Exhibit 10 (p)
THIS MANAGEMENT AGREEMENT ("Agreement") is entered into as of this 20th
day of August, 2004 ("Effective Date") by and between BAYSHORE RAWBAR, LLC, a
Florida limited liability company, whose address is 000 Xxxxx Xxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxx 00000 ("Owner") and RMI, LLC, a Florida limited liability
company, whose address is 000 Xxx Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000
("Operator").
RECITALS
A. Bayshore Landing, LLC, an affiliate of Owner ("Landing") is the
current holder of a leasehold interest under a lease agreement (the "Master
Lease") between City of Miami as landlord, and an affiliate of Owner, as tenant,
for certain land located in the City of Miami which is used as a mixed use
retail, office, marina, restaurant and bar facility commonly known as "Monty's
in the Grove" (the "Project"), and Owner has the right to use the first floor
restaurant portion of the Project by virtue of a sublease between Owner and
Landing.
B. Operator is experienced in the operation and management of a casual
seafood and "raw bar" type restaurant commonly known as "Monty's Raw Bar and
Restaurant" and Operator will exclusively operate the restaurant portion of the
Project for Owner and no other business for ay third party pursuant to the term
and conditions set forth herein; and
C. Owner desires to employ Operator as its agent to operate the
restaurant portion of the Project currently located on the first floor of the
Project as a raw bar and casual seafood restaurant pursuant to the term and
conditions set forth herein.
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, Owner and Operator agree as follows:
ARTICLE I
APPOINTMENT OF MANAGER
Section 1.01. Appointment of Manager. Owner hereby appoints and employs
Operator to act as Owner's agent for the supervision, direction, operation and
management of a casual seafood restaurant and raw bar (the "Restaurant") in that
portion of the Project shown cross-hatched on the plot plan attached hereto as
Exhibit A (the "Premises"). Owner, or an affiliate of Owner, shall also provide
the Operator with approximately 1,950 rentable square feet of office space at
the Project ("Office Space") at the rental rate of $ 1,500 per month plus sales
tax and electricity charges as set forth in a lease to be entered into between
Owner or an affiliate of Owner as Landlord and Operator as Tenant. Landlord
shall provide a vanilla box space with standard utilities, walls, ceilings, air
conditioning, light fixtures, and sprinkler systems, as required by law
("Vanilla Box Space"). The lease shall contain a clause enabling the Landlord to
relocate tenant within the Project at Landlord's expense provided such relocated
space is a Vanilla Box Space.
Section 1.02. Term. The "Term" of this Agreement shall be for a period
of five (5) years. It shall commence as of the Effective Date and continue for
five (5) consecutive years;
however if the Effective Date is not the first day of any given month, the Term
shall run from the Effective Date through the last day of the full sixtieth
(60th) month thereafter.
ARTICLE II
COMPENSATION OF MANAGER
Section 2.01 . Management Fee. In consideration for the services
rendered by Operator hereunder, Owner agrees to pay Operator a management fee
(the "Management Fee") as follows:
(a) a basic management fee ("Base Management Fee") equal to the greater
of $25,000 per month or 4% of Gross Sales (as defined below), as determined on
an annual basis; and
(b) an incentive management fee ("Incentive Management Fee") equal to
one-third of all Operating Profits (as defined below) over $1, 200,000 per year.
Section 2.02 Definitions. In determining the Management Fee the
following definitions shall apply:
(i) Gross Sales. The term "Gross Sales" as used herein shall
mean all sales made at or from the Restaurant and/or revenues derived from or in
connection with the operation of the Restaurant, including, without limitation,
all sales of food, beverages, merchandise or services at or from the Restaurant.
Sales made at less than the stated menu price shall be included in Gross Sales
only in the amount paid by the customer and the amount of any discount or
promotional allowance shall not be included in Gross Sales. In computing the
Management Fee there shall be excluded from Gross Sales (or there shall be
deducted from Gross Sales to the extent previously included) the following:
(A) Any gratuities or service charges added to a customer's
xxxx or statement in lieu of gratuities, which are
payable to Restaurant employees;
(B) All sales taxes, excise taxes, gross receipt taxes,
admission taxes, entertainment taxes, tourist taxes or
charges;
(C) All sums and credits received in settlement of claims
for loss or damage to inventory or equipment of the
Restaurant, the Restaurant building or improvements
located at the Premises;
(D) Gains or losses from the sale of any capital assets or
furniture, fixtures and equipment used in connection
with the operation of the Restaurant;
(E) Any compensation payments or insurance proceeds for
claims against third parties arising out of or during
the course of the operation of the Restaurant (other
than proceeds from business interruption insurance);
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(F) The proceeds of any financing or refinancing of the
Restaurant or any improvements, fixtures or equipment
used in connection with the Restaurant;
(G) Proceeds from any condemnation, sale or other
disposition of the assets of the Restaurant; and
(H) Employee meals.
(ii) Operating Profits. The term "Operating Profits", as used
herein, shall mean Gross Sales minus (a) all operating expenses of the
Restaurant, including, but not limited to, insurance premiums, lease payments
payable to the City of Miami under the Master Lease and valet parking charges;
(b) all allocations made for training, marketing, and promotional expenses; (c)
common area maintenance charges for the indoor portion of the restaurant (i.e.
kitchen, covered loading areas/passageways, and dining/bar area upon completion)
and real estate taxes payable under any leases affecting the Restaurant; (d) the
Base Management Fee; (e) maintenance and repair costs; and (f) the Replacement
Reserve Fund (as defined in Section 5.03), but before any deduction for (1)
depreciation, (2) amortization, (3) debt service payments (principal and
interest), or (4) capital expenditures. The foregoing items (1) through (4)
shall be the responsibility of Owner at Owner's sole cost and expense.
Section 2.03. Payment of the Management Fee. On the first of each month
commencing on the second full month of the Term, Owner shall pay Operator
$25,000 of the Base Management Fee, which shall constitute installment payments
of the Base Management Fee, subject to reconciliation at the end of the fiscal
year based on the Annual Statement, prepared in accordance with Section 6.03
hereof, to determine the 4% of annual Gross Sales. Any overpayment or
underpayment shall be reconciled by payment or refund, as appropriate, within
thirty (30) days after Owner's receipt of the Annual Statement.
