EXHIBIT 10(u)
LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT
THIS LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT, (the
"Agreement"), made and entered into this _____ day of February, 1997, by and
among B.D. 15 CORP., a Florida corporation, (the "General Partner"), and all
other parties who shall execute this Agreement or any counterpart thereof,
collectively, (the "Limited Partners"). The Limited Partners, as constituted
from time to time, and the General Partner are sometimes herein collectively
referred to as the "Partners".
W I T N E S S E T H :
WHEREAS, the Partners desire to form a limited partnership (the
"Partnership") pursuant to the Uniform Limited Partnership Act of the State of
Florida upon the terms and conditions hereinafter set forth;
NOW THEREFORE, intending to be legally bound hereby, the Partners agree
as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall (unless otherwise
expressly provided herein or unless the context clearly requires otherwise) have
the following meanings:
1.1 Additional Capital Balance. The Additional Capital Contributions,
if any, of the General Partner, as reduced from time to time by all cash
distributions to such General Partner which, pursuant to the terms of this
Agreement, are in reduction of the General Partner's Additional Capital Balance,
and as increased from time to time by any contributions of the General Partner
which are Additional Capital Contributions.
1.2 Additional Capital Contributions. Any additional cash contributions
of the General Partner to the capital of the Partnership pursuant to Section 3.5
hereof.
1.3 Agreement. This Limited Partnership Certificate and Agreement.
1.4 Capital Balance. The Initial Capital Contribution made by a Partner
in cash and the fair market value of any contributions in kind, (as set forth in
this Agreement), as reduced from time to time by all cash distributions to such
Partner which, pursuant to the terms of this Agreement, are in reduction of a
Partner's Capital Balance.
1.5 Capital Commitment. The Capital Commitment with respect to any
Limited Partner is his obligation to contribute the aggregate amount to be paid
for the Units (computed at the rate of $5,000.00 per Unit) subscribed for by him
pursuant to his Subscription Agreement and set opposite his name on the
signature page attached to this Agreement, and with respect to the General
Partner, is its obligation to make its original Capital Contribution pursuant to
Section 3.1 hereof.
1.6 Initial Capital Contribution. The Contribution made by each Partner
pursuant to its Capital Commitment.
1.7 Code. The Internal Revenue Code of 1954, as amended.
1.8 General Partner. The General Partner is B.D. 15 Corp. or any
successor general partner as provided herein.
1.9 General Partner's Capital. The combined total Capital Balance and
Additional Capital Balance of the General Partner.
1.10 Law. The Uniform Limited Partnership Act of the State of Florida
in effect from time to time during the term hereof.
1.11 Limited Partner. The Limited Partners hereunder and any such
persons admitted to the Partnership as substituted Limited Partners.
1.12 Limited Partners' Capital. The total of the Capital Balance of all
Limited Partners.
1.13 Limited Partner Percentage. In respect of any Limited Partner the
percentage obtained by converting to a percentage the fraction having the
Initial Capital Contribution of such Limited Partner as its numerator and having
the Limited Partners' Capital as its denominator.
1.14 Net Cash Flow. Net Cash Flow of the Partnership, with respect to a
fiscal period, shall mean Net Income of the Partnership for such period, reduced
by (i) any repayments of principal on loans of the Partnership, (excluding
General Partner's Loans, the principal amounts of which are payable out of Net
Cash Flow as stated in Article VIII hereof), (ii) any capital expenditures and
prepaid expenses to the extent not included in the determination of Net Income,
(iii) any Net Sale Proceeds to the extent included in the determination of Net
Income, and (iv) reasonable additions to a reserve, (as determined in the sole
discretion of the General Partner); and increased by any receipts by the
Partnership which are not included in the determination of Net Income.
1.15 Net Income. Net Income of the Partnership with respect to any
fiscal period shall mean the excess of the gross sales for such period over all
operating expenses for such period, as those terms are defined herein,
determined on an accrual basis and determined without regard to amounts deducted
by the Partnership for cost recovery of tangible assets or amortization of
capitalized or other capital accounts.
1.16 Net Loss. Net Loss of the Partnership with respect to any fiscal
period shall mean that excess of all operating expenses for such period over the
gross sales for such period, as those terms are defined herein, determined on an
accrual basis and determined without regard to amounts deducted by the
Partnership for cost recovery of tangible assets or amortization of capitalized
expenditures or other capital accounts.
1.17 Net Sale Proceeds. The proceeds realized by the Partnership upon
the sale, exchange or other disposition of all or any substantial part of the
Partnership property, net of expenses incident to such sale, the payment of any
Partnership indebtedness secured by or related to any such assets and
satisfaction of any right of any creditor of the partnership (other than a
Partner) to receive such proceeds.
1.18 Participation Percentage. Throughout the term of this Agreement,
the Participation Percentage of the Limited Partners is fifty percent (50%)
(allocated to each Limited Partner in proportion to his Limited Partnership
Percentage) and the Participation Percentage of the General Partner is fifty
percent (50%).
1.19 General Partner's Loans. All amounts loaned by the General Partner
to the Partnership pursuant to Section 3.5 hereof.
1.20 Subscription Agreement. The Instrument by which each prospective
Limited Partner agrees to purchase Units.
1.21 Substitute Limited Partner. A person admitted to all of the rights
of a Limited Partner who has died or assigned his interest in the Partnership,
or in the case of a Limited Partner that is a partnership, joint venture,
association, corporation or trust, that has been dissolved or assigned its
interest in the Partnership.
1.22 Unit. A Unit means an interest of a Limited Partner in the Limited
Partners' Capital of the Partnership with an original subscription value of
$5,000.00.
ARTICLE II
THE LIMITED PARTNERSHIP
2.1 Formation of Partnership. The parties hereto agree to form and by
execution of this Agreement do hereby enter into a limited partnership pursuant
to Chapter 620, et seq., of the Florida Statutes, entitled "Uniform Limited
Partnership Act" ("Law") which Law shall govern the rights and liabilities of
the parties hereto, except as otherwise herein expressly stated.
2.2 Partnership Name. The name of the Partnership is CIC INVESTORS #15,
LTD. The General Partner, in its sole discretion, may change the name of the
Partnership at any time and from time to time. The General Partner and the
Limited Partners hereto shall promptly execute and the General Partner shall
file and record with the proper offices in each state, including any political
subdivision thereof, in which the Partnership does, or elects to do, business
and publish such certificates or other statements or instruments as are required
by the Limited Partnership Law, Beverage Regulations, Fictitious Name Law,
Assumed Name Law or any other similar statute in effect from time to time in
such state or political subdivision in order to validly conduct the business of
the Partnership therein as a limited partnership.
2.3 Character of Business and Purpose of the Partnership. The business
and purpose of the Partnership shall be to own, renovate and operate a
restaurant located at 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000 and most recently operating as "BARRACUDA BOB'S", as a franchise of
XXXXXXXX'X ENTERPRISES, INC., (the "Business"), but specifically excludes any
interest of any kind in the building and property owned by the landlord.
2.4 Principal Place of Business. The principal place of business of the
Partnership shall be at 0000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000. The General Partner may change the principal place of business or
establish such other place or places of business for the Partnership as it may,
from time to time, deem necessary or appropriate, provided however, that the
General Partner shall give the Limited Partners notice of any change of address
of the principal place of business of the Partnership at least ten (10) days
prior to any such change.
2.5 Term of Partnership. The Partnership shall commence on the date
that this Agreement has been filed in accordance with the provision of the Law
and shall continue until the earlier of the following:
(i) Failure of the Partners to have a liquor license issued for
the Business by the Division of Alcoholic Beverages and
Tobacco within ninety (90) days of the date of this Agreement;
or
(ii) Revocation of the liquor license for the Business by the
Division of Alcoholic Beverage and Tobacco followed by the
inability of the Partners, after the exercise of their best
efforts, to cause such liquor license to be reinstated within
a ninety (90) day period; or
(iii) Dissolution or termination pursuant to the provisions of
Article X of this Agreement.
2.6 Names and Residences of Partners.
A. The name and address of the General Partner is:
B.D. 15, Corp.
0000 Xxxx Xxxxxxx Xxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
B. The names and places of residences of the Limited
Partners are set forth on the signature pages
attached hereto together with those persons who may,
from time to time, be admitted by the General Partner
as Substitute Limited Partners in accordance with the
terms of this Agreement.
2.7 Nature of Partners' Interests. The interests of the Partners in the
Partnership shall be personal property for all purposes. All property owned by
the Partnership, whether real or personal, tangible or intangible, shall be
owned by the Partnership as an entity and no Partner, individually, shall have
any ownership of such property.
2.8 Non-Partition. No Partner shall be entitled to seek partition of
any Partnership property.
ARTICLE III
CAPITAL CONTRIBUTIONS;
ADDITIONAL CAPITAL CONTRIBUTIONS;
GENERAL PARTNER'S LOANS; AND
REIMBURSEMENT OF EXCESS CAPITAL CONTRIBUTION
3.1 General Partner. The General Partner shall contribute to the
Partnership cash in an amount equal to one percent (1%) of the total Initial
Contributions of the Partners and other property as set opposite its name on the
signature page attached to this Agreement.
3.2 Limited Partners. The Limited Partners' Capital shall be measured
in terms of Units and a Limited Partner shall contribute $5,000.00 for each Unit
purchased. Each Limited Partner shall purchase a minimum of one (1) Unit. Each
Limited Partner shall contribute to the Partnership as his Initial Capital
Contribution an amount equal to the amount of his Capital Commitment as set
forth in the Subscription Agreement executed by him or her and set opposite his
name on the signature page attached to this Agreement. The amount of Capital
Commitment shall be paid in cash by the Limited Partner upon execution and
delivery of the Subscription Agreement.
3.3 Capital Accounts. The Partnership will maintain for each Partner an
account to be designated "Capital Account", to which will be added the Partner's
Initial Capital Contribution, Additional Capital Contributions and distributive
share of the profits of the Partnership, and against which will be deducted the
Partner's distributive share of the losses of the Partnership and all
distributions made to the Partner. A Partner's Capital Account may, at any point
in time, be the same as or different from such Partner's Capital Balance and may
have a negative balance resulting from the Partner's share of distributions and
losses in excess of the Partner's Initial Capital Contribution and Additional
Capital Contributions.
3.4 Use of Capital Contributions and Loans. The Initial Capital
Contributions of the Partners, all proceeds of Partnership borrowings, and any
Additional Capital Contributions or General Partner's Loans made pursuant to
this Agreement, shall be used to change and convert the business premises of the
Business to the General Partner's "Piranha Pat's II" restaurant concept and as
working capital.
3.5 Additional Capital Contributions and General Partner's Loans.
A. Other than as expressly set forth in this Article III, no
Limited Partner shall be required or permitted to make any Additional Capital
Contributions, Partner's Loans, or other contributions, loans or advances to the
Partnership; however, the General Partner may make, in its sole discretion,
Additional Capital Contributions, Loans, or advances to the Partnership.
B. If the General Partner advances any funds to the
Partnership after the date of this Agreement (except in the case of Additional
Capital Contributions), such advances will be treated as General Partner's
Loans, will not increase the General Partner's Participation Percentage, and the
amount thereof will be a debt due from the Partnership to the General Partner,
entitled to the priorities described in Sections 8.1 and 8.2 hereof, to be
repaid with such interest as provided.
3.6 Withdrawal of Capital. Prior to the dissolution and liquidation of
the Partnership, no Partner shall have the right, during the term of the
Partnership, to require the return of all or any portion of his or her/its
Initial Capital Contribution, except that distributions made in accordance with
Article VIII may represent in whole or in part a return of capital. Upon any
return of partnership capital this Agreement shall be amended as provided by the
Law.
3.7 Interest on Capital Contributions. No interest shall be payable
with respect to any capital contributed to the Partnership.
3.8 No Priority Among Limited Partners. No Limited Partner shall have
any priority over any other Limited Partner as to the return of his Initial
Capital Contribution or as to compensation by way of income or as to allocation
of profits and losses or distributions of cash.
3.9 Excess Capital Contribution. In the event that the cost to change
and convert the business premises of the Business, including both cash and the
fair market value of any property contributed in kind, reasonable reserves and
organizational costs hereof do not equal or exceed Four Hundred Thousand Dollars
($400,000.00), any excess shall be returned to the Limited Partners, pro-rata,
as a partial refund of their Initial Capital Contribution. Upon any return of
partnership capital, this Agreement shall be amended as required by Law.
ARTICLE IV
LIMITED PARTNERS
4.1 Limited Liability of Limited Partners. No Limited Partner shall be
liable for any of the losses, debts or obligations of the Partnership beyond the
amount of his Capital Commitment or be required to contribute any capital beyond
his Capital Commitment, or be required to lend any funds to the Partnership,
except that a Limited Partner may be required by law to return any or all of
that portion of his Initial Capital Contribution which has been distributed to
him, with interest, if necessary to discharge Partnership liabilities to all
creditors who extended credit or whose claims arose prior to such return of
capital.
4.2 Restrictions on Limited Partners.
A. No Limited Partner shall participate in the management and control
of the business of the Partnership, transact any business for the Partnership,
or attempt to do so; and
B. No Limited Partner shall have the power to represent, sign for or
bind the General Partner or the Partnership.
4.3 Rights and Powers of Limited Partners.
A. Any Limited Partner may engage in or own an interest in any other
business ventures which may be engaged in the same or similar businesses as that
of the Partnership.
B. Each Limited Partner shall be entitled to participate in meetings
regarding the affairs of the Partnership and to do all other things with respect
to the business and affairs of the Partnership permitted by the Law.
4.4 Admission of Additional Limited Partners. No additional Limited
Partners shall be admitted to the Partnership; provided however, that the
General Partner may admit Substitute Limited Partners at any time pursuant to
Article IX.
ARTICLE V
GENERAL PARTNER
5.1 Rights and Powers.
A. The General Partner shall have the full and exclusive discretion,
right and power to manage, control and operate the Partnership and to do all
things necessary to operate the Business. The General Partner shall change and
convert the existing facility to its "Piranha Pat's" restaurant concept. During
the term of this Agreement and while the General Partner continues to act in the
capacity of General Partner of the Partnership, but not thereafter, the General
Partner shall permit the Partnership to use the servicemark "Piranha Pat's II"
for the Business and shall supervise the day to day operation of the same under
the same format and standards as used in the existing "Piranha Pat's"
restaurant. The Business shall include exclusive management of the restaurant
located within the business premises for the service of lunch and dinner each
day.
B. The General Partner is specifically authorized and empowered, on
behalf of the Partnership, and without any further consent of the Limited
Partners, to do any act or execute any document or enter into any contract or
any agreement of any nature necessary or desirable, in the sole discretion of
the General Partner, in pursuance of the business and purposes of the
Partnership, including but not limited to the operation of the Business. Without
limiting the generality of the foregoing, and subject to the provisions of
Section 5.2, the General Partner shall have the following rights and powers to
act on behalf of the Partnership, which it may exercise at the cost, expense and
risk of the Partnership:
(i) Purchase such furniture, fixtures and equipment and make such
leasehold improvements as are required by the General Partner
for the renovation of the business premises of the Business.
