ASSIGNMENT AND WITHDRAWAL AGREEMENT
THIS AGREEMENT is made and entered into as of the day of , 1998 by and
between MARVEL RESTAURANT VENTURE CORP., a Delaware corporation, ("Marvel"),
EBCO MANAGEMENT, INC., a Florida corporation ("EBCO"), MARVEL ENTERTAINMENT
GROUP, INC., a Delaware corporation ("MEG"), MARVEL CHARACTERS, INC.
("Characters"), XXXXXX XXXX ("Xxxx"), XXXXX XXXXXX ("Xxxxxx"), UNIVERSAL
STATION, INC., a California corporation ("UCO") and UNIVERSAL STUDIOS, INC., a
Delaware corporation, formerly MCA Inc. ("Universal").
WITNESSETH:
WHEREAS, Marvel and EBCO formed M Restaurant Venture, a Florida
general partnership (the "Venture") pursuant to a certain Joint Venture
Agreement dated as of December 9, 1994 (to which MEG, Xxxx and Xxxxxx were
signatories) (the "Venture Agreement") for purposes of constructing,
developing, owning and operating restaurants, themed around comic book, cartoon
and animation characters owned by or licensed to MEG and/or its subsidiaries
and marketed as "Marvel Mania Restaurants" (the "Restaurants"); and
WHEREAS, the Venture entered into a certain Partnership Agreement and
Ancillary Agreement with UCO dated as of September 29, 1995 (the "Partnership
Agreement") pursuant to which the Venture and UCO formed U/MRV Co. (the
"Partnership") to develop a Restaurant at Universal Studios, Hollywood,
California (the "Hollywood Restaurant") and the Partnership entered into a
certain Lease Agreement dated September 29, 1995 with Universal to lease the
property in and on which the Hollywood Restaurant was to be operated (the
"Lease"); and
WHEREAS, pursuant to the Lease, the Partnership, being obligated to
develop, construct and operate a Restaurant commenced construction thereof and,
pursuant to the Partnership Agreement, the Venture, being obligated to do so,
has contributed or will contribute its proportionate share of the Initial Cost
(as defined in Section 12.4 of the Partnership Agreement) and has contributed
or will contribute the Initial Cost Excess (as defined in Section 12.4 of the
Partnership Agreement); and
WHEREAS, pursuant to the Partnership Agreement Marvel granted a
non-exclusive license ("License") to the Partnership to use the Marvel
Characters and Marvel Format as set forth in the Partnership Agreement.
Pursuant to the Partnership Agreement MEG and Characters each also agreed to be
bound by the grant of the License and the terms of such grant as set forth in
the Partnership Agreement.
WHEREAS, the parties to the Venture executed a certain undated
Memorandum of Understanding (the "Memorandum") which Memorandum amended certain
provisions of the Venture Agreement which included imposing an obligation on
Marvel to post a standby letter of credit to secure its obligations to fund the
Venture's share of the Initial Cost and Initial Cost Excess together with all
costs associated with the Venture's responsibilities under the Partnership
Agreement in supervising the design, construction, equipping and fixturing of
the restaurant and the day to day management thereof, including without
limitation all pre-opening operational staffing and training. For purposes of
this Agreement, the Venture Agreement as amended by the Memorandum is
hereinafter collectively referred to as the "Venture Agreement"; and
WHEREAS, pursuant to the Memorandum, MEG, the Venture, EBCO and Marvel
executed a certain Letter of Credit Agreement (the "L.C. Agreement") dated the
25th day of February, 1997 pursuant to which MEG agreed to provide a letter of
credit in the amount of $6,100,000 in favor of EBCO to secure its obligations
pertaining to the Hollywood Restaurant and to secure payment of other expenses
and overhead expressly enumerated on Exhibit "B" attached thereto; and
WHEREAS, pursuant to the L.C. Agreement and the Letter of Credit issued
by Chase Manhattan Bank dated February 25, 1997 (the "Letter of Credit") in
connection therewith, on or about June 23, 1997, EBCO drew down from the Letter
of Credit, the available balance in. the amount of $4,451,000 and on or about
June 24, 1997 refunded $314,000 to Marvel, leaving $4,137,000 in available
funding. EBCO has used $4,016,972.39 to satisfy Marvel's obligations to fund
the Venture's responsibilities under the Partnership Agreement. As of the date
hereof the balance of funds held by EBCO is approximately $151,541.02