Section 2.04. Upstairs Restaurant. The parties acknowledge that the
Owner or an affiliate ("Second Floor Restaurant Owner") is contemplating having
an upscale restaurant on the second floor of the Project ("Upstairs Restaurant")
and the Second Floor Restaurant Owner may solicit proposals for the Upstairs
Restaurant. In the event the Second Floor Restaurant Owner selects the Operator
to be the operator for the Upstairs Restaurant, this Agreement shall govern the
provision of those services as well, except that the Base Management Fee shall
be the greater of: (i) a total of $25,000 per month for the Restaurant and
Upstairs Restaurant combined or (ii) 4% of Gross Sales for the Restaurant and
the Upstairs Restaurant combined and the Incentive Management Fee payable
hereunder shall be changed to one-third of all Operating Profits (as defined
above) over $ 1 ,500,000 of annual Operating Profits for the Restaurant and the
Upstairs Restaurant, combined.
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ARTICLE III
DUTIES OF THE MANAGER
Section 3.01. Standard of Operations. Operator shall manage and operate
the Restaurant in good faith and in a manner consistent with its management of
its Miami Beach and Key West Monty's Raw Bar Restaurants. Subject to the terms
and conditions of this Agreement, Operator shall have commercially reasonable
discretion to establish policies for the Restaurant, including, without
limitation, menu items, prices, purchasing, design and decor, employment,
standards of operation, quality of service, marketing and promotional
activities, and other matters affecting customer opinion of the Restaurant and
its operation. The Restaurant shall be open for business at least for lunch and
dinner seven (7) days per week. Upon Owner's request, Operator shall meet with
Owner at a mutually convenient time and place for the purpose of reviewing the
operation of the Restaurant.
Section 3.02. Personnel. Operator shall be responsible for hiring,
supervising, directing the work of, promoting, discharging and determining the
compensation and other benefits of, all personnel working in the Restaurant. All
personnel of the Restaurant shall be employees of Operator, who shall be paid by
Operator through the Payroll Account (defined in Section 5.02), including the
full amount of the wages, payroll taxes, insurance, worker's compensation and
other benefits. Operator shall not hire any other employees for any other
business venture, person or entity and Operator shall not work for any third
party during the term of this Agreement. The salaries, other compensation and
benefits of such personnel shall be consistent with those that apply at other
Monty's locations. The Owner shall have the right to approve the hiring of the
head cashier who reconciles all cash receipts ("Cashier"). At all times,
Operator shall employ a Cashier who shall work exclusively for the Restaurant.
Operator shall be responsible for filing all tax returns and other forms
required by law relating to payroll, including for payroll taxes and
unemployment taxes, and for withholding and remitting to the IRS the correct
amount of federal income taxes relating to payroll. To assist Operator in the
performance of its duties under this Agreement, Operator shall also employ a
comptroller, purchasing agent, food tracker! accounts payable person, human
resources manager, assistant comptroller and clerk as part of the Operator's
"Operations Team". All members of the Operations Team shall be paid by Operator
as part of the Management Fee and the cost of such employees (including business
expenses) shall not be reimbursed by Owner or the Restaurant. It is understood
and acknowledged by the parties that the members of the Operations Team will not
work full time for the Restaurant but will allocate a reasonable amount of time
to the Restaurant in order to fulfill the Operator's obligations under this
Agreement.
Section 3.03. Training. Operator shall be solely responsible for
recruiting and training the staff for the Restaurant in accordance with the
standard practices and procedures used by Operator, its affiliates or principals
in the Miami Beach and Key West locations and in accordance with all Governing
Laws (defined below). Operator shall provide Owner with copies ofall training
manuals and materials.
Section 3.04. Permits and Licenses. Operator, at Owner's expense, shall
be responsible for obtaining, maintaining, and renewing the appropriate liquor
license for the Restaurant and obtaining all building permits, occupational
licenses and all other licenses and permits that may be required for the
operation of the Restaurant, including sign licenses and permits. All such
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permits shall be in the name of Owner, unless required in connection with the
hiring of employees, which permits or licenses shall be in the sole name of
Operator.
Section 3.05. Contracts. Upon prior written approval of Owner,
Operator, as agent of Owner, shall have authority to enter into, on Owner's
behalf, such concessionaire, service and other contracts or agreements as are in
Operator's reasonable professional judgment necessary for the operation, supply
and maintenance of the Restaurant as required by this Agreement. Operator shall
be required to obtain the Owner's consent before entering into any agreement
involving a total amount payable in excess of $5,000 or any agreement whose term
exceeds one (1) year and cannot be terminated without cost to Owner upon less
than ninety (90) days notice.
Section 3.06. Maintenance and Repair. Operator, at Owner's expense,
shall be responsible for maintaining and repairing the Restaurant and the
Premises in good condition and repair, including without limitation all
necessary repairs and maintenance of the furniture, fixtures and equipment used
in connection with the Restaurant; provided that any single repair or
maintenance project costing in excess of Five Thousand Dollars ($5,000.00) shall
require the Owner's prior approval, except in the case of an emergency where
Operator shall use prudent and commercially reasonable judgment in remedying
such emergency. Operator shall notify Owner of any emergency situation as soon
as reasonably possible after it arises. If Owner fails to either approve or
disapprove a non-emergency item of repair or maintenance within ten (10) days
after Owner's receipt of a request for its approval, the request shall be deemed
denied. Except in the case of an emergency, Operator shall hire one of Owner's
maintenance personnel for the Project to perform routine maintenance and/or
repair tasks. The Restaurant shall be billed for the actual portion of such
maintenance personnel's time spent maintaining and repairing the Restaurant.
Section 3.07. Inventory, With the exception of Stone Crabs, Operator
shall be responsible for purchasing all inventory for the Restaurant, which
shall all be purchased in the name of the Owner and for Owner's account. Stone
Crabs may be purchased in bulk by Operator or an affiliate, culled and sorted
and then resold to Owner at the same prices the Operator purchased the Stone
Crabs. All inventory for the Restaurant shall be maintained in a segregated area
and not co-mingled with any inventory for any other restaurant of Operator's,
its affiliates or principals. A count of all tracked inventory shall be taken on
a daily basis and Operator shall provide Owner with copies of all results upon
request.