(ii) Place record title to, or the right to use, the property or
other assets of the Partnership in the name or names of a
nominee or nominees for any purpose convenient or beneficial
to the Partnership.
(iii) Execute contracts, leases, licenses, options to lease or
purchase, rental agreements, concession agreements, use
agreements and the like, of and with respect to Partnership
property.
(iv) Make elections under the tax laws of the United States or any
state as to the treatment of Partnership income, gains, loss,
deduction and credit, and as to all relevant matters.
(v) Provide or contract for such management services as may be
required for the operation of the Business, including but not
limited to full payroll services, all accounting and
bookkeeping services for the operation of the Business, as an
expense of the Business, (including the preparation and
forwarding of monthly sales tax returns, monthly liquor excise
taxes and annual federal partnership returns), and prompt
payment of all bills incurred in the normal operation of the
Business.
(vi) Establish overall business policy and objectives.
(vii) Provide overall executive supervision of operations of the
Business.
(viii) Generally supervise employees and others performing services
for the benefit of and in the operation of the Business.
(ix) Provide advise and arrange for advertising, display and sales
promotion of the
Business.
(x) Oversee the operation of the Business in the areas of
management, sales and
purchasing.
(xi) Arrange for the supervision of the daily operations of the
Business with responsibility for (1) hiring and firing
employees and other service personnel, (2) salary
administration and compensation policies, (3) incentive
programs, (4) inventory purchase and control, (5) pricing of
all goods and services, (6) business procedures, and (7)
controlling daily operational expenses.
(xii) Keep the Business insured against liability claims arising out
of the operation of the restaurant, as an operating expense of
the Business, with insurance coverage in an amount not less
than One Million Dollars ($1,000.000.00), combined single
limit, including liquor liability and products liability. The
General Partner shall cause the Limited Partnership and
itself, to be named as additional insureds on the liability
insurance policy and provide the Limited Partnership and
itself with Certificates of Insurance as evidence of its
compliance with the provisions hereof.
(xiii) Purchase and maintain worker's compensation insurance for the
employees of the Business, as an operating expense of the
Business.
(xiv) Keep the personal property, fixtures and equipment of the
Business reasonably insured against damage by fire and other
casualty, in an amount equal to its highest insurable value,
with replacement cost endorsement, as an expense of the
Business.
(xv) Keep the Business reasonably insured against loss of business
due to fire and other casualty with business interruption
insurance, in an amount to be determined by the General
Partner, as an expense of the Business.
(xvi) Arrange and pay all charge for telephone services, all
utilities, including without limitation, electrical, gas and
water, and cable or other electronic transmission necessary
for operation of the Business, as an expense of the Business.
(xvii) Arrange for trash collection and removal from the Business, as
an expense of the Business.
(xviii) Make all normal repairs and replacements to the kitchen
equipment and interior, non-structural repairs and
replacements of the Business only, in order to keep the same
in good condition and good working order to the extent that
the General Partner deems it necessary.
(xix) To pay, collect, compromise, arbitrate, resort to legal action
or otherwise adjust claims or demands of or against the
Partnership.
(xx) To borrow money for any Partnership purpose and to make all
required payments of principal and interest with respect
thereto.
(xxi) To timely comply with and abide by all of those obligations,
terms, covenants and conditions imposed upon the Partnership
as lessee of the Sublease Agreement for the business premises
of the Business, including but not limited to the timely
payment of rent, as an expense of the Business.
(xxii) To timely comply with and abide by all of those obligations,
terms, covenants and conditions imposed upon the Partnership
as franchisee of the Franchise Agreement with Xxxxxxxx'x
Enterprises, Inc., including the timely payment of all royalty
fees, franchise fees and advertising contributions.
(xxiii) To promptly comply with, execute and fulfill all governmental
statutes, ordinances and regulations applicable to the
Partnership in connection with the Business, including without
limitation, all orders and requirements imposed by the Board
of Health, sanitation, fire and police departments including
without exception those for the correction, prevention and
abatement of nuisances in or upon or connected with the
business premises of the Business, as an expense of the
Business.
The General Partner shall be responsible for the procurement and hiring
of all employees, agents and independent contractors required for on site
operation on a day to day basis including, but not limited to, a manager. The
General Partner shall control all of the day to day operations of the Business
and shall handle all negotiations, complaints, objections and other matters
involving the operation of the Business, the patrons of the Business, and the
employees and staff or any sublessee of or operator of any portion of the
Business in connection with activities at the Business. The General Partner
shall hire, instruct, maintain and supervise personnel to properly staff the
Business and shall maintain the Business, the interior, non-structural portion
of the building it occupies, its fixtures and its premises in a reasonable
manner and condition, keeping it clean and serviceable, including arranging for
janitorial services as an expense of the Business. The General Partner shall
have the full responsibility to collect for all services and sales from the
Business, except as hereinafter provided, to daily deposit all receipts in bank
account(s) designated by the General Partner, shall arrange for advertising for
the Business to the extent deemed desirable by the General Partner and maintain
all necessary licenses, including liquor license, and permits required in
connection with the operation of the Business. The cost of such activities,
including license renewal fees, incurred for the Business shall be borne by the
Business.
In discharging the foregoing duties, the General Partner shall act and
conduct the Business in a reasonable manner. In order for the General Partner to
have the greatest opportunity to discharge such duties and to maximize profits
from the Business, the Limited Partner shall cooperate fully with the General
Partner and shall promptly provide the General Partner with all information and
assistance as the General Partner may reasonably request pursuant to this
Agreement. The General Partner shall devote such time to the Business as, in its
judgment, the supervision of the Business shall reasonably require, but shall
not be obligated to do or perform any act or thing in connection with the
Business not expressly set forth herein.
5.2 Certain Limitations. In addition to other acts expressly prohibited
by this Agreement or by the Law, the General Partner shall not have any
authority to:
A. Do any act in contravention of this Agreement;
B. Do any act which would make it impossible to operate the Business or
to otherwise carry on the ordinary business of the Partnership or any phase
thereof, except as expressly provided in this Agreement;
C. Assign the rights of the Partnership in specific property for other
than a Partnership purpose;
D. Admit a person or entity as a General Partner or as a Limited
Partner, except as otherwise provided in this Agreement;
E. Knowingly or willingly do any act which would cause the Partnership
to become an association taxable as a corporation;
5.3 Contracts with Affiliates. Except as herein specified, all services
which the General Partner is not obligated to perform under the terms of this
Agreement and the materials necessary for the operation of the Business may be
provided by the General Partner, or any entity affiliated with the General
Partner, and the General Partner shall be compensated for such services or
materials on such terms and conditions no less favorable than those obtainable
in the marketplace, and such amounts shall be deemed to be operating expenses of
the Business.
5.4 Liability of General Partner. The General Partner shall be liable
to the Limited Partners for willful misconduct, bad faith or gross negligence,
but shall not be liable for errors in judgment or for any acts or omissions that
do not constitute willful misconduct, bad faith or gross negligence. In all
transactions for or with the Partnership, the General Partner shall act in good
faith and for the benefit of the Partnership. The Limited Partners shall look
solely to the assets of the Partnership for the return of their Initial Capital
Contributions and if the assets of the Partnership remaining after payment or
discharge of the debts and liabilities of the Partnership are insufficient to
return such Initial Capital Contributions, they shall have no recourse against
the General Partner for such purpose. The doing of any act or the failure to do
any act by the General Partner, the effect of which may cause or result in loss
or damage of the Partnership, if done pursuant to advise of legal counsel or
accountants employed by the General Partner on behalf of the Partnership, shall
be conclusively presumed not to constitute willful misconduct, bad faith or
gross negligence on the part of the General Partner.
5.5 Indemnification. The General Partner, including any employee of the
General Partner, shall not be liable for, and to the extent of its assets, the
Partnership shall indemnify the General Partner or any such employee, against
liabilities arising out of their activities as or for the General Partner
resulting from errors in judgment or any acts or omissions, whether or not
disclosed, unless caused by willful misconduct, bad faith or gross negligence;
provided, however, that this provision shall not constitute a waiver by the
Limited Partners of any rights it may have under applicable securities laws.
ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES
6.1 General. All Partnership items of income, gain, loss, deduction,
credits, or tax preference items, (the "Tax Incidents"), shall be determined as
of the end of each fiscal year. As between a Partner and his transferee, Tax
Incidents for any fiscal year (or portion thereof, as the case may be) shall be
apportioned in accordance with the ratio that the number of days in the
Partnership fiscal year prior to the effective date of transfer bears to the
number of such days thereafter (including the effective date of the transfer).
6.2 Allocation. The Tax Incidents shall be allocated as follows:
A. Cost recovery deductions, amortization expense (including
amortization of organizational expenses, start up costs, intangible assets, or
other capital accounts), investment tax credits (including recapture of
investment tax credits), and tax preference items shall be allocated ninety-nine
percent (99%) to the Limited Partners and one percent (1%) to the General
Partner (in proportion to each Partner's Initial Capital Contribution), if
incurred with respect to the expenditure by the Partnership of the aggregate
Initial Capital Contributions of the Partners, (which shall be deemed expended
prior to any other amounts available to the Partnership), otherwise to the
Partners in accordance with their respective Participation Percentages.
B. Gains and losses from (i) sale, exchange or other disposition of all
or any substantial part of the Partnership property, or (ii) from liquidation of
the Partnership property following dissolution, as the case may be, shall be
allocated on an asset by asset basis, as follows:
(1) Gains, to the extent of cost recovery deductions or
amortization expense claimed by the Partnership with respect
to the particular Partnership assets which are sold, exchanged
or otherwise disposed of, shall be allocated ninety-nine
percent (99%) to the Limited Partners and one percent (1%) to
the General Partner (in proportion to each Partner's Initial
Capital Contribution), if realized with respect to an asset
acquired by the Partnership through the expenditure of the
aggregate Initial Capital Contributions of the Partners,
(which shall be deemed expended prior to any other amounts
available to the Partnership), otherwise to the Partners in
accordance with their respective Participation Percentages;
(2) Gains in excess of cost recovery deductions or amortization
expense claimed by the Partnership with respect to the
particular Partnership assets which are sold, exchanged or
otherwise disposed of, shall be allocated to all Partners in
the same proportion that the Partners actually receive
distributions of proceeds from Net Sale Proceeds as provided
in Section 8.2 hereof, (except distributions pursuant to
Section 8.2(a)); and
(3) All losses shall be allocated ninety-nine percent (99%) to the
Limited Partners and one percent (1%) to the General Partner
(in proportion to each Partner's Initial Capital
Contribution), if realized with respect to an asset acquired
by the Partnership through the expenditure of the aggregate
Initial Capital Contributions of the Partners, (which shall be
deemed expended prior to any other amounts available to the
Partnership), otherwise to the Partners in accordance with
their respective Participation Percentages.
C. All Tax Incidents other than those specifically allocated by
subparagraph (A) and (B), ("Other Tax Incidents"), shall be allocated to the
Partners in the same proportion that the Partners actually receive in that same
fiscal year cash distributions from Net Cash Flow as provided in Section 8.2
hereof, (except cash distributions pursuant to Section 8.2(a)), (the "Cash
Distributions"), provided nevertheless as follows:
(1) Other Tax Incidents shall be allocated in any fiscal year to
the Partners so receiving Cash Distributions in the same
proportion that such Cash Distributions actually are received
only if such Cash Distributions actually distributed equal or
are greater than the Partnership's Net Income for the same
fiscal year;
(2) To the extent the Partnership's Net Income for that same
fiscal year exceeds such Cash Distributions, Other Tax
Incidents shall be allocated to the Partners in accordance
with their respective Participation Percentages, except that
(i) Net Income, in an amount equal to Cash Distributions
actually received, shall be allocated to the Partners so
receiving such Cash Distributions in the same proportion
that such Cash Distributions actually are received, and (ii)
any excess of Net Income over Cash Distributions actually
received shall be allocated to the Partners in accordance with
their respective Participation Percentages;
(3) In the absence of any such Cash Distributions the Other Tax
Incidents shall be allocated to the Partners in accordance
with their respective Participation Percentages; and
(4) Notwithstanding clauses (1) and (2) of this Subparagraph (C),
Net Loss, (whether or not Cash Distributions are actually
made), shall be allocated to the Partners in accordance with
their respective Participation Percentages.
ARTICLE VII
ACCOUNTING
7.1 Accounting and Bookkeeping. The General Partner shall prepare and
keep, for a period of not less than three (3) years, generally accepted
accounting records, including cash registers having cumulative totals, bank
books and duplicate deposit slips, records showing inventories and receipts of
merchandise and other records from the operation of the Business which would
normally be required to be kept or examined by an independent accountant
pursuant to generally accepted auditing standards. The Limited Partners shall at
all times during normal business hours have free access to and the right to
inspect and copy the accounting records of the Business and/or Partnership, at
the principal place of business of the Partnership.
The General Partner, as an expense of the Business, shall prepare for
the Partnership and provide the Limited Partners with a complete monthly
accounting of the operation of the Business on a form similar to that attached
hereto as Exhibit "C", within thirty (30) days of the end of each month during
the term hereof. The monthly report shall also contain a statement of cumulative
gross sales from the operation of the Business for the current year of this
Agreement for purposes of determining any distributions pursuant to Article VIII
below. The General Partner shall also provide copies of such other accounting
records as may be reasonably requested by the Limited Partners and the Limited
Partners may inspect the originals thereof at any reasonable time.
The General Partner shall mail within seventy five (75) days after the
close of each fiscal year, an annual report to the Limited Partners, which
annual report shall constitute the accounting of the Partnership for such year.
The annual report shall contain unaudited financial statements, certified by the
Treasurer of the General Partner as accurate and correct, and shall otherwise be
in such form and have such content as the General Partner deems proper. Such
annual report shall include from every source, including net gains from
disposition or sale of Partnership properties.
Subject to the right of the Limited Partners to receive their share of
the distributions pursuant to Article VIII hereof, all receipts from the
operation of the Business, deposited into an account of the Partnership and/or
the General Partner at a bank designated by the General Partner, shall only be
withdrawn upon the direction of the General Partner, but cannot be unreasonably
withheld. The Partners anticipate that payment of liquor purchases, payroll and
general operations may be made from one or more additional accounts at one or
more banks, selected by the General Partner. Funds from those accounts shall
only be withdrawn by or at the direction of the General Partner.
7.2 Fiscal Year and Method of Accounting. The fiscal year of the
Partnership shall be a calendar year and the books of the Partnership for income
tax and accounting purposes shall be kept on the accrual method. All financial
determinations hereunder made by the General Partner with respect to the
calculation of profits and losses, all distributions pursuant to Article VIII
and other accounting decisions shall be determined by the General Partner in
accordance with generally accepted accounting principles consistently applied by
the General Partner in making said determinations.