("Remaining LC Funds") including approximately $31,513.41 of earned interest;
and
WHEREAS, the parties hereto have now agreed that subject to the terms
and conditions hereinafter set forth, following the opening of the Hollywood
Restaurant, EBCO will withdraw from the Venture and assign all of its right,
title and interest in the Venture to a designee of Marvel, whereupon EBCO, Xxxx
and Xxxxxx will have no further interest in or obligations to the Venture,
Marvel, MEG, the Partnership, UCO and/or Universal;
NOW, THEREFORE, in consideration of the obligations, representations
and agreements contained herein, and for other good and valuable consideration,
the parties hereto agree as follows:
1. WITHDRAWAL AND ASSIGNMENT. Simultaneously with the
execution of this Agreement, EBCO shall withdraw from the Venture and assign
all of its right title, interest, benefits and privileges in and to the Venture
free and clear of all liens, encumbrances, liabilities, claims and restrictions
to a person or entity designated by Marvel by executing a certain Assignment of
Partnership Interest in the form attached hereto as EXHIBIT "A". EBCO, Xxxx and
Xxxxxx hereby acknowledge that by withdrawing from the Venture and assigning
its interest therein, EBCO, Xxxx and Barish (or any affiliate of EBCO, Xxxx
and/or Barish) shall be deemed to have relinquished any and all right, title,
interest, benefits and privileges they may have or may have had in the
Hollywood Restaurant or any other Restaurants to be developed by the Venture
and any other right, title, interests, benefits and privileges they may have or
may have had under the Venture Agreement, the Partnership Agreement or the
Lease, or any other document, instrument or agreement executed in connection
with or on behalf of the Venture, including without limitation, that certain
License Agreement dated March 19, 1996 by and between Marvel Characters, Inc.
and the Venture. In consideration thereof, except with respect to EBCO's
obligation under this Agreement, upon assignment of EBCO's interest in the
Venture, EBCO, Xxxx, Xxxxxx and any affiliate thereof shall be relieved in all
respects of any obligations now existing or hereinafter arising on behalf of
the Venture and Partnership and any limitations imposed under the Venture
Agreement, Partnership Agreement, Lease, the Florida Letter of Intent or any
document, instrument or agreement in connection therewith or on behalf of the
Venture including, without limitation, the limitations set forth in Sections 2
and 3 of the Memorandum.
2. POST-WITHDRAWAL OBLIGATIONS. From and after the date hereof,
EBCO shall:
(a) perform the Pre-Opening Responsibilities (hereinafter
defined) as set forth in Section 3 hereof for a period commencing on the date
hereof and ending on the Withdrawal Date which is defined as the date which is
fifteen (15) days from the date hereof;
(b) deliver to the Partnership no later than the Withdrawal
Date, a list, certified to be true and correct in all material respects as of
the date the Hollywood Restaurant is opened to the public, of all contractors,
suppliers and other personnel who have performed services or supplied materials
or goods in connection with the demolition, abatement, design, engineering,
architecture, construction and/or pre-opening of the Hollywood Restaurant, the
amounts paid to such contractors, suppliers and personnel and any amounts which
may be due and owing. In the case of contractors, suppliers and personnel who
have not been paid in full as of the Withdrawal Date the Partnership shall pay
all such outstanding sums.
(c) deliver to the Partnership no later than the Withdrawal
Date, a list, certified to be true and correct in all material respects, of all
agreements, contracts, letters of intent, purchase orders, commitments,
warranties, leases, insurance policies, licenses, permits, authorizations,
approvals, certificates, building plans and specifications and any and all
other documents in connection with the ownership, development, construction and
operation of the Restaurants which may have been executed, issued and/or
delivered for the benefit of the Venture or the Partnership but shall be in the
name of EBCO, together with the original copies thereof, and an executed
Assignment of Agreements in the form attached hereto as EXHIBIT "B".