Section 3.08. Alterations to the Restaurant. Operator shall not have
the right to make any material alterations, additions or improvements to the
Restaurant without the prior written consent of the Owner, which may be withheld
in Owner's sole and absolute discretion, unless required by applicable law.
Owner anticipates constructing an approximately 5,000 rentable square foot
indoor dining area and bar for the Restaurant ("Indoor Area"). The Indoor Area
is shown on the attached Exhibit "A".
Section 3.09. Compliance with Laws. Operator shall comply with all
applicable statutes, ordinances, rules and regulations of federal, state and
local governmental bodies having jurisdiction over the Restaurant, its operation
and/or the Operator ("Governing Laws").
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ARTICLE IV
OWNER'S FINANCIAL OBLIGATIONS
Section 4.01 . Obligations of Owner. All costs and expenses of
renovating, maintaining, repairing and operating the Restaurant, including
without limitation the funding of operating deficits and working capital and
other obligations and liabilities hereunder ("Owner's Financial Obligations")
shall be the sole and exclusive responsibility and obligation of Owner, except
where it is expressly and specifically stated that such item shall be at
Operator's expense (e.g. hiring employees, preparing financial statements).
Section 4.02. Operator Not Obligated to Advance Funds. Operator shall
have no obligation to pay for any of Owner's Financial Obligations unless Owner
shall have furnished Operator with funds sufficient for the discharge thereof.
Operator shall not be obligated to advance any of its own funds to or for the
account of Owner or to incur on its own account any liability with respect to
the Restaurant. Notwithstanding the foregoing, in the event that Operator shall
have advanced any funds in payment of any expenses of the Restaurant, Owner
shall reimburse Operator within ten (1 0) days after written demand together
with paid receipts and/or invoices therefore.
Section 4.03. Annual Operating Budgets. Sixty days prior to the start
of each fiscal year, Operator shall provide Owner with an anticipated operating
budget for the next fiscal year (each, an "Annual Operating Budget"). Owner
shall provide reasonable comments to the same and the parties shall reasonably
agree upon the Annual Operating Budget prior to the start of the next fiscal
year. The Annual Operating Budget shall be in at least the same detail as the
sample attached hereto as Exhibit B. Owner may, from time to time, request that
the form be modified or additional information be added to the Annual Operating
Budget.
Section 4.04. Initial Financial Projections. Owner and Operator hereby
approve the following financial projections for the Restaurant:
(a) Initial Budget Working Capital. Attached hereto as Exhibit
C is a projection of the anticipated budget and Working Capital for the
Restaurant (as defined in Section 5.01 hereof).
(b) The Initial Operating Pro Forma. Attached hereto as
Exhibit D is a pro forma projection of the operating income and expenses of the
Restaurant from June 1 , 2004 --December 3 1 , 2004 (the "Initial Operating Pro
Forma"). It is understood that the Initial Operating Pro Forma is an estimate or
forecast of the income and expenses that Operator, in its professional judgment,
believes will be incurred or accrued at the stated Gross Sales levels during the
period for which the projection is made. In the absence of fraud or intentional
misrepresentation by Operator, Operator shall have no liability to Owner based
upon any discrepancy between the actual income and expenses of the Restaurant
and the income and expenses that were forecast in the Initial Operating Pro
Forma.
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ARTICLE V
ACCOUNTS AND RESERVES
Section 5.01 Working Capital Account. Owner shall establish a Working
Capital Account in the name of Owner at the Wachovia Bank office in Coconut
Grove or such other financial institution acceptable to Owner, and Xxxxxxx X.
Xxxxxxxx shall have signing authority on such account. During the Term of this
Agreement Owner shall furnish to Operator sufficient working capital for the
ongoing operation o of the Restaurant ("Working Capital"). Working Capital shall
consist of the following: (i) an amount that approximates the current average
value of the food and beverage inventory of the Restaurant carried at cost, (ii)
the cash on hand at the Restaurant, and (iii) an amount determined by Operator
to be reasonably adequate for the operation of the Restaurant based upon
Operator's estimate of the reasonably foreseeable income and expenses of the
Restaurant, the Initial Operating Proforma and the Annual Operating Budget.
Owner shall fund any deficit in the Working Capital within three (3) business
days after Owner's receipt of written notice from Operator of the need for
additional Working Capital; provided that Owner has five (5) business days prior
thereto received a standby notice from Operator advising Owner that a deficit is
expected and estimating the amount thereof. As used in this Agreement, the term
"business days" shall mean any day other than a Saturday, Sunday or a day on
which the banks in Miami, Florida are closed for business.
Section 5.02 Payroll Account. Operator shall maintain a separate
account through which it pays the payroll and all associated taxes and other
payments due with respect to the employees of Operator who work at the
Restaurant ("Payroll Account"), as set forth in Section 3.02. The Payroll
Account shall not be used by Operator to pay any employees of Operator, its
affiliates or principals that are not employed at the Restaurant. On every other
Thursday (or other day(s) agreed to by the parties) Owner shall deposit
sufficient funds into the Payroll Account for the Operator's payroll for the
Restaurant that is to be paid that week. Within three (3) business days after
Operator's payroll is paid, Operator shall provide Owner with wire transfer
receipts, bank statements Or other evidence that the payroll, including all
necessary taxes and other payments due in connection therewith, have been timely
paid in full. Operator shall provide Owner with copies of bank statements for
the Payroll Account upon request, as well as evidence of Operator's compliance
with all tax and other laws relating to payroll (i.e. copies of tax returns).
Section 5.03. Capital Expenditures. Capital expenditures necessary
during the Term for furniture, fixtures, equipment and improvements at the
Restaurant shall be paid for by Owner out of a replacement reserve fund (the
"Replacement Reserve Fund") accrued for the purpose of purchasing such items for
the Restaurant. On a monthly basis 2.5% of the monthly Gross Sales shall be
allocated to the Replacement Reserve Fund.
Section 5.04. Owner's Account. All Restaurant receipts (including all
cash and credit card receipts) shall be deposited on a daily basis (except for
weekends or bank holidays where funds shall be deposited on the first available
business day) into an account in the name of and under Owner's sole control
("Owner's Account") and shall be confirmed by the Cashier. Most
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of the daily expenses of the Restaurant shall be paid for from the Working
Capital Account; however any rent payments due the City, the State of Florida or
any affiliate of Owner for rent; real estate taxes, and capital expenditures
shall be paid for from the Owner's Account. Operator shall prepare for Owner's
signature all checks for such payments, which payments shall be consistent with
the Annual Operating Budget. Operator shall also prepare monthly account
reconciliations for the Owner's Account and provide the same to Owner together
with the Monthly Statement. The Owner Account reconciliations shall be certified
as true and correct by Xxxxxxx X. Xxxxxxxx on behalf of Operator.
