EXHIBIT 10.9(1)
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MANAGEMENT AGREEMENT TERMINATION
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THIS MANAGEMENT AGREEMENT TERMINATION (the "Agreement") is made and
entered into as of the 5th day of August, 1999, among Unique Restaurant
Concepts, Inc., a Florida corporation ("Manager") and Max's Beach Grill, Ltd., a
Florida limited partnership, Unique Brickell, Ltd., a Florida limited
partnership and Unique Weston, Ltd., a Florida limited partnership (with the
last three entities collectively referred to as the "Partnerships").
PRELIMINARY STATEMENTS:
A. The Partnerships are in the business of owning and operating the
restaurants Max's Beach Place, Max's Grille at Las Olas and Max's Grille at
Weston located in South Florida (the "Restaurants").
B. Manager and the Partnerships entered into that certain Management
Agreement (the "Management Agreement") dated December 30, 1997 pursuant to which
Manager provides management and accounting services to the Restaurants.
C. The General Partners and certain Limited Partners of the
Partnerships are simultaneously herewith selling all of their general and
limited partnership interests in the Partnerships to the majority limited
partner, ▇▇▇▇▇▇ Enterprises Inc. ("▇▇▇▇▇▇"), who expects to operate the
Restaurants directly.
D. Both the Partnerships and Manager now desire to terminate the
Management Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Partnerships and Manager agree
as follows:
1. Termination. Anything in the Management Agreement to the contrary
notwithstanding, except as provided in this Agreement, the term of the
Management Agreement shall terminate as of 11:59 p.m. on the date shown above
(the "Termination Date"). After the Termination Date, neither the Partnerships
nor the Manager shall have any rights or obligations under the Management
Agreement other than those rights or obligations that expressly survive
termination. The Manager shall, in addition to the duties and obligations
elsewhere provided in the Management Agreement and in this Agreement, perform
such matters as are necessary to wind up its activities under the Management
Agreement in an orderly manner as provided in Section 4 herein.
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2. Management Transition.
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(a) Transfer of Accounting and Other Systems. Manager has
transferred and delivered to the Partnerships all books and records associated
with the Restaurants, including bank accounts, payroll records, software data,
and manager's operations manual. Manager has furnished to the Partnerships
financial reports of the Restaurants through June 30, 1999. Not later than July
30, 1999, Manager shall furnish the Partnerships with the preliminary financial
reports of the Restaurants through July 25, 1999, in a form consistent with past
practices.
(b) Transition Assistance. For ten business days from the
Termination Date, Manager will respond within 24 hours by telephone to inquiries
from the Partnerships, to assist with the management transition resulting from
this termination of the Management Agreement. If any inquiry is not answered
within such time, Manager will promptly send a qualified representative to the
West Palm Beach office of ▇▇▇▇▇▇ to answer the query. Thereafter, Manager will
use its best efforts to respond promptly to telephone inquiries from the
Partnerships concerning transition matters.
3. Representation by Manager. Manager hereby represents and warrants to
the Partnerships that, to the best of its knowledge, the materials delivered to
the Partnerships pursuant to Section 2(a) herein do not contain any untrue
statement of a material fact or omit any material fact necessary in order to
make the materials not misleading.
4. Miscellaneous.
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(a) Insurance. Within 30 days of the date hereof, the
Partnerships will terminate their present workmen's compensation insurance,
which they now share with affiliates of Manager. The present general liability
insurance, which is shared with affiliates of Manager, will be maintained until
expiration of the term on November 20, 1999. Each Partnership will be
responsible for its pro rata share of premiums of such policies through the date
of termination, including any retroactive premium charges. The parties expect
one or more rebates or dividends on the workmen's compensation policy reflecting
favorable experience over past periods. When any such payments are received,
Manager will promptly refund to each of the Partnerships their pro rata share of
such rebates.
(b) Gift Certificates. The Restaurants have sold to customers
gift certificates valid both at the Restaurants and at restaurants which are
affiliates of Manager. The Partnerships agree to honor such gift certificates,
and Manager agrees promptly to reimburse the Partnerships for any such gift
certificates so honored if the Restaurant did not sell the certificate. Manager
will cause its affiliated restaurants to honor any gift certificates issued
prior to the date hereof by any of the Partnerships, and the Partnership
Restaurant which issued the gift certificate shall promptly reimburse Manager
for the cost thereof.