(d) deliver to (i) Marvel no later than the Withdrawal Date,
(A) all books, records and bank accounts relating to the Venture or the
operation thereof (with satisfactory evidence of EBCO's termination of any
rights with respect thereto); and (B) copies of all conceptual and building
plans and specifications pertaining to the design and construction of any
Restaurant (other than the Hollywood Restaurant) contemplated to be developed
by the Venture and shall deliver to (ii) the Partnership no later than the
Withdrawal Date (A) all licenses, permits, authorizations, approvals,
certificates and agreements with or from all boards, agencies, departments and
governmental entities, relating directly or indirectly to the ownership, use,
operation and maintenance of the Hollywood Restaurant or the construction
thereof; (B) copies of all conceptual and building plans and specifications
pertaining to the design and construction of the Hollywood Restaurant. All
other documents, agreements and correspondence of any kind whatsoever
pertaining to the Venture and/or the Partnership or otherwise delivered to
either the Partnership or the Venture (other than correspondence which is
considered attorney's work product or otherwise protected by attorney/client
privilege) which shall be maintained by EBCO
at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 for a period of one (1) year.
Representatives of the Partnership and/or the Venture shall have the
opportunity upon reasonable prior notice to EBCO to inspect, review and/or copy
any such documents, agreements and correspondence.
(e) deliver to Marvel no later than the Withdrawal Date, the
Remaining LC Funds together with a full and final accounting, in a form
reasonably acceptable to Marvel, documenting all expenditures made by EBCO on
behalf of the Venture, including the amounts of such expenditures, to whom they
were made, and when they were made.
3. PRE-OPENING RESPONSIBILITIES. From and after the date hereof, until
the Withdrawal Date, EBCO shall be obligated to take such actions in the
exercise of its best efforts as are necessary to enable the Hollywood
Restaurant to be open to the public on a timely basis, all in the same manner
and at the same level of quality as if EBCO were to continue to have a
substantial interest in the Hollywood Restaurant but for the withdrawal from
the Venture in accordance with this Agreement, except EBCO, Marvel and UCO have
mutually agreed to reduce the staff training time from the time EBCO would
otherwise provide to train personnel (the "Pre-Opening Responsibilities").
Notwithstanding anything contained herein to the contrary, EBCO shall, as of
the date hereof, be relieved of all responsibility and obligations for
obtaining the liquor license for the Hollywood Restaurant and for supplying,
designing and producing merchandise for resale at the Hollywood Restaurant; it
being understood that such responsibilities and obligations shall be assumed by
Marvel and UCO. All funds required by EBCO to fulfill its Pre-Opening
Responsibilities shall be paid from the funds held by EBCO from the Letter of
Credit or other funds provided by Marvel and/or UCO in accordance with the
existing provisions of the Partnership Agreement.
4. CONSENT TO WITHDRAWAL. UCO and Universal hereby agree to permit
EBCO to withdraw from the Venture thereby relieving and releasing EBCO, Xxxx
and Xxxxxx in all respects from any future obligations which EBCO, Xxxx and/or
Barish may have pursuant to the Partnership Agreement or Lease, as the case may
be, notwithstanding anything contained in the Partnership Agreement or Lease to
the contrary.
5. PROPRIETARY INTERESTS. It is hereby understood and agreed that all
right, title and interest in and to the name "Marvel Mania" and the design,
building plans and specifications, decor, furnishings, fixtures, equipment,
insignia trade dress, memorabilia, uniforms, menus, recipes, merchandise and
merchandise designs, advertising and promotional materials, intellectual
property rights, budgets, concepts, themes, formats and elements which singly
or in the aggregate are identified or were developed to be identified with the
Hollywood Restaurant and/or any other Restaurant to be developed pursuant to
the Venture Agreement shall be and remain the sole property of the Venture and
neither EBCO, Xxxx, Xxxxxx nor any affiliate of EBCO, Xxxx or Barish, nor UCO,
Universal, the Partnership nor any affiliate of said entities shall have or
retain any rights, title or interest therein from and after the Grand Opening
except in the case of UCO and the Partnership as may be expressly provided in
the Partnership Agreement.
6. COOPERATION AND FURTHER ASSURANCES.Following the Withdrawal Date,
the parties agree to reasonably cooperate with each other to ensure a
continuity of operations of the Hollywood Restaurant and to carry out the
interest and purpose of this Agreement. In connection therewith each party
will, whenever and as often as it shall be reasonably requested to do so by the
other, cause to be executed, acknowledged or delivered any and all such further
information, instruments and documents as may be reasonably necessary or
proper.