7.3 Audit. The Limited Partners shall have the right from time to time,
upon two (2) business days prior notice to the General Partner, to cause a
complete audit to be made of the business affairs conducted at the Business, and
all of the books and records referred to in Article VII hereof. Such audit shall
be performed by any person designated, selected and paid for by the Limited
Partners, except as otherwise provided herein. The General Partner shall make
all records and books relevant in any manner to the operation at the Business
and/or Partnership available for audit at 0000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000. If the results of such audit show that the "Net
Income" for any month or year have been understated, the General Partner shall
immediately pay to the Limited Partners the additional amount due and if such
understatement amounts to three percent (3%) or more of "Net Income", then the
General Partner shall pay the cost of such audit, in addition to any deficiency
payment required. If the audit shows that the General Partner has overpaid or
the Limited Partners have received overpayment of any amount, the Limited
Partners shall immediately repay such amount to the General Partner. Any
accounting deficiencies revealed by such audit, which accounting deficiencies
shall be defined as any accounting practices not in accordance with generally
accepted accounting principles consistently applied, shall be corrected by the
General Partner within fifteen (15) days of its receipt of notice of such
deficiency.
7.4 Definitions.
A. "Gross Sales" shall mean the gross income, price, money, cover
charges, or other consideration charged or received from the operation of the
Business, whether in cash, on credit, barter, exchange, or otherwise.
Gross sales as used herein shall not include, and the General Partner
shall deduct from its calculations of gross sales, to the extent it has been
included:
(i) Any sales or excise tax imposed by any governmental authority
upon customers and added to the price of a sale or service and
collected from the customer and in turn paid to such
governmental authority;
(ii) The amount of any credit or refund for any merchandise
returned or exchanged or any allowance made for loss of or
damage to merchandise sold but not in excess of original cost;
(iii) Fees or discounts paid to bona fide credit card agencies;
(iv) Amounts paid to third party vending machine and coin operated
devise operators as their share of proceeds from such machines
and device; and
(v) Complimentary and/or discounted sales made at the direction of
the General Partner, including but not limited to discounted
sales to the employees of the Business.
B. "Operating Expenses" shall mean all cash expenses and liabilities
incurred in the operation of the Business, and shall include, by way of example
and without limitation hereby, rent, franchise royalties, franchise fees,
personal property taxes on personal property, fixtures and equipment used in the
Business; liability insurance; real estate taxes; hazard insurance; trash
collections; cleaning services; accounting and bookkeeping fees; advertising;
telephone charges; utilities, including but not limited to electric, water and
gas; cable; salaries for personnel employed at the business premises only;
repairs and maintenance of kitchen equipment, furniture, fixtures, equipment and
personal property used in the Business; repairs and maintenance of the interior
of the business premises and parking areas; cost of inventory; liquor license
renewal fees; but excluding any allocation of salaries and expenses of
"off-site" personnel of the General Partner.
7.5 Tax Matters.
A. The General Partner shall cause, as a part of its bookkeeping and
accounting responsibilities, to be prepared and filed all income tax returns for
the Partnership on an accrual basis. Necessary tax information shall be provided
to the Limited Partners.
B. In connection with the assignment of a Limited Partner's interest in
the Partnership permitted by Article X hereof, the General Partner, (in its sole
discretion), shall have the right, but shall not be obligated, on behalf of the
Partnership and at the time and in the manner provided by Section 754 of the
Code, (or any successor section thereto), and the Regulations thereunder, to
make an election to adjust the basis of Partnership property in the manner
provided in Sections 734(b) and 743(b) of the Code, (or any successor sections
thereto).
7.6 Contracting for Accounting Services. The General Partner may, as an
expense of the Business, contract with XXXXXXXX'X ENTERPRISES, INC. to provide
the accounting and bookkeeping services provided in this Article VII at the same
rate charged to its other franchisees.
ARTICLE VIII
DISTRIBUTIONS
8.1 Distributions of Net Cash Flow. All Net Cash Flow, if any, realized
by or available to the Partnership shall first be applied or added to a
reasonable reserve retained for working capital needs or to provide funds for
contingencies and expenses of the Partnership, (all as determined in the sole
discretion of the General Partner or as required by any loan agreement or
instrument of the Partnership), and the balance, if any, shall be distributed,
(from time to time in the sole discretion of the General Partner, but in the
event, no less frequently than quarterly), in the following order of priority to
the extent available:
A. To the General Partner in repayment of the entire principal amounts
of any outstanding General Partner's loans, together with all accrued but unpaid
interest thereon, first on account of interest accrued thereon and then on
account of the principal amounts thereof;
B. To the General Partner in reduction of its then outstanding
Additional Capital Balance; and
C. To the Limited Partners until such time as the Limited Partners have
received the aggregate sum of Four Hundred Thousand Dollars ($400,000.00), which
aggregate sum shall be reduced by an amount equal to the amount of initial
working capital returned by the Partnership to the Limited Partners, a sum equal
to the amount necessary to increase the aggregate distribution to the Limited
Partners for the fiscal year to One Hundred Thousand Dollars ($100,000.00) shall
be paid to the Limited Partners. Thereafter, any remaining amounts shall be
distributed to the Partners in accordance with their respective Participation
Percentages; and
D. Once the Limited Partners have received the aggregate sum of Four
Hundred Thousand Dollars ($400,000.00), which aggregate sum shall be reduced by
an amount equal to the amount of initial working capital returned by the
Partnership to the Limited Partners, any remaining amounts shall be distributed
to the Partners in accordance with their respective Participation Percentages.
8.2 Distributions of Net Sale Proceeds. All Net Sale Proceeds, if any,
realized by or available to the Partnership shall first be applied or added to a
reasonable reserve or escrow account retained to provide funds for contingencies
and expenses of the Partnership, (all as determined by the General Partner or as
required by any loan, escrow or other agreement or instrument of the
Partnership), and the balance, if any, shall be distributed in the following
order of priority to the extent available:
A. To the General Partner, in repayment of the entire principal amounts
of any outstanding General Partner's loans, together with all accrued but unpaid
interest thereon, first on account of interest accrued thereon and then on
account of the principal amounts thereof;
B. To the General Partner in reduction of its then outstanding
Additional Capital Balance, except as provided in Subparagraph E. of this
section;
C. To the Partners in reduction of their then outstanding Capital
Balances, (in proportion to the respective amounts of any such Capital
Balances), except as provided in Subparagraph E. of this section;
D. Any remaining amounts (i) fifty one percent (51%) thereof to the
Limited Partners and (ii) forty nine percent (49%) to the General Partner; and
E. Notwithstanding anything to the contrary in the above priority
order, if there is an insufficient balance available to fully return to each
Partner an amount equal to his then outstanding Capital Balance, the balance, if
any, shall be distributed to the Partners in proportion to the combined amount
of their then outstanding Capital Balance.
ARTICLE IX
TRANSFER OF PARTNERSHIP INTERESTS
9.1 General Partner.
A. The General Partner shall not sell, assign, or otherwise dispose of
all or any portion of its interest as General Partner in the Partnership, or
enter into any agreement as a result of which any person, firm or corporation
shall become interested with it in its interest in the Partnership without the
prior consent in writing of the Limited Partners. No person shall be admitted as
a substitute or additional General Partner without the prior written consent of
the General Partner and the Limited Partners as set forth herein. The General
Partner may not retire or withdraw as a General Partner unless it designates a
nominee willing to serve as a General Partner which shall be an individual or
corporation having the capacity to serve as such and who is able to meet any
requirements then imposed by the Code or any rulings or regulations thereunder
with respect to general partners or limited partnerships in order that the
Partnership not become an association taxable as a corporation. Subject to the
foregoing, the General Partner shall give the Limited Partners at least ninety
(90) days notice of its proposed retirement or withdrawal as General Partner, in
which event the Partnership shall be dissolved and terminated as provided in
Article X hereof unless the Limited Partners select a new General Partner within
said ninety (90) day period. Such new General Partner may be, but need not be,
the nominee designated by the retiring or withdrawing General Partner.
B. The General Partner shall immediately be removed and cease to be a
General Partner upon the dissolution of the General Partner.
9.2 Substitute Limited Partner. A Limited Partner or the transferee of
a Limited Partner may transfer all, but not a part of his Unit(s) to a
Substitute Limited Partner provided:
A. That the transferee, if an individual, is at least 21 years of age;
B. That the transferee executes an instrument satisfactory to the
General Partner accepting and adopting the provisions and agreements set forth
herein and pays any reasonable expenses in connection with his admission as a
Substitute Limited Partner; and
C. That the General Partner shall consent to such transfer, which
consent may be given or withheld in the General Partner's sole discretion, and
shall be withheld if:
(1) In the opinion of counsel for the Partnership such transfer
would result in the close of the Partnership's taxable year
with respect to all Partners, in the termination of the
Partnership within the meaning of Section 708(b) of the Code,
or in the termination of its status as a partnership under the
Code; or
(2) In the opinion of such counsel such transfer would be in
violation of the Securities Act of 1933, as amended, or the
securities laws of any other jurisdiction.
9.3 Death, etc. of a Limited Partner. Upon the death, bankruptcy, legal
incompetency or insolvency of a Limited Partner, (or, in the case of a Limited
Partner that is a partnership, joint venture, association, corporation or trust,
the dissolution of such Limited Partner), the personal representative, guardian
or other successor in interest of such Limited Partner shall have the right of
the Limited Partner for the sole purpose of settling the estate of such person
pursuant to the provisions of Section 9.2, but such assignee may become a
Substitute Limited Partner in the Partnership only in accordance with the
provisions of Section 9.2.
9.4 Effective Date of Transfers. Permissible transfers of a Limited
Partner's Units shall be effective for purposes of allocations of distributions,
profits and losses on the first day of the fiscal quarter following compliance
with Section 9.2 and following amendment of this Agreement as required by the
Law. Until such effective date, the General Partner may act and proceed as if no
transfer had been made.
9.5 Transfers Oth er Than in Accordance Herewith. No transfers of Units
or any part thereof which is in violation of this Article IX shall be valid or
effective, and the Partnership shall not recognize the same for the purposes of
making allocations or distributions of profits, losses, return of Capital
Contribution or other distribution with respect to such Units or part thereof.
The Partnership may enforce this provision either directly or indirectly or
through its agents by entering an appropriate stop-transfer order on its books
or otherwise refusing to register or transfer or permit the registration or
transfer on its books of any proposed transfers not in accordance with this
Article IX.
ARTICLE X
DISSOLUTION AND SUCCESSOR PARTNERSHIP
10.1 Dissolution of Partnership. The Partnership shall be dissolved
upon the earlier occurrence of any of the following events:
A. The bankruptcy, insolvency, liquidation or dissolution of the
General Partner;
B. Upon the written consent of all Partners;
C. The sale of all or substantially all of the assets of the
Partnership;
D. Pursuant to the provisions of Article II and IX hereof; or
E. Otherwise by operation of law.
10.2 Successor Partnership. If the Partnership is dissolved or to be
dissolved for any reason specified in Section 10.1, and any Limited Partner
shall deliver to each of the other Limited Partners within thirty (30) days of
such event, a written notice demanding that a meeting of Limited Partners be
held at the principal place of business of the Partnership at the time set forth
in such notice (which shall be not less than ten (10) nor more than thirty (30)
days after the date of such notice) the Limited Partners shall hold such
meeting. Limited Partners attending such meeting, either in person or by proxy,
and having an aggregate Limited Partner Percentage of not less than one hundred
percent (100%) may continue the business of the Partnership and reconstitute the
Partnership as a successor limited partnership with a new General Partner having
the capacity to serve as such and who is able to meet any requirements then
imposed by the Code or any rulings or regulations thereunder with respect to
general partners of limited partnerships in order that the Partnership not
become an association taxable as a corporation. If such Limited Partners shall
exercise such right to continue the business of the Partnership, the person
appointed by them as the new General Partner and each of the Limited Partners
shall execute, acknowledge and file a Limited Partnership Certificate and
Agreement. The Limited Partnership Certificate and Agreement shall contain
substantially the same provisions as those contained herein, except that the new
General Partner shall be allocated such share of the profits, losses and
distributions of the Partnership as the Limited Partners appointing such new
General Partner shall determine. Such new General Partner shall indicate his
acceptance of the appointment by the execution of such Limited Partnership
Certificate and Agreement.
10.3 Procedure. Unless the Business of the Partnership is continued
pursuant to Section 10.2, upon the dissolution of the Partnership, the General
Partner or the person required by law to wind up the Partnership's affairs shall
cause the cancellation of this Agreement and shall liquidate the assets of the
Partnership and apply the proceeds of such liquidation in the order of priority
provided in Article VIII of this Agreement, unless the law requires distribution
be made in a different order in which case the assets of the Partnership shall
be distributed in accordance with the law.
ARTICLE XII
LIMITED POWER OF ATTORNEY
12.1 Appointment. Each Limited Partner hereby makes, constitutes and
appoints the General Partner his true and lawful attorney-in-fact for him and in
his name, place and xxxxx and for his use and benefit, from time to time:
A. To make all agreements amending this Agreement, as now or hereafter
amended, that may be appropriate to reflect or effect, as the case may be, the
following:
(1) A change of the name or the location of the principal place of
business of the Partnership;
(2) The transfer or acquisition of any Units by a Limited Partner
in any manner permitted by this Agreement;
(3) A person becoming a Substitute Limited Partner of the
Partnership as permitted by this Agreement;
(4) A change in any provision of this Agreement effected by the
exercise by any person of any right or rights hereunder;
(5) The dissolution of the Partnership pursuant to this Agreement;
(6) Such amendments which are of an inconsequential nature and do
not affect the rights of the Limited Partners in any material
respect;
(7) To execute such certificates, instruments and documents as may
be required or may be appropriate in connection with the use
of the name of the Partnership by the Partnership; and/or
(8) To execute such certificates, instruments and documents as may
be required, or as may be appropriate for the Limited Partner
to make to reflect:
(a) A change in the name or address of such Limited
Partner;
(b) Any changes in or amendments of this Agreement, or
pertaining to the Partnership, of any kind referred
to in this Section 12.1; and
(c) Any other changes in or amendments of this Agreement
but only if and when the consent thereto has been
obtained from the General Partner and Limited
Partners, having the aggregate Limited Partnership
Percentage required by Section 13.6 hereof.
B. Each of the agreements, certificates, instruments and documents made
pursuant to Section 12.1(A) shall be in such form as the General Partner and
counsel for the Partnership shall deem appropriate. The powers conferred by
Section 12.1(A) to execute agreements, certificates, instruments and documents,
shall be deemed to include without limitation the powers to sign, acknowledge,
swear to, verify, deliver, file, record or publish the same.
C. Each Limited Partner authorizes the General Partner as such
attorney-in-fact to take any further action which the General Partner shall
consider necessary or advisable in connection with any action taken pursuant to
this Section 12.1 hereby giving the General Partner as such attorney-in-fact
full power and authority to do and perform each and every act or thing
whatsoever requisite or advisable to be done in and about any action taken
pursuant to this Section 12.1 as fully as such Limited Partner might or could do
if personally present, and hereby ratifying and confirming all that the General
Partner as such attorney-in-fact shall lawfully do or cause to be done by virtue
of this Section.