Section 5.05 No Commingling of Funds. Operator shall not be permitted
to commingle any of its funds or its affiliates' or principals' funds with those
of the Restaurant or the Owner. All books, records and accounts for the
Restaurant shall be separate and distinct from any other operation or business
of the Operator, Xxxxxxx X. Xxxxxxxx or their respective affiliates. A breach of
the terms of this Section of the Agreement shall be cause for immediate
termination of this Agreement by the Owner without any right of the Operator to
cure.
ARTICLE VI
ACCOUNTING
Section 6.01. Standards. Operator, at Operator's own cost and expense
(which expense shall not be reimbursed by Owner), shall maintain books and
records of account relating to Operator's operation and management of the
Restaurant in accordance with generally accepted accounting principles. Owner
and its designees shall have the right, from time to time, to examine said books
and records at the Restaurant at any reasonable time during regular business
hours.
Section 6.02 Monthly Statement. Within fifteen (15) days of the end of
each month, Operator shall provide Owner with a balance sheet, profit and loss
statement and supporting schedules, as requested by Owner from time to time,
showing the Restaurant's operating results and inventory for the preceding
fiscal month and fiscal year to date ("Monthly Statement"), which shall be
certified as true and correct by Xxxxxxx X. Xxxxxxxx on behalf of Operator.
Section 6.03. Annual Statement. Within forty-five (45) days following
the end of each fiscal year, Operator shall provide Owner with a statement
showing the Restaurant's operating results for the preceding fiscal year (the
"Annual Statement"). The Annual Statement shall contain a balance sheet, profit
and loss statement and supporting schedules as requested by Owner, which shall
be certified as true and correct by Xxxxxxx X. Xxxxxxxx on behalf of Operator.
Section 6.04. Adjustments. Any adjustment required to make up an
underpayment or to refund an overpayment by Owner to Operator shall be made
within thirty (30) days after completion of the statement that shows the need
for an adjustment. Adjustments based on the Annual Statement shall be made
during the first month following completion of the Annual Statement.
Section 6.05 Right to Audit. At any time during the Term of this
Agreement and for the two (2) year period following the termination of this
Agreement, Owner shall have the right, upon five (5) days' prior written notice
to Operator, at Owner's own expense, to have an
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accountant selected by Owner verify the financial information contained in any
financial statement, including any Monthly or Annual Statement, or audit
Operator's books and records relating to the Restaurant. If there is a
discrepancy between such financial statements and the findings of Owner's
accountant, or any other dispute between the parties regarding the financial
statements, Operator's accountants and Owner's accountant shall attempt to
resolve such discrepancy or dispute, and their mutual decision shall be binding
upon Owner and Operator. If the accountants for the parties are unable to
resolve the discrepancy, the matter shall be referred to an arbitration panel
composed of Owner's independent accountant, Operator's independent accountant,
and a third independent CPA selected by the parties' independent accountants and
the decision of such arbitration panel shall be binding upon Owner and Operator.
The cost of conducting an independent audit of the Restaurant's financial
statements shall be paid by Owner unless (i) there is a discrepancy of five
percent (5%) or more between any line item in the financial statements and the
auditor's finding with respect to such line item, (ii) the amount of Gross Sales
is misstated by more than three percent (3%) of the actual amount of Gross
Sales. In either such case the cost of the audit shall be paid by Operator. The
cost of preparing the Monthly and Annual Statements shall be borne by Operator
as part of the Management Fee.
Section 6.06 Fiscal Year. The fiscal year of the Restaurant shall
commence on January first and end on December 31.
ARTICLE VII
INSURANCE AND INDEMNITY
Section 7.01 Required Coverage. The following forms of insurance
coverage shall be maintained for the Restaurant:
(a) Builder's Risk: All Risk Builders' Risk insurance, with a
limit equal to the total cost of construction of the Restaurant (including but
not limited to general construction contract cost and Operator-provided items
and all equipment for refrigerating, ventilating, cooking and dishwashing), less
an allocation for foundation and land-related improvements, such as sidewalks,
curbs, parking lots and the like;
(b) Property Insurance: Permanent property insurance, secured
as soon as the Builder's Risk Insurance ceases. Property Insurance shall insure
against any and all risks of direct physical loss to the Restaurant and its
furniture, fixtures and equipment, with limits of not less than the full
replacement cost thereof, subject to a deductible of not more than Ten Thousand
Dollars ($10,000.00), with any deductible to be treated as an operating expense
of the Restaurant;
(c) Business Interruption: All Risk Business Interruption
insurance with a limit sufficient to reimburse Owner for loss of income
resulting from Owner's inability to continue operations due to the Restaurant's
sustaining a loss from an insured peril. The limit shall also include sufficient
insurance to ensure that Owner will be able to meet its monetary obligations to
Operator under this Agreement, including the Base Management Fee, with any
deductible to be treated as an operating expense of the Restaurant;
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(d) General Liability: Comprehensive general liability
insurance, including product and liquor liability coverage, with excess limits
of not less than Three Million Dollars ($3,000,000.00), each occurrence, bodily
injury and property damage combined, including dram shop insurance in areas
having a Dram Shop Act or similar provisions of law. An umbrella liability
policy of not less than $5,000,000 per occurrence shall also be obtained;
(e) Employer's Liability: Workers' Compensation and Employer's
Liability insurance, as well as other insurance as may be required by law, in
such amounts as may be required by applicable statute or rule; provided that the
Employer's Liability Insurance shall carry a limit of not less than Five Hundred
Thousand Dollars ($500,000.00). Such insurance shall not apply to the members of
the Operations Team whose expenses are paid by Operator;
(f) Theft. The Manager, Assistant Manager and Cashier for the
Restaurant shall be bonded and insured against theft and! or misappropriation of
funds.
