached. The Chartounis shall
maintain comparable coverage during the term of this Agreement naming Chartounis
and the Restaurant Group as insureds as their interests shall appear under such
policies, provided, however, that such coverage shall be generally available at
rates comparable to the rates charged for the attached policies, adjusted for
reasonable inflation increases. The Chartounis shall not be required to maintain
coverage which cannot be generally obtained at commercially reasonable rates.
The Restaurant Group shall advise and assist in the review and renewal of such
insurance and, to the extent possible, make available to the Chartounis bulk
rates for such insurance coverage as are available to the Restaurant Group.
9. INDEMNITY.
The Chartounis agree:
(1) To the extent an insurance carrier does not assume the defense in
respect of any claim, action or proceeding against the Restaurant Group or the
Chartounis for actions allegedly within the scope of this Agreement, to defend
promptly and diligently, at the
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Chartounis' expense, any claim, action or proceeding brought against the
Restaurant Group or the Chartounis jointly or severally arising out of or
connected with any of the foregoing, and to hold harmless and fully indemnify
the Restaurant Group from any judgment, loss or settlement on account thereof to
the extent not covered by insurance, regardless of the jurisdiction in which any
such claims, actions or proceedings may be brought.
(2) To the extent not covered by insurance, to indemnify and hold the
Restaurant Group free and harmless from any liability finally determined
pursuant to paragraph (1) above for injury to persons or damage to property by
reason of any cause whatsoever, either in and about the Restaurant, as a result
of the performance of this Agreement by the Restaurant Group, its agents or
employees, irrespective of whether negligence on the part of the Restaurant
Group is alleged.
(3) Notwithstanding the foregoing, the Chartounis shall not be liable to
indemnify and hold the Restaurant Group harmless, and the Restaurant Group
hereby indemnifies and holds the Chartounis free and harmless, from any
liability which results from the "GROSS" negligence, fraud, or willful
misconduct of the Restaurant Group, its agents or employees.
10. BINDING EFFECT
This Agreement shall inure to the benefit of the parties hereto,
their respective successors and assigns, and may be modified only by a writing
signed by both parties, except that this Agreement may not be pledged,
transferred or assigned by the Restaurant Group without prior written approval
by the Chartounis which approval may be withheld for any reason by the
Chartonis.
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11. APPLICABLE LAW.
This Agreement shall be interpreted according to the laws of New
York State.
12. NOTICES.
Notices provided for hereunder shall be deemed given when mailed by
certified mail, return receipt requested, to the addresses of the parties as set
forth in this Agreement, or to such other address as either party may furnish by
a like notice, similarly given.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
year and day first above written.
/s/ Xxxxx Xxxxxxxxx
---------------------------------------
XXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxxxx
---------------------------------------
XXXXX XXXXXXXXX
THE NEW YORK RESTAURANT
