EXHIBIT 2.2
MANAGEMENT AGREEMENT
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This Management Agreement is made as of March 2, 1998, between Terrace
Holdings, Inc. ("Terrace"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or his designee ("Manager").
WHEREAS, Terrace wholly owns The Lasko Companies, Inc. ("TLC") which
operates a restaurant business at The Hemispheres, Hallandale, Florida
("Restaurant"); and
WHEREAS, Terrace desires to retain Manager to operate and manage the
business and activities of the Restaurant under and in accordance with the terms
and conditions hereinafter set forth; and
WHEREAS, Manager desires to accept such retention under and in accordance
with the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained and other valuable consideration, the receipt and
adequacy whereof are hereby acknowledged, Manager and Terrace, intending to be
legally bound, do hereby covenant and agree as follows:
SECTION 1. RESPONSIBILITIES, DUTIES AND SERVICES.
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1.1 Terrace hereby engages Manager to render services and perform duties
in connection with the operation of the Restaurant, as hereinafter set forth,
and Manager hereby accepts such engagement. Manager shall be responsible for
the day to day management and operation of the Restaurant's business and
affairs, with full power and authority to act on behalf of and bind the
Restaurant.
1.2 Manager's managerial and supervisory authority shall be subject to the
ultimate responsibility of Terrace and TLC as owner of the Restaurant. Without
limiting the generality of the foregoing:
(a) Manager shall be obligated for the full and faithful performance
of all duties relative to the proper and appropriate operation and
management of the Restaurant, including without limitation full and
complete compliance with all applicable governmental requirements.
Anything herein to the contrary notwithstanding, all operations,
management, internal procedures, controls and practices as administered and
supervised by Manager shall be in full compliance with and subject to all
such procedures and policies of Terrace. Nothing in this Agreement shall
be construed to constitute Terrace and Manager as agents of each other,
copartners or joint venturers, it being contemplated that Manager shall
only operate and manage the Restaurant in accordance herewith.
(b) Nothing in this Agreement shall preclude or prohibit Manager or
its personnel or Affiliates from continuing to operate and be engaged in
any business in the same manner as Manager and such personnel and
Affiliates currently may be engaged, during the term or any extension of
this Agreement, notwithstanding that such activities may directly compete
with the Restaurant or its business and activities.
SECTION 2. MANAGEMENT FEES.
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2.1 Subject to the provisions of this Management Agreement, Terrace shall
pay to Manager a management fee equal to $100, payable upon execution hereof.
SECTION 3. REPRESENTATIONS.
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Each of the parties represents and warrants to the other party that:
(a) This Agreement has been duly and validly executed and delivered by
it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, except as (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization,
marshalling, moratorium and other similar laws of general application
affecting the rights and remedies of creditors and secured parties and the
obligations of debtors, and (ii) the availability of equitable remedies may
be limited by equitable principles of general applicability.
(b) Neither the execution and delivery of this Agreement nor any other
agreement or document to be executed and delivered pursuant hereto, nor
compliance with the terms, conditions and provisions hereof, by it:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any of the terms, conditions or
provisions of any law; or
(ii) will conflict with, or result in breach or violation of or
constitute a default in the performance, observance or fulfillment of
any obligation, covenant or condition contained in, or constitute, or
but for any requirement of giving of notice or passage of time or both
would constitute, an event of default by it under, any obligation,
covenant or condition contained in the charter or by-laws or
partnership agreement or certificate of such party or any contractual
obligation or constitute, or but for any requirement of giving of
notice or passage of time or both
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would constitute, an event of default by it under, any contractual
obligation.
(c) Terrace and TLC, each is a corporation duly organized and validly
existing under the laws of its jurisdiction of organization with all
requisite power and authority, corporate and other, to execute and deliver
and perform its obligations under this Agreement.
SECTION 4. TERM OF THE AGREEMENT.
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The term of this Agreement shall commence on the date hereof and shall
terminate upon the earliest to occur of any of the following:
(a) Upon the consent in writing of the parties; or
(b) At 12:00 midnight, Eastern time, one year from the date hereof; or
(c) By either party, in its sole discretion, upon the occurrence of
any of the following events:
(i) upon the occurrence of any Act of Bankruptcy with respect to
the other party; or
(ii) upon the occurrence by either party of a material breach of
its obligations under this Agreement which is not cured within ten
days of written notice from the other party of such breach; or
(d) At such time that Terrace consummates a sale or other disposition
of the Restaurant or TLC.