(g) Key Man Insurance. Key man life insurance shall be
obtained by the Owner for Xxxxxxx X. Xxxxxxxx in an amount of no less than
$2,000,000. The Owner shall be the beneficiary under such policy. If requested
by Owner Xxxxxxx X. Xxxxxxxx shall arrange for a partial assignment of either or
both of the existing life insurance policies on Xxxxxxx X. Xxxxxxxx: (1) issued
by Transamerica Occidental Life Insurance Company under Policy No. 4146225 1
naming Xxxxx Xxxxxxxx as beneficiary which was collaterally assigned to Ocean
Bank; or (ii) any other existing life insurance policy insuring Xxxxxxx X.
Xxxxxxxx.
(h) Additional Coverage: Such additional coverages and higher
policy limits as may reasonably be required from time to time by Owner or any
lender of Owner.
All such policies shall be written by insurance companies that are: (i) rated by
Best as at least A+ and (ii) are authorized to do business where the Restaurant
is located.
Section 7.02. Responsibility for Obtaining Coverage. The insurance
coverage required under Section 7.01 hereof shall be obtained by Owner or
Operator based upon a recommendation of a qualified insurance consultant
mutually acceptable to the parties. In the event the parties cannot agree upon a
consultant, Owner shall be primarily liable for obtaining the coverages required
in subparagraphs (a), (b), (c), (1) and (g) and Operator shall be primarily
responsible for obtaining the coverages in subparagraphs (d) and (e) The parties
and any lender of Owner shall be named as additional insured and/or loss payees,
as appropriate. The cost of all insurance premiums shall be an operating expense
of the Restaurant.
Section 7.03. Evidence of Coverage. No later than thirty (30) days
before the Commencement Date, written evidence shall be provided confirming that
the foregoing insurance coverage requirements have been complied with. Such
evidence shall include a statement by the insurer that the policy or policies
will not be cancelled or materially altered without at least ten (1 0) days
prior written notice to Owner and any lender of Owner. Each party shall cause
certificates of insurance for all insurance policies procured by such party to
be submitted promptly to the other party. No insurance obtained hereunder may be
cancelled or modified without the other party's prior consent.
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Section 7.04. Failure to Insure. Should Owner, or Operator, for any
reason, fail to procure or maintain any of the insurance required by this
Agreement, which failure shall constitute a default hereunder, the other party
shall have the right, at its option, to procure such insurance.
Section 7.05. Indemnity. Operator agrees to indemnify, defend and hold
harmless Owner, any affiliate of Owner and all of Owner's and such affiliates'
managers, officers, directors, stockholders, partners, employees, agents,
designees, successors and assigns (each an "Indemnified Party") from and against
any and all claims, liability, loss or damage (including attorneys' and
paralegals' fees before and at trial and at all appellate levels, whether or not
suit is instituted, and any amounts expended in the settlement of any claims of
liability, loss or damage), incurred by the Indemnified Party by reason of any
act performed or omitted to be performed by Operator, its agents, officers,
directors or employees in violation of any provision of this Agreement,
including without limitation, Operator's obligation to comply with all laws,
regulations and ordinances applicable to the Restaurant, including all local,
state and federal tax laws. Notwithstanding the foregoing, Operator shall not be
obligated to indemnify and hold Owner harmless or to reimburse Owner or to
defend Owner from any liability that results from the negligence, fraud or
willful misconduct of Owner, its agents, employees, officers or directors, or
any action of Owner, its agents, employees, officers or directors in violation
of any provision of this Agreement.
Section 7.06. Waiver of Subrogation. Each party hereto ("Releasing
Party") hereby releases the other ("Released Party") from any liability which
the Released Party would, but for this paragraph, have had to the Releasing
Party arising out of or in connection with any accident or occurrence or
casualty, to the extent of recovery under any other casualty or property damage
insurance being carried by the Releasing Party at the time of such accident or
occurrence or casualty, which accident or occurrence or casualty may have
resulted in whole or in part from any act or neglect of the Released Party, its
officers, agents or employees; provided, however, the release hereinabove set
forth. shall become inoperative and null and void if the Releasing Party
contracts for insurance with an insurance company which (a) takes the position
that the existence of such release vitiates or would adversely affect any policy
so insuring the Releasing Party in a substantial manner and notice thereof is
given to the Released Party, or (b) requires the payment of a higher premium by
reason of the existence of such release, unless in the latter case the Released
Party within ten (10) days after notice thereof from the Releasing Party pays
such increase in premium.
ARTICLE VIII
DAMAGE AND DESTRUCTION
Section 8.01 Owner to Restore. If during the Term of this Agreement all
or part of the Restaurant shall be damaged or destroyed by fire or other
casualty, then Owner shall, to the extent of insurance proceeds actually
received by Owner, repair, restore, or rebuild the Restaurant. The restoration
of the Restaurant shall be carried out with due diligence by Owner and Operator.
During any period in which the Restaurant is unable to operate due to damage and
destruction, Operator shall not be entitled to any Management Fee unless Owner's
business interruption insurance reimburses Owner for the Management Fee or a
portion thereof. In such instance, the amount actually paid by the insurance
company for the Management Fee (or portion
11
thereof) shall be paid to Operator. If the insurance proceeds are insufficient
to restore the Restaurant the Owner shall not be obligated to restore the
Restaurant and Owner may send Operator a written notice terminating this
Agreement, effective as of the date of the casualty and the parties shall be
relieved of all further obligations hereunder except those expressly surviving
termination hereof.
ARTICLE IX
EMINENT DOMAIN
Section 9.01. Total Condemnation. If the whole of the Project or the
Restaurant shall be taken in any eminent domain, condemnation, compulsory
acquisition or like proceeding by any competent authority for any public or
quasi-public use or purpose, or if such a portion thereof is so taken that it
would be infeasible or imprudent, in Owner's reasonable opinion, to use the
remaining portion of the operation of the Restaurant, then in either of such
events the Term of this Agreement shall end as of the date of such taking, and
the parties shall be relieved of all further obligations hereunder except those
expressly surviving termination hereof. Any condemnation award shall be payable
to Owner.
Section 9.02. Partial Condemnation. If only a part of the Premises or
the Restaurant shall be taken or condemned and the taking or condemnation of
such part does not make it infeasible or imprudent, in Owner's commercially
reasonable opinion, to operate the Restaurant in the remaining portion, this
Agreement shall not terminate, and Owner shall make such modifications to the
Premises and/or the Restaurant as shall be necessary to enable the Restaurant to
continue in operation, to the extent of the condemnation proceeds actually
received by Owner. Any portion of the condemnation award remaining after
restoration shall be. payable to Owner.