GROUP, INC.
By: /s/ [ILLEGIBLE]
---------------------------------------
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MONTH ENDING
DECEMBER 31, 1990
CURRENT MONTH YEAR TO DATE
THIS YEAR PCT LAST YEAR PCT THIS YEAR PCT LAST YEAR PCT
--------- --- --------- --- --------- --- --------- ---
SALES
FOOD 352,991 72.63% 354,191 71.14% 3,294,808 73.03% 3,215,392 72.33%
LIQUOR 38,632 7.95% 40,169 8.07% 367,830 8.15% 386,169 8.69%
BEER 5,947 1.22% 5,755 1.16% 60,454 1.34% 58,671 1.32%
WINE 88,417 18.19% 97,794 19.64% 788,259 17.47% 784,987 17.66%
-------- -------- ---------- ----------
BANQUETS
GROSS SALES 485,986 100.00% 497,909 100.00% 4,511,351 100.00% 4,445,218 100.00%
-------- -------- ---------- ----------
COST OF SALES
FOOD 96,912 27.45% 100,142 28.27% 942,163 28.60% 949,136 29.52%
LIQUOR 7,210 18.66% 6,876 17.12% 59,934 16.29% 61,752 15.99%
BEER 858 14.43% 1,083 18.82% 11,241 18.59% 15,844 27.01%
WINE 28,600 32.35% 31,211 31.91% 269,676 34.21% 268,065 34.15%
BANQUETS
BAR CONSUMMABLES 2,359 6.11% 2,754 6.86% 29,937 8.14% 26,543 6.87%
-------- -------- ---------- ----------
TOTAL COST OF SALES 135,939 27.97% 142,066 28.53% 1,312,950 29.10% 1,321,340 29.72%
-------- -------- ---------- ----------
GROSS PROFIT 350,047 72.03% 355,843 71.47% 3,198,400 70.90% 3,123,878 70.28%
-------- -------- ---------- ----------
INTEREST INCOME 495 .10% 592 .12% 7,062 .16% 5,519 .12%
OTHER INCOME 1,125 .23% 90 .02% 4,695 .10% 2,435 .05%
-------- -------- ---------- ----------
OPERATING INCOME 351,668 72.36% 356,525 71.60% 3,21O,157 71.16% 3,131,832 70.45%
-------- -------- ---------- ----------
PAYROLL RESTAURANT 53,612 11.03% 54,131 10.87% 655,832 14.54% 633,934 14.26%
PAYROLL MANAGERS 61,020 12.56% 52,219 10.49% 430,568 9.54% 413,284 9.30%
MANAGER BONUS
PAYROLL TAXES 10,651 2.19% 13,861 2.78% 102,192 2.27% 100,613 2.26%
OTHER EMPLOYEE BENEFITS 20,605 4.24% 19,472 3.91% 226,501 5.02% 210,200 4.73%
MANAGEMENT FEE 9,720 2.00% 9,958 2.00% 90,227 2.00% 88,904 2.00%
PARTNER FEE 9,720 2.00% 9,958 2.00% 90,227 2.00% 88,904 2.00%
-------- -------- ---------- ----------
TOTAL 165,328 34.02% 159,599 32.05% 1,595,545 35.37% 1,535,839 34.55%
-------- -------- ---------- ----------
MONTH ENDING
DECEMBER 31, 1990
CURRENT MONTH YEAR TO DATE
THIS YEAR PCT LAST YEAR PCT THIS YEAR PCT LAST YEAR PCT
--------- --- --------- --- --------- --- --------- ---
OTHER EXPENSES
STORE RENT/SERVICE FEE 23,067 4.75% 21,358 4.29% 266,551 5.91% 246,807 5.55%
HEAT LIGHT AND POWER 5,488 1.13% 11,707 2.35% 114,423 2.54% 99,675 2.24%
TELEPHONE 1,164 .24% 1,996 .40% 9,627 .21% 13,175 .30%
CARTING 37 .01% 2,214 .44% 27,812 .62% 21,226 .48%
OFFICE EXPENSE 5,201 1.07% 3,022 .61% 38,785 .86% 30,244 .68%
AUTO 524 .11% 557 .11% 4,049 .09% 5,523 .12%
TRAVEL & ENTERTAINMENT 6,303 1.30% 1,018 .20% 24,407 .54% 11,759 .26%
TIPS 26 .01% 30 .01% 347 .01% 1,269 .03%
M & E RENTAL 1,109 .23% 2,059 .41% 12,125 .27% 17,560 .40%
PROFESSIONAL FEES 1,125 .23% 4,367 .88% 12,833 .28% 21,284 .48%
SECURITY 377 .08% 2,245 .05% 1,728 .04%
GIFTS & CONTRIBUTIONS 1,000 .21% (210) -.04% 4,500 .10% 606 .01%
CONSULTANTS FEE 860 .18% 60 .01% 13,158 .29% 5,342 .12%
MISCELLANEOUS 152 .03% 4,513 .91% 1,412 .03% 7,895 .18%
LINENS & UNIFORMS 7,288 1.50% 17,624 3.54% 72,545 1.61% 89,138 2.01%
GLASSWARE 642 .13% 1,091 .22% 5,532 12% 5,751 .13%
CHINA 687 .14% (80) -.02% 17,882 .40% 14,238 .32%
FLATWARE 544 .11% 98 .02% 4,703 .10% 7,360 .17%
PAPER 760 .16% 567 .11% 7,165 .16% 4,541 .10%