If this Agreement is terminated, there shall continue any liability which
would otherwise exist under this Agreement for any breach of this Agreement
which is based on a refusal or failure to perform obligations to be performed on
or prior to the date of termination and for any breach of or any erroneous or
untrue representation and warranty.
SECTION 5. INDEMNIFICATION.
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(a) Terrace agrees to indemnify and hold harmless Manager against any and
all Claims to the extent that such Claims are based upon, arise out of or relate
to (i) any inaccurate, untruthful or erroneous representation or any breach of
any warranty or any failure to perform or comply with any of the covenants,
conditions or agreements of Terrace or TLC set forth in this Agreement or in any
agreements, instruments, other documents or certificates delivered pursuant
hereto or thereto or (ii) any act or omission to act by Terrace
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or TLC which results in Manager incurring any liability or (iii) any other
claim, obligation or liability arising out of the business or operation of the
Restaurant, direct, indirect, contingent or consequential, unless directly
caused by Manager's gross negligence or wilful or wanton misconduct.
(b) Manager agrees to indemnify and hold harmless Terrace against any and
all Claims to the extent such Claims are based upon, arise out of or relate to
(i) any material misrepresentation or any material breach of any warranty or any
direct wilful or wanton failure to perform or comply with any of the covenants,
conditions or agreements of Manager set forth in this Agreement or in any
agreements, instruments, other documents or certificates delivered pursuant
hereto, or (ii) any direct grossly negligent act or omission to act or direct
wilful or wanton misconduct by Manager which results in Terrace incurring any
liability.
(c) (i) If a claim or demand is made against either Manager or Terrace by
a third party which gives or may give rise to indemnification under these
provisions, the party claiming indemnification (the "Indemnified Party") shall
promptly notify the other party (the "Indemnifying Party") in writing of such
claim or demand. Failure of the Indemnified Party to so provide written notice
shall not relieve the Indemnifying Party from liability under these provisions
except and solely to the extent damages result from such failure. Following
such notice, the Indemnifying Party shall assume the defense of such claim or
demand through attorneys of its choosing, provided that such attorneys shall be
reasonably satisfactory to the Indemnified Party and shall not be the regular
attorneys for the Indemnifying Party unless the Indemnified Party consents. The
Indemnifying Party shall pay all costs and expenses to contest or defend any
such claim or demand. The Indemnified Party shall have the right to employ
separate counsel and to participate in the defense of any claim or demand, but
shall pay the costs and expenses of such separate counsel unless any of the
following are present, in which event the Indemnifying Party shall pay all costs
and expenses of such separate counsel:
(1) the Indemnifying Party has agreed to pay such fees and expenses;
or
(2) the Indemnifying Party has failed to assume the defense of such
claim or demand, or has failed to employ counsel satisfactory to the
Indemnified Party; or
(3) representation of both Terrace, TLC and Manager by the same
counsel would be inappropriate due to actual or potential material
differing interests between them, in which event the Indemnifying Party
shall not have the right to assume the defense of such claim or demand on
behalf of the Indemnified Party if it elects to employ separate counsel.
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(ii) Any such claim or demand by a third party may be settled,
compromised or paid by the Indemnifying Party without the consent of the
Indemnified Party unless:
(1) the Indemnified Party would be liable for or subject to any
portion thereof; or
(2) the terms of such settlement, compromise or payment could
reasonably be expected to have a material adverse effect on the future
business or financial condition of the Indemnified Party,
in which event, the Indemnified Party's prior written consent is required for
any such settlement, compromise or payment.
(d) In the event that any action or proceeding is commenced by any party
hereto for the purpose of enforcing any provision of this Agreement, the parties
to such action or proceeding or arbitration may receive as part of any award,
judgment, decision or other resolution of such action or proceeding their costs
and reasonable attorneys' fees as determined by the person or body making such
award, judgment, decision or resolution. Should any claim hereunder be settled
short of the commencement of any such action or proceeding, the parties in such
settlement shall be entitled to include as part of the damages alleged to have
been incurred reasonable costs of attorneys or other professionals in
investigation or counseling on such claim.
SECTION 6. DEFINITIONS.
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As used herein, unless the context otherwise requires, the following terms
have the following respective meanings. Terms defined in the singular shall
have a comparable meaning when used in the plural and vice versa, and the
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reference to any gender shall be deemed to include all genders.