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 10.01. Authority of Owner and Operator. Owner and Operator
represent and warrant each to the other that each has full right, power and
lawful authority to execute and deliver this Agreement and to perform its
obligations hereunder in the manner and upon the terms contained herein, with no
other person needing to join in the execution of this Agreement, in order for it
to be binding upon all persons having an interest in the Premises. The person(s)
executing this Agreement on behalf of Owner and Operator represent and warrant
that they are the only person(s) required to execute this Agreement in order to
bind the Owner and Operator to their respective obligations hereunder. Xxxxxxx
X. Xxxxxxxx owns at least 5 1 % of the ownership interests of the Operator, has
voting control of the Operator and has the ability to nominate the number of
directors on the board of directors or board of managers, as applicable, of such
entity, necessary to bind the Operator.
Section 1 0.02. Confidentially. Owner and Operator represent, warrant
and covenant each to the other that it shall at all times treat as confidential
any proprietary information, trade secrets, knowledge or know-how relating to
the Restaurant that either of them may acquire in connection with this Agreement
or otherwise, including, without limitation, any financial information relating
to the revenues, cost or profits of the Restaurant; personnel policies or
12
procedures; budgets and compensation figures; operating systems and methods; and
recipes or training materials (referred to collectively as "Confidential
Information"); and that it shall use its best efforts to keep any Confidential
Information secret and confidential, both during and after the Term of this
Agreement.
Section 10.03. Restriction on Other Restaurant Operations. For so long
as the Master Lease is in effect (including any amendments or extension
thereto), none of Operator, Xxxxxxx X. Xxxxxxxx or any affiliate or principal of
either shall, directly or indirectly: (i) become employed by, consult with, be
associated with or assist in any capacity whatsoever (including as an owner,
shareholder, employee, officer, director, agent or independent contractor of)
any other Monty's Raw Bar or casual seafood type restaurant within a two (2)
mile radius of the Restaurant. The provisions of this Section shall survive any
termination or cancellation of this Agreement. Operator acknowledges that any
breach or violation of this Section 1 0.03 will cause irreparable injury and
damage and incalculable harm to the Owner and its affiliates and that it would
be very difficult or impossible to measure all of the damages resulting from any
such breach or violation. Operator further acknowledges and agrees that the
restrictions set forth in this Section 10.03 (including the time period,
geographical areas and types of restrictions imposed) are fair and reasonable
and are reasonably required for the protection of the business, trade secrets,
interests and goodwill of the Owner and its affiliates. In the event that any
one of the provisions of, or restrictions in this Section 1 0.03 shall be held
to be invalid or unenforceable, and is not reformed by a court of competent
jurisdiction, which the parties hereto hereby request the such court to do, the
remaining provisions thereof and restrictions therein shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
provisions or restrictions had not been included. In the event that any such
provision relating to time period, geographical area and/or type of restriction
shall be declared by a court of competent jurisdiction to exceed the maximum or
permissible time period, geographical area or type of restriction such court
deems reasonable and enforceable, said time period, geographical area and/or
type of restriction shall be deemed to become and shall thereafter be the
maximum time period, geographical area and/or type of restriction which such
court deems reasonable and enforceable.
ARTICLE XI
DEFAULT, TERMINATION AND REMEDIES
Section 11.01. Default, Notice and Cure. If either party hereto shall
default in the performance of any of its obligations under this Agreement, or if
any representation or warranty made by either party hereto shall be untrue or
shall be breached in any material way, and if within ten (1 0) days following
notice from the other party of such default, misrepresentation or breach, the
party fails to pay such monies, or in the case of non-monetary defaults, fails
to commence substantial efforts to cure such default, misrepresentation or
breach or thereafter fails within a reasonable time to prosecute such cure to
completion with diligence and continuity; then the party who delivered the
notice of such default shall have, in addition to its rights at law or in
equity, the right to terminate this Agreement and all rights granted hereunder.
Section 11.02. Termination by Operator. In addition to the default
provision set forth in Section 1 1.01, Owner shall be in default and Operator
may, at its option, terminate this Agreement and all rights granted hereunder,
upon the occurrence of any of the following events:
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(a) If owner loses the right to possession of the entire
restaurant.
(b) If Owner fails to timely reimburse Operator for the
expenses of the Restaurant within 1 0 days after a written default notice has
been sent to Owner and such expenses were in the Operating Proforma and not
reasonably contested by Owner.
(c) If Owner transfers its interests in the Restaurant and the
Project to an unaffiliated third party and such transaction closes, Operator may
terminate this Agreement simultaneously with such closing upon 30 days' prior
written notice to Owner. If Operator terminates this Agreement under such
circumstances and is not otherwise in default hereunder, Owner shall pay
Operator a $75,000 Termination Fee at closing.
Section 11.03. Termination by Owner. In addition to the default
provision set forth in Section 11.01, Operator shall be in default and Owner
may, at its option, terminate this Agreement and all rights granted hereunder,
upon the occurrence of any of the following events:
(a) If Xxxxxxx X. Xxxxxxxx fails to: (i) run the day to day
operations of the Restaurant; (ii) remain as President/Chief Executive
Officer/Manager of Operator; (iii) have the ability to nominate the number of
directors on the board of directors or board of managers, as the case may be, as
necessary to bind the Operator, or (iv) own 51% of the ownership interests or
have voting control of Operator;
(b) Immediately, upon the death or physical or mental
incapacity of Xxxxxxx X. Xxxxxxxx;
(c) If Operator shall fail to submit to Owner the financial or
other information required under this Agreement, and such failure continues
beyond the cure period provided for in Section 11.01 above;
(d) If, through no fault of Owner, the liquor license for the
Restaurant is suspended for thirty (30) days or more, or for any length of time
on three (3) occasions within any twelve (12) month period;
(e) If, through no fault of Owner, the right to do business at
the Restaurant in S full conformity with the operations of a typical "Monty's"
restaurant and bar is suspended twice within any twelve (12) month period for
violation of sanitation, health or any statutory or other legal requirement or
regulation of any local or other authority relative to the operation of the
Restaurant (other than liquor license regulations);
(f) If Operator fails to obtain the prior written approval or
consent of the Owner when it is required to do so by this agreement, and such
failure continues beyond. the cure period provided for in Section 11 .01 above;
(g) If Operator, in the operation of the Restaurant, violates
any material provision of any leases affecting the Premises and such violation
continues beyond the cure period provided for in Section 11.01 above or the cure
period provided for under such lease;
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(h) If Operator is adjudicated as bankrupt or files a
voluntary petition for bankruptcy, reorganization or arrangement under the
bankruptcy laws;
(i) If an independent audit of the Restaurant shows a
discrepancy of ten percent (1 0%) or more between the amount of Gross Sales or
Operating Profit reported by Operator and the actual amounts as disclosed by the
audit requested by Owner pursuant to Section6.05;
(j) Immediately, upon a violation of section 5.05 of this
Agreement;
(k) In connection with Owner's sale of the Project, in the
event the purchaser of the Project terminates this Agreement after the closing
of such purchase, and provided Operator is not otherwise in default hereunder,
Owner shall pay Operator a $150,000.00 Termination Fee at Closing.