12.2 Irrevocability; Manner of Exercise. The power of attorney granted
pursuant to Section 12.1:
A. Is a special power of attorney coupled with an interest and is
irrevocable;
B. May be exercised by the General Partner as such attorney-in-fact by
listing all of the Limited Partners executing any agreement, certificate,
instrument or document with the single signature of the President or any Vice
President of the General Partner acting as attorney-in-fact for all of them; and
C. Shall survive the transfer by a Limited Partner of all or a portion
of his interest in the Partnership, except that where the purchaser, transferee
or assignee thereof with the consent of the General Partner is admitted as a
Substitute Limited Partner, the power of attorney shall survive the transfer for
the sole purpose of enabling such attorney-in-fact to execute, acknowledge and
file any such agreement, certificate, instrument or document necessary to effect
such substitution.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. All notices or other communications required or permitted
to be given pursuant to the Agreement shall in the case of notices or
communications required or permitted to be given to Limited Partners, be in
writing and shall be considered as properly given or made if personally
delivered or if mailed by United States certified or registered mail, return
receipt requested, postage prepaid, or if sent by prepaid telegram, and
addressed to such Limited Partner's address for notices as it appears on the
records of the Partnership, and in the case of notices or communications
required or permitted to be given to the General Partner, shall be in writing
and shall be considered as properly given or made if personally delivered or if
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed to the General Partner at the principal place of
business of the Partnership. Any Limited Partner may change his address for
notices by giving notice in writing, stating his new address for notices, to the
General Partner, and the General Partner may change its address for notices by
giving such notice to all Limited Partners. Commencing on the tenth (10th) day
after the giving of such notice, such newly designated address shall be such
Partner's address for the purpose of all notices or other communications
required or permitted to be given pursuant to the Agreement.
13.2 Choice of Law. This Agreement and all rights and liabilities of
the parties hereto with reference to the Partnership shall be subject to,
construed in accordance with and governed by the laws of the State of Florida.
To the extent that any provision hereof is in contravention with the Law, as in
effect from time to time, the provisions of the Law shall supersede and replace
any provision herein which is in contravention thereof. Additionally, the
appropriate forum and jurisdiction for any legal action shall be the Courts of
the County of Broward, State of Florida, and each party consents to such
jurisdiction.
13.3 Titles and Captions. All article, section and subsection titles or
captions contained in this Agreement are inserted for convenience only and are
not deemed part of the text hereof.
13.4 Sole Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
13.5 Execution in Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if all parties had all signed the
same document. All counterparts shall be construed together and shall constitute
one (1) agreement.
13.6 Amendments. The General Partner may submit to the Partners in
writing the text of any proposed amendment to this Agreement and a statement by
the proposer of the purpose of such amendment. The General Partner shall include
in any submission its view as to the proposed amendment. Any such amendment
shall be adopted if, within ninety (90) days after the notice of such amendment
is given to all Partners, the General Partner shall have approved such amendment
in writing and shall have received written approval thereof from Limited
Partners having a Limited Partnership Percentage aggregating eight percent (80%)
or more. A written approval may not be withdrawn or voided once it is filed with
the General Partner. A Limited Partner filing a written objection may thereafter
file a valid written approval. The date of adoption of an amendment pursuant to
this Section 13.6 shall be the date on which the General Partner shall have
received the requisite written approvals. Any proposed amendment which is not
adopted may be resubmitted. In the event any proposed amendment is not adopted,
any written approval received with respect thereto shall become void and shall
not be effective with respect to any resubmission of the proposed amendment.
Notwithstanding the foregoing provisions of this Section 13.6, no amendment may,
without the prior written approval of all Partners;
A. Enlarge the obligations of any Partner under this Agreement;
B. Enlarge the liability of the General Partner to the Limited
Partners;
C. Amend this Article 13.6;
D. Alter the Partnership in such manner as will result in the
Partnership no longer being classified as a limited
partnership for Federal income tax purposes; or
E. Reduce any requirements for the prior approval of Substitute
Limited Partners set forth in this Agreement.
13.7 Waiver of Action for Partition. Each of the parties hereto
irrevocably waives during the term of the Partnership any right that he may have
to maintain any action for partition with respect to the property of the
Partnership.
13.8 Assignability. Subject to the restrictions on transferability
contained herein, each and all of the covenants, terms, provisions and
agreements herein contained shall be binding upon and inure to the benefit of
the successors, assigns and legal representatives of the respective parties
hereto.
13.9 Independent Activities. Except as otherwise provided herein, the
General Partner and its affiliates, and its (and its affiliates'), officers,
directors, shareholders and employees, and each Limited Partner may,
notwithstanding the existence of this Agreement, engage in whatever activities
they choose, whether the same be competitive with the Business of the
Partnership or otherwise, without having or incurring any obligation to offer
any interest in such activities to any party hereto. Neither this Agreement nor
any activity undertaken pursuant hereto shall prevent such persons from engaging
in such activities, and as a material part of the consideration for the General
Partner's execution hereof, each Limited Partner hereby waives, relinquishes and
renounces any such right or claim of participation. Nothing in the foregoing,
however, shall be deemed to reduce any of the liabilities of the General Partner
under this Agreement.
13.10 Right to Rely on Authority of General Partner. No person dealing
with the General Partner shall be required to determine its authority to make
any undertaking on behalf of the Partnership, nor to determine any fact or
circumstance bearing upon the existence of its authority.
13.11 Arbitration. Except as otherwise provided in this Agreement, any
dispute or controversy arising out of or relating to this Agreement shall be
determined and settled by arbitration in the City of Fort Lauderdale, Florida,
in accordance with the rules of the American Arbitration Association then in
effect, and judgment upon the award rendered by the arbitrator(s) may be entered
in any court of competent jurisdiction. Except as set forth in Sections 5.4 and
5.5, the expenses of the arbitration shall be borne equally by the parties to
the arbitration.
13.12 Gender and Number. Whenever the context requires, the gender of
all words used herein shall include the masculine, feminine and neuter and the
singular and plural of all words shall include the singular and plural.
13.13 Meetings. The Partnership shall hold an annual meeting in each
fiscal year of its existence on such date and at such place and time as the
General Partner shall determine, notice of the date and time to be given to all
Limited Partners whose addresses are on record with the General Partner not
later than fourteen (14) days prior to such date. Notwithstanding the foregoing,
at any time or from time to time, Limited Partners having a Limited Partner
Percentage aggregating fifty percent (50%) may by written notice to the General
Partner specifying in general terms the subject to be considered require the
General Partner to call, or the General Partner may on its own motion call, a
special meeting of the Limited Partners and the General Partner shall within ten
(10) days after any such notice is given, give notice of such special meeting in
the same manner as is required for the annual meeting including in such notice a
copy of the notice requiring the call. Any Limited Partner shall have the right,
upon notice in writing, to require the General Partner to furnish by mail a list
of the names, addresses and respective interest in the Partnership of all other
Limited Partners in the Partnership as shown on the records of the Partnership
at the time of the notice. Any Limited Partner, or his representative, shall
have the right to inspect and copy the names and addresses of all other Limited
Partners in the Partnership.
13.14 Severability. If any provision of this Agreement, or the
application thereof, shall, for any reason and to any extent, be invalid or
unenforceable, or contrary to law, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby, but rather shall be enforced to the maximum extent permissible
under applicable law.
IN WITNESS WHEREOF, this Limited Partnership Certificate and Agreement
has been sworn to and executed as of the date above written.
GENERAL PARTNER:
B.D. 15 CORP.
________________________________ By: _______________________________
Xxxxxxx X. Xxxxxxxx, President
--------------------------------
STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this date by
XXXXXXX X. XXXXXXXX, as President of B.D. 15 CORP. on behalf of the said
corporation. He is well known to me or produced ________________ as
identification.
WITNESS my hand and official seal on this the _____ day of February,
1997.
----------------------------------
NOTARY PUBLIC - State of Florida
My commission expires:
SEE SIGNATURE PAGES FOR LIMITED PARTNERS ATTACHED HERETO
EXHIBIT "C"
SIGNATURE PAGE FOR
CIC INVESTORS #15, LTD. - INDIVIDUAL(S)
(a Florida limited partnership)
The undersigned agrees to become a limited partner in the above
referenced limited partnership and shall be bound by the terms of the Limited
Partnership Certificate and Agreement of the above referenced limited
partnership.
Amount of
Name of Limited Partner(s) Capital Commitment Date Signed
-------------------------- ------------------ -----------
/s/Xxxxxx X. Xxxxxxxxx $5,000.00 02/19/97
/s/Xxxxxxx X. Xxxxxxx $5,000.00 02/25/97
/s/Xxxxxx Xxxxx $5,000.00 03/12/97
/s/Xxxxx Xxxxx $5,000.00 03/20/97
/s/Xxxx X. Xxxxxxx $10,000.00 02/19/97
/s/CIC Investors #15, Inc. $60,000.00 02/28/97
by Xxxxxx X. Xxxxxxxx, President
/s/Xxxxxx Xxxxxx $5,000.00 02/20/97
/s/Xxxx X. Xxxxx $5,000.00 03/11/97
/s/Xxxxxxx Xxxxxxxx $15,000.00 03/17/97
/s/Xxxxxxx Xxxxxxxx $105,000.00 03/12/97
/s/Xxxxxxxx'x Enterprises, Inc. $100,000.00 03/19/97
by Xxxxxxx X. Xxxxxxx, Asst. Sec.
/s/Xxxxxx X. Xxxxxxx, Xx. $5,000.00 02/24/97
/s/Xxxxxxxxx X. House $5,000.00 02/19/97
/s/Xxxxx Xxxxx and $5,000.00 02/20/97
Xxxxxxx X. Xxxxx
/s/Xxxxxxx X. Xxxxxxx and $10,000.00 02/28/97
Xxxxxx Xxxxxx X. Xxxxxxx
/s/Xxxxxxx Xxxx $5,000.00 02/21/97
/s/Xxxxxx Xxxxxxxx and $5,000.00 03/27/97
Xxxxxxx Xxxxxxx
/s/Xxxxxxx Xxxxxx $5,000.00 02/24/97
Amount of
Name of Limited Partner(s) Capital Commitment Date Signed
-------------------------- ------------------ -----------
/s/Xxxxx Xxxxx and $10,000.00 03/24/97
Xxxxxxxx Xxxxx
/s/Xxxxxxxx Xxxxxx $5,000.00 03/19/97
/s/Xxxx Xxxxxx and $5,000.00 03/13/97
France Xxxxxx
/s/Xxxx X. Xxxxx and $5,000.00 03/20/97
Xxxx Xxxxx
/s/Xxxxxx Xxxxxxx $5,000.00 03/21/97
/s/Xxxxx X. Xxxxxxxx $5,000.00 02/25/97
/s/Xxxxx X. Xxxxx $5,000.00 02/20/97
EXHIBIT 10(v)
LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT
THIS LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT, (the
"Agreement"), made and entered into this _____ day of June, 1997, by and among
XXXXXXXX'X ENTERPRISES, INC., a Florida corporation, (the "General Partner"),
and all other parties who shall execute this Agreement or any counterpart
thereof, collectively, (the "Limited Partners"). The Limited Partners, as
constituted from time to time, and the General Partner are sometimes herein
collectively referred to as the "Partners".
W I T N E S S E T H :
WHEREAS, the Partners desire to form a limited partnership (the
"Partnership") pursuant to the Uniform Limited Partnership Act of the State of
Florida upon the terms and conditions hereinafter set forth;
NOW THEREFORE, intending to be legally bound hereby, the Partners agree
as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall (unless otherwise
expressly provided herein or unless the context clearly requires otherwise) have
the following meanings:
1.1 Additional Capital Balance. The Additional Capital Contributions,
if any, of the General Partner, as reduced from time to time by all cash
distributions to such General Partner which, pursuant to the terms of this
Agreement, are in reduction of the General Partner's Additional Capital Balance,
and as increased from time to time by any contributions of the General Partner
which are Additional Capital Contributions.
1.2 Additional Capital Contributions. Any additional cash contributions
of the General Partner to the capital of the Partnership pursuant to Section 3.5
hereof.
1.3 Agreement. This Limited Partnership Certificate and Agreement.
1.4 Capital Balance. The Initial Capital Contribution made by a Partner
in cash and the fair market value of any contributions in kind, (as set forth in
this Agreement), as reduced from time to time by all cash distributions to such
Partner which, pursuant to the terms of this Agreement, are in reduction of a
Partner's Capital Balance.
1.5 Capital Commitment. The Capital Commitment with respect to any
Limited Partner is his obligation to contribute the aggregate amount to be paid
for the Units (computed at the rate of $5,000.00 per Unit) subscribed for by him
pursuant to his Subscription Agreement and set opposite his name on the
signature page attached to this Agreement, and with respect to the General
Partner, is its obligation to make its original Capital Contribution pursuant to
Section 3.1 hereof.
1.6 Initial Capital Contribution. The Contribution made by each Partner
pursuant to its Capital Commitment.
1.7 Code. The Internal Revenue Code of 1954, as amended.
1.8 General Partner. The General Partner is XXXXXXXX'X ENTERPRISES,
INC. or any successor general partner as provided herein.
1.9 General Partner's Capital. The combined total Capital Balance and
Additional Capital Balance of the General Partner.
1.10 Law. The Uniform Limited Partnership Act of the State of Florida
in effect from time to time during the term hereof.
1.11 Limited Partner. The Limited Partners hereunder and any such
persons admitted to the Partnership as substituted Limited Partners.
1.12 Limited Partners' Capital. The total of the Capital Balance of all
Limited Partners.
1.13 Limited Partner Percentage. In respect of any Limited Partner the
percentage obtained by converting to a percentage the fraction having the
Initial Capital Contribution of such Limited Partner as its numerator and having
the Limited Partners' Capital as its denominator.
1.14 Net Cash Flow. Net Cash Flow of the Partnership, with respect to a
fiscal period, shall mean Net Income of the Partnership for such period, reduced
by (i) any repayments of principal on loans of the Partnership, (excluding
General Partner's Loans, the principal amounts of which are payable out of Net
Cash Flow as stated in Article VIII hereof), (ii) any capital expenditures and
prepaid expenses to the extent not included in the determination of Net Income,
(iii) any Net Sale Proceeds to the extent included in the determination of Net
Income, and (iv) reasonable additions to a reserve, (as determined in the sole
discretion of the General Partner); and increased by any receipts by the
Partnership which are not included in the determination of Net Income.
1.15 Net Income. Net Income of the Partnership with respect to any
fiscal period shall mean the excess of the gross sales for such period over all
operating expenses for such period, as those terms are defined herein,
determined on an accrual basis and determined without regard to amounts deducted
by the Partnership for cost recovery of tangible assets or amortization of
capitalized or other capital accounts.