7. NO LITIGATION. As of the date hereof, neither EBCO, Xxxx nor Xxxxxx
are aware of any actual or threatened demands, claims, actions or causes of
action ("Claims") nor any facts or circumstances which may form the basis for
any Claims associated with the Hollywood Restaurant except those Claims listed
on the attached EXHIBIT "D" EBCO agrees to update EXHIBIT "D" on an ongoing
basis between the date hereof and the Withdrawal Date. As of the date hereof,
EBCO, Xxxx and Barish represent that except as otherwise enumerated on EXHIBIT
"D", all Claims listed on EXHIBIT "D" are either notices of liens filed by
contractors in the ordinary course of business in the construction industry, or
claims by vendors for services or materials which have not yet been paid for
(but which would not normally be paid as of the date hereof in the ordinary
course of business in the construction industry).
8. INDEMNIFICATION BY MARVEL, MEG AND UCO. Marvel, MEG and UCO hereby
jointly and severally indemnify and hold EBCO, Xxxxxx, Xxxx and their
affiliates harmless from and against any and all actions, suits, claims,
penalties, losses, damages and expenses, including reasonable attorney's fees,
based upon or arising out of the performance or nonperformance by Marvel, MEG
or UCO of any of their respective obligations in the case of Marvel and MEG,
under the Venture Agreement and/or the Memorandum and in the case of Marvel,
MEG and UCO, under the Partnership Agreement, the Lease Agreement and/or this
Assignment and Withdrawal Agreement.
9. INDEMNIFICATION BY EBCO. EBCO, Xxxx and Xxxxxx hereby indemnify and
holds Marvel, MEG, UCO and their affiliates harmless from and against any and
all actions, suits, claims, penalties, losses, damages and expenses, including
reasonable attorney's fees, arising out of the performance or non-performance
by EBCO, Xxxx and Xxxxxx of their respective obligations under the Venture
Agreement, the Memorandum, the Partnership Agreement, the Lease Agreement
and/or this Assignment and Withdrawal Agreement; provided, however, that
neither EBCO, Xxxx or Barish shall have any liability hereunder for any loss
caused by any act or failure to act if the loss suffered arises out of a
mistake in judgment made in good faith, or if EBCO, Xxxx and/or Barish had
reasonably believed that the action or lack of action giving rise to the loss
was in the best interest of the Venture and/or Partnership; provided, further
however that such exculpation from liability shall not apply to any liability
for loss caused by any act or by the failure to do any act which arises out of
the gross negligence, willful neglect, willful misconduct or fraud of EBCO,
Xxxx or Xxxxxx. Notwithstanding anything contained herein to the contrary,
EBCO, Xxxx and Barish shall not be liable to or obligated hereunder to
indemnify Marvel, MEG and/or UCO with respect to matters pertaining to sales,
revenue, income, profits, operating losses, operating expenses or partnership
returns arising from the operation of the Hollywood Restaurant.
10. MANAGEMENT OF HOLLYWOOD RESTAURANT.
(a) UCO and Marvel agree that from and after the Withdrawal
Date until June 30, 2000 (the "Initial Term"), UCO shall assume the day to day
management of the Hollywood Restaurant which has heretofore been the
responsibility of EBCO. Thereafter, the management agreement shall be
automatically extended for successive one year terms (each, a "Successive
Term"). During the Initial Term or any Successive Term in which UCO is acting
as manager of the Hollywood Restaurant, UCO shall be entitled to collect
one-half (1/2) of the Management Fee payable to the Venture pursuant to Section
14 of the Partnership Agreement and the remaining one-half (1/2) of the
Management Fee shall continue to be paid to the Venture. During such period as
a substitute manager selected by the Venture is managing the Hollywood
Restaurant, the Venture (together with the substitute manager) shall be
entitled to collect the entire Management Fee. Nothing contained herein shall
alter the percentage interests of either of the Partners in the Partnership.