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5. General Matters.
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(a) Notices. All notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
(including electronic transmission) and shall be (as elected by the person
giving such notice) hand delivered by messenger or courier service,
electronically transmitted, or mailed (airmail if international) by registered
or certified mail (postage prepaid), return receipt requested, addressed to:
If to any of the Partnerships: With a copy to:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇.: ▇▇▇ ▇▇▇▇▇▇▇▇, President ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Manager: With a copy to:
Unique Restaurants Concepts, Inc. ▇▇▇▇▇, McCloskey, Smith, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇.: ▇▇▇▇▇▇ ▇▇▇, President Ft. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by electronic transmission; and (c) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
(b) Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed by
the party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
(c) Jury Waiver. IN ANY CIVIL ACTION, COUNTERCLAIM, OR
PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR
RELATES TO THIS AGREEMENT, ANY AND ALL TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE PERFORMANCE OF THIS AGREEMENT, OR THE RELATIONSHIP CREATED BY
THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT,
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TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT
JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT, AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES TO THIS AGREEMENT OF THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. NEITHER
PARTY HAS MADE OR RELIED UPON ANY ORAL REPRESENTATIONS TO OR BY ANY OTHER PARTY
REGARDING THE ENFORCEABILITY OF THIS PROVISION. EACH PARTY HAS READ AND
UNDERSTANDS THE EFFECT OF THIS JURY WAIVER PROVISION.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. Confirmation of
execution by electronic transmission of a facsimile signature page shall be
binding upon any party so confirming.
(e) Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part of the Agreement
and shall not limit or otherwise affect in any way the meaning or interpretation
of this Agreement.
(f) Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Florida without regard to
principles of conflicts of laws.
(g) Jurisdiction. The parties acknowledge that a substantial
portion of the negotiations and anticipated performance of this Agreement
occurred or shall occur in Palm Beach County, Florida. Any civil action or legal
proceeding arising out of or relating to this Agreement shall be brought in the
courts of record of the State of Florida in Palm Beach County or the United
States District Court, Southern District of Florida, West Palm Beach Division.
Each party consents to the jurisdiction of such court in any such civil action
or legal proceeding and waives any objection to the laying of venue of any such
civil action or legal proceeding in such court. Service of any court paper may
be effected on such party by mail, as provided in this Agreement, or in such
other manner as may be provided under applicable laws, rules of procedure or
local rules.
(h) Further Assurances. The parties hereby agree from time to
time to execute and deliver such further and other transfers, assignments and
documents and do all matters and things which may be convenient or necessary to
more effectively and completely carry out the intentions of this Agreement.
(i) Benefit. This Agreement shall bind and shall inure to the
benefit of the parties hereto and their respective successors and assigns,
including without limitation, ▇▇▇▇▇▇ as successor to the Partnerships.
(j) Third Parties. Nothing in this Agreement is intended to
relieve or discharge the obligation or liability of any third persons to any
party to this Agreement, nor any provisions give any third person any right of
subrogation or action over or against any party to this Agreement.
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(k) Survival. All covenants, agreements, representations and
warranties made in this Agreement, including without limitation Section 4, or
otherwise made in writing by any party pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement.
(l) Entire Agreement. This Agreement and all exhibits and
schedules attached to this Agreement, if any, represent the entire understanding
and agreement between the parties with respect to the subject matter of this
Agreement, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
Unique Restaurant Concepts, Inc.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇ ▇▇▇, President
Max's Beach Grill, Ltd.,
a Florida limited partnership
By: Max's Beach Grill, Inc., a Florida
corporation and General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President
Unique Brickell, Ltd.,
a Florida limited partnership
By: Unique Brickell, Inc., a Florida
corporation and General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President
Unique Weston, Ltd.,
a Florida limited partnership
By: Unique Weston, Inc., a Florida
corporation And General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President
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