"ACT OF BANKRUPTCY," when used with reference to any Person, shall mean any
of the following events or occurrences:
(a) its admitting in writing its inability to pay its debts generally
as they become due; or
(b) its commencement of a voluntary case under the Bankruptcy Code as
from time to time in effect, or its authorizing, by appropriate proceedings
of its board of directors or other governing body, the commencement of such
a voluntary case; or
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(c) the filing against it or any substantial part of its property of a
petition commencing an involuntary case under the Bankruptcy Code which is
not dismissed within thirty (30) days; or
(d) its seeking relief as a debtor under any applicable law, other
than the Bankruptcy Code, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the
rights of creditors, or its consenting to or acquiescing in such relief or
its admitting or acquiescing in or failing promptly and in an appropriate
manner to deny the material allegations of any petition seeking such
relief; or
(e) the entry of an order by a court (or other ruling body) of
competent jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
ordering or approving its liquidation, reorganization or any modification
or alteration of the rights of its creditors, or (iii) assuming custody of,
or appointing a receiver, trustee, sequestrator, conservator, liquidator,
fiscal agent or other custodian for, all or a substantial part of it
property; or
(f) its making an assignment for the benefit of, or entering into a
composition with, its creditors; or
(g) its seeking or consenting to or acquiescing in the appointment of
a receiver, trustee, sequestrator, conservator, liquidator, fiscal agent or
other custodian of itself or of any substantial part of its property; or
(h) its winding-up, liquidation or dissolution, or its authorization,
by appropriate action of its board of directors or other governing body, of
any of the foregoing.
"AFFILIATE" of any Person shall mean any Person which, directly or
indirectly, owns or controls, is under common ownership or control with, or is
owned or controlled by, such Person.
"BANKRUPTCY CODE" shall mean 11 U.S.C. (S) 101 et seq., as from time to
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time hereafter amended, and any successor or similar statute and any similar
law, statute, regulation or rule of any jurisdiction other than the United
States of America.
"CLAIMS" shall mean any and all liabilities, obligations, losses, damages,
deficiencies, claims, assessments, penalties, actions, proceedings, suits and
judgments of whatever kind and nature and all fees, costs and expenses
(including, without limitation, attorneys' fees and expenses and legal costs)
relating thereto.
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"ENTITY" shall mean any corporation, unincorporated association,
partnership, business trust, trust, joint stock company, joint venture or other
organization, entity or business, or any Governmental Authority.
"LEGAL ACTION" shall mean any litigation or legal or other actions, suits,
proceedings, investigations or arbitration, at law or in equity or admiralty
(including without limitation any voluntary or involuntary proceedings under the
Bankruptcy Code or any comparable law or statute of any other Governmental
Authority).
"MANAGER" is defined in the preambles to this Agreement.
"PERSON" shall mean any individual or any Entity.
SECTION 7. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
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The parties shall not be liable or bound in any manner by expressed or
implied representations, warranties, covenants, agreements or indemnifications
pertaining to the subject matter of this Agreement, or any other matter
whatsoever, made or furnished by any officer, director, partner, employee,
stockholder, attorney, principal, controlling person, agent or other person
representing or purporting to represent one of the parties unless such
representations, warranties, covenants, agreements or indemnifications are
expressly and specifically set forth herein or in any schedule, exhibit or other
document expressly made a part hereof or in any certificate or other document
delivered pursuant to the provisions of this Agreement.
The representations, warranties, covenants, agreements and indemnifications
set forth or otherwise provided for in this Agreement shall survive the
termination of this Agreement and shall not be deemed waived or otherwise
affected by any investigation made by or on behalf of any party hereto.
All representations, warranties, covenants, agreements and indemnifications
made in this Agreement or in any agreement, instrument, other document or
certificates delivered in connection with the transactions contemplated hereby
shall be deemed material and relied on by each party notwithstanding any
investigation made by it or on its behalf.
SECTION 8. CONFIDENTIALITY.
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Each party, except as reasonably necessary to complete the transactions
contemplated hereby and except as otherwise required by any Governmental
Requirement, including without limitation applicable securities laws, shall use
its best efforts to maintain the confidentiality of the terms and conditions of
this Agreement and the transactions contemplated hereby. The provisions of this
Section shall survive any termination of this Agreement or the consummation of
the transactions contemplated hereby.