1.16 Net Loss. Net Loss of the Partnership with respect to any fiscal
period shall mean that excess of all operating expenses for such period over the
gross sales for such period, as those terms are defined herein, determined on an
accrual basis and determined without regard to amounts deducted by the
Partnership for cost recovery of tangible assets or amortization of capitalized
expenditures or other capital accounts.
1.17 Net Sale Proceeds. The proceeds realized by the Partnership upon
the sale, exchange or other disposition of all or any substantial part of the
Partnership property, net of expenses incident to such sale, the payment of any
Partnership indebtedness secured by or related to any such assets and
satisfaction of any right of any creditor of the partnership (other than a
Partner) to receive such proceeds.
1.18 Participation Percentage. Throughout the term of this Agreement,
the Participation Percentage of the Limited Partners is fifty percent (50%)
(allocated to each Limited Partner in proportion to his Limited Partnership
Percentage) and the Participation Percentage of the General Partner is fifty
percent (50%).
1.19 General Partner's Loans. All amounts loaned by the General Partner
to the Partnership pursuant to Section 3.5 hereof.
1.20 Subscription Agreement. The Instrument by which each prospective
Limited Partner agrees to purchase Units.
1.21 Substitute Limited Partner. A person admitted to all of the rights
of a Limited Partner who has died or assigned his interest in the Partnership,
or in the case of a Limited Partner that is a partnership, joint venture,
association, corporation or trust, that has been dissolved or assigned its
interest in the Partnership.
1.22 Unit. A Unit means an interest of a Limited Partner in the Limited
Partners' Capital of the Partnership with an original subscription value of
$5,000.00.
ARTICLE II
THE LIMITED PARTNERSHIP
2.1 Formation of Partnership. The parties hereto agree to form and by
execution of this Agreement do hereby enter into a limited partnership pursuant
to Chapter 620, et seq., of the Florida Statutes, entitled "Uniform Limited
Partnership Act" ("Law") which Law shall govern the rights and liabilities of
the parties hereto, except as otherwise herein expressly stated.
2.2 Partnership Name. The name of the Partnership is CIC INVESTORS #60,
LTD. The General Partner, in its sole discretion, may change the name of the
Partnership at any time and from time to time. The General Partner and the
Limited Partners hereto shall promptly execute and the General Partner shall
file and record with the proper offices in each state, including any political
subdivision thereof, in which the Partnership does, or elects to do, business
and publish such certificates or other statements or instruments as are required
by the Limited Partnership Law, Beverage Regulations, Fictitious Name Law,
Assumed Name Law or any other similar statute in effect from time to time in
such state or political subdivision in order to validly conduct the business of
the Partnership therein as a limited partnership.
2.3 Character of Business and Purpose of the Partnership. The business
and purpose of the Partnership shall be to own, renovate and operate a
restaurant located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxx and
most recently operating as "DANNY'S RESTAURANT", (the "Business"), but
specifically excludes any interest of any kind in the building and property
owned by the landlord.
2.4 Principal Place of Business. The principal place of business of the
Partnership shall be at 0000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000. The General Partner may change the principal place of business or
establish such other place or places of business for the Partnership as it may,
from time to time, deem necessary or appropriate, provided however, that the
General Partner shall give the Limited Partners notice of any change of address
of the principal place of business of the Partnership at least ten (10) days
prior to any such change.
2.5 Term of Partnership. The Partnership shall commence on the date
that this Agreement has been filed in accordance with the provision of the Law
and shall continue until the earlier of the following:
(i) Failure of the Partners to have a liquor license issued for
the Business by the Division of Alcoholic Beverages and
Tobacco within ninety (90) days of the date of this
Agreement; or
(ii) Revocation of the liquor license for the Business by the
Division of Alcoholic Beverage and Tobacco followed by the
inability of the Partners, after the exercise of their best
efforts, to cause such liquor license to be reinstated within
a ninety (90) day period; or
(iii) Dissolution or termination pursuant to the provisions of
Article X of this Agreement.
2.6 Names and Residences of Partners.
A. The name and address of the General Partner is:
Xxxxxxxx'x Enterprises, Inc.
0000 Xxxx Xxxxxxx Xxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
B. The names and places of residences of the Limited
Partners are set forth on the signature pages
attached hereto together with those persons who may,
from time to time, be admitted by the General Partner
as Substitute Limited Partners in accordance with the
terms of this Agreement.
2.7 Nature of Partners' Interests. The interests of the Partners in the
Partnership shall be personal property for all purposes. All property owned by
the Partnership, whether real or personal, tangible or intangible, shall be
owned by the Partnership as an entity and no Partner, individually, shall have
any ownership of such property.
2.8 Non-Partition. No Partner shall be entitled to seek partition of
any Partnership property.
ARTICLE III
CAPITAL CONTRIBUTIONS;
ADDITIONAL CAPITAL CONTRIBUTIONS;
GENERAL PARTNER'S LOANS; AND
REIMBURSEMENT OF EXCESS CAPITAL CONTRIBUTION
3.1 General Partner. The General Partner shall contribute to the
Partnership cash in an amount equal to one percent (1%) of the total Initial
Contributions of the Partners and other property as set opposite its name on the
signature page attached to this Agreement.
3.2 Limited Partners. The Limited Partners' Capital shall be measured
in terms of Units and a Limited Partner shall contribute $5,000.00 for each Unit
purchased. Each Limited Partner shall purchase a minimum of one (1) Unit. Each
Limited Partner shall contribute to the Partnership as his Initial Capital
Contribution an amount equal to the amount of his Capital Commitment as set
forth in the Subscription Agreement executed by him and set opposite his name on
the signature page attached to this Agreement. The amount of Capital Commitment
shall be paid in cash by the Limited Partner upon execution and delivery of the
Subscription Agreement.
3.3 Capital Accounts. The Partnership will maintain for each Partner an
account to be designated "Capital Account", to which will be added the Partner's
Initial Capital Contribution, Additional Capital Contributions and distributive
share of the profits of the Partnership, and against which will be deducted the
Partner's distributive share of the losses of the Partnership and all
distributions made to the Partner. A Partner's Capital Account may, at any point
in time, be the same as or different from such Partner's Capital Balance and may
have a negative balance resulting from the Partner's share of distributions and
losses in excess of the Partner's Initial Capital Contribution and Additional
Capital Contributions.
3.4 Use of Capital Contributions and Loans. The Initial Capital
Contributions of the Partners, all proceeds of Partnership borrowings, and any
Additional Capital Contributions or General Partner's Loans made pursuant to
this Agreement, shall be used to change and convert the business premises of the
Business to the General Partner's "Xxxxxxxx'x Seafood Bar and Grill" restaurant
concept and as working capital.
3.5 Additional Capital Contributions and General Partner's Loans.
A. Other than as expressly set forth in this Article III, no
Limited Partner shall be required or permitted to make any Additional Capital
Contributions, Partner's Loans, or other contributions, loans or advances to the
Partnership; however, the General Partner may make, in its sole discretion,
Additional Capital Contributions, Loans, or advances to the Partnership.
B. If the General Partner advances any funds to the
Partnership after the date of this Agreement (except in the case of Additional
Capital Contributions), such advances will be treated as General Partner's
Loans, will not increase the General Partner's Participation Percentage, and the
amount thereof will be a debt due from the Partnership to the General Partner,
entitled to the priorities described in Sections 8.1 and 8.2 hereof, to be
repaid with such interest as provided.
3.6 Withdrawal of Capital. Prior to the dissolution and liquidation of
the Partnership, no Partner shall have the right, during the term of the
Partnership, to require the return of all or any portion of his Initial Capital
Contribution, except that distributions made in accordance with Article VIII may
represent in whole or in part a return of capital. Upon any return of
partnership capital this Agreement shall be amended as provided by the Law.
3.7 Interest on Capital Contributions. No interest shall be payable
with respect to any capital contributed to the Partnership.
3.8 No Priority Among Limited Partners. No Limited Partner shall have
any priority over any other Limited Partner as to the return of his Initial
Capital Contribution or as to compensation by way of income or as to allocation
of profits and losses or distributions of cash.
3.9 Excess Capital Contribution. In the event that the cost to change
and convert the business premises of the Business, including both cash and the
fair market value of any property contributed in kind, reasonable reserves and
organizational costs hereof do not equal or exceed One Million Eight Hundred
Seventy Five Thousand Dollars ($1,875,000.00), any excess shall be returned to
the Limited Partners, pro-rata, as a partial refund of their Initial Capital
Contribution. Upon any return of partnership capital, this Agreement shall be
amended as required by Law.
ARTICLE IV
LIMITED PARTNERS
4.1 Limited Liability of Limited Partners. No Limited Partner shall be
liable for any of the losses, debts or obligations of the Partnership beyond the
amount of his Capital Commitment or be required to contribute any capital beyond
his Capital Commitment, or be required to lend any funds to the Partnership,
except that a Limited Partner may be required by law to return any or all of
that portion of his Initial Capital Contribution which has been distributed to
him, with interest, if necessary to discharge Partnership liabilities to all
creditors who extended credit or whose claims arose prior to such return of
capital.
4.2 Restrictions on Limited Partners.
A. No Limited Partner shall participate in the management and control
of the business of the Partnership, transact any business for the Partnership,
or attempt to do so; and
B. No Limited Partner shall have the power to represent, sign for or
bind the General Partner or the Partnership.
4.3 Rights and Powers of Limited Partners.
A. Any Limited Partner may engage in or own an interest in any other
business ventures which may be engaged in the same or similar businesses as that
of the Partnership.
B. Each Limited Partner shall be entitled to participate in meetings
regarding the affairs of the Partnership and to do all other things with respect
to the business and affairs of the Partnership permitted by the Law.
4.4 Admission of Additional Limited Partners. No additional Limited
Partners shall be admitted to the Partnership; provided however, that the
General Partner may admit Substitute Limited Partners at any time pursuant to
Article IX.
ARTICLE V
GENERAL PARTNER
5.1 Rights and Powers.
A. The General Partner shall have the full and exclusive discretion,
right and power to manage, control and operate the Partnership and to do all
things necessary to operate the Business. The General Partner shall change and
convert the existing facility to its "Xxxxxxxx'x Seafood Bar and Grill"
restaurant concept. During the term of this Agreement and while the General
Partner continues to act in the capacity of General Partner of the Partnership,
and while the Partnership continues to pay a servicemark fee equal to three (3%)
percent of gross sales from the Business, as provided in Section VII hereof, but
not thereafter, the General Partner shall permit the Partnership to use the
servicemark "Xxxxxxxx'x Seafood Bar and Grill" for the Business and shall
supervise the day to day operation of the same under the same format and
standards as used in its existing "Xxxxxxxx'x Seafood Bar and Grill"
restaurants. The Business shall include exclusive management of the restaurant
located within the business premises for the service of breakfast, lunch and
dinner each day.
B. The General Partner is specifically authorized and empowered, on
behalf of the Partnership, and without any further consent of the Limited
Partners, to do any act or execute any document or enter into any contract or
any agreement of any nature necessary or desirable, in the sole discretion of
the General Partner, in pursuance of the business and purposes of the
Partnership, including but not limited to the operation of the Business. Without
limiting the generality of the foregoing, and subject to the provisions of
Section 5.2, the General Partner shall have the following rights and powers to
act on behalf of the Partnership, which it may exercise at the cost, expense and
risk of the Partnership:
(i) Purchase such furniture, fixtures and equipment and make such
leasehold improvements as are required by the General Partner
for the renovation of the business premises of the Business.
(ii) Place record title to, or the right to use, the property or
other assets of the Partnership in the name or names of a
nominee or nominees for any purpose convenient or beneficial
to the Partnership.
(iii) Execute contracts, leases, licenses, options to lease or
purchase, rental agreements, concession agreements, use
agreements and the like, of and with respect to Partnership
property.
(iv) Make elections under the tax laws of the United States or any
state as to the treatment of Partnership income, gains, loss,
deduction and credit, and as to all relevant matters.
(v) Provide or contract for such management services as may be
required for the operation of the Business, including but not
limited to full payroll services, all accounting and
bookkeeping services for the operation of the Business, as an
expense of the Business, (including the preparation and
forwarding of monthly sales tax returns, monthly liquor excise
taxes and annual federal partnership returns), and prompt
payment of all bills incurred in the normal operation of the
Business.
(vi) Establish overall business policy and objectives.
(vii) Provide overall executive supervision of operations of the
Business.
(viii) Generally supervise employees and others performing services
for the benefit of and in the operation of the Business.
(ix) Provide advise and arrange for advertising, display and sales
promotion of the Business.
(x) Oversee the operation of the Business in the areas of
management, sales and purchasing.
(xi) Arrange for the supervision of the daily operations of the
Business with responsibility for (1) hiring and firing
employees and other service personnel, (2) salary
administration and compensation policies, (3) incentive
programs, (4) inventory purchase and control, (5) pricing of
all goods and services, (6) business procedures, and (7)
controlling daily operational expenses.
(xii) Keep the Business insured against liability claims arising out
of the operation of the restaurant, as an operating expense of
the Business, with insurance coverage in an amount not less
than One Million Dollars ($1,000.000.00), combined single
limit, including liquor liability and products liability. The
General Partner shall cause the Partnership, itself and the
landlord of the business premises, to be named as additional
insureds on the liability insurance policy and provide the
Partnership, itself and the landlord of the business premises
with Certificates of Insurance as evidence of its compliance
with the provisions hereof.
(xiii) Purchase and maintain worker's compensation insurance for the
employees of the Business, as an operating expense of the
Business.
(xiv) Keep the business premises reasonably insured against damage
by fire and other casualty and maintain insurance in
accordance with the provisions of the Lease for the business
premises. The General Partner shall cause the Partnership,
itself and the landlord of the business premises to be named
as additional insureds on the property insurance policy and
provide the Partnership, itself and the landlord of the
business premises with Certificates of Insurance as evidence
of its compliance with the provisions hereof.
(xv) Keep the personal property, fixtures and equipment of the
Business reasonably insured against damage by fire and other
casualty, in an amount equal to its highest insurable value,
with replacement cost endorsement, as an expense of the
Business.
(xvi) Keep the Business reasonably insured against loss of business
due to fire and other casualty with business interruption
insurance, in an amount to be determined by the General
Partner, as an expense of the Business.
(xvii) Arrange and pay all charges for telephone services, all
utilities, including without limitation, electrical, gas and
water, and cable or other electronic transmission necessary
for operation of the Business, as an expense of the Business.
(xviii) Arrange for trash collection and removal from the Business, as
an expense of the Business.
(xix) Make all normal repairs and replacements to the kitchen
equipment and interior, external, non-structural and
structural repairs and replacements of the Business and the
business premises, in order to keep the same in good condition
and good working order to the extent that the General Partner
deems it necessary and in accordance with the provisions of
the Lease for the business premises.
(xx) To pay, collect, compromise, arbitrate, resort to legal action
or otherwise adjust claims or demands of or against the
Partnership.
(xxi) To borrow money for any Partnership purpose and to make all
required payments of principal and interest with respect
thereto.