CLEANING 1,712 .35% 1,179 .24% 10,174 .23% 11,655 .26%
HARDWARE-KITCHEN & OTHER 3,447 .71% 5,181 1.04% 32,903 .73% 53,339 1.20%
DECORATING 2,398 .49% 2,637 .53% 26,873 .60% 29,086 .65%
PUBLIC RELATIONS 21,821 4.49% 12,403 2.49% 85,445 1.89% 72,030 1.62%
INSURANCE 4,020 .83% 5,026 1.01% 46,123 1.02% 44,666 1.00%
LICENSES 283 .06% 200 .04% 4,267 .09% 3,923 .09%
REPAIRS & MAINTENANCE 9,351 1.92% 11,014 2.21% 87,825 1.95% 97,897 2.20%
ADVERTISING 18,755 3.86% 34,531 6.94% 146,756 3.25% 155,847 3.51%
DUES & SUBSCRIPTIONS 1,133 .23% 1,001 .02% 1,607 .04%
REAL ESTATE TAXES 1,182 .24% 1,392 .28% 11,271 .25% 4,179 .09%
CREDIT CARD CHARGES 15,645 3.22% 18,935 3.80% 146,334 3.24% 150,786 3.39%
COMMERCIAL RENT TAX 1,455 .30% 1,378 .28% 24,126 .53% 15,420 .35%
AMORTIZATION & DEPRECIATION 24,499 5.04% 13,991 2.81% 40,119 .89% 29,481 .66%
INTEREST
BAD DEBTS 582 .12% 156 .03% 1,971 .04% 890 .02%
-------- -------- ---------- ----------
TOTAL OTHER EXPENSES 161,502 33.23% 181,146 36.38% 1,305,289 28.93% 1,275,926 28.70%
-------- -------- ---------- ----------
TOTAL EXPENSES (326,830) -67.25% (340,745) -68.44% (2,900,834) -64.30% (2,811,765) -63.25%
-------- -------- ---------- ----------
NET INCOME BEFORE TAXES
AND SPECIAL ITEMS 24,837 5.11% 15,780 3.17% 309,323 6.86% 320,066 7.20%
OTHER INCOME/EXPENSE
FIRE EXPENSE
PRIOR YEAR EXPENSE 3,090 .62% .00%
NET INCOME BEFORE TAXES 24,837 5.11% 12,690 2.55% 309,323 6.86% 320,066 7.20%
-------- -------- ---------- ----------
TAXES (1,399) -.29% (9,489) -1.91% 5,501 .12% 12,372 .28%
-------- -------- ---------- ----------
NET INCOME 26,236 5.40% 22,179 4.45% [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
MONTH ENDING
DECEMBER 31, 1990
ASSETS
CURRENT ASSETS
CASH & EQUIVALENTS 296,745
RECEIVABLES 65,764
INVENTORY 125,972
PREPAID EXPENSES 29,543
TOTAL CURRENT ASSETS 518,023
OTHER ASSETS
DEPRECIABLE ASSETS 562,285
ACCUM DEP'N & AMORT (433,061)
129,225
NON DEPRECIABLE ASSETS 5,213
OTHER ASSETS (150)
TOTAL OTHER ASSETS 134,288
TOTAL ASSETS 652,310
LIABILITIES & EQUITY
LIABILITIES
A/P & ACCRUED EXPENSES 228,654
NOTES/LOANS PAYABLE
OTHER LIABILITIES 41,887
TOTAL LIABILITIES 270,541
EQUITY
RETAINED EARNINGS
PARTNERS CAPITAL/CAPITAL STOCK 327,948
PARTNERS DISTRIBUTION (250,000)
77,948
NET INCOME 303,822
TOTAL EQUITY 381,769
TOTAL LIABILITIES & EQUITY 652,310
=====================================================================
POST HOUSE
=====================================================================
CURRENT MONTH YEAR TO DATE
THIS YR LAST YR THIS YR LAST YR
=====================================================================
7,890 8,160 COVERS 76,712 76,449
---------------------------------------------------------------------
$44.74 $43.41 FOOD $42.95 $42.06
$4.90 $4.92 LIQUOR $4.79 $5.05
$0.75 $0.71 BEER $0.79 $0.77
$11.21 $11.98 WINE $10.28 $10.27
---------------------------------------------------------------------
$61.60 $61.02 TOTAL $58.81 $58.15
=====================================================================
DECEMBER 90
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FIRST AMENDMENT TO RESTAURANT MANAGEMENT AGREEMENT made as of the 6 of
December, 1994 by and between Post House Investors L.P. having an office at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX ("Post House Investors") and the New York
Restaurant Group, Inc., a domestic corporation with offices at 0000 Xxxxx
Xxxxxx, Xxx Xxxx, XX ("Restaurant Group").