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SECTION 9. ENTIRE AGREEMENT.
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This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
arrangements, covenants, promises, conditions, understandings, inducements,
representations and negotiations, expressed or impled, written or oral, between
them as to such subject matter.
SECTION 10. WAIVERS; AMENDMENTS.
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Anything in this Agreement to the contrary notwithstanding, amendments to
and modifications of this Agreement may be made, required consents and approvals
may be granted, compliance with any term, covenant, agreement, condition or
other provision set forth herein may be omitted or waived, and
misrepresentations and breaches of warranties may be waived, either generally or
in a particular instance and either retroactively or prospectively with, but
only with, the written consent of the party entitled to the benefit thereof.
Any waiver of any terms, covenants, agreements, conditions or other provisions,
any breach of any warranty or any misrepresentation, set forth in this
Agreement, in any one instance, shall not operate as or be deemed to be or
construed as a further or continuing waiver of any other breach of such terms,
covenants, agreements, conditions, representations or warranties or any other
term, covenant, agreement, condition, agreement, provision, representation or
warranty, nor shall any failure at any time or times to enforce or require
strict performance of any provision hereof operate as a waiver of or affect in
any manner such party's right at a later time to enforce or require performance
of such provision or of any other provision hereof. No such waiver shall be
effective unless in writing. No delay on the part of any party at any time or
times in the exercise of any right or remedy shall operate as a waiver thereof.
The failure of a party hereto at any time or times to insist upon strict
compliance with any term, covenant, agreement, condition or other provision or
to exercise any right or remedy with respect to such failure or to require
performance of any thereof shall in no manner affect its right at a later time
to enforce the same or constitute a waiver of any such term, covenant,
agreement, condition or other provision or any breach or default in connection
therewith. Any waiver or consent may be given subject to satisfaction of the
conditions stated therein.
SECTION 11. ASSIGNMENT, SUCCESSORS AND ASSIGNS.
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This Agreement shall not be assignable by either party without the prior
written consent of the other; provided, however, that notwithstanding the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, including,
without limitation, successors by operation of law pursuant to any merger,
consolidation or sale of assets involving any of the parties.
Nothing in this Agreement expressed or implied is intended to and shall not
be construed to confer upon or create in any person (other than the parties
hereto and their successors and
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permitted assigns) any rights or remedies under or by reason of this Agreement,
including without limitation any rights to enforce this Agreement.
SECTION 12. NOTICES AND REPRESENTATION.
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All notices and other communications which by any provision of this
Agreement are required or permitted to be given shall be given in writing and
shall be (a) mailed by first-class or express mail, postage prepaid, (b) sent by
telex, telegram, fax or other form of rapid transmission, confirmed by mailing
(by first class or express mail, postage prepaid) written confirmation at
substantially the same time as such rapid transmission, or (c) personally
delivered to the receiving party (which if other than an individual shall be an
officer or other responsible party of the receiving party). All such notices
and communications shall be mailed, sent or delivered as follows:
If to Manager, at:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ fax
If to Terrace, at:
Terrace Holdings, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ fax
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
A notice delivered in person shall be effective when given; a notice sent
by mail shall not become effective until received by the person to whom it is
given, unless it is mailed by registered mail, in which case it shall be deemed
effective on the earlier of the date of receipt or the third business day after
it has been mailed; a notice sent by telex, telegram, telecopy or other form of
rapid transmission shall be deemed to be given when receipt of such transmission
is acknowledged.
The parties hereto expressly acknowledge and agree that they each have
requested the law firm of Fishman, Merrick, Miller, Genelly, Springer, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, P.C. to represent them jointly with respect to this Agreement and
related matters and they acknowledge and expressly waive any right or
opportunity to assert a claim against said Fishman, Merrick, Miller, Genelly,
Springer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C. by reason of conflict of interest. The
parties further acknowledge, understand and agree that in the event of any
dispute between them under
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this Agreement or relating to the matters contemplated herein that said Fishman,
Merrick, Miller, Genelly, Springer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C. will withdraw as
counsel to Manager or his affiliates therein, but may continue to act as counsel
to Terrace without any limitation whatsoever subject only to the applicable Code
of Professional Responsibility requirements as said firm shall determine.
SECTION 13. SEVERABILITY.