(xxii) To timely comply with and abide by all of those obligations,
terms, covenants and conditions imposed upon the Partnership
as tenant of the Lease for the business premises of the
Business, including but not limited to the timely payment of
rent, as an expense of the Business.
(xxiii) To promptly comply with, execute and fulfill all governmental
statutes, ordinances and regulations applicable to the
Partnership in connection with the Business, including without
limitation, all orders and requirements imposed by the Board
of Health, sanitation, fire and police departments including
without exception those for the correction, prevention and
abatement of nuisances in or upon or connected with the
business premises of the Business, as an expense of the
Business.
The General Partner shall be responsible for the procurement and hiring
of all employees, agents and independent contractors required for on site
operation on a day to day basis including, but not limited to, a manager. The
General Partner shall control all of the day to day operations of the Business
and shall handle all negotiations, complaints, objections and other matters
involving the operation of the Business, the patrons of the Business, and the
employees and staff or any sublessee of or operator of any portion of the
Business in connection with activities at the Business. The General Partner
shall hire, instruct, maintain and supervise personnel to properly staff the
Business and shall maintain the Business, the interior, exterior, non-structural
and structural portions of the building it occupies, its fixtures and its
premises in a reasonable manner and condition, keeping it clean and serviceable,
including arranging for janitorial services as an expense of the Business. The
General Partner shall have the full responsibility to collect for all services
and sales from the Business, except as hereinafter provided, to daily deposit
all receipts in bank account(s) designated by the General Partner, shall arrange
for advertising for the Business to the extent deemed desirable by the General
Partner and maintain all necessary licenses, including liquor license, and
permits required in connection with the operation of the Business. The cost of
such activities, including license renewal fees, incurred for the Business shall
be borne by the Business.
In discharging the foregoing duties, the General Partner shall act and
conduct the Business in a reasonable manner. In order for the General Partner to
have the greatest opportunity to discharge such duties and to maximize profits
from the Business, the Limited Partners shall cooperate fully with the General
Partner and shall promptly provide the General Partner with all information and
assistance as the General Partner may reasonably request pursuant to this
Agreement. The General Partner shall devote such time to the Business as, in its
judgment, the supervision of the Business shall reasonably require, but shall
not be obligated to do or perform any act or thing in connection with the
Business not expressly set forth herein.
5.2 Certain Limitations. In addition to other acts expressly prohibited
by this Agreement or by the Law, the General Partner shall not have any
authority to:
A. Do any act in contravention of this Agreement;
B. Do any act which would make it impossible to operate the Business or
to otherwise carry on the ordinary business of the Partnership or any phase
thereof, except as expressly provided in this Agreement;
C. Assign the rights of the Partnership in specific property for other
than a Partnership purpose;
D. Admit a person or entity as a General Partner or as a Limited
Partner, except as otherwise provided in this Agreement;
E. Knowingly or willingly do any act which would cause the Partnership
to become an association taxable as a corporation;
5.3 Contracts with Affiliates. Except as herein specified, all services
which the General Partner is not obligated to perform under the terms of this
Agreement and the materials necessary for the operation of the Business may be
provided by the General Partner, or any entity affiliated with the General
Partner, and the General Partner shall be compensated for such services or
materials on such terms and conditions no less favorable than those obtainable
in the marketplace, and such amounts shall be deemed to be operating expenses of
the Business.
5.4 Liability of General Partner. The General Partner shall be liable
to the Limited Partners for willful misconduct, bad faith or gross negligence,
but shall not be liable for errors in judgment or for any acts or omissions that
do not constitute willful misconduct, bad faith or gross negligence. In all
transactions for or with the Partnership, the General Partner shall act in good
faith and for the benefit of the Partnership. The Limited Partners shall look
solely to the assets of the Partnership for the return of their Initial Capital
Contributions and if the assets of the Partnership remaining after payment or
discharge of the debts and liabilities of the Partnership are insufficient to
return such Initial Capital Contributions, they shall have no recourse against
the General Partner for such purpose. The doing of any act or the failure to do
any act by the General Partner, the effect of which may cause or result in loss
or damage of the Partnership, if done pursuant to advise of legal counsel or
accountants employed by the General Partner on behalf of the Partnership, shall
be conclusively presumed not to constitute willful misconduct, bad faith or
gross negligence on the part of the General Partner.
5.5 Indemnification. The General Partner, including any employee of the
General Partner, shall not be liable for, and to the extent of its assets, the
Partnership shall indemnify the General Partner or any such employee, against
liabilities arising out of their activities as or for the General Partner
resulting from errors in judgment or any acts or omissions, whether or not
disclosed, unless caused by willful misconduct, bad faith or gross negligence;
provided, however, that this provision shall not constitute a waiver by the
Limited Partners of any rights it may have under applicable securities laws.
ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES
6.1 General. All Partnership items of income, gain, loss, deduction,
credits, or tax preference items, (the "Tax Incidents"), shall be determined as
of the end of each fiscal year. As between a Partner and his transferee, Tax
Incidents for any fiscal year (or portion thereof, as the case may be) shall be
apportioned in accordance with the ratio that the number of days in the
Partnership fiscal year prior to the effective date of transfer bears to the
number of such days thereafter (including the effective date of the transfer).
6.2 Allocation. The Tax Incidents shall be allocated as follows:
A. Cost recovery deductions, amortization expense (including
amortization of organizational expenses, start up costs, intangible assets, or
other capital accounts), investment tax credits (including recapture of
investment tax credits), and tax preference items shall be allocated ninety-nine
percent (99%) to the Limited Partners and one percent (1%) to the General
Partner (in proportion to each Partner's Initial Capital Contribution), if
incurred with respect to the expenditure by the Partnership of the aggregate
Initial Capital Contributions of the Partners, (which shall be deemed expended
prior to any other amounts available to the Partnership), otherwise to the
Partners in accordance with their respective Participation Percentages.
B. Gains and losses from (i) sale, exchange or other disposition of all
or any substantial part of the Partnership property, or (ii) from liquidation of
the Partnership property following dissolution, as the case may be, shall be
allocated on an asset by asset basis, as follows:
(1) Gains, to the extent of cost recovery deductions or
amortization expense claimed by the Partnership with respect
to the particular Partnership assets which are sold, exchanged
or otherwise disposed of, shall be allocated ninety-nine
percent (99%) to the Limited Partners and one percent (1%) to
the General Partner (in proportion to each Partner's Initial
Capital Contribution), if realized with respect to an asset
acquired by the Partnership through the expenditure of the
aggregate Initial Capital Contributions of the Partners,
(which shall be deemed expended prior to any other amounts
available to the Partnership), otherwise to the Partners in
accordance with their respective Participation Percentages;
(2) Gains in excess of cost recovery deductions or amortization
expense claimed by the Partnership with respect to the
particular Partnership assets which are sold, exchanged or
otherwise disposed of, shall be allocated to all Partners in
the same proportion that the Partners actually receive
distributions of proceeds from Net Sale Proceeds as provided
in Section 8.2 hereof, (except distributions pursuant to
Section 8.2(a)); and
(3) All losses shall be allocated ninety-nine percent (99%) to the
Limited Partners and one percent (1%) to the General Partner
(in proportion to each Partner's Initial Capital
Contribution), if realized with respect to an asset acquired
by the Partnership through the expenditure of the aggregate
Initial Capital Contributions of the Partners, (which shall be
deemed expended prior to any other amounts available to the
Partnership), otherwise to the Partners in accordance with
their respective Participation Percentages.
C. All Tax Incidents other than those specifically allocated by
subparagraph (A) and (B), ("Other Tax Incidents"), shall be allocated to the
Partners in the same proportion that the Partners actually receive in that same
fiscal year cash distributions from Net Cash Flow as provided in Section 8.2
hereof, (except cash distributions pursuant to Section 8.2(a)), (the "Cash
Distributions"), provided nevertheless as follows:
(1) Other Tax Incidents shall be allocated in any fiscal year to
the Partners so receiving Cash Distributions in the same
proportion that such Cash Distributions actually are received
only if such Cash Distributions actually distributed equal or
are greater than the Partnership's Net Income for the same
fiscal year;
(2) To the extent the Partnership's Net Income for that same
fiscal year exceeds such Cash Distributions, Other Tax
Incidents shall be allocated to the Partners in accordance
with their respective Participation Percentages, except that
(i) Net Income, in an amount equal to Cash Distributions
actually received, shall be allocated to the Partners so
receiving such Cash Distributions in the same proportion that
such Cash Distributions actually are received, and (ii) any
excess of Net Income over Cash Distributions actually received
shall be allocated to the Partners in accordance with their
respective Participation Percentages;
(3) In the absence of any such Cash Distributions the Other Tax
Incidents shall be allocated to the Partners in accordance
with their respective Participation Percentages; and
(4) Notwithstanding clauses (1) and (2) of this Subparagraph (C),
Net Loss, (whether or not Cash Distributions are actually
made), shall be allocated to the Partners in accordance with
their respective Participation Percentages.
ARTICLE VII
ACCOUNTING
7.1 Accounting and Bookkeeping. The General Partner shall prepare and
keep, for a period of not less than three (3) years, generally accepted
accounting records, including cash registers having cumulative totals, bank
books and duplicate deposit slips, records showing inventories and receipts of
merchandise and other records from the operation of the Business which would
normally be required to be kept or examined by an independent accountant
pursuant to generally accepted auditing standards. The Limited Partners shall at
all times during normal business hours have free access to and the right to
inspect and copy the accounting records of the Business and/or Partnership, at
the principal place of business of the Partnership.
The General Partner, as an expense of the Business, shall prepare for
the Partnership and provide the Limited Partners with a complete monthly
accounting of the operation of the Business on a form similar to that attached
hereto as Exhibit "C", within thirty (30) days of the end of each month during
the term hereof. The monthly report shall also contain a statement of cumulative
gross sales from the operation of the Business for the current year of this
Agreement for purposes of determining any distributions pursuant to Article VIII
below. The General Partner shall also provide copies of such other accounting
records as may be reasonably requested by the Limited Partners and the Limited
Partners may inspect the originals thereof at any reasonable time.
The General Partner shall mail within seventy five (75) days after the
close of each fiscal year, an annual report to the Limited Partners, which
annual report shall constitute the accounting of the Partnership for such year.
The annual report shall contain unaudited financial statements, certified by the
Treasurer of the General Partner as accurate and correct, and shall otherwise be
in such form and have such content as the General Partner deems proper. Such
annual report shall include from every source, including net gains from
disposition or sale of Partnership properties.
Subject to the right of the Limited Partners to receive their share of
the distributions pursuant to Article VIII hereof, all receipts from the
operation of the Business, deposited into an account of the Partnership and/or
the General Partner at a bank designated by the General Partner, shall only be
withdrawn upon the direction of the General Partner, but cannot be unreasonably
withheld. The Partners anticipate that payment of liquor purchases, payroll and
general operations may be made from one or more additional accounts at one or
more banks, selected by the General Partner. Funds from those accounts shall
only be withdrawn by or at the direction of the General Partner.
7.2 Fiscal Year and Method of Accounting. The fiscal year of the
Partnership shall be a calendar year and the books of the Partnership for income
tax and accounting purposes shall be kept on the accrual method. All financial
determinations hereunder made by the General Partner with respect to the
calculation of profits and losses, all distributions pursuant to Article VIII
and other accounting decisions shall be determined by the General Partner in
accordance with generally accepted accounting principles consistently applied by
the General Partner in making said determinations.
7.3 Audit. The Limited Partners shall have the right from time to time,
upon two (2) business days prior notice to the General Partner, to cause a
complete audit to be made of the business affairs conducted at the Business, and
all of the books and records referred to in Article VII hereof. Such audit shall
be performed by any person designated, selected and paid for by the Limited
Partners, except as otherwise provided herein. The General Partner shall make
all records and books relevant in any manner to the operation at the Business
and/or Partnership available for audit at 0000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000. If the results of such audit show that the "Net
Income" for any month or year have been understated, the General Partner shall
immediately pay to the Limited Partners the additional amount due and if such
understatement amounts to three percent (3%) or more of "Net Income", then the
General Partner shall pay the cost of such audit, in addition to any deficiency
payment required. If the audit shows that the General Partner has overpaid or
the Limited Partners have received overpayment of any amount, the Limited
Partners shall immediately repay such amount to the General Partner. Any
accounting deficiencies revealed by such audit, which accounting deficiencies
shall be defined as any accounting practices not in accordance with generally
accepted accounting principles consistently applied, shall be corrected by the
General Partner within fifteen (15) days of its receipt of notice of such
deficiency.
7.4 Definitions.
A. "Gross Sales" shall mean the gross income, price, money, cover
charges, or other consideration charged or received from the operation of the
Business, whether in cash, on credit, barter, exchange, or otherwise.
Gross sales as used herein shall not include, and the General Partner
shall deduct from its calculations of gross sales, to the extent it has been
included:
(i) Any sales or excise tax imposed by any governmental authority
upon customers and added to the price of a sale or service and
collected from the customer and in turn paid to such
governmental authority;
(ii) The amount of any credit or refund for any merchandise
returned or exchanged or any allowance made for loss of or
damage to merchandise sold but not in excess of original cost
and only to the extent that it was previously included in the
calculation of gross sales;
(iii) Fees or discounts paid to bona fide credit card agencies;
(iv) Amounts paid to third party vending machine and coin operated
devise operators as their share of proceeds from such machines
and device; and
(v) Complimentary and/or discounted sales made at the direction of
the General Partner, including but not limited to discounted
sales to the employees of the Business.
B. "Operating Expenses" shall mean all cash expenses and liabilities
incurred in the operation of the Business, and shall include, by way of example
and without limitation hereby, rent, servicemark fee, personal property taxes on
personal property, fixtures and equipment used in the Business; liability
insurance; real estate taxes; hazard insurance; trash collections; cleaning
services; accounting and bookkeeping fees; advertising; telephone charges;
utilities, including but not limited to electric, water and gas; cable; salaries
for personnel employed at the business premises only; repairs and maintenance of
kitchen equipment, furniture, fixtures, equipment and personal property used in
the Business; repairs and maintenance of the interior and exterior of the
business premises; cost of inventory; liquor license renewal fees; but excluding
any allocation of salaries and expenses of "off-site" personnel of the General
Partner.
7.5 Tax Matters.
A. The General Partner shall cause, as a part of its bookkeeping and
accounting responsibilities, to be prepared and filed all income tax returns for
the Partnership on an accrual basis. Necessary tax information shall be provided
to the Limited Partners.
B. In connection with the assignment of a Limited Partner's interest in
the Partnership permitted by Article X hereof, the General Partner, (in its sole
discretion), shall have the right, but shall not be obligated, on behalf of the
Partnership and at the time and in the manner provided by Section 754 of the
Code, (or any successor section thereto), and the Regulations thereunder, to
make an election to adjust the basis of Partnership property in the manner
provided in Sections 734(b) and 743(b) of the Code, (or any successor sections
thereto).