(b) UCO and any substitute manager (hereinafter collectively
referred to as the "Manager") shall have the following management
responsibilities pertaining to the Hollywood Restaurant (the "Management
Requirements"):
(i) The Manager shall provide to Marvel all of the
reports (i.e., daily, weekly, monthly sales reports, status reports, etc.) and
projections set forth in Section 7.4 of the Partnership Agreement.
(ii) The Manager shall fulfill the Venture's obligations
under the first sentence of Section 7.1 and under Sections 7.2 and 7.3 of the
Partnership Agreement.
(iii) The Manager shall give a true account of all
business transactions arising out of or in connection with the business.
(iv) The Manger shall be responsible for day-to-day
management activities including, without limitation, restaurant personnel
decisions, procurement, and upkeep.
(v) The Manager shall maintain, on a continuing basis, a
standard of entertainment, food quality and service, viewed together on an
overall basis, consistent with budgetary limits established by the partners of
the Partnership, which standard is appropriate for large themed restaurants
catering to the same type of clientele as the Restaurant, such standard to be
established on an objective basis and applied by an independent firm
experienced in reviewing restaurant operations.
(vi) The Manager shall comply with all applicable health
and safety standards.
(vii) Prior to each fiscal year, the partners of the
Partnership shall mutually agree upon an operating and capital expenditures
budget for the Hollywood Restaurant, including projected receipts and cash
flows, for the upcoming fiscal year (the "Budget"). Universal shall submit to
Marvel for approval, a proposed Budget for the fiscal year which begins in
July, 1998. Marvel acknowledges and agrees that UCO will be allowed to manage
the Hollywood Restaurant for the period prior to the fiscal year which begins
July, 1998 without a fiscal budget. The expenses during the period prior to the
fiscal year which begins in July, 1998, excluding costs directly related to the
opening of the Restaurant, shall be used as a guideline for the creation of a
Budget for the fiscal year which begins in July, 1999.
(viii) The Manager shall manage the Hollywood Restaurant
in a manner consistent (in terms of both operations and theming) with the
standards of the Marvel Mania chain and shall manage the Hollywood Restaurant
in such a way as to protect the image fostered by Marvel with respect to the
Marvel Characters. Notwithstanding the foregoing, if the Marvel Mania chain
adopts standards which are inconsistent with, or more burdensome than, the
manner in which the Hollywood Restaurant is then being managed, operated, or
themed, the Manager shall not be required to conform to such Marvel Mania chain
criteria if to do so would require a substantial expenditure or a substantial
departure from the way in which the Hollywood has been operated or would
otherwise be unreasonably burdensome to the Partnership.
(c) (i) Marvel shall have the right to remove Universal as
manager for cause during the Initial Term or any Successive Term. "Cause" as
used herein shall mean a violation of any of the Management Requirements.
Furthermore, the Manager may be removed if for each of any two successive
fiscal years beginning with the July, 1999 to June, 2000 fiscal year, the
Partnership has failed to achieve earnings before interest, taxes, depreciation
and amortization ("EBITDA") within 15% of the approved EBITDA figures in the
Budgets for each of such two (2) successive fiscal years, subject to reasonable
adjustment to account for matters beyond the reasonable control of the Manager
(including without limitation Acts of God or major decreases in theme park
attendance). In order to cause the removal of the Manager pursuant to this
sentence, notice must be given to the Manager within 60 days following the end
of the particular two successive fiscal year period.
(ii) If UCO receives a notice of removal for cause (the
"Removal Notice"), the Removal Notice shall become effective within 90 days of
UCO's receipt of such notice unless UCO shall cure such violation within sixty
(60) days of its receipt. There, however, shall be no cure period for failure
to achieve the required level of EBITDA as specified in the second sentence of
Subparagraph (c)(i) above. In the event a Removal Notice is issued, Marvel and
UCO shall have forty-five (45) days from its transmittal to mutually agree upon
a substitute manager. If Marvel and UCO are unable to agree upon a substitute
manager within said forty-five (45) day period, Marvel shall have the right,
subject to satisfaction of the Manager Criteria (as defined below) to select a
substitute manager, subject to a limited approval right (as defined herein) by
Universal. The Initial Term for the substitute manager shall be eighteen (18)
months. UCO shall have the right to cause Marvel to remove and replace the
substitute manager in the same manner and according to the same procedures as
set forth above subject to a limited approval right by UCO of the successor
manager in the event Marvel and UCO cannot mutually
agree upon a successor manager. The process outlined above may be repeated from
time to time to the extent the current manager is replaced pursuant to this
Paragraph. The Manager Criteria shall be as follows:
(1) Any substitute manager must have a history of
successfully operating more than one themed or highly profiled restaurant, each
having more than 250 seats.