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If any provision of this Agreement shall be held or deemed to be, or shall
in fact be, invalid, inoperative, illegal or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions or
in all cases, because of the conflicting of any provision with any constitution
or statute or rule of public policy or for any other reason, such circumstance
shall not have the effect of rendering the provision or provisions in question
invalid, inoperative, illegal or unenforceable in any other jurisdiction or in
any other case or circumstance or of rendering any other provision or provisions
herein contained invalid, inoperative, illegal or unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute or rule of public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative, illegal or unenforceable provision had never been contained herein
and enforceable to the maximum extent permitted in such jurisdiction or in such
case. The parties all endeavor in good faith negotiations to replace the
invalid, inoperative, illegal or unenforceable provisions with valid, operative,
legal and enforceable provisions the economic effect of which comes as close as
possible to that of the invalid, inoperative, illegal or unenforceable
provisions.
SECTION 14. COUNTERPARTS.
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This Agreement may be executed in several counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument, binding upon all the parties hereto, notwithstanding that all
the parties are not signatories to the original or the same counterpart. In
pleading or proving any provision of this Agreement, it shall not be necessary
to produce more than one of such counterparts.
SECTION 15. SECTION HEADINGS.
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The headings contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
SECTION 16. CERTAIN TERMINOLOGY.
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Whenever used herein, the singular number shall include the plural, the
plural shall include the singular, and the use of any gender shall include all
genders. Except where the context otherwise requires, references to "this
Section" or words of similar import shall be deemed to refer to the entire
section and not a particular subsection and references to
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"hereunder", "herein", "hereof" or words of similar import shall be deemed to
refer to the entire Agreement and not the particular Section or Section or
subsection.
SECTION 17. FURTHER ACTS.
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Each party agrees that at any time, and from time to time, before and after
the consummation of the transactions contemplated by this Agreement, it will do
all such things and execute and deliver all such agreements, assignments,
instruments, other documents and assurances, as any other party or its counsel
reasonably deems necessary or desirable in order to carry out the terms and
conditions of this Agreement and the transactions contemplated hereby or to
facilitate the enjoyment of any of the rights created hereby or to be created
hereunder. Each of the parties hereby irrevocably constitutes and appoints the
other as its true and lawful attorney, in the name, place and stead of such
party, to execute, acknowledge and deliver all such agreements, assignments,
instruments, other documents and assurances as are necessary to carry out the
terms and conditions of this Agreement and the transactions contemplated hereby
or to facilitate the enjoyment of any of the rights created by this Agreement or
to be so created.
SECTION 18. CONFLICT AMONG ATTACHMENTS.
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In the event of any conflict between the provisions of this Agreement and
any exhibit hereto, or any agreement, instrument, other document or undertaking
executed pursuant hereto, unless otherwise specifically provided therein, the
provisions of this Agreement shall control.
SECTION 19. GOVERNING LAW.
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The validity, interpretation, construction and performance of this
Agreement shall be governed by the applicable laws of the United States of
America and the domestic substantive laws of the State of Florida without giving
effect to any choice or conflict of laws provision or rule that would cause the
application of domestic substantive laws of any other jurisdiction.
SECTION 20. ARBITRATION.
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The parties agree that any dispute between them that cannot be resolved and
any action or proceeding brought by either party against the other shall be
determined by arbitration by three arbitrators knowledgeable in the commodity
futures business in Chicago, Illinois, in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association. Each
party shall select one arbitrator and the third arbitrator shall be mutually
agreed upon by both parties. If the parties are unable to agree upon the third
arbitrator, the third arbitrator shall be selected by the arbitrators previously
selected by the parties. The costs of the arbitrators shall be borne equally by
the parties. The decision of the arbitrators shall be final and binding and may
be entered in any court of competent jurisdiction.
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Notwithstanding the foregoing provisions, if there has been filed any
petition or application or proceeding commenced by or against any party hereto
under any Bankruptcy Code, the other party may elect to enforce all or any of
its rights or remedies in any court of competent jurisdiction, and shall not be
required to have any such dispute determined in arbitration pursuant to the
foregoing provisions.
SECTION 21. NO PRESUMPTION.
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This Agreement shall be construed without regard to any presumption or
other rule requiring construction against the party causing this Agreement to be
drafted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement all
pursuant to due authority as of the date first above written.
TERRACE HOLDINGS, INC.
(SEAL)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇,Chairman
and Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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