7.6 Contracting for Accounting Services. The General Partner shall, as
an expense of the Business, provide the accounting and bookkeeping services
provided in this Article VII at the same rate charged to its other franchisees.
ARTICLE VIII
DISTRIBUTIONS
8.1 Distributions of Net Cash Flow. All Net Cash Flow, if any, realized
by or available to the Partnership shall first be applied or added to a
reasonable reserve retained for working capital needs or to provide funds for
contingencies and expenses of the Partnership, (all as determined in the sole
discretion of the General Partner or as required by any loan agreement or
instrument of the Partnership), and the balance, if any, shall be distributed,
(from time to time in the sole discretion of the General Partner, but in the
event, no less frequently than quarterly), in the following order of priority to
the extent available:
A. To the General Partner in repayment of the entire principal amounts
of any outstanding General Partner's loans, together with all accrued but unpaid
interest thereon, first on account of interest accrued thereon and then on
account of the principal amounts thereof;
B. To the General Partner in reduction of its then outstanding
Additional Capital Balance;
C. To the Limited Partners, until such time as the Limited Partners
have received the aggregate sum of One Million Eight Hundred Seventy Five
Thousand Dollars ($1,875,000.00), which aggregate sum shall be reduced by an
amount equal to the amount of initial working capital returned by the
Partnership to the Limited Partners, a sum equal to the amount necessary to
increase the aggregate distribution to the Limited Partners for the fiscal year
to Four Hundred Sixty Eight Thousand Seven Hundred Fifty Dollars ($468,750.00)
shall be paid to the Limited Partners. Thereafter, any remaining amounts shall
be distributed to the Partners in accordance with their respective Participation
Percentages; and
D. Once the Limited Partners have received the aggregate sum of One
Million Eight Hundred Seventy Five Thousand Dollars ($1,875,000.00), which
aggregate sum shall be reduced by an amount equal to the amount of initial
working capital returned by the Partnership to the Limited Partners, any
remaining amounts shall be distributed to the Partners in accordance with their
respective Participation Percentages.
8.2 Distributions of Net Sale Proceeds. All Net Sale Proceeds, if any,
realized by or available to the Partnership shall first be applied or added to a
reasonable reserve or escrow account retained to provide funds for contingencies
and expenses of the Partnership, (all as determined by the General Partner or as
required by any loan, escrow or other agreement or instrument of the
Partnership), and the balance, if any, shall be distributed in the following
order of priority to the extent available:
A. To the General Partner, in repayment of the entire principal amounts
of any outstanding General Partner's loans, together with all accrued but unpaid
interest thereon, first on account of interest accrued thereon and then on
account of the principal amounts thereof;
B. To the General Partner in reduction of its then outstanding
Additional Capital Balance, except as provided in Subparagraph E. of this
section;
C. To the Partners in reduction of their then outstanding Capital
Balances, (in proportion to the respective amounts of any such Capital
Balances), except as provided in Subparagraph E. of this section;
D. Any remaining amounts (i) fifty one percent (51%) thereof to the
Limited Partners and (ii) forty nine percent (49%) to the General Partner; and
E. Notwithstanding anything to the contrary in the above priority
order, if there is an insufficient balance available to fully return to each
Partner an amount equal to his then outstanding Capital Balance, the balance, if
any, shall be distributed to the Partners in proportion to the combined amount
of their then outstanding Capital Balance.
ARTICLE IX
TRANSFER OF PARTNERSHIP INTERESTS
9.1 General Partner.
A. The General Partner shall not sell, assign, or otherwise dispose of
all or any portion of its interest as General Partner in the Partnership, or
enter into any agreement as a result of which any person, firm or corporation
shall become interested with it in its interest in the Partnership without the
prior consent in writing of the Limited Partners. No person shall be admitted as
a substitute or additional General Partner without the prior written consent of
the General Partner and the Limited Partners as set forth herein. The General
Partner may not retire or withdraw as a General Partner unless it designates a
nominee willing to serve as a General Partner which shall be an individual or
corporation having the capacity to serve as such and who is able to meet any
requirements then imposed by the Code or any rulings or regulations thereunder
with respect to general partners or limited partnerships in order that the
Partnership not become an association taxable as a corporation. Subject to the
foregoing, the General Partner shall give the Limited Partners at least ninety
(90) days notice of its proposed retirement or withdrawal as General Partner, in
which event the Partnership shall be dissolved and terminated as provided in
Article X hereof unless the Limited Partners select a new General Partner within
said ninety (90) day period. Such new General Partner may be, but need not be,
the nominee designated by the retiring or withdrawing General Partner.
B. The General Partner shall immediately be removed and cease to be a
General Partner upon the dissolution of the General Partner.
9.2 Substitute Limited Partner. A Limited Partner or the transferee of
a Limited Partner may transfer all, but not a part of his Unit(s) to a
Substitute Limited Partner provided:
A. That the transferee, if an individual, is at least 21 years of age;
B. That the transferee executes an instrument satisfactory to the
General Partner accepting and adopting the provisions and agreements set forth
herein and pays any reasonable expenses in connection with his admission as a
Substitute Limited Partner; and
C. That the General Partner shall consent to such transfer, which
consent may be given or withheld in the General Partner's sole discretion, and
shall be withheld if:
(1) In the opinion of counsel for the Partnership such transfer
would result in the close of the Partnership's taxable year
with respect to all Partners, in the termination of the
Partnership within the meaning of Section 708(b) of the Code,
or in the termination of its status as a partnership under the
Code; or
(2) In the opinion of such counsel such transfer would be in
violation of the Securities Act of 1933, as amended, or the
securities laws of any other jurisdiction.
9.3 Death, etc. of a Limited Partner. Upon the death, bankruptcy, legal
incompetency or insolvency of a Limited Partner, (or, in the case of a Limited
Partner that is a partnership, joint venture, association, corporation or trust,
the dissolution of such Limited Partner), the personal representative, guardian
or other successor in interest of such Limited Partner shall have the right of
the Limited Partner for the sole purpose of settling the estate of such person
pursuant to the provisions of Section 9.2, but such assignee may become a
Substitute Limited Partner in the Partnership only in accordance with the
provisions of Section 9.2.
9.4 Effective Date of Transfers. Permissible transfers of a Limited
Partner's Units shall be effective for purposes of allocations of distributions,
profits and losses on the first day of the fiscal quarter following compliance
with Section 9.2 and following amendment of this Agreement as required by the
Law. Until such effective date, the General Partner may act and proceed as if no
transfer had been made.
9.5 Transfers Other Than in Accordance Herewith. No transfers of Units
or any part thereof which is in violation of this Article IX shall be valid or
effective, and the Partnership shall not recognize the same for the purposes of
making allocations or distributions of profits, losses, return of Capital
Contribution or other distribution with respect to such Units or part thereof.
The Partnership may enforce this provision either directly or indirectly or
through its agents by entering an appropriate stop-transfer order on its books
or otherwise refusing to register or transfer or permit the registration or
transfer on its books of any proposed transfers not in accordance with this
Article IX.
ARTICLE X
DISSOLUTION AND SUCCESSOR PARTNERSHIP
10.1 Dissolution of Partnership. The Partnership shall be dissolved
upon the earlier occurrence of any of the following events:
A. The bankruptcy, insolvency, liquidation or dissolution of the
General Partner;
B. Upon the written consent of all Partners;
C. The sale of all or substantially all of the assets of the
Partnership;
D. Pursuant to the provisions of Article II and IX hereof; or
E. Otherwise by operation of law.
10.2 Successor Partnership. If the Partnership is dissolved or to be
dissolved for any reason specified in Section 10.1, and any Limited Partner
shall deliver to each of the other Limited Partners within thirty (30) days of
such event, a written notice demanding that a meeting of Limited Partners be
held at the principal place of business of the Partnership at the time set forth
in such notice (which shall be not less than ten (10) nor more than thirty (30)
days after the date of such notice) the Limited Partners shall hold such
meeting. Limited Partners attending such meeting, either in person or by proxy,
and having an aggregate Limited Partner Percentage of not less than one hundred
percent (100%) may continue the business of the Partnership and reconstitute the
Partnership as a successor limited partnership with a new General Partner having
the capacity to serve as such and who is able to meet any requirements then
imposed by the Code or any rulings or regulations thereunder with respect to
general partners of limited partnerships in order that the Partnership not
become an association taxable as a corporation. If such Limited Partners shall
exercise such right to continue the business of the Partnership, the person
appointed by them as the new General Partner and each of the Limited Partners
shall execute, acknowledge and file a Limited Partnership Certificate and
Agreement. The Limited Partnership Certificate and Agreement shall contain
substantially the same provisions as those contained herein, except that the new
General Partner shall be allocated such share of the profits, losses and
distributions of the Partnership as the Limited Partners appointing such new
General Partner shall determine. Such new General Partner shall indicate his
acceptance of the appointment by the execution of such Limited Partnership
Certificate and Agreement.
10.3 Procedure. Unless the Business of the Partnership is continued
pursuant to Section 10.2, upon the dissolution of the Partnership, the General
Partner or the person required by law to wind up the Partnership's affairs shall
cause the cancellation of this Agreement and shall liquidate the assets of the
Partnership and apply the proceeds of such liquidation in the order of priority
provided in Article VIII of this Agreement, unless the law requires distribution
be made in a different order in which case the assets of the Partnership shall
be distributed in accordance with the law.
ARTICLE XII
LIMITED POWER OF ATTORNEY
12.1 Appointment. Each Limited Partner hereby makes, constitutes and
appoints the General Partner his true and lawful attorney-in-fact for him and in
his name, place and xxxxx and for his use and benefit, from time to time:
A. To make all agreements amending this Agreement, as now or hereafter
amended, that may be appropriate to reflect or effect, as the case may be, the
following:
(1) A change of the name or the location of the principal place of
business of the Partnership;
(2) The transfer or acquisition of any Units by a Limited Partner
in any manner permitted by this Agreement;
(3) A person becoming a Substitute Limited Partner of the
Partnership as permitted by this Agreement;
(4) A change in any provision of this Agreement effected by the
exercise by any person of any right or rights hereunder;
(5) The dissolution of the Partnership pursuant to this Agreement;
(6) Such amendments which are of an inconsequential nature and do
not affect the rights of the Limited Partners in any material
respect;
(7) To execute such certificates, instruments and documents as may
be required or may be appropriate in connection with the use
of the name of the Partnership by the Partnership; and/or
(8) To execute such certificates, instruments and documents as may
be required, or as may be appropriate for the Limited Partner
to make to reflect:
(a) A change in the name or address of such Limited
Partner;
(b) Any changes in or amendments of this Agreement, or
pertaining to the Partnership, of any kind referred
to in this Section 12.1; and
(c) Any other changes in or amendments of this Agreement
but only if and when the consent thereto has been
obtained from the General Partner and Limited
Partners, having the aggregate Limited Partnership
Percentage required by Section 13.6 hereof.
B. Each of the agreements, certificates, instruments and documents made
pursuant to Section 12.1(A) shall be in such form as the General Partner and
counsel for the Partnership shall deem appropriate. The powers conferred by
Section 12.1(A) to execute agreements, certificates, instruments and documents,
shall be deemed to include without limitation the powers to sign, acknowledge,
swear to, verify, deliver, file, record or publish the same.
C. Each Limited Partner authorizes the General Partner as such
attorney-in-fact to take any further action which the General Partner shall
consider necessary or advisable in connection with any action taken pursuant to
this Section 12.1 hereby giving the General Partner as such attorney-in-fact
full power and authority to do and perform each and every act or thing
whatsoever requisite or advisable to be done in and about any action taken
pursuant to this Section 12.1 as fully as such Limited Partner might or could do
if personally present, and hereby ratifying and confirming all that the General
Partner as such attorney-in-fact shall lawfully do or cause to be done by virtue
of this Section.
12.2 Irrevocability; Manner of Exercise. The power of attorney granted
pursuant to Section 12.1:
A. Is a special power of attorney coupled with an interest and is
irrevocable;
B. May be exercised by the General Partner as such attorney-in-fact by
listing all of the Limited Partners executing any agreement, certificate,
instrument or document with the single signature of the President or any Vice
President of the General Partner acting as attorney-in-fact for all of them; and
C. Shall survive the transfer by a Limited Partner of all or a portion
of his interest in the Partnership, except that where the purchaser, transferee
or assignee thereof with the consent of the General Partner is admitted as a
Substitute Limited Partner, the power of attorney shall survive the transfer for
the sole purpose of enabling such attorney-in-fact to execute, acknowledge and
file any such agreement, certificate, instrument or document necessary to effect
such substitution.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. All notices or other communications required or permitted
to be given pursuant to the Agreement shall in the case of notices or
communications required or permitted to be given to Limited Partners, be in
writing and shall be considered as properly given or made if personally
delivered or if mailed by United States certified or registered mail, return
receipt requested, postage prepaid, or if sent by prepaid telegram, and
addressed to such Limited Partner's address for notices as it appears on the
records of the Partnership, and in the case of notices or communications
required or permitted to be given to the General Partner, shall be in writing
and shall be considered as properly given or made if personally delivered or if
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed to the General Partner at the principal place of
business of the Partnership. Any Limited Partner may change his address for
notices by giving notice in writing, stating his new address for notices, to the
General Partner, and the General Partner may change its address for notices by
giving such notice to all Limited Partners. Commencing on the tenth (10th) day
after the giving of such notice, such newly designated address shall be such
Partner's address for the purpose of all notices or other communications
required or permitted to be given pursuant to the Agreement.
13.2 Choice of Law. This Agreement and all rights and liabilities of
the parties hereto with reference to the Partnership shall be subject to,
construed in accordance with and governed by the laws of the State of Florida.
To the extent that any provision hereof is in contravention with the Law, as in
effect from time to time, the provisions of the Law shall supersede and replace
any provision herein which is in contravention thereof. Additionally, the
appropriate forum and jurisdiction for any legal action shall be the Courts of
the County of Broward, State of Florida, and each party consents to such
jurisdiction.
13.3 Titles and Captions. All article, section and subsection titles or
captions contained in this Agreement are inserted for convenience only and are
not deemed part of the text hereof.
13.4 Sole Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
13.5 Execution in Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if all parties had all signed the
same document. All counterparts shall be construed together and shall constitute
one (1) agreement.
13.6 Amendments. The General Partner may submit to the Partners in
writing the text of any proposed amendment to this Agreement and a statement by
the proposer of the purpose of such amendment. The General Partner shall include
in any submission its view as to the proposed amendment. Any such amendment
shall be adopted if, within ninety (90) days after the notice of such amendment
is given to all Partners, the General Partner shall have approved such amendment
in writing and shall have received written approval thereof from Limited
Partners having a Limited Partnership Percentage aggregating eight percent (80%)
or more. A written approval may not be withdrawn or voided once it is filed with
the General Partner. A Limited Partner filing a written objection may thereafter
file a valid written approval. The date of adoption of an amendment pursuant to
this Section 13.6 shall be the date on which the General Partner shall have
received the requisite written approvals. Any proposed amendment which is not
adopted may be resubmitted. In the event any proposed amendment is not adopted,
any written approval received with respect thereto shall become void and shall
not be effective with respect to any resubmission of the proposed amendment.