(2) Any substitute manager must have a good reputation
in the communities and businesses in which it operates.
The "limited approval right" as used herein shall mean the right to reject a
proposed substitute manager if UCO can demonstrate by reasonable evidence that
the Manager Criteria, when applicable, has not been reasonably satisfied.
(d) The parties hereby agree that they will have joint approval
over the following aspects of the restaurant including the development of (i)
the menu, (ii) the physical design of the restaurant, (iii) the merchandise mix
in the retail area, (iv) the type of food, beverage and merchandise as well as
the retail prices, and (v) advertising and promotional material, except Marvel
shall have final approval over the foregoing to the extent any of the foregoing
involves the use of a Marvel trademark, trade dress or character or involves
changes by the Partnership which would result in the Hollywood Restaurant being
in material deviation from the other restaurants in the Marvel Mania chain.
11. PARTIES. The parties hereto acknowledge that certain provisions of
this Agreement are not intended to bind each and every party and that certain
recitals, statements of facts, representations and warranties do not constitute
the recitals, statement of facts or representations or warranties of each and
every party; it being understood that a party shall be bound by only those
respective provisions, recitals, statements of facts, representations and
warranties, to the extent such provision, recital, statement of fact,
representation or warranty expressly binds, limits or refers to such party by
name; provided, however all parties are bound by all provisions of general
applicability.
12. DEFAULT. An event of default under this Agreement shall be deemed
to occur in the event any party hereto breaches or fails to comply with any
agreement, obligation, representation, warranty or undertaking contained herein
which is applicable to such party. Upon the occurrence of an event of default,
a non-defaulting party hereto shall be entitled to exercise any and all rights
and remedies available to such parties at law or in equity, including, without
limitation, the right to terminate this Agreement, whereupon this Agreement
shall be null and void and of no force and effect.
13. MISCELLANEOUS
(a) It is mutually agreed by the parties hereto that this
Agreement contains the entire agreement of the parties with respect to the
subject matter of this Agreement. This Agreement may not be amended, altered or
modified except by a writing signed by the parties hereto.
(b) All notices under this Agreement shall be in writing and
shall be delivered personally by overnight courier service, by telecopy or
telefax or by certified or registered mail, postage prepaid, return receipt
requested, to the parties at the addresses so specified for notice under the
Venture Agreement.
(c) In the event that any provision of this Agreement shall
be held to be invalid or unenforceable, the same shall not affect in any
respect whatsoever the validity or enforceability of the remainder of this
Agreement.
(d) Except as provided herein to the contrary, this Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
respective legal representatives and permitted successors and assigns.
(e) Except as herein specifically amended, modified and/or
altered, the obligations of the parties hereto under the Venture Agreement, the
Memorandum, the Partnership Agreement, the Lease Agreement and/or the Florida
Letter of Intent shall remain in full force and effect.
(f) Nothing in this Agreement shall adversely affect UCO's
rights or otherwise limit the Venture's, MEG's or Marvel Restaurant Corp.'s
obligations. Without derogating from the generality of the prior sentence,
Section 20 of the Partnership Agreement shall govern if either partner of the
Partnership becomes the Defaulting Partner under the Partnership Agreement
(including without limitation the right of the partner which is not the
Defaulting Partner to exercise sole authority to determine all matters referred
to in Section 10 of this Agreement); furthermore, if the Venture is the
Defaulting Partner the aforementioned Sections 20 and 16.2 of the Partnership
Agreement shall apply along with the other provisions of the Partnership
Agreement applicable to the Management Fee and royalties and Section 10 of this
Agreement will not apply. Notwithstanding the foregoing, Marvel shall retain
the right to enforce the provisions of Subparagraph (b)(viii) and the final
approval rights specified in Paragraph (d) both of Section 10 of this
Agreement, even if Marvel's other rights under the aforementioned Section 10
cease.