W I T N E S S E T H
WHEREAS pursuant to an agreement made as of the 26th day of February,
1991, between XXXXX XXXXXXXXX and XXXXX XXXXXXXXX, on the one hand, and the
Restaurant Group on the other hand, the CHARTOUNIS retained the Restaurant Group
as an independent contractor to provide administrative managerial and operating
services in connection with the operation of the restaurant known as the POST
HOUSE; and
WHEREAS POST INVESTORS are the designees of XXXXX XXXXXXXXX and XXXXX
XXXXXXXXX under a certain asset purchase agreement dated November 20, 1991
concerning the purchase of the POST HOUSE RESTAURANT from POST HOUSE ASSOCIATES;
and
WHEREAS on the closing of such sale POST HOUSE INVESTORS agreed to be
bound under the terms of the February 26, 1991 management agreement; and
WHEREAS the closing of such asset purchase agreement took place on January
24, 1992; and
WHEREAS the term of the restaurant management agreement commenced on such
closing date, that is January 24, 1992; and
WHEREAS, by its terms, the restaurant management agreement commenced on
such date for the term of three years, expiring on January 23, 1995; and
WHEREAS the parties wish to extend the term of such restaurant management
agreement, and to amend the terms thereof in certain respects.
Now, therefore in consideration of the mutual covenants herein contained
and other good and valuable consideration, it is agreed as follows:
1. The term of the February 26, 1991 management agreement shall be
extended for an additional two years commencing on January 24, 1995 and
terminating on January 23, 1997.
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2. Paragraphs 3, "Compensation", 4, "Additional Compensation" and 5, "Cost
Control Compensation" shall be deleted from the February 26, 1991 agreement and
replaced by a new paragraph 3, "Compensation", which shall read as follows:
3. COMPENSATION
a. As compensation for the Restaurant Group's services hereunder,
Post House Investors shall pay to the Restaurant Group an amount equal to 5% of
all Restaurant Sales (as hereinafter defined) with respect to each month (or
portion thereof at the beginning and end of the term of this Agreement). Such
amount shall be paid within seven (7) days after the end of each calendar month.
b. For the purposes of this paragraph, the parties shall be bound by
the financial statement of the certified public accountants retained by Post
House Investors as accountants for the Restaurant.
c. The term "Gross Sales" shall mean all monies received by Post
House Investors or for their account from the operation of the Restaurant, Room
Service and Breakfast Service, in cash, by credit card or otherwise, but less,
as to all the foregoing, in respect to the Restaurant and such Services, bona
fide refunds to customers, uncollected amounts, gratuities and tips in fact paid
out by the Restaurant to employees of the Restaurant, and taxes imposed and paid
by the Restaurant on customer checks.
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For the purposes of clarification, Gross Sales shall be calculated
in the same manner as on the calendar year 1990 Financial Statement of the POST
HOUSE RESTAURANT, a true copy of which is attached hereto as Exhibit "A".
3. The parties acknowledge that the total compensation payable to the
Restaurant Group is as set forth in paragraph 3, "Compensation", outlined above.
4. Except as herein specifically amended, the February 26, 1991 agreement
shall remain in full force and effect.
IN WITNESS WHEREOF the parties hereto have executed this agreement on the
year and day first above written.
POST HOUSE INVESTORS, L.P.
BY: KENSICO PROPERTIES, N.Y., INC.
BY: /s/ Xxxxx Xxxxxxxxx
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XXXXX XXXXXXXXX, PRES.
THE NEW YORK RESTAURANT GROUP, INC.
BY: /s/ [ILLEGIBLE]
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SECOND AMENDMENT TO RESTAURANT MANAGEMENT AGREEMENT made as of
the 29 of October 1996 by and between Post House Investors L.P. having an
office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX ("Post House Investors") and the
New York Restaurant Group, Inc., a domestic corporation with offices at 0000
Xxxxx Xxxxxx, Xxx Xxxx, XX ("Restaurant Group").