Notwithstanding the foregoing provisions of this Section 13.6, no amendment may,
without the prior written approval of all Partners;
A. Enlarge the obligations of any Partner under this Agreement;
B. Enlarge the liability of the General Partner to the Limited
Partners;
C. Amend this Article 13.6;
D. Alter the Partnership in such manner as will result in the
Partnership no longer being classified as a limited partnership for Federal
income tax purposes; or
E. Reduce any requirements for the prior approval of Substitute Limited
Partners set forth in this Agreement.
13.7 Waiver of Action for Partition. Each of the parties hereto
irrevocably waives during the term of the Partnership any right that he may have
to maintain any action for partition with respect to the property of the
Partnership.
13.8 Assignability. Subject to the restrictions on transferability
contained herein, each and all of the covenants, terms, provisions and
agreements herein contained shall be binding upon and inure to the benefit of
the successors, assigns and legal representatives of the respective parties
hereto.
13.9 Independent Activities. Except as otherwise provided herein, the
General Partner and its affiliates, and its (and its affiliates'), officers,
directors, shareholders and employees, and each Limited Partner may,
notwithstanding the existence of this Agreement, engage in whatever activities
they choose, whether the same be competitive with the Business of the
Partnership or otherwise, without having or incurring any obligation to offer
any interest in such activities to any party hereto. Neither this Agreement nor
any activity undertaken pursuant hereto shall prevent such persons from engaging
in such activities, and as a material part of the consideration for the General
Partner's execution hereof, each Limited Partner hereby waives, relinquishes and
renounces any such right or claim of participation. Nothing in the foregoing,
however, shall be deemed to reduce any of the liabilities of the General Partner
under this Agreement.
13.10 Right to Rely on Authority of General Partner. No person dealing
with the General Partner shall be required to determine its authority to make
any undertaking on behalf of the Partnership, nor to determine any fact or
circumstance bearing upon the existence of its authority.
13.11 Arbitration. Except as otherwise provided in this Agreement, any
dispute or controversy arising out of or relating to this Agreement shall be
determined and settled by arbitration in the City of Fort Lauderdale, Florida,
in accordance with the rules of the American Arbitration Association then in
effect, and judgment upon the award rendered by the arbitrator(s) may be entered
in any court of competent jurisdiction. Except as set forth in Sections 5.4 and
5.5, the expenses of the arbitration shall be borne equally by the parties to
the arbitration.
13.12 Gender and Number. Whenever the context requires, the gender of
all words used herein shall include the masculine, feminine and neuter and the
singular and plural of all words shall include the singular and plural.
13.13 Meetings. The Partnership shall hold an annual meeting in each
fiscal year of its existence on such date and at such place and time as the
General Partner shall determine, notice of the date and time to be given to all
Limited Partners whose addresses are on record with the General Partner not
later than fourteen (14) days prior to such date. Notwithstanding the foregoing,
at any time or from time to time, Limited Partners having a Limited Partner
Percentage aggregating fifty percent (50%) may by written notice to the General
Partner specifying in general terms the subject to be considered require the
General Partner to call, or the General Partner may on its own motion call, a
special meeting of the Limited Partners and the General Partner shall within ten
(10) days after any such notice is given, give notice of such special meeting in
the same manner as is required for the annual meeting including in such notice a
copy of the notice requiring the call. Any Limited Partner shall have the right,
upon notice in writing, to require the General Partner to furnish by mail a list
of the names, addresses and respective interest in the Partnership of all other
Limited Partners in the Partnership as shown on the records of the Partnership
at the time of the notice. Any Limited Partner, or his representative, shall
have the right to inspect and copy the names and addresses of all other Limited
Partners in the Partnership.
13.14 Severability. If any provision of this Agreement, or the
application thereof, shall, for any reason and to any extent, be invalid or
unenforceable, or contrary to law, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby, but rather shall be enforced to the maximum extent permissible
under applicable law.
IN WITNESS WHEREOF, this Limited Partnership Certificate and Agreement
has been sworn to and executed as of the date above written.
GENERAL PARTNER:
XXXXXXXX'X ENTERPRISES, INC.
________________________________ By: _______________________________
Xxxxxx X. Xxxxxxxx, President
--------------------------------
STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this date by XXXXXX
X. XXXXXXXX, as President of XXXXXXXX'X ENTERPRISES, INC. on behalf of the said
corporation. He is well known to me or produced ________________ as
identification.
WITNESS my hand and official seal on this the _____ day of June, 1997.
----------------------------------
NOTARY PUBLIC - State of Florida
My commission expires:
SEE SIGNATURE PAGES FOR LIMITED PARTNERS ATTACHED HERETO
EXHIBIT "C"
SIGNATURE PAGE FOR
CIC INVESTORS #60, LTD. - INDIVIDUAL(S)
(a Florida limited partnership)
The undersigned agrees to become a limited partner in the above
referenced limited partnership and shall be bound by the terms of the Limited
Partnership Certificate and Agreement of the above referenced limited
partnership.
Amount of
Name of Limited Partner(s) Capital Commitment Date Signed
-------------------------- ------------------ -----------
/s/Xxxxxxx, Xxxxxxx 15,000.00 06/26/97
/s/Xxxx, Xxxxxxxx and Xxxxxx 5,000.00 07/02/97
/s/Xxxxxx, Xxxxxx 5,000.00 06/10/97
/s/Xxxxxxxxx, Xxxxx 10,000.00 06/24/97
/s/Xxxxxxx, Xxxxxx 20,000.00 06/30/97
/s/Xxxxxxx, Xxxxxx, Xx. 10,000.00 06/30/97
/s/Xxxxx, Xxxxxx 10,000.00 06/05/97
/s/Xxxxx, August 10,000.00 07/21/97
/s/Xxxxxxx, Xxxxxx 5,000.00 07/10/97
/s/Xxxxxxxxx, Xxxxxx 5,000.00 07/07/97
/s/Xxxxxxx, Xxxxxxx 10,000.00 07/02/97
/s/Xxxxx, Xxxx X. 10,000.00 06/03/97
/s/Xxxxxxxx, Xxxxxx 10,000.00 06/27/97
/s/Xxxxxxxx, Xxxxx 50,000.00 07/07/97
/s/Xxxxxxxx, Xxxxxxx X. 85,000.00 07/07/97
/s/Xxxxxxxx, Xxxxxx X. 250,000.00 06/26/97
/s/Xxxxxxxx, Xxxxxxx 25,000.00 06/19/97
/s/Xxxxxxxxx, Xxxxx 10,000.00 08/12/97
/s/Xxxxxx, Xxxxxxx and Xxxxxx 20,000.00 06/09/97
/s/Xxxxxxx, Xxxxxx 5,000.00 07/07/97
/s/Xxxxxxxx, Xxxxxxx, Trustee 5,000.00 07/07/97
/s/Xxxxxxx X. Xxxxxxxx Revocable Trust, dated 12/18/90
/s/Xxxxxxxxx, Xxxx X. 25,000.00 06/26/97
/s/Xxxxx, Xxxxxxxx 5,000.00 06/30/97
/s/Xxxxxxx, Xxxx (minor) 5,000.00 06/28/97
/s/Xxxxxxx, Xxxxx 25,000.00 05/31/97
/s/Xxxxxxx, Xxxxxx and Xxxxxxx 25,000.00 06/28/97
/s/Xxxxxxx, Xxxxxx Xxxxx 25,000.00 07/01/97
/s/Xxxxxxx, Xxxxx (minor) 5,000.00 06/28/97
/s/Xxxxxxxx, Xxxxx 5,000.00 06/30/97
/s/Xxxx, Xxxxxxx 20,000.00 06/24/97
/s/Xxxxxxxx, Art 10,000.00 07/02/97
/s/XxXxxxx, Xxxx, Xx. 40,000.00 06/23/97
/s/Xxxxx, Xxxx and Xxxxxxx 10,000.00 05/31/97
/s/Xxxxx, Xxxx 50,000.00 06/10/97
/s/Xxxxxxx, Xxxxxx 20,000.00 06/19/97
/s/Xxxxx, Xxxxxxxx and Xxxxx 75,000.00 07/03/97
/s/Xxxxx, Xxxxxx (minor) 5,000.00 07/17/97
/s/Xxxxx, Xxxxxx (minor) 5,000.00 07/17/97
/s/Xxxxx, Xxxxxx (minor) 5,000.00 07/17/97
Amount of
Name of Limited Partner(s) Capital Commitment Date Signed
-------------------------- ------------------ -----------
/s/X'Xxxx, Xx 25,000.00 07/15/97
/s/Xxxxxx, Xxxxxx and Xxxxxxx 10,000.00 06/24/97
/s/Xxxxxx, France and Xxxx 10,000.00 06/10/97
/s/Xxxxx, Xxxx and Xxxx 35,000.00 06/04/97
/s/Xxxxx, Xxxxxx 5,000.00 06/26/97
/s/Xxxxxxx, Xxxxxx 10,000.00 06/12/97
/s/Xxxx, Xxxxxxx and Emanuel 10,000.00 06/26/97
/s/Xxxxxxx, Xxxxxx 25,000.00 06/10/97
/s/Xxxxx, Xxxxx 25,000.00 07/15/97
/s/Xxxxxxx, Xxxxxxx 25,000.00 07/14/97
/s/Xxxxxxxxx, Xxxx and Xxxxxx 10,000.00 07/14/97
/s/Xxxxxxxx'x Enterprises, Inc. 750,000.00 06/30/97
by Xxxxxxx X. Xxxxxxx, Asst. Sec.
EXHIBIT 10(w)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Palm Beach Division
XXXXXXXX'X ENTERPRISES, INC., a Florida ) CASE NO. 96-7484
corporation ) CIV-XXXXXX
)
Plaintiff, ) Magistrate Xxxxx
)
vs. )
)
QUARTERDECK OF FORT LAUDERDALE, INC )
a Florida corporation, QUARTERDECK )
MANAGEMENT, L.C. a Florida limited company )
and XXXX X. XXXXXXXX, and individual, )
)
Defendants. )
------------------------------------------------)
STIPULATED ORDER OF DISMISSAL PURSUANT TO MEDIATION
Upon the Mediator's Report, it is hereby ORDERED AND ADJUDGED as
follows:
1. Defendants shall pay to Plaintiff the sum of $110,000.00 within ten
(10) business days of the date hereof.
2. Defendants and each of their officers, directors, shareholders,
agents, successors, assigns, licensees, and franchises, except as to Xxxx X.
Xxxxxxxx'x interests in Plaintiff or Plaintiff's franchises, are enjoined from
use of:
a. Any and all publicly visible or audible (in ads, menus,
etc.,) use of the "Xxxxxxxx" or "Xxxxxxxx'x name/xxxx, including but not limited
to public displays of the name "Xxxx X. Xxxxxxxx" and "Xxxxxxxx Family," except
as part of private corporate documents and the like or in response to an
ownership inquiry.
CASE NO. 96-7484 CIV-XXXXXX
b. Any green awning or mansard roof, except awning with green,
white (or yellow), and any other colors together (three colors or more) in
vertical striping of three colors or more, if green is one of three colors, in
proportions and frequency not to exceed green striping on and overall
substantially similar to Exhibit A, from 1996 Annual Report of Xxxxxxx
International, Inc.
c. Any green striping or accents except existing or
replacement door frames, window frames and trim.
d. Any green neon accents, except that green neon may be used
for the lettering of the "Quarterdeck" name and interior or patio beer-neon
signs and clocks.
e. Any tabletop/countertop surfaces bearing nautical maps.
f. Any display of fishing and/or diving equipment, i.e., rods,
lures, lobster traps or skin diving tanks.
g. Any "award-winning" demarkation unless there is a bona-fide
award.
h. More than 10 photographs per 1,000 square leasable gross
feet depicting fishing or skindiving activities as dead or alive trophy fish
catches shown and/or fishing equipment in use.
i. Any photographs of Xxxxxx X. Xxxxxxxx and/or his wife,
sons, daughters, and their spouses.
j. Any menu or daily special having a name similar to "Mexican
Monday," "C.B.S Night," "Wing-it Wednesday," " Chicken Out" or "Steak Out."
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CASE NO. 96-7484 CIV-XXXXXX
k. Any specials offered or featuring: free nachos with first
pitcher of beer on Monday, clams-beer-shrimp combo on Tuesday, free chicken
wings with every pitcher of beer on Wednesday.
l. If a customer asks for Quarterdeck to honor a Xxxxxxxx'x
special, the customer will be made aware that the special is Xxxxxxxx'x, not
Quarterdeck's and they are not affiliated; however, Quarterdeck may honor the
Xxxxxxxx'x special at the customer's request.
3. Defendants shall have 120 days from the date hereof to effect all
changes called for by paragraph 2, except as to awnings Defendants shall have
180 day from the date hereof to make the changes provided for herein. Upon
expiration of such period, Defendants shall deliver to Plaintiff all existing
(on-order shall be canceled) nautical tables and counters (approximately 75)
from Defendant's locations in good condition in exchange for the sum of
$20,000.00 made payable to Quarterdeck of Fort Lauderdale, Inc.
4. The parties each release each other, their officers, directors,
shareholders, agents, attorneys, successors, assigns, licensees, franchisees,
and affiliates from all claims and counterclaims that have been brought or could
have been brought, including claims and counterclaims for franchise issues,
securities issues, attorney conflict-of-interest issues, and all other claims
related to this litigation existing as of the date hereof.
5. This case is dismissed, each party bearing its own attorneys fees
and costs, and the parties may not bring contempt motions for alleged violations
of the terms hereof.
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CASE NO. 96-7484 CIV-XXXXXX
6. Any and all press release(s) concerning the subject litigation shall
be joint and shall be approved in advance by Plaintiff and Defendants.
So Stipulated and Agreed to:
XXXXXX & XXXXXX, P.A. XXX & XXXXXXX, LLP
0000 X.X. Xxxxx Xxxxxx 000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000 Xxxxx Xxxxxx - Xxxxx 0000
Xxxxx, Xxxxxxx 00000
By: /s/XXXX XXXXX XXXXXX By: /s/XXXX X. XXXXXXX
-------------------- ------------------
Xxxx Xxxxx Xxxxxx, III, Esq. Xxxx X. Xxxxxxx, Esq.
Plaintiff: Defendants:
By; /s/XXXXXX X. XXXXXXXX By: /s/XXXX X. XXXXXXXX, Pres.
--------------------- --------------------------
Xxxxxx X. Xxxxxxxx, President Xxxx X. Xxxxxxxx, President
DONE AND ORDERED this 30th day of October, 1997
/s/XXXXXX X. X. XXXXXX
----------------------
DISTRICT COURT JUDGE
Xxxxxx X. X. Xxxxxx
Copies Furnished To:
Xxxx X. Xxxxxxx, Esq
Xxxx Xxxxx Xxxxxx, III, Esq.
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