(g) Upon the written request of UCO or Universal, MEG and/or
Characters will petition the appropriate court for approval pursuant to
Bankruptcy Code Section 365(a) of the assumption of the Partnership Agreement
and each of its terms and conditions thereof except as such terms or conditions
may be inconsistent with the terms and conditions set forth in this Agreement.
(h) This Agreement shall be governed and construed by and in
accordance with the laws of the State of Florida.
(i) The terms and provisions of this Agreement shall survive
the withdrawal of EBCO from the Venture.
(j) All section headings used in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement itself.
(k) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
(1) For purposes of this Agreement the term "Affiliate" shall
mean, with respect to any entity or person, any natural person or firm,
corporation, partnership, association, trust, or other entity which controls,
is controlled by or under common control with the subject entity; a natural
person or entity which controls an affiliate under the foregoing shall also be
deemed to be an Affiliate of such entity. For purposes hereof, the term
"control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of any such entity
or the power to veto policy decisions of such entity, whether through the
ownership of voting securities, equity interests, by contract or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MARVEL RESTAURANT VENTURE
CORP., a Delaware corporation
By:
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MARVEL ENTERTAINMENT GROUP,
INC., a Delaware corporation
By:
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MARVEL CHARACTERS, INC., a
Delaware corporation
By:
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EBCO MANAGEMENT, INC., a Florida
corporation
By:
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XXXXXX XXXX
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XXXXX XXXXXX
UNIVERSAL STATION, INC., a
California corporation
By:
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UNIVERSAL STUDIOS, INC., a
Delaware corporation
By:
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EBCO MANAGEMENT, INC., a Florida
corporation
By:
------------------------------------
---------------------------------------
XXXXXX XXXX
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XXXXX XXXXXX
UNIVERSAL STATION, INC., a
California corporation
By:
------------------------------------
UNIVERSAL STUDIOS, INC., a
Delaware corporation
By:
------------------------------------
EBCO MANAGEMENT, INC., a Florida
corporation
By:
------------------------------------
---------------------------------------
XXXXXX XXXX
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XXXXX XXXXXX
UNIVERSAL STATION, INC., a
California corporation
By:
------------------------------------
UNIVERSAL STUDIOS, INC., a
Delaware corporation
By:
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EXHIBIT "A"
ASSIGNMENT OF PARTNERSHIP INTEREST
THIS ASSIGNMENT OF PARTNERSHIP INTEREST is dated ,1998 from EBCO
MANAGEMENT, INC., a Florida corporation ("Assignor") in favor of ("Assignee").
WITNESSETH:
WHEREAS, Assignor is a general partner in M RESTAURANT VENTURE, a
Florida general partnership (the "Venture") formed pursuant to a Joint Venture
Agreement dated as of December 9, 1994, between Assignor and Marvel Restaurant
Venture Corp. (the "Venture Agreement"); and
WHEREAS, Assignor desires to assign to Assignee all of Assignor's
right, title, interest, benefits and privileges (the "Interest") in and to the
Venture, and Assignee desires to accept such assignment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, Assignor and Assignee, intending to be legally bound, hereby agree as
follows:
1. Assignor does hereby convey, transfer, set over and assign to
Assignee all of Assignor's right, title, interest, benefit and privileges in
the Venture, as well as all of the rights, privileges and obligations relating
thereto from and after the date hereof
2. This Assignment of Partnership Interest is being executed by
Assignor pursuant to and in accordance with that certain Assignment and
Withdrawal Agreement between Assignor, Marvel Restaurant Venture Corp., Marvel
Entertainment Group, Inc., Xxxxxx Xxxx and Xxxxx Xxxxxx dated as of the day of
1998, the terms and conditions of which are herein incorporated by reference.
3. Assignor hereby represents and warrants that:
(a) Assignor is the sole owner of the Interest;
(b) The Interest has not been pledged or hypothecated in any
manner;
(c) Assignor has the full power and authority to transfer the
Interest; and
(d) The Interest is being transferred free and clear of all
liens, encumbrances and/or claim by third parties;
(e) Assignor has been granted full access to the
Partnership's books and records.