Section 11.04. Termination Based on Restaurant Performance. Commencing
as of January 1 , 2005, if the Operating Profits in any three year period are
less than $1 ,000,000, per year, and such decline is not a direct result of an
Act of God or event of force nature, then Owner shall have the right, but not
the obligation, to terminate this Agreement without further obligations on the
part of Owner or Operator, upon sixty (60) days' written notice to Operator. In
the event the Indoor Area of the Restaurant as described in Section 3.08 is not
completed and open for business by January 1, 2005, for the purpose of this
Section 1 1.04, the Operating Profits for 2005 shall be calculated using the
income and expense figures for the corresponding month(s) in the calendar year
2006 during which the Indoor Area of the Restaurant was not completed and open
for business in 2005. For example, if the construction of the indoor portion of
the Restaurant is completed and opens for business on March 1 , 2005, income and
expense figures for January and February 2006 and March through December 2005
shall be used to calculate Operating Profits for 2005 and income and expenses
figures for each month in 2006 shall be used to calculate Operating Profits for
2006. Operator shall open the Indoor Area of the Restaurant immediately upon the
issuance of a temporary certificate of occupancy completion.
Section 11.05. Transition. In the event this Agreement is terminated as
provided herein Operator shall reasonably assist in the transition of the
Restaurant operations to another management team or operator. In the event
Operator does not reasonably assist, Owner shall have the right to hold back any
Management Fee payments not yet paid to Operator and keep the same.
ARTICLE XII
SUCCESSORS AND ASSIGNS
Section 12.01. Assignment by Operation. Provided Operator is not in
default under this Agreement, Operator may only assign this Agreement to an
entity at least 5 1 % owned by Xxxxxxx X. Xxxxxxxx and he must at all times have
the ability to nominate the number of directors on the board of directors or
managers of the board of managers, as applicable, to bind such entity.
15
Section 12.02. Assignment by Owner. Owner may, without Operator's
consent, assign, contribute or otherwise transfer its interest in this Agreement
or a portion thereof to: (i) an affiliate of Owner, (ii) a third party provided
the Owner maintains operating control, (iii) a purchaser of Owner's entire
interest in the Project, or (iv) to any lender providing financing to Owner for
the Project, provided such assignee assumes Owner's obligations hereunder in
writing.
Operator shall not be entitled to share in the consideration received
by Owner in connection with any sale or assignment of Owner's interest in the
Restaurant, this Agreement, the Master Lease or the Project.
Section 12.03 Parties Bound. The terms, provisions, covenants,
undertakings, agreements, obligations and conditions of this Agreement shall be
binding upon and shall inure to the benefit of the successors-in-interest and
assigns of the parties hereto with the same effect as if mentioned in each
instance where the party hereto is named or referred to, except that no
assignment, transfer, pledge, mortgage, lease or sublease made by either Owner
or Operator in violation of this Agreement shall vest any rights in the
assignee, transferee, mortgagee, pledge, lessee, sub lessee or occupant.
Section 12.04 Rights of Mortgagees. If a mortgagee, beneficiary or any
other person claiming under a mortgage or deed of trust succeeds to Owner's
interest in this Agreement, Operator shall recognize such successor as the Owner
under this Agreement, provided that such successor in writing assumes all of the
obligations of the Owner under this Agreement. Operator shall have the right to
terminate this Agreement if such successor fails to so assume such S obligation
within sixty (60) days after request by Operator. If Operator has received
written notice of the identity and current mailing address of a mortgagee with
respect to the Restaurant, Operator shall give any such mortgagee notice of any
defaults by Owner under this Agreement prior to termination of this Agreement
for any such default, and such mortgagee shall have the same rights as Owner to
cure such default.
ARTICLE XIII
NOTICES
Section 13.01. Notice Addresses. Written communications between Owner
and Operator shall be sent to their respective addresses shown on the first page
of this Agreement ("Notice Address") together with copies to HMG/Properties,
Inc., 1 000 X. Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 33 133 and Xxxxxxx X.
Xxxxxxxx, Esq., 200 5. Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 33 13 1 ;
provided that Owner or Operator may change its Notice Address by giving written
notice of such change to the other party at least thirty (30) days in advance.
Copies of all notice sent to Owner shall also be sent to:
Copies of all notice sent to Operator shall also be sent to: Xxxxxxxx X. Aran,
71 0 X. Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000.
Section 13.02 Effective Date of Notice. Wherever this Agreement
provides for notice, such notice shall be in writing and shall be delivered to a
party at its Notice Address, either by hand delivery or by United States mail,
certified, with return receipt requested. A hand-delivered notice shall be
effective on the date of receipt by the party being served with the notice. A
16
mailed notice shall be effective on the earlier of (i) the date of receipt or
refusal of receipt, or (ii) five (5) days after the date of mailing.
ARTICLE XIV
GENERAL PROVISION
Section 14.01. Relationship of the Parties. The provisions of this
Agreement relating to the determination and payment of management fees hereunder
are included solely for the purpose of providing a method whereby the said fees
can be measured and ascertained. Operator and Owner shall not be construed as
joint venturers or partners of each other and neither shall have the power to
bind or obligate the other except as set forth in this Agreement.