W I T N E S S E T H
WHEREAS, pursuant to an agreement made as of the 26th day of
February, 1991, between XXXXX XXXXXXXXX and XXXXX XXXXXXXXX, on the one hand,
and the Restaurant Group on the other hand, the CHARTOUNIS retained the
Restaurant Group as an independent contractor to provide administrative
managerial and operating services in connection with the operation of the
restaurant known as the POST HOUSE; and
WHEREAS, POST INVESTORS are the designees of XXXXX XXXXXXXXX and
XXXXX XXXXXXXXX under a certain asset purchase agreement dated November 20, 1991
concerning the purchase of the POST HOUSE RESTAURANT from POST HOUSE ASSOCIATES;
and
WHEREAS, on the closing of such sale POST HOUSE INVESTORS agreed to
be bound under the terms of the February 26, 1991 management agreement; and
WHEREAS, the closing of such asset purchase agreement took place on
January 24, 1992; and
WHEREAS, the term of the restaurant management agreement commenced
on such closing date, that is January 24, 1992; and
WHEREAS, by its terms, the restaurant management agreement commenced
on such date for the term of three years, expiring on January 23, 1995; and
WHEREAS, by agreement dated December 12, 1994, the parties extended
the term of such agreement for a period of two years, through January 23, 1997,
and amended the agreement in certain respects, and
WHEREAS, the parties wish to further extend the term of such
restaurant management agreement, and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, it is agreed as follows:
1. The term of the February 26, 1991 management agreement shall be
extended for an additional two years commencing on January 24, 1997 and
terminating on January 23, 1999.
2. As compensation for the Restaurant Group's services, during the
term of this renewal, Post House Investors shall pay to the Restaurant Group an
amount equal to 6% of all Restaurant sales, as defined in the December 6, 1994,
first amendment to Restaurant Management Agreement.
3. Except as herein specifically amended herein, and in the December
6, 1994 first amendment, the February 26, 1991 agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this agreement
on the year and day first above written.
POST HOUSE INVESTORS, L.P.
BY: KENSICO PROPERTIES, N.Y., INC.
/s/ Xxxxx Xxxxxxxxx
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XXXXX XXXXXXXXX, PRES.
THE NEW YORK RESTAURANT GROUP, LLC
BY: /s/ [ILLEGIBLE]
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2
THIRD AMENDMENT TO RESTAURANT MANAGEMENT AGREEMENT made as of the 29th of
October, 1996 by and between Post House Investors L.P. having an office at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Post House Investors") and the New York
Restaurant Group, Inc., a domestic corporation with offices at 0000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Restaurant Group").
WITNESSETH
WHEREAS, pursuant to an agreement made as of the 26th day of February,
1991, between XXXXX XXXXXXXXX and XXXXX XXXXXXXXX, on the one hand, and the
Restaurant Group on the other hand, the CHARTOUNIS retained the Restaurant Group
as an independent contractor to provide administrative managerial and operating
services in connection with the operation of the restaurant known as the POST
HOUSE; and
WHEREAS, POST HOUSE INVESTORS are the designees of XXXXX XXXXXXXXX and
XXXXX XXXXXXXXX under a certainf asset purchase agreement dated November 20,
1991 concerning the purchase of the POST HOUSE RESTAURANT from POST HOUSE
ASSOCIATES, and
WHEREAS, on the closing of such sale POST HOUSE INVESTORS agreed to be
bound under the terms of the February 26, 1991 management agreement; and
WHEREAS, the closing of such asset purchase agreement took place on
January 24, 1992; and
WHEREAS, the term of the restaurant management agreement commenced on such
closing date, that is January 24, 1992; and
WHEREAS, by its terms, the restaurant management agreement commenced on
such date for the term of three years, expiring on January 23, 1995; and
WHEREAS, by agreement dated December 12, 1994, the parties extended the
term of such agreement for a period of two years, through January 23, 1997, and
amended the agreement in certain respects, and
WHEREAS, by agreement dated October 29, 1996, the parties further extended
the term of such agreement for an additional period of two years, through
January 23, 1999; and
WHEREAS, the parties wish to further extend the term of such restaurant
management agreement, and
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, it is agreed as follows:
1. The term of the February 26, 1991 management agreement shall be
extended for an additional two years commencing on January 24, 1999 and
terminating on January 23, 2001.
2. As compensation for the Restaurant Group's services, during the term of
this renewal, Post House Investors shall pay to the Restaurant Group an amount
equal to 6% of all Restaurant sales, as defined in the December 6, 1994, first
amendment to Restaurant Management Agreement.
3. Except as herein specifically amended herein, and in the December 6,
1994 first amendment, and October 29, 1996 second amendment, the February 26,
1991 agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on the
year and day first above written
POST HOUSE INVESTORS, L.P.
By: KENSICO PROPERTIES, N.Y., INC.
/s/ Xxxxx Xxxxxxxxx
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XXXXX XXXXXXXXX, PRES.
THE NEW YORK RESTAURANT GROUP, INC.
By: /s/ [ILLEGIBLE]
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