4. Assignor shall sign any and all documents reasonably requested by
the Assignee, which may be reasonably necessary to consummate and properly
document this Assignment.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
this day of __________ , 1998.
Signed, Sealed and Delivered EBCO MANAGEMIENT CORP., a Florida
in the presence of: corporation
By:
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Print Name:
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Print Name:
ACCEPTANCE
The undersigned, being the Assignee described in the foregoing
Assignment, hereby accepts the Interest hereby assigned and the terms and
conditions of this Assignment.
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By:
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STATE OF FLORIDA :
:SS:
COUNTY OF :
The foregoing instrument was acknowledged before me this ______ day of
_________ 1998, by _________________________ , the _______________ of EBCO
MANAGEMENT CORP., a Florida corporation, who is personally known to me or has
produced__________________________ as identification.
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Notary Public, State of Florida
Print Name:
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My Commission Expires:
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(Notary Seal)
EXHIBIT "B"
ASSIGNMENT OF AGREEMENTS
THIS ASSIGNMENT, made as of this day of 1998, by EBCO MANAGEMENT, INC.,
a Florida corporation (hereinafter called "Assignor") to U/MRV CO, a California
general partnership (hereinafter called "Assignee").
BACKGROUND OF ASSIGNMENT
WHEREAS, Assignor and Marvel Restaurant Venture Corp., a Delaware
corporation ("Marvel") formed Assignee pursuant to that certain Joint Venture
Agreement dated as of December 9, 1994 (the "Venture Agreement") for purposes
of constructing, developing, owning and operating restaurants, themed around
comic book, cartoon and animation characters owned or licensed by an affiliate
of Marvel; and
WHEREAS, pursuant to the Venture Agreement, Assignor was responsible
for the day to day management of the Venture as the Managing Venturer and in
connection therewith executed certain agreements, contracts, letters of intent,
purchase orders, commitments, leases and other documents on behalf of the
Venture but in the name of the Assignor in its capacity as the Managing
Venturer and certain warranties, permits, approvals, authorizations,
certificates and agreements from governmental agencies, boards and departments
and conceptual design and building plans and specifications may have been
issued and/or delivered for the benefit of the Venture but in the name of the
Assignor, all as more fully described on EXHIBIT "A" attached hereto
(collectively "Agreements and Approvals").
WHEREAS, on this date, Assignor has withdrawn from the Venture,
assigned its interest therein and in connection therewith has relinquished all
of its right, title, interest, benefits and privileges in the Venture and any
of the Venture's property; and
WHEREAS, in connection with such withdrawal and assignment, the
Assignor and Assignee desire to assign to Assignee all of the Agreements and
Approvals which were executed, issued or delivered on behalf of or for the
benefit of Assignee.
TERMS OF ASSIGNMENT
NOW, THEREFORE, in consideration of the obligations and promises
contained herein and intending to be legally bound, Assignor does hereby
covenant, agree, warrant, represent, assign, set over and transfer as set forth
herein.
5. Assignor hereby assigns, transfers and sets over unto Assignee all
of its right, title and interest in and to the Agreements and Approvals and all
the privileges and benefits
therefrom, including the right to xxx for claims arising thereunder whether
arising prior to or following the date hereof.
6. Assignor hereby represents that EXHIBIT "A" constitutes a true and
complete list of all Agreements and Approvals and, if requested, Assignor shall
deliver to Assignee such consents to this Assignment as Assignee deems
reasonably necessary to carry out the purposes and intent of this Assignment.
7. This Assignment shall be governed by and construed according to the
laws of the State of Florida.
IN WITNESS WHEREOF, Assignor has duly executed this assignment the day
and year first above written.
EBCO MANAGEMIENT, INC., a
Florida corporation
By:
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STATE OF FLORIDA )
) ss.:
COUNTY OF )
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The foregoing instrument was acknowledged before me this _______ day
of _______ 1998 by _________ , as ______________ of EBCO MANAGEMENT, INC., a
Florida corporation, who personally appeared before me, is personally known to
me or produced ____________________ as identification.
Notary:
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[NOTARIAL SEAL] Print Name:
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Notary Public, State of Florida
My commission expires:
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EXHIBIT "C"
"INTENTIONALLY OMITTED"
EXHIBIT "D"
CLAIMS