Section 14.02. Entire Agreement. This Agreement embodies ~ the entire
agreement between Owner and Operator with respect to the subject matter hereof
and supersedes all prior agreements and understandings, whether written or oral.
Owner and Operator have neither made nor relied upon any promises,
representations or warranties in connection with this Agreement that are not
expressly set forth in this Agreement. In entering into this Agreement, Owner
and Operator have relied on the representations and warranties contained in this
Agreement.
Section 14.03 Modifications and Waiver. This Agreement may not be
modified except by a written agreement signed by the party against whom such
modification is sought to be enforced. No waiver of any condition or covenant in
this Agreement by either party shall be effective unless made in writing, nor
shall any waiver be deemed to imply or constitute a future waiver of the same or
any other condition or covenant of this Agreement.
Section 14.04. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida. Venue for any
legal action arising hereunder shall be in the appropriate court in and for
Miami-Dade County, Florida.
Section 14.05. Construction. Whenever a word appears herein in its
singular form, such word shall include the plural; and the masculine gender
shall include the feminine and neuter genders. This Agreement shall be construed
without reference to the titles of Articles, Sections, Clauses, which are
inserted for convenient reference only. This Agreement shall be construed
without regard to any presumption or other rule permitting construction, against
the party causing this Agreement to be drafted and shall not be construed more
strictly in favor of or against either of the parties hereto.
Section 14.06. Severability. If any term or provision of this Agreement
or the application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision, to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest, extent permitted by law.
Section 14.07. Consent or Approval. Whenever it is necessary under the
terms of this Agreement for either party to obtain the consent or approval of
the other party, such consent or approval shall not be unreasonably withheld or
delayed.
17
Section 14.08. Estoppel Certificate/Subordination. Owner and Operator
shall, within twenty (20) days after receipt of a written request from the
other, execute, acknowledge and deliver a statement in writing certifying
whether this Agreement is unmodified and in full force and effect (or if
modified, whether the same is in full force and effect as so modified), whether
any conditions to the full enforceability of this Agreement remain unsatisfied
and such other facts, including the nature of any claim of default on the part
of the other, as either party may reasonably request. Operator hereby agrees to
subordinate its rights hereunder to any mortgagee of Owner, Landing and/or their
affiliates relating to any loans secured by the Project.
Section 14.09, Excuse for Nonperformance. If either party hereto shall
be delayed or prevented from the performance of any act required hereunder by
reason of acts of God, strikes, lockouts, labor troubles, plan approval delay,
inability to procure materials, restrictive governmental laws or regulations,
adverse weather, unusual delay in transportation, delay by the other party
hereto or other cause without fault and beyond the control of the party
obligated to perform (financial inability excepted), then upon notice to the
other party, the performance of such act shall be excused for the period of the
delay and the period for the performance of such act shall be extended for a
period equal to the period of such delay; provided, however, the party so
delayed or prevented from performing shall exercise good faith efforts to remedy
any such cause of delay or cause preventing performance,
Section l4.10 Attorneys' Fees. If Owner or Operator brings action at
law or equity against the other in order to enforce the provisions of this
Agreement or as a result of an alleged default under this Agreement, the
prevailing party in such action shall be entitled to recover reasonable
attorney's fees from the other. S
Section 14.11. Off-set Rights. If: (i) any of the representations or
warranties of the sellers set forth in the Purchase Agreement are untrue or
misleading in any material respect as of the Closing Date under the Purchase
Agreement, which results in a loss to the Owner, Landing or their respective
affiliates; and/or (ii) if any of Owner, Landing or their respective affiliates
is required to pay any trade payables, accounts payable or other expenses of the
sellers under the Purchase Agreement after the closing thereunder, the payment
for which was not escrowed under the Purchase Agreement, and or (iii) any gift
certificates are presented for payment at the Restaurant that have not been
issued or authorized by Owner ("Old Gift Certificates") which Old Gift
Certificates exceed $1 ,000 in the aggregate; Owner shall have the right to
offset the amount it or its affiliates was required to pay to such third party
or an equivalent of its loss from any Management Fee payable to Operator
hereunder.
Section 14.12. Date of Agreement. All references to the "date of this
Agreement, " the "date hereof," and the like shall be deemed to be the last date
on which this Agreement shall be executed by Owner and by Operator. S
Section 14.13 Waiver of Jury Trial. THE PARTIES HERETO EXPRESSLY WAIVE
ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN ANY DISPUTE OR OTHER MATTER
ARISING HEREUNDER OR IN CONNECTION WITH THE RESTAURANT, WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE.
18
IN WITNESS WHEREOF, Owner and Operator do hereby execute this
Management Agreement on the dates shown opposite their respective signatures.
OWNER:
BAYSHORE RAWBAR, LLC, a Florida limited
liability company
Name: Xxxxxx X. Xxxxxxxxx, Xx., Manager
By._______________________________
Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 20th day of
August, 2004 by Xxxxxx X. Xxxxxxxxx, as Manager of BAYSHORE RAWBAR, LLC, a
Florida limited liability company, on behalf of the company. He is personally
known to me or has produced arrives licensees identification.
Notary public
Print Name:
Serial No. (if any):___________________________
The foregoing instrument was acknowledged before me this 20th day of
August, 2004 by Xxxxx Xxxxxxxxx, as Manager of BAYSHORE RAWBAR, LLC, a Florida
limited liability company, on behalf of the company. He is personally known to
me or has produced a driver's~ license as identification.
Notary Public
Print Name:
Serial No. (if any):_________________________
OPERATOR
I, LLC, a Florida Limited liability
company
By:
Name: Xxxxxxx X. Xxxxxxxx, Managing
Member
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 20th day of
August, 2004 by Xxxxxxx X. Xxxxxxxx, as Manager Member of RMI, LLC, a Florida
limited liability company, on behalf of the company. He is personally known to
me or has produced a driver's license as identification.
Notary Public
Print Name:
Serial No. (if any):____________________________
20
EXHIBIT A
PLOT PLAN
EXHIBIT B
SAMPLE ANNUAL OPERATING BUDGET
(To be agreed upon)
22
PROJECTION OF ANTICIPATED BUDGET AND
WORKING CAPITAL FOR THE RESTAURANT
(To be agreed upon)
23
EXHIBIT D
INITIAL OPERATING PRO FORMA
(To be agreed upon within thirty days of Closing)
24
